CAPASYSTEMS TERMS AND CONDITIONS
Version 1.5 - September 2018
CAPASYSTEMS SOFTWARE END-USER LICENSE AGREEMENT
The Software and all intellectual property rights pertaining to it, are owned by the Danish company, CapaSystems A/S, Company Number (CVR) 19 18 96 35 ("the Licensor").
You, and the legal entity you represent, hereby accept that you as user (the "User", "you" or "Licensee") are bound by this Agreement and that you prior to accepting these terms have been duly authorized by the legal entity that you represent to accept this Agreement on its behalf.
As this Agreement contains a detailed regulation of the use of the Software we urge you to peruse this Agreement carefully before accepting it.
1. THE SOFTWARE
You accept that the Software you are about to download is specialized software only to be used/operated by individuals who have the necessary knowledge and technical background to understand the Software and what alterations it is capable of performing on your computers and devices.
2. SERVER SOFTWARE
The Software cannot operate properly without being able to communicate with a server where the CapaSystems Server Software is installed (the "Server Software"). The Server Software may either be installed on servers operated by or on behalf of you or on Licensor's servers (operated by or on behalf of Licensor) as further described in separate terms.
3. GRANT OF RIGHT TO USE
You are granted the following right of use contingent upon your payment of any license fee due:
If the software is used under the Lenovo Services agreement/SOW with CapaSystems, then sections 3a and 3d are not applicable under this Software License terms and conditions.
a. You receive a right of internal use only and therefore you may only use the Software within your legal entity as comprised by the License Version you have paid for.
b. You may only install one (1) copy of the Software on each computer or device.
c. If you have implemented a formal Bring your own device policy ("BYOD") allowing individuals to use their own computers and devices in your service, you are allowed to install the Software on said individuals' personally owned computers and devices enrolled in your BYOD program.
d. You are not allowed to sub-license, lend, rent or lease the Software to any third party. Under no circumstances may you use/utilize the Software as part of any services delivered to a third party including but not limited to consultancy services/software as a service operation or the like. The aforementioned shall not prevent you from having a third party operate the Server Software on your behalf provided that the external operation is part of an outsourcing of the operation of your IT equipment. The grant of right to outsource shall not in any way constitute or be construed as a warranty as to the suitability of the Server Software to be outsourced.
e. Your right of use is non-exclusive and is restricted to use granted by the license model chosen by you be it perpetual, per computers and devices, per user, per transaction and or for a period of time.
f. You shall be allowed to use the Software during any period covered by a paid license fee provided however that you always comply with this Agreement and provided that you are in possession of a valid license key if applicable.
g. You shall not be entitled to transfer your right of use to a new legal entity unless you have paid for a perpetual license and effectively terminate any and all use of the Software. Such transfer shall be subject to the provisions of Section 5.
Any access to maintenance and support is subject to prepayment of an annual maintenance fee. You may choose not to pay for maintenance and support. If you do not pay on an ongoing basis for maintenance and support and you later need to update your version of the Software/need support Licensor shall only be obliged to provide maintenance/support to you subject to payment of a fee. The fee to be paid by you may be a "catch-up" payment of maintenance fees not paid prior to the request for maintenance, payment of a new updated license or a specific support fee as determined by Licensor from time to time.
4. LICENSE VERSION
The license version you have bought or subscribed to determines how and where you may use the Software.
You are only allowed to have as many copies of the Software installed as covered by your license or SAAS subscription.
5. FURTHER RESTRICTIONS ON USE
You agree to maintain all copyright notices on any full and partial copies of the Software. You must not use or allow any third party to use the Software in any manner that may infringe any intellectual property rights, including without limitation patents, copyrights and trade mark rights or any proprietary or trade secret interests.
You may not, unless expressly permitted in mandatory regulation in the country where the Software is in use:
a) Reverse engineer or attempt in any manner to decompile the executable code of the Software.
b) Attempt to defeat any control mechanisms in the Software.
c) Obscure or obliterate any Licensor copyright, license or trademark notices which appear on the Software, the documentation, the screen-display, the output or otherwise in connection with the Software.
