These general terms (the “General Terms”) are applicable to the license agreement (the “Licensing Agreement”) that has been made by and between:
InfraSight Labs AB, a company limited by shares incorporated in Sweden under company registration number 556801-6314, (“InfraSight Labs”), with registered address at Anckargripsgatan 3, 21119 Malmö, Sweden; and
a Licensee, (“Licensee”) , an individual or an entity (including subsidiaries).
The Licensee may be further described in the invoice (the “Invoice”) issued by InfraSight Labs or by an authorized reseller. The Invoice is based on the information set out in the Licensee’s purchase order.
Each a “Party” and collectively the “Parties”.
Contents Of The Licensing Agreement
The Licensing Agreement between the Parties consists of the terms and conditions set out in (i) the Invoice, (ii) any special terms agreed in writing between the Parties, or (iii) these General Terms. In the event of conflicting terms, the documents shall prevail in the above order.
If no Invoice issued by InfraSight Labs, and no special terms agreed in writing between the Parties exist, these General Terms constitute the full Licensing Agreement.
Grant of License
The licensed program (“Licensed Program”) consist of the software program vScope or any later version, module or parts thereof provided by InfraSight Labs under the Licensing Agreement.
The license period (“License Period”) is the duration of, and the license fee (“License Fee”) is the charge for the subscription of the Licensed Program as set forth in the Invoice.
InfraSight Labs hereby grants to the Licensee, and the Licensee hereby accepts a time-limited, non-exclusive, non-transferable between installations, and non-assignable license to use the Licensed Program, and data that the Licensed Program produces.
The Licensee shall not use the Licensed Program in violation of the terms and conditions provided in the Licensing Agreement. Without limiting any additional right hereunder, InfraSight Labs has the right to invoke all terms and conditions provided in the Licensing Agreement upon delivery of the Licensed Program and until the Licensed Program has been deleted from Licensee’s server.
The Licensee undertakes not to let any third party use any part of the Licensed Program; make unauthorized computed use of data produced by the Licensed Program; perform or allow de-compilation or dissemblance to an extent which exceeds what is permitted by law; or alter, copy or in any other way dispose the Licensed Program to an extent that exceeds what is permitted by law.
The Licensee shall make sufficient precautions to prevent any third party from committing any of the actions listed in the clause above.
Intellectual Property Rights
All patents, patent applications, including with respect to patents any patent rights granted upon any reissue, division, continuation or continuation-in-part applications now or hereafter filed, utility models issued or pending, registered and unregistered design rights, copyrights, registered and unregistered trademarks, trade secrets and proprietary know-how and any other similar statutory intellectual property or industrial rights, as well as applications for any such rights regarding the Licensed Program, any part of such Program, any development of the Licensed Program or to any other product InfraSight Labs provides to the Licensee, are owned or licensed by InfraSight Labs.
The Intellectual Property Rights to the Licensed Program shall at all times be owned by and vested in InfraSight Labs, and no ownership rights to the Licensed Program or any further development of the Licensed Program, shall, under any circumstances, be transferred to the Licensee.
The Licensee will get access to the Licensed Program through an executable file downloaded or offered as a service from InfraSight Labs web page or other web page authorized by InfraSight Labs on the Internet, or other distribution channel authorized by InfraSight Labs. Licensee is permitted to access the Licensed Program and/or run the executable file only during the License Period and only on the designated server. The license is not transferable to any other server or to any third party.
Delivery of the Licensed Program has occurred when the Licensed Program has been installed on the designated server, or otherwise when the Licensed Program has become accessible for the Licensee.
The Licensee is fully responsible for having and maintaining sufficient hardware, software, Internet connection and other enabling technology in order to be able to run and/or access the Licensed Program properly during the License Period.
Warranties and remedies
The Licensed Program is under continuous development and delivered “as is”. InfraSight Labs’ liability is limited to the provisions in the Licensing Agreement. No claims may be brought against InfraSight Labs, except where InfraSight Labs has been guilty of gross negligence or willful misconduct.
