Important: by downloading, installing or using the countroll® application, software or any of its updates, upgrades or patches, you agree to be exclusively bound by the terms and conditions of this end user license agreement that you enter into with licensor, as identified below.
Please read this agreement carefully before downloading or using the application or software. Afterwards, please confirm your acceptance of this agreement by clicking on the “i agree” button below.
This Agreement exclusively governs Your use of the countroll® Application, SOFTWARE, Tag, SENSOR AND PLATFORM, as defined below.
Software Means the countroll® software for pc and tablet that will enable advanced data processing and which will interact with the Platform.
|Agreement||Means this End User License Agreement or “EULA”, together with any exhibits, schedules or amendments thereto.|
|Application||Means the countroll® mobile application, together with its upgrades, updates and patches, that enables wireless connectivity, data transfer and data processing through interaction with the Tag, Sensor, Platform and Software.|
|Business Day||Means Monday until Friday, from 9 AM to 5 PM Belgian time, excluding weekends, Belgian public holidays and any days on which most Belgian banks are not open for business offline.|
|End User||Means a person or company that uses the Application, Tag, Sensor and Software together with any interactivity with the Platform, for its own internal operations, excluding any OEM use or any other use that would allow any third party access to and use of the Application, Tag or Sensor.|
|License||Means the license rights granted to Licensee under this Agreement.|
|Means the party that enters into this Agreement with Licensor. When used in this Agreement, the terms “You”, “Your” or “Yours” refer to Licensee. Licensor will identify Licensee on the basis of Your data input. In case of doubt, Licensor’s identification of its Licensee shall be solely applicable.|
|Licensor||Means NV Hannecard, a company incorporated and existing under Belgian law, CBE registration n° 0892.311.512, currently with registered offices at B-9600 Ronse (Belgium), Ninoofsesteenweg 589.|
|Platform||Means the cloud hosted digital countroll® platform, a platform and database that, through the Application and Software, exchanges data with the Tag and Sensor and that interacts with Licensor’s ERP system.|
|Sensor||Means the countroll® sensor, a device that includes a sensor, processor, battery, non-volatile data storage, a wireless network interface and firmware and that enables, when compared with the Tag, advanced data logging, exchange and consultation with regard to rollers, wheels and similar products.|
|Tag||Means the countroll® tag, a device enabling certain data storage, in particular with regard to the identification, history and data sheets of rollers, wheels and similar products.|
|Term||Means the duration or term of this Agreement, as provided in section 7 below.|
2. License type and scope
2.1. The Application and the Software, including their interaction with the Tag, Sensor and Platform, is licensed to You, not sold.
2.2. This Agreement grants You, Your employees, Your management and independent contractors working on Your behalf, a non-exclusive right to install and use the Application and Software, as an End User and solely for the purpose of using both in interaction with Tags and Sensors provided by Licensor or with the authorization of Licensor.
2.3. The License granted to You is strictly limited to the type and number of licenses confirmed by Licensor through its invoice or otherwise in writing.
2.4. Licensor may at any time provide You with an update, upgrade or patch for the Application or Software and require it to be immediately downloaded and installed as a condition for You to be allowed to continue using the Application, Software, Tag or Sensor.
3. Intellectual property rights
3.1. You acknowledge that the Tag, Sensor, Application, Software and Platform are, either separately or collectively, protected by intellectual property rights, including in particular patents.
3.2. All intellectual property rights and trade secret rights, registered or unregistered, existing now or in the future, in any territory worldwide, with regard to the Tag, Sensor, Application, Software and Platform shall solely belong to Licensor and, where applicable, Licensor’s own licensors. You waive the right to challenge any of Licensor’s intellectual property rights.
3.3. Licensor shall be the sole and exclusive owner of all database rights existing with regard to the database generated within the Platform through Your use of the Application or Software. The foregoing does not in any way limit Your right to use, as You see fit, any data output that You have stored on any of Your data carriers during the Term of this Agreement.
3.4. You may not decompile, disassemble or reverse engineer the Tag, Sensor, Application, Software or any part thereof.
3.5. Your License rights under this Agreement, together with Your obligation to pay any fees due thereunder, are not in any way conditioned by or contingent upon the continued existence of any specific intellectual property right.
4. License fee
Your license rights under this Agreement are conditional to Your timely and complete payment of the applicable license fees, as agreed upon in a separate agreement between You and Licensor. Licensor’s standard license fees, as available on its website, shall apply if no separate agreement was entered into.
5. Warranties, disclaimer and limitation of liability.
5.1. Licensor represents and warrants:
- That the execution, delivery and performance of this Agreement will not violate any agreement by which it is bound.
- That there are no pending third party claims related to the Tag, Sensor, Application, Software or Platform and that, to its knowledge, no are threatened.
- That it will defend and hold You harmless against any claim, lawsuit or proceeding brought against You on the basis that Your authorized use of the Tag, Sensor, Application or Software infringes upon an intellectual property right protected by the laws of the European Union or their member states (including the UK) but only to the extent that such claim is directly based upon the Tag, Sensor, Application or Software itself (and not on Your unauthorized modifications or combinations with other products). The foregoing undertaking of Licensor is conditioned upon: (1) You notifying Licensor in writing of any claim within ten (10) Business Days after You first receive notice thereof, and (2) You providing to Licensor at no cost such assistance and cooperation as it may reasonably request from time to time in connection with the defense of the claim and (3) You allowing Licensor to have sole control over the defense of any claim (including, without limitation, the selection of counsel and the right to settle on any terms Licensor deems desirable in the sole exercise of its discretion). Licensor may however not enter into any settlement that includes any recognition of liability on Your behalf without having obtained Your prior written consent.
