The following license terms and conditions for software (“Software License Terms and Conditions”) apply to Unicontrol’s provision of software (the “Deliverables”) unless otherwise agreed in writing between Unicontrol ApS, company reg. no. (CVR no.) 40101578, and the Customer, regardless of the Customer’s country of residence and provided that the Customer engages in commercial activities. All transactions are considered to be made between merchants. Unicontrol reserves the right to modify these general Software License Terms and Conditions at any time.
UNICONTROL PROVIDES THE PRODUCTS ON THE SOFTWARE LICENSE TERMS AND CONDITIONS SET FORTH BELOW AND ON THE CONDITION THAT THE CUSTOMER ACCEPTS AND COMPLIES WITH SUCH SOFTWARE LICENSE TERMS AND CONDITIONS. BY ACCEPTING THE SOFTWARE LICENSE TERMS AND CONDITIONS SET FORTH BELOW, THE CUSTOMER (A) ACCEPTS THESE SOFTWARE LICENSE TERMS AND CONDITIONS AND AGREES THAT THE CUSTOMER IS LEGALLY BOUND BY THESE AND (B) IF SOFTWARE USER IS A CORPORATION, LIMITED LIABILITY COMPANY, OR OTHER BUSINESS ORGANIZATION, THAT THE CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ACCEPT THESE SOFTWARE LINCESE TERMS AND CONDITIONS ON BEHALF OF SUCH CORPORATION, LIMITED LIABILITY COMPANY, OR OTHER BUSINESS ORGANIZATION. IF THE CUSTOMER DOES NOT AGREE TO THE SOFTWARE LICENSE TERMS AND CONDITIONS SET FORTH BELOW, THE CUSTOMER WILL NOT AND DOES NOT HAVE ANY RIGHT TO ACCESS, USE, OR LICENSE THE PRODUCTS.
- Subject to Customer’s final and effective payment of all remuneration, costs and expenses, Customer, upon the conclusion of acceptance of the Software License Terms and Conditions, obtains a non-exclusive, time limited and non-transferable right to use the Deliverables. Unless otherwise expressly stated, the license covers the specific legal entity that has entered into the agreement with Unicontrol.
- The Deliverables to be delivered by Unicontrol consists of software products and any related services provided by Unicontrol in connection with these software products.
- The Deliverables will consist of Unicontrol’s 3D machine control system software, cloud services as well as any additional modules provided by Unicontrol and purchased by the Customer.
DEFECTS AND NOTICE OF DEFECTS
- If the Customer discovers or should have discovered defects in the Deliverables, the Customer must give notice of such defects immediately. Notice of defects must be given by contacting Unicontrol’s Service Desk or a Unicontrol Certified Distributor. Notice of defects given to others than Unicontrol or a Unicontrol Certified Distributor will not be processed.
CUSTOMER’S USE AND SUSPENSION OF USE
- Unicontrol reserves the right to suspend the Customer’s use of the Deliverables temporarily if (i) the Customer’s use of the Deliverables has an extreme or unusual negative impact on the systems of Unicontrol or Unicontrol’s sub-contractors which directly or indirectly affect Unicontrol or Unicontrol’s other customers; (ii) in any other way, the Customer transfers any form of material which is capable of harming the IT environment of Unicontrol or Unicontrol’s sub-contractors or the Deliverables; (iii) on a reasonable basis, it is considered necessary in order to prevent unauthorised access to data; or (iv) the Customer fails to meet the requirements for the Customer’s use of the Deliverables under these Software License Terms and Conditions.
- In order to determine the extent to which the negative impact set out in clause 3.1(i) is attributable to viruses, hackers or defects, the Customer must, at Unicontrol’s request, provide information on the Customer’s consumption pattern. On the basis of the information provided, Unicontrol will be entitled to demand that consumption be reduced. If the Customer fails to comply with such request, Unicontrol will be entitled to suspend the Customer’s access to the Deliverables.
- Unicontrol reserves the right to request payment of an additional traffic consumption fee in case of extreme or unusual abuse of the Deliverables.
MAINTANANCE, UPDATES AND SERVICE LEVEL AGREEMENT
- In order to keep the Deliverables running optimally and to ensure more added value for Customer, it is necessary to maintain software on an ongoing basis.
- Updates are available to Customer as part of the license for the Deliverables, as long as the applicable license fee is paid. Efforts are made to perform updates without any nuisance to Customer but it may be necessary to close access to the Deliverables for a limited period of time in order to perform these updates. In the event of such closure, this will be done as far as possible outside regular office hours.
- Unicontrol or a Unicontrol Certified Distributor shall provide support for defects and shortcomings via telephone, service desk via screenshare and email. In that connection, the use of the Customer’s data may include, on a non-exhaustive basis, the transfer, storage and other processing thereof.
- Unicontrol seeks to attain the highest operational stability for the Deliverables. Unicontrol aims for an uptime for the Deliverables of 99% per month unless downtime is caused by matters beyond Unicontrol’s control, including but not limited to matters relating to Unicontrol’s infrastructure and subcontractors, and for which Unicontrol could not or should not have taken into account.
