TERMS AND CONDITIONS OF SALE AND RENTAL OF PROKON PRODUCT LICENSES:
For the purpose of this document:
1.1. “Prokon” means Prokon Software Limited, Registration No. 652353, a a private company established in terms of the company laws of the Republic of Ireland with its principal place of business located at Upper Pembroke Street, 28-32 Dublin, D02 EK84, Republic of Ireland;
1.2. “partner” means Prokon’s duly appointed representative, agent, regional distributor, or regional reseller;
1.3. “client” means a third party desiring to use one or more of the Prokon Products for his own design needs;
1.4. “Authorised User” means a natural person that has been granted access to the license by the Client;
1.5. “module” means a program in the Prokon suite of programs with a unique product code and product name e.g. A03:Frame Analysis;
1.6. “The software” means any module or a collection of modules;
1.7. “set” means one or more modules that have been grouped for use in the same license instance, e.g. Prokon Set1;
1.8. “workstation” means a set of modules, that can be accessed by an Authorised User, and with the maximum number of concurrent users determined by the number of workstations;
1.9. “update” means a free replacement of an older version of a module by a newer version of that module;
1.10. “EULA” means the End User License Agreement, may also be titled “Non-Exclusive Licence Agreement” which needs to be agreed to in order to use the Software;
1.11. “license agreement” means a license rental agreement or license purchase agreement, subject to the EULA. The agreement pertains to usage of the modules as distributed by Prokon on the purchase or shipping date, or any date thereafter, including updates that are permitted by Prokon in the agreement;
1.12. “license rental agreement” means an agreement whereby a Client rents licenses for usage of a specified number of workstations in one or more sets to be used for a predefined period;
1.13. “license purchase agreement” means an agreement whereby a Client purchases licenses for usage of a specified number of workstations in one or more sets to be used for an indefinite period;
1.14. “software maintenance” means the right to install program updates and request basic technical support at no additional charge;
1.15. “technical support” means the assistance provided to the Client or their Authorised Users on the correct usage of the Software;
1.16. “program update” means a replacement of an older version of a module by a newer version of that module;
1.17. “rental renewal” means the extension of an existing license rental agreement or reinstatement of an expired license rental agreement;
1.18. “maintenance agreement” means a plan whereby Prokon grants continued access to software maintenance to a Client that has entered into a license purchase agreement;
1.19. “license upgrade” means the renewal of an older license purchase agreement that is no longer eligible for software maintenance
1.20 “Intellectual Property” means, collectively, the patents, copyrights (and moral rights), trademarks, designs, models, brands, names, trade names, graphics, icons, hyperlinks, know-how, trade secrets and any other type of intellectual property (whether registered or unregistered including applications for and rights to obtain or use same);
1.21. “Intellectual Property Rights” means rights in Intellectual Property which are recognised and/or protected by the Laws of Ireland;
1.22 “Confidential Information” includes, but is not limited to
1,22.1. clients and business associates of Prokon;
1.22.2. the contractual arrangements between Prokon, its suppliers, business associates, clients, agents and employees;
1.22.3. the financial details of Prokon’s relationships with its suppliers, business associates, clients, agents and employees;
1.22.4. prospective clients of Prokon and their requirements;
1.22.5. Prokon’s financial structure, operating results, financial statements and income tax returns;
1.22.6. the remuneration paid by Prokon to its various employees and their duties;
1.22.7. management know-how, processes and techniques;
1.22.8. other matters which relate to the business of Prokon, which information is not readily available in the ordinary course of business to a competitor of Prokon;
1.23. Unless the context clearly indicates a contrary intention, expressions which denote:
1.23.1. any reference to a gender includes the other genders;
1.23.2. any reference to natural persons includes legal persons and vice versa;
1.23.3. any reference to the singular includes the plural and vice versa;
1.23.4. references to a “person” shall be construed as including references to an individual, firm, company, corporation, partnership, association, unincorporated body of persons, trust, a State or any Governmental Authority or any other entity whether acting in an individual, financing or other capacity and to such person’s permitted successors.
