IMPORTANT: DO NOT DOWNLOAD OR USE THE SOFTWARE UNTIL YOU HAVE READ AND AGREED TO THE TERMS OF THIS AGREEMENT.
THIS TERMS AND CONDITIONS GOVERNS USE OF THE SOFTWARE DEVELOPED BY TESCAN GROUP. BY CLICKING ON THE “I ACCEPT” BUTTON OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU ACKNOWLEDGE AND AGREE THAT ALL SUCH USE IS SUBJECT TO THIS TERMS AND CONDITIONS.
1. Introductory Provisions
1.1 TESCAN GROUP, a.s., a company incorporated and existing under the laws of the Czech Republic, with its registered office at Libušina třída 863/21, Kohoutovice, 623 00 Brno, Company ID No.: 177 74 713, registered in the Commercial Register maintained by the Regional Court in Brno, Section B, Insert 8821 (the “Provider“), among others a developer and/or a supplier of proprietary software solutions (the “Software“), provides the Software to its customers (the “Customer“, the Customer and the Provider together as “Parties” or each as a “Party“) on the basis of valid and effective contract (the “Agreement“). These terms and conditions (the “Terms and Conditions“) govern the binding rules and conditions of providing the Software to the Customer and are the integral part of the related Agreement between the Parties.
1.2 In the event that the Agreement between the Parties stipulates something other than specified in these Terms and Conditions, the provisions of the Agreement shall prevail over the provisions of these Terms and Conditions that are in conflict with them. If any issue between the Parties is not regulated in the Agreement or in these Terms and Conditions, the Parties agreed that the business practices shall not prevail over any provision of law and any past mutual practice of the Parties shall not be relevant to the interpretation of the Agreement and this Terms and Conditions.
2. Rights and obligations
2.1 The Customer hereby represents and warrants that when using the Software, it will comply with the Agreement and these Terms and Conditions and will respect any and all intellectual property rights in the Software (including tangible or intangible objects provided thereunder).
2.2 The Customer further undertakes and agrees:
(a) to ensure that each administrator and users to whom it allows the use of the Software will fully abide by these Terms and Conditions when using the Software;
(b) not to share the information, data and access with any other subject than the authorized users. The Customer is responsible for the potential list of selected users as well for any and all actions of users using the Software;
(c) if it discovers any problem related to the Software or its functionality, it shall notify the Provider of such an event without undue delay in an appropriate manner.
2.3 The Software may be provided separately or integrated into an equipment (hardware). The Customer is obliged to use the Software on the equipment (hardware) specified by the Provider; if the Provider’s instructions or related documentation permit so, the Software may also be used on equipment (hardware) from manufacturers other than the Provider.
2.4 The Software may only be installed, used, accessed, displayed and run on hardware owned, leased or otherwise controlled by the Customer. Use of the Software on processors accessible through communications networks through terminals and devices not owned or controlled by Customer is strictly prohibited. Customer warrants that it has obtained lawful permission to use all hardware and software that is needed to use the Software.
3. Maintenance, Updates and Modifications, Outages and Suspension
Maintenance
3.1 If agreed by the Parties in the Agreement, the Provider shall provide to the Software also maintenance that may include bug fixes, remote system management and support services, all within the specification in the Agreement (the “Maintenance“). Nevertheless, the Provider is not responsible for providing the Maintenance to or for the benefit of Customer:
(a) if the Software has been altered, revised, changed, enhanced, or modified in any manner not authorized in writing in advance by the Provider;
(b) in connection with any bug if the Provider has previously provided corrections for the bug;
(c) in connection with any bugs or problems caused by errors, defects, problems, alterations, revisions, changes, enhancements, or modifications in the database, operating system, third-party software (other than third-party software bundled with the Software by the Provider or approved by the Provider), hardware, or any system or networking utilized by the Customer;
(d) if the Software or related software or systems have been subject to abuse, misuse, improper handling, accident, or neglect; or
(e) if any party other than the Provider (or a person or entity authorized by the Provider) has provided any services in the nature of maintenance and technical support services to the Customer with respect to the Software. The Provider is not obliged to provide any technical support services on site at the facilities of the Customer. If the Provider agrees, in its sole discretion, to provide any technical support services on site, these services will be provided only upon submission by the Customer of a purchase order agreeing to pay for the services on a time and materials basis.
Software Modifications
3.2 The Provider is from time to time entitled to update, upgrade or otherwise modify the Software, in particular for purposes of enhancement of security functions, error correction and improvement of functions. Such updates, upgrades and/or modifications may add, delete or change the nature of features or other aspects of the Software (the “Software Modifications“).
