1. General content of the contract
1.1. Parties and subject matter. The provisions of this End User License Agreement (EULA) shall govern the relationship between Aliantha Software SL, Gran vía 62, 28013 Madrid. SPAIN (“ALIANTHA”) and its customers (“Customer”) with respect to the licensing by ALIANTHA of certain of its software OPGUARDIAN (“The software”) and the provision by ALIANTHA of certain services related to OPGUARDIAN. Accordingly, subject to the terms and conditions of this EULA, ALIANTHA may provide Customer with (i) certain software (OPGUARDIAN) that enables the remote maintenance of computers. The software is installed on computers of the Customer as well as Software that may be accessed and used via browser and apps for mobile terminals (e.g. iOS, Android) (collectively “Software”), (ii) servers for the establishment of encrypted connections (handshake) and for the forwarding of data packets (routing) in connection with the use of the Software (“Server Services”) and (iii) related support services (“Support Services”). The Server Services and the Support Services are collectively referred to herein as “Services”.
1.2. Regulation sections. Sec. 1 of this EULA contains the general provisions, sec. 2 shall apply to any temporary (i.e. subscription based) term licenses to use Software.
1.3. Formation and content of the contract. A paid contract pursuant to this EULA shall be formed, if (i) the Customer consummates the web-based order process on the OPGUARDIAN website (www.opguardian.com) and, at the end, clicks on the “Purchase” / “Order” / “Subscribe” button, or if (ii) the Customer and ALIANTHA sign a written order form, or if (iii) the Customer orders by phone and receives an order confirmation by e-mail.Details regarding the contract (e.g. selected Software, scope of functions, term, Services, etc.), are set forth in the options selected by the Customer and in the specifications provided by ALIANTHA during the ordering process, or respectively on the order form (hereinafter all consistently referred to as “Order”, and hereinafter this EULA and the Order together shall be referred to as the “Contract”). A free Contract in accordance with the provisions of this EULA may be formed through the installation of any Freemium Software.
1.4. No deviating provisions. This Contract, including all Orders hereto, contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto and is binding upon the parties and their permitted successors and assigns. Any inconsistent or conflicting terms and conditions contained in any purchase order or similar instrument of Customer shall be of no force or effect, even if the purchase order or similar instrument is accepted by ALIANTHA.
1.5. Electronic commerce obligations. This licence is under the spanish law, under the LO 15/1999 (LOPD), 34/2002 (LSSICE) and under the general contracting law of 7/1998.
1.6. Test period. If the Order provides for a test period, the Customer may terminate this Contract (and its Order) for the Software within seven (7) days of the conclution of the Contract. In such case Customer shall be provided with a refund of any prepaid, unused fees (if any) paid to ALIANTHA for the applicable Software that is subject to the test period.
1.7. 14 days revocation right. If the Customer is a Consumer according to Section 3.3.(i), the Customer shall have the right to revoke the purchase within 14 days after the Contract is concluded. This may be done informally and without giving reasons by e-mail to [email protected]
2. Product specification and activation of the Software
2.1. Product specification. The functions of the Software and a description of any Services are set forth and described in the product description available in the ALIANTHA web shop and on the applicable Order (“Product Specification”). Only this Product Specification shall be relevant to the contractually agreed quality and features of the Software and the Server Services; any other oral or written statements of ALIANTHA shall not be relevant. Some features and functions of the Software or Services provided by ALIANTHA may include or depend on certain third party products and services all of which may be subject to changes by such third parties. Accordingly, such features and functions may be modified or limited.
2.2. No guarantees. In case of doubt, guarantees regarding the quality or features made by ALIANTHA shall only be interpreted as such if they have been made in writing (including a signature) and are labelled “guarantee”.
2.3. Provision and activation. ALIANTHA shall provide the Software to the Customer for electronic download.
2.4. Activation. In the case of a paid usage of OPGUARDIAN, following the date that the parties enter into the Contract, the Customer shall receive an email confirming the date which is effective the use, and the date of end of service, between both dates, the rights of use rights and functionalities of the paid version in accordance with this Contract shall be available to the Customer.
3. Software rights of use
3.1. Non-exclusive right of use. ALIANTHA herewith grants the Customer the non-exclusive, worldwide (subject to applicable export regulations; unless the Customer is expressly granted a limited right to use the license only in a specific territory during the order process), non-transferrable and not sub-licensable right to install, run and use the Software on Customers computers within the limits of the scope of use specified in the Order and this EULA. Notwithstanding the aforesaid, Customer shall be entitled to sublicense the Software in accordance with scope of Software functions (channel grouping).
