C1 CMS Commercial License Agreement
READ THIS AGREEMENT CAREFULLY BEFORE COMPLETING THE ACTIVATION/ INSTALLATION PROCESS AND/OR USING THE SOFTWARE.
THIS ORCKESTRA SOFTWARE LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AS THE CUSTOMER (“LICENSEE” or “YOU”) AND ORCKESTRA, Nygaardsvej 16, DK-2100 Copenhagen. DENMARK (“LICENSOR” OR “WE”) FOR THE CONTENT MANAGEMENT SYSTEM SOFTWARE ORCKESTRA CMS AND PACKAGES (“SOFTWARE”) WHICH INCLUDES COMPUTER SOFTWARE, THE DATA SUPPLIED WITH IT, PRINTED MATERIALS AND ONLINE OR ELECTRONIC DOCUMENTATION (“DOCUMENTATION”).
BY INSTALLING THE SOFTWARE OR CLICKING ON THE “ACCEPT”/”CONFIRM” BUTTON YOU ARE CONFIRMING THAT YOU HAVE READ AND ACCEPTED THIS AGREEMENT WHICH WILL BIND YOU, INCLUDING THE PROVISIONS CONCERNING CHOICE OF APPLICABLE LAW, THE LICENSOR’S EXCLUSIONS AND LIMITATIONS OF WARRANTIES AND LIABILITY AND VENUE FOR POSSIBLE DISPUTES.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU SHOULD CLICK ON THE REJECT BUTTON AND NOT ACTIVATE, INSTALL OR USE THE SOFTWARE. IF ALREADY INSTALLED, YOU SHOULD SHOUD REFRAIN FROM USE OF AND EMIDIATELY DELETE THE SOFTWARE FROM YOUR COMPUTER AND DESTROY OR RETURN TO THE LICENSOR ANY UNLICENSED COPIES OF THE SOFTWARE THAT YOU MAY HAVE IN YOUR POSSESSION.
PLEASE NOTE THAT A COMPONENT OF THE SOFTWARE KNOWN AS TINY MCE IS GOVERNED SEPARATELY BY THE TERMS OF AN LGPL LICENSE AND NOT BY THE TERMS OF THIS AGREEMENT. THE LGPL LICENSE WHICH GOVERNS YOUR USE OF THE TINY MCE SOFTWARE IS PRESENTLY (DATE OF SIGNATURE) AVAILABLE AT THE FOLLOWING ADDRESS:
1. License Grant
In consideration of the Licensee agreeing to abide by the terms and conditions of this License, and subject to due payment of the applicable license fee, the Licensor hereby grants to the Licensee either:
- on a one-off payment; or
- for “SUBSCRIPTION” a period as specified when activating the software online (the Software is IN SUCH CASE ALWAYS activated online)
a limited, personal, non-exclusive, non-transferable and non-assignable right to activate, install, use, access, display and run the Software and use the Documentation until terminated in accordance with clause 10 of this Agreement. The Licensee may for its own personal use activate, install, use, access, display and run the Software on any computer owned or controlled by Licensee for the exclusive purpose of constructing, maintaining and operating websites, extranet and Intranet in accordance with this Agreement.
2. Reservation of rights
All rights not expressly granted to the Licensee under this Agreement or permitted by any local law are reserved to the Licensor, and the Licensee agrees not to take or permit any action with respect to the Software that is not expressly authorised under this Agreement or permitted by any local law.
The Licensee acknowledges that:
- all intellectual property rights including but not limited to copyrights, patents and trademarks in or relating to the Software and all parts of the Software including all modules, packages, improvements, modifications, fixes, patches, adaptations and copies throughout the world are and shall remain the exclusive property of the Licensor;
- rights in the Software are licensed (not sold) to the Licensee;
- the Licensee has no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Agreement; and
- the Licensee has no right to have access to the Software in source code form or in unlocked coding or with comments.