3.3 The Customer acknowledges and agrees that the Software Modifications:
(a) shall be deemed to be, and shall constitute part of, the Software;
(b) may occur at the Provider’s sole discretion and that the Provider may condition the continued use of the Software upon the complete installation or acceptance of such System Modifications by the Customer;
(c) will be provided free of charge; however, the Provider reserves the right to introduce charges for such System Modifications in the future, upon providing a prior notice to the Customer.
Outages and Suspensions
3.4 The Customer agrees that the Provider is entitled to:
(a) limit or interrupt the functionality of the Software or restrict or interrupt the Customer’s or individual users’ access to the Software in the event that there is a threat of or has occurred a breach of the Agreement, these Terms and Conditions, legal regulations, or if it is necessary to implement measures or decisions issued by public authorities (always exclusively for the necessary period of time); and
(b) limit or discontinue the functionality of the Software at any time in order to perform the Maintenance and/or the System Modifications; as a result, the Software may not be accessible or functional at all times and its functionality may be subject to change due to the Maintenance and/or the System Modifications..
4. Licence Agreement
4.1 The Provider grants the Customer to the date of payment of the Provider’s remuneration under the Agreement, or in case of potential free-of-charge licence grant as of the date of receiving the Software and agreeing to these Terms and Conditions, the following licence to the Software (as applicable):
(a) non-exclusive nature;
(b) in the extent agreed between the Parties in the Agreement:
- Purchased Licence – An unlimited licence granted for the duration of the copyright allowing the Customer to use all the features of the Software ;
- Demo Licence – A limited licence granted for a limited period of time allowing the Customer to use the Software only with limited features (duration and available features will be specified by the Provider in the respective demo version of the Software)` for the avoidance of doubt, the Agreement with the respect to the Demo Licence may be concluded also by only accepting these Terms and Conditions by the Customer.
(c) in the extent of the number of authorized users as specified in the Agreement;
(d) without territorial restrictions (unless use of the Software is prohibited and/or restricted by the applicable laws, e.g., by Export Laws as mentioned in Article 10.3 below),
(the “Licence“).
4.2 Upon the expiration of the Demo Licence, the Customer must:
(a) obtain a Purchased Licence to continue using the Software with full functionality; or
(b) cease using the Software.
4.3 The Licence is granted solely for the use of the Software in the manner and for the purpose (i) of the Software itself and (ii) arising from the Agreement and these Terms and Conditions. The Customer agrees to comply with the terms of the Licence and shall ensure that all users of the Software will comply with the terms of the Licence.
4.4 The Customer is not entitled to grant a sub-licence or assign the Licence to any third party within the scope of the Licence without the prior written consent of the Provider.
4.5 The Customer acknowledges that:
(a) the Software may contain names, trademarks, brands or other designations that may be protected by intellectual property rights (in particular regulations governing copyright and industrial property rights) and that nothing in the Agreement or in these Terms and Conditions entitles the Customer to use these designations in any way; and
(b) the Software contains intellectual property of third parties (in particular software, computer programs, applications, software libraries, open-source software, etc.) that was not created by the Provider and that is distributed to multiple persons (the “Third-Party IP”). A Third-Party IP is licensed only to the extent permitted by the applicable licence terms of the respective Third-Party IP in question. In the event of any conflict between the Licence, or any other provision of these Terms and Conditions, the Agreement and the license terms applicable to the respective Third-Party IP, the license terms applicable to the Third-Party IP shall prevail. A list of Third-Party IP can be found in the respective Software; by concluding the Agreement, the Customer confirms and acknowledges that the Customer read the list and the individual licence conditions of the Third-Party IP and acknowledges that the license termsof the Third-Party IPmay be amended from time to time.
4.6 The Software provided hereunder is licensed, not sold. To the extent not expressly licensed to the Customer hereunder, the Provider, and its respective suppliers or licensors where applicable, reserve and retain all rights, titles and interests in and to the Software and all intellectual property rights embodied therein. The Customer shall maintain reasonable technical and procedural access controls and system security to safeguard the Software and documentation and shall be directly responsible for any violations of the Agreement and these Terms and Conditions by anyone that it or any of its affiliates has allowed to access the Software.
4.7 If the Customer chooses to provide the Provider with ideas or suggestions regarding any Provider’s products or services (the “Feedback“), the Customer agrees that the Provider is free to use any Feedback for any purpose, including, without limitation, developing, improving and marketing its products and services, without any liability or payment of any kind to the Customer and/or any third party.