- Client Requirements:
Before an agreement exists the client shall:
2.1. complete an order in a format suitable to Prokon or a Partner;
2.2. return the completed order of 2.1 to said partner in a format that is easily legible in a language that is understandable to Prokon or the Partner;
2.3. on receipt of an invoice, pay the full amount and communicate proof of payment to the said partner in a format that is legible in a language that is understandable to them;
2.4. acquaint himself with the EULA, and choose to accept it.
- Prokon’s responsibilities:
3.1. On receipt of the client details Prokon shall record the details in their client database subject to Prokon’s client data privacy protocol.
3.2. Prokon or the Partner will provide the Client with an invoice.
3.3. On receipt of proof of payment, Prokon will provide the Client access to the software license.
- Regional Pricing:
4.1. Prokon will issue a Suggested Retail Price (SRP) list to all Partners in a currency of Prokon’s choice.
4.2. Partners will provide regional pricing in local currencies of their choice.
4.3. Prokon may at their sole discretion grant regional discounts.
4.4. Prokon retains the right to change any discount value, in any territory, concerning any or all Clients, at any time, without notice.
- Bulk Discount:
5.1. For any license agreement, the first copy of any module bought or rented by a Client shall be charged at full price as per the current price list.
5.2. Any further copies at the same site under the same license agreement may qualify for a multiple workstation discount.
5.3. A bundle discount may apply to certain groups of modules under the same license agreement.
5.4. Prokon retains the right to change any discount value, in any territory, concerning any or all Clients, at any time, without notice.
- The license rental agreement:
6.1. is a limited time agreement for the usage of the Software;
6.2. at Prokon’s discretion, the effective starting date will be:
6.2.1. the first day of the month closest to the date when the Client’s order is fulfilled;
6.2.2. the expiry date of a previous rental agreement; or
6.2.3. at a later date.
6.3. currently runs for one (1) year;
6.4. may be extended for a longer period:
6.4.1. at Prokon’s discretion
6.4.2. at a price determined by Prokon
6.4.3. only modules included in the original agreement shall be available to the client
6.4.4. modules added by Prokon after the initial transaction may be added at Prokon’s discretion, at a price determined by Prokon
6.5. includes one (1) year maintenance;
6.6. includes software maintenance for the duration of the license rental agreement;
6.7. is a prepaid agreement.
- The license purchase agreement:
7.1. is a perpetual agreement for the usage of the Software;
7.2. at Prokon’s discretion, the effective starting date will be:
7.2.1. the first day of the month closest to the date when the Client’s order is fulfilled;
7.2.2. the expiry date of a previous maintenance period; or
7.2.3. at a later date.
7.3. includes one (1) year software maintenance in the purchase price;
7.4. is a prepaid agreement.
7.5. Any Software acquired under the license purchase agreement, that has not been upgraded or maintained through a Software Maintenance Agreement for a period exceeding 4 years:
7.5.1. shall not be eligible for any support
7.5.2 may not be serviceable on newer Operating Systems or platforms
7.5.3. may require an upgrade/repurchase before Prokon can render any support/help
- Software Maintenance:
8.1. Software maintenance grants Clients with eligible licenses the right to install program updates and to basic technical support at no additional cost;
8.2. A software license includes software maintenance for the following periods:
8.2.1. for the duration of a license rental agreement;
8.2.2. for the first one (1) year during a license purchase agreement;
8.2.3. for one (1) year after a license purchase agreement upgrade;
8.2.4. for the duration of a software maintenance agreement pertaining to a license purchase agreement.
8.3. Program updates may be downloaded from the published Prokon website;
8.4. Prokon will provide basic technical support during Prokon office hours, and via a medium suitable for the process;
8.5. In a territory with an accredited Partner, the technical support agreement is made between the Client and the Partner. Should the Partner lose their accreditation during a support period, Prokon is under no obligation to take over such an agreement, neither does Prokon give any warranties or guarantees in this regard. Should Prokon then at its own discretion supply support to the Client, it shall be under terms and conditions as stipulated by Prokon at the time;
8.6. Prokon retains the right to change, remove or add any software maintenance service or benefit, in any territory, concerning any or all Clients, at any time, without notice.
