Software License general
Terms & Conditions
Version Date: 29/3/2020
Definitions: In these General Terms and Conditions, the following terms shall have the meaning:
Approved Purpose – Fieldcode grants the Customer the right to access the Fieldcode products in accordance with these General Terms and Conditions for the Customer to connect, manage and control their service network with the help of the Fieldcode applications for internal business purposes only.
Confidential Information - the terms of these General Terms and Conditions and any information that is not public knowledge and that is obtained from the other Party in the course of, or in connection with, these General Terms and Conditions. Fieldcode’s Confidential Information includes the Software and the Documentation.
Documentation - the user and technical documentation designed to enable Customer to properly use and operate the Software (if any), and includes any update of the documentation.
Effective Date – the date on which Customer accepts these General Terms and Conditions and acquires the License.
End Date - the end date of the license term as set out in Individual Offer, if any.
Fees - the fees and costs for the License as per standard defined on the website or as agreed in an Individual Offer. Fees shall only apply after the Free Trial Period.
Free Trial – the free trial period is the defined period where no fees apply.
Force Majeure - an event that is beyond the reasonable control of a Party, excluding:
- an event to the extent that it could have been avoided by a Party taking reasonable steps or reasonable care; or
- a lack of funds for any reason.
Individual Offer – a specific agreement made with Customer containing the agreed fees for the License, payment terms and License term if specified. In case of conflict between the Individual Offer and these General Terms and Conditions, the Individual Offer shall prevail.
Intellectual Property Rights - includes copyright, and all rights existing anywhere in the world conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
License – license of the Software as described herein, received by Customer in line and after accepting these General Terms and Conditions.
Software Releases - improvements, new enhancements and features to the software applications worked on continuously by Fieldcode. Fieldcode will schedule planned software releases to make the improved version of the software available for the Customer.
Software - the applications that are provided by Fieldcode on a software-as-a-service (SaaS) basis. The software applications are consisting of a browser application in order to manage and dispatch tickets as well as a mobile application to deliver and report tickets.
A. Grant of licence: By accepting these General Terms and Conditions, Fieldcode grants to the Customer, and the Customer accepts, a non-exclusive and non-transferable and revocable licence to use the Software, and the Documentation solely for the Approved Purpose and in line with General terms and Conditions as stipulated herein. Customer may not modify or in any way make copies of such Software or create derivative works and may not translate, reverse engineer, disassemble or decompile the Software.
B. Support Services. During the License Period, Fieldcode shall perform Support Services on the Software, consisting of:
(a) Software Releases,
(b) Support via e-mail in case of any Software issues.
Any additional or extended Support Services, if any, shall be subject to and described in an Individual Offer.
C. Cooperation. Subject to Subsection 2(B) herein, Customer shall ensure that Fieldcode’s personnel are provided with such information under Customer’s control as is reasonably necessary to enable Fieldcode to comply with its obligations hereunder. In the event there are any issues with access to Software due to Software refreshing or updating in whole or in part, Customer shall be given a reasonable notice period in order to plan the software downtime due to the Software Release. If, after such opportunity, Customer fails or otherwise refuses to acquire such New Releases, Fieldcode shall be relieved of its support obligations stipulated herein. Customer’s sole remedy for Fieldcode’s material breach of its obligations set out in this Subsection 2(C) shall be to have Fieldcode re-perform the defective services so that they conform to the specifications provided herein.
A. The Customer must:
(a) use the Software and the Documentation for lawful purposes only and must not copy, reproduce, translate, decompile, reverse-engineer, resell, modify, vary, sub-license or otherwise deal in the Software or the Documentation except (i) as expressly provided for in these General Terms and Conditions; or (ii) to the extent expressly permitted by any law where that law or treaty cannot be excluded, restricted or modified by these General Terms and Conditions;
(b) ensure the Software and the Documentation are protected at all times from misuse, damage, destruction or any form of unauthorised use, copying or disclosure;
(c) maintain all proprietary notices on the Software and the Documentation;
(d) not transfer, assign or otherwise deal with or grant a security interest in the Software, the Documentation or the Customer’s rights under these General Terms and Conditions;
(e) not challenge Fieldcode’s ownership, or the validity, of the Software, the Documentation or any other item or material created or developed by or on behalf of Fieldcode under or in connection with these General Terms and Conditions (including the Intellectual Property Rights in those items); and
(f) notify Fieldcode in writing immediately after it becomes aware of any circumstance which may suggest that any person may have unauthorised knowledge, possession or use of the Software or the Documentation.
