These end-user licence terms govern the relationship between the Supplier (as defined below in section 1.1) and anyone who downloads, saves, installs, uses or accesses, or attempts to use or access, any timber measuring application provided by the Supplier (i.e., respective software, services and/or related resources). The terms set forth herein apply regardless of the environment in which the application is used, the geographic location of such use and the technical means employed therefor. Any download, installation, use or access of any such application or any part thereof shall be deemed to constitute your consent to be bound by these terms.
1. INTERPRETATION
1.1. The following terms, when capitalised, shall have the meanings assigned to them below:
"Agreement" -- the contract between the Parties, comprising these end-user licence terms (as amended from time to time) and such other terms concerning the Service as the Parties may agree to;
"Content" -- the information and technical resources provided by the Supplier to its customers for their use in conjunction with the Software, and the features of the Software itself. Items of Content are usually grouped into standard packages referred to as Service Plans;
"Customer" -- any person or entity who has a valid User Account or maintains a full or partial copy of any Software. Each Customer should take this term as referring specifically to them, unless the context otherwise requires;
"Customer Data" -- any information (including Personal Data) that the Customer or an End User collects, enters, records, stores, uses, controls, modifies, arranges, deletes, discloses, makes available, transmits or otherwise processes through or by means of the Service;
"End User" -- any person whom the Customer permits or causes to have access to the Service or any part thereof, whether through the User Account or otherwise (including anyone who downloads the Software, or uses or accesses the Service, on the Customer's behalf);
"Intellectual Property" -- (a) any and all trademarks, service marks, domain names and business names, brands, rights pertaining to inventions, designs, databases and proprietary information (including, without limitation, trade secrets and know-how), patents, copyrights (including both economic as well as moral rights) and (b) any and all other items (including rights and other benefits) considered to be items of intellectual property under the applicable law;
"Party" -- each of the Customer and the Supplier (collectively, "the Parties");
"Personal Data" -- any information relating to an identified or identifiable natural person, regardless of the state and form of such information;
"Representative" -- any person who represents the Customer upon its entry into the Agreement;
"Service" -- depending on the context, either (a) the Supplier's making available of the Software, the User Account, Content and customer support, or (b) the Software, the User Account, Content and customer support collectively or in any combination;
"Service Plan" -- a standard set of Content that the Supplier has agreed to provide. Each Service Plan has a distinctive name or name extension (such as "Basic", "Pro" or "Premium", for example) and different prices are usually charged for different Service Plans. The features and prices of the various Service Plans can be studied on the Supplier's website;
"Software" - Timbeter timber measuring software and such other Supplier-provided programs as the Supplier may make available in conjunction therewith, including such patches, updates, upgrades, other modifications and replacements thereof as the Supplier may from time to time provide;
"Supplier" -- Fordaq SA, a public limited company, incorporated under Belgian law, enterprise number 0471.664.082, having its principal place of business at Avenue Louise 523, 1050 Brussels, Belgium, email info [a] fordaq.com;
"User Account" -- a Supplier-provided user account whose purpose is to allow the Customer to access and use Content (or certain Content) and engage in certain data processing activities.
1.2. The words "herein", "hereto", "hereof", "hereunder", "hereby" and "herewith" refer to this Agreement. Words denoting a gender or genders shall be read as referring to all genders, unless the context otherwise requires.
1.3. This Agreement (as amended from time to time) constitutes the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements and understandings between the Parties with respect to that subject matter.
1.4. In case of conflict between any provision herein and any statement, representation or other information published on the Supplier's website or contained in any other materials or communications, the provision in the Agreement shall control.
2. COMMENCEMENT
2.1. This Agreement shall be effective between the Supplier and the Customer as of the moment when the party to be identified as the Customer downloads, saves or installs any part of the Software, obtains a User Account or agrees or is deemed to have agreed to the terms hereof, whichever occurs first.
2.2. Anyone who uses, accesses or attempts to use or access any part of the Service shall by so doing be deemed to have agreed to the terms hereof.
