InfraSight Labs AB, General Terms, 2022-05-05
1. The Parties
These general terms ( “General Terms”) are applicable to the license agreement (“Licensing Agreement”) that has been made by and between:
InfraSight Labs AB, a company limited by shares incorporated in Sweden under company registration number 556801-6314, (“InfraSight Labs”), with registered address at Anckargripsgatan 3, 21119 Malmö, Sweden; and a Licensee, (“Licensee”) , an individual or an entity (including subsidiaries).
The Licensee may be further described in the invoice (“Invoice”) and/or in the Purchase Order (“Purchase Order”) issued by InfraSight Labs or by an authorized reseller (“Reseller”). The Invoice is based on the information set out in the Licensee’s or authorized Reseller’s purchase order.
Each a “Party” and collectively the “Parties”.
2. Contents Of The Licensing Agreement
- The Licensing Agreement between the Parties consists of the terms and conditions set out in(i) the Purchase Order,
(ii) The Invoice,
(iii) any special terms agreed in writing between the Parties, or(iv) these General Terms. In the event of conflicting terms, the documents shall prevail in the above order.
- If no Purchase Order or Invoice is issued by InfraSight Labs, and no special terms agreed in writing between the Parties exist, these General Terms constitute the full Licensing Agreement.
3. Grant of License
- The licensed program (“Licensed Program”) consist of the software program vScope, or any later version, module or parts thereof provided by InfraSight Labs under the Licensing Agreement.
- The license period (“License Period”) is the duration of, and the license fee (“License Fee”) is the charge for the subscription of the Licensed Program as set forth in the Invoice.
- InfraSight Labs hereby grants to the Licensee, and the Licensee hereby accepts a time-limited, non-exclusive, non-transferable between installations, and non-assignable license to use the Licensed Program, and data that the Licensed Program produces.
- The Licensee shall not use the Licensed Program in violation of the terms and conditions provided in the Licensing Agreement. Without limiting any additional right hereunder, InfraSight Labs has the right to invoke all terms and conditions provided in the Licensing Agreement upon delivery of the Licensed Program and until the Licensed Program has been deleted from Licensee’s server.
- The Licensee undertakes not to let any third party use any part of the Licensed Program; make unauthorized computed use of data produced by the Licensed Program; perform or allow decompilation or dissemblance to an extent which exceeds what is permitted by law; or alter, copy or in any other way dispose the Licensed Program to an extent that exceeds what is permitted by law.
- The Licensee shall make sufficient precautions to prevent any third party from committing any of the actions listed in the clause above.
4. Intellectual Property Rights
- All patents, patent applications, including with respect to patents and patent rights granted upon any reissue, division, continuation or continuation-in-part applications now or hereafter filed, utility models issued or pending, registered and unregistered design rights, copyrights, registered and unregistered trademarks, trade secrets and proprietary know-how and any other similar statutory intellectual property or industrial rights, as well as applications for any such rights regarding the Licensed Program, any part of such Program, any development of the Licensed Program or to any other product InfraSight Labs provides to the Licensee, are owned or licensed by InfraSight Labs.
- The Intellectual Property Rights to the Licensed Program shall at all times be owned by and vested in InfraSight Labs, and no ownership rights to the Licensed Program or any further development of the Licensed Program, shall, under any circumstances, be transferred to the Licensee.
- The Licensee will get access to the Licensed Program through an executable file downloaded or offered as a service from InfraSight Labs web page or other web page authorized by InfraSight Labs on the Internet, or other distribution channel authorized by InfraSight Labs. Licensee is permitted to access the Licensed Program and/or run the executable file only during the License Period and only on the designated server. The license is not transferable to any third party.
- Delivery of the Licensed Program has occurred when the Licensed Program has been installed on the designated server, or otherwise when the Licensed Program has become accessible for the Licensee, or when InfraSight Labs has made the license available to Licensee, e.g. through the licensing portal at https://account.vscope.net.
- The Licensee is fully responsible for having and maintaining sufficient hardware, software, Internet connection and other enabling technology in order to be able to run and/or access the Licensed Program properly during the License Period.
