These Terms govern your use of the Software (hereinafter referred to as the "Software") as well as your use of, and access to, the Licensor's official website www.netrivals.com including all other domains owned and operated by NETRIVALS (hereinafter collectively referred to as the "Site"). In order to lawfully use the Software NETRIVALS and the Site, you shall read carefully and accept the present Terms.
The "Software" shall mean the software under the trademark NETRIVALS.
You agree to be bound by these Terms by:
signing our order form or contract;
using the Site;
using the Software NETRIVALS or
using a trial version of NETRIVALS.
Your consent to be bound by the provisions of these Terms given in the manner contemplated above means that you:
have read these Terms carefully and understood all the terms and conditions set out herein;
agree to be bound by these Terms and comply with all the provisions herein;
have the legal capacity required to enter into a binding contract with NETRIVALS SL; and
have the authority to enter into a binding contract with NETRIVALS SL on behalf of the company or organisation.
If you have entered into a separate Licence agreement with NETRIVALS SL, then, in case of any discrepancies or inconsistencies, the terms and conditions of such separate Licence Agreement shall prevail over the present Terms.
The Licensor grants you a non-exclusive, non-transferable and non-sublicensable Licence to use the Software and Licence rights to Support and Upgrade the Software during the subscription term subject to the compliance with these Terms, including without limitation the payment of the applicable Licence Fee.
"Licence" means the Licence rights to a configuration of the Software which shall be adjusted by the Licensor based on your individual requests and options via the Site.
You are only entitled to those rights with respect to the Software, which are expressly granted by these Terms.
The Licence shall become effective upon payment by the Licensee of the Licence Fee and acceptance of these Terms.
Access to the Software
Access to the Software is provided via the Site. You will be granted access to the Software NETRIVALS once you:
have signed our order form or contract;
have accepted these Terms; and
have made all the necessary Licence payments as stipulated in the Licensor's Payment Policy in force.
During the Registration process you are required to provide accurate and true information.
By using the Software, you agree that you WILL NOT:
assign, sell, sublicense, rent, lease or otherwise distribute the Software (or any part thereof) to any third parties, or use the Software (or any part thereof) for time sharing, hosting or similar purposes;
cause or permit reverse engineering, decompile, disassemble, make any attempt to discover the source code of the Software;
modify, translate, or create derivative works from the Software, incorporate the Software (or any part thereof) into or with other software;
remove any Software identification, proprietary, copyright or other notices contained in the Software;
use the Software or the Site in any way that may violate the rights of the Licensor in relation to the Software and/or any Intellectual Property rights of the Licensor;
use the Software or the Site in any way that violates the Terms and/or contradicts the provisions hereof, and/or violates the legislation governing the contractual relations between you and the Licensor; or
use any viruses and/or other programmes that may cause damages to or influence the functioning of the Software or the Site.
You hereby undertake to prevent any illegal use of Your personal account by the third parties and undertake not to transfer Your personal account details (login and password) to any third parties.
Unless you enter into a separate Service Level Agreement with the Licensor, by these Terms you are granted the standard level of support and upgrade.
Charges and Payment
The terms of payment are governed by these Terms unless otherwise agreed or provided in a separate Licence agreement between you and the Licensor.
The use of the Software is subject to the Licence Fee that should be paid on the terms and conditions as stipulated below.
Such Licence Fee consists of Activation and Subscription Fees. The Activation Fee shall be agreed by the Parties on an individual basis. The Subscription Fee shall depend on the volume and configuration of the Software and support and upgrade level specified.
Unless otherwise provided in a separate Licence agreement, the Licence Fee is net of VAT and other taxes. The Licensee shall pay all bank and correspondent bank fees at its own cost on top of the Licence fee.
The payment of the Licence Fee is a compulsory condition for granting the license rights as stipulated in these Terms.
The Licence Fee shall be paid directly to the Licensor via the Licensor's official website, by paying the invoice or to Licensor's authorized resellers according to their payment conditions. Upon such payment, you will be provided with an access key to the Software or subscription which you have chosen.
The Licence Fee paid by the Licensee is non-refundable in any circumstances, except in warranty cases specified below.
No early termination of the present Terms shall release the Licensee from his obligations to pay the Licence Fees which fall due during the subscription term.
In the event of your breach of any terms and conditions of our Payment Policy, NETRIVALS reserves the right to suspend your Licence and access to the Software until all such breaches are remedied.
Intellectual Property Rights
The Licensor retains all right, title and interest to the Software and all related intellectual property and proprietary rights. The Software is protected by applicable copyright, trade secret, industrial and other intellectual property laws. The Licensee may not remove any product identification, copyright, trademark or other notice from the Software. The Licensor reserves any rights not expressly granted to the Licensee.
By contrast, all data and information developed by the Licensee, when the Software is lawfully used under the Licence terms and conditions, shall belong to the Licensee. The Licensor may not disclose, use or transfer them to any third party without prior written approval by the Licensee.
