End User License Agreement
These licensing conditions shall form an essential part of the agreement concluded between the Customer and Nexetic, and shall be appended thereto.
The purpose of the licensing conditions is to specify the program licensed by Nexetic to the Customer, and user rights to associated services.
A Customer using software protected by Nexetic copyright, or services provided by Nexetic, without signing a separate sale agreement pertaining thereto, shall thereby become bound by these licensing conditions and liable for charges reckoned under the Nexetic price list that is current at the time of said use.
Even if the seller of the program or service is a party other than Nexetic, a licensing agreement shall always arise between the Customer and Nexetic, and the Customer shall be directly liable to Nexetic for use in accordance with the said licensing agreement.
The following terms used in this agreement shall be defined as stipulated below:
The Licensor: NEXETIC, enterprise ID FI21753319, domiciled in Espoo (Finland).
The Customer: a party to the Sale Agreement that confers the user rights referred to in these licensing conditions.
The Sale Agreement: The Customer’s agreement, drawn up with Nexetic or with a Nexetic reseller, with respect to use of the software governed by these licensing conditions. If no sale agreement has been drawn up, then the term Sale Agreement shall, in applicable respects, denote the electronic purchasing form or some other document that gives rise to contractual ties.
Instructions for Use: the instructions for using the program in their current form. The Instructions for Use will be available on the Nexetic website.
Bug: any deviation from the documented features of the program that substantially restricts its use.
Inoperability: the cessation of operation of some service, either in whole or in part, and/or a Bug in some service function.
2. Scope of user rights
The Licensor grants to the Customer the user rights specified in this clause 2. These user rights shall not be exclusive, and the Licensor shall reserve and retain all intellectual property rights to the licensed products and services. The Customer shall only enjoy the user rights to the licensed programs and services specified in the Sale Agreement that are expressly granted in these licensing conditions.
The items sold in the Sale Agreement shall be licences and services only. Under no circumstances shall Nexetic assign software to a user, but only a limited right to use the software.
The Customer shall enjoy temporary user rights to the programs itemised in the Sale Agreement and to any enhancements thereto that are released while the said user rights continue. The Customer may use the software only in the manner indicated in the Instructions for Use. The Sale Agreement shall specify how many copies of the program in question the Customer is entitled to use. User rights shall not be transferable.
The Customer shall enjoy temporary access rights to the services associated with the programs. These access rights to services shall be tied to the hardware in which the program specified in the Sale Agreement has been installed, and shall be valid only to the extent indicated in the Instructions for Use.
The Customer shall have no right to copy, decompile, modify, lease, assign or sell the content of the software or to attempt to reverse engineer or disassemble the software. The Customer may not assign the software source code or any part thereof for use by a third party.
The user rights shall continue for the duration of the Sale Agreement, provided that the Customer pays the charges under the said Agreement and complies with these licensing conditions. Should the Customer fail to pay the agreed charges or infringe the licensing conditions, then the Licensor may unilaterally terminate the user rights with immediate effect, and with no obligation to refund any charges or any liability to compensate for damage.
On termination of user rights, the user shall delete from its systems all materials that are subject to the intellectual property rights of Nexetic, including all software and associated Instructions for Use.
3. Licence and service restrictions
The function and use of the software and services are described in the Instructions for Use. The user shall observe the restrictions in program functionality that are specified in the Instructions for Use.
The Licensor and any reseller shall not be liable for deficiencies in the service that fall short of a Bug.
If a Customer is offered the opportunity to use a service free of charge for some trial period, then the sole purpose of such an offer shall be to enable the user to examine the operation and appearance of the service, and not to give the user any kind of guarantee of functionality of the software and services. Neither the Licensor nor any reseller shall be liable for any damage sustained by the Customer while using a service free of charge for a trial period. Any instance in which the user has received the software or service without consideration shall always constitute a trial period free of charge.
4. Unlawful use and export restrictions
The Customer may not use the service or the software to record or distribute content that is unlawful, infringes intellectual property rights, or contravenes statutes governing international trade.
