TDA SOFTWARE END-USER LICENSE AGREEMENT
Please read the following TDA Software End User License Agreement (the “Agreement”) carefully before installing, activating, accessing or using the software program accompanying this Agreement.
This Agreement governs your access to and use of Technica Del Arte B.V’s software program called “LUCI” (the “Software”). Clicking on the “I Accept” button here below, or in any other way installing, activating, accessing or using the Software, creates a legally binding agreement between you, the user (the “Licensee” or “You”) and Technica Del Arte B.V. (“TDA”) and constitutes acceptance of all terms and conditions of this Agreement.
YOU DECLARE YOU HAVE READ THIS AGREEMENT CAREFULLY AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THIS LICENSE AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SOFTWARE OFFERED BY TDA.
TDA reserves the sole right at any time to modify, discontinue or terminate the Software, or modify this Agreement without notice. All modified terms and/or conditions will be in effect after they are posted on TDA’s website. By continuing to use or access the Software after TDA makes any such modifications to this Agreement, You agree to be legally bound by the revised Agreement.
This Agreement was last updated on 6 March 2015.
1.1. “Authorized Reseller” means an authorized distributor, authorized reseller, or dealer of the Licensed Software, as appointed by TDA.
1.2. “Documentation” means the user guide help information and/or other documentation provided by TDA with the Licensed Products.
1.3. “Effective Date” means the day Licensee and/or User installs and activates the Software.
1.4. “Licensee” means the User, together with the business or other entity for which the Licensed Products are obtained.
1.5. “Licensed Products” means, collectively, the Software, and Updates, and all related Documentation.
1.6. “Software” means any TDA computer program called “LUCI” accompanying this Agreement.
1.7. “TDA” means Technica Del Arte B.V.
1.8. “User” means either Licensee (if Licensee is an individual) or any Licensee employee or contractor who is authorized by Licensee, in compliance with the terms of this Agreement, to use the Licensed Products. Licensee agrees to be responsible for the acts and omissions of its Users.
1.9. “Updates” means any updates and improvements of the Software, which TDA generally makes available to other licensees of the Software.
2.1. Grant of License. Subject to the terms and conditions of this Agreement TDA grants to Licensee during the Term a non-exclusive, non-transferable and non-sub-licensable right and license (the “License”) to have the User download, install, activate and use the Licensed Products. This Agreement constitutes a license for use only and is not in any way a transfer of ownership rights to the Licensed Products.
2.2. Limitations. The Licensed Products may only be used for Licensee’s internal business purposes, but not by more than the number of authorized Users for which all fees have been paid by or on behalf of Licensee. Unless TDA expressly permits a greater number, User (but not any other person) may install, activate and use the Licensed Products on one computer or device owned and/or controlled by the User, provided the same User is the primary user of the computer or device and does not share the License. User may physically transfer the Software from one computer or device to another provided that the Software is used on only one computer or device at any given time. Users may reinstall and reactivate the Software not more than twice per year during the Term, with the exception of Users operating the Software on iOS, which are allowed not more than five (5), reinstalls and reactivations per year during the Term.
2.3. Back-Up Copy. A single copy of the Software may be made for backup purposes only. Use of any copy of the Licensed Products shall otherwise comply with the terms and conditions in this Agreement.
2.4. License Control. Licensee acknowledges that the Licensed Products may contain code that detects or prevents unauthorized use of, or disables, the Licensed Products, and Licensee agrees not to circumvent or disable such code unless User is expressly authorized to do so by TDA.
2.5. Rights of TDA. TDA reserves the right, in its sole discretion, to modify, discontinue or terminate the Software and/or the Documentation. TDA reserves the right to refuse to provide the Licensed Products to You for any or no reason whatsoever.
3. LICENSEE’S DUTIES
3.1. Payments. Licensee shall pay (or cause to be paid to) TDA or its Authorized Reseller any and all initial and recurring fees for the Licensed Products, in the amounts and at the times agreed by TDA or its Authorized Reseller and Licensee during the purchase process.
3.2. Compliance with Laws. Licensee agrees to use the Licensed Products in compliance with all applicable laws, including local laws of the country or region in which Licensee resides or in which Licensee downloads or uses the Licensed Products.
3.3. Copyrighted materials. To the extent that the Software may be used to reproduce, modify, publish, transmit and distribute materials, it is licensed to Licensee only for reproduction, modification, transmission, publication and distribution of non-copyrighted materials, materials in which You own the copyright, or materials You are authorized or legally permitted to reproduce, modify, transmit, publish or distribute.
4. SUPPORT SERVICES & UPDATES
4.1. Support Services. During the Term TDA will use commercially reasonable efforts to provide Licensee with maintenance and support for the Licensed Products in accordance with its standard practices (as amended from time to time) (the “Support Services”). TDA shall have no obligation to support any version other than the then current and immediate prior version of the Licensed Products. Licensee agrees that TDA may charge in accordance with its then current policies for any support services resulting from (a) problems, errors or inquiries relating to any non-TDA-provided hardware, system, service or other content or software or (b) use of any unsupported version of the Licensed Products. You agree to address any support questions regarding the Licensed Products to TDA, and not to a third party.
4.2. Updates. During the Term, TDA will provide Licensee with any update of the Software that it makes generally available to its other licensees that have purchased similar Software and the same level of support.
4.3. Third Party Software. To the extent that the Software contains or provides access to any third party software or services, TDA has no express or implied obligation to provide any technical or other support for such software or services.
4.4. Defective Software. In the event the Software is defective through no fault or omission of the User, Licensee may contact TDA after which TDA will allow the Licensee to re-download, re-install and re-activate the Software free of charge.
