TCM® OCULAR LICENSE AGREEMENT
IMPORTANT! READ CAREFULLY: THIS IS A LEGAL AGREEMENT. BY DOWNLOADING, INSTALLING, COPYING, SAVING ON YOUR COMPUTER, OR OTHERWISE USING THIS SOFTWARE, YOU (LICENSEE, AS DEFINED BELOW) ARE BECOMING A PARTY TO THIS AGREEMENT AND YOU ARE CONSENTING TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD NOT DOWNLOAD, INSTALL AND USE THE SOFTWARE. IN CASE YOU HAVE SPECIFIC SOFTWARE AGREEMENTS COVERING THE USE OF TCM® OCULAR WITH GRAM & JUHL A/S YOU CAN IGNORE THIS DOCUMENT.
(a)“Licensor” means Gram & Juhl A/S, having its principal place of business at Soendergaard Alle 14, DK-6500 Vojens, Denmark, Company Registration number CVR DK19863271.
(b)“Licensee” means the legal entity specified in the License Certificate, exercising rights under, and complying with all of the terms of, this Agreement. “Licensee” includes any entity, which controls is controlled by, or is under common control with Licensee. For purposes of this definition, “control” means (a) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (b) ownership of fifty percent (50%) or more of the outstanding shares or beneficial ownership of such entity.
(a)“Authorized User” means any employee, independent contractor or other temporary worker authorized by Licensee to use Software while performing duties within the scope of their employment or assignment.
(b)“Client” means a computer device used by Authorized User for running the Software.
(c)“Floating License” means a license that enables Licensee to use specific functionality in the Software by a single Authorized User at a time per Server. Only Licensor are permitted to produce License Keys.
(d)”One License” means a license that enables Licensee to use specific functionality in the Software by one Authorized User. Only Licensor are permitted to produce License Keys.
(e) Use of TCM® Ocular functionality is governed by licenses. These licenses are either “Floating License”’s or one or more “One License”’s.
As examples, but not limited to:
- i) The basic functionality in TCM® Ocular is included with the TCM® Site Server license bundled with any TCM® M-System and includes a “One License” for an unlimited number of Authorized users.
- ii) TCM® Ocular PRO and TCM® Ocular Blue Print licenses, are “Floating License”’s.
iii) Plugins may fall in both categories.
The license type for a specific license will be stated in its description.
(f)“License Certificate” means evidence of a license provided by Licensor to Licensee in electronic or printed form, e.g. a License Key file.
(g) Licenses are in general perpetual unless otherwise stated, but some licenses may require a maintained software subscription to be functional.
(h)“Server Computer” means a central computer device dedicated by Licensee to run License Server.
(i)“Software” means the software program known as TCM® Ocular including its documentation and upgrades provided pursuant to Section 9 of this Agreement.
(a)All software is the property of Licensor. Software is licensed, not sold. Title and copyrights to Software, in whole and in part and all copies thereof, and all modifications, enhancements, derivatives and other alterations of Software regardless of who made any modifications, if any, are, and will remain, the sole and exclusive property of Licensor.
(b)Software is protected by Denmark Copyright Law and International Treaty provisions. Further, the structure, organization, and code embodied in Software are the valuable and confidential trade secrets of Licensor and are protected by intellectual property laws and treaties. Licensee agrees to abide by the copyright law and all other applicable laws of the Denmark including, but not limited to, export control laws.
- GRANT OF LICENSE
Subject to the terms, conditions, and limitations set forth in this Agreement, including any amendments thereto, Licensor hereby grants to Licensee a limited, non-exclusive, non-transferable license to use the Software as follows:
(i) install and use the licensed edition (if applicable) and version of Software specified in License Certificate on any number of Clients and on any operating system supported by the Software;
(ii) access the Software from Clients and run Software concurrently by the number of Authorized Users corresponding with the total number of purchased Floating Licenses; and
(iii) make one backup copy of Software for archival purposes.
(b)Licensee may not:
(i) sell, redistribute encumber, give, lend, rent, lease, sublicense, or otherwise transfer Software, or any portions of Software (except as set forth in Paragraph 4 (a) (iii)), to anyone without the prior written consent of Licensor;
(ii) reverse-engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of Software, or create derivative works from Software; or
(iii) run Software by a number of concurrent Authorized Users exceeding the number of purchased Floating Licenses.