B. Fieldcode shall provide the Customer with the Support Services in accordance with Subsection 2(C) provided the Customer has:
(a) paid all Fees due;
(b) maintained a proper operating environment for the use of the Software in accordance with any guidance from Fieldcode, including in the Documentation; and
(c) complied with these General Terms and Conditions and the Documentation.
C. Ownership: All right, title and interest in and to the Software, and any copies and/or derivatives thereof and all documentation, code and logic, which describes and/or composes such Software or any such derivatives shall remain the sole and exclusive property of Fieldcode, and as stipulated herein, Customer shall not edit, reverse engineer, copy, emulate, create derivatives of, compile or decompile or otherwise edit, tamper or modify the Software in any way. In the event of any such editing, reverse engineering, copying, emulation, creation of derivative, compilation, de-compilation, editing, tampering or modification of the Software by Customer, Customer shall unconditionally assign and transfer any intellectual property created by any such non-permitted act to Fieldcode. Notwithstanding anything contained herein, any (i) Intellectual Property existing prior to the Effective Date of the License; and/or (ii) Intellectual Property developed independently of the License shall remain the property of its current owner.
A. Fees: Fees and Payment terms shall be applicable as defined in Section 1 of these General Terms and Conditions, as per standard described on the website and/or as agreed in an Individual Offer.
A. Fieldcode warrants that no Software is a subject of any claim or proceeding nor does it infringe any industrial or intellectual property rights of any third party. In case Customer becomes aware of any such potential infringement, it shall: (i) promptly notify Fieldcode in writing of any such infringement or infringement claims (hereinafter: “IP Claim”); (ii) make no admission of liability or prejudice or settle the IP Claim in any other way, without prior written approval of Fieldcode; and (iii) give Fieldcode complete and full authority to conduct or settle the dispute relating to such IP Claim, if any. For the avoidance of doubt, such responsibilities shall extend to Customer becoming aware of any unauthorised use of the Software and/or any potential infringement of Fieldcode’s Intellectual Property rights by a third party.
B. In the event of IP Claims made against Customer with respect to the Software, Fieldcode’s entire liability and Customer’s exclusive remedy shall be for Fieldcode to either: (i) substitute the infringing Software with the fully non-infringing one; or (ii) modify the Software so that it no longer infringes any intellectual property rights of third party while remaining functionally equivalent.
A. Except as expressly provided in these General Terms and Conditions, neither Party may use or disclose the other Party's Confidential Information, including, but not limited to all information applicable to these General Terms and Conditions, Software and Documentation as applicable herewith, any other information and procedures, documents, reports, data, records, forms and other materials of a confidential nature developed by one Party for the other Party or obtained or disclosed to such other Party in the course of License under these General Terms and Conditions. Customer shall comply with all requirements under these General Terms and Conditions with respect to the security procedures and protection of Fieldcode’s data. Any further claims for damages as well as the assertion of injunctive relief shall remain reserved.
B. Without limiting the generality of Subsection 6(A), either Party may use the other Party's Confidential Information solely in the performance of its obligations or rights provided under the terms of these General Terms and Conditions and disclose the other Party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of this Section 6.
C. Notwithstanding anything contained herein, Confidential Information shall not include any information or material that: (i) is already known to the receiving Party at the time of disclosure; (ii) is or becomes publicly known through no wrongful act or failure or receiving Party; (iii) is independently developed by the receiving Party without benefit of the other Party’s Confidential Information.
D. Subject to the Subsection 6(A), each Party may not disclose Confidential Information unless to the extent that it is required to be disclosed pursuant to a statutory or regulatory provision or court order.