6. Warranties and remedies
- The Licensed Program is under continuous development and delivered “as is”. InfraSight Labs’ liability is limited to the provisions in the Licensing Agreement. No claims may be brought against InfraSight Labs, except where InfraSight Labs has been guilty of gross negligence or willful misconduct.
- InfraSight Labs will defend the Licensee against any claim brought against the Licensee by a third party alleging that the Licensed Program infringes such third party’s copyright, trademark, or makes unlawful use of such third party’s trade secret and will indemnify the Licensee against any damages awarded by a court of competent jurisdiction, or agreed in a settlement approved by InfraSight Labs, arising out of such claim. In the event that the Licensee has a suit or proceedings brought against it, the Licensee shall: (i) notify InfraSight Labs with five (5) working days in writing of any claim, suit or proceeding; (ii) allow InfraSight Labs to settle the claim and/or control the defence of any suit or proceedings; and (iii) provide reasonable assistance (at InfraSight Labs’ expense) to settle the claim or control the defence of any suit or proceeding.
- In the event that the Licensed Program, or any part thereof, is held to constitute an infringement and/or its further use, distribution or other disposal is prohibited or restricted, InfraSight Labs shall, at its own expense and at its option, either: (i) procure the licenses necessary for the Licensee to exercise the rights and licenses granted hereunder, (ii) replace the infringing Licensed Program with non-infringing software or material of equivalent function and performance to the satisfaction of the Licensee, (iii) modify the Licensed Program so that it becomes non-infringing, without materially detracting from function or performance, or (iv) terminate the Licensing Agreement and repay the fees pre-paid for the Licensed Program with a reduction for the time-period during which the Licensee has used the Licensed Program.
- The Licensee will defend InfraSight Labs against any claim arising from Licensee’s use of the Licensed Program in an unlawful manner or in violation of the Agreement or any end user license agreement and will indemnify InfraSight Labs and its affiliates from any damages awarded by a court of competent jurisdiction, or agreed in a settlement approved by the Licensee, arising out of such claim. In the event InfraSight Labs has a suit or proceedings brought against it, InfraSight Labs shall: (i) notify the Licensee without undue delay in writing of any claim, suit or proceeding; (ii) allow the Licensee to settle the claim and/or control the defence of any suit or proceedings; and (iii) provide reasonable assistance (at Licensee’s expense) to settle the claim or control the defence of any suit or proceeding.
- InfraSight Labs shall not be liable to the Licensee for infringement claims based on the fact that the Licensed Program has been modified, used, operated or combined by the Licensee in a manner, to an extent or during a time period for which license was not granted.
- The remedies set forth in this section 6 shall be the Licensee’s exclusive remedy with regard to infringement claims.
- InfraSight Labs’ liability with regards to infringement shall never exceed the limitation of liability set forth in section 7.
7. Limitations of liability
- InfraSight Labs shall not be liable to the other party for any direct, indirect or other consequential damage or loss, including but not limited to loss of profit, loss or alteration of data, costs for recreation of lost or altered data, or damages payable to third parties.
- InfraSight Labs’ aggregated maximum liability to Licensee under the Licensing Agreement shall be limited to the License Fee paid to InfraSight Labs during the last six (6) months.
8. Fees and payment
- The following provisions are applicable only if Licensee purchase access to the Licensed Program directly from InfraSight Labs. If Licensee purchase access to the Licensed Program through an authorized Reseller, the payment terms are set forth in the agreement with that Reseller.
- In consideration of the rights granted to the Licensed Program, Licensee shall pay the applicable License Fees as set out in the Invoice and/or the Purchase Order.
- InfraSight Labs reserve the right to adjust prices at any time. Adjusted price will be applied from the renewal of the Licensed Period.
- During the Licensed Period, InfraSight Labs shall be eligible to charge the License Fee starting from the date on which the Licensing Agreement is signed or electronically accepted, unless otherwise agreed. Any delay caused by the Licensee, shall not affect the right for InfraSight Labs to charge the agreed License Fees.
