End user agreement for SoSure Business Backup
End user license agreement - Business - Commercial use only March 2008
1.1 This end user license agreement (“Agreement”) is a legal agreement between you (“Licensee”) and SoSure A/S, Nattergalevej 6, DK-2400 Copenhagen NV, Denmark (“Licensor”).
1.2 This Agreement sets out the terms and conditions applicable to Licensee’s exploitation of the content storage services (“Content Storage Services”) that is made available under this Agreement which Content Storage Services shall comprise the following elements (i) the content storage software program SoSure Backup (“Content Storage Software”), (ii) the content storage capacity up to the maximum purchased by Licensee (“Content Storage Capacity”) and (iii) which may further include media, printed materials, electronic documentation and information and/or online Internet based information pertaining hereto (collectively “Content Storage Materials”).
1.3 The Content Storage Services is made available by Licensor via the Internet for the purpose of allowing Licensee to store any kind of content including information, pictures, motion pictures, sound recordings etc. in electronic format (“Content”) subject to the terms and conditions of this Agreement.
1.4 Licensee agrees to be bound by the terms and conditions of this Agreement by installing, copying or otherwise use the Content Storage Software. If Licensee does not agree, Licensee is not allowed to install, copy, use or otherwise exploit the Content Storage Services in any manner.
2. Grant of License
2.1 Subject to Licensee’ acceptance of and compliance with the terms and conditions of this Agreement, including without limitation the obligations to complete the user registration and pay the license fees to Licensor, Licensor hereby grants Licensee a limited, personal, non-exclusive, non-perpetual, and non-transferable right to install and use the Storage Service solely for the purpose of enabling Licensee to access and use the Content Storage Services for Licensee’s own internal business operations only.
2.2 Except as expressly stated in clause 2.1, Licensee is not granted any rights whether directly or indirectly to access, use or otherwise exploit the Content Storage Services in any manner. All rights not expressly granted are reserved by Licensor.
3. Restrictions and limitations
3.1 Licensee is not entitled to reverse-engineer, disassemble or decompile the Storage Service Software or in any other way attempt to investigate, tamper with and/or discover the source code and/or the structural framework and/or the principles on which the Content Storage Services and/or the Content Storage Software is based except as otherwise expressly permitted under mandatory applicable law.
3.2 Licensee is not entitled to copy, distribute, make available, sub-license, rent, lend or otherwise dispose of the Content Storage Services except as otherwise expressly set out in this Agreement.
3.3 Licensee is not entitled to alter, modify or otherwise change the Content Storage Services made available under this Agreement and Licensee shall thus only be entitled to access and use the Content Storage Services in the form as made available by Licensor.
3.4 Licensee is not entitled to exploit the Content Storage Services for the purpose of accessing or attempting to access any third party content or in any other manner exploit or attempt to exploit the Content Storage Services in a manner not intended pursuant to this Agreement.
3.5 The Licensee is not entitled to change or remove any marks and notices concerning copyright, patents, trademarks or other rights placed on, applied to or otherwise implemented in the Content Storage Services.
3.6 Licensee is obligated to ensure that Licensee has obtained all necessary rights and/or title to any and all Content prior to any storage of such Content using the Content Storage Services. Without limiting the generality of the aforesaid, Licensee may under no circumstance store any Content in violation of (i) any third party intellectual property rights and/or (ii) any applicable legislation. The Licensor is entitled to delete any Content that in the sole discretion of Licensor constitutes a breach of the aforesaid undertaking by Licensee and Licensee shall not be entitled to any compensation in that respect.
3.7 Licensee is obligated to act in accordance with any instructions and requests from Licensor that Licensee shall delete Content stored by Licensee using the Content Storage Services.
4. Upgrade, support and maintenance services
4.1 Licensor undertakes no obligations to provide any upgrades, support and/or maintenance services to Licensee under this Agreement. Licensee acknowledges and accepts that it is the sole responsibility of Licensee to investigate and assess the Content Storage Services in order to ensure that the Content Storage Services (i) can operate and function in conjunction with Licensee‘s IT systems and needs including without limitation Licensee’s hardware and software and (ii) may be accessed and used by Licensee in such a way that no risk of damage on Licensee’s IT systems, business or business operations may occur.
4.2 Licensor’s sole obligation under this Agreement is to make available the Content Storage Services via the Internet. Licensor undertakes no obligations or liability with respect to the provision of telecommunication lines, Internet subscriptions or connections or any other technical means necessary for Licensee to access and use the Content Storage Services as made available via the Internet and any and all costs and risks in this respect shall thus remain solely with Licensee.
4.3 Notwithstanding clause 4.1 Licensor may in Licensor’s sole discretion decide to make available upgrades, patches, fixes or the like in connection with the Content Storage Services to Licensee and Licensee shall upon notification by Licensor to Licensee be obligated to implement and use such upgrades, patches, fixes or the like.
5. Intellectual Property Rights
5.1 The Content Storage Services is protected by copyright laws and international copyright treaties and other applicable legislation on proprietary rights and intellectual property rights.
