Term of Use
End-User License Agreement
Thank you for choosing our Software.
Please read the following terms carefully before installing, copying and/or otherwise using the software suite of applications - WEBCON Business Process Suite (hereinafter referred to as “the Software”). All the terms and conditions are important and together create the End-User License Agreement (the “EULA”) that applies to you. Once you install, copy or otherwise use the Software, you accept the terms and conditions entirely.
The EULA is a legal agreement between you, the end user, and WEBCON. The terms apply to the Software, the Documentation, and the media on which you received it, if any. The terms apply equally to any WEBCON updates, supplements, components, and Internet-based services, for the Software, unless other terms accompany those items (such as rules specified in the Software Assurance License, the “SAL”) provide otherwise.
If you do not accept the terms of the EULA do not install, copy or use the Software in any manner at all. Instead, you should return the Software to the retailer or other supplier you obtained the License from, for a refund or credit, and remove the Software from your device notifying us within 5 calendar days of the removal.
Detailed License Agreement
§1 License Terms
Under the EULA WEBCON grants you the following rights:
1. Territory. The scope of the EULA is not limited in territory – it allows you to make use of the Software anywhere in the world, subject to clause 48 of the General Terms below;
2. Duration. In case of the license subscription, the scope of the EULA is limited in time to the Subscription Period defined in the Subscription Agreement. In case of the license purchase, the scope of the EULA is not limited in time – it allows you to make use of the Software for the longest possible and legally acceptable period; however, if according to absolutely binding laws the time of the EULA needs to be limited, WEBCON grants the License for the longest possible and legally acceptable period and then the EULA is renewed automatically, unless you declare otherwise in a written notice at least 14 days prior to renewal;
3. Fees. The electronic copy of the Software, excluding the DEMO Edition and EXPRESS Edition of the Software which is available free of charge, will be made available within 14 days upon full payment;
6. Updates and Upgrades. The Licensee that bought the licenses is entitled to access and make use of all updates (Corrections and Releases) for the Software within the Version initially purchased or any of the Versions previously published without additional payment. Conditions under which the Licensee can upgrade the Software to any Version newer than initially purchased are given within the Software Assurance License. The Licensee that subscribes to the Software – during the Subscription period - is entitled to access and make use of all Corrections, Releases and Versions of the Software without additional payment. Shall the update be made within the Version currently used by the Licensee the original provisions of EULA apply. Upgrading the Software to the new Version is tantamount to the Licensee's acceptance of its EULA, while any modifications to the provisions of the EULA, which were agreed in the content of the Order or Subscription Agreement concluded when purchasing the Software license, will also apply to the new Version and its EULA - to the extent that will fully reflect the intentions of the Parties.
7. If you have any doubts or questions concerning the Software or the EULA, please contact us by email at: firstname.lastname@example.org.
8. Please note that all capitalized words in the Detailed License Agreement bear the specific meanings as defined in the TU.
1. CAL License – a single license assigned to a particular Named User which authorizes the User to make use of the Software within the scope of the License granted to the User.
2. Concepts of the Software – these include the form of expression of ideas, concepts, solutions, techniques or know-how in the Software or any of its components, including their structure, order or organization.
3. Copy of the Software – each and every single fixed copy of the Software or its components, saved on a physical medium (e.g. CD, DVD, stick memory), or in electronic form.
4. Correction - commercialization of Software containing functional corrections as part of a given Software Version and Release; it is indicated by the digit after the third dot of the number (e.g. for 2019.1.3.142 the Correction number is 142).
5. DEMO Edition – the edition of the Software intended for non-productive use, made available for demonstration purposes only, free of charge. The DEMO Edition is active for a period of ninety (90) days. It is prohibited for the Licensee to Use the EXPRESS Edition and DEMO Edition of the Software simultaneously; it is prohibited to Use more than one DEMO Edition simultaneously.
6. Documentation – all standard documentation owned by WEBCON (irrespective of whether the documentation was prepared by or on behalf of WEBCON for the Licensee) concerning the Software, made available on any media or in electronic form, submitted by WEBCON within the scope of the License, containing standard WEBCON training materials, print-outs, data models, schemes, diagrams, specifications, instructions or full or abbreviated copies of the documents specified above.
