End User Licence Agreement for the Captio software.
THIS IS A CONTRACT. BY DOWNLOADING, INSTALLING, CONTRACTING, COPYING THIS SOFTWARE OR ACCESSING IT, YOU ACCEPT THE TERMS OF THIS END USER LICENCE AGREEMENT. IF YOU ACCEPT THESE TERMS ON BEHALF OF ANOTHER PERSON, COMPANY OR ANOTHER LEGAL ENTITY, YOU DECLARE AND GUARANTEE THAT YOU HAVE COMPLETE AUTHORITY TO BIND SAID PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS.
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE, OR ACCESS IT.
Second.- System of Responsibility
2.1. Captio a) will provide the standard support applicable to the Licence contracted by the Customer at no additional charge; b) make all reasonable commercial efforts to provide a service that is available 24/7, with the exception of: (i) updates and maintenance operations forewarned to the Customer at least 7 days in advance; (ii) any non-availability caused by force majeure or hazard, including, but not limited to, for instance, acts of government, fire, flooding, earthquake, civil disorder, terrorism, strike (not by Captio employees), failure or delay on the part of the Internet service provider.
2.2. Captio shall apply administrative, physical and technical means to protect the security and confidentiality of the Customer data, as provided in the Eighth Clause here to. This protection shall include, by way of information without limitation, measures to prevent access, use, modification and non-disclosure of the Customer information by Captio, except in providing the Licence service contracted by the Customer, and preventing and dealing with problems with the service or technical faults.
Third.- Use of the Service
3.1.- Subject to the terms and conditions of this Agreement, in this document Captio grants you the non-exclusive, non-transferable and non-sub licensable right to use the Software for a period of time equal to the duration of the Service Subscription Agreement.
3.2. The Software, including, without limitation, its object code and source code, both whether this is provided or not, are of a strict commercial nature for Captio. This Agreement does not constitute a purchase and sale and transfers no title, intellectual property right or right of ownership with respect to the Software. You hereby recognise and accept that the Software and all ideas, methods, algorithms, formulae, processes and concepts used in developing the Software or incorporated in it; all future updates of directives, databases and of any other kind of the Software or related to it ; all derived works based on any of the above elements and all copies of the above are commercial secrets and the exclusive property of Captio of great commercial value to Captio.
3.3. This Licence expressly excludes all rights over the Software that are not for the User’s own use, such as, for information without limitation, rights of reproduction, transformation, distribution and public communication. Therefore the User cannot sell, rent, lend, distribute, grant, license, sub license or transfer the Licence in any way to others save in the manner provided in this Agreement
3.4. The right to use the Software will be limited to the functions contracted in the Service Subscription Agreement or on the Order Form.
3.5. The User will not perform or attempt to perform any of the following actions, nor will it allow third party: i) decompile the Software, disassemble it or use reverse engineering techniques, nor create or recreate the source code of the Software; (ii) remove, erase, conceal or manipulate any copyright or any other identification or stamp, instruction label or notice of property rights of the product printed or stamped, affixed, encoded or recorded in any Software or Documentation, nor evade the preservation of all copyright notices and other proprietary notices on all copies of the Software and the Documentation it might make; (iii) lease, lend, sell, market, license, sublicense, distribute or otherwise grant any person or entity any right to use the Software, except to the extent expressly permitted in this Agreement; (iv) use the Software to supply, individually or in combination with other products or services, to any person or entity, either in exchange for a fee or in any other way; (v) modify, adapt, manipulate, translate or compile works derived from the Software or Documentation; (vi) combine or merge any part of the Software or the Documentation with other software or documentation, or resort to the Software or use it in any other way as part of a software development initiative (including, without limitation, any routines, scripts, codes or programs) with functional attributes, visual expressions or other functions similar to those of the Software or to compete with Captio; (vii) except with prior written permission from Captio, publish performance or benchmark tests or analyses related to the Software; (viii) use the Software or the Software platform to send any unsolicited or authorised advertising, promotional materials, unwanted emails, chain emails, spam to persons or lists of people who have not requested or given their consent in that sense; (ix) forge any email, Captio website, news, or in any way use the Software or the content of the Software to send misleading, false information; (x) interfere with or attempt to interfere with the access of any User to the Software, to the server or to the telecommunications network. By way of example without limitation, this includes sending a virus, overloading or sending spam mail, or; (ix) use the Software or the content of the Software platform for any purpose other than that of the Software, or for the benefit of any third party, or in any manner not permitted by these Terms and Conditions.