- Licensee is fully responsible for maintaining an updated online account profile with InfraSight Labs containing full company and invoicing details. An incomplete or faulty profile shall not affect the right for InfraSight Labs to charge the agreed License Fees.
- Payment of the License Fee shall be made in advance of the License Period for which the license is valid and with the continuity set forth in the Invoice.
- Any complaints regarding the Invoice shall be submitted in writing not later than five (5) days from the Licensee’s receipt of the Invoice. If payment is not made in due time, InfraSight Labs is entitled to charge penalty interest after the due date, in accordance with law.
9. Data Processing Contract
- For the purposes of Article 26 of Regulation (EU) 2016/679, these General Terms constitute the data processing contract between the Licensee as the Data Controller and InfraSight Labs as the Data Processor. The Licensee hereby instructs InfraSight Labs to process data as described in these General Terms.
- The subject matter and nature of processing. InfraSight Labs provides an online backup service where the Licensee, as a Data Controller, can store Backup Data (“Backup Data”) from the Licensed Program, if activated by the Licensee. To prevent and/or address technical problems and/or further develop the Licensed Program, InfraSight Labs may from time-to-time process Support Data (“Support Data”) from the Licensed Program, as agreed with the Licensee.
- Duration. InfraSight Labs will store Backup Data from the Licensed Program until maximum six (6) months after the termination or expiry of the Licensing Agreement in accordance with these General Terms. Support Data from the Licensed Program will be deleted latest six (6) months after a service or technical problem or for further development of the Licensed Program, for which the data from the Licensed Program was processed, has been resolved.
- Parties’ rights and obligations. The Licensee’s rights and obligations are provided in sections 2, 5 and 8 through 13 of these General Terms. InfraSight Labs, as the Data Processor, ensures that any personnel authorized to process personal data is subject to confidentiality obligations with respect to the personal data. The undertaking to confidentiality shall continue after the termination of the above-entitled activities.
InfraSight Labs takes all measures required pursuant to Article 32 of Regulation (EU) 2016/679. InfraSight Labs undertakes to make available to the controller all information necessary to demonstrate compliance with their obligations and to allow for and contribute to audits, including inspections, conducted or mandated by the Licensee as the Data Controller.
10. Personal Data
- If Licensee makes any data from the Licensed Program available to InfraSight Labs, and this data contains Personal Data (“Personal Data”), meaning files and any other digital data and information, including, but not limited to, specific users of the Licensed Program and personally identifiable information, such Personal Data and any processing of such Personal Data must be in compliance with these General Terms and applicable law. All rights, title and interest in and to the Personal Data belong to the Licensee. By uploading Personal Data from the Licensed Program or associated services to InfraSight Labs, Licensee authorizes InfraSight Labs to process this data, in accordance with Section 9. The Licensee is responsible for ensuring that:(i). The Licensee and any of the users associated with the Licensed Program and associated services do not create, transmit, display or make otherwise available any Personal Data that violates the terms of these General Terms, the rights of InfraSight Labs, other licensees or users, persons or organizations.(ii). The Licensee and all of the users associated with the Licensed Program and associated services have the necessary rights to use the Personal Data and process it.
- The Licensee, is entirely responsible for all Personal Data uploaded from the Licensed Program and associated services and processed by InfraSight Labs.
- InfraSight Labs as the Data Processor (“Data Processor”) will assist the Licensee as the Data Controller (“Data Controller”) in meeting the Licensee’s obligations under Regulation (EU) 2016/679, providing subject access, and allowing data subjects to exercise their rights under the same regulation.
- InfraSight Labs may disclose a Licensee’s confidential information to the extent compelled by law to do so.
- InfraSight Labs will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data. Those safeguards shall include, but shall not be limited to, measures for preventing access, use, modification or disclosure of Personal Data by InfraSight Labs’ personnel except to provide the Licensed Program and associated services and prevent or address service or technical problems, as compelled by law and in accordance with Section 9, or as a Licensee permits in writing.
- InfraSight Labs as the Processor shall notify the Licensee as the Controller without undue delay after it becomes aware of any Personal Data breach, affecting any Personal Data. InfraSight Labs shall without undue delay provide the Licensee as the Data Controller all reasonable assistance to enable the Controller to notify relevant personal data breaches to authorities and/or affected data subjects, if Data Controller is required to do so by law.