(iv) use the software in an unintended way e.g., but not limited to, use its interfaces, import and or export functions in a machine to machine communication with third party software, programs, databases etc. which are not a part of TCM.
- REDISTRIBUTABLE FILES (e.g. tcmx and tcmz)
(a)In addition to the license granted under Section 4 of this Agreement, Licensor grants to Licensee a non-exclusive, limited, royalty-free license to reproduce and distribute certain files produced by TCM® Ocular provided that:
(i) Licensee will distribute Redistributable Files as complete.
(b)REDISTRIBUTABLE FILES ARE PROVIDED BY LICENSOR “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(a)Licensor will notify registered Licensees when generally available upgrades, including bug fixes and minor improvements, are available for download. Major upgrades are available for Licensee when and only when the Licensee subscribes to software upgrades for the TCM®, please contact Licensor for more information.
(b)If not agreed otherwise in writing between Licensor and Licensee, upon upgrading to new version of Software the relationship between parties shall be governed by these licenses terms.
- LIMITED WARRANTY
SOFTWARE IS PROVIDED TO LICENSEE “AS IS” AND WITHOUT WARRANTIES. LICENSOR MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR AND ITS AFFILIATES, SUPPLIERS AND RESELLERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES.
- DISCLAIMER OF DAMAGES
(a)TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, LICENSORS, SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE UNDER ANY THEORY FOR ANY DAMAGES SUFFERED BY LICENSEE OR ANY USER OF SOFTWARE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SIMILAR DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF THE USE OR INABILITY TO USE SOFTWARE, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(b)IN ANY CASE, LICENSOR’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE FOR SOFTWARE UNDER THIS AGREEMENT.
- EXPORT REGULATIONS
Licensee agrees and accepts that Software may be subject to import and export laws of any country, including those of the European Union and United States (specifically the Export Administration Regulations (EAR)). Licensee acknowledges that it is not a citizen, national, or resident of, and is not under control of the governments of Cuba, Iran, North Korea, Sudan or Syria and is not otherwise a restricted end-user as defined by applicable export control laws. Further, Licensee acknowledges that it will not download or otherwise export or re-export Software or any related technical data directly or indirectly to the above-mentioned countries or to citizens, nationals, or residents of those countries, or to any other restricted end user or for any restricted end-use.
- TERMS AND TERMINATION
(a)Except as otherwise provided in License Certificate, the license granted herein shall be perpetual.
(b)If Licensee fails to comply with the terms and conditions of this Agreement, Gram & Juhl A/S may terminate this Agreement and Licensee’s right and license to use Software. Licensee may terminate this Agreement at any time by notifying Gram & Juhl A/S. Upon the termination of this Agreement, Licensee must delete Software from its computers and archives. LICENSEE AGREES THAT UPON TERMINATION OF THIS AGREEMENT FOR ANY REASON, LICENSOR MAY TAKE ACTIONS SO THAT SOFTWARE NO LONGER OPERATES.
Licensee agrees to be identified as a customer of Licensor and that Licensor may refer to Licensee by name, trade name and trademark, if applicable, and may briefly describe Licensee’s business in Licensor’s marketing materials, on Licensor’s web site, in public or legal documents. Licensee hereby grants Licensor a license to use Licensee’s name and any of Licensee’s trade names and trademarks solely pursuant to this marketing section.
(a)Licensor reserves the right at any time to cease the support of Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of Software.
(b)This Agreement constitutes the entire agreement between the parties concerning Licensee’s use of Software, and supersedes any and all prior or contemporaneous oral or written representations, communications, or advertising with respect to Software. No purchase order, other ordering document or any hand written or typewritten text which purports to modify or supplement the printed text of this Agreement or any schedule will add to or vary the terms of this Agreement unless signed by both Licensee and Licensor.
(c)A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach. The provisions of this Agreement, which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination.
(d)This Agreement will be governed by the laws of Denmark, without reference to conflict of laws principles. Licensee agrees that any litigation relating to this Agreement may only be brought in, and shall be subject to the jurisdiction of, any Court of Denmark.
(e)Titles are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect. Either Licensor or Licensee may assign this Agreement in the case of a merger or sale of substantially all of its respective assets to another entity. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and assigns.
Gram & Juhl will not act as data controller/responsible for customer and will as data processor only handle non sensitive personal information.
For exceptions or modifications to this Agreement, please contact Gram & Juhl A/S at:
Address: Soendergaard Allé 14, DK-6500 Vojens, Denmark
Tel: +45 7020 2169