Terms & Conditions

Terms & Conditions

CellaVision® Proficiency Software License Agreement

This end user license AGREEMENT (this “Agreement”) IS A LEGAL AGREEMENT BETWEEN, ON THE ONE HAND, YOU (EITHER AN INDIVIDUAL OR AN ENTITY) ("LICENSEE") AND, ON THE OTHER HAND, CELLAVISION AB ("CELLAVISION") FOR THE OBJECT OF LICENSE AS FURTHER DEFINED HEREIN.

BY CLICKING ON THE "I ACCEPT" BUTTON, INSTALLING, COPYING OR OTHERWISE USING THE OBJECT OF LICENSE, LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSEE MAY NOT DOWNLOAD, ACCCESS, INSTALL, OR USE THE OBJECT OF LICENSE.

1. Scope of Agreement

1.1 CellaVision has developed and owns the educational software application more particularly described in Exhibit A, made available to Licensee as a hosted application service available through a URL provided to Licensee by CellaVision (the “Software”).

2. Definitions

2.1 “Confidential Information” means this Agreement, the Documentation, information, data drawings, specifications, trade secrets, object code and machine-readable copies of the Software, source code relating to the Software, and any other proprietary information supplied to Licensee by the CellaVision under this Agreement.

2.2 “Documentation” means all on-line help files, specifications and/or written instructions regarding the use of the Software and/or the Service.

2.3 “Evaluation License” means a license for the Object of License which is identified as “free”, “demo”, “trial”, “evaluation” or similar.

2.4 “Licensee Data” means data in electronic form input or collected through the Service by or from Licensee.

2.5 “Object of License” means the Software and the Documentation.

2.6 “Use” means utilisation of the Object of License by loading, transmitting, accessing, running, interacting, copying or otherwise disposing of the same in accordance with this Agreement and as set out in the Documentation.

2.7 “User” means each individual employed by or otherwise connected to Licensee which Use the Object of License.

3. License Grant etc.

3.1 Subject to the terms and conditions of this Agreement, CellaVision hereby grants the Licensee and each User a non-exclusive, non-transferable and non-assignable, non-sublicensable right to Use the Object of License (the “License”). The License to the Software is limited to the executable object code form thereof only.

3.2 If the License granted is an Evaluation License, Licensee’s right to Use the Object of License is limited to the sole purpose of evaluating the suitability of the Object of License for the Licensee’s intended purpose during a trial period of three (3) months.

3.3 The License is limited to a number of Users corresponding to the license fee paid.

3.4 Licensee may make a limited number of copies of the Documentation in order to support Licensee’s Use of the Object of License as permitted by this Agreement.

3.5 CellaVision reserves the right, at any time and without prior notification to Licensee, change the Object of License with regard to scope, functionality, availability etc.

3.6 Licensee will be provided with log in details in order to allow each User to access the Object of License. Licensee assumes full responsibility for the log in details and shall keep them confidential and protect them and the Object of License from undue disclosure.

4. License Restrictions

4.1 Licensee is responsible for all activities it and the Users undertake with respect to the Object of License. Without limiting the foregoing, Licensee shall ensure that it shall itself, or through any parent, subsidiary, affiliate, agent or other third party:

a) not Use, copy or transfer the Object of License other than as permitted by this Agreement and in accordance with all applicable laws and regulations;

b) not use the Object of License to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortuous acts, including any breach of privacy or infringement, violation or misappropriation of any intellectual property rights and/or other proprietary rights of any third party;

c) not sell, lease, rent, loan, license, sublicense, redistribute, encumber or otherwise deal with any portion of the Object of License or otherwise permit anyone other than the Licensee either directly or indirectly, for payment or otherwise, to Use the Object of License;

d) not alter, modify, adapt, translate, deface, decompile, disassemble or reverse engineer the Object of License or otherwise attempt to derive the source code from the Software, unless and to the minimum extent permitted under mandatory law;

e) not c reate any derivative software or any other software program from the Software or based on the Confidential Information provided by CellaVision;

f) not provide, disclose, divulge or make available to, or permit Use of the Object of License or the Confidential Information by persons other than Licensee’s employees;

g) supervise and control that use of the Object of License and the fulfilment of the Licensee’s other obligations is made in accordance with the terms of this Agreement.

5.License Fee

5.1 Payments to CellaVision in accordance with this Agreement shall be made against invoice no later than 30 days from the date of the invoice. In the event of overdue payment, CellaVision reserves the right to charge interest on the amount due in accordance with the provision of the Swedish Interest Act (1975:635).