Neither the Licensor nor any reseller thereof shall be liable under any circumstances for unlawful exports and/or use by the Customer. The Customer shall be liable for all damage caused to the Licensor due to unlawful use, infringement of intellectual property rights and/or exporting in contravention of export control provisions.
5. Liability of the Customer
The Customer shall be liable for the fitness of the service for the Customer’s requirements, and hereby confirms that the Customer has received from the Licensor or from a reseller all of the instructions and information that are required for realising the rights and duties of the Customer under this agreement.
The Customer shall be liable for charges under the Sale Agreement or, in the absence of such Agreement, for charges for the products and services under the Nexetic price list that is current at the time when the Customer uses the said products and services.
The Customer shall be liable for ensuring that its hardware and software satisfy the minimum requirements specified in the Instructions for Use.
The Customer undertakes to keep the personal password securely and to refrain from disclosing it to outsiders under any circumstances, with the exception of disclosure to technical support assistants providing customer service on the Licensor’s behalf, who may require the password in order to assist in resolving problems. The user shall be solely liable for the consequences of disclosing the personal password in a manner contrary to this provision. The Licensor may also claim compensation for any damage caused by the said misconduct.
Registration for the service and invoicing require notification to the Licensor of certain personal details such as a name and e-mail address. The Customer agrees to provide correct details and to update them in the event of any changes. The Licensor shall handle these details in accordance with the Personal Data Act (henkilötietolaki, no. 523 of 1999).
The Customer shall not process or modify its user name in any manner that conceals the origin of content transmitted via the service, nor shall the Customer create any fictitious identity or usurp the identity of a third party.
The Customer agrees to use the service in a normal manner that may be considered reasonable. The Licensor reserves the right to terminate user rights on detecting any mode of use of the service by the Customer that is clearly unreasonable, contrary to the Instructions for Use, and/or compromises the ability of a third party to use the service (e.g. in the event that the Customer reserves bandwidth for exclusive use). A reasoned decision of the Licensor to refrain from terminating the access rights of a user who misuses the service shall not be interpreted to mean that the Licensor will similarly waive its rights under this present provision of the agreement in the event of any continuation or repetition of the malpractice.
The Customer shall not use the service to make backup copies of data that are not primarily stored on a local computer hard disk. The Customer may nevertheless also make backup copies of data stored on a network disk if the Customer has purchased the additional paid function that permits this procedure. The Customer shall not install Endpoint license to server operating systems.
The Customer shall not bypass technical solutions that restrict or manage backup copying, for example by modifying file identifiers and/or file header data.
The Customer agrees not to block the updates that are required for operating the service. Neither the Licensor nor any reseller shall be liable for any service problems arising from a failure to install updates.
6. Liability of the Licensor
The Licensor shall not be liable for any failure in contractual performance due to force majeure, or to malfunctions in public data communication networks or the effects thereof on the operations of a program or service.
The Licensor has exercised normal care in selecting the data security solutions used in the program and service. The Licensor shall nevertheless not be liable for any damage arising from misuse of data that occurs notwithstanding the data protection systems. The Customer shall be liable for ensuring that the data protection systems in use are fit for their purpose, particularly in respect of especially sensitive or confidential information.
The Licensor shall not be liable for reasonable interruptions of use. In the event that interruptions of use are prolonged for several days, the liability of the Licensor for the said interruptions shall be limited to the computed charge corresponding to the duration of interruption.
The Licensor shall not be liable for the activities of third parties, or for the consequences of any act or default on the part of the Customer.
The Licensor shall not be liable for ensuring that backup copies of all of the user’s files are retained on the server. It shall be the duty of the Customer to ensure that the required data are backed up, as the selection and monitoring of files for backup copying are under the Customer’s control.
7. Limitations of liability
The liability of the Licensor for damage suffered by the Customer, based on the Sale Agreement and on these licensing conditions, shall be limited to the computed use and licensing charges for three months (the three months preceding the delict) under the Sale Agreement. In the event that the damage affects a single installation of the software in one device, the limitation of liability shall be reckoned on the basis of the computed monthly charges for the said single software installation.