7. Edition – edition of the Software indicating its functionalities and features. Editions may have different functional and licensing limitations.
9. EXPRESS Edition – the edition of the Software intended for productive use as well as non-productive use, free of charge. The EXPRESS Edition is active until the WEBCON Business Process Suite database exceeds the size of 10 GB. It is prohibited for the Licensee to Use the EXPRESS Edition and DEMO Edition of the Software simultaneously; it is prohibited to Use more than one EXPRESS Edition simultaneously.
10. Licensed End-User – an end-user (a natural person) who makes use of the Software within the Express Edition; or to whom a single WEBCON BPS User CAL, or WEBCON BPS Designer Studio CAL is assigned; or who makes use of the Software under the WEBCON BPS Process CAL, WEBCON BPS Corporate CAL, WEBCON BPS Company CAL or WEBCON BPS Global CAL licenses. The number of users making use of the Software cannot exceed the number of WEBCON BPS User CAL licenses granted, unless their use of the Software is made under WEBCON BPS Process CAL, WEBCON BPS Corporate CAL, WEBCON BPS Company CAL or WEBCON BPS Global CAL licenses, specified in the Software configuration. Any (direct and/or indirect) access to the Software that results in logging the information of an end-user operation (such as but not limited to starting or approving workflow instances, workflow patch transitioning and action invocation, filling in forms) in the Third-Party Database signed with the end-user login and a timestamp of his activity requires an end-user to have a CAL license assigned or be allowed to use the Software under the WEBCON BPS Process CAL, WEBCON BPS Corporate CAL, WEBCON BPS Company CAL or WEBCON BPS Global CAL licenses. Users having access to the system in read-only mode, in particular those who do not introduce any changes, corrections, modifications or acceptances, which would result in entry of the data, and logging their operation in the Third-Party Database are not deemed to be Licensed End-Users.
11. Licensee – a Party to the License for the Software and the Documentation. Personal details of the Licensee are to be found in the Order or the Subscription Agreement.
12. License Key – an electronic key, which determines the number and type of licenses for the Software ordered or subscribed to by a Licensee, required to launch the Software and assigned to a particular Licensee. The key contains data allowing the use of the Software, subject to and upon the terms and conditions contained in the License Agreement.
13. Location – location of the computer or any other device on which the Software is installed. The Location is specified in the Order or the Subscription Agreement; in case the location is not specified in any of these, (a) the location for the licenses purchased is considered to be under the Licensee address specified in the Purchase Order or (b), the location of licenses subscribed is considered to be under the WEBCON address.
14. Modification – any change of the Software which results in a change of the source code.
15. Named End-User – any set of Licensed End-Users who have fulfilled the registration procedure and to whom the CAL Licenses are assigned in accordance with the EULA.
16. Non-productive use – the Use of the Software only for the purposes of internal training of Licensed Users, the aim of which is to explain how to use the Software for supporting Licensee’s business activity. The term also includes testing or development works which support the environment of the productive use of the Software.
17. Offshoot – a company where Licensee owns, directly or indirectly, more than 50% of votes or interests or shares in the share capital of the company, but only for so long as the Offshoot meets requirements arising from the License or the Order or the Subscription Agreement.
18. Order – a document (a purchase order or a separate agreement) by means of which the Licensee orders from WEBCON or from the Partner a license for the Software. In the event of realization of the Order the conditions of the Order should be accepted by WEBCON (excluding the financial terms of an Order if the Order is made to the Partner). The Order contains inter alia indication of the Release and Edition, type of licenses ordered including a type and number of CAL Licenses, the amount and conditions of the Payment, declaration of the Licensee on acceptance of the terms and conditions of the License. In case an Order is made through a Partner, a form of order between a Partner and WEBCON placed on behalf of a Licensee, is a subject of independent agreement between a Partner and WEBCON.
19. Outsourcing – a use of the Software or access to the Software for the purpose of provision of commercial service to a third party.
20. Partner – a legal entity or an entity having legal capacity or natural person who mediates in the process of concluding the License between the Licensee and WEBCON and who decides on the final amount of Payments and charges payable by the Licensee. If the Licensee does not pay the agreed Payment to the Partner, this shall be deemed to be a breach of the License between the Licensee and WEBCON.
