CUSTOMER AGREEMENT for INSTALLED VisionFlow (www.visionflow.com)
This Customer agreement governs the obligations and rights of the Customer and Visionera AB
Visionera means Visionera AB, Vegagatan 3, 113 29 Stockholm, Sweden
Authorised Person means an individual who is an employee, contractor, or consultant of the Customer.
Authorised Use means, in relation to the Product, a single installation (for greater clarity a single deployment of the Product within a J2EE application server) of the Product on a single physical server located at the Authorised Site, from where the Authorised Person may undertake use of the Product in accordance with the product documentation and populate the Customer’s website with the Product for the use of the Customer’s customers.
Authorised Site means the business premises of the Customer from time to time or the premises of a third party hosting provider contracted by Customer.
Product means the installed on-premise server version of VisionFlow, previously also known as VisionProject, including any updates provided under the terms of this agreement in accordance with clause 6.
Source Code means source code, software libraries or any other resource files contained within the Product that is accessible under the terms and conditions of this agreement
Database means the databases created and/or used by the Product, including the database structure and the data stored therein
Customer means the individual or entity that has subscribed or purchased the Product under the terms and conditions of this agreement.
User means a uniquely identified person/individual (such as an employee of the Customer or organization, or a third party) who is registered in the Product and, via a password, gains access to the Product. All persons/individuals that make use of the Product shall be uniquely identified by a personal user account on a Customer account unless otherwise agreed upon with Visionera. User accounts shall not be generic and used by multiple persons, they must be personal.
Normal user means a user that is not a “Support user”
Support user means a user that only have limited access to the Product, and that is assigned a user group configured as “Is support user” in the system. “Support users” can only log in via the so called “support center” in the system, and not through the normal login.
2. Licence Fee
The fee for the installed version of the Product is based on the number of users licenses, modules and add-on services that is agreed upon at the date of purchase and is specified on the invoice. After purchase the The fee is a non-refundable one time fee per user. The number of user licenses purchased is detailed in the invoice paid at purchase. If additional user licenses, modules and add-on services a are needed these have to be purchased separately by contacting Visionera. Prices can be changed at any time and are normally adjusted once per year, or every other year (biennially), to adjust for inflation or market changes. In addition to the initial license cost the Customer agrees to pay Visionera a yearly upgrade/maintenance and support fee of 20% of the total license cost adjusted for inflation, at a minimum this fee is EUR 2400. The upgrade/maintenance fee for the first 12 month after the purchase of the first licenses is included in the license price.
3. Grant of Licence
Subject to the terms of this agreement, Visionera grants to the Customer, and the Customer accepts from Visionera, a worldwide, non-exclusive, non-transferable, nonsublicencable licence to use the Product.
4. No Warranty
Any person using the Product does so on the basis that Visionera gives neither guarantee nor warranty nor makes any representations as to the correctness or completeness of the Product and no liability, contingent or otherwise is accepted by Visionera for errors in the Product or omissions from the Product.
5. “As is” Basis
The Product is provided on an “as is” basis without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance or merchantability or fitness for a particular purpose. Without limitation, Visionera will not be liable to any person for any loss, damage, cost, expense or other claim (including consequential damages and loss of profits) in relation to the Product including, without limitation: (1) any use or reliance on a Product by the person (including the form and content of errors in and/or omissions from any information contained in a Product); (2) any delay, interruption or other failure in the provision of the Product; or (3) any change in the form or content of the Product.
6. Visionera’s Obligations
Visionera will supply the Customer with the Product and provide basic technical support for a period of 12 months from the Commencement Date, which will include all generally available updates and/or enhancements from time to time. For the avoidance of doubt, such technical support will include e-mail support for technical issues relating to the use of the Product but will not include any on-site visits to the Authorised Site or any other third party locations. Premium support, such as prioritized or phone support, can be purchased for an additional monthly fee (more information about this is available on the Product web site).
7. Customer Obligations
The Customer must at all times: (a) ensure that only an Authorised Person may use the Product and only for Authorised Use at the Authorised Site in accordance with the terms and conditions of this agreement; (b) install all updates and enhancements which Visionera reasonably determines to be necessary to ensure the Customer’s continued and effective use of the Product, or upgrade the Product at least once a year to the latest version; (c) immediately advise Visionera in writing if the Customer becomes aware of any unauthorised use of the Product by any person. (d) If a problem occur where the customer needs assistance with the product, or regarding other types of technical support questions, and where Visionera need remote access to the customer’s server environment to resolve these, the customer is required to provide remote access to the server environment and all servers used by the product (including database, application server and file server if used) via VPN/SSH, HTTP/HTTPS, Remote desktop connection (in windows) and via a database management user interface for easy access to the database (such as MSSQL Server management studio or MYSQL Workbench or similar). Remote access to the server environment should be given at least for a limited time period sufficient to resolve the issue or answer any customer questions. (e) If the customer reports problems or bugs, or needs assistance or help, where Visionera needs a thorough description of the issue at hand to be able to help then the customer is required to provide this, this also includes screen-shots of different parts of the Product if needed. (f) If the Customer has purchased the Installed Enterprise version, Visionera must also be allowed continuous access to log in via the web based system administrator GUI (Graphic User Interface) of the system at any time using the predefined system administrator user.