3.2. Term of use. In case of a term or subscription based license (“Subscription”), the rights of use granted under this Contract shall be limited in time to the term specified in the applicable Order.
3.3. Scope of use. The scope of the granted rights and the admissible scope of use (e.g. channels) shall be set forth on the Order and this EULA.
(i) Private and commercial use. Unless expressly agreed otherwise, the following Customers shall only be granted the right for private use: (a) Customers using the Software free of charge, and (b) Customers concluding the Contract for purposes that, for the most part, can neither be associated with their trade nor with their business or profession (“Consumer”).
(ii) Scope of private use. If the Customer obtains the right to use the Software for private use, then the Customer shall be entitled to use the Software solely for Customer’s own, private, non-commercial purposes (e.g. free computer support for a spouse/partner). The use of the Software for the exercise of the Customer’s own trade, business or profession or the use for purposes for which the Customer directly or indirectly receives compensation (team work with colleagues, free support provided to third parties which have bought software of the Customer) does not qualify as private use.
(iii) Scope of commercial use. If the Customer obtains the right to use the Software for commercial use, then the Customer shall be entitled to use the Software for the Customer’s own trade, business or profession or the trade or business of Customer’s Affiliates. For purposes of the foregoing, an “Affiliate” shall mean any other person which directly or indirectly, controls, is controlled by, or is under common control with Customer, including, without limitation, subsidiaries, parent and sister companies.
Additional restrictions of the admissible scope of usage shall be specified in the Order.
3.4. Prohibition of use exceeding the contractual scope of use. Any use of the Software exceeding the contractually agreed scope of usage is expressly prohibited.
3.5. Source code. The rights of use granted shall not include any rights to the source code of the Software.
3.6. Modification and decompilation. The rights granted pursuant to this Contract shall not include any rights to the modification or decompilation of the Software.
3.7. Markings. Markings of the Software, in particular, copyright notices, brands, serial number or similar must not be removed, modified or rendered illegible.
3.8. Provision to third parties. The Customer shall not be entitled to give or provide the Software to third parties beyond the intended use; in particular, the Customer shall not be entitled to sell the Software.
3.9. Reservation of rights. As between the parties, ALIANTHA retains all right, title and interest in and to the Software (and any updates thereto provided by ALIANTHA) and in all copies, modifications and derivative works of the Software including, without limitation, all rights to patent, copyright, trade secret, trademark and other proprietary or intellectual property rights.
3.10. Right to audit and self-declaration. ALIANTHA may, at its sole discretion, conduct technical measures regarding the functionality of the Software and the Server Services in such a way that it may detect whether the contractually agreed scope of usage is being exceeded by the Customer. Also, ALIANTHA may require the Customer, at any time, to provide a self-declaration regarding its actual scope of use.
4. Server Services and other services provided by ALIANTHA
4.1. Server Services. For the establishment of encrypted remote communication connections between different users of the Software, the Software must respectively first of all communicate with servers of ALIANTHA (so-called “handshake”). In addition, it may be necessary for the transmission of data in the context of a session (e.g. online meeting or remote maintenance) that encrypted data packets be forwarded by servers of ALIANTHA (so-called “routing”). Such handshake and routing are made available in connection with ALIANTHA’s Server Services.
(i) Subject matter. ALIANTHA is willing to provide Customer with the respective Server Services. The Server Services may be unavailable from time to time due to technical difficulties or due to causes beyond the reasonable control of ALIANTHA. The Internet connection between the Customer and the data center as well as the required hardware and software (e.g. PC, operating system) shall not be included in the services provided by ALIANTHA and shall be Customer’s responsibility. The respective costs shall be borne by Customer.
(ii) Term. In case of a subscription term license, the Server Services may be provided during the limited term of the Customer’s subscription to the Software. In the event of free licenses (“Freemium Software”) ALIANTHA may in its sole discretion discontinue or modify the Server Services at any time.
4.2. Installation, configuration. The Customer shall be solely responsible for the installation and configuration of the Software. ALIANTHA is not responsible for any installation or configuration.
4.3. Support. ALIANTHA’s only obligation for Support Services shall be to provide those specific Support Services set forth and described on the Order (if any), subject to Customer’s payment in full for such Support Services. This shall not affect any statutory warranty claims of the Customer.