- By agreeing to these General Terms, the Licensee grants InfraSight Labs, as the Processor a general authorization to engage sub-processors. For the purposes of providing the services described in Section 9.2, Licensee consents to the engagement of the sub-processors listed below. If InfraSight Labs, as the Data Processor, intends to instruct new sub-processors, InfraSight Labs shall inform the Licensee of changes in such processors in accordance with the procedure of modifying these General Terms as stipulated in section 15.2 and 15.3 of these General Terms.
List of sub-processors:
- All information, whether oral or written or in visual, electronic or tangible form, regarding or otherwise relating to a Party, any of its affiliates or to any of its/their affairs or other business matters, which has been disclosed or may be disclosed to the other Party (the “Receiving Party”), or which the Receiving Party has or may otherwise become aware of in connection with the preparation, negotiation, entry into or performance of the Licensing Agreement, shall during the term of the Licensing Agreement and for a period of five (5) years after its termination or expiry for whatever reason be kept strictly confidential by the Receiving Party and not be used by it for any other purpose than the performance or enforcement of the Licensing Agreement nor be disclosed by it to any third party without the prior written consent of the other Party.
- The restrictions in this section shall not apply to information (i.-vi.):
(i). to the extent reasonably necessary to be used or disclosed by the Receiving Party in order for it to secure its interests against the other Party in connection with a dispute, controversy or claim arising out of or in connection with the Licensing Agreement or to otherwise enforce its rights under the Licensing Agreement;(ii). that was at the time of its disclosure, or which becomes thereafter generally available to the public otherwise than as a consequence of a breach by the Licensing Agreement;(iii). that was obtained by the Receiving Party in good faith without restriction from a third party;(iv). it is independently developed by the Receiving Party through its own verifiable activities without the use of disclosing party’s Confidential Information;
(v). it is rightfully obtained from a third party having no obligations of confidentiality to the disclosing party, or
(vi). that the Receiving Party is required to disclose by law or any governmental or other regulatory authority or by any applicable contract or regulations of any applicable stock exchange or other market place.
The Party using or disclosing any information or documentations with reference to any of these exceptions bears the burden of proof to establish that the relevant exception applies.
For the purpose of providing support services to the Licensee, as well as for development, education, gathering of statistics or marketing of the Licensed Program or other services, Licensee permits InfraSight Labs and/or its affiliates, for as long as the Licensed Program is installed on the designated server, to control, alter and update the Licensed Program remotely, as well as collect and use data generated therefrom.
Without prejudice to the foregoing, this section shall not apply regarding InfraSight Labs right of referring to the Licensee as a customer to InfraSight Labs in public.
12. Force Majeure
- Either Party shall be entitled to suspend performance of its obligations under the Licensing Agreement to the extent that such performance is impeded or made unreasonably onerous by any circumstances beyond the Parties’ control, including, but not limited to; general labor disturbances, such as boycott, strike and lockout, fire, war, whether declared or not, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power and defects or delays in deliveries by subcontractors caused by any such circumstances referred to in this section.
- The Party claiming to be affected by force majeure shall notify the other Party in writing without delay on the intervention and on the cessation of such circumstance.
- Regardless of what may otherwise follow from this Licensing Agreement, the Party not affected by force majeure shall be entitled to terminate the Licensing Agreement by notice in writing to the other Party if performance is suspended by force majeure for a continuing period of more than three (3) months.
13. Terms and termination
- If not agreed otherwise between the parties, the term of the Licensing Agreement shall come into force the first date of when the Licensee has accepted the General Terms on either InfraSight Labs’ web site or in the Licensed Program when installed on the designated server and shall remain in full force and effect for the entire License Period, if not terminated in accordance with the provisions of the Licensing Agreement.
- At the end of the License Period, should it be three months or longer, or any subsequent term thereof pursuant to a renewal under this section, the Licensing Agreement shall be automatically renewed for as long time as the original License Period, unless terminated or changed by either of the Parties giving written notice to that effect to the other Party not later than:(i). one (1) month prior to the expiry of the relevant term if the License Period is three months, or(ii) three (3) months prior to the expiry of the relevant term if the License Period is longer than three (3) months.
