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EULA - End User License Agreement
GENERAL TERMS AND CONDITIONS FOR DELIVERIES OF CadFaster SOFTWARE
1.1 These terms and condition shall be applied to the sale, licensing and other assignment of rights of use of information technology products and the supply of information technology services of CadFaster, Inc.
1.2 Product shall mean equipment, computer program; media and any written material related thereto which constitute the object of the agreement.
1.3 Services shall mean installation, maintenance, product support, consultancy, training and other professional services specified in the agreement.
2.1 Unless otherwise agreed in writing, the prices specified in the agreement shall include all public charges determined by the authorities and effective on the date
of the signing of the agreement, with the exception of value added tax. Value added tax shall be added to the prices in accordance with the then current regulations.
Should the amount of public charges determined by the authorities or their collection basis change due to changes in the regulations or taxation practice, the prices of the products and services shall be revised correspondingly.
2.2 If a price for a product or service has not been agreed in the agreement or otherwise, the price in the suppliers price list effective on the date of order shall apply.
2.3 If the price of a product or service is wholly or partly tied to a specific price revision criteria, the price shall be adjusted in proportion of the change, if the change is at least two (2) percent. Unless otherwise agreed, the base value or quotation at the date of the signing of the agreement shall be applied. With respect to prices tied to a currency exchange rate, the prices shall be determined using the mid-rate quoted by the Bank of Finland/European Central Bank at the date of delivery with the exception of, however, services charged periodically, for which the price shall be determined using the mid-rate quoted by the Bank of Finland/European Central Bank at the date of invoicing.
2.4 Unless otherwise agreed in writing, the supplier shall be entitled to adjust the price of a product or service invoiced periodically by notifying the customer of the change in writing at least sixty (60) days before the effective date of the change. The change shall not affect the charges for invoicing periods commenced before
the effective date of the change. In case of a price change the customer shall be entitled to terminate the agreement for the product and/or service in question on the effective date of the price change by notifying the supplier thereof in writing at least thirty (30) days before the effective date of the change. The customer shall also be entitled to terminate the agreement simultaneously with respect to all other products and services, which due to the above-mentioned termination can no longer be used essentially for the intended purpose.
2.5 The supplier shall be entitled to charge the travel costs as well as the accommodation and daily allowances separately. Other than customary travel arrangements shall be agreed separately in writing.
3. TERMS OF PAYMENT
3.1 Unless otherwise agreed in writing, the supplier shall invoice for the products upon delivery and for the services after they are performed.
3.2 The supplier will invoice the recurring charges and other periodical charges in advance in accordance with agreed intervals.
3.3 The terms of payment are 14 days net from the date of delivery or the date of invoice, whichever is later. Interest on delayed payments accrues in accordance
with the Interest Act.
4.1 Each party shall have the right to subcontract its obligations under this agreement. Each party shall ensure that his subcontractor shall comply with the confidentiality
provisions specified in section 5. Each party shall be liable for the work of his subcontractor as for his own.
5.1 Each party shall keep in confidence all material and information received from the other party and marked as confidential or which should be understood to be
confidential, and may not use such material or information for any other purposes than those set forth in the agreement. The confidentiality obligation shall, however, not be applied to material and information,
(a) which is generally available or otherwise public; or
(b) which the party has received from a third party without
any obligation of confidentiality; or
(c) which was in the possession of the receiving party prior to receipt.
of the same from the other party without any obligation of confidentiality related thereto; or (d) which a party has independently developed without using material
or information received from the other party.
5.2 Each party shall promptly upon termination of the agreement or when the party no longer needs the material or information in question for the purpose stated in the agreement cease using confidential material and information received from the other party and, unless the parties separately agree on destruction of such material, return the material in question (including all copies thereof). Each party shall, however, be entitled to retain the copies required by law or regulations.
5.3 Each party shall be entitled to use the professional skills and experience acquired in connection with the delivery.
5.4 The rights and responsibilities under this section 5 shall survive the termination or cancellation of the agreement.
6. FORCE MAJEURE
6.1 Neither party shall be liable for delays and damages caused by an impediment beyond his control, which he could not have reasonably taken into account at the
time of the conclusion of the agreement, and whose consequences he could not reasonably have avoided or overcome. Strike, lockout, boycott and other industrial
action shall constitute a force majeure event also when the party concerned is the target or a party to such an action.
6.2 A force majeure event suffered by a subcontractor of a party shall also discharge such party from liability, if subcontracting from other source cannot be made without
unreasonable costs or significant loss of time.
6.3 Either party shall without delay inform the other party of a force majeure event in writing. The party shall correspondingly inform the other party of the termination
of the force majeure event.
7. INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
7.1 The supplier warrants that the products supplied by it do not infringe an intellectual property right enforceable in the agreed country of delivery or use.
7.2 The supplier shall at its own expense defend the customer against claims that a product infringes any of the above-mentioned rights of a third party provided that
the customer promptly notifies the supplier in writing of such claims and permits the supplier to defend or settle the claims and gives to the supplier all necessary
information and assistance available and the necessary authorizations. The supplier shall pay all damages awarded in a trial to a third party, if the customer has acted in accordance with the foregoing.
7.3 If in the justified opinion of the supplier a product infringes any of the above-mentioned rights of a third party, the supplier may at its own expense either (a)
obtain the right of continued use of the product for the customer or (b) replace the product or (c) modify the product in order to eliminate the infringement. If none
of the above-mentioned alternatives is available to the supplier on reasonable terms, the customer shall, at the request of the supplier, stop using the product and shall
return it, and the supplier shall credit the price paid by the customer for the product less the proportion of the price corresponding to the actual time of use.
7.4 The supplier shall, however, not be liable if the claim
(a) is asserted by a company, which exercises control over the customer or which is controlled by the customer in the way control is defined in the Accounting Act;
(b) results from alteration of the product by the customer or from compliance with the customers instructions;
(c) results from the use of the product in combination with any product not supplied by the supplier or (d) could have been avoided by the use of a released and equivalent product offered for use to the customer without separate charge.
7.5 The liability of the supplier for infringement of intellectual property rights shall be limited to this section 7.
8. DELAY OF DELIVERY, BREACH OF CONTRACT AND CANCELLATION
8.1 If a party finds that a delay will occur or is likely, he shall without delay inform the other party in writing of the delay and of the effects of the delay on the delivery
8.2 If it becomes evident that the fulfillment of the agreement will be delayed for more than four (4) months due to a force majuere event, each party shall be entitled
to cancel this agreement to the extent it is reasonable, by notifying the other party thereof in writing without either party having the right to claim damages. In assessing reasonableness, the consequences of cancellation and other factors affecting the matter shall be taken into account.
8.3 If any payment by the customer is delayed by more than thirty (30) days from the due date despite a written reminder, the supplier shall be entitled to suspend his
performance without any liability until the customer has paid all amounts due to the supplier.
8.4 If the delivery is delayed due to a reason attributable to a party and does not take place within a reasonable extension of time set by the non-breaching party in
writing, the non-breaching party shall be entitled to cancel the agreement with respect to the products and services whose delivery is delayed, provided that the delay is of a substantial importance to him and the delayed party knew or should have known it. If the
parties have, however, agreed that liquidated damages shall be paid in case of delay, the non-breaching party has the right of cancellation only after he has become
entitled to the maximum amount of liquidated damages and the delivery does not take place within a reasonable extension of time set by the non-breaching party in writing.
8.5 Either party shall be entitled to cancel the agreement to the extent it is reasonable also if the other party is otherwise materially in breach of the terms of the agreement. If the breach of contract is capable of being remedied, the agreement can be cancelled only provided that the party in breach has not rectified its breach within a reasonable period of time set by the other party in writing which shall be at least thirty (30) days.
8.6 The supplier shall be entitled to cancel the agreement to the extent it is reasonable also if the customer has not paid a due payment within thirty (30) days from a written reminder sent after the due date and the customer has not provided the supplier with an acceptable guarantee for the payment of the charges under the agreement.
8.7 If the customer cancels the agreement with respect to a product or service, he shall have the right to cancel the agreement at the same time also with respect to other products and services which have been purchased simultaneously under the same agreement and which have expressively been agreed to be used in connection with the product or service which was delayed or proved to be defective and which due to the abovementioned cancellation can no longer be used essentially as intended.
8.8 Either party may cancel the agreement already prior to the date of its fulfillment, if it becomes evident that the other party will commit a breach of contract entitling
to cancellation of agreement. Such cancellation of agreement shall, however, be without effect, if the party in breach either provides an acceptable guarantee for the fulfillment of the agreement or presents other reliable clarification of the fulfillment of the agreement within thirty (30) days of written notice of cancellation.
9. DAMAGES; LIMITATIONS OF LIABILITY
9.1 The liability of a party towards the other party based on this agreement for direct expenses and damages caused by a breach of contract and including possible
liquidated damages payable due to delay or an other reason shall not exceed fifteen (15) percent of the price of the products and services in whose delivery the breach of contract occurred. If the breach of contract cannot be attributed to certain products and services, the liability including possible liquidated damages payable due to delay or another reason shall not exceed fifteen (15) percent of the total contract price. In case of a fixed term product or service or a product or service charged periodically and agreed until further notice, the maximum amount of damages for such product
or service shall be the calculatory monthly price at the moment of the breach of contract multiplied by six. The damages shall be paid for the part of the loss exceeding liquidated damages payable on account of delay or for another reason due to the breach of contract.