- Software Maintenance Agreement:
9.1. is an agreement that may be entered into by a Client that has a license purchase agreement to continue software maintenance for an indefinite term;
9.2. may be entered into by the Client:
9.2.1. before the end of the first year after the original purchase;
9.2.2. within one year after a license purchase upgrade;
9.2.3. before the expiry of a current maintenance agreement.
9.3. at the discretion of Prokon, current discounts, special offers or territorial pricing as per clauses 4.2 and 5, may apply;
9.4. Should the expiry of clauses 8.2.2 or 8.2.4 occur, the maintenance agreement terminates, and the Client is eligible for an upgrade as described in clause 10;
9.5. is a prepaid agreement.
- License Purchase Agreement Upgrade:
10.1. is a renewal of a license purchase agreement;
10.2. at the discretion of Prokon, current discounts, special offers or territorial pricing as per clauses 4.2 and 5, may apply;
10.3. has an effective starting date on the day and month that a previous license purchase agreement lapsed, unless the upgrade takes place at full price.
10.4 may be done within 4 years of the last purchase/upgrade/maintenance agreement
- Shipping of Software:
11.1. The Software may be downloaded from the published Prokon website, or may be provided to the Client by other means and at intervals at the discretion of Prokon.
11.2. Prokon retains the right to change the method of shipping the Software in any territory, concerning any or all Clients, at any time, without notice.
- License Access by Authorised Users:
12.1. Client needs to use Software License Manager to register Authorised Users in the Software License Manager to grant them access to full usage of the Software.
- Non-Exclusive License Agreement:
13.1. Subject to and on condition of the Client and their Authorised Users’ continuous compliance with this, the Terms of Service contained in this document, and payment of the applicable fees, Prokon grants Authorised Users a nonexclusive, non-sub-licensable, non-transferable, limited license to install and use the Software within the scope of the license agreement.
13.2. Client and their Authorised Users may only use Commercial Software licenses for commercial purposes. All other license types, e.g. Educational and Student licenses may only be used for the purposes communicated to the client.
- Warranty, Limitation of Liability, Dispute Resolution, Termination and Jurisdiction:
14.1. With this document Prokon makes and the client receives no express warranties. Any statements or representations in this document or any communication with you about this document constitute technical information and not any warranty or guarantee. Prokon specifically disclaims any other warranty including without limitation, any implied warranties.
14.2. In no event shall Prokon or its licensors have any liability for any incidental, special, indirect, direct, or consequential damages, loss of profits, revenue, data, or cost of cover. In addition, Prokon and its licensors have no liability for changes to this document or any of Prokon’s policies.
14.3. Prokon retains the right to change any clauses in this document without notice and with immediate effect.
14.4 Any dispute which arises between the Parties relating to or arising out of this Agreement, including the validity, implementation, execution, interpretation, rectification, termination or cancellation of this Agreement, shall be referred to a committee consisting of two (2) members appointed by the client, and two (2) members appointed by Prokon, or alternates appointed by them, who will use their best efforts to resolve the dispute within fourteen (14) calendar days of the dispute having been referred to them. Should the committee be unable to resolve a dispute, the parties agree to have the dispute resolved in accordance with the United Nations Commission on International Trade Law (UNCITRAL) arbitration rules by an arbitrator appointed in terms of such rules or such arbitration rules as the parties may agree.
14.5 Each of the Parties shall only be entitled to cancel this Agreement with any other remedies available to them in law, if the other Party fails to perform its obligations under this Agreement, after having received a proper written notice of default and in which a party has been given 7 (seven) days to remedy the breach.
14.6 Each of the Parties may terminate this Agreement in writing with immediate effect and without a notice of default if the Other Party is granted a provisional or non-provisional suspension of payments by a court, if a petition for liquidation is filed with regard to the other Party or if the other Party’s business is suspended, wound up or terminated for other reasons besides a business reconstruction or merger.
14.7. All agreements in this document and/or any other agreements proposed by Prokon and accepted by the client are governed by the laws of the Republic of Ireland. All disputes arising out of or in connection with any agreement as mentioned above shall be subject to the exclusive jurisdiction of and venue in the Court of jurisdiction in Ireland, and the client irrevocably consents to the personal and exclusive jurisdiction and venue of this Court.
