The following license terms and conditions are applicable to the licensing of the software licensed by IFACTO FOOD SOLUTIONS NV, having its registered offices at Veldkant 35b, 2550 Kontich, Belgium, registered under company registration number 0848.622.613 (“iFacto” or “Licensor”).
BEFORE COMPLETING THE PROFILE INFORMATION, YOU SHOULD CAREFULLY READ THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT.
BY COMPLETING THE PROFILE INFORMATION YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT AND AGREE TO BECOME A LICENSEE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT YOU SHOULD CANCEL THE REGISTRATION PROCESS.
1. DEFINITIONS
“Installation” shall mean the installation of the Software by copying, transmitting or downloading it on a computer (or other device) for the processing of the system instructions or statements contained in the Software and subsequent integration in the online ERP solution of Microsoft;
“EULA” means this End User License Agreement, including the Specific Terms accompanying the License;
“Internal Use” means use of the Software for Licensee’s internal business purposes and within Licensee’s organisation only, excluding any commercial use.
“Software” means the software licensed to the Licensee in accordance with the terms and conditions of this EULA;
“Specific Terms” are specific (performance) modalities of the License accepted by Licensee (e.g. in the offer, purchase order or statement of work), forming an integral part of this EULA;
“Documentation” means written documentation (factsheets, training material, …), video, image files and any associated information related to the Software;
“Regulation (EU) 2016/679” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
2. LICENSE GRANT
Upon acceptance of this EULA, Licensor shall immediately grant you (“Licensee”) a limited, non-exclusive, non-transferrable and non-sublicensable license to use the Software and any and all accompanying Documentation for Internal Use purposes only in accordance with the terms and conditions of this EULA.
3. LICENSEE’S OBLIGATIONS
3.1. By accepting this EULA, Licensee hereby undertakes:
i. Not to disassemble, decompile, or otherwise reverse-engineer the Software;
ii. Not to install and Use the Software on more than 1 production database per environment and 3 sandbox databases per environment;
iii. To ensure that employees, agents and other parties under your control who will use the Software do so in accordance with the terms and conditions of this EULA and are accordingly notified of the same;
iv. To reproduce and include any and all copyright notices of Licensor as they appear in or on the Software and any and all copies thereof;
v. Not to permit or facilitate the use of the Software in any manner which would constitute a breach of the terms and conditions of this EULA;
vi. Not to place or distribute the Software on any website, ftp server or similar location without the express prior written consent of the Licensor;
vii. Not to use the Software for any illegal activities or in support of illegal activities;
viii. Not to use the Software for any purpose which may be deemed immoral, irresponsible, offensive, threatening, abusive or otherwise harmful;
ix. To provide technological and security measures to ensure that the Software is physically and electronically secure from unauthorized use or access;
x. Not to copy, translate, reproduce, duplicate, adapt, edit, change in any way the Software and/or reproduce the results thereof;
xi. Not to provide access to, transfer, distribute, sell, further commercialize or sub-license the Software to third parties.
3.2. The Licensee shall at all times be responsible and liable for any abuse of his account(s). The Licensee shall take all necessary steps to prevent that unauthorized third parties gain access to its/her account(s).
3.3. The Licensee shall ensure:
– That the password to access the account(s) shall remain secret;
– That sufficient security measures are taken to prevent any abuse the account(s) by third parties
– That the password and the access to the account(s) are not shared with others.
4. LICENSE FEE AND PAYMENT
4.1. As consideration of Licensor for providing the license defined in Article 2 of this EULA, Licensee agrees to pay Licensor the license fee as agreed upon between Licensee and Licensor in the Specific Terms.
4.2. The license fees are exclusive of VAT.
4.3. Payment terms and modalities for the license fee are defined the Specific Terms.
5. OWNERSHIP AND INTELLECTUAL PROPERTY
5.1 Nothing in this EULA shall be construed as an assignment or otherwise transfer any intellectual property rights from Licensor to the Licensee. Licensor retains ownership of the Software and the Documentation, all subsequent copies of the Software and all intellectual property rights subsisting therein, regardless of the form in which such copies may exist.
5.2 The Software is licensed: this EULA only gives Licensee the right to use the Software and the Documentation as specified in the license grant set forth in Article 2; Licensor reserves all other rights. The modalities of the license granted to Licensee are defined in the Specific Terms. More specifically, the Specific Terms shall define whether a perpetual license is granted (in case of the on-premise solution) or whether a license limited in time is granted but renewable (in case of cloud).
5.3 In the event that a third party would file a claim against the Licensee due to a deliberate infringement of its intellectual property rights by Licensor, Licensor may at its own expense either (i) defend the Licensee against such claim and safeguard him from the damages and costs assigned by the court to the third party, or (ii) enter into a settlement with the third party regarding the raised dispute. The aforementioned obligation shall apply if and insofar:
– The Licensee has informed the Licensor in writing within 10 calendar days after the Licensee has received the claim, or earlier if required by law, and;
– The Licensor has exclusive control over the defense or settlement of such claim, and;
– The Licensee assists the Licensor and cooperates with Licensor upon simple request and at the expense of Licensor in order to defend or settle such claim.
If the Software infringes the intellectual property rights of third parties, or at the opinion of Licensor, may infringe this, Licensor may at its choice and at its own expense choose to:
– Replace or change the Software (hereby largely maintaining the user possibilities or functionalities) so that there would be no more infringement, or;
– Obtain the right on behalf of the Licensee to continue the use, or;
– Accept the return of the Software and to refund the payments made by the Licensee after deduction of a reasonable compensation for the period that the Licensee made use of the Software.