3. LICENCE
3.1. Subject to the terms set forth herein, the Supplier grants to the Customer and the latter accepts, for the term hereof, a limited, non-exclusive and non-transferable (save as provided in section 3.2) licence to use such features of the Service as included in the Customer's Service Plan.
3.2. With respect to assignment, sub-licensing and other disposals, the Parties have agreed that:
(a) the Customer shall not, without the Supplier's prior explicit consent, sub-license, assign, encumber or otherwise dispose of any of its rights or obligations hereunder, except that (i) the foregoing restriction does not apply to the Customer's disposal of its monetary claims (i.e., claims for a specific amount of money to be paid to the Customer) and (ii) the Customer may assign the entire Agreement, i.e. all its rights and obligations hereunder, by way of general succession or enterprise transfer (the assuming party, respectively, being either the Customer's general successor or the acquirer of the Customer's enterprise to which this Agreement pertains);
(b) the Supplier may: (i) in its sole discretion sub-license, assign, encumber and otherwise dispose of any and all of its rights hereunder; (ii) dispose, in any manner that the Supplier reasonably deems appropriate, of any and all of its obligations hereunder, provided it notifies the Customer thereof; (iii) assign this Agreement as provided under point (ii) of this subsection (b).
3.3. The Service may only be accessed through the interface(s) that the Supplier has provided therefor and must not be accessed or attempted to be accessed in any manner not approved by the Supplier.
3.4. The Customer may make copies of the Software for its own installation, archival and backup purposes only.
3.5. As between the Parties, all Service-related Intellectual Property shall belong to the Supplier and its licensors. The Customer shall not acquire any right to such Intellectual Property or otherwise in connection with the Service, except for the limited rights of use expressly set forth in this Agreement. All rights not expressly granted herein shall be deemed withheld.
4. SERVICE
4.1. The Supplier will use commercially reasonable efforts to provide the Service to the Customer throughout the term of this Agreement in accordance with the Customer's Service Plan.
4.2. The Customer acknowledges that: (a) the Service has not been designed to meet the Customer's individual requirements; (b) the operation of the Service may from time to time encounter technical or other problems and may not continue uninterrupted or without errors; (c) the Service is not fault-tolerant and has not been designed for use in inherently dangerous circumstances, such as, e.g., the operation of "major sources of danger", traffic control or life support systems, handling hazardous substances and other activities where the failure of the Service could lead to death, personal injury or environmental damage.
4.3. The Service is provided on an "as is" and "as available" basis. The Customer's selection and use of the Service is at the Customer's own risk, as are the Customer's and the End Users' exposure to, down- and upload of, as well as transmission, other processing and possession of information, programs and other items through or due to the Service.
4.4. The Supplier has no obligation to enhance, modify or replace any part of the Service, or to continue developing or releasing new versions thereof.
4.5. The Supplier aims to respond to support requests within 24 business hours but makes no commitment as to how quickly support will be provided or issues will be resolved.
4.6. The Service may provide links or access to third-party websites, resources or services and these may provide links or access to the Service. The Supplier is not responsible for the qualities (including the availability, reliability and security) of such external sites, resources or services, does not endorse them and shall not be liable for any loss, damage, expenses or other consequences resulting from their existence, absence, qualities, use or inability to use them.
5. PAYMENT
5.1. By installing any part of the Software, obtaining a User Account or otherwise subscribing to the Service or any part thereof, or permitting or causing any such activity on its behalf, the Customer shall be deemed to have agreed to and accepted liability for the payment of all fees and other charges associated with the applicable Service Plan. The same applies, mutatis mutandis, where the Customer permits or causes itself to be designated as the payor for someone else's Service Plan.
5.2. Unless otherwise specifically agreed, the billing cycle for any chargeable Service Plan is monthly (i.e., the Customer is charged for the Service on a monthly basis), commencing on the day when the subscription to the respective plan takes effect, or, if the subscription includes a free trial period, on the first day following such trial.
