IMPORTANT – READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THIS PROPRIETARY SOFTWARE.
BY ACCESSING AND/OR USING THE SOFTWARE IN ANY MANNER, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS; (B) ARE AT LEAST 18 YEARS OLD; AND (3) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU WILL NOT BE PROVIDED ACCESS TO THE SOFTWARE. IF YOU DO NOT AGREE TO ANY OR ALL OF THESE TERMS, YOU MUST NOT ACCESS OR OTHERWISE USE THE SOFTWARE AND YOU MUST NOT CLICK “I ACCEPT”.
1.0 DEFINITIONS. In addition to the capitalized terms defined throughout these Terms, the following definitions apply:
“Documentation” means the documentation provided by HighCoordination Group that instructs you on how to use the Software.
“First Line Support” means the support services relating to the Software, including, but not limited to, configuration of the Software at your designated facilities, provision of technical support and training.
“HighCoordination” singularly, means HighCoordination GmBH, a German corporation.
“Internal Business Purposes” means use of the Licensed Materials solely for the benefit of your business and not for any other parties.
“Intellectual Property” means any intellectual property or proprietary rights, including but not limited to copyright rights, moral rights, trademarks (including logos, slogans, trade names, service marks), patent rights (including patent applications and disclosures), know-how, inventions, rights of priority, and trade secret rights, recognized in any country or jurisdiction in the world.
“Licensed Materials” means the Software, Web Key, and Documentation.
“Order” means the order form that identifies the Subscription Period and the Subscription Fees, and any subsequent Order that is executed after the Effective Date.
“Web Key” means a software protection key, access code or login credentials that allow you to use the Software.
“Software” means the trueChart™ software.
“Subscription Fees” means the fees paid for or by you to use the Licensed Materials during a Subscription Period.
“Subscription Period” means the time period you are licensed to use the Software.
2.0 SUBSCRIPTION RIGHTS. Subject to the terms set forth in these Terms, HighCoordination, as owner of the Licensed Materials, or Partner, as an authorized reseller of the Software, as applicable, hereby grants to you, a limited, non-exclusive, non-transferable right (“License”) to use the Licensed Materials for Internal Business Purposes during the Subscription Period. Where dashboards or reports, which contain visualizations produced from the Software, are viewed or analyzed in third party software such as QlikView, licenses for such third party software must be purchased for each user of these dashboards and reports. The same shall apply to non-static integration in other tools of visualizations which are integrated with the Software.
3.0 PAYMENT TERMS. Payment terms for Subscription Fees are identified on the Order, are billed annually in advance unless otherwise identified on an Order and are due and payable within 14 days after the date of invoice.
4.0 EXCLUSIONS. First Line Support is included in the Subscription Fees, but does not include the following:
- Support services for Software that is not used in compliance with these Terms,
- Maintenance and support services for Software components whose function is dependent upon other data processing programs, such as QlikView,
- provision of Software with additional functionalities not specified in the Documentation, and/or
- services for Software at installation locations not specified in the order form.
5.0 RESTRICTIONS ON USE OF LICENSED MATERIALS: You shall not: (a) copy the Licensed Materials, or any part thereof; (b) network the Software, use or access the Software in connection with any desktop virtualization technologies other than that provided by HighCoordination Group, or otherwise use the Licensed Materials for any purpose other than as expressly set out herein; (c) modify, reverse engineer, decompile, or disassemble the Software, Web Key or any component or module included with the Software; (d) use the Software, or any component or module included with the Software, to develop your own algorithms; or (e) distribute, or allow or enable any other party or entity to use the Licensed Materials except as authorized herein. You shall take all reasonable precautions to prevent unauthorized third parties from using the Licensed Materials in any way that would constitute a breach of these Terms including, without limitation, such precautions as you would otherwise take to protect your own proprietary software. You acknowledge that the Software contains proprietary trade secrets of HighCoordination and that the trade secrets are protected, in part, by the Web Key.