4.4. Documentation. ALIANTHA shall provide a manual retrievable online in Spanish and English. Any further languages may be offered by ALIANTHA on a voluntary basis, at ALIANTHA’s sole discretion. The documentation is available online under https://opguardian.com/wiki. As between the parties, ALIANTHA retains all right, title and interest in and to such documentation and in all copies, modifications and derivative works thereof including, without limitation, all rights to patent, copyright, trade secret, trademark and other proprietary or intellectual property rights.
4.5. Software Updates. ALIANTHA may, at its sole discretion, elect to provide Customer with free updates of the Software for download. Updates may include the correction of errors as well as minor improvements of functions (e.g. optimizations in the program execution speed). ALIANTHA shall have no obligation to provide minor updates to Customer; provided, however, that if ALIANTHA does elect to provide minor updates to Customer then the Customer shall be obligated to integrate the current update of the Software at its own cost into the then current version of the Software in use by Customer. This shall not affect any warranty claims of the Customer. All rights of use set forth herein that are applicable to the Software shall also apply to all minor updates.
4.6. Programming interfaces. At ALIANTHA’s discretion, the Software or Server Services may provide programming interfaces or other software interfaces (“API”) which may include applications of third parties or of the Customer (“Third-party Software”) that can communicate with the Software or respectively the servers of ALIANTHA. ALIANTHA may change or switch off APIs at any time without any obligation or liability to Customer. The respective provider shall be responsible for the Third-party Software. The provisions of this Contract shall not apply to any such Third-party Software and ALIANTHA shall have no liability for any Third-party Software.
4.7. Changes to the services. ALIANTHA may change the Software in the context of updates as well as the Server Services (including the system requirements) for good cause. Such a good cause shall exist especially if the change is required due to (i) a necessary adaptation required by applicable law, (ii) changed technical framework conditions (new encryption standards), or (iii) the protection of the system security.
5. Obligations and duties of the Customer
5.1. Lawful usage. The Customer shall use the Software and the Server Services only in accordance with the provisions of this Contract and in accordance with applicable laws and regulations in connection with such use. When using the Software and Server Services, the Customer shall, in particular, comply with all applicable data protection and export control provisions.
5.2. Export control. The Customer shall not use the Software in a country and shall not send, transfer or export it to a country or to person if this violates the export provisions of the European Union or if this is in any way prohibited in accordance with the Common Foreign and Security Policy of the EU or with U.S. export law. By using the Software, the Customer confirms that it is not in such a country, does not have its domicile in such a country and is not under the control of such a country. The Customer shall assume full responsibility for the use of the Software in this regard.
5.3. System requirements. The requirements for the Customer’s software and hardware are specified in the manuals and the Product Specification. The Customer shall familiarize itself with the system requirements prior to using the Software and use the Software in accordance with these requirements.
6. Confidentiality and data protection
6.1. Confidentiality. The products offered for purchase, including the Software and all manuals and documentation provided by ALIANTHA, contain essential components (e.g. algorithm and logic), constituting confidential information and trade secrets and shall be deemed ALIANTHA’s Confidential Information. Customer will not disclose ALIANTHA’s Confidential Information to any third party and will use ALIANTHA’s Confidential Information only in accordance to this Contract.
6.2. Data protection. ALIANTHA strictly complies with applicable data protection law. ALIANTHA collects, processes and uses data of Customer for the implementation and processing of the contractual relation with Customer, in particular for successfully establishing connections via the Internet. Data of Customer is not shared with third party advertisers without prior written consent. Non-personal or anonymous data may be collected automatically to improve functionality and the Customers’ experience with the Software and the Services. The Customer agrees that any non-personal or anonymous data collected may be sent to any of the worldwide offices or affiliates of ALIANTHA. Details about collection, processing, and use of personal data by ALIANTHA are described in the Data Protection Policy available for download under opguardian.com website
7. Limitation of liability
7.1. Exclusion in certain cases. ALIANTHA shall be liable for damages in accordance with the statutory provisions, if such damages
(i) have been caused by ALIANTHA intentionally or grossly negligently, or
(ii) have been caused by ALIANTHA by slight negligence and are due to breaches of duty which jeopardize the fulfillment of the purpose of this Contract, or due to a breach of duties the fulfillment of which would make the proper performance of this Contract possible in the first place and in the fulfillment of which the Customer may trust (breach of material obligations).
Any further liability of ALIANTHA shall be excluded irrespective of the legal basis, unless ALIANTHA is mandatorily liable in accordance with the law, in particular due to injury to life, body or health of an individual, due to the provision of an express warranty, fraudulent concealment of a defect or due to the provisions of the Spanish Product Liability Act.
