IMS MEASUREMENT SYSTEMS, a company incorporated and existing under the laws of the Republic of Slovenia, with its registered seat and office at Cesta Ljubljanske brigade 23a in Ljubljana, Slovenia, (hereinafter to be referred to as: “IMS”) hereby grants to the Customer, as specified in the Purchase Order, a license to use its Noise Guard Software under the following conditions:
Article 1: Definitions
1.1 Additional License: the right provided to Customer by IMS to install, load, run and use the Software on 1 additional server, provided that the Customer has already obtained a Main License and complies with the terms and conditions of this License Agreement.
1.2 Customer: the customer of IMS or its Reseller, which is specified in the Purchase Order, including its Users.
1.3 Documentation: the user documentation regarding the Software as provided by IMS.
1.4 First Level Support: the first line of support for the Customer, which entails providing answers to Customer’s questions regarding the use and functionality of the Software.
1.5 Intellectual Property Rights: All rights of intellectual property, such as but not limited to copyrights, database rights, trademark rights, know-how, patent rights.
1.6 License(s): the Main License and/or Additional License.
1.7 License Agreement: this end user license agreement, including the Purchase Order.
1.8 Main License: the right provided to Customer by IMS to install, load, run and use the Software on 1 computer (PC), subject to the terms and conditions stated in the License Agreement.
1.9 Purchase Order: the separate End user license order form which contains the necessary contact information of the Customer and contains the total number of acquired Additional Licenses and – if applicable – contact details of the relevant Reseller.
1.10 Reseller: an official reseller/distributor of IMS Software.
1.11 Second Level Support: support provided by IMS to the Reseller in case the Customer’s questions cannot be answered or resolved at First Level Support.
1.12 Software: the Noise Guard software developed by IMS, including the Documentation and all Updates and/or Upgrades of the Software.
1.13 Update: an improved version of the Software (for example version 1.0 to 1.1) in which a possible error has been resolved.
1.14 Upgrade: a new version of the Software, which contains a change in functionality or new functions (for example version 1.1 to 2.0) of the Software.
1.15 User: an end user of the Software.
Article 2: Grant of License and issuance of License
2.1 By using the Software, the Customer agrees to be bound by the terms of this License Agreement.
2.2 Subject to full compliance by Customer of the terms and conditions under this License Agreement IMS hereby grants to the Customer a non-exclusive and non-transferable License.
2.3 IMS has the right not to enter into a License Agreement with a potential Customer and reject a Purchase Order. IMS will inform such a Customer as soon as possible about such rejection, without being obliged to give any reason with respect thereto.
Article 3: Other License conditions
3.1 If the Customer wishes to use the software on more servers, the Customer can acquire Additional Licenses by submitting a Purchase Order to IMS or – if applicable – it’s Reseller in accordance with article 2.
3.2 The Customer may not distribute, sell, copy, transfer or in any other way lose control over the Software.
3.3 The Customer is entitled to make one (1) back-up copy of the Software. The use of the back-up copy is subject to the terms and conditions of the License Agreement. A back-up copy must have the same copyright designations as are present on the original version.
3.4 Customer is not entitled to make any changes to the Software or parts thereof. Customer furthermore is not allowed to reverse engineer or decompile the Software or parts thereof, except for those circumstances that are allowed under mandatory copyright law and under the condition that Customer has obtained prior written approval of IMS to do so. IMS is entitled to attach conditions to such approval.
Article 4: Price and payment
4.1 In return for the License(s) the Customer is obliged to pay the license fee to IMS as specified in the
Purchase Order, except when the Customer has acquired the License(s) through a Reseller. In such event
Customer shall pay the license fee agreed upon between him and the Reseller to the Reseller.
4.2 Customer shall pay the license fee to IMS/Reseller within 14 days after the date of invoice, except when otherwise agreed upon in writing.
4.3 All amounts due under this License Agreement may not be withheld or offset by Customer against amounts owed by IMS or Reseller to Customer for any reason. All fees payable to IMS or Reseller hereunder are non-refundable unless otherwise agreed to in writing between the parties.
4.4 All prices mentioned in the Purchase Order or otherwise are exclusive of turnover tax (VAT) and other levies imposed by the government.
Article 5: Maintenance, Updates and Upgrades
5.1 IMS shall exclusively maintain the latest (current) version of the Software to the best of its ability and do its utmost to correct possible errors by providing Updates. Furthermore, IMS may develop – as it sees fit and appropriate – Upgrades of the Software.
5.2 Updates for the version that has been purchased can be obtained by the Customer from IMS for free.
5.3 Upgrades are available at a certain price as specified on the Purchase Order or – in the event of a reseller – as specified by the reseller. In order for the Customer to obtain an Upgrade it will submit a signed new Purchase Order to IMS or – in the event of a Reseller – to the Reseller, in which case IMS will provide a new License to the Customer in accordance with article 2.
5.4 IMS and/or the Reseller will inform the Customer about Updates and/or Upgrades and in doing so use the provided (electronic) address information of the Customer.
Article 6: Support
6.1 IMS and its Resellers will provide Support to the Customer. In the event the License(s) have been acquired through a Reseller, the Customer is entitled to First Level Support from this Reseller. In all other cases Customer can obtain First and Second Level Support from IMS. In case an issue can’t be resolved at First Level Support, Customer will be referred to Second Level Support given by IMS.
6.2 Support is only provided for the latest version of the Software and all other versions of the Software released within the last twelve (12) months.
6.3 Although best efforts are made to resolve each issue, Support is provided “as is” and without any warranties. IMS or Reseller cannot guarantee that the provided answers are correct.