For the avoidance of doubt, the Licensee may not:
- copy the Software or Documentation except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security (in which case this is limited to the creation of TWO copies only);
- provide or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person without prior written consent from the Licensor;
- make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with or become incorporated in any other programs;
- rent, lease, sub-license, loan, sell, assign, pledge, charge, transfer translate, merge, adapt, vary or modify or otherwise dispose of the Software or Documentation or any modules, improvements, modifications, fixes, patches, adaptations or copies of the Software or any part thereof or any of its rights or obligations arising under it, on a temporary or permanent basis, without the prior written consent of the Licensor;
- de-compile, reverse engineer, disassemble or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by the Licensee during such activities:
- is used only for the purpose of achieving inter-operability of the Software with another software program;
- is not disclosed or communicated without the Licensor’s prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
- is not used to create any software which is substantially similar to the Software.
The Licensee agrees to keep all copies of the Software and Documentation secure and to include the copyright notice of the Licensor on all entire and partial copies of the Software in any form.
The Software is licensed to the Licensee only and is binding on the Licensee and the Licensor.
If the Licensee breaches any provision of this clause 2, the License set out in clause 1 will automatically terminate in accordance with clause 10.
3. Installation and activation of paid license
By using the on-line activation the Software will be available to the Licensee for use upon the Licensee’s receipt of one or more license activation keys. Upon acceptance of this Agreement, the Licensee may obtain one or more license activation keys by paying the requisite license fees, using the procedure set forth on the Licensors website. Obtaining the Software by on-line activation gives the Licensee the right to use the Software (as described in clause 1 (License Grant) above) for the period indicated when the Software is activated.
Packages will be fully functional for a trial period, after which key functionality will stop functioning. To use this package beyond the trial period you must purchase a license. You do not need to reinstall / reconfigure this package in order to switch to licensed use. This package is available for evaluation purposes to help you determine if the functionality delivered by the package meet your requirements. During the trial period the package is 100% functional without any loss of features.
You can obtain a license that is not limited to evaluation by paying the requisite license fees, using the procedure set forth by Licensor on their website.
During the trial period the packages are delivered "as is" without any warranty of any kind and any risks related to the use of this package is solely yours. The owner of this package(s) cannot be held responsible for any damages your use of this evaluation version may cause.
Payment for Composites Products and Services shall be at prices and under terms stated on the Orckestra website, as otherwise stated by Orckestra from time to time. All prices are exclusive of taxes (VAT or otherwise), which may or may not be added to the price, depending on applicable law and the legal residence of the Customer.
Payment shall always be made in advance for the entire subscription period unless specifically agreed otherwise.
The Licensor is entitled to adjust the prices and functionality from time to time. Adjusted prices shall take effect upon any subsequent term of subscription period or Service.
BY ACCEPTING THIS AGREEMENT THE LICENSEE ACCEPTS THAT THE LICENSOR DOES NOT REFUND ANY LICENSE FEE IF THE SOFTWARE IS ACTIVATED OR INSTALLED AND TAKEN INTO USE AND ONCE LICENSE FEE PAYMENT IS MADE TO THE LICENSOR THE LICENSEE WILL HAVE NO RECOURSE FOR RECEIVING A REFUND OF ANY PART OF LICENSE FEE.
4. Limited Warranty, disclaimer
Subject to the express warranty given below, the Software is provided “as is” with no representation, guarantee or warranty of any kind as to its functionality.
Any warranty available to the Licensor by law or legal practice is disclaimed and shall be void to the furthest extend possible. The Licensor hereby excludes to the fullest extent permissible in law, all conditions, warranties (including without limitation any warranty that the Software will meet the Licensee’s requirements or that its operation will be uninterrupted or error free) and stipulations, express (other than those set out in this Agreement) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Licensee.
The Licensee acknowledges that the Software has not been developed to meet the individual requirements of the Licensee and that it is the Licensee’s responsibility to examine and ensure that the facilities and functions of the Software as described in the Documentation will meet its requirements.
The Licensee acknowledges that the Software may not be free of bugs or errors. The Licensee agrees that the existence of any minor errors shall not constitute a breach or default on behalf of Licensor.
Notice: Product warranty is only included if purchased as part of a Orckestra CMS Plan or when purchasing any Orckestra CMS Add-on created by Licensor.