CUSTOMER’S USE AND BREACH OF CONTRACT
- The Customer must observe all guidelines provided, including written as well as oral instructions. Unless otherwise agreed in writing, the Customer is also responsible for backing up data to an adequate extent and taking measures against unintended loss of data.
- The Customer is not entitled to use the Deliverables, including, but not limited to, servers and storage media (i) for the collection, registration, storage, processing or manipulation of data in violation of the laws of the country where the Customer is using the Deliverables and the laws of Denmark in force from time to time and any legislation issued in pursuance thereof; (ii) for the collection of unlawful data, including the redirection to unlawful links; and (iii) to obtain unauthorised access to systems.
- Any non-compliance on the part of the Customer of its obligations under these Software License Terms and Conditions will be considered a material breach of these, entitling Unicontrol to terminate any agreement with immediate effect with the Customer in full or in part, at Unicontrol’s discretion. In case of termination with immediate effect, the delivery of the Deliverables will be discontinued, including any connection to the Customer’s data. The same applies if the Customer commits a criminal offence related to the use of the Deliverables, regardless of the country whose laws have been violated. Unicontrol or a Unicontrol Certified Distributor is entitled to invoice the Customer for the use preceding such termination and for which the Customer has not yet paid.
- Unicontrol will decide whether the Customer is in breach of its obligations.
INTELLECTUAL PROPERTY RIGHTS
- The Customer undertakes not to use the Deliverables in a manner infringing Unicontrol’s intellectual property rights or third party intellectual property rights.
- Any material, data and know-how disclosed by the Customer to Unicontrol as part of the use of the Deliverables may only be used by Unicontrol to deliver the Deliverables. Customer, however, grants Unicontrol a non-exclusive, non-revocable and indefinite license to use Customer’s data in an anonymized format. Unicontrol’s rights, however, are in any case limited to operating, promoting and developing the Deliverables and must never result in Customer’s confidential data being brought to the knowledge of third parties in a non-anonymous format.
- Any equipment or software made available by Unicontrol as part of the delivery of the Deliverables will remain Unicontrol’s property. Unicontrol will retain all rights in software, licences, equipment, inventions, improvements or further developments, know-how, etc. developed or used by Unicontrol to deliver the Deliverables.
- Any equipment and software licences acquired by the Customer will remain the Customer’s property, taking into account the terms of ownership, right of use and licence applying to each product. The Customer is responsible for the use of such products. This will apply regardless of whether the software is stored using the server capacity made available by Unicontrol as part of the Deliverables.
- Any data which are stored using the server capacity made available by Unicontrol as part of the Deliverables will remain the Customer’s property. The Customer may request at any time that such data be handed over or deleted against payment of hours spent; see Unicontrol’s hourly rates in force from time to time for copying and handing over or transferring data on a suitable medium. If data are stored by one of Unicontrol’s sub-contractors, Unicontrol will be subject to the restrictions applicable to the sub-contractor’s access to and copying and deletion of data.
- Unicontrol is not liable for any indirect losses, including any loss of profit, loss of goodwill, any failure to obtain or reach economic benefits and objectives, any loss of production, loss or distortion of data, any loss suffered because Unicontrol’s deliveries cannot be used as erroneously assumed by the Customer, any loss relating to unauthorised persons’ access to data and systems attributable solely to the Customer, or any loss suffered due to the lapse or breach of a third party agreement. Unicontrol’s liability in damages only extends to losses inflicted with gross negligence.
- The amount of Unicontrol’s liability for any loss cannot exceed an amount equalling three months’ payment for the Deliverables on which the claim is based, provided that the Customer has used the Deliverables for at least three months. If this is not the case, Unicontrol’s liability will be limited to the amount actually paid.
- Any claims due to defective Deliverables delivered in full or in part by a Unicontrol sub-contractor cannot be raised against Unicontrol.
- As regards Deliverables delivered by a Unicontrol sub-contractor, the obligations and liability of Unicontrol as an intermediary, including, but not limited to, warranties, are limited to the obligations and liability offered by the sub-contractor and specified in the sub-contractor’s terms and conditions.
- Customer is responsible for ensuring that the use of the Deliverables does not violate any current legislation in the country where Customer uses the Deliverables. The Customer must indemnify Unicontrol in every respect if claims are raised by third parties as a result of the Customer’s unlawful or infringing activities. Unicontrol exercises no control whatsoever of the Customer’s use of the Deliverables.
- Unicontrol shall not be liable for any damages that the Customer’s naming, sorting and use of stored data might cause, neither virtually nor physically. It is the sole responsibility of the Customer to name, sort and use the data accordingly.
- Unicontrol is not liable for any down-time of the Deliverables nor for any direct or indirect losses that any down-time may cause the Customer.
- If the Customer uses third party software together with the Deliverables, Unicontrol will not be liable for the functionality of such software or its use in relation to the Deliverables. The licence terms of any third parties may be disclosed by Unicontrol at the Customer’s request if the software has been licensed to Unicontrol. Unicontrol is not liable for any changes to the licence terms to be complied with by the Customer at any time.
