End-User License Agreement
This End-User License Agreement („EULA“) is a legal agreement between you (“CUSTOMER” = either an individual or a single entity) and SK Consulting S.A.. (“SKC”) for all services and software provided by SKC in connection with or in execution of this EULA, including associated media, documentation and printed materials (hereinafter: the solution). Except as otherwise expressly specified, this agreement applies to all SKC software solutions, which includes the media on which CUSTOMER received it, if any. It also applies to any SKC Software updates, supplements, cloud-based and support services (including associated media, documentation and printed materials) for this software, unless other terms and conditions regulate those items and services. If so, those terms apply. BY INSTALLING, , DOWNLOADING, PURCHASING OR USING, in any way and for any purpose whatsoever, SKC’S PRODUCTS OR SERVICES, THE CUSTOMER ACKNOWLEDGES THAT HE HAS READ and/or is irrefutably presumed to have read, THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT. IF THE CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS IN THIS AGREEMENT, HE acknowledges and accepts that he is not authorized to use and/or have ACCESS OR OTHERWISE UTILIZE THE PRODUCTS OR SERVICES BECAUSE NO LICENSE SHALL HAVE BEEN GRANTED THERETO.
GRANT OF LICENSE
SKC grants CUSTOMER a personal, non-exclusive, non-transferable license to access and use software developed by SKC as well as associated documentation, provided that CUSTOMER complies with all terms and conditions of this EULA.
2.1. The CUSTOMER is responsible and liable for the actions, omissions and fees incurred by all authorized users.
2.2. The maximum number of authorized users shall not exceed the number of purchased User Subscriptions, if applicable, as specified in the Subscription Licence Model.
2.3. The CUSTOMER is responsible for all fees incurred through unauthorized access of its account, unless such unauthorized access is solely caused by SKC. If the CUSTOMER discovers any unauthorized access, SKC immediately needs to be informed to take appropriate actions. CUSTOMER will implement technical, administrative, and operational security measures reasonably adequate to preserve the confidentiality, integrity, and security of SKC’S and the CUSTOMER’S data.
2.4. CUSTOMER is responsible for properly configuring and using the provided services and taking its own steps to maintain appropriate security, protection and backup of the content, which may include the use of encryption technology to protect the content from unauthorized access and routine archiving. Unless the services include back up services, SKC recommends that the CUSTOMER maintains an up-to-date copy of the content by other means. CUSTOMER accepts that no software is error free.
RESERVATION OF RIGHTS AND OWNERSHIP.
CUSTOMER may not copy, modify, or transfer the solution to others, in whole or in part, except as expressly provided in this Agreement. The solution contains intellectual property of SKC. Therefore, CUSTOMER may not modify in whole or in part the software package / solution and in particular reverse engineer, modify, disassemble, decompile, or translate the solutions, or otherwise attempt to derive its source code or the source code through which the solution is accessed, or authorize any third-party to do any of the foregoing. The license granted hereunder is personal to the CUSTOMER, and any attempt by the CUSTOMER to transfer any of the rights, duties or obligations hereunder shall terminate this agreement and be void. The CUSTOMER may not grant sub-licenses, rent, lease, loan, resell, or distribute the solution or any part thereof in any way including, but not limited to, making the solution available to others via shared access to a single computer, a computer network, or by sharing access information, which includes the user’s username and password. The software is licensed, not sold.
SKC therefore reserves the right to integrate an expiration date into the license which is automatically renewed as long as CUSTOMER complies to this agreement and subscription payments do not fail. In the latter case, SKC reserves the right to deactivate the licenses provided to CUSTOMER by SKC. SKC reserves the right to discontinue Internet-based services provided to CUSTOMER or made available to CUSTOMER by using the software. This EULA does not grant CUSTOMER any rights to trademarks or service marks of SKC.
The customer agrees to use the software package / solution only for his own needs. He shall not provide or make the software package / solution available in whole or in part, in any form whatsoever available to anyone other than his employees.
It is expressly agreed that the rights of use granted by SKC to the Customer are not transferable, even in the event of a total or partial transfer of business, lease-management, merger or any other operation at the end of which the Customer’s rights are transferred to a third party.
The Customer undertakes not to develop or market the software package / solution in whole or in part which is the subject of this agreement or products likely to compete with it.
The Customer shall not be entitled to correct any error, defect or problem relating to the software package / solution, either in whole or in part, unless otherwise expressly agreed in writing by SKC.
Unless otherwise agreed in writing between the parties, it is the responsibility of the project manager designated by the Customer to install the software package / solution and to insure that it functions properly before it is distributed to the Customer’s environments, in particular but not exclusive to, the productive environment.
SKC shall not be held responsible for delays caused by the unavailability of the designated equipment or personnel to be provided by the Customer.
If additional works is requested by the Customer, it will be subject to a separate agreement.
The installation will be deemed to have been completed as soon as the software package / solution is installed on the Customer’s environment.
SKC is bound by an obligation of means to the exclusion of any other.
CONSENT TO USE OF DATA.
CUSTOMER agrees that SKC and its affiliates may collect and use in accordance with the applicable legislation in such matter, information gathered as part of the product support services provided to CUSTOMER, if any, related to the software. SKC may use this information solely to improve its products or to provide customized services or technologies to CUSTOMER and will not disclose this information in a form that personally identifies CUSTOMER.
LINKS TO THIRD PARTY SITES.
SKC is not responsible for the contents of any third-party sites or services, any links contained in third-party sites or services, or any changes or updates to third-party sites or services. SKC is providing these links and access to third-party sites and services to CUSTOMER only as a convenience, and the inclusion of any link or access does not imply an endorsement by SKC of the third-party site or services.