6.0 LICENSED MATERIALS MERELY TOOLS. You acknowledge and agree that the Licensed Materials are intended to be only tools to assist you and are not substitutes for sound business decisions or industry practices or the decisions and interpretations of you. The information provided by the Licensed Materials is based on certain assumptions that may not apply in your particular circumstances. You bear the sole responsibility and risk for determining that the Software (when used alone or with other software or data), the selection criteria used in the Software, the results obtained from the Software, and the performance of the Software will achieve or meet your business objectives, expectations or requirements, and agree that HighCoordination Group shall not be liable for any claims, losses, demands and causes of action of any kind whatsoever arising from or attributable to or caused by the Software or use thereof.
7.0 TRADE-MARKS AND PROPRIETARY NOTICES. HighCoordination and Partner expressly reserve all rights to their own trade names, logos, trademarks, other identifying symbols and all their proprietary rights in their labelling of the Licensed Materials. You shall not acquire any right, title or interest in or to any such trade name, logo, trademark, or other identifying symbols of HighCoordination or Partner. You shall ensure that all proprietary and copyright notices of HighCoordination and/or Partner, as applicable, on the Licensed Materials are left in place and intact and are placed in such location or locations as HighCoordination and Partner may reasonably advise in relation to the Licensed Materials.
9.0 TERMINATION. HighCoordination Group may terminate your right to use the Licensed Materials immediately and without refund if you are in breach of any obligations in these Terms, or you are the subject of any bankruptcy or insolvency proceedings. For Software subscriptions that are granted directly by HighCoordination, you may terminate your subscription to the Software if you notify HighCoordination no less than 90 days before the end of the current Subscription Period.
10.0 INTELLECTUAL PROPERTY WARRANTY, OWNERSHIP AND INDEMNIFICATION. Title to and ownership of the Licensed Materials shall at all times remain with HighCoordination. HighCoordination warrants that it has the right to grant the License, and that it has no knowledge that the Licensed Materials infringe on any Intellectual Property rights held by any other person or entity. HighCoordination will defend you against any claim that the Software infringes any patent, copyright, trade-mark or other intellectual property right of any third party and HighCoordination will pay resulting costs, damages and reasonable legal fees finally awarded, provided that: (i) you notify HighCoordination in writing of the claim or threatened claim forthwith upon you becoming aware of the claim or threatened claim, as the case may be; (ii) HighCoordination has sole control of the defense and all related settlement negotiations; and (iii) you co-operate in the defense. If such claim has been made, or in HighCoordination’s opinion is likely to be made, or if the Licensed Materials are at any time deemed by HighCoordination to be subject to an infringement claim, or if use of the Licensed Materials are prohibited, you agree to permit HighCoordination at its option and expense, either to procure for you the right to continue using the Licensed Materials or to replace or modify the same so that the infringing component becomes non-infringing without loss of substantial functionality. If none of the foregoing measures, alone or in combination, are reasonably available, HighCoordination Group shall have the additional option, upon thirty (30) days written notice to you, to terminate these Terms and reimburse all prepaid Subscription Fees for periods you could not use the Licensed Materials as a result of such termination. Notwithstanding the foregoing, HighCoordination shall have no obligation to defend you or to pay costs, damages or legal fees for any claim based upon: (i) use of other than a current unaltered release of the Licensed Materials, if such infringement would probably have been avoided by the use of a current unaltered release thereof; or (ii) the combination, operation or use of the Software or any Licensed Materials furnished hereunder with software or related materials not provided by HighCoordination if such infringement would probably have been avoided but for such combination, operation or use. HighCoordination may settle any such claim with or without your consent, upon HighCoordination providing reasonable security to protect you. This section states the entire obligations of HighCoordination with respect to infringement of Intellectual Property rights of third parties.
11.0 WARRANTY. HighCoordination warrants the Software will perform substantially in accordance with the Documentation, and any First Line Support provided by HighCoordination Group will be performed consistent with accepted industry standards.
