Effective Date: November 16, 2020
This Agreement sets forth the terms and conditions governing the license purchase and the use of the VDV software owned and delivered by Vista Engineering (hereafter, “licensor”)
By installing or using the Software, Licensee agrees to be bound by this Agreement.
If Licensee does not agree to this Agreement, he is not allowed to install or use any Software from Vista Engineering.
1.1 General Terms
THIS AGREEMENT IS GOVERNED BY THE LAWS OF ICELAND AND CONSTITUTES THE COMPLETE AGREEMENT BETWEEN THE LICENSOR AND LICENSEE. IT SUPERSEDES ANY ORAL OR WRITTEN PROPOSALS, PRIOR AGREEMENTS, PURCHASE ORDERS OR ANY OTHER COMMUNICATION BETWEEN THE LICENSOR AND LICENSEE RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. If any provision of this Agreement is held invalid, the offending clause will be modified so as to be enforceable and, as modified, shall be fully enforced, and the remainder of this Agreement will continue in full force and effect.
1.2 Use Restrictions
Licensee’s use of Software is restricted as follows: (a) Licensee may not exceed the permitted use of Software that has been granted to Licensee through the Purchase Order(s), the express rights contained herein, and rights otherwise granted by Licensor, (b) Licensee may not reverse assemble or de-compile any object code provided under an Order or apply any procedure, including reverse engineering or any similar process, to the Software to attempt to derive the source code or source listings for the Software or any trade secret information or process information contained in the Software. (c) Licensee may not modify or prepare derivative works of the Software for any purpose except as permitted by Licensor, (d) Licensee may not remove or destroy any proprietary notices of Licensor from the Software and must fully and faithfully reproduce all copyright, trademark or other proprietary markings of Licensor on all copies of the Software. Notwithstanding anything to the contrary above, Licensee shall not be precluded from using the functionality that Licensor has built into the Software, including the ability to configure the Software, create interfaces to other software or to feed data into or out of the Software.
1.3 Term and Termination
Licensor reserves the right to revise these terms from time to time. Licensor will date and post the most current version of these terms on its website. Any changes will be effective upon posting the revised version of these terms. If licensee in his sole discretion deems a revision to these terms to be material, he will notify licensee within the software and/or by email to the address associated with licensee´s account or organization. Licensee´s continued use of the Software after any such revision will constitute acceptance of the modified Terms.
Licensor agrees to provide to Licensee maintenance and support for Software provided that Licensee has paid the License Fee and Maintenance fee for the applicable period.
1.5 General Warranties
1.5.1 Licensor warrants and represents to Licensee that he is the sole owner and holder of, or has and will maintain sufficient rights and interests in, all Intellectual Property Rights in the Software Solution and, as applicable, the Services, and that Licensor thus has and will maintain the right and authority to grant Licensee the rights granted under this Agreement.
1.5.2 Licensor warrants and represents that the Software, the Services and the provision thereof will at all times comply with all applicable laws and regulations.
1.6 Data Collection and Use
Licensor compiles, analyzes and runs analytics on how users use the Software, as well as the performance of the platform. This usage and performance data is referred to as “Usage Data”. Licensor uses Usage Data to build features and improve the functionality and feature set of the Software. Licensee agrees that licensor may offer licensee personalized suggestions based on Usage Data, may create aggregate and/or de-identified information from usage data, may combine such aggregate and/or de-identified information with that of other users, and have the exclusive ownership of any Usage Data and the exclusive right to use Usage Data for any purpose as long as licensor does not use or distribute any Usage Data in a way that identifies licensee, licensees users, or licensee´s data.
1.7 Dispute Resolution
In the event that a dispute arises with respect to the interpretation or implementation of any provision of the Agreement, the parties agree to use all reasonable efforts as detailed below, to resolve such dispute amicably through negotiations.
Any dispute between the Licensee and Licensor in connection with or arising out of this Agreement shall be resolved by means of the following procedure:
(i) the dispute shall initially be referred to the relevant Licensee and Licensor representatives responsible for this Agreement who shall discuss the matter in dispute and make all reasonable efforts to reach an agreement;
(ii) if no agreement is reached, the dispute shall be referred to a single senior management representative of each party. Such representatives may be replaced by the party which nominated them by notice to the other party;
(iii) if no agreement is reached at this level, the dispute shall be referred to the Managing Directors or equivalent of Licensee and Licensor;
In the absence of any agreement being reached on a particular dispute either party may take appropriate action in the Courts to resolve the dispute at any time.
It shall be a condition precedent to the referral of a dispute to the Courts or to Alternative Dispute Resolution form (to be agreed upon by the parties) that the party which intends to commence proceedings in relation to the dispute first uses its reasonable endeavors to follow and complete the procedures set out in points (i) to (iii) above.