- Each party is entitled to terminate the Licensing Agreement if the other Party should commit or permit a breach or non-performance of material importance to the other Party and should fail to remedy such breach or non-performance within sixty (60) days after receipt of written notice.
- Furthermore, InfraSight Labs shall be entitled to immediately terminate the Licensing Agreement (or part thereof) if:
(i). The Licensee or an authorized Reseller is delayed more than thirty (30) days with the payment of the License Fee and/or other costs (as applicable);(ii). The Licensee or any of its affiliated companies engage in a business activity which is competing with the business of InfraSight Labs;(iii). Material changes in the ownership control of the Licensee or if any agreement is concluded under which the Licensee’s business is transferred to a competitor of InfraSight Labs;(iv). The Licensee or any of its affiliated companies institute legal action against InfraSight Labs; or
(v). No Invoice issued by InfraSight Labs, or no special terms agreed in writing between the Parties exists that sets out a specific License Period.
- Without prejudice to any remedy it may have against the other Party for breach or non-performance under the Licensing Agreement, either Party shall have the right to terminate the Licensing Agreement immediately by giving the other Party notice in writing or electronically from the vScope account pages if the other Party should enter into liquidation, either voluntary or compulsory, or become insolvent or enter into composition or corporate reorganization proceedings or if execution be levied on any goods and effects of the other Party or the other Party should enter into receivership. Such notice of termination shall be given without undue delay after the circumstance constituting the breach was or should have been known to the aggrieved Party.
14. Effects of Termination
- At the termination or expiry of the Licensing Agreement, regardless of the reason for which the Licensing Agreement is terminated, shall:
(i). The Licensee’s right to use and access to the Licensed Program immediately expire;(ii). The Licensee or an authorized Reseller immediately pay all outstanding debts to InfraSight Labs; and(iii). The Licensee immediately completely remove the Licensed Program from the designated server including all files related to the Licensed Program from its domains, and return all material and documents provided by InfraSight Labs regarding the Licensed Program to InfraSight Labs. The Licensee hereby also undertakes that upon termination of the Licensing Agreement erase and delete all information, data produced by the Licensed Program or such like, regarding the Licensed Program.
- The Licensing Agreement constitutes the entire agreement between InfraSight Labs and the Licensee relating to the subject matter hereof and supersedes and cancels any and all previous or collateral agreements, negotiations, commitments, representations or understandings between the parties, with respect to the Licensing Agreement and the subject-matter hereof.
- InfraSight Labs reserves the right, at its sole discretion, to change, modify, add, or remove portions of these General Terms at any time by posting such changes on or through the Licensed Program and/or InfraSight Labs website and/or account pages and/or through e-mail. Such amended General Terms will automatically be effective thirty (30) days from posting of such modified General Terms as described above.
- If the Licensee does not agree with a modification of the General Terms, the Licensee shall notify InfraSight Labs in writing within thirty (30) days after receiving notice of modification. If Licensee gives InfraSight Labs this notice, such changes shall not affect the Licensee until after the valid License Period has expired or from the time of renewal of the License Period.
- In the event that any provision of the Licensing Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render the Licensing Agreement unenforceable or invalid as a whole.
- Any dispute, controversy or claim arising out of or in connection with the Licensing Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce for expedited arbitration procedure.
- The arbitration proceeding shall be conducted in the Swedish language and take place in Malmö. The Licensing Agreement shall be governed by Swedish law.
- All arbitral proceedings conducted pursuant to section 16, all information disclosed and all documents submitted or issued by or on behalf of any of the disputing Parties or the arbitrators in any such proceedings as well as all decisions and awards made or declared in the course of any such proceedings shall be kept strictly confidential and may not be used for any other purpose than these proceedings or the enforcement of any such decision or award nor be disclosed to any third party without the prior written consent of the Party to which the information relates or, as regards to a decision or award, the prior written consent of all the other disputing Parties.