3.6 In the event that any of the above actions described in the previous section is performed or attempted, the service or the undue or fraudulent acts and activities being carried out may be blocked, with the consequent application of that provided in the Twelfth clause.
Fourth.- Technical support
4.1. The User is entitled to receive the updates and improvements of the Software and the Support Services at no cost, provided the Software is used in accordance with this User Licence Agreement for which it is contracted. The updates and improvements and Support Services provided for the Software are for the exclusive use of the User and not for distribution to others or use by them. If the Software is used in a way that breaches this Licence Agreement, you will not be able to receive the updates or improvements of the Software, or the Support Services.
4.2. The Support Services are available for Users in the form of assistance via email, web portal or web chat during the working hours of the Technical Support Service. The Support Services are not available at a physical location. The Support Services are limited to: assistance with the installation of the Software, its activation, transfers, error messages, operative faults or problems. The Support Services do not include: the auditing and correction of models; complete installation services; training in the Software; consultancy or creation of models; automation or customisation of models; resolution or diagnosis of hardware problems; any other service not specified beforehand.
4.3. During the supply of the Support Services, you agree to follow the recommendations of Captio and to provide all information that Captio reasonably ask for in resolving a problem. This information might include: your name and that of your company; serial number or activation ID; name and version of the Software; information on the host application and the operative system; error messages; screenshots; access to view your PC via Webex or similar software for shared use of the desktop wherever possible; the output models or data as far as possible. You also agree to install the latest updates, improvements or repair files that Captio might recommend to you in solving a problem.
Fifth.- Limitation of liability
5.1. Captio waives all responsibility derived from information passed on or disseminated through the Software and its website, provided this information has been handled or introduced by the Customer, a User or an external third party
5.2. Captio accepts no liability for the nature and type of information and contents stored by the User. However. In compliance with the provisions of art. 11 and 16 of the LSSI-CE, Captio avails itself to all users, authorities and security forces, collaborating actively in removing or blocking all contents that might affect or contravene national or international legislation, the rights of third parties or morals and public order. Where appropriate, any User that considers that there might be some content in the website that could be classified as above is asked to immediately notify Captio.
5.3. In no case shall the liability of Captio and/or the User, save wilful misconduct or negligence, exceed 100% of the total amount of the Products and Services paid for by the User in the 12 months immediately prior to the incident causing the liability.
5.4 Neither of the Parties will be liable for the other or for a third party for indirect, special, consequential or incidental losses, for direct or indirect damage and any resulting from: a) loss of income, b) missed opportunities, c) loss of profits; d) recovery costs, even if the Party has been notified of said damage.
Sixth.- Guarantee and responsibility
6.1. Captio shall provide the Users with the Software “as is” without any other implicit or presumed guarantee, or guarantee of aptitude for certain purposes, or of the existence of defects or errors, or in relation to its ability to be integrated in a certain system, or in relation to the accuracy of the information contained in it, except for those expressly set out in this Agreement, and the User trusts in the Software and the results under their own exclusive responsibility. Captio assumes no liability for indirect, emerging, punitive damage and/or for loss of profits through the use of the Software by the User.
6.2. However, Captio grants the User a guarantee for a maximum time of 90 days from the date of purchase if any fault or defect should arise in the Software to prevent it from functioning adequately. This guarantee does not cover damage or defects derived from the actions or omissions of the User, the actions of a third party or events beyond the reasonable control of Captio.
