TERMS AND CONDITIONS

 

Subject to the following terms and conditions, AKos Consulting & Solutions Deutschland GmbH (“Licensor”) grants to the CUSTOMER, a nonexclusive, non-transferrable, annual and terminable license to use the computer program CWM Global Search, all updates delivered hereunder (the "Updates") and their user documentation.  The Programs and Data shall collectively be referred to herein as the "Software".

 

 

1.              CONFIDENTIALITY AND PERMITTED USE

1.1.          CUSTOMER may install and use the Software on up to 5 computers.

1.2.          The customer that receives the license key is the registered customer. Only the registered customer shall use the software.

1.3.          CUSTOMER shall use the Software only in the conduct of its business and shall not: (i) provide or otherwise make available the Software or any part or copies thereof to any third party other than its employees and agents identified as a specified user; or (ii) use the Software to create databases for resale.

1.4.          CUSTOMER acknowledges that the Software is (i) LICENSOR's principal products; (ii) valuable trade secrets of LICENSOR; and (iii) made available only in binary form.  CUSTOMER shall not transform, or attempt to transform the Software, into any other form, reverse assemble, reverse compile or use it other than as provided herein. CUSTOMER shall not transform the Software, if the effect of such activity would result in CUSTOMER having available for its use two or more different versions of such Software. 

1.5.          CUSTOMER shall (i) keep confidential LICENSOR's trade secrets in the Software and all information related thereto; (ii) disclose such information only to the extent required to use the Software under the terms of this Agreement; and (iii) with respect to CUSTOMER's employees, consultants, agents and other third parties, satisfy its obligations under this Agreement with respect to maintaining the confidentiality of LICENSOR's trade secrets in the Software.  This obligation does not however, preclude CUSTOMER from using information lawfully obtained from a source other than LICENSOR.

2.              DELIVERY AND PAYMENT PROVISIONS

3.               LICENSOR shall provide as download to CUSTOMER the Software licensed hereunder.

4.               After the customer receives a license key CUSTOMER shall pay to LICENSOR or its representative the annual payment, in immediately available funds of the lawful currency of the specified country identified on the applicable order form. 

5.              TAXES AND SHIPPING

5.1.          CUSTOMER shall pay any sales, use, value added/ad valorum, surtax and personal property taxes, customs duties, registration fees and the like arising out of this order and the transactions contemplated herein, excluding taxes based on LICENSOR's net income.

6.              TERM AND UPDATES

6.1.          The LICENSE shall commence upon execution of this Agreement and will run for the time specified for the license key. Customer can extend the license at any time. The software will warn during a grace period that the license key will expire. During the term, CUSTOMER shall be entitled to receive all applicable releases to such Software, which are made generally available.

7.              TITLE

7.1.          No title to or ownership of the Software or rights in patents, copyrights and trade secrets in the Software is transferred to CUSTOMER by virtue of this Agreement.

8.              WARRANTIES AND DISCLAIMERS

8.1.          LICENSOR warrants that it has the right to license and/or sublicense the Software.

8.2.          LICENSOR warrants that to the best of its knowledge the Software does not infringe upon or violate any patent, copyright or trade secret of any third party. In the event any legal proceedings are brought against CUSTOMER claiming that the Software, or any part thereof, constitutes an infringement of a third party's patent, copyright or trade secret, LICENSOR shall defend at its own expense such legal proceedings relating to such claim or claims and pay any costs, damages and attorneys' fees finally awarded as a result of settlement or judgment against CUSTOMER; provided CUSTOMER gives LICENSOR prompt written notice within thirty (30) days of such claim against it and further cooperates completely with LICENSOR in providing all necessary authority, information and reasonable assistance to enable LICENSOR at its option, to settle or defend such claim.  CUSTOMER's modification of the Software or failure to implement any Software improvements or corrections without the prior written consent of LICENSOR shall void this warranty.  LICENSOR shall have no liability for any claim of infringement based on use of the Software if such infringement would have been avoided by the implementation of such improvements or corrections.  In the event of a legal proceedings claiming that the Software, or any part thereof, constitutes an infringement of a third party's patent, copyright or trade secret, LICENSOR shall have the option to either (i) modify the Software to render it non-infringing; or (ii) procure a license which permits the CUSTOMER to continue to use the Software or (iii) terminate the license and refund to CUSTOMER a portion of the license fee prorated over 12 month.  The foregoing sentence states the entire liability and obligation of LICENSOR and the exclusive remedy of CUSTOMER with respect to the matters set forth in this Section 7.2.

8.3.          CUSTOMER agrees to promptly notify LICENSOR of any use of the Software by any third party, which CUSTOMER considers might be an infringement or violation of a patent, copyright, trade secret or any other proprietary right of LICENSOR.  LICENSOR shall have the sole right to decide whether or not proceedings shall be brought against such third parties.  CUSTOMER agrees to cooperate with LICENSOR to prosecute any action brought by LICENSOR, all expenses being borne by LICENSOR and all damages which may be recovered being solely for the account of LICENSOR.

8.4.          LICENSOR DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED THAT THE SOFTWARE IS MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE.  THERE ARE NO WARRANTIES EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. LICENSOR MAKES NO WARRANTY THAT THE SOFTWARE DOES NOT CONTAIN ERRORS. THERE ARE NO WARRANTIES EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.

9.              LIMITATION OF LIABILITY

9.1.          In no event shall LICENSOR be liable in any way for any indirect, special or consequential damages of any nature, including, without limitation, lost business, lost profits, or liability to any persons, whether foreseeable or not, regardless of whether LICENSOR has been advised of the possibility of such damages. 

9.2.          The sole and exclusive remedies for breach of this Agreement by LICENSOR, whether based in contract, tort or otherwise, shall be repair or replacement of all or part of the Software or, termination of the license granted herein and refund to CUSTOMER of license fee in accordance with Section 7.2 above.

10.           TERMINATION

10.1.       This Agreement may be terminated by either party at any time upon thirty (30) days prior written notice in the event that the other party commits a material breach of any of the terms or conditions of this Agreement and such breach, if curable, is not remedied to the other party's reasonable satisfaction within such thirty (30) day period.  However, a breach of Section 1 is cause for immediate termination.

11.            Upon termination of this Agreement, CUSTOMER shall immediately discontinue all use of the Software, remove the Software from the applicable central processing units.

12.           ASSIGNMENT

12.1.       This Agreement and the rights, interests, benefits, duties and obligations hereunder shall not be assigned, transferred or hypothecated in any way by CUSTOMER without the prior written consent of LICENSOR.  Any attempt to assign, transfer or hypothecate or otherwise dispose of the rights, interests, benefits, duties or obligations hereunder contrary to the foregoing shall be null and void and without effect.

13.           MISCELLANEOUS

13.1.       This Agreement is a complete and exclusive statement of all of the terms and representations of the agreement between CUSTOMER and LICENSOR with respect to the subject matter hereof.  This Agreement shall not be varied, supplemented, qualified or interpreted by any prior course of dealing between the parties hereto or by any usage of trade.  This Agreement may be amended or modified only by a written agreement executed by CUSTOMER and LICENSOR.  The terms of this Agreement shall not be modified by any purchase order or acknowledgment, even though LICENSOR may have signed such a document. 

13.2.       If any term or provision of this Agreement shall be found to be illegal or unenforceable, then, notwithstanding, this Agreement shall remain in full force and effect and such term or provision shall be deemed stricken.

13.3.       Wherever in this Agreement either party's consent or satisfaction is required, such consent or satisfaction shall not be unreasonably or arbitrarily withheld or delayed.

13.4.       Headings in this Agreement are for convenience only and are not to be used to interpret the agreement between the parties hereto.

13.5.       No consent by either party to, or waiver of, a breach of this Agreement by the other party, whether express or implied, shall constitute a consent to, waiver of, or excuse for any other different or subsequent breach by the other party.

13.6.       The provisions of Sections 1, 7, 8 and 9 shall survive termination or expiration of this Agreement.

13.7.       This Agreement shall be governed by and construed in accordance with the laws of Germany.

13.8.       This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective successors and permitted assigns.

13.9.       In the event of any litigation between the parties hereto with respect to the subject matter hereof, the unsuccessful party to such litigation shall pay to the successful party all costs and expenses, including reasonable attorneys' fees, incurred therein by the successful party, all of which shall be included in and as a part of the judgment rendered in such litigation.

13.10.    The terms of this Agreement shall only be disclosed by CUSTOMER to those of its employees and agents who need to know them in order to carry out their responsibilities to CUSTOMER.