1.8 Liability to Third Parties
Each party is fully responsible to third parties for its negligence and strict liability. Except as provided elsewhere in this Agreement, nothing in this Agreement or an Order is intended to impair a party’s contribution and indemnity rights under law with respect to third party claims.
1.9 Gross Negligence and Willful Misconduct
Despite anything in this Agreement or an Order to the contrary, each party is fully responsible for gross negligence or wilful misconduct of its managerial and senior supervisory personnel and is not entitled to a release or indemnity from the other party for this conduct. “Gross Negligence” is defined by the law governing the Order; however, if such law does not define the term “gross negligence, ” it means any act or failure to act (whether sole, joint or concurrent) which seriously and substantially deviates from a diligent course of action or which is in reckless disregard of or indifference to the harmful consequences. “Wilful Misconduct” is defined by the law governing the Order; however, if such law does not define the term “wilful misconduct”, it means an intentional disregard of good and prudent standards of performance or of any of the terms of the Order.
Licensee agrees that licensor may use licensee´s company logo and company name for marketing purposes, in a brief project summary on the Vista Data Vision website, unless directed otherwise. Confidential project details will never be disclosed.
1.11 Confidential Information
(a) Licensor shall hold in confidence all technical and business information that is made available to Licensor, directly or indirectly, by Licensee, Affiliates or Non-Operated JVs or developed or acquired by Licensor in performance of an Order (collectively “Confidential Information”), provided, however, Confidential Information shall not include: (i) information which is or becomes, without fault of Licensor, part of the public domain; (ii) information that Licensor can show was received by Licensor from an independent third party that is under no obligation to Licensee; or (iii) information which Licensor can show was already in Licensor’s possession at the time the information was made available to Licensor, directly or indirectly, from Licensee. Licensor shall not, without Licensee’s prior written approval, use such Confidential Information for any purpose other than performance of the applicable Order.
(b) In the event Licensor is ordered in any judicial or governmental proceeding to disclose any Confidential Information, Licensor shall give Licensee ample notice and shall use all reasonable efforts to secure an appropriate protective order of such Confidential Information. If Licensor is nonetheless compelled to disclose such Confidential Information, Licensor may disclose such Confidential Information but only following ample notice by Licensor to Licensee of the requirement to disclose and reasonable cooperation with any attempt by Licensee to maintain the confidentiality of such Confidential Information. In such event, Licensor shall use all reasonable efforts to obtain assurances that confidential treatment will be accorded such Confidential Information and shall limit the disclosure of Confidential Information to that which has been ordered to be disclosed.
1.12 Changes and Cancellation
Orders for Services may be changed or cancelled by Licensee, at any time and for any reason, upon issuance of a change Order or cancellation notice by Licensee. A change Order may affect the cost or schedule of the Services, upon mutual agreement of the parties. Orders for Maintenance may not be cancelled by Licensor except (a) by agreement of the parties, or (b) if Licensor is subject to a petition in bankruptcy or an order is made or effective resolution is passed for its liquidation; or becomes insolvent, is adjudged bankrupt, or makes any assignment of assets for the benefit of its creditors; or (c) if Licensor ceases to offer Maintenance to any licensees of the Software. Licensee may cancel an Order for any Software that does not conform to the warranties set forth herein.
1.13 Severability; Survivorship; Waiver; Headings
If any provision or portion of an Order shall be adjudged invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, that provision or portion of the Order shall be deemed omitted and the remaining provisions and portions shall remain in full force and effect. The provisions of an Order that by their nature continue, including, but not limited to, the warranty, confidentiality, indemnification, and allocation of liability provisions set forth in the Order, shall survive any expiration, cancellation or termination of the Order. No waiver by a party of a right or default under an Order shall be effective unless in writing. No such waiver shall be deemed a waiver of any subsequent right or default of a similar nature or otherwise. The headings herein are for ease of reference only and shall not be used to construe or interpret the provisions of the Order.
1.14 Force Majeure
Force Majeure. Neither party will be responsible for delays resulting from causes beyond the reasonable control of such party, including without limitation fire, explosion, flood, war, strike, or riot, provided that the nonperforming party uses commercially reasonable efforts to avoid or remove such causes of nonperformance and continues performance under this Agreement with reasonable dispatch whenever such causes are removed.
1.15 Grant of License
For the Vista Data Vision software program: Vista Engineering ehf – Verkfraedistofan Vista ehf (“Licensor) is willing to provide liconsor with a limited, non-exclusive right to use the Software, its sub-programs, database and related documentation. Licensee permits licensor to audit his use of the SOFTWARE and provide reasonable assistance and access to information in the course of such audit. Licensee permits licensor to report the audit results to Oracle or to assign licensor right to audit your use of the SOFTWARE to Oracle. Where licensor assigns the right to audit to Oracle then Oracle shall not be responsible for any of licensees costs incurred in cooperating with the audit. The SOFTWARE is excluded from the Uniform Computer Information Transactions Act. All rights not expressly granted to licensee in this Agreement are reserved to licensor.