21. Payment – payment for each and every license granted by Us, specified in the Order or the Subscription Agreement. Amount and conditions of Payment are defined in an Order or the Subscription Agreement.
22. Plug-in (Software Extension) – a separate and independent application or interface, beyond the source code of the Software, designed or created by means of software design tools, and which communicates with the Software. The Plug-In can communicate with the Software only by means of images and procedures based on the data of the system (only for the purpose of obtaining information from the Database of the Software) or by means of the Software Development Tools (only within the functional scope of the Software Development Tools). Plug-Ins do not introduce any Modifications to the Software; therefore, a Plug-In should not be deemed a Modification.
23. Privileged Information – information which should be considered privileged because (i) it concerns WEBCON, including information such as the Software, Documentation and each and every full or abbreviated copy of the Documentation, Concepts of the Software, Third Party Database or any other third party software licensed together with the Software or within the framework of the Software, or (ii) the information which is considered to be confidential or privileged for justified reasons and concerns WEBCON or any Licensee or licensor of WEBCON or Licensee.
24. Productive use – the Use of the Software for the purposes of business activity of the Licensee. In case of the license subscription, Productive use of the Software is also allowed for the purpose of providing Outsourcing services.
25. Release – commercialization of Software containing minor changes and functionalities improvements within a given Software Version; it is indicated by the number after the second dot of the number (e.g. for 2019.1.3.142 the issue number is 3).
26. Software – (i) software WEBCON Business Process Suite including electronic programs, but excluding the Third-Party Database, delivered under the terms and conditions of the EULA, (ii) each and every Release or Correction for the Software within the scope of the EULA, (iii) each and every full or partial copy or substitute of each and every Release or Correction for the Software within the scope of the EULA.
27. Software Development Tools – WEBCON Business Process Suite Designer Studio application, or WEBCON Business Process Suite SDK application, as well as webservices SOAP and REST, available in the Software standard, available optionally and subject to a license, enabling the Licensee to extend functionalities of the Software without interference with its source code (which does not constitute a Modification).
28. Subscription Agreement – a document, by means of which the Licensee subscribes to the Software’s licenses. The Subscription Agreement contains inter alia indication of the type and number of CAL Licenses, the amount and conditions of the Payment, Subscription Period, declaration of the Licensee on acceptance of the terms and conditions of the License.
29. Subscription Period – a period of time for which the Software license is granted to Licensee. Subscription Period is defined in the Subscription Agreement.
30. Tariff Value of the Software – value of particular licenses resulting from the official Tariff of the Software published at support.webcon.com.
32. Third Party – an external entity who needs access to the Software in connection with to the activity of the Licensee, including auditors, distributors or suppliers. In case of license subscription, any party the Licensee provides services to (including outsourcing services) to is considered to be the Third Party.
33. Third-Party Database – a Microsoft SQL Server database engine applied in order to operate the database schemes of the Software, including WEBCON Business Process Suite database system, and the databases of the attachments and archive databases.
34. Unit – each single computer or device on which the Software, and the Third-Party Data Base is installed.
35. Use – direct or indirect acts of installation, realization, exploitation, use, storage, display of the Software or access to the Software.
36. Version - commercialization of Software containing significant changes in functionality; Version is indicated by the first four digits of the number (e.g. 2019 for 2019.1.3.142 Version number is 2019).
37. We (WEBCON) – a limited-liability company registered in Poland under the name “WEBCON spółka z ograniczoną odpowiedzialnością” with its registered office in Kraków at ul. Babińskiego 69, 30-393 Kraków, POLAND, being a legal person registered in the National Court Registry (KRS) run by the Sąd Rejonowy dla Krakowa-Śródmieścia in Kraków, IX Wydział Gospodarczy (9th Commercial Department), under the number 0000349649, having the taxpayer number (NIP) 6762414097.