The Licensor warrants that:
- for the period of 180 days (“Warranty Period”), after purchasing the software must be free from defects in design, material and workmanship under normal use. If a defect in the medium occurs during the Warranty Period, the Licensor will replace it free of charge if the Licensee returns it to the Licensor with proof of purchase and (so far as the Licensee is able) a documented example of such defect or error; and
- during the Warranty Period, the Software will, when properly used, perform substantially in accordance with the functions described in the Documentation, and the Documentation correctly describes the operation of the Software in all material respects.
If, within the Warranty Period, the Licensee notifies the Licensor in writing of any defect or fault in the Software in consequence of which it fails to perform substantially in accordance with the Documentation, and such defect or fault does not result from the Licensee having amended the Software or used it in contravention of the terms of this License, the Licensor will, at its sole option, repair or replace the Software, or instruct Licensor to install a new patch or version, provided that the Licensee makes available all information that may be necessary to assist the Licensor in resolving the defect or fault, including sufficient information to enable the Licensor to recreate the defect or fault.
During the warranty period Licensor will at its own discretion free of charge make patches available to Licensee.
5. Limitation of Liability
Nothing in this Agreement shall exclude or in any way limit the Licensor’s liability for fraud, or for death and personal injury caused by its negligence, or any other liability to the extent that it cannot be excluded or limited as a matter of law.
Subject to the above the Licensor disclaims and shall not be liable under or in connection with this Agreement for:
- loss of income;
- loss of business profits or contracts;
- business interruption;
- loss of the use of money or anticipated savings;
- loss of information;
- loss of opportunity, goodwill or reputation;
- loss of, damage to or corruption of data; or
- any direct or indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.
Without prejudice to the above mentioned, the Licensor’s maximum aggregate liability under or in connection with this Agreement (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) shall be limited to the price paid for the Software.
Licensor has no responsibility for the functionality and usability of Software adaptations and implementations made by Licensee and its external suppliers, even when such have been made by a Orckestra Solution Partner or a Orckestra Distributor.
6. Licensor Marketing
If any clause or part of this Agreement is found by competent authority to be unlawful, invalid or unenforceable to any extent, such term, condition or provision will, to the extent required, be severed from this Agreement which will continue to be valid to the fullest extent permitted by law.
If the Licensor fails at any time during the term of the Agreement to insist on strict performance of any of the Licensee’s obligations under the Agreement, or if the Licensor fails to exercise any of the rights or remedies to which he is entitled under this Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve the Licensee from compliance with such obligations.
A waiver by the Licensor of any default shall not constitute a waiver of any subsequent default and no waiver by the Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the Licensee in writing.
The Licensee acknowledges that the Software including its structure, organisation and source code as well the activation code, license key or the delivered media containing the Software, the Documentation and all other information provided by the Licensor are the valuable trade secrets and proprietary confidential information of the Licensor. The Licensee therefore agrees to treat these as confidential and not to provide or disclose any such confidential information in the Software or derived from it to any third party.
10. Term, Termination and automatically renewal
This Agreement shall commence upon the earlier of the Licensee’s acceptance of this Agreement by clicking on the “ACCEPT”/”CONFIRM” button or the Licensee installing or activating the Software and is effective until terminated in accordance with this clause.
This Agreement will terminate immediately without notice from the Licensor if the Licensee fails to comply with any term or condition of this Agreement. Upon termination for any reason whatsoever, all rights granted to the Licensee under this Agreement shall cease, the Licensee must cease all activities authorised by this Agreement and the Licensee must immediately delete or remove the Software from all computer equipment in its possession and immediately destroy or return (at the Licensor’s option) all copies of the Software and Documentation then in its possession, custody or control, to the Licensor.
For the sake of good order it is expressly stated that Licensor is entitled to suspend or terminate the access to use by Licensee of any Software and Software copies should Licensor not receive payment due for such use.
If the Software has been obtained on a subscription basis, the Licensor is at any point in time entitled to terminate the License should Licensor not receive payment due for such use.