Limitations of liability
InfraSight Labs may not be liable to the other party for any direct, indirect or other consequential damage or loss, including but not limited to loss of profit, loss or alteration of data, costs for recreation of lost or altered data, or damages payable to third parties.
InfraSight Labs’ aggregated maximum liability to Licensee under the Licensing Agreement shall be limited to the License Fee paid to InfraSight Labs during the last six (6) months.
Fees and payment
In consideration of the rights granted to the Licensed Program, Licensee shall pay the applicable License Fees as set out in the Invoice.
InfraSight Labs reserve the right to adjust prices at any time. Adjusted price will be applied from the renewal of the Licensed Period.
During the Licensed Period, InfraSight Labs shall be eligible to charge the License Fee starting from the date on which the Licensing Agreement is signed or electronically accepted, unless otherwise agreed. Any delay caused by the Licensee, shall not affect the right for InfraSight Labs to charge the agreed License Fees.
Licensee is fully responsible for maintaining an updated online account-profile with InfraSight Labs containing full company and invoicing details. An incomplete or faulty profile shall not affect the right for InfraSight Labs to charge the agreed License Fees.
Payment of the License Fee shall be made in advance of the License Period for which the license is valid and with the continuity set forth in the Invoice.
Any complaints regarding the Invoice shall be submitted in writing not later than five (5) days from the Licensee’s receipt of the Invoice. If payment is not made in due time, InfraSight Labs is entitled to charge penalty interest after the due date, in accordance with law.
All information, whether oral or written or in visual, electronic or tangible form, regarding or otherwise relating to a Party, any of its affiliates or to any of its/their affairs or other business matters, which has been disclosed or may be disclosed to the other Party (the “Receiving Party”), or which the Receiving Party has or may otherwise become aware of in connection with the preparation, negotiation, entry into or performance of the Licensing Agreement, shall during the term of the Licensing Agreement and for a period of five (5) years after its termination or expiry for whatever reason be kept strictly confidential by the Receiving Party and not be used by it for any other purpose than the performance or enforcement of the Licensing Agreement nor be disclosed by it to any third party without the prior written consent of the other Party.
The restrictions in this section shall not apply to information (a-f):
(a) to the extent reasonably necessary to be used or disclosed by the Receiving Party in order for it to secure its interests against the other Party in connection with a dispute, controversy or claim arising out of or in connection with the Licensing Agreement or to otherwise enforce its rights under the Licensing Agreement;
(b) that was at the time of its disclosure or which becomes thereafter generally available to the public otherwise than as a consequence of a breach by the Licensing Agreement;
(c) that was obtained by the Receiving Party in good faith without restriction from a third party;
(d) it is independently developed by the Receiving Party through its own verifiable activities without the use of disclosing party’s Confidential Information;
(e) it is rightfully obtained from a third party having no obligations of confidentiality to the disclosing party, or
(f) that the Receiving Party is required to disclose by law or any governmental or other regulatory authority or by any applicable contract or regulations of any applicable stock exchange or other market place.
The Party using or disclosing any information or documentations with reference to any of these exceptions bears the burden of proof to establish that the relevant exception applies.
For the purpose of providing support services to the Licensee, as well as for development, education, gathering of statistics or marketing of the Licensed Program or other services, Licensee permits InfraSight Labs and/or it’s affiliates, for as long as the Licensed Program is installed on the designated server, to control, alter and update the Licensed Program remotely, as well as collect and use data generated therefrom.
Without prejudice to the foregoing, this section shall not apply regarding InfraSight Labs right of referring to the Licensee as a customer to InfraSight Labs in public.
Either Party shall be entitled to suspend performance of its obligations under the Licensing Agreement to the extent that such performance is impeded or made unreasonably onerous by any circumstances beyond the Parties’ control, including, but not limited to; general labor disturbances, such as boycott, strike and lockout, fire, war, whether declared or not, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power and defects or delays in deliveries by subcontractors caused by any such circumstances referred to in this section.