The SOFTWARE is owned by licensor and is protected by copyright laws and international treaty provisions. Therefore, licensor must treat the SOFTWARE like any other copyrighted material.
1.17 Other Restrictions
Generally, licensor may not reverse engineer, decompile, or disassemble the Software, or create derivative works from the Software. Licensor may not modify any code used to produce web pages, or remove or alter Copyright markings. Licensor may not use a previous version or copy of the Software after having received an upgraded version as a replacement of the prior version. Licensor may transfer the Software to a third party provided licensor follows the procedure set above and that after such transfer licensor does not retain any copies of the Software, including all upgrades that he may have received, nor retain any of the written materials accompanying the Software. Further, the use of the Software in Iceland is limited and based on approval of licensor.
1.18 No liability for consequential damages
The entire liability of licensor and its distributors and suppliers (including its and their directors, officers, employees, and agents) is set forth above. To the maximum extent permitted by applicable law, in no event shall licensor and its distributor and suppliers (including its and their directors, officers, employees, and agents) be liable for any damages, including, but not limited to, any special, direct, indirect, incidental, exemplary, or consequential damages, expenses, lost profits, lost savings, business interruption, lost business information, or any other damages arising out of the use or inability to use the SOFTWARE even if licensor or its distributors and suppliers has been advised of the possibility of such damages. Licensee acknowledges that the license fee for the SOFTWARE reflects this allocation of risk. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply. If the foregoing limitation of liability is not enforceable because the SOFTWARE is determined by a court of competent jurisdiction in a final, non-appealable judgment to be defective and to have directly caused bodily injury, death, business interruption and lost profits or property damage, in no event shall licensor’s liability for non-performance under the Agreement exceed the latest license fee paid for the SOFTWARE. The same no liability clause applies to National Instruments and Oracle who provide for software components that are part of the SOFTWARE.
1.19 No Warranties
NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED ARE MADE WITH RESPECT TO THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. LICENSOR DOES NOT WARRANT, GUARANTEE NOR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. LICENSOR EXPRESSLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN.
Unless the context otherwise specifies or requires for the purposes of this Agreement, the following terms and expressions shall have the meanings assigned to them:
“Agreement” means this agreement for the Software consisting of this main document together with all appendices and other attachments executed by the Parties. All binding purchase orders are also part of the Agreement.
“Authorized Users” means Licensee’s employees (as well as employees of Licensee’s affiliates), consultants, contractors, and agents who are authorised by Licensee to access and use the Services under the rights granted to Licensee pursuant to this Agreement.
“Consultancy Services” means the services to be performed by the Licensor as set forth in a Scope of Work.
“Confidential Information” means any and all tangible and intangible information disclosed hereunder, including but not limited to: data, specifications, standards and know-how of any nature such as technical, scientific, engineering, commercial, financial, marketing or organizational, which (i) is marked as “confidential, ”proprietary” or with some similar indication; (ii) is expressly advised by the disclosing Party to be confidential through some contemporaneous oral or written means; or (iii) which the receiving Party would reasonably construe to be of a confidential nature considering the circumstances of its disclosure and/or the nature of the information. Any and all Licensee Data disclosed to Licensor hereunder shall at all times be deemed Confidential Information of Licensee. The definition of Confidential Information shall, however, not include information which (i) at the time of disclosure is part of the public domain, or which thereafter comes into the public domain through no fault of the receiving Party, or (ii) at the time of disclosure was already in the possession of the receiving Party, as evidenced by written records, or (iii) was developed by employees or agents of the receiving Party independently of and without reference to any Confidential Information communicated to the receiving Party or (iv) which is properly received by the receiving Party from a third party which has the right to disclose such information.
“Licensee Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Licensee, Licensee’s affiliates or an Authorised User through the Services
“Intellectual Property Rights” means any and all intellectual and industrial property rights, whether possible to register or not, including, without limitation, patents, registered and unregistered design rights, copyrights, trademarks, business names, trade names, service marks, utility marks, database rights, all extensions and renewals to any of them and any applications for any of them and any right or form of protection of a similar nature having equivalent or similar effect to any of them, which may subsist anywhere in the world.
“Personal Data” means all information relating to an identifiable individual and includes all information collected and held by Licensee or on behalf of Licensee in relation to co-workers, customers, business partners and other stakeholders.
“Services” means all services not included in the VDV solution, such as Consultancy Services, training services and/or other services ordered hereunder.
“Term” means the term of this Agreement, including any renewal periods.