To use software identified as an upgrade, CUSTOMER must first be licensed for the software identified by SKC as eligible for the upgrade. After installing the upgrade, CUSTOMER may no longer use the original software that formed the basis for CUSTOMER’S upgrade eligibility, except as part of the upgraded software.
PAYMENT & PRICING
The software is licensed under a Subscription License Model – Under this model, CUSTOMER has licensed the software on a monthly basis for a limited period. The CUSTOMER’S monthly subscription will automatically renew until the CUSTOMER communicates the desire to change or terminate by registered letter with a minimum notice period of three month, unless otherwise stated in another agreement, the subscription. The monthly fee is charged up front for all User subscribed solutions until the last day of the current month and needs to be paid within 8 days. If the payment fails, the solution will expire by the end of the following month.
SKC reserves the right to change prices with 3 months’ notice.
Without prejudice to any other rights, SKC may terminate this EULA with immediate effect if CUSTOMER fails to comply with the terms and conditions of this EULA. In case of such termination through SKC, the CUSTOMER shall be obligated and he undertakes to return without delay the software package / solution to SKC and to remove all software copies from the systems of the CUSTOMER, to discontinue use of the software product and to destroy the software product, including all supplied documentation. The termination does not release the CUSTOMER from any liabilities or obligations (e.g., fees having accrued) still to be paid. A breach by CUSTOMER will irrevocably harm SKC, and SKC shall be entitled to injunctive and/or other equitable relief, in addition to other remedies afforded by law.
SKC owns the right to verify compliance. CUSTOMER is required to keep records (including proof of purchase) relating to the software CUSTOMER uses under this agreement. SKC has the right to verify compliance with this agreement, at SKC’S expense. CUSTOMER agrees and undertakes to provide reasonable cooperation in the event of a compliance audit. To verify compliance with the terms of this Agreement, SKC will engage an independent auditor, which will be subject to a confidentiality obligation. The verification process will take place upon not fewer than 30 days’ notice, during normal business hours and in a manner that does not interfere unreasonably with your operations. SKC and the auditor will use the information obtained in compliance verification only to enforce SKC’S rights and to determine whether CUSTOMER is in compliance with the terms of this agreement. By invoking the rights and procedures described above, SKC does not waive its rights to enforce this agreement or to protect its intellectual property by any other means permitted by law. If verification reveals any unlicensed use, CUSTOMER must promptly order and undertakes to order sufficient licenses to cover CUSTOMER’S use. If material unlicensed use is found, CUSTOMER must reimburse SKC for the costs SKC has incurred in verification and acquire the necessary additional licenses at single retail license cost within 30 days.
SKC does not warrant that the software package / solution meets the requirements of the CUSTOMER or that it runs in connection with hardware or software selected by the CUSTOMER or that it runs securely, faultlessly and without trouble. Therefore, SKC disclaims any liability according to this EULA. It is the CUSTOMER’S responsibility to determine, whether the software product meets the requirements of the CUSTOMER.
SKC does neither guarantee that the software operates without interruption, nor that it will be free of defects or that all discovered defects/malfunctions will be corrected. All software and documentation will be delivered without any warranties (expressed or implied by law). SKC does not guarantee its suitability for a particular purpose. SKC does not warrant that the software package / solution is subjected to an update or an upgrade nor that it will be updated or upgraded unless otherwise states in another agreement.
LIMITATION OF LIABILITY AND REMEDIES
Notwithstanding any damages that CUSTOMER might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of SKC under any provision of this EULA and CUSTOMER’S exclusive remedy hereunder (except for any remedy of repair or replacement carried out by SKC with respect to any breach of the Limited Warranty) shall be limited to the greater of the actual damages CUSTOMER incur in reasonable reliance on the software up to the amount of 3 monthly subscription fee actually paid by CUSTOMER.
Potential deficiencies shall be communicated in writing by CUSTOMER to SKC. SKC remedies these deficiencies in a delay agreed with the CUSTOMER in writing. Deficiencies in a software developed by SKC are malfunctions which can be reproduced at least twice by ORAGVISION and CUSTOMER. Those malfunctions include only deficiencies which can be categorized as development deficiencies, so which are not a result of functions specifically developed upon CUSTOMER’S request. If a deficiency is not remedied within the delay agreed between SKC and CUSTOMER and in addition, two further trials are undertaken with agreed delays and further on with no positive results, the CUSTOMER may call upon another company to remedy the corresponding deficiencies.
EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES
To the maximum extent permitted by applicable law, in no event shall SKC or its suppliers/partners be liable for any special, incidental, punitive, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the software, the provision of or failure to provide support or other services, information, software, and related content through the software or otherwise arising out of the use of the software, or otherwise under or in connection with any provision of this EULA, even in the event of the fault, tort (including negligence), misrepresentation, strict liability, breach of contract or breach of warranty of skc or any supplier/partner, and even if SKC or any supplier/partner has been advised of the possibility of such damages.
Consequently, SKC will only be liable for compensation of reasonably foreseeable direct damages and insofar as the damage to be repaired under this agreement shall be causally related to a gross negligence on its part.
ENTIRE AGREEMENT; SEVERABILITY
This EULA (including any addendum or amendment to this EULA which is included with the software) is the entire agreement between CUSTOMER and SKC relating to the Software and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. To the extent the terms of any SKC policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.
No failure to enforce any term of this Agreement shall constitute a waiver of such term in the future unless such waiver so provides by its terms.
In the absence of an amiable solution, disputes that may arise between the Parties regarding the conclusion, the interpretation and/or the execution of the present agreement shall be subject to the jurisdiction of the City of Luxembourg by application of the Luxembourg law.