5. Restrictions
5.1 The Customer agrees not to, nor will it permit or authorize anyone to:
(a) distribute, convey, lend, lease, share, sell, transfer, market, sublicense, rent or otherwise make available any component of the Software;
(b) copy, decompile, disassemble or reverse engineer or otherwise attempt to extract or derive the source code or any methods, algorithms or procedures from the Software, or modify, adapt, translate or create derivative works based upon the Software except as expressly authorized by the mandatory provisions of applicable law;
(c) use, offer or otherwise exploit the Software as a revenue-generating or commercial product or service to or for any third-party, including, without limitation, hosting, outsourcing, service bureau, application service provider, or software as a service (SaaS) functionality;
(d) use the Software for purposes of developing a product that is competitive with any of the Provider’s product or service;
(e) remove any copyright, trademark or other proprietary notice from the Software;
(f) alter or circumvent any Software licence keys or any other restrictions or limitations on the Software access or use, circumvent or violate any technological security measures in the Software; and
(g) to interfere with the technical or factual content of the Software.
6. Warranties and Liability
Warranties
6.1 The Parties agree and the Customer acknowledges that:
(a) the Software, documentation and other products, information and materials provided by the Provider are provided under the “as is” model;
(b) the Provider does not provide, to the maximum extent permitted by generally binding legal regulations, any warranties with respect to the Software or any other subject matter of the Agreement and hereby disclaims all other warranties, whether express, implied or statutory, including, but not limited to warranties of title, non-infringement, merchantability, satisfactory quality, fitness for a particular purpose (even if the Customer has been informed of such purpose), and all warranties arising from course of dealing, usage, or trade practice; without limiting the foregoing, the Provider makes no warranty of any kind that the Software or its documentation, or any products or results of the use thereof, will meet Customer’s or other persons’ requirements, operate without interruption, achieve any intended result, be compatible or work with any software, systems, or other services, or be secure, accurate, complete, free of harmful code and defect or be error free;
(c) the Customer shall use the Software at its own risk and the Provider shall not be liable for any damage, injury, loss of revenue, profits, reputation, data, or business opportunities incurred by the Customer through or in connection with the use of the Software, or for delay or denial of access to it.
6.2. The Customer further agrees to bear all legal consequences that arise as a result of a breach of its obligations (including a breach by its individual users) under these Terms and Conditions, the Agreement or the obligations stipulated by generally binding legal regulations. The Customer is also obliged to reimburse the Provider for all costs incurred as a result of the assertion of third party claims against the Provider for any breach of obligations by the Customer, including breaches caused by individual users; this is without prejudice to the right of the Provider and third parties to compensation for damage (material and non-material damage) incurred as a result of a breach of any of the obligations of the Customer or individual users.
Liability
6.3 Except for (i) death or bodily injury caused by a Party’s negligence, (ii) each Party’s indemnification obligations under the Agreement and/or these Terms and Conditions, (iii) Customer’s violation of Provider’s or third-parties’ intellectual property rights and (iv) the extent to which liability may not be lawfully limited under the applicable law, the Provider’s maximum, cumulative liability for any claims, losses, costs (including attorney’s fees) and other damages arising under or related to the Agreement and/or these Terms and Conditions regardless of the form of action, whether in breach of warranty, contract, including but not limited to negligence or strict liability or otherwise, will be limited to actual damages incurred, which will in no event exceed the greater of the amount of fees paid by the Customer or payable by the Customer during the twelve (12) months immediately prior to the time the cause of action arose and attributable to the specific Software, products or services giving rise to such damages.
6.4 The Provider shall not be liable for unauthorized use of the Software. The Provider is also not responsible for the impossibility or limitation of the use of the Software due to inaccessibility caused by failures in the operation of the internet network, as well as other circumstances of a technical nature that the Provider is not able to influence or the solution of which requires the cooperation of third parties.
6.5 The Provider shall not be liable for any loss, damage or misuse of the content entered into the Software by the Customer (the “Content“) for any reason whatsoever (in particular due to force majeure, acts of a third party, power or connectivity failure). The Customer is obliged to ensure that all Content is backed up by means of its own data backup.