§2 General Terms
1. In accordance with the terms of the EULA, WEBCON grants to Licensee and Licensee accepts a non-exclusive license for the Use of the delivered Software under the terms and conditions and within the scope of the EULA, by WEBCON, in the Location. The Licensee may make both Productive and Non-productive Use of the Software. In order to abide by the terms of the License WEBCON will make Copies of the Software (executable code only) and the Documentation available to the Licensee as long as the EULA remains in force. The number of the Copies and the form in which they will be delivered to the Licensee should be specified in the EULA. The Software is licensed not sold, and WEBCON does not transfer the copyright in the Copies or ownership of the media on which they are stored by the transfer of possession of the media. WEBCON holds both: copyrights and the right of ownership. WEBCON reserves all rights to the Software not expressly granted to the Licensee hereunder.
2. For the EULA to become binding it is necessary that WEBCON or Partner provide the Licensee with the Copy of the Software; which will, excluding the DEMO Edition and the EXPRESS Edition, be not before receipt of Payment in full. Once the Licensee shall install, copy or otherwise use the Software, the Licensee shall accept the terms and conditions. Notwithstanding anything herein to the contrary, the Licensee is entitled to make use of the Software as long as Payment conditions are not breached. This condition does not apply to the DEMO Edition nor EXPRESS Edition.
3. THE EULA AUTHORIZES THE LICENSEE TO MAKE USE OF THE SOFTWARE IN THE FOLLOWING MANNER:
a. THE LICENSEE MAY COPY OR STORE THE SOFTWARE, PARTIALLY OR ENTIRELY, BY ANY TECHNICAL MEANS OR FORMS, BUT ONLY FOR YOUR PRIVATE/OWN USE; THE LICENSEE MAY AS WELL STORE COPIES OF, INSTALL, DISPLAY AND APPLY THE SOFTWARE ON YOUR COMPUTER, BUT ONLY FOR YOUR PRIVATE/OWN USE;
b. THE LICENSEE MAY ADJUST OR INTRODUCE MODIFICATIONS TO THE SOFTWARE ONLY UNDER CONDITIONS EXPRESSLY SPECIFIED IN THE LICENSE OR OTHER AGREEMENTS BETWEEN YOU AND WEBCON;
c. THE LICENSEE MAY USE OF THE SOFTWARE FOR THE PURPOSES OF YOUR INTERNAL BUSINESS ACTIVITY;
d. THE LICENSEE MAY CREATE TRAINING COPIES OF THE SOFTWARE FOR THE USE OF YOUR LICENSED END-USERS;
e. THE LICENSEE MAY CREATE AN ARCHIVAL COPIES OF THE SOFTWARE;
f. THE LICENSEE MAY CREATE BACK-UP COPIES OF THE SOFTWARE.
4. If it is necessary to make proper use of the Software and within the scope of the EULA and purposes of the Use of the Software, the EULA authorizes the Licensee to make use of the Documentation in the following manner:
a. THE LICENSEE MAY COPY THE DOCUMENTATION, PARTIALLY OR ENTIRELY, BY ANY TECHNICAL MEANS OR FORMS, BUT ONLY FOR YOUR INTERNAL PURPOSES; THE LICENSEE MAY AS WELL STORE COPIES OF, INSTALL, DISPLAY THE SOFTWARE ON YOUR COMPUTER, BUT ONLY FOR YOUR INTERNAL PURPOSES;
b. THE LICENSEE MAY CREATE TRAINING COPIES OF THE DOCUMENTATION FOR THE PURPOSES OF LICENSED END-USERS;
c. THE LICENSEE MAY CREATE ARCHIVAL COPIES OF THE DOCUMENTATION.
5. If the Licensee accessed trial version (DEMO Edition) of the Software, the Licensee may only make non-productive use of the Software, which includes acts of testing and checking functionalities of the Software.
§3 Permitted use and its limitations
7. The Licensee may create a back-up copies of the Software if is necessary for the purposes of the Use of the Software as specified in the EULA.
8. Licensee shall not decompile, disassemble or reverse engineer the Software, except where this restriction is not permitted by applicable laws.
9. Any unauthorized act of use of the Software which is beyond the scope of the License constitutes an infringement of WEBCON rights.
10. Unless the absolutely binding laws state otherwise, the Licensee shall not observe, study or test the functioning of the Software in order to determine the ideas and principles which underlie any element of the Software.
11. Any act of circumvention of technical devices applied in the Software, or technological measures, such as the License Key, constitutes an infringement of WEBCON rights.