5.2. LICENSOR ONLY PROVIDES THE WARRANTIES EXPLICITLY MADE IN THIS AGREEMENT. ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER IMPLIED, EXPRESS OR STATUTORY, ARE DISCLAIMED.
5.3. The limitation of liability and exclusions of certain damages stated herein shall apply regardless of the failure of essential purpose of any remedy. TO THE EXTENT NOT PROHIBITED BY MANDATORY LAW, AND EXCEPT FOR THE SITUATION OF WILLFUL MISCONDUCT OR FRAUD, LICENSOR SHALL IN NO EVENT BE LIABLE FOR LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS, LOSS OF DATA, OR ANY INCIDENTAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING SUCH DAMAGES ARISING FROM ANY BREACH OF THIS AGREEMENT OR ANY TERMINATION OF CONTRACT, TORT OR OTHERWISE AND WHETHER OR NOT FORESEEABLE, EVEN IF LICENSOR HAS BEEN ADVISED OR WAS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. LICENSOR’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, SHALL, UNDER NO CIRCUMSTANCES, EXCEED THE FEES PAID TO LICENSOR UNDER THIS AGREEMENT during a period of twelve (12) months prior to YOUR KNOWLEDGE of the grounds on which the relevant claim was based.
6. Use of data
6.1. Every read out of the Sensor through the Application or Software will initiate an automated transfer of the collected data to the Platform. Licensor is allowed to store, maintain and produce a database with regard to all data thus collected.
6.2. Licensor will only use data collected on its Platform for providing support and maintenance, for quality control and improvements, for big data analysis and for predictive maintenance. Licensor does not aim at obtaining any personal identifiable information and will not use any data for purposes of direct marketing.
6.3. Licensor is not held to provide a copy of any data collected during the Term of this Agreement after its termination or expiration.
7.1. The Term of Your License rights under this Agreement will correspond to the period of time for which You have paid adequate license fees as provided in section 4. Without prejudice to the foregoing, Your license rights will only continue in effect for as long as You use the Application or Software in combination with Tags or Sensors provided by Licensor or by a third party that was authorized to do so by Licensor.
7.2. Both Licensor and Licensee may terminate this Agreement for cause in case of a material breach of this Agreement (e.g. Your failure to timely pay any fees due under this Agreement) that has not been remedied within ten (10) Business Days following receipt of registered notice urging such remedy. No such ten (10) Business Days cure period will apply for a breach that, given its nature, cannot be remedied. Termination for cause will be effective immediately upon receipt of written notice thereof.
7.3. Both Licensor and Licensee may terminate this Agreement for convenience upon serving at least three (3) months written notice. Termination for convenience will not entitle You to any refund of fees paid in performance of this Agreement.
7.4. Upon termination of this Agreement and irrespective of the grounds therefor:
- You must immediately terminate any use of the Application and Software and Licensor may require You to return to it, without any compensation or coverage of costs being due, any remaining Tags or Sensors in Your possession.
- Licensor may terminate Your access to the Platform and shall not be obliged to provide You with any data stored thereon. In such case You may however continue to use any data stored on Your data carriers through the use of the Application or Software prior to termination of this Agreement.
8.1. Notices. Any notices, excluding day-to-day operational correspondence between Licensor and Licensee, to be sent under this Agreement, must be done in writing and shall be deemed received either: (i) upon the time of actual receipt when sent by courier service that includes a signed acknowledgment of receipt or (ii) the third Business Day after being sent by registered mail.
8.2. Assignment. You may not assign or delegate this Agreement or any of Your rights or obligations thereunder, in whole or in part, by operation of law or otherwise, to any third party without the prior written consent of Licensor.
8.3. Inspection. You must permit Licensor, or a third party appointed by Licensor, to inspect Your facilities to verify Your compliance with this Agreement. Licensor will provide at least five (5) Business Days prior written notice of any such inspection and will conduct same during normal business hours in a manner that does not unreasonably interfere with Your operations.
8.4. Governing law and jurisdiction. This Agreement is governed by and shall be construed and interpreted in accordance with Belgian law and not effect shall be given to any other choice of law or conflict of laws rules (Belgian or foreign) that would cause other laws to be applicable. The application of the UN Convention on the Sale of Goods is excluded. Licensor and Licensee consent to the exclusive jurisdiction of the courts of Ghent, Ghent division, Belgium.
8.5. Entire agreement. This Agreement reflects the entire agreement between Licensor and Licensee with regard to its subject matter and supersedes any prior proposals, negotiations and other written or oral communications between the parties with regard to its subject matter, excluding only the separate agreement(s) with regard to license fees as referenced in section 4. No modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless made in writing and, when invoked against Licensor, duly signed by its authorized representative.
8.6. Counterparts. This Agreement may be executed in any number or counterparts, notwithstanding the fact that the parties thereto are not signatories to a single instrument. Acceptance and execution of this Agreement may take place electronically, via click consent or otherwise.
THUS HAS BEEN AGREED UPON