7.2. Limitation of the amount. In the case of sec. 7.1 sentence 1 (ii) (slightly negligent breach of material obligations), ALIANTHA shall only be subject to limited liability for damages that can be typically expected in the case of a contract of this type.
7.3. Provision free of charge. In deviation from sec. 7.1 and 7.2, ALIANTHA’s liability for damages caused during a provision of the Software free of charge shall be limited to intent and gross negligence.
7.4. Employees and agents of ALIANTHA. The limitations of liability pursuant to sec. 7.1 to 7.3 shall also apply to claims against employees or agents of ALIANTHA.
8. Final provisions
8.1. Changes to the General Terms and Conditions. ALIANTHA shall be entitled to amend this EULA upon no less than six (6) weeks prior notice to Customer. Unless customer notifies ALIANTHA in writing of its objection to such amendment within fifteen (15) days of its receipt of notice of such amendment from ALIANTHA then the amendment shall be deemed accepted by Customer. If, on the other hand, Customer notifies ALIANTHA in writing of its objection to such amendment within fifteen (15) days of its receipt of notice of such amendment from ALIANTHA then the Contract shall be continued under the existing terms without giving effect to such amendment.
8.2. Communication via email. Unless otherwise specified in this Contract, any notifications and declarations in connection with this Contract may also be made by email. To this end, ALIANTHA may use the email address the Customer provided upon registration or in the ALIANTHA account. The Customer shall check his emails regularly and, if necessary, update the email address. ALIANTHA’s contact information is available at [email protected]
8.3. Applicable law. This Contract and any disputes in connection with it shall be exclusively governed by the law of Spain, excluding the United Nations Convention on Contracts for the International Sale of Goods. The choice of applicable law shall not apply if and to the extent that it would have the consequence that Customers entering into the Agreement for purposes not primarily attributable to their commercial or freelance professional activities (“Consumer”), would be deprived of the protection granted to them in accordance with the law that would be applicable in accordance with Art. 6 para. 1 of the ROME I Regulation in the absence of a choice of applicable law, and from which no devitation is permitted.
8.4. Place of jurisdiction. If the Customer is a merchant, a legal person under public law or a special fund under public law, the exclusive place of jurisdiction shall be at ALIANTHA’s domicile. In this case, ALIANTHA shall still be entitled to file a suit at the Customer’s domicile.
8.5. Severability. If any provision of this Contract is found partly or wholly illegal or unenforceable, such provision shall be enforced to the maximum extent permissible, and remaining provisions of this Contract shall remain in full force and effect.
8.6. Exclusive application. This EULA shall apply exclusively. Differing or contrary terms shall not apply except if expressly agreed upon in writing.
9. User fee, price changes and late payment in case of subscription
9.1. User fee. During the term of the Contract, the Customer shall pay ALIANTHA the recurring user fee specified in the Order for the rights of use to the Software and the provision of the Services.
9.2. Due date. Unless otherwise specified in the Order, the price shall be due upon invoicing.
9.3. Changes of the scope of use. Customer shall have the right at any time to increase the ordered scope of use or to switch to a higher service package by entering into additional Order. Any reduction in use or a switch to a lower package, however, shall only be available at the expiration of the then applicable term (cf. sec. 11.1). In the case of an increase of the scope of use during the Initial Term or a Renewal Term, the additional fees shall be invoiced on a pro rata basis based on ALIANTHA’s then current applicable price lists.
9.4. Invoicing. Unless otherwise specified in the Order, ALIANTHA shall invoice the user fee at the beginning of the Contract and subsequently at the beginning of each Renewal Term. The invoicing shall be made (i) online via an email to the email address provided by the Customer or (ii) – if such an account has been created – through an upload into the Customer’s ALIANTHA account and the notification of the Customer via email. The Customer shall only be entitled to the delivery of an invoice by mail, if the Customer requests the invoice from ALIANTHA and pays the respective fee specified in ALIANTHA’s applicable price list.
9.5. Payment methods. The invoiced amounts may be paid by credit card or PayPal. If the Customer selects PayPal debit authorization as payment method, if provided for, the Customer may cancel the debit method on its PayPal account profile. Such cancellation shall be made no later than one day prior to the next debit date.
9.6. Prices, fees, and tax. The Customer shall be required to pay all prices and charges specified in the Order according to the stipulated payment terms to ALIANTHA. Such prices do not include any sales, use, consumptions, value-added, or any other tax (including applicable withholding tax) and Customer is responsible for the payment of any and all such taxes. Bank and credit card charges shall be borne by the Customer. All prices and charges shall be payable within seven (7) days from the invoice date, in the currency specified on the Order, unless another payment period was agreed or the selected payment method itself (e.g. credit card) leads to a shorter payment period or even to the requirement of an immediate payment.