5.2 Licensor and/or third party vendors are the sole proprietors and own and retain any and all intellectual property rights including without limitation copyrights, patent rights, trademark rights, know-how etc. in and to the Content Storage Services.
5.3 Notwithstanding anything to the contrary in this clause 5, Licensee shall retain all title and interest in and to the Content and shall thus remain solely responsible for the Content stored using the Content Storage Services.
6. Licensee’ Feedback
6.1 Licensee may provide Licensor with feedback based on Licensee’s experiences obtained using the Content Storage Services which feedback may include without limitation information concerning usability, bug reports, test results, errors, user applicability, user friendliness etc. (“Feedback”).
6.2 Licensee agrees that Licensor may free of charge and without any restrictions, obligations or conditions use improve, develop, modify, alter, disclose, reproduce, make available license, sub-license, transfer, distribute, market, sell and in any other manner exploit the Feedback for whatever purpose deemed appropriate by Licensor whether in connection with a subsequent commercial release of the Content Storage Services or in connection with any other software, product, technology or other service made available now or in the future in connection with Licensor’s business operations.
6.3 If Licensee’s Feedback includes material subject to intellectual property right protection, Licensee hereby transfers free of charge, irrevocably, perpetually and globally any and all intellectual property rights and proprietary rights vested in such Feedback to Licensor. Licensor is entitled without limitation or any obligation to pay any royalties to Licensee or any third party to improve, develop, modify, alter, disclose, reproduce, make available license, sub-license, transfer, distribute, market, sell and in any other manner exploit such intellectual property rights vested in the Feedback for whatever purpose deemed appropriate by Licensor whether in connection with a subsequent commercial release of the Content Storage Services or in connection with any other software, product, technology or other service made available now or in the future in connection with Licensor’s business operations. Licensor owns any and all rights to any derivative works created by Licensor based in whole or in part on such Feedback. If Licensee’s rights to the Feedback are not capable of being transferred under applicable mandatory law, Licensee irrevocably and unconditionally waives all enforcement rights with regard to these rights. Sections 54, 55 and 56 of the Danish Copyright Act are expressly derogated from by this Agreement and do thus not apply.
7. Registration and sign up procedures
7.1 The right for Licensee to access and use the Content Storage Services according to this Agreement is in addition to Licensee compliance with the other terms and conditions of this Agreement conditional upon Licensee performing the initial online registration in accordance with the guidelines set out by the Licensor (which registration procedures and guidelines may be amended from time to time by Licensor in Licensor’s sole discretion).
7.2 Licensor will upon Licensee’s correct and satisfactory initial registration, sign up and execution and return of this Agreement signed on behalf of Licensee provide Licensee with a user name and password which will enable Licensee to access and use the Content Storage Services via the Internet.
8. License Fee
8.1 This Agreement is subject to Licensee’s payment of the applicable license fees.
8.2 Licensee shall pay to Licensor the license fees on a monthly basis in advance as long as this Agreement is effective and in force pursuant to the terms and conditions set forth by Licensor at Licensor’s website or as otherwise communicated to Licensee.
8.3 Licensor is entitled in Licensor’s sole discretion to increase the license fees payable and/or the terms and conditions applicable to payment of license fees with at least six (6) months prior written notice to Licensee. In the event that Licensee does not agree to such increase of the license fees and/or the terms and conditions applicable to payment of the license fees the sole remedy of Licensee shall be to terminate this Agreement in accordance with section 12.1.
8.4 In no event shall Licensee be entitled to claim any refund of any license fees already paid or accrued.
9.1 The Licensee shall promptly notify Licensor in writing in the event that Licensee becomes aware of (i) any breach or alleged breach of this Agreement and/or (ii) of any claim or alleged claim concerning infringement third party intellectual property rights from any third party pertaining to Licensee’s use of the Content Storage Services including without limitation claims or alleged claims that Content stored by Licensee using the Content Storage Services infringes any third party intellectual property rights and/or (iii) any breach of any applicable legislation in connection with Licensee’s use of the Content Storage Services.
9.2 The Licensee shall compensate, defend and indemnify Licensor from and against any claims, damages and losses to the extent that such claims, damages or losses are a result of (i) Licensee’s breach of this Agreement, (ii) any breach of any third party’s intellectual property rights and/or (iii) any breach of any applicable legislation. The aforesaid indemnification shall apply irrespective of whether claims, damages and/or losses are awarded by a court or agreed between Licensor and a third party.
10. Disclaimer of warranties
10.1 Licensor disclaims any and all warranties, representations and conditions, whether express, implied or statutory, including without limitation any warranties, duties or conditions of or related to merchantability, fitness for a particular purpose, lack of viruses, accuracy or completeness of responses, results, quiet enjoyment, correspondence to description, non-infringement, workmanlike effort and lack of negligence with respect to the Content Storage Services and the entire risk related to the aforesaid matters shall thus remain solely with Licensee.
10.2 The limitations and exclusions set out in this clause 10 shall apply to the maximum extent permitted by applicable law.
11. Limitation and exclusion of Liability
11.1 The liability of either party shall be subject to the ordinary rules of Danish law, save for the exceptions and limitations as expressly set out in this Agreement.