6.6 The limitations, exclusions and disclaimers contained in these Terms and Conditions are independent of any agreed remedy specified hereof and/or in the Agreement and will apply to the fullest extent permitted by applicable law, even if any agreed remedy is found to have failed of its essential purpose. To the extent that Provider may not, as a matter of law, disclaim any warranty or limit its liabilities, the scope or duration of such warranty and the extent of Provider’s liability will be the minimum permitted under such law. If a waiver, right, or remedy is exercised pursuant to mandatory law, it shall be exercised solely for the purpose provided and in conformance with the procedures and limitations expressly provided for by such law.
7. Confidentiality
7.1 Each Party will hold in confidence the other Party’s confidential information, in particular all information and materials regarding the Software and which the Customer encounters during the execution and performance of the Agreement and through Parties cooperation, including but not limited to materials, files, and other documents (“Confidential Information“) and will not disclose or use such Confidential Information except as necessary to exercise its express rights or perform its express obligations hereunder. Any Party’s disclosure of the other Party’s Confidential Information may be made only to those of its employees or consultants who need to know such information in connection herewith and who have agreed in writing to confidentiality terms that are no less restrictive than the requirements of this section. Each Party shall use all reasonable efforts to maintain the confidentiality of all of the other Party’s Confidential Information in its possession or control, but in no event less than the efforts that it ordinarily uses with respect to its own Confidential Information of similar nature and importance.
7.2 Notwithstanding the foregoing, a Party may disclose the other Party’s Confidential Information to the extent that it is required to be disclosed in accordance with an order or requirement of a court, administrative agency or other governmental body, provided that such Party, to the extent permitted by applicable law, provides the other Party with prompt notice of such order or requirement in order that it may seek a protective order to protect the confidentiality of such information, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information. Each Party’s confidentiality obligations hereunder will continue for a period of five (5) years following any termination of the contractual relationship under these Terms and Conditions, provided, however, that each Party’s obligations will survive and continue in effect thereafter with respect to, and for so long as, any Confidential Information continues to be a trade secret under applicable law. The Parties acknowledge and agree that the Software and all pricing information shall be treated as the Confidential Information of the Provider.
8. Termination
8.1 Either Party may terminate the Agreement and the contractual relationship under these Terms and Conditions, including individual Software Licence if the other Party fails to cure a material breach within thirty (30) days after a written notice of such breach is received by the breaching Party, provided that the Provider may terminate this Agreement immediately upon any breach of Article 4.6 and 5 of these Terms and Conditions.
8.2 Upon expiration or termination of the Agreement, the contractual relationship under these Terms and Conditions and/or any Licence, all rights granted to the Customer under the Agreement and these Terms and Conditions and relating to the Software in question will also terminate and the Customer shall:
(a) immediately cease using the Software in question and its documentation; and
(b) certify to the Provider within thirty (30) days after such expiration or termination that the Customer has destroyed or has returned to the Provider all copies of the applicable Software, any associated Licence (keys), documentation and all other Confidential Information in its possession.
8.3 Termination of the Agreement, the contractual relationship under these Terms and Conditions and/or any Licences shall not prevent either Party from pursuing all available legal remedies, nor shall such termination relieve the Customer’s obligation to pay all fees that are owed as of the effective date of the termination. All provisions of these Terms and Conditions relating to Provider’s rights and ownership of the Software, limitations of liability, disclaimers of warranties, confidentiality (for the time periods specified in these Terms and Conditions), waiver, audit, governing law and jurisdiction, in addition to any other provisions of the Agreement and these Terms and Conditions that would normally survive termination, shall survive termination of the Agreement and the contractual relationship under these Terms and Conditions for any reason.
9. Force Majeure
9.1 Neither Party shall be liable in the event that its performance of the Agreement and/or the contractual relationship under these Terms and Conditions is prevented, or rendered so difficult or expensive as to be commercially impracticable, by reason of an act of God, disease, epidemic, pandemic, quarantine, labour dispute, unavailability of transportation, goods or services, governmental restrictions or actions, passage of law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, war (declared or undeclared) or other hostilities, or by any other event, condition or cause which is not foreseeable and is beyond the reasonable control of the Party. In the event of non-performance or delay in performance attributable to any such causes, the period allowed for performance of the applicable obligation under the Agreement and these Terms and Conditions will be extended for a period equal to the period of the delay. However, the Party so delayed shall use its best efforts, without obligation to expend substantial amounts not otherwise required under the Agreement and these Terms and Conditions, to remove or overcome the cause of delay. In the event that the performance of a Party is delayed for more than six (6) months, the other Party shall have the right, which shall be exercisable for so long as the cause of such delay shall continue to exist, to terminate the Agreement and the contractual relationship under these Terms and Conditions without liability for such termination.