5.1. Confidential Information. The term “Confidential Information” means all trade secrets, know-how, software and other financial, business or technical information of TDA (including the Licensed Products) or any of its Authorized Resellers or suppliers that is disclosed by or for TDA in relation to this Agreement, but not including any information Licensee can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any obligation to the TDA, (b) generally available to the public without breach of this Agreement or (c) independently developed by it without reliance on such information. The Licensed Products are TDA’s Confidential Information.
5.2. Confidentiality. Except for the specific rights granted by this Agreement, Licensee shall not possess, use or disclose any Confidential Information without TDA’s prior written consent, and shall use reasonable care to protect the Confidential Information. Licensee shall be responsible for any breach of confidentiality by its employees.
6. PROPRIETARY RIGHTS
6.1. Restrictions. Except and only to the extent expressly specified in this Agreement, Licensee shall not (a) use any Confidential Information to create any software, content or documentation that is similar to any Licensed Product, (b) disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying structures, ideas or algorithms of the Licensed Products or enable others to do so (c) encumber, lease, rent, loan, sublicense, transfer or (re)distribute any Licensed Product, (d) copy (except for the creation of a back-up copy, subject to Licensee’s retention of any and all proprietary rights markings on the Licensed Product), adapt, merge, create derivative works of, translate, localize, port or otherwise modify any Licensed Product, (e) permit any third party to engage in any of the foregoing proscribed acts. Licensee shall not use the Licensed Products for the benefit of any third party without TDA’s prior written consent.
6.2. No Implied License. Except for the limited rights and license expressly granted hereunder, no other license is granted, no other use is permitted and TDA (and its suppliers) shall retain all right, title and interest in and to the Licensed Products (and all patent rights, copyright rights, trade secret rights, distribution rights and all other intellectual property and proprietary rights embodied therein).
6.3. Markings. Licensee shall not alter, obscure or remove any trademark, patent notice or other proprietary or legal notice displayed by or contained in any Licensed Products.
7. WARRANTY DISCLAIMERS
THE LICENSED PRODUCTS AND SUPPORT SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TDA DOES NOT WARRANT THAT THE LICENSED PRODUCTS OR SUPPORT SERVICES WILL MEET LICENSEE’S REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, TDA HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS AND ITS AUTHORIZED RESELLERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE LICENSED PRODUCTS AND SUPPORT SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. No oral or written information or advise given by TDA, its employees, its suppliers and its Authorized Resellers shall create a warranty or in any way increase the scope of this warranty.
8. LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL TDA (OR ITS SUPPLIERS AND ITS AUTHORIZED RESELLERS) BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA OR INFORMATION, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED PRODUCTS OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE LICENSED PRODUCTS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF TDA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall TDA’s total liability to Licensee for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount paid to TDA for the Licensed Products that gave rise to the claim during the prior six (6) month period.
9. TERM AND TERMINATION
9.1. Term. This Agreement shall commence on the Effective Date and continue in effect until terminated as provided herein (the “Term”).
9.2. Termination. Licensee may terminate this Agreement and the License at any time by destroying all copies of the Licensed Products. Licensee’s rights under this Agreement will terminate immediately without notice from TDA if Licensee fails to comply with any provision of this Agreement.
9.3. Effects of Termination. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, any payment obligation) and any remedies for breach of this Agreement shall survive any termination, (b) Licensee shall promptly return or destroy all of the Licensed Products and other tangible Confidential Information, and permanently erase all Confidential Information from any computer and storage media and (c) the provisions of Sections 3.1, 5, 6, 7, 8, 9.3 and 10 shall survive termination of this Agreement.
10.1. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Netherlands. The appropriate courts in Maastricht, the Netherlands, shall have exclusive jurisdiction.
10.2. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of the Agreement shall continue in full force and effect.
10.3. Assignment. Neither Party may assign this Agreement, nor any of its rights and/or responsibilities under this Agreement, without the prior written consent of the other Party, except that either Party may assign its respective rights and/or responsibilities under this Agreement to a subsidiary or other entity controlled or under the common control of such assigning Party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of each Party’s permitted successors and assigns.
10.4. Waiver. The failure of a Party to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision.
10.5. Entire Agreement. This Agreement constitutes the entire agreement between TDA and You with respect to the subject matter hereof.
10.6. Amendments. TDA reserves the rights to modify and/or amend this Agreement at any time without notice to You. All modified and/or amended terms and/or conditions will be in effect after they are posted on TDA’s website. By continuing to use or access the Software after TDA makes any such modifications and/or amendments to this Agreement, You agree to be legally bound by the revised Agreement.
10.7. Addition clauses for Licensees downloading the Software from the iTunes Store.
Licensees downloading the Software from the iTunes Store;
a) acknowledge that this Agreement in concluded between You and TDA, and not with Apple;
b) acknowledge that TDA is solely responsible for providing any maintenance and support services with respect to the Licensed Products and Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Products;
c) acknowledge that in the event of any failure of the Licensed Products to conform to any applicable warranty, You may notify Apple and Apple will refund the purchase price for the Licensed Products and Apple will have no other warranty obligation whatsoever with respect to the Licensed Products;
d) represent and warrant that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties; and
e) acknowledge and agree that Apple (and Apple’s subsidiaries) are third party beneficiaries of this Agreement, and that, upon acceptance by You of the terms and conditions of this Agreement, Apple will have the right to enforce this Agreement against any User of the Software as a third party beneficiary.
If You have any questions, complaints or claims with respect to this End User License Agreement or the Licensed Products please contact us at:
Technica Del Arte
6224 GT Maastricht
Phone: + 31 (0) 43 321 94 99
□ You acknowledge that You have read this TDA Software End-User License Agreement, understand it, and agree to be bound by its terms and conditions.