USER AGREEMENT FOR SOFTWARE V 15.10/01
'TELEPORTEL' is Teleportel Europe NV, Kapelbaan 15, 9255 Buggenhout, Belgium with Belgian registration number BE 0 444.980.075
THIS USER AGREEMENT RELATES TO THE TELEPORTEL SOFTWARE AS LISTED ON THE WWW.TELEPORTEL.COM WEBSITE(s).
READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT (THIS "AGREEMENT") BEFORE ORDERING OR USING THE SOFTWARE. THE SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD). ' ACCEPTING' INDICATES YOUR ACCEPTANCE OF THE TERMS SET FORTH BELOW, AND CREATES A LEGAL AGREEMENT BETWEEN YOU AND TELEPORTEL EUROPE N.V.("TELEPORTEL") OWNER OF THE BRANDS LISTED ON THE WWW.TELEPORTEL.COM WEBSITE . BY USING THE SOFTWARE – ON A FREE TRIAL BASIS OR OTHERWISE I.E. BY PAYING LICENSING FEES- YOU AGREE TO ACCEPT THESE TERMS. YOU CONFIRM AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE LEGAL ENTITY YOU ARE REPRESENTING AND ITS AFFILIATES. YOU ACKNOWLEDGE TO HAVE THE AUTHORITY TO BIND THIS LEGAL ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
1 TELEPORTEL grants you, subject to payment of the fee, a non-exclusive, non-transferable license to use the Software as provided herein. Your co-workers or subcontractors 'in the back office' and your website visitors , will have access to the cloud services. The 'system manager' will have access to the cloud server for additional features. The Services shall be made available to you pursuant to this Agreement and the payments in-full. You agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features. The Software may be used only on a single computer owned, leased, or otherwise controlled solely by you. You agree that you may not assign, sublicense, transfer, pledge, lease, rent, or share your rights under this Agreement, or otherwise allow third parties any use of the Software. You agree that you may not, and may not permit or aid others to, translate, reverse engineer, decompile, disassemble, update, modify, reproduce, duplicate, copy, distribute or otherwise disseminate all or any part of the Software, or extract source code from the object code of the Software.
2The Software may contain portions from third parties and therefore if such portions do exist the end user license agreement of such third parties (as may be listed as 'third party' ) do hereby form a part and parcel of this Agreement. For information identifying the Third Party Components and Terms that apply to this software please send your request by e-mail to firstname.lastname@example.org.
3Proprietary Rights. Confidentiality. You acknowledge and agree that the Software is protected under copyright laws and international treaties. You further acknowledge and agree that all right, title, and interest in and to the Software, including associated intellectual property rights, are and shall remain with TELEPORTEL or the Third Parties who own the rights. This Agreement does not convey to you an interest in or to the Software, but only a limited right of use, revocable in accordance with the terms of this Agreement.
4License Fees and Payment. The fees paid by you to TELEPORTEL are paid in consideration of the license granted under this Agreement. All rights granted to you are subject to full payment of all such fees. It is your sole responsibility to ensure that you do not respond to any unsolicited requests for credit card details, passwords or other data. We explicitly take no responsibility for your failure to comply with the obligations in this section.
You agree to pay all sums specified in the invoices raised and sent to you. Payment obligations are noncancelable. If you provide credit card information, you authorize us to charge such credit card for all Services used. Payments of invoices are due net 5 (five) days from the invoice date.
If any payments are not received from you by the due date, such charges may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
If any amount owed by you is 10 or more days overdue (or 5 or more days overdue in the case of use by credit card), we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable. Moreover we reserve the right to suspend our services to you until all amounts due are paid in full. We will give you at least 10 days' prior notice that your account is overdue, before suspending services to you. We shall not exercise these rights, if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If you think that we have charged you in error, you must contact us – via the website contact form – within 30 days of such charge. We reserve the right to refuse a refund, if we reasonably believe that you are trying to unfairly exploit the policy of if you are in breach of the Terms of this Agreement, of in case you or a third party are using your account and/or the services fraudulently.
Unless otherwise stated, Our fees do not include VAT, any other taxes, levies or similar governmental assessments of any nature. You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. We are solely responsible for taxes assessable against it based on our income, property and employees.
Termination costs, out of country 'mobile' usage may lead to significantly higher costs than regular usage and you are solely responsible for paying for possible roaming and other applicable costs, charged by your mobile network provider or operator.
5Term and Termination. This Agreement is effective upon accepting these terms and conditions and shall continue until terminated.