9.2 Neither party shall be liable for any indirect or consequential damage.
9.3 The customer shall be responsible for taking back-up copies of its data and data files and for verifying the functionality of such back-up copies. Neither party shall be liable for the loss of, damage to, or alteration of data or data files of the other party due to any cause and the resulting damages and expenses incurred, such as expenses based on the re-creation of data files.
9.4 The limitations of liability shall not apply to damages caused by wilful conduct or gross negligence.
9.5 The limitations of liability shall also not apply to claims covered by section 7 or to damages caused by the transfer, copying or use of software contrary to law or the terms of the agreement, or damages caused by a breach of the export restrictions relating to the products or technical information.
10. APPLICABLE LAW; SETTLEMENT OF DISPUTES
10.1 This agreement shall be governed by the laws of Finland.
10.2 All disputes arising out of this agreement shall be resolved in the district court of the respondents domicile.
10.3 If the parties agree separately in writing, a dispute arising out of this agreement shall be finally resolved in arbitration under the rules of the Board of Arbitration of the Central Chamber of Commerce of Finland. Disputes arising from this agreement may also be brought primarily for settlement by mediation in accordance with the mediation rules of the Finnish Bar Association, if agreed by the parties in writing.
11. EXPORT RESTRICTIONS
11.1 The customer agrees to comply with the laws and regulations of Finland and the country of origin of the product, applicable to the export of products and technical
information from Finland, and also otherwise not to provide any products or technical information to any party, if delivery to such party violates or may violate directly or indirectly the laws and regulations of Finland or the country of origin of the product.
12. ASSIGNMENT OF THE AGREEMENT
12.1 Neither party may assign this agreement, either wholly or in part, without the written consent of the other party. The supplier shall, however, be entitled to assign its receivables under this agreement to a third party.
13. AMENDMENTS OF THE AGREEMENT
13.1 All changes and amendments to this agreement shall be agreed in writing in order to be valid.
SPECIAL TERMS AND CONDITIONS FOR DELIVERIES OF CadFaster SOFTWARE
1. SCOPE OF APPLICATION;
1.1 These special terms and conditions shall be applied to the licensing of standard computer software programs, and these terms and conditions supplement the IT2000 General Terms and Conditions. In the event of a discrepancy between these special terms and conditions and the IT2000 General Terms and Conditions, these special terms and conditions shall prevail.
1.2 Standard software shall mean a computer program which is marketed and licensed to several customers, and the related documentation and the media on which the standard software is supplied. New version of standard software shall mean the standard software enhanced with new functional features.
2. DELIVERY, INSTALLATION AND ACCEPTANCE OF THE DELIVERY
2.1 The standard software shall meet the requirements set forth in the agreement and shall also otherwise correspond to the agreement as to the characteristics. The supplier shall deliver the software to the customer in a machine readable form.
2.2 The supplier shall deliver the standard software to the customer on the agreed date of delivery. Unless otherwise agreed in writing, the terms of delivery for the standard software shall be delivered to the destination to the place in Finland specified in the agreement (TOP Finnterms 1991). The standard software shall be accompanied by the instructions necessary for the use of the standard software either in English, Finnish or Swedish.
2.3 Unless otherwise agreed in writing, the customer shall be responsible for the installation of the standard software, in which case the delivery shall be deemed to have taken place on the date when the standard software was delivered to the customer. If the supplier is responsible for the installation of the standard software, the delivery shall be deemed to have taken place when the installation was accepted.
2.4 The customer shall at its own expense prepare the operating environment of the standard software in accordance with the suppliers instructions. If it has been agreed that the supplier shall install the standard software, the supplier shall in good time provide the customer with written instructions in order for the customer to arrange the operating environment in conformity with the suppliers instructions. At a time to be agreed by the parties the supplier shall be entitled to inspect the operating environment prior to the agreed date of installation. If the supplier is not responsible for the installation, the supplier shall at the request of the customer give the information necessary to perform the installation.
2.5 If it has been agreed that the supplier will install the standard software, the customer shall arrange access to the supplier to the installation premises at a time to be agreed by the parties for the performance of the installation. The customer shall at its expense arrange the working and storing space necessary to perform the installation.