6. ENHANCEMENT OF USE
If Licensor at some point introduces tools including collaboration tools that enhances the external use or functionality of the Software - for instance enabling you to exchange data with an App or share your output with other external users via a collaboration tool - any activations of such enhanced functionality, App and tools shall be deemed to be governed by this Agreement regardless of whether you have made any additional payment for the App or the access to the collaboration tools unless Licensor specific requires the acceptance of a new license agreement in order to obtain access to the App or collaboration tools.
7. PROPER USE, SUPPORT AND MAINTENACE
You are aware that the Software will only perform efficiently and in substantial accordance with its documentation if you at all times keep the Software updated, if you have a valid license and you have updated and sufficient hardware and IT-infrastructure and if needed, a sufficient Internet connection.
You are made aware of and accept that before you update the operating system on your computers and devices it is your sole responsibility to ensure that the Software supports the new version of the operating system in question.
Licensor intends to further develop the Software with a view to:a) Improve the quality of the Software and correct errors and effects, if possible;
b) Update and amend the Software in accordance with general demands of the users.
Maintenance measures may include changed and/or reduced functionality.
The documentation may be updated in connection with delivery of new versions of the Software. Only the latest version of the documentation shall be valid. The maintenance services shall only be provided to versions of the Software elected by Licensor and only for such a period of time as Licensor choose to offer. Access to any updates/maintenance is subject to a valid license/duly payment of the applicable and agreed maintenance fee.
Unless Licensor has remote access to the Software in order to perform the Maintenance Licensee shall be deemed to have taken over the task of maintaining the Software by installing new releases from Licensor.
Any Support offered by Licensor is subject to Licensee's users having undergone proper training/education. E-mail support is included in the maintenance fee. Licensor will respond to any support requests as soon as possible.
8. RIGHT TO INSPECTION
Licensor shall at any time without notice have the right to inspect the premises of the Licensee and all and any computers and devices where the Software or the Server Software is installed in order to ensure that the above mentioned License restrictions are complied with.
If the result of the inspection is a correction of the license fee paid by the Licensee the Licensee shall pay any and all costs in connection with the inspection and compensation equal to two times the unpaid part of the license fee.
If the Licensee denies the Licensor or its representative access to undertake an inspection the Licensor shall be entitled to terminate the use of the Software without notice and claim damages and compensation.
The Licensor and its representatives shall comply with any reasonable on site rules and regulations and shall if required by Licensee sign a declaration in this respect.
The Licensor may, as an alternative to the physical inspection, ask for a compliance statement from the Licensee's external auditor or legal representative.
9. COPYRIGHT PROTECTION AND OPEN SOURCE
The Software is designed and programmed by Licensor and is protected by applicable copyright laws and international treaties.
The Software may contain components based on open source. The relevant parts of open source licenses are incorporated into this Agreement and Licensor warrants that the use of open source will not affect the legal use of the Software.
10. LIMITED OR NO WARRANTY
You acknowledge that you know the essential functional characteristics of the Software and bear the risk that the Software does not meet your wishes and requirements.
In case of doubt you should consult employees of Licensor, it resellers or third-party experts before concluding this Agreement and relying on the Software.
You accept that the Software, like any standard software, may not be error free or free from defects and that Licensor is not liable for malfunctions due to errors or defects.
IN PARTICULAR YOU ACCEPT THAT ANY OUTPUT AND CALCULATIONS MADE BY OR WITH THE SOFTWARE/SERVER SOFTWARE ARE BASED SOLELY ON YOUR DATA AND THAT ALL CALCULATIONS AND OTHER OUTPUT SHOULD BE VERIFIED BY YOU OR A SKILLED PERSON/EXPERT BEFORE RELIED UPON. LICENSOR DOES NOT RESUME ANY RESPONSIBILITY FOR THE COMPLETENESS OF ANY RECORDINGS OF DATA MADE BY THE SOFTWARE.
YOU ACCECPT THAT THE USE OF THE SOFTWARE AND THE USE OF ITS RECORDINGS IS YOUR SOLE RESPONSIBILTIY AND THAT YOU MUST ENSURE THAT ANY USE OF THE RECORDINGS OF DATA IS IN ACCORDANCE WITH THE APPLICABLE RULES AND REGULATIONS.
Licensor warrants for a period of one year after the Effective Date, that the Software will in all material respects conform to the documentation and will use reasonable efforts to keep the service performed by the Software updated during the first year after the Effective Date.