5.3. Payment for the Service is due in advance by the first day of each billing period and must be effected by means of a payment card (credit or debit) or an online wallet service accepted by the Supplier (such as Google Wallet), unless otherwise agreed. The Customer shall ensure that sufficient funds are available on the relevant account and acknowledges that late payment may result in the suspension of Service or termination of the Agreement.
5.4. All payments for the Service are handled by a third-party payment gateway. The Supplier is not responsible for the processing of the Customer's payments and shall not be liable for any matter in connection therewith.
5.5. The Supplier may change the fees, rates and the billing cycle applicable to the Customer's Service Plan upon a month's notice. If the Customer does not agree with the respective change(s), its sole and exclusive remedy shall be to unsubscribe from the Service Plan in question. The Customer's remaining subscribed to the Service Plan after any such change(s) shall be deemed to constitute its consent to the respective change(s).
5.6. The Customer acknowledges that Service fees are non-refundable. For instance: (a) if the Customer unsubscribes from a Service Plan or its Service Plan or subscription is modified or the Agreement is terminated or modified in the middle of a billing period, no refund will be given to the Customer for any payment relating to that billing period; (b) payments attributable to future billing periods will not be refunded, unless otherwise explicitly agreed.
5.7. The Supplier's fees and rates are exclusive of value added tax, sales tax and other public burdens, save where the Supplier has otherwise explicitly stated. The Customer shall be solely responsible for all taxes, duties and burdens that may be levied on its purchase, import, export, or use of the Service.
5.8. All sums payable to the Supplier hereunder shall be paid in full, without deducting or allowing the deduction of any currency conversion, wire transfer, remittance or other charges relating to the payment (or any handling of the payment) thereof.
6. CUSTOMER'S UNDERTAKING
6.1. The Customer must be a person (natural or legal) or an entity with legal capacity.
6.2. The Customer must comply and shall cause each End User to comply with all laws, rules and regulations applicable to their use of the Service and their processing of Customer Data.
6.3. The Customer warrants that it will not use the Service for sending unsolicited communications or for uploading, transmitting, delivering, running, possessing or storing harmful code, malware or illegal content, and will ensure that none of the End Users engage in any such activity.
6.4. Any Customer Data that conflicts with the provisions of this Agreement may be removed, disabled and/or destroyed by the Supplier at its sole discretion.
6.5. Without derogating from any of the Customer's statutory obligations, the Customer undertakes that it will not, and will not allow any End User to: (a) interfere with the proper functioning of the Service; (b) impose an unreasonable load on the Service or its infrastructure; (c) copy (except as expressly permitted herein), reproduce, translate, adapt, arrange or otherwise alter the Software or reproduce the results of any such activity; (d) decompile, disassemble or otherwise reverse engineer the Software; (e) create or attempt to create any product or service that is substantially similar to, or performs the same or substantially similar functions as, or otherwise competes with the Service, or purports to be created, provided or approved by the Supplier or its licensors.
The undertakings of the Customer set forth in this section 6.5 shall also be deemed to have been made by anyone who uses, accesses, or attempts to use or access any part of the Service.
7. USER ACCOUNT
7.1. The Customer shall be fully responsible for the activity that occurs under its User Account, including all acts performed through or by means of such User Account, and must notify the Supplier immediately of any breach of security relating to or unauthorised use of its User Account.
7.2. It shall be the Customer's own responsibility to maintain the confidentiality of its usernames, passwords and authentication tokens.
7.3. The Supplier shall not be responsible for any loss, damage or other consequences that may result from any unauthorised use of the Customer's User Account, username, password or authentication token.
7.4. The Supplier has no obligation to monitor or access any User Account, but may do so in cases where such action is reasonably justified (e.g., in order to prevent illegal or harmful activity, provide customer support, or perform its legal duties).
7.5. The Supplier may, in its sole discretion, disable, close or restrict access to any User Account that is used to infringe on any Intellectual Property or any proprietary or personal right of any party.
8. DISCLAIMERS
8.1. Any warranty of the Supplier not expressly stated herein shall be deemed withheld. The Supplier disclaims, to the fullest extent permitted under the applicable law, all statutory warranties and course of performance, course of dealing and usage related licensees' and users' expectations.