12. The Licensee may not make any plug-ins to the Software independently unless the Licensee makes use of the Software Development Tools.
13. The License does not grant the Licensee any rights except those that are explicitly specified in the EULA. In particular, the Licensee shall not without the prior written consent of WEBCON in respect of the Software, the Copy of the Software, the Documentation or the Third-Party Database or any other privileged information. In case the Software licenses have been purchased with the Order, the license granted does not allow the Licensee to:
a. Use the licenses for the purposes of outsourcing services, excluding Outsourcing for the purposes of the activity of the Offshoot;
b. Sublicense any of them, excluding sublicensing for the purposes of the activity of the Offshoot;
c. Use the licenses to deliver trainings to any third person, excluding Offshoots, Licensed End-Users and other instances designated in the License;
d. Resell any of the licenses (temporarily or permanently), excluding reselling for the purposes of the activity of the Offshoot;
e. Make any of the licenses available to the public or disseminate them, excluding acting so for the purposes of the activity of the Offshoot;
f. Use the licenses for any other purposes than those expressly specified in the EULA.
14. The Licensee shall not introduce any alternations or Modifications to the Software or to the Documentation in any manner or by any means, unless the EULA states otherwise or the Licensee has obtained the prior written consent of WEBCON. The Licensee shall not remove any proprietary notices contained in the Software. If the Licensee shall create any alternations or Modifications, it shall upon WEBCON’s request transfer all economic copyrights to those alternations or Modifications to WEBCON with immediate effect and free of charge.
§4 Duties of the Licensee
15. The Licensee shall maintain records indicating the number of end-users and locations of the original Software and any Copies.
16. The Licensee shall ensure that copyright notices and information on WEBCON’s trademark, trademarks of Partners or other licensors (e.g. Microsoft), or other IP notices, are not removed from the media on which the full, abbreviated or trial versions of the Software are stored, and, in the case of their absence, shall affix them in an appropriate place, if the Licensee is authorized to do so. The Licensee shall not remove the notices or the information.
§5 End-Users and Named End-Users
17. For Editions other than DEMO Edition and EXPRESS Edition, each and every user who obtains access, direct or indirect, to the Software, on behalf of the Licensee or on behalf of Offshoot or on behalf of any third party, is required to have a CAL License (which authorizes them to Use the Software and Documentation) within the scope of the License.
18. For Editions other than DEMO Edition and EXPRESS Edition, the maximum number of end-users having direct or indirect access to the Software or/and the Third-Party Database must be not exceeding the number set out in the Order or the Subscription Agreement. In the event of the number of end-users having access to the Software or to the Third-Party Database exceeds the number agreed upon in the accepted Orders or the Subscription Agreement, the Licensee shall inform WEBCON or Partner (if the Licensee obtained the License from a Partner) and pay an additional fee.
19. For Editions other than DEMO Edition and EXPRESS Edition, WEBCON, or if the license is granted through the Partner, the Partner may control the number of Named End-Users who have authorized access the Software or the Third-Party Database, by means of a computer program which counts the number of active end-users. If the number of Named End-Users having access to the Software or to the Third-Party Database exceeds the number agreed upon, WEBCON, or the Partner, as appropriate, may issue a VAT invoice for an additional payment. Upon WEBCON’s request, but not more often than twice in any year, the Licensee shall give WEBCON or the Partner access to the system for the purposes specified above. At WEBCON request, the Licensee shall provide WEBCON with a system report indicating the number of active Named End-Users. The Licensee grants to WEBCON the right to have access to the data, and their transfer or processing for the verification purposes as specified in this clause.
20. The Licensee may transfer the Software or the Third-Party Database to a Unit other than the original one, free of charge, but the Licensee shall to inform WEBCON about the fact in writing within 5 days of the installation if it concerns WEBCON BPS Enterprise Server or WEBCON BPS Standard Server license. The Licensee shall remove immediately the Software or the Third-Party Database from the source Unit.
21. The Licensee may transfer the rights ascribed to it under the License to a third party only if the Software licenses have been bought, and only if the Licensee shall:
a. inform WEBCON in writing, and obtain WEBCON’s prior written consent;
b. ensure that the new licensee confirms in writing that he/she accepts terms (rights and obligations of the End-User) of the License and he agrees to be bound by them;
c. immediately remove in their entirety any Copies of the Software, including back-up and archival copies, and
d. not store any Copies of the Software, the Documentation or any other Privileged Information.