6TELEPORTEL WARRANTS, FOR YOUR BENEFIT ALONE, FOR A PERIOD OF 90 (NINETY) DAYS FROM THE DATE OF COMMENCEMENT OF THIS AGREEMENT (THE "WARRANTY PERIOD") THAT THE SOFTWARE IS FREE FROM DEFECTS IN WORKMANSHIP. TELEPORTEL DOES NOT WARRANT THAT THE SOFTWARE SHALL BE ERROR FREE OR THAT IT SHALL MEET YOUR REQUIREMENTS. IF DURING THE WARRANTY PERIOD, A DEFECT IN THE PROGRAM APPEARS, TELEPORTEL WILL ATTEMPT TO REMEDY IN A REASONABLE TIME FRAME, OR, IF SO ELECTED BY TELEPORTEL, REFUND THE LICENSE FEE PAID BY YOU HEREUNDER. YOU AGREE THAT THE FOREGOING CONSTITUTES YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH BY TELEPORTEL OF ANY WARRANTIES MADE UNDER THIS AGREEMENT. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE SOFTWARE IS LICENSED "AS IS", AND TELEPORTEL DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING,WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
We shall provide minimal support for the Services to you and use reasonable efforts to make the Services available, except for planned downtime . Moreover TELEPORTEL cannot guarantee that the Software, Services, links, website(s), helpdesk or server will be accessible or function at all times, without interruptions, delays or errors. A number of factors may impact the quality of the Services and may result in the failure of your communications alltogether. This illustrative and non-exhaustive list includes- but is not limited to: acts of God, external causes, nuclear interference, strikes or other labor problems (other than those involving our employees), Internet and hosting service provider failures or delays, denial of service attacks or any other circumstance not under our control, your local network, firewalls, your internet service provider, connections to the public internet, the network and your power supply, type of camera and microphone, audio and video interfaces of your device, operating system and browser ,etc... We take no responsibility for any interruption or delay caused by any failure of or inadequacy in any of these items or any other items over which we have no control.
7 THE LIMITED WARRANTY, EXCLUSIVE REMEDIES AND LIMITED LIABILITY PROVISIONS SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN TELEPORTEL AND YOU, AND YOU ACCEPT AND CONFIRM THAT TELEPORTEL WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE ON AN ECONOMIC BASIS WITHOUT SUCH LIMITATIONS.
8 You agree that neither the Software nor any direct software thereof is being or will be used, shipped, transferred or re-exported, directly or indirectly, into any country prohibited by the United States Export Administration Act and the regulations thereunder, or will be used for any purposes prohibited by such Act. The software was developed at private expense and with no government funds. If any part of the Software is acquired by or on behalf of a unit or agency of the U.S. Government, the Government agrees that the Software and all related documentation are "commercial computer Software" or "commercial computer Software documentation' and that, absent a written agreement to the contrary, the Government's rights with respect to the Software and the related documentation are limited by the terms of this Agreement, pursuant to the geverning laws as applicable.
9Content. TELEPORTEL is not the source of, does not check or endorse and takes no responsibility for the content of communications made. This applies to both the live communications and to the prerecorded content. The content of communications is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. The content of communications may be protected by intellectual property rights, which are owned by third parties. You are responsible for the content you choose to communicate and access using the Software. In particular, you are responsible for ensuring that you do not submit material that is (i) copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner (ii) a falsehood or misrepresentation (iii) offensive, unlawful, harmful to minors, obscene, threatening, pornographic, harassing, hateful, ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; (iv) an advertisement or solicitation of business; or (v) impersonating another person. We reserve the right (but shall have no obligation) to review content for the purpose of enforcing these Terms. We may in our sole discretion block or otherwise remove the content of communications as part of its effort to protect the Software, Services or its customers, or otherwise enforce these Terms. Moreover, we may in our sole discretion remove such content and/or terminate these Terms and your User Account if you use any content that is in breach of these Terms.
If we receive any notification that any material that you post, share and/or publish on the TELEPORTEL servers or through the Software (excluding your private communications) is inappropriate, infringes any rights of any third party, we reserve the right to automatically remove or block your account. The account shall be taken down without any admission as to liability and without prejudice to any rights, remedies or defenses, all of which are expressly reserved. You acknowledge and agree that TELEPORTEL is under no obligation to put back such User Account at any time. If you believe that others infringe any of your rights (including intellectual property rights) or are unlawful, please contact us immediately (marketing@TELEPORTEL.com) or via the contact form on the main website. You understand and accept that you are solely responsible for any implications resulting from your complaint (including but not limited to removal or blocking of the account) and you acknowledge, accept and agree that complaints may be used in court . Any false or misleading information provided by you may result in civil and criminal liability ; which you accept.