AT THE EXPIRY OF ANY SUBSCRIPTION PERIOD THE TERM WILL BE AUTOMATICALLY RENEWED. EITHER PARTY MAY AT ANY TIME IN WRITING, AND WITH THREE MONTHS' PRIOR NOTICE TO THE END OF A PAYMENT TERM, TERMINATE THIS AGREEMENT.
IN CASE OF TERMINATION FOR WHATEVER REASON NO REFUND WILL BE MADE OF THE SUBSCRIPTION PERIOD FEES PAID.
11. Third Party Rights
No term of this Agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this license.
12. Protection of trade secrets
Licensee recognises that the Software and documentation pertaining thereto contains valuable proprietary information and trade secrets which are the property of or are licensed to Licensor.
Licensee shall indemnify and hold Licensor harmless from any loss, damage, claim or liability caused by a violation of this Agreement by Licensee.
13. New Versions/Releases
The Licensor may from time to time create modifications to or new versions or releases of the Software which, at its complete discretion, it may choose to either offer to license for a fee to, or license free of charge to, the Licensee. Any such modifications, new versions or releases will be licensed under the terms of this Agreement.
In respect of Software which has been obtained by online activation, the Licensor may amend any of the terms and conditions of this License by providing written notice of the proposed changes to the Licensee no later than three months before it wishes the change(s) to come into effect. On receipt of such written notice (set forth by Licensor) the Licensee may choose either to accept the amended terms or to terminate the Agreement and all its use of the Software by giving at least three months notice to the Licensor.
If the Licensee thus chooses to terminate the entire Agreement and discontinue all its use of Software, providing that the Licensee has complied with all terms and conditions of this Agreement, the Licensee will then be entitled to a pro rata refund in respect of the license fee paid. Such refund will be from the date of termination under this clause until the expiry of the term for which payment has already been made. Following such termination the Licensee must entirely cease using the Software.
The Licensor may at any time sub-license, assign, charge or otherwise transfer any of its rights or obligations under this license, provided it gives written notice to the Licensee of any sub-license, assignment, charge or other transfer.
16. Governing Law, Jurisdiction and Venue
This Agreement is governed by the substantive laws of the kingdom of Denmark. Any dispute arising from, or related to, any term of this Agreement shall be subject to the exclusive jurisdiction of the courts of Copenhagen, Denmark. Venue for disputes shall be Copenhagen Denmark.
The Licensee acknowledges and agrees that notwithstanding the fact that this Agreement is governed by the laws of the Kingdom of Denmark, the Licensee may be subject to additional laws in other jurisdictions with respect to the Licensee’s use of the Software. The Licensee will comply with the laws of any jurisdiction that apply to the Software, including without limitation any applicable export laws or regulations.
17. Entire Agreement
This Agreement contains all the terms which the parties have agreed in relation to the subject matter of this Agreement and supersedes any prior written or oral agreements, representations or understandings between the parties in relation to such subject matter.
18. Software Upgrade terms
Subject to all of the above terms as supplemented and amended by the terms below, Licensor will make software upgrades available to the Licensor.
The upgrade product gives you access to the Orckestra CMS upgrade tool. Enabling easy upgrade of your solution to the latest version. Updates: Service packs, patches and Hot-fixes. Updates are made easily available via the Orckestra CMS Console. The upgrade agreement does not apply to commercial and free packages or add-ons.
The actual upgrade is not performed by Orckestra but normally by your Orckestra Solution Provider and at your own expense and responsibility. The Upgrade subscription product does not necessarily include any support or consultancy services.
The scope of upgrades available will be as described from time to time the Licensors website. Licensor does not warrant any specific scope, type or frequency for availability of upgrades.
19. Disclaimer, limitation of warranty
Licensor warrants that for a period of 90 days from its installation the new release or version will comply with the specifications applicable to such new release or version. Licensor disclaims any effect that the installation of new releases and versions may have on the Licensor IT-systems and installations other than the original unmodified Software.
Licensor has no further responsibility for the functionality and usability of Software adaptations and implementations made by Licensee and its external suppliers, even when such have been made by a Orckestra CMS Certified Solution Providers.