22. Every Offshoot is entitled to make Use of the Software or the Third-Party Database provided that:
a. It provides WEBCON with its prior written acceptance of the terms of the EULA;
b. A third party, who is given direct or indirect access to the Software from the Offshoot, is given so under the Named End-User License;
c. Offshoot shall only use the Software and Third-Party Database within an environment Used by the Licensee.
23. In case of the Software license subscription, the Licensee may allow a Third Party access to the Software or the Third Party Database on the conditions set for the Offshoot.
24. In case of the Software license purchase, the Licensee may allow a Third Party access to the Software for the purposes of assistance of Use of the Software within the scope of the License on condition that: (i) under no circumstances shall a third party have access to the source code of the Software, (ii) the access shall be limited to screen access, (iii) the Licensee shall have obtained the License from WEBCON, and (iv) under no circumstances shall the Software be used by the Third Party for its own purposes.
25. The Licensee shall not infringe WEBCON’s rights to the Software in any manner. In particular, the Licensee shall not : (i) change the source code, (ii) create any application or interface that is able to access functionalities of the Software or the Third Party Database, unless the Licensee shall make use of the Software Development Tools (SDT) to do so; (iii) give or grant indirect or direct access to the Software or to the Third Party Database to more end-users (under the CAL License) than agreed upon in the EULA, unless the Licensee shall obtain additional CAL Licenses in advance.
26. The Licensee is not entitled to act on behalf of WEBCON, as agent or in any other capacity nor shall it give any guarantees or warranties on behalf of WEBCON.
27. The Licensee may grant sub-licenses to an Offshoot, and in case of license subscription also to a Third Party, having obtained their prior approval of the terms and conditions of the sub-license given in this EULA.
§8 Limited warranty and disclaimer
28. WEBCON DELIVERS THE SOFTWARE AND THE DOCUMENTATION IN AN AS IS CONDITION AND WEBCON OFFERS NO WARRANTY OR GUARANTEE (OTHER THAN EXPRESSED IN SUB-CLAUSE 29) IN RELATION TO THE NON-INFRINGEMENT OF THIRD PARTY’ RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, OR THAT THE SOFTWARE WILL CARRY NO ERRORS, MEET THE LICENSEE’S REQUIREMENTS, OR THAT THE SOFTWARE WILL FUNCTION PROPERLY WHEN USED IN CONJUNCTION WITH ANY OTHER SOFTWARE OR HARDWARE, IN PARTICULAR WITH ILLEGAL SOFTWARE OR HARDWARE. WEBCON DOES NOT WARRANT THE PERFORMANCE OR RESULT YOU MAY OBTAIN BY USING THE SOFTWARE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE LIES WITH THE LICENSEE. FURTHERMORE, WEBCON MAKES NO WARRANTY IN RESPECT IF ANY THIRD-PARTY SOFTWARE PRODUCTS WHICH MAY BE SUPPLIED WITHIN THE SOFTWARE.
29. In case the subscribed licenses are not available (it is not possible to log in to the infrastructure provided by the Licensor or it is not possible to connect to the license server provided by the Licensor) due to the exclusive fault of the Licensor, the Subscription Period will be extended for the period of unavailability, free of charge.