6.3. If such a defect or fault should occur and the User should duly and immediately inform Captio, Captio shall check its operation and if it should detect faults or defects it will repair or replace the Licence acquired by the User free of charge. If Captio should believe that it cannot be repaired or replaced, Captio will refund the amount paid by the User depending on the quantity reflected in the Order Form or invoice they paid for the Software once Captio has received their written declaration and promise that they have eliminated all copies of the Software and not to use the Software. The Software shall be uninstalled and any support and associated materials (such as printed documentation) returned to Captio with the proof of purchase for the refund.
6.4. This is the only express or implicit guarantee of any kind. Captio excludes all implicit guarantees of marketability and suitability for a certain purpose, and of non-infringement. This guarantee grants you specific legal rights, and you may also have other rights that will vary depending on each state or country. Captio provides the Technical Support Services without any guarantee.
6.4. Exclusion from Guarantee: THE ABOVE GUARANTEE WILL NOT BE APPLICABLE IF: (i) THE SOFTWARE IS NOT USED ACCORDING TO THAT STIPULATED IN THIS AGREEMENT OR IN THE DOCUMENTATION; (ii) ANY ENTITY OTHER THAN CAPTIO SHOULD MODIFY THE SOFTWARE OR PART OF IT, OR (iii) AN ERROR SHOULD BE PRODUCED IN THE OPERATION OF THE SOFTWARE CAUSED BY EQUIPMENT OR A SOFTWARE PRODUCT NOT SUPPLIED BY CAPTIO.
Seventh.- Intellectual and/or Industrial Property Rights
7.1. All industrial and/or intellectual property rights on the Software and any extension, improvement or modification thereof are the exclusive property of Captio, so the User shall refrain from using or registering any patents, brands or other distinctive signs held by Captio in its own name, and shall not modify, reproduce, distribute or publicly communicate or make the Software available to third parties save with respect to what is provided in this Agreement and with previous authorisation from Captio.
7.2. The User may not directly or indirectly disencrypt, decompile or derive the source code of any Captio intellectual and/or industrial property to which it might have access here through, or perform inverse engineering on the design and function of the referred intellectual and/or industrial property. Within the framework of contractual good faith, the User agrees to rapidly and effectively report any breach or founded fear of breach by third parties of the Software that might affect the legitimate interests of Captio, of which it might be aware.
7.3. The User shall preserve all industrial and/or intellectual property rights of which it is holder over informational contents that it might store through the Software in the use thereof by virtue of the contracted Licence of Use. Consequently, by virtue of this Agreement, the User shall not transfer the holdership or grant a licence or right of use other than that provided therein to Captio or any third party, or of any other type in relation to any information, content or intellectual or industrial property rights owned by it.
7.4. Captio shall indemnify the User over any claim and/or proceedings against the Customer by a third party due to breach of intellectual property rights by our Software. And shall indemnify it of any damage, lawyers fees or assumed costs up to the limit of the total sum of the amounts received by the Customer in the 12 months prior to the claim, providing: a) the Customer notifies Captio in writing of the third party claim, b) The Customer cooperates at all times in providing documentation and resolving the claim.
7.5. Exclusions: Without prejudice to the remaining provisions of this Agreement, Captio has no obligation to indemnify or mount a defence with respect to the claims that follow:
Eighth. - Security, confidentiality and data protection
To ensure private and confidential access, the Customer is provided with a secret login and password. It is essential that these access data be changed by the User for others that are completely confidential on the first access. From the time when Captio provides the access information, the User is responsible for preserving it with the utmost diligence and keeping it secret for an indefinite time. In such a case, the User is responsible for all damages that may occur to themselves, to others or to Captio and which may have resulted from their lack of confidentiality regarding data access.
The Parties recognise the mutual duty to secrecy and confidentiality and non-disclosure in relation to the confidential information obtained from the other. The status of confidential will be that given to this Contract and any documentation or information that the parties might exchange as a consequence of their relationship until the end of the Service Subscription Agreement.
For the effects of this clause, the expression "Issuer" and "Receiver" mean, respectively, the party that provides and the party that receives the confidential information.
Any information of any nature (technical, commercial, financial, operational or another kind) in any form and on any support (verbal, written, recorded or any other kind) that might be provided by the Issuer to the Receiver in relation to the purpose of this Contract, will be considered "Confidential Information". This category also includes all information produced on the basis of the Confidential Information.
