Last updated: January 20, 2017
The present Licence Agreement (hereinafter referred to as the “Agreement” ) is a legal contract between You, either an individual user or a legal entity (hereinafter referred to as “You” or the “Licensee”) and COMPETERA LIMITED a legal entity under the laws of Cyprus, located at: Loutrakiou, 5, CHARA BENEZIA BUILDING, 1st floor, Flat/Office 101, 2027, Nicosia, Cyprus (hereinafter referred to as the “Licensor”). The present Agreement specifies license terms and conditions for the software associated under the trademark COMPETERA™ (hereinafter referred to as the “Software”). Hereinafter the Licensor and the Licensee are collectively referred to as the “Parties” and each separately as the “Party”.
Licensee agrees to be bound by the terms and conditions of this Agreement by signing SOFTWARE CONFIGURATION ORDER FORM (hereinafter referred to as the “Order form”) which is the integral part of the present Agreement. This Agreement shall become effective between Licensor and Licensee on the date the Parties sign the Order form (hereinafter referred to as the “Effective date”).
If You do not wish to be bound by the terms and conditions of this Agreement, You may refuse to sign, access or use the Software. Accepting license terms and conditions stipulated below shall be a compulsory condition for lawful use of the Software.
If you have entered into the separate paid Licence agreement with COMPETERA LIMITED, then, in case of any discrepancies or inconsistencies, the terms and conditions of such individual Licence Agreement shall prevail over the present Licence agreement.
1.1. The “Licence” shall mean licence rights to a configuration of the Software which shall be adjusted by Licensor upon Licensee’s individual requests and options. The Software configuration shall be agreed by Parties on individual basis and shall be specified in the Order form.
1.2. The “Software” shall mean software suite, namely: fragments of resource or object code readable by the computer in order to bring the computer into action, associated under the trademark COMPETERA™ including the Software which is available via Licensor’s official website: www.competera.net.
1.3. The “Effective date” shall mean the date on which the Parties accept the terms of the present Agreement by signing the Order form. The Agreement shall enter into force between Parties on the date of signing by Parties the respective Order form.
1.4. The “Order form” shall mean a legally binding document which defines the configuration of the Software adjusted by Licensor upon Licensee’s individual requests and options including Licence fees.
1.5. The “Territory” shall mean the territory of the country for which the Licence is granted. The Territory shall be agreed by Parties on individual basis and shall be specified in the Order Form.
1.6. The “Reporting period” shall mean the period of one calendar month.
2. LICENCE TERMS AND CONDITIONS
2.1. Subject to the terms of this Agreement, including without limitation the payment of the applicable licence fee, Licensor grants to Licensee a non-exclusive, non-transferable, non-sublicensable licence to use the Software and licence rights to Support and Upgrade the Software as stipulated below.
2.2. The Software configuration including the number of Licensee users shall be agreed by Parties in the Order form.
2.3. Licensee is entitled only to those rights with respect to the Software that are expressly granted by this Agreement and the Order form.
2.4. The licence rights will take effect subject to licence fee payment by Licensee and acceptance of terms and conditions of this Agreement.
2.5. The Licensee is obliged to provide the Licensor with the list of products for monitoring and/or other requested information necessary for the adaptation of the Software according to the Software configuration in format and within the term agreed by the Parties.
3. LICENCE RESTRICTIONS
3.1. Licensee MAY NOT:
- assign, sell, sublicence, rent, lease or distribute the Software (or any portion thereof) some other way to third parties and use the Software (or any portion thereof) for time sharing, hosting or like purposes;
- cause or permit reverse engineering, decompile, disassemble, make any attempt to discover the source code of the Software;
- modify, translate, or create derivative works from the Software, incorporate the Software (or any portion thereof) into or with other software;
- remove any Software identification, proprietary, copyright or other notices contained in the Software.
4. SUPPORT AND UPGRADE
4.1. Support and Upgrade grant to Licensee the licence rights to use the latest version of Software, including major version releases, and to the Software support service during a subscription period.