The Licensee accepts and acknowledges that the scheme as mentioned here above contains the exhaustive remedy for both Parties in relation to an infringement of intellectual property rights and/or the damages resulting thereof.
6. WARRANTY
6.1. The Software is commercially licensed software. It is not open-source, freeware or shareware.
6.2. Subject to the limitations and exclusions of liability below, Licensor warrants that the Software will materially conform with the Documentation and with any specifications or descriptions provided by Licensor.
6.3. Subject to art. 6.2, the Software and Documentation are provided on an `as is’ and ‘as available’ basis, without any warranty of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and/or use, title and non-infringement.
6.4. Although the Software and the Documentation are compounded with great care, Licensor cannot guarantee the Software and/or the Documentation will operate with no interruptions, errors or defects or that all errors and defects will always be fixed. The Licensee is solely responsible for all costs and expenses associated with the rectification, repair or damage caused by such errors.
6.5. Licensor shall not be liable if the Software fails to operate in accordance with the limited warranty set out in this EULA as a result of any modification, variation or addition to the Software not performed by Licensor or caused by any abuse, corruption or incorrect use of the Software, including use of the Software with equipment or other software which is incompatible.
7. LIMITATION OF LIABILITY AND INDEMNIFICATION
7.1. Under no circumstances shall Licensor be liable for:
i. any indirect, consequential, or incidental damages or arising out of the use of the Software, even if Licensor has been advised of the possibility of such damages or claim;
ii. compensation of any direct and indirect damages caused in whole or in part by software or hardware supplied or created by third parties, or any other element introduced into Licensee’s business after Installing or use of the Software.
7.2. In any case, Licensor’s entire liability for proven direct damages resulting from attributable failure under any provision of this EULA shall:
(i) be limited to the license fees actually paid by the Licensee for the use of the Software in case of a license for Licensor’s cloud-based (SaaS) solution (as defined in the Specific Terms); or
(ii) be limited to the maximum of the value of the license fees invoiced over a period of twelve (12) months prior to the date of the damage-causing event occurred in case of a license for Licensor’s on-premise solution (defined in the Specific Terms).
7.3. Nothing in this EULA shall limit or exclude Licensor’s liability for death or personal injury arising out of Licensor’s negligence nor for fraudulent misrepresentation.
7.4. Licensee shall indemnify and hold Licensor harmless for:
i. any and all claims, damages, expenses and costs arising out of or in connection with the Licensee’s use of the Software and;
ii. Licensee’s breach of the terms and conditions of this EULA.
8. DATA PROTECTION
Licensor has no responsibility for the accuracy, quality, integrity, legality or reliability of any data, information or other materials Licensee submits to the system through Licensee’s use or access of the Software. When processing any Personal Data (as defined in Regulation (EU) 2016/679 or any superseding legislation) through or to the Software, Licensee shall at all times comply with the applicable data protection regulations.
9. TERM AND TERMINATION
9.1. The term and the start date of the license are defined in the Specific Terms.
9.2. Licensor may terminate this EULA and deny access to the Software immediately if Licensee fails to comply with of the terms and conditions of this EULA provided that Licensee has not rectified such failure within five (5) business days after being notified of default invoked by the Licensor.
9.3. The Licensor may, at its sole discretion, suspend the EULA and the Software if:
– The Software is being attacked or a third party utilises the Software without the permission of the Licensee and/or Licensor, or damages or seeks to damage this;
– There are specific circumstances whereby the Licensor is forced to suspend certain Services to protect the Software and/or accounts of other users.
9.4. If this license is terminated, the Licensee will stop using the Software and Documentation including any copies in whatever form.
9.5. In the event of termination of the license, the Licensee will have access to the Software for a maximum of one (1) week to remove and/or transfer the material/data from the Software. After this period, the Licensor will completely remove any remaining materials/data. In such a case the Licensor cannot be held liable for any loss of materials/data or for the damage resulting therefrom.
9.6. All provisions of this EULA which are expressly marked to survive the termination or expiration of the Agreement, as well as all provisions of the EULA which aim to enforce or execute the EULA after the termination or expiration of the Agreement, including without limitation accrued rights to payment, use restrictions, confidentiality obligations and limitations of liability shall survive the Agreement and remain in full force.
10. GOVERNING LAW AND DISPUTE RESOLUTION
10.1 This EULA shall be constructed in accordance with the laws of Belgium.
10.2 Each party irrevocably agrees that the courts of the judicial district of Antwerp shall have exclusive jurisdiction to resolve any dispute, controversy or claim arising out of or in connection with this EULA.
11. GENERAL
11.1. The nullity of any provision or part of a provision under this Agreement will in no way affect the validity of the remaining portion of the Agreement. By mutual agreement, the parties will make every effort to replace the invalid clause with a valid one with the same, or largely the same, economic impact as the invalid clause had.
11.2. If one of the parties does not use their right, or are delayed in using their right or remedy provided by this EULA or by law, that failure, neglect or delay will not be construed as a waiver of that specific or any other right or remedy for the specific party nor in any way affect the validity off the whole or part of this EULA nor prejudice that party’s right to take subsequent action.
12.3. This EULA constitutes the complete and exclusive statement of the EULA between Licensor and Licensee with respect to the subject matter of this EULA and supersedes all proposals, representations, understandings and prior agreements, whether oral or written, and all other communications between Licensor and Licensee relating to that subject matter.
Any questions concerning this EULA or the Software should be directed to iFacto. Contact details are available from https://ifacto.food/nl/contact .