ACKNOWLEDGEMENTS AND WARRANTY LIMITATIONS
- Unicontrol excludes any and all liability in respect of warranties, both explicit and implicit, including, but not limited to, implicit warranties for merchantability and fitness for any particular purpose.
- The Customer acknowledges that complex software is never wholly free from defects, errors, and bugs; and subject to the other provisions of these Software License Terms and Conditions, Unicontrol gives no warranty or representation that the Deliverables will be wholly free from defects, errors, and bugs and that these defects, errors, and bugs will not be the cause for loss of data.
- The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Software License Terms and Conditions, Unicontrol gives no warranty or representation that the Deliverables will be entirely secure.
- The Customer acknowledges that Unicontrol will not provide any legal, financial, accountancy or taxation advice under these Term and Conditions or in relation to the Deliverables; and, except to the extent expressly provided otherwise in these Software License Terms and Conditions, Unicontrol does not warrant or represent that the Deliverables or the use of the Deliverables by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
- Unicontrol is entitled to assign its rights and obligations to a group company.
- Unicontrol’s assignment of its rights and obligations to third parties is subject to the Customer’s prior written consent. Such consent may not be withheld without a valid reason. Notwithstanding the provision of clause 9.2, the first sentence, Unicontrol is entitled to assign its rights and obligations in connection with a merger, business transfer, reorganisation or similar changes regardless of the form thereof, e.g., by an asset or share transfer.
GEOGRAPHICAL LOCATION OF DATA
- Unicontrol can freely decide where the Customer’s data is stored as long as the data is stored according to industry standards for handling and security.
- By accepting these Software License Terms and Conditions, the Customer accepts that data may be transferred to Unicontrol’s sub-contractors and the partners of such sub-contractors as well as the data centres and storage facilities of such sub-contractors located in countries outside the Customer’s country of residence.
- By accepting these Software License Terms and Conditions, the Customer confirms to have performed a risk analysis of the data protection and safety measures offered by Unicontrol and Unicontrol’s sub-contractors in respect of the Customer’s data and any personal data included therein.
- Unicontrol must keep confidential all confidential information received about the Customer’s business (“Customer Data”) unless disclosure is required by law. If Unicontrol is contacted by a third-party requesting disclosure of Customer Data, Unicontrol will be entitled to request such third party to contact the Customer directly, providing the Customer’s contact information at the same time. In case of any disclosure of Customer Data to a third party, Unicontrol will inform the Customer immediately, sending a copy of the third party’s request for disclosure, unless Unicontrol is prevented by law from doing so. If Unicontrol requests a third party to contact the Customer directly, the Customer must disclose such Customer Data to the third party unless, in the Customer’s opinion, the third party is unauthorised to receive such data.
USE OF SUB-CONTRACTORS
- Unicontrol is entitled to use sub-contractors for the delivery of the Deliverables and, for example, disclose Customer Data to such sub-contractors to the effect that the sub-contractor in question becomes the sub-contracting data processor. Unicontrol warrants that the sub-contractor is subject to the same contractual obligations as Unicontrol and that, in situations where Unicontrol or a sub-contractor is the data processor, Unicontrol or the sub-contractor will act only in accordance with the instructions of the Customer, which will remain the data controller.
- At the Customer’s request, Unicontrol must disclose the identity of the sub-contractors used in connection with the delivery of the Deliverables. Unicontrol must ensure that the persons being authorised to access the Customer’s confidential information are subject to the same duty of confidentiality as Unicontrol under these Software License Terms and Conditions. This applies regardless of whether such persons are employed by Unicontrol or a sub-contractor.
- Neither party will be liable for events which are beyond the party’s control and which the party should not have taken into account when making and/or start using the Deliverables, and should not have avoided or overcome (a “Force Majeure Event”).
- Force Majeure Events include, but are not limited to:
– Catastrophes of nature of any kind;
– War, civil war, insurrection and military mobilisation, civil unrest and similar situations as well as terrorist attacks;
– General strikes and lockouts;
– Fire, non-availability of means of transport and currency restrictions;
– Computer viruses, hacker attacks and attacks on IT systems from the outside;
– Power failure
– Import and export restrictions.
– Public restrictions and local industrial conflicts
- The parties may only rely on force majeure for the number of working days affected by the Force Majeure Event.
- In case of a Force Majeure Event, Unicontrol may decide to defer delivery until the Force Majeure Event preventing delivery has ceased to exist or to close down the access to the Deliverables in full or in part without compensation.
- Should individual provisions of these Software License Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions.
DISPUTES, GOVERNING LAW AND JURISDICTION
- Any dispute concerning these Software License Terms and Conditions must be settled in accordance with the laws of Denmark, however with the exception of Danish international private law. If the Customer decides to commence legal proceedings against Unicontrol, such proceedings must be commenced before Unicontrol’s home court. If Unicontrol decides to commence legal proceedings against the Customer, such proceedings must be commenced before Unicontrol’s home court or the Customer’s home court, at Unicontrol’s discretion.