6.4 Support is provided during normal office hours of the Reseller and/or IMS by email.
Article 7: Intellectual Property and indemnification
7.1 All intellectual property rights to the Software and Documentation are held solely by IMS, its licensors or its suppliers. The Customer shall only acquire the rights of use expressly granted in this License Agreement and subject to the terms and conditions as stated in this License Agreement.
7.2 The Customer shall not be allowed to remove or modify any designation concerning copyrights, trademarks, business names or other intellectual or industrial property rights from the Software or Documentation.
7.3 IMS and/or its Reseller on behalf of IMS shall be allowed to take technical measures to protect the Software or with a view to agreed restrictions regarding the License. The Customer is not allowed to remove or evade such technical measures.
7.4 IMS shall indemnify the Customer against any third party claim stating that the Software, Documentation or other relevant materials developed by IMS infringe intellectual property rights of third parties, on the condition that Customer immediately informs IMS in writing about the existence and contents of such claim and will let IMS handle the matter completely, including but not limited to negotiating and agreeing to any settlements. In this respect Customer shall provide – at first request by IMS – all necessary powers of attorney, information and cooperation to IMS to defend – if necessary, in the Customer’s name – against such third-party claims. This indemnification obligation is not applicable in the event alleged infringement relates to changes to the Software, Documentation and other relevant material, which the Customer has made or caused third parties to make.
7.5 If it has been established in court as an incontrovertible fact that the Software, Documentation or other materials developed by IMS and provided to Customer infringe any intellectual property right held by a third party, IMS shall – at its sole discretion – (a) change the Software to the extent that it does not infringe such third party rights, (b) provide different software with similar functionality that does not infringe such third party rights, (c) at its expense acquire a license from such third party in order for the Customer to continue using the Software, (d) or provide any other reasonable solution to the Customer. Any further liability of IMS with respect to infringement of third-party rights is excluded.
Article 8: Term, termination and consequences of termination
8.1 This Agreement is entered into for an indefinite period of time starting from the date the Customer started using the Software. Both parties can terminate this agreement by written notice, taking into account a notice period of three (3) months.
8.2 IMS is allowed to terminate this Agreement with immediate effect in writing in the event:
a. The Customer becomes bankrupt or insolvent and/or if the business of Customer is placed in the hands of a receiver, assignee or trustee, whether by voluntary act of the Customer or otherwise; or
b. The Customer enters into liquidation or shall enter into an arrangement or composition with its creditors; or
c. The Customer fails to perform its obligations under this agreement.
8.3 Upon termination – on whatever grounds and for whatever cause – all rights granted to the Customer under this License Agreement will expire automatically and the Customer will be obliged to remove the Software from its computer(s). All fees paid by the (previous) Customer remain due and payable.
Article 9: Liability
9.1 Notwithstanding other conditions concerning IMS’s liability, IMS’s total liability for failing to perform its obligations under this License Agreement shall be limited to compensating direct damage, up to at most the license fee(s) paid by Customer for the License(s) (exclusive of VAT). The total compensation for direct damage shall not, however, in any case exceed EUR 10.000 (ten thousand euros). Direct damage solely entails:
a. Reasonable expenses which the Customer would have to incur to make IMS’s performance conform to the Agreement. This alternative damage shall not be compensated, however, if the agreement is rescinded by the Customer;
b. Reasonable expenses incurred to determine the cause and scope of the damage, insofar as the determination relates to direct damage within the meaning of this License Agreement;
c. Reasonable expenses incurred to prevent or mitigate damage, insofar as the Customer demonstrates that these expenses resulted in mitigation of direct damage within the meaning of this License Agreement.
9.2 IMS’s liability for consequential damage, consequential loss, lost profits, lost savings, loss of goodwill, damage through business interruptions, damage ensuing from claims by the Customer’s customers, mutilation or loss of data and all other forms of damage or injury not mentioned in this article is excluded.
9.3 IMS’s liability concerning an imputable failure to perform its obligations under this License Agreement shall in all cases only arise if Customer immediately and properly provides a written notice of default to IMS, with a reasonable time period for remedying the failure being given and IMS still imputably failing to perform its obligations after that period as well. The notice of default must contain a description of the breach, which is as complete and specific as possible, so that the Supplier can respond adequately.
9.4 For any right to damages to exist, the Customer must always report the damage or injury to IMS in writing as soon as possible after it occurs. Any claim for damages shall be extinguished by the mere lapse of twelve (12) months after the claim arises.
Article 10: Warranty
10.1 The Software, including Updates and Upgrades, is provided to Customer “as is”. IMS does not warrant that the Software, including Updates and Upgrades, shall operate without interruption, will be error-free or that it is fit for any particular purpose, or that errors or other defects shall be corrected in Updates and/or Upgrades.
Article 11: Miscellaneous
11.1 If any provision of the License Agreement shall be found to be invalid or unenforceable by any court or administrative body of competent jurisdiction, the invalidity or unenforceability of such provision shall not affect the other provisions of the License Agreement and all provisions not effected by such invalidity or unenforceability shall remain in full force and effect.
11.2 The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
11.3 This License Agreement constitutes the entire agreement between the parties. Additions or changes to this License Agreement shall only be binding on the parties if they have been agreed upon in writing by a separate (new) Purchase Order.
11.4 Customer shall not assign or purport to assign or transfer any of its rights or obligations under this License Agreement, without prior written consent of IMS. IMS is entitled to assign or purport to assign or transfer its rights and obligations under this License Agreement to any third party. The Customer agrees now for then to such assignment or transfer by IMS and will provide all necessary cooperation to IMS with respect thereto.
Article 12: Applicable law and jurisdiction
This License Agreement is governed exclusively by the laws of the Republic of Slovenia. The Vienna Sales Convention of 1980 does not apply. Any dispute between the parties arising from this License Agreement or in connection with further agreements that might result there from, shall be resolved by the competent court in Ljubljana, Slovenia.