The Parties shall not be liable for indirect damage.
The limitations of liability under this present clause 7 shall not apply to damages arising from infringement or unlawful use of the intellectual property rights vested in the software and services. The limitations of liability shall not apply to damage that is caused wilfully or by gross negligence.
The Customer shall be solely liable for the data stored on its servers and for use of the service.
The Customer shall indemnify the management, board members, employees, registered members and other customers of the Licensor and its distributors against liability arising from legal proceedings, costs, demands, claims for damages and awards of court due to illegalities or breaches of contract committed by the user.
9. Personal data
Any personal data collected by the Licensor for the purpose of service provision shall be used solely for implementing this agreement. The Licensor shall not surrender personal data provided by the Customer to any third party, with the exception of subcontractors requiring the said data for maintaining the service and any public authorities that may request the said data. Pursuant to the Personal Data Act (henkilötietolaki, no. 523 of 1999), the Customer shall be entitled to inspect all personal data concerning the Customer that the Licensor has recorded, and to correct any errors occurring therein.
The software may keep a log of metadata for saved files and of other data that are contained in the user’s system. These data shall be used solely for providing the service, and the Licensor shall neither use the Customer’s data for any other purpose, nor disclose the said data to outsiders.
The information in the Licensor’s customer records shall be used for managing customer accounts and for marketing in the manner specified in the description of file. The description of file shall be available for viewing online at http://www.nexetic.com.
The Customer explicitly authorises the Licensor to use collected non-personal data for creating anonymous statistical analyses concerning use of the service (e.g. intervals between backups, nature of recorded data and type of recorded files, such as audio, image and word processing files). The Customer unreservedly approves the collection and use of data by the Licensor in the manner described in this clause.
The Licensor shall update the software as required. All of the Licensor’s liabilities for the software under this Agreement shall concern the latest release of the software, and the Licensor shall not be liable for problems arising in the use of previous versions.
11. Other terms and conditions
The Licensor may use subcontractors in performing the Agreement. The Licensor shall be liable for the activities of its subcontractors in the same way as for its own.
The Licensor may assign this licence and/or Sale Agreement to any party to whom the service provision and/or intellectual property rights vested in the software are also assigned. The Licensor may also assign charges under the Sale Agreement for collection by a third party.
In the event that any term of these licensing conditions or of the Sale Agreement is invalid, its validity shall be deemed to cease without affecting the remaining terms and conditions of this agreement.
This agreement has been concluded in Finland. It shall be governed by the legislation of the Republic of Finland, excluding the connecting factor rules of the said legislation. All disputes concerning the agreement shall be submitted to the general courts, with the District Court of Helsinki serving as the judicial venue of first instance.
The Licensor reserves the right to modify these licensing conditions at any time. In cases of such modification the Licensor shall notify the user of the changes and of the new terms and conditions of use by e-mailing the address provided by the user not less than 30 days before the modification takes effect. The Customer shall be liable for ensuring that the e-mail address is current and that the Customer receives e-mail messages sent to the said address. The Customer shall be deemed to have approved the new terms and conditions on continuing to use the service after a period of 30 days have elapsed from the date of notifying the new licensing conditions. A Customer who does not approve the new terms and conditions and fails to reach a negotiated settlement thereupon may terminate the Sale Agreement with effect from the time of the modification. Neither party shall be liable for damages arising from such a termination.
The Licensor shall be entitled to inspect the Customer’s credit history and to require the Customer to pay a reasonable advance or lodge a security as the Licensor sees fit.
The Licensor’s resellers shall operate as independent persons in law with no authority to conclude agreements that bind the Licensor. While any such Sale Agreement shall be concluded between the reseller and the Customer, these licensing conditions shall give rise to a licensing agreement between the Licensor and the Customer that is associated with the said Sale Agreement. The Licensor shall be entitled to decline to enter into a licensing agreement with the Customer, or to require the Customer to pay an advance or lodge a security in the event that a Sale Agreement has been concluded by a reseller.