4.2. Unless the Licensee has entered into the individual Service Level Agreement with the Licensor, by the present Agreement the Licensee is granted the standard level of support and upgrade provided under the Licensor’s Service Level Policy then in effect. Throughout Licensee’s subscription term and subject to compliance with terms of Licence Agreement and Order forms the Licensor shall provide to Licensee the standard level of support and upgrade as specified in Licensor’s Service Level Policy which is integral part of the present Licence agreement and can be found at www.competera.net/sla.
5. LICENCE PAYMENTS
5.1. Licence fee consists of Setup and Subscription fees. Setup (activation) fee shall be agreed by the Parties on individual basis. Subscription fee shall depend on the Software configuration and volume of the Software used by Licensee for the Reporting period and shall be specified in the Order form.
5.2. The amount of Licence fee shall be agreed by the Parties in the Order form. The Licensee shall cover all banks and correspondent banks’ commissions at its own costs on top of the License fee.
5.3. The payment of Setup fee shall be a compulsory condition for granting license rights stipulated in this Agreement. Setup fee shall be agreed by the Parties in the Order form as a fixed amount that shall be paid by Licensee as 100 % prepayment during five (5) days from the date specified in the invoice.
5.4. Subscription fee shall be calculated depending on the volume of the Software used by Licensee for the reporting month and shall be specified in the Order form.
5.5. The Subscription fee shall be paid on monthly basis. Unless otherwise agreed by the Parties in the Order form, the Subscription fee for the Reporting month shall be paid to the Licensor as 100 % prepayment during five (5) days from the date specified in the invoice. If the last due payment day is a holiday or day off, the transfer shall be executed at the next working day. The day of incoming payment in the bank of the Licensor is deemed as the day of the License fee payment.
5.6. All payments hereunder shall be made in euros to Licensor’s account specified in the Order form unless other terms agreed and specified in the Order form.
5.7. Licensor may suspend to Licensee the access to the Software, if Licensee fails to make a Subscription fee payment timely or comply with another term of Licensor’s Payment Policy.
6. PROPRIETARY RIGHTS AND CONFIDENTIALITY
6.1. Licensor retains all rights, title and interest to the Software and all related intellectual property and proprietary rights. The Software is protected by applicable copyright, trade secret, industrial and other intellectual property laws. Licensee may not remove any product identification, copyright, trademark or other notice from the Software. Licensor reserves any rights not expressly granted to Licensee.
6.2. By contrast all data and information developed by Licensee, when the Software is lawfully exploited under the license terms and conditions, shall belong to Licensee. Licensor may not disclose, use or transfer them to any third party without prior written approval by Licensee.
6.3. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; and (ii) as to Licensor, and its licensors, the Software. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient's possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; (d) is independently developed by or for Recipient without use of the Confidential Information; or (e) is required to be disclosed by applicable law or court order. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement.
6.4. Licensor reserves the right to mention/specify the Licensee’s name (logo and/or Licensee’s Trademark) to the third parties while promoting the Software on the market without disclosing confidential information.
6.5. All personal data transferred by Licensee for the purpose of enjoying license rights are confidential. Licensor undertakes to provide the same level of protection of personal data received from Licensee within the frame of this Agreement, as provided to its own personal databases.
6.6. Licensee hereby undertakes to prevent any illegal use of the personal account by the third parties and shall undertake not to transfer Licensee’s personal account login and password to any third parties.
6.7. Licensee acknowledges that any misuse or threatened misuse of the Software will cause immediately irreparable harm to Licensor for which there is no adequate remedy at law. Accordingly, Licensee agree that Licensor IS entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of such breach or threatened breach.
7. APPLICABLE LAW
7.1. This Agreement shall be governed by the laws of Cyprus.
7.2. The Parties shall resolve all disputes arising during the validity of this Agreement by way of negotiations. In case of the impossibility to resolve a dispute in a peaceful manner all disputes of any nature that may arise in relation to this Agreement shall be referred to arbitration by a single Arbitrator in accordance with the provisions of the Arbitration Law of Cyprus, Cap 4. The Arbitrator will be proposed by the Arbitration Service of the Cyprus Chamber of Commerce and Industry and must be approved by the Parties. In case of disagreement between the Parties on the proposed Arbitrator, the Arbitrator will be appointed in accordance with the provisions of the Arbitration Law of Cyprus, Cap 4. English shall be the language of the proceedings. The arbitral award shall be final and binding upon the Parties.
8.1. To the extent permitted by applicable law, the Software is provided to Licensee “AS IS” without warranty, either express or implied, that Software usage will be uninterrupted and that all errors have been or can be eliminated from the Software. Licensor’s sole liability (and Licensee’s exclusive remedy) for any breach of this warranty shall be, in Licensor’s sole discretion, to use commercially reasonable efforts to provide Licensee with an error correction or workaround which corrects the reported nonconformity, to provide Software upgrades with corrected errors for the upcoming Software release or service pack or if Licensor determines such remedies to be impracticable within a reasonable period of time, to terminate the Agreement and refund license fee paid for the period of nonconformity.
8.2. The limited warranty shall not apply to warranty claims arising out of or relating to: (a) use of the Software with hardware or software not required in the Software documentation; (b) to defects in the Software due to accident, abuse or improper use by Licensee; or (c) to Software provided on a no charge or non-commercial trial use basis, if any.
9. LIMITS ON LIABILITY
9.1. LICENSOR IS NOT LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME AND DAMAGE TO, OR LOSS OF USE OF DATA CONSIDERED AS INDIRECT LOSS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. LICENSOR’S TOTAL LIABILITY FOR DAMAGES OF ANY KIND IS LIMITED TO THE AMOUNT PAID FOR THE LICENSE TO THE APPLICABLE SOFTWARE GIVING RISE TO SUCH DAMAGES.
10. FORCE MAJEURE (CIRCUMSTANCES BEYOND PARTIES’ CONTROL)
10.1. Either Party shall not be held liable for non-performance or undue performance of the obligations under this Agreement, should such non-performance or undue performance be caused by such circumstances as a fire, flood, hostilities, acts of government and other circumstances beyond the control of Parties, interfering the performance of this Agreement.
10.2 Parties undertake to inform each other in writing about the circumstances beyond the Parties control as soon as the fact becomes known to the Party.
11. TERM AND TERMINATION OF THE AGREEMENT
11.1. This Agreement becomes effective from the day of signing the respective Order form by Parties and shall remain in force for the period specified in the Order form.
11.2. Licensor may terminate this Agreement, if (a) Licensee fails to make Setup fee payment and/or (b) Licensee fails to make a Subscription fee payment timely or comply with another term of this Agreement and within fourteen (14) days after receipt of written notice Licensee does not remedy such failure. In this case the Agreement is deemed to be terminated in 14 (fourteen) days upon the written notice sent by the Licensor to Licensee counted from the day of sending.
11.3. Licensor may suspend to Licensee the access to the Software, if Licensee fails to make a Subscription fee payment timely or comply with another term of Licensor’s Payment Policy
11.4. The Agreement along with the Order form may be terminated unilaterally initiated by any Party without stating reasons by written notice to the other Party not later than 30 (thirty) days prior to the date of termination. The termination of the Order form shall automatically terminate the present Licence agreement.
11.5. Any early termination shall not relieve the Licensee of his obligations to pay the License fees arising during the term of this Agreement.
12. ENTIRE AGREEMENT
12.1. This Agreement along with Order form(s) duly signed by the Parties constitute the entire agreement between the Licensor and the Licensee and supersedes all prior and contemporaneous agreements, arrangements, negotiations and understandings between Parties, whether oral or written, relating to the subject matter hereof.
12.2. No failure by either Party hereto to exercise and any right hereunder in time shall be considered as a waiver thereof or shall not preclude exercising any right hereunder by that Party in future.
12.3. All the Order forms to this Agreement are integral part thereof if they are made in writing and signed by authorized representatives of the Parties and sealed (if any).
13. MISCELLANEOUS PROVISIONS
13.1. Headings are used in this Agreement exclusively for convenience and shall not affect the interpretation of the Agreement provisions.
PRIOR VERSIONS OF COMPETERA LICENCE AGREEMENT are available here.