§9 Limitation of Liability
30. WEBCON SHALL NOT BE LIABLE TO THE LICENSEE OR TO ANY THIRD PARTY FOR ANY DAMAGES, BUSINESS INTERRUPTION, LOSS OF DATA OR INFORMATION OF ANY KIND. IN PARTICULAR, WEBCON SHALL NOT BE LIABLE TO THE LICENSEE IN RESPECT OF ANY PECUNIARY CLAIMS FOR ANY COSTS, INCLUDING ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY LOST PROFITS OR LOST REVENUE RESULTING FROM OR RELATING TO THE USE OF THE SOFTWARE OR THE THIRD-PARTY DATABASE, OR DAMAGES CAUSED BY POSSIBLE ERRORS OR MISPRINTS IN THE SOFTWARE. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IRRESPECTIVE OF THE CIRCUMSTANCES, THE LEGAL BASIS AND THE SCOPE OF THE DAMAGES SOUGHT, WEBCON’S SOLE AND AGGREGATE LIABILITY (FOR EACH AND EVERY LOSS) TOWARDS THE LICENSEE OR ANY THIRD PARTY, UNDER OR IN CONNECTION WITH THE SOFTWARE, SHALL BE LIMITED TO (A) IN CASE OF THE LICENSE PURCHASE, THE PAYMENTS THAT WEBCON RECEIVED FOR THE SOFTWARE FROM THE LICENSEE OR THE PARTNER IN ACCORDANCE WITH THE TARIFF VALUE OF THE SOFTWARE BINDING AT THE MOMENT OF MAKING THE ORDER; OR (B) IN CASE OF THE LICENSE SUBSCRIPTION, THE PAYMENTS THAT WEBCON RECEIVED FOR THE LICENSE SUBSCRIPTION WITHIN THE LAST 12 MONTHS. IN NO EVENT WILL WEBCON BE LIABLE TO THE LICENSEE OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGE ARISING IN RELATION TO THE DEMO EDITION OR EXPRESS EDITION OF THE SOFTWARE.
31. In the event of the third party claims being brought, the Licensee shall immediately, not later than within 30 days after the Licensee received notice of the claim, inform WEBCON of the fact and enable WEBCON to participate in talks, negotiations or any action related to that including joining in the proceedings as defendant in place of Licensee. WEBCON may choose to (i) modify the Software to be non-infringing; (ii) obtain a license for the Licensee to allow for continued use; or (iii) terminate the license for the Software, require it’s return and, in case of the Software licenses have been purchased, refund a prorated (based on a 5 year life) portion of the Payments that WEBCON shall have received for the Software from the Licensee or the Partner in accordance with the Tariff Value of the Software binding at the moment of making the Order. For Editions other than DEMO Edition and EXPRESS Edition, WEBCON will refund the Licensee reasonable costs related to the dispute on the condition that the Licensee abides by the requirement specified in this sub-clause.
32. The Licensee shall make all due Payments irrespective of the level of actual use of the Software. Where a Payment is paid without the mediation of the Partner, and in case of the license subscription, the exact amount of the Payment due is set out the Order and shall be paid directly to WEBCON. Where the Payment is paid to the Partner, the amount of the Payment is set out in the Order between the Licensee and the Partner.
33. The terms and conditions governing the Payments apply also when the actual number of end-users exceeds the number agreed on in the EULA as specified in §5 and in accordance with the provisions of the sub-clause 32 above.
34. Both Parties shall keep confidential Privileged and Confidential Information, including any trade and business secrets that they may have disclosed to each other in relation to the License. The terms of the EULA shall remain confidential as well (as privileged information of the other Party).
35. The following information will not be treated as confidential nor privileged:
a. Information which has become known or available without any fault on the part of the receiving Party;
b. Information which has to be disclosed in accordance with binding common legal regulations and legal proceedings, including the claim for injunctive relief or redress of any claims resulting from the License, provided that the Party concerned is properly and in due time informed of the disclosure and its scope. The scope of the disclosure should be limited only to the information which is absolutely necessary to be disclosed and is disclosed only to the person duly entitled to receive it;
c. Information which has to be disclosed as a result of the order of a court, if the disclosing Party is informed on the decision immediately and the order cannot be appealed.
36. Parties may disclose confidential or privileged information to Licensed End-Users or Third Parties only if it is necessary to fulfil obligations resulting from the EULA or to control realization of the obligations, within the scope of the EULA and on condition that every person to whom the information is disclosed signs a non-disclosure agreement.
37. Parties may enter into additional non-disclosure agreements, if necessary. The liability rules specified in this License apply to the Parties’ liability for any other breach of confidentiality obligation.
38. TERMINATION OF THE EULA. In case of the Software license subscription, the EULA is automatically terminated in case of the Subscription Agreement terminates. The EULA may be terminated only on the grounds of the Parties’ mutual agreement on termination or upon terms specified in sub-clauses 39-40 hereof.