8 User privacy
8.1 GDPR (General Data Protection Regulation)
If you are located in the EU, in Switzerland, or are otherwise subject to the territorial scope of Regulation (EU) 2016/679 (General Data Protection Regulation), it is recommended that you sign our Data Processing Agrerement (DPA). This is required if you are using the Enterprise version of the Product, see pararaph 7 section f) above, but it is also recommended for the Normal version of the system so you are prepared if technical support is needed and the support team needs to access your system, see pararaph 7 section f) above. The DPA is a standard agreement is used for all Customers are using the Product and can be provided by sending an email to email@example.com. More information about the GDPR legislation can be found in the knowledge base available here: https://support.visionflow.com. If you need to use a custom DPA for your organization then this may be possible at an additional fee, in this case please contact our sales team by sending an email to: firstname.lastname@example.org.
9. Unauthorised Use and Distribution
Where as a result of any deliberate or negligent act or omission by the Customer, a Product is supplied to or obtained by any person (other than an Authorised Person) without the prior written consent of Visionera, Visionera will immediately have the right (in addition to any other right or claim that Visionera may have against the Customer) to retroactively charge the Customer (in addition to any other fees paid or payable by the Customer under this agreement) a fee equal to the Licence Fee specified in clause 2 multiplied by the number of persons to whom the Product has been wrongfully supplied or obtained (whether for gain or sale or otherwise).
10. Investigation of Unauthorised Use and Distribution
Where, after due investigation, Visionera reasonably suspects that a Product has been supplied to or obtained by any person (other than an Authorised Person) without Visionera’s prior written consent, Visionera has the right to request from the Customer a certificate of compliance for the purpose of calculating the total number and type of users and/or end-users of the Product so that Visionera may ascertain whether it may exercise its rights under clause 8.
11. Customer’s Restrictions
During the term of this agreement, the Customer must not without the prior written consent of Visionera (which may be withheld and which may include certain conditions): (a) decompile, reverse engineer, disassemble, modify, adapt, repackage, create derivative works from, or otherwise attempt to derive, the Source code or Database; (b) sell, redistribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form the Product or any data/information provided to the Customer through the Product to a person (except that nothing in this paragraph (b) is intended to prevent an Authorised Person undertaking Authorised Use at the Authorised Site); (c) vary or amend the Authorised Use without Visionera’s prior written approval; (d) publish, promote, broadcast, circulate or refer publicly to the Visionera name or logo, without the prior written consent of Visionera; (e) commit any act or omission the likely result of which is that Visionera’s reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on Visionera’s interests. Under no circumstance may Customer embed the System or the Source code into another application without a separate OEM license agreement, nor shall Customer copy elements of the source code into other applications. In addition, the Product includes license protection mechanisms that are designed to manage and protect the intellectual property rights of Visionera. Customer must not modify or alter those features to try to defeat the Product use rules that the license protection mechanisms are designed to enforce. The Source Code must be destroyed after the termination of this Agreement.
12. No resale of software/service
You agree not to reproduce, duplicate, reuse, copy, sell, resell or exploit any portion of the Produce, use of the Product, or access to the Product. Resale of the Product is only allowed with a written consent of Visionera (which may be withheld and which may include certain conditions) and a reseller agreement from Visionera.
This agreement commences on the date that the Customer receiving the Product (“the Commencement Date”) and will continue in full force and effect until terminated in accordance with clause 12.
This agreement may be terminated by either party if the other party commits a material breach, being a breach of any one of Clauses 2,6,7, 8, 10 or 17.
15. Limitation of Liability
Where any law implies in this agreement any term, condition or warranty and that law avoids or prohibits a provision of this agreement excluding or modifying the application of or liability under any term, condition or warranty then the liability of Visionera is limited to:(1) the re-supply of the Product; or (2) the payment of the cost of having the Product supplied again.
16. Intellectual Property
The Customer acknowledges that the Product and all intellectual property rights in relation to the Product are the property of Visionera and Visionera is entitled to take whatever action it may decide in order to protect its intellectual property rights in the Product.
17. Customer requested customizations
For the avoidance of doubt, subject to the terms and conditions contained herein, all customizations or additional features or changes implemented in the Product for the Customer are the property of Visionera.
18. Publicity Rights
The Customer grants Visionera the right to include the Customer on Visionera’s website or other promotional material in relation to the Product. Within thirty (30) Business Days of the Customer’s written request, Visionera will remove the Customer’s name from its website customer list and will make no further reference to the Customer in any future material promoting Product.
19. No assignment or amendment
This agreement may not be assigned or amended without the prior written consent of the parties.
Payments made by the Customer under this Agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Visionera, the Customer must pay to Visionera the amount of such taxes or duties in addition to the Licence Fee under this Agreement. Notwithstanding the foregoing, the Customer shall not be liable for any taxes or duties from which it is exempt at the time such taxes or duties are levied or assessed. Visionera must provide the Customer with such documents as will enable the Customer to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
21. Governing Law and Disputes
This Agreement and the ensuing relationship between Visionera and the Company shall be construed in accordance with, and governed by, the laws of Sweden.
In the event of any dispute relating to this Agreement, the parties agree to initially make a full and good faith attempt to resolve such dispute by negotiation at an executive level, to the extent reasonable under the circumstances, prior to commencing court proceedings.
All disputes relating to this Agreement shall be adjudicated in Stockholm, Sweden, with the District Court of Stockholm (Stockholms tingsrätt) as the court of first instance.