E. This Section 6 shall survive termination or expiry of the License. Both Parties agree at the option of the other Party to return or to destroy Confidential Information of the other Party upon expiry/termination of the License, to the extent that such information still exists.
A. Each Party warrants that: (a) it has full authority and is entitled to enter into and perform its obligations under these General Terms and Conditions; (b) its performance under these General Terms and Conditions, including without limitation, the development, delivery and/or use of Software, does not and shall not violate (i) any applicable law, rule or regulation; (ii) any contracts with third parties; or (iii) any third-party rights in any patent, trademark, copyright, trade secret or any other proprietary or intellectual property right.
B. Fieldcode shall not be liable to remedy, repair, enhance or replace any defective Software or its part under Subsection 5(A) or 7(A) to the extent that the defect arises from or in connection with: (i) modification or alteration of the Software by any person other than Fieldcode; or (ii) a breach of these General Terms and Conditions by the Customer, including use of the Software by the Customer or its personnel in a manner or for a purpose not reasonably contemplated by these General Terms and Conditions or not authorised in writing by the Fieldcode.
C. Customer hereby agrees to indemnify, hold harmless and defend Fieldcode against any claims, liabilities, losses, expenses (including attorney’s fees and legal expenses related to such defense), fines, penalties, taxes or damages (collectively: “Liabilities”) to the extent such Liabilities arise out of or result from: (i) Customer’s negligence or fault in using the Software; (ii) Customer’s failure to follow the instructions set forth in the Documentation; (iii) material changes in the operating environment of the licensed Software not authorised by Fieldcode; or (iv) modifications to or changes in the Software made by Customer without consulting with Fieldcode.
D. FIELDCODE PROVIDES THE SOFTWARE TO THE CUSTOMER ON "AS IS" BASIS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY Fieldcode EMPLOYEE, REPRESENTATIVE OR DISTRIBUTOR WILL CREATE A WARRANTY FOR THE SOFTWARE, AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
A. Liability Period Limitation: Unless otherwise agreed in the Individual Offer with the Customer, Customer shall not have the right to make any claim against Fieldcode, under any circumstances, after a period of six (6) months from the date of the occurrence that the Customer would otherwise have sought to claim (hereinafter: Liability Period). For the avoidance of doubt, after the expiry of such Liability Period, Fieldcode shall not be held responsible for any liabilities arising out of the occurrence that the Customer would otherwise have sought to claim, whether in contract, tort (including negligence), breach of statutory duty or otherwise.
B. Exclusion of liability. IN NO EVENT SHALL Fieldcode BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING LOSS OF PROFITS), WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), EVEN IF Fieldcode HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. Neither Fieldcode nor its Affiliates make any warranty that access to any Software will be uninterrupted, secure, complete or error free.
C. Exclusion of Fieldcode’s liability described in Subsection 8(B) above, shall apply but not be limited to: (i) loss of profit, loss of revenue, loss of use or loss of contract howsoever arising, including out of any unplanned downtime or any other acts or omissions of Fieldcode; (ii) loss of data and/or use howsoever arising; (iii) any third party claims howsoever arising; or (iv) any damage caused by any computer viruses, worms, software bombs, trojans or other similar items that are not entirely and directly caused and introduced to Customer system by Fieldcode’s Software. For the avoidance of doubt, abovementioned shall be considered indirect damages for which Fieldcode shall not be held liable and any claim to otherwise will need to be proven by Customer.
D. None of the terms of this Section 8 shall apply to (i) indemnity and payment obligations of Customer set out in these General Terms and Conditions; (ii) personal injury or death.
A. Duration: Unless terminated under this Section 9, the License shall (i) commence on the Effective Date and continue for successive terms of twelve (12) months from the Effective Date unless a party gives at least thirty (30) days’ prior notice that the License and these General Terms and Conditions will terminate on the expiry of the then-current term. Notwithstanding anything contained herein, if Customer ceases to use the Software and does not submit any tickets in connection thereof for the period of six (6) consecutive months, the License shall be deemed terminated with an immediate effect. In such case, Fieldcode shall submit a notification to Customer with information of erasing Customer data and any related Confidential Information.