8.2. The Supplier makes no representation or warranty: (a) that the Service will meet the Customer's or any End User's requirements or expectations; (b) that access to or the operation or use of the Service will be uninterrupted, secure or error-free; (c) that any defects in the Service will be corrected; (d) that the Service or any means by which the Service is accessed or used is free of malware or other harmful components; or (e) with respect to any third-party software, service, information, infrastructure, resource, or any other third-party item.
9. LIMITATION OF LIABILITY
9.1. The Supplier shall not be liable for any loss, damage, expenses or other harmful consequences resulting from (a) anyone's use or inability to use the Service, (b) the properties of the Service, (c) the need to procure or the procurement of substitute goods or services or any other substitute benefit for the Service or any information, asset or other benefit received, owned, controlled or otherwise enjoyed through the Service, (d) any message or other communication received or transaction entered into through or from the Service, (e) unauthorised access to or interruption, alteration, loss, corruption or deletion of the Customer's or any End User's transmissions or data, (f) the statements or conduct of any person having access to the Service, or (g) any other matter relating to the Service or any part thereof; REGARDLESS of whether such are suffered or incurred directly or indirectly or are immediate or consequential and whether arising in contract, tort or otherwise; PROVIDED, HOWEVER, that (i) this section shall not prevent claims for the compensation of direct patrimonial loss suffered by the Customer due to the Supplier's intentional or grossly negligent breach of this Agreement or patrimonial loss resulting from the Supplier's causing personal injury to, or the death of, the Customer, AND that (ii) the total cumulative liability of the Supplier, hereunder and otherwise, shall in no event exceed the total amount of all fees and other charges (exclusive of value added and sales taxes) that the Customer disbursed to the Supplier for the Service during the 12 months immediately preceding that month in which the event giving rise to liability occurred.
9.2. Neither Party shall be liable for breaching its obligations due to a circumstance it reasonably could not have foreseen and which is beyond its control, such as, e.g., a force of nature, an act of a legislative or an executive authority, war, civil unrest, act of terror, strike, Internet failure or any other circumstance qualifying as force majeure under the applicable law -- to the extent that the respective circumstance prevented or hindered the Party's performance. For the avoidance of doubt, the provisions of this section: (a) are not intended to derogate from or limit the application of any statutory limitation or exclusion of liability; (b) shall not be construed to limit the amount of, or excuse the Customer from paying, any fee or other consideration owed hereunder.
10. INDEMNIFICATION
10.1. The Customer shall defend, indemnify and hold harmless the Supplier, its officers, directors, employees, contractors, agents and representatives from and against all claims made by and all damages, liabilities, penalties, fines, costs and expenses payable to any third party that arise from the Customer's or any End User's: (a) breach of this Agreement; (b) use of the Service; (c) processing of Customer Data; or (d) infringement of any Intellectual Property or any proprietary or personal right.
11. DATA PROTECTION
11.1. While it is not the purpose of this Agreement to charge the Supplier with the duty of processing any Personal Data or authorise any significant Personal Data processing activities, the Customer and the Representative nevertheless acknowledge and agree that certain Personal Data and other information about the Customer, the Representative as well as End Users (each of the Customer, the Representative and any End User hereinafter a "Data Subject") may be collected and processed by the Supplier and/or the persons to whom it may outsource or subcontract the Service or any part thereof (in this article 11, the Supplier and each such person a "Data Processor").