11.2 Notwithstanding 11.1, Licensor shall not be liable towards Licensee or any third party for any direct, indirect, punitive or other damages or losses including, without limitation, damages for loss of profits, business interruption, loss of data/Content or the restoration hereof (except as expressly set out in clause 11.3 below), product liability or personal injury arising out of the use of or inability to use the Content Storage Services. The aforesaid exclusions and limitations shall apply irrespective of whether such damages or losses are caused by acts or omissions by Licensor attributable to Licensor as negligent (including both gross and simple negligence) or incidental.
11.3 As regards loss of data/Content the sole liability of Licensor shall be - to the extent commercially reasonably - to attempt to restore any lost data/Content based on the most recent back-up copy available. Any and all liability for data/Content irreversible lost irrespective of Licensor’s commercially reasonable efforts to restore such data/Content shall be limited in accordance with clause 11.4.
11.4 In addition to the exclusions and limitations of liability set forth in clause 10 and this section 11 of this Agreement, the entire liability of Licensor (and irrespective of the basis of such liability) to pay any damages, compensation or any other amounts during the term of this Agreement shall be limited and capped to an aggregate amount equal to the total aggregate license fee actually paid by Licensee to Licensor for the provision of the Content Storage Services during the preceding twelve (12) months prior to the act or omission that the liability arises from.
11.5 The limitations and exclusions set out in this clause 11 shall apply to the maximum extent permitted by applicable law.
12. Term and Termination
12.1 This Agreement shall come into force and be effective as of the date of Licensee’s installation for the first time of the Content Storage Software licensed pursuant to this Agreement (“Effective Date”) and shall continue in full force and effect until terminated by either party in accordance with this section 12.
12.2 Either party may terminate this Agreement for convenience with at least three (3) months prior written notice to the commencement date of any twelve (12) months renewal term.
12.3 In the event of the either party’s material breach of this Agreement the other party is entitled to terminate this Agreement with immediate effect. Without limiting the generality of the foregoing (i) any failure by Licensee to pay any license fees due and/or (ii) any failure by License to comply with the terms and conditions of this Agreement shall be deemed a material breach of this Agreement by the Licensee entitling Licensor to terminate this Agreement for breach with immediate effect.
12.4 Notwithstanding anything to the contrary set out in section 12.1 and 12.2, respectively, if Licensee has acquired a trial license only for the Content Storage Services, this Agreement shall cease automatically and without notice thirty (30) days following the date of Licensee’s installation of Content Storage Software for the first time.
12.5 Upon termination of this Agreement and irrespective of the reason for such termination, Licensee shall immediately (i) cease to use the Content Storage Services and (ii) Licensor shall be entitled to delete any and all Content stored at the date of expiration of this Agreement and it shall thus remain the sole responsibility of Licensee to ensure that any Content stored is removed by Licensee prior to expiration of this Agreement. Licensee acknowledges and agrees that Licensor in the event of termination of this Agreement for whatsoever reason is entitled to delete Licensee as user.
13.1 Licensor is entitled to use the name of Licensee as trade references in connection with Licensor’s future development, marketing, licensing and sales of the Content Storage Services and/or any future commercial release of any software based on or derived from the Content Storage Services.
13.2 This Agreement constitutes the entire, full and complete agreement between Licensee and Licensor concerning the subject matter hereof and supersede any and all prior agreements whether oral or in writing. Representations by Licensor, whether oral, in writing, electronic or otherwise, that are not expressly set forth or referred to in this Agreement shall not be binding upon Licensor and does not constitute part of this Agreement.
13.3 Licensee shall not be entitled to assign this Agreement or any of Licensee’s rights or obligations under this Agreement to any third party without the prior written consent of Licensor. Licensor shall not be entitled to assign this Agreement or any of Licensor’s rights or obligations under this Agreement to any third party without the prior written consent of Licensee except that Licensor may assign this Agreement to (i) a company affiliated with Licensor or (ii) an unaffiliated third party to the extent that such assignment takes place in connection with a restructuring, divestiture, merger, acquisition or the like without the consent of Licensee.
13.4 A party shall not be liable for non-performance of its obligations (other than failure to pay any amounts due) in the event that a situation arises beyond its reasonable control including failure or breakdown of telecommunications networks and lines, regulations by government authorities, lock-outs, strikes, infrastructure breakdowns, natural disasters, epidemics, pandemics, acts of terrorism, fires, floods, storms, fire storms, sabotage, vandalism, damages caused by computer virus, hacking, war, civil wars, riots, nuclear disaster etc. which such party did not take into account prior to the execution of this Agreement unless the other party (except if performance is de facto impossible) agrees to compensate the affected party for any additional costs incurred as a consequence of a situation beyond such party’s reasonable control.
13.5 This Agreement shall be governed by and construed in accordance with Danish law however excluding (i) any rules concerning choice of law and (ii) the UN Convention on Contracts for the International Sale of Goods (“CISG”), which shall not apply. Any disputes arising from this Agreement shall be subject to the jurisdiction of the ordinary Danish courts.
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