B. Termination rights. Either Party may, by notice to the other party, immediately terminate the License, if (i) the other Party commits a material breach of these General Terms and Conditions and fails to cure such breach within 30 day period after written notice is provided to the breaching Party; (ii) the other is adjudicated bankrupt, enters into liquidation or any arrangement or composition with or assignment for the benefit of its creditors.
C. Upon termination for whatsoever reason, if Customer has pre-paid any Fees in respect of License being terminated or cancelled, Fieldcode’s sole liability to Customer in respect of such termination shall be to refund the pre-paid Fees in respect of that License for the period following termination to the end of the Term. No such refund shall be required in event of termination for Customer’s breach of these General Terms and Conditions. Notwithstanding anything contained herein, on termination or expiry of the License, the Customer must pay all Fees for the rights and services provided prior to that termination or expiry.
A. Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, these General Terms and Conditions through good faith negotiations. Each party must, to the extent possible, continue to perform its obligations under these General Terms and Conditions even if there is a dispute.
B. This Section 10 does not affect Fieldcode’s right to seek urgent interlocutory and/or injunctive relief.
A. Force majeure. Neither party is liable to the other for any failure to perform its obligations under these General Terms and Conditions to the extent caused by Force Majeure, provided that the affected party (i) immediately notifies the other Party and provides full information about the Force Majeure; (ii) uses best efforts to overcome the Force Majeure; and (iii) continues to perform its obligations to the extent practicable. Such Force Majeure Event shall not extend to Customer’s payment obligations as set out herein.
B. Independent contractor. Fieldcode is an independent contractor of the Customer. No other relationship (e.g. joint venture, agency, trust or partnership) exists under these General Terms and Conditions.
C. Notices. A notice given by a Party under these General Terms and Conditions must be delivered to the other party via email to an email address notified by the other Party for this purpose.
D. Severability: If any provision of these General Terms and Conditions is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification under this Subsection 12(D) is not possible, the provision must be treated for all purposes as severed from these General Terms and Conditions without affecting the legality, enforceability or validity of the remaining provisions of these General Terms and Conditions.
E. Entire agreement: These General Terms and Conditions set out everything agreed by the Parties relating to the License and the Support Services and supersedes and cancels anything discussed, exchanged or agreed prior to the Effective Date. The Parties have not relied on any representation, warranty or agreement relating to the Software, License and the Support Services that is not expressly set out in these General Terms and Conditions, and no such representation, warranty or agreement has any effect from the Effective Date. Any Customer-specific variation, if any, to these General Terms and Conditions shall be included in Individual Offer.
F. No assignment. Customer may not assign, novate, subcontract or transfer any right or obligation under these General Terms and Conditions without the prior written consent of Fieldcode. Notwithstanding any assignment, subcontracting or any other transfer of rights and/or obligations, Customer shall remain solely liable for its obligations under these General Terms and Conditions. Any assignment, novation, subcontracting or transfer must be in writing. Any change of control of Customer is deemed to be an assignment for which Fieldcode’s prior written consent is required under this Subsection 11(F).
G. Customer hereby grants to Fieldcode the express right to use Customer's company logo in marketing, sales, financial, and public relations materials and other communications solely to identify Customer as an Fieldcode customer and to use it as a reference project by Fieldcode. Fieldcode hereby grants to Customer the express right to use Fieldcode’s logo solely to identify Fieldcode as a provider of services to Customer. Other than as expressly stated herein, neither party shall use the other party's marks, codes, drawings or specifications without the prior written permission of the other party.
H. Except as otherwise provided in these General Terms and Conditions and Individual Offer, Fieldcode may make changes to these General Terms and Conditions at its sole discretion. Changes shall be communicated by uploading amended General Terms and Conditions on Fieldcode website (at www.Fieldcode.com/) or by notifying them to Customer and Customer’s acceptance of and/or continued use of any Software after such notification of amended General Terms and Conditions is provided. Fieldcode reserves the right to require Customer to confirm these amended General Terms and Conditions following any material changes.