11.2. The Customer and the Representative agree, and the Customer warrants that each End User agrees:
(a) that a Data Processor may have collected and may further collect information (including Personal Data) about the Data Subjects: (i) during the negotiation, conclusion and modification of this Agreement (the information collected may include the data provided in the Agreement as well as any data furnished for the purposes of negotiating, concluding or amending the Agreement); (ii) when a Data Subject fills in forms via the Service, creates or modifies a user profile or enters or modifies other information associated with the User Account (the information thus provided); (iii) when a Data Subject visits the Data Processor's website (the Data Subject's IP address, location, entry and exit pages, referral sites and keywords, session time and duration, activities on the site, certain software and hardware attributes); (iv) when a Data Subject downloads, installs, updates or uninstalls the Software or accesses or uses the Service (the location, manner, means and duration of such activity as well as other information the Data Subject may provide); and (v) when otherwise knowingly made available to the Data Processor (the information the Data Subject provides);
(b) that when visiting a Data Processor's website, "cookies" may be stored within the visitor's device;
(c) to the Data Processors' processing of their Personal Data and such other information as referenced in point (a) (collectively, "User Data") for the purposes of: (i) providing the Service; (ii) improving or otherwise modifying the Service and notifying the Customer and other relevant Data Subjects thereof; (iii) customising the content and/or layout of the Data Processor's website or the Service for the particular visitor or user; (iv) replying to the Data Subjects' communications and contacting them; (v) performing the Data Processor's obligations towards the Data Subject; (vi) exercising and enforcing the Data Processor's rights; (vii) user statistics and other Service-related analyses;
(d) that User Data may be processed in the country of their domicile as well as outside it, including any member state of the Organisation for Economic Co-operation and Development (OECD) and any country participating in the European Economic Area (EEA);
(e) that none of the Data Processors will disclose the respective Data Subject's Personal Data to any third party besides the members of its corporate group, except when, to the extent and to persons (i) expressly allowed by the Data Subject or the Customer, (ii) required by law, or (iii) necessary in order to perform the Data Processor's obligations under the Agreement or law, or to exercise its legal rights or defend against claims or other process.
11.3. If a Data Subject participates in a Data Processor's mailing or similar programme, the Data Processor may use their Personal Data to send them information about products, services, promotions and events that the Data Processor believes may be of interest to them.
11.4. Upon the Customer's request, the Supplier will grant the Customer access to, or, at the Supplier's option, provide the Customer with a statement of, all Personal Data that the Supplier maintains about the Customer, unless such information is otherwise reasonably available to the Customer or the Supplier is legally prohibited from disclosing such records. If any such Personal Data prove to be incorrect or misleading, the Customer is entitled to have the same corrected, or, where the Customer is able and authorised to modify such data, correct these data itself.
12. MODIFICATION
12.1. The Customer acknowledges that, from time to time, circumstances may arise which make it necessary or desirable to modify certain provisions of this Agreement. Such circumstances include: (a) the Supplier's launch of a new service or a modification to the Service; (b) a significant change in the Supplier's legal environment; (c) an order or a judgment being entered against or in favour of the Supplier; (d) a significant corporate event, such as, e.g., the Supplier's merger or acquisition, or its change of legal form; (e) the Supplier's transfer of the enterprise or a part of the enterprise to which this Agreement pertains; (f) the ambiguity, invalidity, voidability or unenforceability of a provision herein; (g) any other event whose occurrence in the Supplier's reasonable judgment necessitates an amendment hereto.
12.2. The Customer agrees that: (a) upon the occurrence of any of the circumstances referenced in the preceding section, the Supplier shall be entitled to make such changes to the Agreement as it reasonably deems appropriate; (b) the Supplier's ability to foresee an event or prevent it from happening shall not prejudice its right to amend the Agreement under point (a) of this section; (c) the Supplier may amend the Agreement by notifying the Customer thereof or by posting a revised version of the Agreement on a website and sending the Customer a link thereto; (d) if the revised version of the Agreement includes an amendment that reduces the Customer's rights or increases its responsibilities, the Supplier will give the Customer reasonable prior notice of such new version's entry into force.
12.3. Notwithstanding anything herein to the contrary, the Supplier reserves the right to modify the Service at any time for any reason, with or without notice. Unless otherwise expressly agreed, the use of any new features, versions, releases, updates or other modifications that the Supplier may make available in connection with the Service shall be subject to the Agreement. The Customer's continued use of the Service after any such modification shall constitute the Customer's consent to the respective modification(s).