5.2 Unless otherwise agreed, prices are exclusive of, and Licensee is responsible for, all fees and taxes, including custom duties, importation fees, sales, use, withholding, gross revenue and like taxes, dues and charges assessed or incurred in connection with this Agreement.

6. Term and Termination

6.1 Both Parties shall have the right to terminate this Agreement and the License granted hereunder by giving thirty (30) days written notice to the other Party. In addition hereto, CellaVision has the right to terminate this Agreement immediately and suspend the Licensee’s access to the Object of License upon written notification to Licensee, if Licensee fails to fulfill its obligations according to this Agreement.

6.2 The license fee set forth in Section 5.1 is non-refundable. Consequently, termination of this Agreement and the License granted hereunder will not entitle Licensee to a refund of any part of the license fee paid to CellaVision, regardless of when such termination is made.

6.3 Upon termination, the Licensee shall immediately discontinue the use of the Object of License and any other intellectual property right of CellaVision and destroy all copies, including electronic copies, of the Object of License (including parts thereof) and any other data in respect of Object of License supplied by CellaVision.

6.4 The termination of this Agreement shall be without prejudice to the rights of the Parties accrued up to the date of such expiry or termination. The Licensee shall not be entitled to any refund of fees and other sums paid to CellaVision.

6.5 Sections 1, 2, 6.2, 6.3, 6.4, 6.5 and 7-14 shall survive termination and expiration of this Agreement.

7. Intellectual Property Rights and Ownership Rights

7.1 Ownership of and all intellectual property rights in the Object of License vest exclusively in CellaVision and, as the case may be, its suppliers and licensors. Except only as expressly stated herein, Licensee is not granted any right or license with respect to the Object of License or any part thereof. CellaVision reserves all rights not expressly granted to Licensee by this Agreement.

7.2 Licensee owns and retains all right, title, and interest in and to the Licensee Data and shall bear the full and sole responsibility thereof, including with regard to the accuracy, quality, integrity, legality, reliability thereof and Licensee’s right to use such data. Unless it receives Licensee’s prior written consent, CellaVision will not access or use the Licensee Data other than as necessary to fulfill the purpose of this Agreement. Notwithstanding the foregoing, CellaVision may disclose the Licensee Data as required by applicable law or by proper legal or governmental authority.

8. Warranties and Limitation of Liability

8.1 Licensee acknowledges and agrees that the Object of License may contain bugs, defects and malfunctions even when properly used. Upon notification from Licensee, CellaVision will make reasonable efforts to correct such bugs, defects or malfunctions without undue delay. If the bugs, defects or malfunctions are wholly or partially caused by the hardware, storage media, web server, operative system, database engine or other components, CellaVision shall have no obligations under this Section 8.1.

8.2 SUBJECT TO SECTION 8.1 ABOVE AND WITHOUT PREJUDICE TO THE OTHER OBLIGATIONS SET FORTH HEREIN, THE OBJECT OF LICENSE IS DELIVERED “AS IS” WITHOUT WARRANTY OF ANY KIND. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE OBJECT OF LICENSE IS ASSUMED BY LICENSEE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CELLAVISION DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, OR ANY WARRANTY ARISING OUT OF ANY PROPOSAL, SPECIFICATION OR SAMPLE WITH RESPECT TO THE OBJECT OF LICENSE. NO WARRANTY IS MADE REGARDING THE RESULTS OF THE OBJECT OF LICENSE OR THAT THE USE OF THE OBJECT OF LICENSE WILL BE UNINTERRUPTED, BUG FREE OR THAT ANY ERRORS OR DEFECTS IN THE OBJECT OF LICENSE WILL BE CORRECTED, OR THAT THE OBJECT OF LICENSE’S FUNCTIONALITY WILL MEET LICENSEE’S REQUIREMENTS.

8.3 The Licensee agrees to indemnify CellaVision and hold CellaVision harmless against and from any claim, proceeding, loss, liability, fine, cost and expense (including court costs and reasonable fees for attorneys and other professionals) incurred as a result of (i) the Licensee Data, (ii) Licensee’s use of the Object of License, (iii) the Licensee failing to fulfil its obligations or breaching the terms of this Agreement, (iv) any failure of the Licensee to pay for, or to have all necessary rights, approvals and licenses required should the Object of License be interfaced with third party software and/or hardware, and (v) any use or combination of the Object of License or any part thereof with any other programs or materials if such use or combination infringes any intellectual property rights of third parties.