The receiver agrees to accept the Confidential Information within a framework of confidence and not to supply it to any third party or use it to its own benefit without the prior consent in writing of the Issuer. The Receiver also agrees:
On the simple request and choice of the Issuer, the Receiver shall destroy or return all Confidential Information to the Issuer, albeit in writing, recorded form or on any other support. The destruction or returning of the confidential Information shall not relieve the Receiver of its obligation to treat said Confidential Information as strictly confidential throughout the Contract, said confidentiality obligation persisting beyond the end of the contractual relationship between them.
The restrictions relative to the use, reproduction, transmission or access to the Confidential Information referred to in this clause will not be applicable in cases where the information:
The Receiver shall be answerable to the Issuer for any direct damage caused by the breach of any of the binding obligations of this clause.
The obligations established in this clause are binding on the Receiver and its respective legal successors in the respective activities, including any corporation resulting from the merger, takeover or any other restructuring that the Receiver might undergo.
The Receiver is bound indefinitely by that established in this clause after the end of the contract, this rule being applicable even to Confidential Information that might have been provided before its signing.
8.3. Data protection
Ninth.- Trial period
Your rights to use the Software in trial are limited to the trial period that might have been specified. The trial Software and the duration of the trial period are stipulated during the installation. You may have the option of turning the trial rights into perpetual or subscription rights, and such options may appear upon the expiry of the trial period. After the expiry of any trial period without conversion, the trial Software will stop working and the licence rights will terminate.
Tenth.- Subscription Period
If you have received the Software licence via the Service Subscription Agreement, your rights to use the Software are limited to the subscription period established therein. You may have the option of extending the subscription. If you extend the subscription, you can continue using the Software until the end of the extended subscription period. After the expiry of any trial period without extension or conversion, the Software will stop working and the licence rights will terminate.
The electronic documentation included with the Software can only be copied and used for internal purposes. The Software documentation cannot be sold, rented, leased, supplied or distributed in electronic or physical format to others.
Twelfth.- Termination of the Licence of Use Agreement
12.1. The period of each Licence is one year counting from the date of issue of the corresponding invoice, unless it has been otherwise provided in the Service Subscription Agreement with the customer. The Licence subscription is renewed automatically each year, unless either of the Parties should irrevocably and in writing expressed their will not to renew at least 30 days in advance of the termination of the period of the contracted Licence and/or Licence Plan.
12.2 This licence is effective until its cancellation. This licence will also be cancelled if you fail to meet any of the conditions of this Agreement and in the absence of which you fail to correct said infringement within a maximum time of 30 days after being warned to the effect.
12.3 After the termination of the Agreement or the end of the period, you shall return or destroy all copies of the Software and the Documentation as soon as possible.
Thirteenth.- General provisions
You cannot concede this Agreement without previous written consent from Captio, and all concession without consent will be null and void. The intention of the parties is not to create a company or agency relationship between them hereby. Each provision of this Agreement will be interpreted in such a way as to make it effective and valid according to applicable law. However, if any provision of this Agreement should become or be declared impossible to fulfil by any competent law court, this provision will be considered eliminated and the remainder of this Agreement shall maintain its full force and effect.
Fourteenth.- Complete agreement
This Agreement, along with any appendix or amendment included with the Software or the Support Services, constitute a single complete Agreement for the Software and the Support Services.
Fifteenth.- Applicable law and jurisdiction
15.1. The law applicable to this Agreement will be Spanish law. In everything not expressly provided in the clauses or in the appendices, the Agreement will be governed by the Civil Code and supplementarily by all remaining provisions of common Spanish law in force at all times.
15.2 Likewise the Parties agree to interpret and carry out this Contract in accordance with the principles of equity and good faith, resolving all differences that might appear between them over the application, development, fulfilment, interpretation and performance thereof by means of friendly negotiations and agreements.
In the absence of the above, the Parties agree to waive their own law and to submit any difference, discrepancy or dispute related to the Contract or derived there from exclusively to the Courts and Tribunals of the city of Barcelona.