The Party claiming to be affected by force majeure shall notify the other Party in writing without delay on the intervention and on the cessation of such circumstance.
Regardless of what may otherwise follow from this Licensing Agreement, the Party not affected by force majeure shall be entitled to terminate the Licensing Agreement by notice in writing to the other Party if performance is suspended by force majeure for a continuing period of more than three (3) months.
Terms and termination
If not agreed otherwise between the parties, the term of the Licensing Agreement shall come into force the first date of when the Licensee has accepted the General Terms on either InfraSight Labs’ web site or in the Licensed Program when installed on the designated server, and shall remain in full force and effect for the entire License Period, if not terminated in accordance with the provisions of the Licensing Agreement.
At the end of the License Period, should it be three months or longer, or any subsequent term thereof pursuant to a renewal under this section, the Licensing Agreement shall be automatically renewed for as long time as the original License Period, unless terminated or changed by either of the Parties giving written notice to that effect to the other Party not later than:
(a) one month prior to the expiry of the relevant term if the License Period is three months, or
(b) three months prior to the expiry of the relevant term if the License Period is longer than three months.
Each party is entitled to terminate the Licensing Agreement if the other Party should commit or permit a breach or non-performance of material importance to the other Party and should fail to remedy such breach or non-performance within sixty (60) days after receipt of written notice.
Furthermore, InfraSight Labs shall be entitled to immediately terminate the Licensing Agreement (or part thereof) if:
(a) The Licensee is delayed more than thirty (30) days with the payment of the License Fee and/or other costs (as applicable);
(b) The Licensee or any of its affiliated companies engage in a business activity which is competing with the business of InfraSight Labs;
(c) Material changes in the ownership control of the Licensee or if any agreement is concluded under which the Licensee’s business is transferred to a competitor of InfraSight Labs;
(d) The Licensee or any of its affiliated companies institute legal action against InfraSight Labs; or
(e) If no Invoice issued by InfraSight Labs, or no special terms agreed in writing between the Parties exists that sets out a specific the Licensed Period.
Without prejudice to any remedy it may have against the other Party for breach or non-performance under the Licensing Agreement, either Party shall have the right to terminate the Licensing Agreement immediately by giving the other Party notice in writing if the other Party should enter into liquidation, either voluntary or compulsory, or become insolvent or enter into composition or corporate reorganization proceedings or if execution be levied on any goods and effects of the other Party or the other Party should enter into receivership. Such notice of termination shall be given without undue delay after the circumstance constituting the breach was or should have been known to the aggrieved Party.
Effects of Termination
At the termination or expiry of the Licensing Agreement, regardless of the reason for which the Licensing Agreement is terminated shall:
(a) The Licensee’s right to use and access to the Licensed Program immediately expire;
(b) The Licensee immediately pay all outstanding debts to InfraSight Labs; and
(c) The Licensee immediately completely remove the Licensed Program from the designated server including all files related to the Licensed Program from its domains, and return all material and documents provided by InfraSight Labs regarding the Licensed Program to InfraSight Labs. The Licensee hereby also undertakes that upon termination of the Licensing Agreement erase and delete all information, data produced by the Licensed Program or such like, regarding the Licensed Program.
The Licensing Agreement constitutes the entire agreement between InfraSight Labs and the Licensee relating to the subject matter hereof and supersedes and cancels any and all previous or collateral agreements, negotiations, commitments, representations or understandings between the parties, with respect to the Licensing Agreement and the subject-matter hereof.
InfraSight Labs reserves the right to make changes to these General Terms at any time. Such changes shall not affect the Licensee until after the valid License Period has expired or from the time of renewal of the License Period.
In the event that any provision of the Licensing Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render the Licensing Agreement unenforceable or invalid as a whole.
Any dispute, controversy or claim arising out of or in connection with the Licensing Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce for expedited arbitration procedure.
The arbitration proceeding shall be conducted in the Swedish language and take place in Malmö. The Licensing Agreement shall be governed by Swedish law.