12.0 LIMITATION OF WARRANTIES AND LIABILITY. EXCEPT AS EXPLICITLY SET FORTH IN THESE TERMS, THERE ARE NO OTHER REPRESENTATIONS OR WARRANTIES PERTAINING TO THE LICENSED MATERIALS. THERE ARE NO REPRESENTATIONS, CONDITIONS OR WARRANTIES, EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AT LAW, OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, AND IN PARTICULAR, WITHOUT LIMITATION, NO WARRANTY OF INTEROPERABILITY OR COMPATIBILITY WITH ANY PRODUCT OR SERVICE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS EXPRESSLY SET FORTH ABOVE, AND SUCH STATED WARRANTIES ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITY ON THE PART OF HighCoordination GROUP. HighCoordination GROUP’S ENTIRE CUMULATIVE LIABILITY UNDER THESE TERMS FOR ANY CAUSE WHATSOEVER (INCLUDING WITHOUT LIMITATION NEGLIGENCE, BREACH OF CONTRACT OR FUNDAMENTAL BREACH) SHALL BE LIMITED TO THE SUBSCRIPTION FEE AMOUNTS PAID during the six months preceding the most recent event, act or omission for which damages are recoverable against HighCoordination GROUP. NOTWITHSTANDING THE FOREGOING, HighCoordination GROUP SHALL NOT BE LIABLE FOR (I) ANY BUSINESS OR ECONOMIC LOSS, INCLUDING WITHOUT LIMITATION FAILURE TO REALIZE EXPECTED SAVINGS, (II) ANY LOSS OF USE OR LACK OF AVAILABILITY OF LICENSED MATERIALS, INCLUDING TELECOMMUNICATIONS SYSTEMS AND ANY STORED DATA, OR (III) ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THESE TERMS OR THE PROVISION OR USE OF THE LICENSED MATERIALS, EVEN IF HighCoordination GROUP HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. HighCoordination GROUP takes no responsibility for BUSINESS decisions made because of THE USE OF THE SOFTWARE. tHE SOFTWARE IS MERELY A VISUALIZATION TOOL AND IS NOT INTENDED AS A SUBSTITUTE FOR SOUND OR RESPONSIBLE DECISION-MAKING. ALL REFERENCES IN THIS SECTION TO HighCoordination GROUP SHALL BE DEEMED TO INCLUDE HighCoordination GROUP AND THEIR SUPPLIERS, SUBCONTRACTORS, AGENTS, SUBSIDIARIES AND AFFILIATES.
13.0 DISPUTE RESOLUTION. For the purposes of this paragraph, “Dispute” is defined as any dispute arising between the Parties as to the interpretation, application, operation or alleged violation of these Terms or any of its provisions. A Dispute shall first be subject to good faith discussions between the between you or your representatives, and representatives of HighCoordination Group that are authorized to make decisions on behalf of such party (“Representatives”). Disputes that are not resolved between the Representatives within 30 days of first notification to the other party that there is a Dispute, will be finally resolved by arbitration before one arbitrator under the Arbitration Rules of the German Institution of Arbitration (DIS). The Seat of Arbitration will be Radolfzell (Konstanz Regional Court), Germany. The language of the arbitration will be English. There shall be no appeal of the decision to the courts, and the arbitration decision will be considered Confidential Information. This paragraph does not limit either Party’s right to provisional or ancillary remedies from a court of competent jurisdiction before, during, or after the pendency of any arbitration, and the exercise of any such remedy does not waive either Party’s right to pursue mandatory arbitration. Judgment on an arbitration award may be entered by any court with competent jurisdiction.
14. MISCELLANEOUS. The relationship of the parties is that of independent contractors. These Terms shall inure to the beneﬁt of each party’s successors and permitted assigns and shall be governed by the laws of the Federal Republic of Germany (excluding the provisions of the UN Convention on Contracts for the International Sale of Goods). Each provision of these Terms is intended to be severable and if any provision is determined by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason whatsoever, such provision shall be severed from these Terms, to the maximum extent permitted by applicable law, and shall not aﬀect the legality or validity or enforceability of the remainder of these Terms or any other provision hereof. These Terms may not be amended except by written instrument signed by HighCoordination or a representative of HighCoordination Group. No waiver of any term, covenant or condition by either you or HighCoordination Group shall be deemed to be a waiver by such party of its rights to require full and timely compliance with the same term, covenant or condition thereafter, or with any other term, covenant or condition of these Terms at any time. The terms of these Terms that are stated to or which, by their nature, extend beyond the termination or expiry of these Terms shall survive any termination or expiration and continue in full force and eﬀect as provided for herein. These Terms contains the entire agreement between the parties relating to the right to use the Licensed Materials. These Terms supersedes all proposals, oral or written, all previous negotiations and all other communications between the parties with respect to the right to use the Licensed Materials.