No on-site warranty service is included in this Limited Warranty. This Limited Warranty is void if you breach this Agreement or if failure of the Software has resulted from failure to observe the documentation or resulted from amendments, modifications or changes to the Software not made by Licensor, or accident, abuse or misapplication. Any patches or re-placement Software will be warranted for the remainder of the original warranty period only.
11. YOUR REMEDIES
Your exclusive remedy for any material defect in the Software or lack in the Service provided by the Software for which Licensor is responsible and Licensor's sole obligation will be for Licensor to correct, in a reasonable time period, the error or defect in the Software or Service where the Software/Service does not perform substantially in accordance with the documentation, or, at the exclusive choice of Licensor, either to replace the Software, or to refund you a proportional part of the license fee which in the sole opinion of Licensor corresponds to the value of defect in the Software. You have no other remedies except if required by mandatory law in your jurisdiction.
12. NO OTHER WARRANTIES
EXCEPT FOR THE EXPRESSED WARRANTIES SET FORTH IN THIS AGREEMENT LICENSOR AND ITS SUPPLIERS AND RESELLERS DISCLAIM ALL OTHER WARRANTIES, PROMISES OR REPRESENTATIONS, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE OR EQUIPMENT, COMPONENTS, ANY LOST DATA OR DOCUMENTATION, SOFTWARE PRODUCED DATA, ANY SERVICES OR TECHNICAL ASSISTANCE OR ANY OTHER ITEM DELIVERED BY LICENSOR.
13. NO LIABILITY FOR DAMAGES
LICENSOR, ITS SUB-SUPPLIERS AND RESELLERS SHALL NOT BE LIABLE FOR ANY PERSONAL INJURY AND PROPERTY DAMAGE RESULTING FROM THE USE OF THE SOFTWARE. YOU ASSUME RESPONSIBILITY FOR ALL PERSONAL INJURY AND PROPERTY DAMAGE RESULTING FROM THE USE OF THE SOFTWARE. IN NO EVENT SHALL LICENSOR, ITS OFFICERS, AGENTS, EMPLOYEES OR SUPPLIERS BE LIABLE TO ANY PERSON OR ENTITY FOR THE LOSS OF PROFITS OR THE NON-REALISATION OF ANTICIPATED SAVINGS OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE SOFTWARE OR THE PERFORMANCE OF THE SOFTWARE, EVEN IF LICENSOR OR ITS OFFICERS, AGENTS, EMPLOYEES, OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. FOR THE AVOIDANCE OF DOUBT LOSS OF DATA SHALL BE CONSIDERED INDIRECT DAMAGES HEREUNDER. IN NO EVENT SHALL THE TOTAL, CUMULATIVE LIABILITY OF LICENSOR, ITS SUB- SUPPLIERS AND RESELLERS EXCEED THE LICENSE FEE PAID FOR THE SOFTWARE. IF YOU USE A FREE VERSION OF THE SOFTWARE LICENSOR ASSUMES NO LIABILITY AT ALL.
14. THIRD PARTY RIGHTS
If a third party makes a claim against you that any part of the Software originating from Licensor (infringes any patent, copyright or other intellectual property right in the country) where you under this Agreement is allowed to use the Software (hereafter "Claim"), Licensor will defend the right to hold you against the Claim and pay all costs, damages and expenses - including reasonable attorney's fees - finally awarded against you by a court having jurisdiction over the matter (the total costs, damages ad expenses however capped at an amount equals the total license fee paid by you to Licensor) provided that:
(i) You notify Licensor in writing no later than five (5) days after you have become aware of a Claim or a potential Claim;
(ii) Licensor may assume sole control of the legal handling of the Claim and all related actions and negotiations; and
(iii) You - at your own cost - provide Licensor with the assistance, information and authority, which in the opinion of Licensor will be necessary to perform Licensor's obligations under this clause.
Notwithstanding the above, Licensor shall have no liability for (i) any Claim based on the combination of the Software with software and/or interfaces, products or services not provided by Licensor and (ii) the modification of the Software by any person other than Licensor.