39. The EULA may be terminated with immediate effect by WEBCON if the Licensee breaches any provision of the EULA.
40. In case of the Software license purchase, the EULA may be terminated by the Licensee at any time with reservation that if the Licensee shall have entered into additional agreements, such as SAL, the licenses (the EULA and the SAL) shall be terminated jointly at the same time.
41. From the date of termination or expiration of the EULA the Licensee shall cease to be entitled to make Use of the Software or the Documentation and the Licensee should remove immediately all copies from its computers or any other device and inform WEBCON in writing that this has been done. If the Software was being used on the infrastructure provided by the Licensor, the Licensor will immediately delete the instance of the Software and all data related to the Licensee’s subscription. Notwithstanding the termination or expiration of the EULA, the EULA provisions on confidentiality obligations, Payments and the Parties’ liability shall survive. Any Payments which have already been made will not be returned.
42. The EULA shall be governed by English law.
43. All disputes resulting from and related to the EULA should be solved in an amicable manner. If the Parties cannot reach an agreement, within a month upon being summoned to settle, the dispute shall be resolved in accordance with the Rules of Arbitration of the Court of Arbitration at the Polish Chamber of Commerce in Warsaw (in Polish: Sąd Arbitrażowy przy Krajowej Izbie Gospodarczej w Warszawie) binding at the moment of initiation of the dispute, by an arbiter or arbiter appointed in accordance with the Rules of Arbitration.
44. All amendments and attachments to the EULA should be made by electronic means and, as such, require acceptance via email. The Licensee’s email address is stated in the Order, WEBCON’s email address is as follows: email@example.com
45. If any part of the EULA is found void or unenforceable in accordance with the prevailing law, the remaining provisions of the EULA shall remain in full force and effect.
46. Each declaration in relation to the EULA, including changes of the Tariff, may be communicated to the other Party via email or by means of postal services (including courier services).
47. If, at any point of realization of the License, a consent for the personal data processing is required, in particular in relation to the verification activities conducted by WEBCON or realization of guarantee obligations, the Licensee is obliged to give the consent to WEBCON and ensure that the Licensee gives proper consents for the necessary data processing.
48. Licensee will not and will not allow any third-party to allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to any country to which such export or re-export is restricted or prohibited, or as to which applicable law requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (c) otherwise in violation of any export or import restrictions, laws or regulations of any domestic or foreign agency or authority. Licensee agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any prohibited country or on any such prohibited party list.
Software Assurance License (SAL)
§1 General Provisions
1. Duration: Provisions of the SAL come into force once WEBCON confirms that the License is granted on the basis of the Order for the Software Assurance suite. The scope of the SAL Agreement is limited in time to:
a. duration of the Subscription Agreement or
b. the term agreed between the Parties within the Software Assurance Package purchase order or
c. the term agreed between the Parties within the Software Assurance Package Delivery Agreement.
2. Subject: Licensee will be provided with the access to the most up-to-date Versions of the Software and Documentation that were published during the course of the SAL Agreement. They will be delivered by electronic means of communication and the provisions of the EULA will be extended so that they cover these Versions.
3. Payments and settlements: Settlements between Parties will be made annually. The term of provision of services shall be divided into annual periods during which the Licensee may make use of the components.
4. The payment for the SA suite is estimated on one-time basis and it shall be a percentage, determined in the Tariff or in the Order, of the Tariff Value of the Software (at the date of the Order for the SA suite), however:
a. If the Order for the SA suite is made together with the Order for the software licenses (in case of the first SA suite order), or before the expiry of the Duration of the then-current SA suite (in case of the subsequent SA suite order), the amount of the Payment shall be calculated based on the percentage rate given in the Tariff under the name of the Early Software Assurance (as for April 19th, 2019, 15% it is).
b. In any other case, the amount of the Payment for the period between the initial date and the date of the Order shall be calculated based on the percentage rate given in the Tariff under the name of the Software Assurance (as for April 19th, 2019, 25% it is).
5. If, in the course of the EULA and the SAL, the Licensee decides to acquire additional licenses for the Software or the Documentation, the Licensee shall pay an additional surcharge. The amount of the surcharge will be proportionating to the remaining duration of the SAL (with accuracy to full calendar monthly periods). The amount of an additional payment shall be stated in the invoice for the licenses.