2.6 Unless a separate acceptance test has been agreed upon, the customer shall perform the acceptance inspection of the standard software within seven (7) days from the date of delivery of the standard software by the supplier to the customer in conformity with the agreement. The customer shall without delay inform the supplier in writing of all errors or deficiencies detected in the delivery.
2.7 Errors which do not substantially interfere with the use of the standard software, shall not prevent the acceptance of the delivery; the supplier shall, however, without undue delay remedy these errors in accordance with
3.1 The copyright and other intellectual property rights related to the standard software are the property of the supplier or a third party (hereinafter manufacturer).
3.2 The customer will be granted a license to use the standard software; the terms of the license shall be determined in the suppliers or manufacturers license terms specified in this agreement. If the license terms have not been specified elsewhere in this agreement, the license terms in sections 3.3-3.5 shall apply.
3.3 The customer is granted a license to use the standard software on one equipment in his own internal operations. The customer may not transfer or otherwise assign the license to a third party without the suppliers prior written consent. The customer may not use the standard software to offer service bureau or facilities management services based on such software to third parties without the suppliers prior written consent.
3.4 The customer may take a back-up copy of the standard software if it is necessary for the use of the standard software but shall have no other right to copy the standard software or allow it to be copied even for private purposes. The copy shall contain the same legends and notices on copyright, trademark, etc., as the original and shall be subject to the same conditions as the original.
3.5 Upon termination of the use or license of the standard software the customer shall, at the suppliers option, destroy or return the standard software and its back-up copy and any related documentation.
4. RISK OF LOSS
4.1 All risk of loss or damage to the standard software shall pass to the customer in accordance with the terms of delivery specified in section 2.2.
5. SUBSTITUTING SOFTWARE AND CHANGES
5.1 The supplier may with the consent of the customer replace the standard software specified in the agreement by a new version thereof or by another software. Such replacement software version or standard software shall meet the functionality, performance and other requirements of the original standard software set forth in the agreement.
5.2 The supplier shall be entitled, prior to the delivery and without prior notification to the customer, to make alterations to the standard software which improve the standard software provided that the standard software continues to fulfill the requirements set forth in section 2.1 above.
6. DELAY OF DELIVERY
6.1 A party shall not be entitled to liquidated damages, even if the delivery of standard software is delayed due to a reason attributable to the other party and the delay is not caused by a force majeure event.
7.1 The warranty period and other terms of warranty for standard software shall be determined by the suppliers or manufacturers warranty terms specified in this agreement. If the warranty or warranty terms are not specified elsewhere in this agreement, the warranty terms in sections 7.2-7.7 shall apply.
7.2 The supplier shall correct at no cost and without undue delay all such errors in the standard software reported in writing by the customer to the supplier during the warranty period. An error of standard software means that the standard software does not substantially operate as described in the specifications, software description or manual. The warranty period is ninety (90) days from the date of delivery of the standard software.
7.3 The warranty shall be valid only if the standard software is used in the agreed operating environment or in another operating environment specified by the supplier. The correction of an error may also take place by providing a detour or by providing the customer with written instructions to bypass the error, if this can take place without additional costs or substantial inconvenience
to the customer.
7.4 The supplier shall perform the warranty corrections from its office. If separately agreed, the error diagnosis will be made at the customers site, in which case the supplier shall be entitled to charge for travel time and travel expenses in accordance with the suppliers then current price list.
7.5 The warranty given by the supplier does not cover the repair of an error attributable to use contrary to the agreement or the instructions given by the supplier or to a non-supplier product or a change or correction made by the customer or a third party.
7.6 If it is established that the error reported by the customer is not covered by the warranty the supplier shall be entitled to charge for the error diagnosis and location of the errors in accordance with the suppliers then current price list. The supplier shall also be entitled to charge the customer for such agreed corrections of errors as are not covered by the warranty.
7.7 The suppliers liability for the errors in the standard software shall be limited to the fulfillment of the warranty obligations under this section 7. After the expiry
of the warranty period the suppliers liability for the errors in the standard software shall be limited to the obligations under the maintenance and support agreement, if any.
8. AVAILABILITY OF SUPPORT AND MAINTENANCE
8.1 The supplier shall be responsible for the availability of support and maintenance for the standard software in Finland for a period of five (5) years from the date of delivery, however, not exceeding six (6) months from the date on which a new version of the standard software in question is released in Finland, in which case the supplier shall inform in writing of the discontinuation of availability of support and maintenance at least six (6) months in advance.
© CadFaster Oy
©Suomen Logistiikkayhdistys ry
©Tietotekniikan Liitto ry
©Tietotekniikan Palveluliitto TIPAL ry