If, due to a Claim or the threat of a Claim,
(i) any part of the Software is held by a court having jurisdiction over the matter, or in Licensors' reasonable opinion may be held to infringe the rights of a third party by such a court,
(ii) you receive a valid court order preventing you from using any part of the Software,
(iii) in Licensors reasonable opinion you may receive such an order,
(iv) Licensor shall at its own expense: Obtain for you the right to continue the use of this part of the Software, or
(v) Replace or modify the Software to make it non-infringing provided that such modification or replacement will provide you with a substantially equivalent result.
If none of the above options are available on a basis that Licensor considers to be commercially reasonable, then Licensor may - in whole or in part - terminate the License with immediate effect and refund to you the license fee paid for the infringing part of the Software, as well as the license fee paid for any part of the Software that is rendered unusable by you as a result of such unresolved infringement, upon return or deletion as required by Licensor of the infringing and the unusable parts of the Software by you to Licensor.
Unless otherwise explicitly stated in this clause any claim due to a Claim or the threat of a Claim - including claims for damages and/or pro rata reduction - shall be governed by the limitation of liability clause in this Agreement.
15. TERM AND TERMINATION
This License becomes effective upon your downloading/installing of the Software, or upon your use of the Software, whichever occurs first, at which date ("the Effective Date") you are considered to have accepted this Agreement, and this Agreement and your License shall continue until terminated or breached by Licensee.
Licensor cannot without cause terminate your right of use of the Software but may terminate your access to maintenance and support with a 12 month written notice.
Your access to maintenance and support is contingent upon timely payment of the maintenance and support fee invoiced to you by Licensor. If you do not want to have access to maintenance and support you can terminate your access by not renewing your maintenance and support contract after the contract has expired. If you want to regain access on a permanent basis to maintenance and support you will be required to pay the annual fees, otherwise you may at the discretion of Licensor be able to obtain support/maintenance by paying for a specific update or on an hourly basis.
Licensor may at its discretion disable the Software and/or terminate this License upon the breach of any term hereof, including (i) if applicable license or maintenance fees (if applicable) are not paid on time, (ii) if a third party instructed, engaged or allowed access by you, amends, modifies, makes additions, deletions or changes to the Software; or (iii) if you make or permit any third party to make unauthorized copies of the Software; or, (iv) if you fail to comply with any other provision of this Agreement.
Licensor may change this Agreement by having you accept a new version if and when you download a new version of the Software. It is your sole responsibility to make yourself familiar with the changes in the new Agreement you are asked to accept. If you cannot accept the proposed changes in the new Agreement you may either - if possible - continue with the old version of the Software or if this is not possible ask for a refund of a proportional part of your license fee. If you ask for a refund of a proportional part of your license fee Licensor may waive the changes that you cannot accept in order to ensure your continued use of the Software.
16. DISPUTES, CHOICE OF LAW AND VENUE
THIS AGREEMENT AND YOUR LICENSE SHALL BE GOVERNED BY, AND EXCLUSIVELY CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE KINGDOM OF DENMARK, NOT TAKING INTO ACCOUNT ITS PROVISIONS THAT MAY LEAD TO THE APPLICATION OF ANY OTHER SUBSTANTIAL LAW THAN DANISH LAW.
ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE BREACH, TERMINATION OR INVALIDITY THEREOF SHALL BE SETTLED BY THE ORDINARY DANISH COURTS.
YOU IRREVOCABLY SUBMIT TO THE CITY COURT OF COPENHAGEN, DENMARK, AS THE AGREED VENUE IN THE FIRST INSTANCE.
NOTWITHSTANDING THE ABOVE, LICENSOR SHALL AT IT'S SOLE DISCRETION BE ENTITLED TO INITIATE PROCEEDINGS AGAINST YOU IN A COURT OF ITS CHOICE INCLUDING WITHOUT LIMITATION IN CASE OF NON-PAYMENT BY YOU OR YOUR INFRINGEMENT OF LICENSOR'S INTELLECTUAL PROPERTY RIGHTS OR TRADE SECRETS OR BREACH OF THE LICENSE BY YOU.
- Licenses used
- Installed versions
- System info on application server
- SQL server version
APPENDIX - INCORPORATED THIRD PARTY COMPONENTS
The Software and Server Software uses a number of third party tools and utilities.
Notices regarding these are listed here: