Terms and Conditions
General Terms and Conditions for Custom Software License Agreement of Oculyze GmbH
Definitions
“Agreement” means this custom software license agreement.
“Licensed Software” means the Software licensed by Oculyze.
“Licensor” means Oculyze, as the provider of the Licensed Software.
“Licensee” means the entity signing an order which refers to this Agreement with the intention of using the Licensed Software of the Licensor
“Trademarks” means the Licensor’s trademarks and logos
“Feedback” means any feedback, suggestions, or ideas provided by the Licensee to the Licensor regarding the Licensed Software
1. Subject of the Agreement
(1) The subject of the Agreement is according to the Licensee’s order: (i) for the Licensee to use the Licensed Software of the Licensor (ii) for the Licensee to carry out image analyses using the Licensed Software
(2) The Licensee acknowledges that the Licensed Software may only be used for the agreed upon purpose as described in the order signed by the Licensee and shall not be used for any other purpose.
(3) The Licensor will make the Licensed Software available for use to the Licensee. The Licensor is not responsible for the creation or maintenance of any other software enabling the Licensee’s use or integration of the Licensed Software.
(4) The Licensee shall not, and shall not permit any third party to, use the Licensed Software for illegal uses.
(5) The Licensor reserves the right to modify, update, or discontinue the Licensed Software at any time, with or without notice.
2. Access and Use
(1) Subject to the terms and conditions of this Agreement, the Licensor grants the Licensee a non-exclusive, non-transferable, limited right to access and use the Licensed Software for the Licensee’s business purposes.
(2) The Licensee shall not, and shall not permit any third party to: (i) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code or sell, assign, sublicense, or otherwise transfer any right in the Licensed Software; (ii) use the Licensed Software for any illegal or unauthorized purpose or in any manner that could damage, disable, overburden, or impair the Licensed Software; (iii) attempt to gain access to the Licensed Software source code
(3) The Licensor reserves the right to discontinue or modify any aspect of the Licensed Software at any time, in its sole discretion.
(4) The Licensee shall be responsible for all fees associated with access to and use of the Licensed Software, as well as any applicable taxes.
(5) The Licensee shall provide the Licensor with accurate and complete billing and contact information, and shall update this information as necessary to keep it current, complete and accurate.
3. Intellectual Property
3.1 Ownership
(1) The Licensor shall retain all rights, title, and interest in and to the Licensed Software and any and all proprietary, technology, and other materials used in connection with the Licensed Software, including all intellectual property rights.
(2) The Licensee shall not, and shall not permit any third party to, copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code or sell, assign, sublicense, or otherwise transfer any right in the Licensed Software.
(3) The Licensee shall have no rights in the Licensed Software other than the limited right to use the Licensed Software in accordance with this Agreement.
(4) The Licensee shall not remove or alter any proprietary or intellectual property rights notices on the Licensed Software.
3.2 Licenses
(1) Subject to the terms and conditions of this Agreement, the Licensor grants the Licensee a non-exclusive, non-transferable, limited license to access and use the Licensed Software for the Licensee’s business purposes during the term of this Agreement.
(2) The Licensee shall not, and shall not permit any third party to, reproduce, distribute, sell, transfer, sublicense, or otherwise make the Licensed Software available to any third party, except as specifically permitted by this Agreement.
(3) The Licensee shall not, and shall not permit any third party to, use the Licensed Software for any illegal or unauthorized purpose
(4) The license granted under this section shall automatically terminate upon termination or expiration of this Agreement.
3.3 Licensee Content
(1) The Licensor shall retain all right, title, and interest in and to any content or data that the Licensee uploads or uses on the Licensed Software, including all intellectual property rights.
(2) The Licensor grants the Licensee a non-exclusive, worldwide, royalty-free, fully paid-up, and sublicensable license to access, use, process, copy, distribute, transmit, display, and perform the Licensee Content for the purpose of providing the Licensed Software to the Licensee.
(3) The Licensor is entitled to use, in particular to reproduce, process and make available to a third party, the Licensee Content associated with the analyses and results in anonymous form to improve the Licensed Software, as well as for the purpose of research and development.
(4) The Licensee represents and warrants that it has all necessary rights to upload or use the Licensee Content on the Licensed Software, and that such use does not infringe any third party rights.
(5) The Licensee shall be solely responsible for the accuracy, completeness, and legality of the Licensee Content.
(6) The Licensor shall not be responsible or liable for any loss or damage to the Licensee Content or for any loss or damage of any kind incurred as a result of the use or access of the Licensee Content.
3.4 Infringement
(1) The Licensor shall promptly notify the Licensee in writing of any claim or action that alleges that the Licensed Software infringe the intellectual property rights of any third party.
(2) The Licensor shall cooperate with the Licensee in the defense of any such claim or action and shall allow the Licensee to control the defense and settlement thereof, at the Licensee’s expense.
(3) If the Licensed Software, or any part thereof, are held by a court of competent jurisdiction to infringe any third party’s intellectual property rights, or if the Licensor receives notice of such claim, or if the Licensor believes that the Licensed Software may infringe any third party’s intellectual property rights, the Licensor may, at its option and expense: (i) obtain for the Licensee the right to continue using the Licensed Software; (ii) modify the Licensed Software to make them non-infringing; or (iii) terminate the Licensee’s right to use the Licensed Software and provide the Licensee with a pro-rata refund based on the remaining term of this Agreement.
(4) The Licensee shall promptly notify the Licensor of any actual, suspected, or alleged infringement of the intellectual property rights of any third party related to the Licensee Content.
(5) The Licensee shall cooperate with the Licensor in the defense of any such claim or action and shall allow the Licensor to control the defense and settlement thereof, at the Licensor’s expense.
3.5 Trademarks
(1) The Licensor grants the Licensee a non-exclusive, non-transferable license to use the Licensor’s trademarks and logos (the “Trademarks”) for the sole purpose of identifying the Licensed Software in the Licensee’s marketing and promotional materials and on the Licensee’s website.
(2) The Licensee shall use the Trademarks only in accordance with the Licensor’s guidelines and instructions and shall not use the Trademarks in any way that is likely to cause confusion or dilute the Licensor’s rights in the Trademarks.
(3) The Licensee shall not, and shall not permit any third party to, use the Trademarks or any confusingly similar marks as part of the Licensee’s corporate or product names or in any manner that creates the impression that the Licensee and the Licensor are the same or related entities.
(4) The Licensee shall not, and shall not permit any third party to, register or use any domain name, social media account, or any other online presence that includes any of the Trademarks or any confusingly similar marks.
(5) The license granted under this section shall automatically terminate upon termination or expiration of this Agreement.
(6) The Licensee acknowledges that the Licensor is the sole owner of the Trademarks and that the Licensee acquires no rights in the Trademarks except as set forth in this Agreement.
3.6 Feedback
(1) The Licensee may provide feedback, suggestions, or ideas (“Feedback”) to the Licensor regarding the Licensed Software.
(2) The Licensee grants the Licensor a perpetual, non-exclusive, worldwide, royalty-free, fully paid-up, and sublicensable license to use, reproduce, distribute, display, perform, and incorporate the Feedback into the Licensed Software or any other products or services of the Licensor.
(3) The Licensee acknowledges that the Licensor may have similar feedback, suggestions, or ideas under development or consideration, and that the Licensor shall not be liable for any similarities between the Feedback and any other products or services of the Licensor.
(4) The Licensee shall not provide feedback, suggestions, or ideas that are confidential or proprietary to the Licensee or any third party without the express written consent of the Licensee or the third party.
4. Warranty and Disclaimers
(1) The Licensor represents and warrants that it has the right and authority to enter into this Agreement and to perform its obligations hereunder.
(2) The Licensor represents and warrants that the Licensed Software will be provided in a professional and workmanlike manner, in accordance with industry standards.
(3) The Licensor does not warrant that the Licensed Software will be error-free, and shall not be liable for any errors.
(4) The Licensor does not warrant that the Licensed Software will meet the Licensee’s requirements or that the operation of the Licensed Software will be completely secure or free from errors or viruses.
(5) The Licensee acknowledges and agrees that the Licensed Software are provided on an “AS IS” basis, and that the Licensor makes no representations or warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose, non-infringement, or that the Licensed Software will meet the Licensee’s requirements.
(6) The Licensee assumes the entire risk as to the quality and performance of the Licensed Software.
5. Limitation of Liability
(1) The Licensor shall not be liable for any indirect, incidental, consequential, special, or exemplary damages, including but not limited to, damages for loss of profits, revenue, business, or data, arising out of or in connection with this Agreement or the use of the Licensed Software, even if the Licensor has been advised of the possibility of such damages.
(2) The Licensor’s total liability to the Licensee arising out of or in connection with this Agreement or the use of the Licensed Software, whether in contract, tort, or otherwise, shall not exceed the amount of any fees paid by the Licensee to the Licensor in the 12 months preceding the claim.
(3) The Licensor shall not be liable for any failure or delay in performance of its obligations under this Agreement caused by any act of God, war, strikes, or other labor disputes, embargoes, government orders or any other force majeure event.
(4) The Licensee shall be liable for any damages caused by its misuse of the Licensed Software and shall indemnify the Licensor against any claims, losses, costs, expenses, or damages that may be incurred as a result.
(5) The Licensor shall not be liable for any failure to perform its obligations hereunder if such failure is caused by the Licensee’s failure to make payment when due.
6. Indemnification
(1) The Licensee shall indemnify, defend and hold harmless the Licensor, its affiliates, and their respective directors, officers, employees and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising out of or in connection with: (i) the Licensee’s use of the Licensed Software; (ii) the Licensee’s violation of this Agreement; (iii) the Licensee’s violation of any rights of another; (iv) the Licensee’s failure to comply with any applicable laws or regulations; or (v) the Licensee’s negligence or wilful misconduct.
(2) The Licensor shall promptly notify the Licensee in writing of any claim for which the Licensor intends to seek indemnification under this section and shall provide the Licensee with reasonable assistance in defending such claim, at the Licensee’s expense.
(3) The Licensee shall have the right to participate in the defense of any such claim with counsel of its own choosing at its own expense.
(4) The Licensor shall not settle any such claim without the Licensee’s prior written consent, which shall not be unreasonably withheld or delayed.
(5) This indemnification shall survive the termination of this Agreement for a period of 12 months after the date of termination.
7. Fees and Payment
(1) Payment terms and amount of fees, as well as the method of payment, are set forth in the Licensee’s order. Unless otherwise stipulated in an individual case, prices do not include any sales, use, consumptions, value-added, or any other tax (including applicable withholding tax) and the Licensee is responsible for the payment of any and all such taxes. Bank fees shall be borne by the Licensee.
(2) The Licensor may increase its prices on an annual basis, provided that the Licensor gives the Licensee 30 days prior written notice of any such increase. Should the fees be increased more than 5%, the Licensee is entitled to terminate the contract immediately.
(3) The Licensee has to check immediately the invoices of the Licensor, as well as credits, refunds, chargebacks and all other transactions, which were credited or charged to the Licensee’s bank account. Any objections must be raised within twenty-five (25) Business Days (“Business Day” means every day from Monday to Friday except statutory holidays) after receipt of the respective invoice or charge. Without a timely objection, the invoice or charge shall be regarded as approved.
(4) If the Licensee fails to make any payment when due, the Licensor may suspend the Licensee’s access to the Licensed Software until such payment is made.
(5) Any amount not paid when due shall bear interest at the rate of 1,5% above the key interest rate set by the ECB, from the date such amount was due until the date of payment.
8. Term and Termination
(1) The minimum term of this Agreement is 12 months (“Initial Term”), unless otherwise agreed in writing. Upon expiration of the Initial Term, the Agreement will subsequently be renewed automatically by another 12 months (“Subsequent Term”) if not terminated by the Licensee in writing twenty-five (25) Business Days (“Business Day” means every day from Monday to Friday except statutory holidays) prior to the end of each term. In case of a termination the Agreement will cease at the end of the term.
(2) The Licensor may terminate this Agreement immediately upon written notice to the Licensee if the Licensee breaches any of its obligations under this Agreement, including but not limited to failure to make payment when due.
(3) Upon termination of this Agreement for any reason, the Licensee shall immediately cease all use of the Licensed Software and shall pay all outstanding fees and charges up to the date of termination.
(4) Upon termination of this Agreement, the Licensee’s right to access and use the Licensed Software shall terminate, and the Licensor shall have no further obligation to provide the Licensed Software to the Licensee.
(5) The Licensee has to pay to the Licensor all due amounts according to the terms of this Agreement immediately after the effective termination of this Agreement.
(6) Any provisions of this Agreement that by their nature should survive termination or expiration shall survive termination or expiration.
9. General Terms
(1) The terms of this Agreement shall apply exclusively. Terms and conditions of the Licensee do not apply. Counter confirmation of the Licensee with reference to its own terms and conditions are expressly excluded.
(2) This Agreement may not be amended or modified except in writing signed by both parties.
(3) No failure or delay by either party in exercising any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or remedy.
(4) Neither party shall be liable for any failure to perform its obligations hereunder (other than payment obligations) if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of such party, including, without limitation, acts of God, war, strikes, or other labor disputes, embargoes, government orders or any other force majeure event. The party affected by such occurrence shall give prompt written notice thereof to the other party and shall use its reasonable efforts to avoid or remove such causes of non-performance and shall continue performance hereunder with reasonable dispatch whenever such causes are removed.
(5) The Licensor has the right to change, in its discretion, the terms of this Agreement at any time and to revise, remove, delete or add certain conditions to the provisions on the Licensed Software, if it is required due to change of law, the jurisdiction or market conditions.
(6) The Licensor will inform the Licensee about proposed changes to the terms of this Agreement by email to the primary email address the Licensee provided.
(7) The proposed changes shall take effect two (2) months after the date of the change notification, provided that the Licensee has not raised objection to the changes by notification to the Licensor prior to the effective date. Changes to the benefit of the Licensee shall take effect immediately, provided that it has been so communicated in the change notification.
(8) The current version of the terms of this Agreement is available on the website of the Licensor.
10. Applicable Law; Place of Jurisdiction
(1) For the terms of this Agreement as well as the entire contractual relationship between the Licensor and the Licensee, the law of the Federal Republic of Germany (not including the UN Convention on Contracts for the Sale of Goods) shall apply.
(2) For the Licensee with its principal place of business in Germany, Austria or Switzerland, the following jurisdiction shall apply: Place of jurisdiction is the principal place of business of the Licensor. The court has jurisdiction over all disputes arising from or in connection with the terms of this Agreement and contract(s) between the parties. Before raising the claim in legal proceedings, the parties shall endeavor to resolve the dispute through negotiation.
(3) For the Licensee with its principal place of business outside Germany, Austria and Switzerland, the following arbitration agreement shall apply: All disputes arising out of or in connection with the terms of this Agreement and contract(s) between the parties or the validity thereof shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The place of arbitration is the principal place of business of the Licensor. Language of the arbitration shall be English.
11. Severability
Should any provision of the terms of this Agreement be or become, totally or partially, invalid or ineffective, the validity of the remaining provisions shall not be affected. Where the legislative rules (sec. 306 German Commercial Code) are not available or not sufficient to close the gap, the parties shall strive to substitute the invalid provision with a valid one which as closely as possible achieves the economic purpose of the invalid provision.