8.4 Licensee is aware that the use of the Object of License may entail processing of personal data. In several countries such data processing is regulated by law and may, under certain circumstances, be prohibited unless consent has been obtained by the individual(s) concerned. CellaVision expressly disclaims any liability for Licensee’s breach of any such data processing laws and regulations.

8.5 CELLAVISION SHALL NOT BE LIABLE TO THE LICENSEE OR TO ANY OTHER PARTY FOR ANY LOSS OR DAMAGE WHATSOEVER OR HOWSOEVER CAUSED ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THE LICENSE, THE OBJECT OF LICENSE, THE USE THEREOF OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH LIABILITY MAY NOT BE LAWFULLY EXCLUDED UNDER THE APPLICABLE LAW.

8.6 NOTWITHSTANDING THE GENERALITY OF SECTION 8.5 ABOVE, THE CELLAVISION EXPRESSLY EXCLUDES LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE WHICH MAY ARISE IN RESPECT OF THE OBJECT OF LICENSE HOWSOEVER CAUSED EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, LOSS OR DAMAGE CAUSED BY THIRD PARTY CLAIMS SHALL ALWAYS BE CONSIDERED INDIRECT DAMAGES UNDER THIS AGREEMENT.

8.7 IN THE EVENT CELLAVISION INCURS ANY LIABILITY WHATSOEVER, SUCH LIABILITY IS LIMITED TO THE LICENCE FEE PAID BY THE LICENSEE TO CELLAVISION DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING ANY CLAIM FROM LICENSEE.

8.8 The limitations of liability set forth herein shall not apply in case of gross negligence or willful misconduct.

9. Severability

In the event that any terms, conditions or provisions contained in this Agreement or any part thereof are found to be invalid, unlawful or unenforceable to any extent, the Parties shall endeavour to agree such amendments, which shall in as far as possible effect the intentions expressed therein. In default of such agreement, such invalid term, condition or provision shall be severed from the remaining terms, conditions and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law.

10. Assignment

Neither this Agreement nor any rights granted by virtue of it, or resulting from it, may be assigned by the Licensee to others without CellaVision’s prior written consent.

11. Confidential Information

Licensee acknowledges that the Confidential Information is proprietary to CellaVision and/or its suppliers and licensors. Licensee agrees that the Object Confidential Information is made available for the use solely under and in accordance with this Agreement. Licensee has no right at any time during or after expiry or termination of this Agreement to disclose any Confidential Information, whether directly or indirectly, to any third party without CellaVision’s prior written consent. Licensee shall hold harmless, defend and indemnify CellaVision from and against any and all losses, costs, damages and expenses arising out of or in connection with Licensee's failure to comply with the requirements of this Section 11. This confidentiality undertaking shall not apply to any part of the Confidential Information which the Licensee can prove (i) was known to it prior to being furnished to it hereunder (as evidenced by written record predating such disclosure), (ii) was or became public knowledge through no fault or breach of the terms of this Agreement by the Licensee, or (iii) was received by the Licensee from a third party in good faith and not in breach of any agreement. Licensee's confidentiality obligations hereunder shall survive cancellation or termination, for any reason, of this Agreement.

12. Export Control Regulations

Licensee acknowledges that the Object of License and the Licensee Data may be subject to export control rules and that it is the sole responsibility of Licensee to make sure that export or re-export will be in accordance with said rules.

13. Force Majeure

Neither the Licensee nor CellaVision shall be liable for breach of any of the provisions of this Agreement in case of force majeure. Force majeure shall include, but shall not be limited to, inability to supply the Object of License, material breakdown of its equipment, labour disputes of whatever nature or cause, and any other circumstances reasonably beyond the control of the Party claiming that this provision shall apply.

14. Applicable Law and Arbitration

14.1 This Agreement shall be construed under and governed by the laws of Sweden without giving effect to its provisions of conflict of law.

14.2 Any dispute concerning the interpretation and/or application of this Agreement shall be settled by arbitration under the Rules of the Stockholm Chamber of Commerce. Arbitration proceedings shall be held in Lund, Sweden. The proceedings shall be conducted in the English language.

14.3 Notwithstanding the provision in Section 14.3, CellaVision may, in its sole choice and discretion, institute proceedings concerning the recovery of any fees and rates unpaid under this Agreement in any court having jurisdiction over the Licensee and also in the District Court of Lund, the jurisdiction of which the Licensee hereby expressly and irrevocably submits to.