- Intellectual Property
15.1. The client acknowledges that all Intellectual Property Rights relating to or used in connection with the products under this Agreement vest in Prokon, either as owner or licensee of such Intellectual Property Rights.
15.2. The client does not acquire any rights under this Agreement from Prokon or its licensors to the products, including any related Intellectual Property Rights.
15.3. Prokon grants the client a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the products solely in accordance with this Agreement; and
15.4.The client hereby indemnifies and holds Prokon harmless against all losses suffered or incurred by them as a result of any Intellectual Property Rights claim by any third party.
- Protection of Confidential Information
16.1. Each Party will keep confidential and protect Confidential Information from disclosure to third parties and restrict its use to that which is provided for in this Agreement.
16.2. Either Party acknowledges that unauthorised disclosure or use of Proprietary Information may cause substantial economic loss. All materials containing Confidential Information will be marked with “Proprietary” or “Confidential”, or in a manner which gives notice of its proprietary nature. Confidential Information shall not be copied, in whole or in part, except when essential for correcting, generating or modifying Confidential Information for either Party’s authorised use. Each such copy, including its storage media, will be marked with all notices, which appear on the original.
16.3. Each Party shall ensure that its employees comply with its obligations under this clause.
16.4. This clause shall survive termination or cancellation of this Agreement.
16.5. This Agreement does not transfer to either Party title to any Intellectual Property Rights contained in any Confidential Information of the other Party.
- Data Privacy
17.1. The client shall indemnify Prokon against claims by persons whose personal data has been recorded or processed in connection with persons maintained by the client for which the client or Prokon is responsible under law or otherwise, unless the client proves that the facts underlying the claim are solely imputable to Prokon.
17.2. The client warrants that all statutory provisions concerning processing of personal data, including provisions General Data Protection Regulation (“GDPR”), have been strictly observed and all required consents to process personal data have been obtained. The Client shall provide Prokon immediately in writing with all requested information in this respect.
- Retention of Title and Rights
18.1. All products delivered to the client shall remain the Prokon’s property until all amounts owed by the client for the products delivered or to be delivered or work performed or to be performed under the Agreement, have been paid fully to Prokon.
18.2. As the occasion arises, any proprietary rights in and to the products shall only be granted or transferred to the client subject to this Agreement and on the condition that the client pays the agreed fees fully and in a timely manner.
18.3. Notwithstanding any delivery obligation, Prokon may maintain possession of objects, products, proprietary rights, information, documents, databases and interim or final results which have been received or generated in connection with the provision of products by Prokon, until the client has paid all amounts owed to Prokon.
18.4. The risk of loss or theft of or damage to products, equipment, software or data which are the subject of this Agreement shall pass to the client at the time they have been placed at the actual disposal of the client.
- Force Majeure
19.1. A Party shall not be obliged to perform any obligation if it is prevented from doing so by a situation of force majeure. “Force majeure” shall also include a situation of force majeure for the Prokon’s suppliers and improper performance of obligations by suppliers prescribed by the Prokon for the client, as well as defects in objects, materials or software of third parties which the client has required Prokon to use.
19.2. If a situation of force majeure lasts for more than 90 (ninety) days, the Parties shall be entitled to terminate the Agreement by cancellation in writing. What has already been performed pursuant to the Agreement shall in that case be settled proportionately, without the Parties otherwise owing each other anything.
20.1. All notices which are given by the parties may be given to it at the address set out on the front page of the latest Tax invoice issued to the Client, at which address it chooses domicilium citandi et executandi (the physical address at which legal proceedings may be instituted) for all purposes hereunder.
20.2. No waiver or abandonment by either Party of any of its rights in terms of this Agreement, shall be binding on that Party, unless such waiver or abandonment is in writing and signed by the waiving Party.
20.3. No indulgence, extension of time, relaxation or latitude which any Party (“the Grantor”) may show, grant or allow to another (“the Grantee”) shall constitute a waiver by the Grantor of any of the Grantor’s rights and the Grantor shall not thereby be prejudiced or stopped from exercising any of its rights against any Grantee which may have arisen in the past or which might arise in the future.
20.4. The relationship between the parties in terms of this Agreement shall not be construed as that of a joint venture, partnership, agency or employment and that parties act independently of each other.