"Confidential Information" means all proprietary or confidential information that is disclosed to the recipient ("Recipient") by the discloser ("Discloser"), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; and (ii) as to Licensor, and its licensors, the Software. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient's possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality and without obligation of confidentiality; (d) is independently developed by or for Recipient without use of the Confidential Information. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information for any other purposes, except as for the cooperation within these Terms, without written consent of Discloser. Besides that, Confidential Information can be disclosed to a competent authority if it is required by applicable law or court order with the prior written notice to Discloser.
All personal data provided by the Licensee for the purpose of exercising licence rights are confidential. The Licensor shall provide the same level of protection for personal data received from the Licensee under the present Terms, as provided for its own personal databases. The Licensor may not disclose any personal information provided by you for the purpose of exercising license rights, to any third parties, unless such a disclosure is required by law.
All data and information obtained by the Licensee as a result of use of the Software including the results of benchmark tests of the Software are confidential. You MAY NOT disclose any such data, information and results of the Software to any third party.
You hereby undertake to keep Your personal account details (login and password) confidential. You may not transfer Your personal account details (login and password) to any third parties.
NETRIVALS SL shall have the right to mention your name (logo and/or your Trademark) to the third parties while promoting its services and/or Software on the market without disclosing Confidential Information.
Confidentiality of information is maintained at all times during the term of validity of these Terms of Service, plus ten (10) years after its expiration or termination.
Governing Law and Jurisdiction
These Terms shall be governed by the laws of Spain.
The Parties shall endeavour to resolve all disputes arising during the term of validity of these Terms by way of negotiations. If the Parties fail to settle a dispute in an amicable way, such dispute regardless of its nature shall be resolved by courts in accordance with the applicable laws of Spain. The courts of Spain shall have the compulsory jurisdiction to settle any disputes which may arise out of or in connection with these Terms.
To the extent permitted by applicable law, the Software is provided to Licensee "AS IS" without any warranty, whether express or implied, that Software usage will be uninterrupted and that all errors have been or can be eliminated from the Software. The Licensor's sole liability (and Licensee's exclusive remedy) for any breach of this warranty shall be, in the Licensor's sole discretion, to use commercially reasonable efforts to provide the Licensee with an error correction or workaround which corrects the reported nonconformity, to provide Software upgrades with corrected errors for the upcoming Software release or service pack, or, if the Licensor determines such remedies to be impracticable, within a reasonable period of time to terminate the Agreement and refund the amount equivalent to one monthly usage fee.
The limited warranty shall not apply to warranty claims arising out of or relating to: (a) use of the Software with hardware or software not supported by the Software according to its documentation; (b) defects in the Software due to accident, abuse or improper use by the Licensee; or (c) Software provided on a no charge or non-commercial trial use basis, if any.
Limits on Liability
THE LICENSOR SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RELATING TO, OR ARISING OUT OF, THIS AGREEMENT, SUPPORT OR THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME AND DAMAGE TO, OR LOSS OF USE OF DATA CONSIDERED AS INDIRECT LOSS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE LICENSOR'S TOTAL LIABILITY SHALL NOT EXCEED THE AMOUNT EQUIVALENT TO ONE MONTHLY USAGE FEE.
The Licensee acknowledges that any misuse or threatened misuse of the Software will cause immediately irreparable harm to Licensor for which there is no adequate remedy at law. Accordingly, the Licensee agrees that Licensor IS entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of such breach or threatened breach.
NETRIVALS SL reserves the right to unilaterally amend and/or change these Terms. In such a case the updated version of the Terms shall prevail over the previous one.
NETRIVALS SL shall, whenever possible, notify the User by any reasonable means, including email, of any material substantive changes to these Terms or the Services.
Term and Termination
These Terms shall commence upon your acceptance of the present Terms in any manner as set forth in Section "General Provisions".
These Terms terminate automatically if you fail to comply with any of its Conditions. However, no such termination shall relieve you of the obligation to pay the Licence fee for the period during which you actually used the Software. In the event of any termination of the Terms, your payment obligations cease to be in force on the date of payment by you of all respective Licence fees in accordance with NETRIVALS Payment Policy.
You may terminate these Terms unilaterally by sending a relevant notice by email to your Account Manager and firstname.lastname@example.org not less than thirty (30) days prior to the date of termination. Upon the expiration of thirty (30) days after the date of giving your termination notice to the Licensor, your access to the Software will be closed. You shall immediately stop using the Software after the termination of the present Terms.
The Licensor reserves the right to suspend your Licence and access to the Site and Software if you breach any condition of our Payment Policy until all the breaches and infringements are remedied.
The Licensor may suspend your access to the Software and terminate the present Terms without any notice if:
you fail to pay the Licence fee;
you breach any of the provisions of the present Terms; or
the Licensor has reasonable grounds to believe that you have breached or are likely to breach the provisions of the Terms; or
the Licensor has reasonable grounds to believe that you have presented inaccurate, incorrect or false information.
Confidentiality provisions set out therein will remain in force for ten (10) years after the expiration or termination of the Terms.