10. Audit and export laws
10.1 For the duration of the Agreement and for the period of one (1) year after the effective date of its termination, upon request by Provider but not more than once (1) per calendar year, the Customer shall conduct a self-audit of its use of the Software and, within ten (10) business days after a receipt of such request from the Provider, submit a written statement to the Provider verifying that it is in compliance with the Agreement and these Terms and Conditions. Such self-audit shall be in compliance with industry standards.
10.2 Further, the Provider shall also have the right, on its own or through its designated agent or third-party accounting firm, to conduct an audit of the Customer’s use and deployment of the Software to verify the compliance with the Agreement and these Terms and Conditions. The Provider shall submit a written request for audit to the Customer at least fifteen (15) days prior to the specified audit date, and such audit shall be conducted during regular business hours and with the goal of minimizing the disruption to the Customer’s business. If such audit discloses that Customer is not in material compliance with the terms of the Agreement and these Terms and Conditions, then the Customer shall be responsible for the reasonable costs of the audit, in addition to any other fees or damages to which the Provider may be entitled under the Agreement, these Terms and Conditions and applicable law.
10.3 The Customer agrees that the Software may be subject to international export control laws, including regulations under international treaties, US export control laws, including the US Export Control Reform Act and its associated regulations, and the regulations and sanction lists published by the European Union. The Customer agrees not to ship, transfer, or export the Software into any country, or use the Software in any manner, prohibited by the United States Bureau of Industry and Security or economic sanctions regulations administered by the U.S. Department of Treasury’s Office of Foreign Assets Control, or any applicable export laws, restrictions or regulations. These laws include restrictions on destinations, end users and end use. By concluding the Agreement and/or accepting these Terms and Conditions, the Customer confirms that it is not a resident or citizen of any country currently embargoed under applicable international sanctions and that it is not otherwise prohibited from receiving the Software. The Customer shall comply with all applicable laws and complete all required undertakings (including obtaining any necessary export licence or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available outside their country of residence.
11. Communication
11.1 The Provider may notify the Customer, with respect to the Software, by posting on the website, sending an email message to Customer’s email address or a letter via postal mail to Customer’s mailing address. Notices shall become effective immediately. The Provider may also contact the Customer by push notification to send any additional information about the Software, if the respective Software support such mean of communication.
11.2 For any question concerning these Terms and Conditions, the Customer may contact the Provider via the following contact information:
TESCAN GROUP, a.s.,
Libušina třída 863/21
Kohoutovice, Brno 623 00
Czech Republic
Phone: +420 530 353 411
Email: [email protected]
12. Final Provisions
12.1 If any provision of these Terms and Conditions is or becomes invalid, apparent or unenforceable, this shall not affect the validity and enforceability of the remaining provisions of these Terms and Conditions. The Provider undertakes and is unilaterally entitled, by the procedure for changing these Terms and Conditions according to the Article 12.3 hereof, to replace the invalid, apparent or unenforceable provision with a new provision, the wording of which will correspond to the intention expressed by the original provision and these Terms and Conditions as a whole.
12.2 If either Party overlooks or waives any default, breach, delay or default in any obligation under these Terms and Conditions, then such action shall not constitute a waiver of such obligation with respect to any continuing or subsequent non-performance, breach or default thereof, and no such waiver shall be deemed effective unless expressed in writing on a case-by-case basis.
12.3. The Parties hereby agree that the Provider is entitled to unilaterally change these Terms and Conditions from time to time to a reasonable extent. The Provider is obliged to inform the Customer about this change in an appropriate manner (e.g., by e-mail, pop-up window in the Software, notification on a website of the Provider etc.) at least fourteen (14) days before such changes take effect. In the event that the Customer does not agree with the unilateral change of these Terms and Conditions, the Customer is entitled to terminate the Agreement by a written notice delivered to the Provider within seven (7) days of the notification of the change to the Terms and Conditions, with a notice period of two (2) months, which begins on the first (1st) day of the month following the delivery of the notice to the Provider. If the proposal to amend these Terms and Conditions is not rejected by the Customer, the change to the Terms and Conditions becomes binding for the Customer. For the duration of the notice period, the original unchanged Terms and Conditions shall apply to the relationship of the Parties.
12.4. These Terms and Conditions shall be governed by and construed in accordance with the laws of the Czech Republic. The Parties hereby agree to the local jurisdiction of the Provider’s general court.