12.4. If the Customer does not agree with the Supplier's changes (whether to the Agreement or the Service), its sole and exclusive remedy shall be to cancel the Agreement and terminate its use of the Service.
13. SUSPENSION
13.1. The Supplier may discontinue providing the Service or any part thereof upon a month's notice and may, with or without notice, suspend or restrict access to the Service for any Customer whose payment for the Service remains overdue for more than a week, or whose use of the Service conflicts with the provisions of this Agreement.
13.2. The Supplier may suspend performance under the Agreement in whole or in part with immediate effect if it is required by law or a judicial or an administrative authority to refrain from performing its obligations hereunder.
14. TERMINATION
14.1. This Agreement can only be terminated by closing the Customer's User Account.
14.2. In order for the Customer to close its User Account, the Customer must log on to the Service and follow the instructions provided there (or, should such be unavailable, notify the Supplier thereof and follow the latter's instructions).
14.3. Either Party may close the Customer's User Account and shall by so doing be deemed to have cancelled this Agreement, provided that: (a) if the User Account is closed by the Supplier, the Customer must be given at least a month's notice thereof (unless section 14.4 applies or the User Account is closed at the Customer's request); and (b) where the User Account is closed by a Party entitled to withdraw from the Agreement, such Party has not notified the other that its closure of the User Account is to be construed as a withdrawal (which notice must be served prior to or concurrently with closing the User Account and shall result in the Agreement being deemed to have been terminated by withdrawal).
14.4. Should either Party commit a material breach of this Agreement, the other Party may terminate the Agreement forthwith. Each of the following shall constitute a material breach of Agreement by the respective Party: (a) a Party having breached any of its principal obligations hereunder fails to discontinue or remedy such breach within 30 days after notice from the other Party specifying the breach and requiring it to be discontinued or remedied; (b) any act, omission, event or circumstance considered under the applicable law to be a Party’s material breach of this Agreement.
14.5. Any Customer having entered into this Agreement as a "consumer" (as determined under the applicable law, but generally -- a natural person not transacting within the scope of his/her business or professional activities) may withdraw from the Agreement within 14 days of having become a party hereto. Notwithstanding anything herein to the contrary, any consumer who withdraws from the Agreement pursuant to the preceding sentence is entitled to a full refund of all fees and other charges s/he has paid to the Supplier hereunder, provided, however, that s/he also returns to the Supplier, or reasonably compensates the Supplier for the value of, everything s/he has received hereunder.
14.6. The Customer understands and agrees that upon any termination of this Agreement: (a) all rights that the Customer has been granted hereunder will terminate; (b) the Customer must cease all activities authorised by the Agreement; (c) all amounts owed to the Supplier hereunder become due; (d) all Customer Data and other information associated with the Customer's User Account may be deleted or become unavailable to the Customer; (e) the Customer will receive no refund, exchange or other compensation for any unused time or credit on a subscription, for any licence or subscription fee, any data associated with any User Account, or for anything else; (f) all its Software-related obligations hereunder shall survive until the Customer has fully removed all Software from its devices, systems and storage media.
15. NOTICE
15.1. The Customer agrees that the Supplier may provide notice to the Customer by posting it on the Service or by sending it to the email address associated with the Customer's User Account.
15.2. All notices, requests, enquiries, complaints and other communications that the Customer (or any Data Subject) wishes to address to the Supplier should be sent to the email or postal address specified in section 1.1 under the term "Supplier" (or such other address or email address as the Supplier may have provided for this purpose).
16. LAW AND JURISDICTION
16.1. This Agreement shall be governed by Belgian law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. All disputes arising from or otherwise concerning this Agreement (including disputes concerning the formation or validity hereof) shall be resolved by Belgian courts.
17. MISCELLANEOUS
17.1. If any provision of this Agreement violates any mandatory rule of the applicable law and proves to be void as a result thereof, such provision shall, for those specific circumstances and only in that particular respect in which it is void, be deemed to have been amended so as to comply with the law. Any such amendment shall be confined to the minimum necessary to make the provision valid and shall retain as much of its original ambit and meaning as possible.