You are solely (i) responsible for compliance with this Agreement, (ii) responsible for the legality of your data and the manner in which you acquired your data, (iii) to ensure use of the Services only in accordance with the applicable laws. You shall not (a) make the Services available to anyone other than authorized Users, (b) resell, rent, lease or otherwise make available the Services, (c) use the Services to store or transmit infringing or otherwise unlawful material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or distribute malicious code, (e) interfere with the integrity or performance of the Services or third-party data or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
You may not : intercept or monitor communication which is not intented for you. Collect any personally identifiable information, including account names. Impact or try to impact, the availability of the Software, server and Services for example with a Denial of Service or distributed denial of service (DDoS) attack. Use or launch any automated system (such as but not limited to robots, readers, etc..).
Services may be subject to other limitations, such as, for example, limits on disk storage space, on bandwidth availability.
In order to use the software and other softwares you will need an Internet broadband connection. You are responsible to provide all the necessary equipment to access the Internet and you will be responsible to provide all the necessary accessories yourself (camera, microphone, headset, speakers, lighting, etc…).
10Indemnification. TELEPORTEL shall defend you against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that the use of the Services or Software as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and shall indemnify you for any damages, reasonable attorney fees and costs finally awarded against you as a result of, and for amounts paid by you under a courtapproved settlement of, a Claim Against You; provided that you (a) promptly give us written notice of the Claim Against You; (b) give us sole control of the defense and settlement of the Claim Against You (provided that we may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to us all reasonable assistance, at our expense. In the event of a Claim Against You, or if we reasonably believe the Services may infringe or misappropriate, we may in our sole discretion and at no cost to you (i) modify the Services or Software so that they no longer infringe or misappropriate, without breaching our warranties described in this Agreement, (ii) obtain a license for your continued use of the Services of Software in accordance with this Agreement, or (iii) terminate your account for such Services upon 30 days' written notice and refund to you any prepaid fees covering the remainder of the term of such subscriptions after the effective date of termination.
You shall defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that your data, or your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against Us"), and shall indemnify us for any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a court-approved settlement of, a Claim Against Us; provided that we (a) promptly give you written notice of the Claim Against Us; (b) give you sole control of the defense and settlement of the Claim Against Us (provided that you may not settle any Claim Against Us unless the settlement unconditionally releases us of all liability); and (c) provide to you all reasonable assistance, at your expense.
This chapter 'Indemnification' states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this chapter.
11Limitation of Liability. YOU ACKNOWLEDGE AND AGREE THAT TELEPORTEL WILL HAVE NO LIABILITY WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES OR LOSSES HAS BEEN NOTIFIED TO TELEPORTEL, IN CONNECTION WITH OR ARISING FROM YOUR USE OF TELEPORTEL WEBSITES, OR THE INTERNET COMMUNICATIONS SOFTWARE OR OTHER SOFTWARE THAT IS PROVIDED . YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH SUCH SOFTWARE AND/OR TELEPORTEL WEBSITES IS TO IMMEDIATEL CEASE USE OF SUCH SOFTWARE AND/OR TELEPORTEL WEBSITES, LINKS AND SERVERS.
Subject to the above, TELEPORTEL shall not be liable to you, whether in contract, tort (including negligence) or any other theory of liability, and whether or not the possibility of such damages or losses has been notified to TELEPORTEL, for / any indirect, special, incidental or consequential damages, any loss of income, business, actual or anticipated profits, opportunity, goodwill or reputation (whether direct or indirect), any damage to or corruption of data (whether direct or indirect), any claim, damage or loss (whether direct or indirect ) arising from or relating to: your inability to use the Software or Services, the limitations and restrictions set out in this Agreement, any claim, damage or loss (whether direct or indirect) arising from or relating to any software or service provided by a third party under their own terms of service, any Third Party Technology, any third party website.
Subject to the above, Our total liability to you under or in connection with these Terms (whether in contract, tort (including negligence) or any other theory of liability) SHALL NOT EXCEED IN AGGREGATE THE AMOUNT PAID BY YOU FOR THE SOFTWARES IN THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE RELEVANT CLAIM, SUBJECT TO A MAXIMUM OF SIX THOUSAND FIVE HUNDRED (6.500,00) EUROS IN ALL CASES
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor a Disputed Party will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
12 Law. This Agreement shall be construed and governed in accordance with the laws of Belgium regardless of its conflict of laws rules, and the competent courts of Brussels shall have sole and exclusive jurisdiction over any dispute under this Agreement or otherwise related to the Software. If any action is brought by either party to this Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation.
13 The Terms of this Agreement are subject to change and TELEPORTEL reserves the right to change clauses. That implies that the Terms of one order may be different from the Terms of another order, placed at another time. We therefore strongly recommend to read these the terms before 'accepting' them at the time of placing an order; every time you place new order.
14 Miscellaneous. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof. This Agreement represents the entire agreement concerning the Software between you and TELEPORTEL,and it supersedes any prior proposal, representation, or understanding between the parties. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
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