9.7. Price changes. ALIANTHA shall be entitled to reasonably increase the user fee effective as of the end of the Initial Term (usually 12 months or 1 month) or any Renewal Term. ALIANTHA must announce the increase in advance subject to a notice period corresponding at least to the notice period of an ordinary termination by ALIANTHA. The Customer may object to the increase, in which case the Contract shall be terminated once the increase enters into effect. If the Customer does not object, this shall be deemed as his consent to the increase. ALIANTHA shall inform the Customer in its notification about this effect of non-objection.
9.8. Late payment.
(i) Suspension in case of default. If the Customer defaults on the payment of the user fee, ALIANTHA shall be entitled to suspend the Server Services temporarily (“Suspension”). However, ALIANTHA shall warn the Customer of the Suspension reasonably in advance, e.g. via email or notifications in the Software. The Suspension shall not take place or respectively be stopped once the Customer has made his payment in full. During the Suspension period, no connections can be established from and to the installations of the Customer’s Software. The Customer’s obligation to pay the user fee shall continue in effect during the Suspension period.
(ii) Termination in case of default. ALIANTHA may terminate the Contract if the Customer defaults on the payment of the user fee and fails to cure the breach within seven (7) days of receiving notice from ALIANTHA. Termination is in addition to (and not in lieu of) any other rights and remedies available to ALIANTHA hereunder or at law.
10. Warranty claims (warranty) in case of subscription
10.1. Freedom from defects, quality and features. ALIANTHA shall provide the Software free from any defects in quality and title and maintain it in a condition suitable for the contractual use during the term of the Contract.
10.2. Obligation to preserve. The obligation to preserve the Software does not include the adaptation of the Software to new operating systems or new operating system versions, the adaptation to the scope of functions of competing products or the establishment of compatibility with new data formats or major updates (main version) of ALIANTHA of other participants which are no longer supported by ALIANTHA.
10.3. Elimination of errors and defects. The Customer shall report any errors and defects in the Software or the Server Services preferably via the OPGuardian support web portal provided by ALIANTHA and shall, as far as this is possible and can be reasonably expected, explain the circumstances of the occurrence of the errors/ defects more detail (e.g. screenshots, protocol data). ALIANTHA shall eliminate errors/defects within a reasonable period of time. ALIANTHA will be able to eliminate errors/defects in the form of updates and patches as long as the contractual scope of function is retained and the transfer does not lead to significant disadvantages. Installation expenses shall be borne by the Customer. In addition, ALIANTHA shall be entitled to show the Customer temporary ways for circumventing the errors/defects and eliminate the errors/defects at a later point in time through the adaptation of the Software or the Server Services, if the Customer can reasonably be expected to accept such a temporary solution.
10.4. Termination. A termination by the user due to the non-permission of the use in conformity with the Contract shall only be admissible if ALIANTHA had been given sufficient opportunities to eliminate the error/shortcoming and has failed to do so.
11. Terms and termination in case of subscription
11.1. Term and ordinary termination. Unless otherwise specified in the Order, the following shall apply
(i) in the case of the provision of the Software for a fee: If the Order, the Contract has an initial term of twelve (12) months (“Initial Term”) it shall subsequently be renewed automatically for additional periods of twelve (12) month (each a “Renewal Term”), unless either party notifies the other party no less than fiveteen (15) days (“Notice Period”) prior to the end of the Initial Term or any Renewal Term that it has elected not to renew the Contract. If the Contract has an initial term of one month (“Initial Term”) it shall subsequently be renewed automatically for additional periods of one month (each a “Renewal Term”), unless either party notifies the other party no less than ten (10) days (“Notice Period”) prior to the end if the Initial Term or any Renewal Term that it has elected not to renew the Contract.
(ii) in the case of a provision of the Software free of charge: The Contract shall enter into effect upon its conclusion, be concluded for a limited time and either Party may terminate it at any time without giving reasons.
11.2. Termination for Breach. This shall not affect the right to a termination for good cause. Section 9.8.(iii) shall apply to ALIANTHA’s termination right in case of late payment.
11.3. Termination notice. The termination must be made in writing (signed letter) or in text form (e.g. email). The Customer shall address its termination notice to Aliantha Software SL, Gran via 62, 8. Madrid 28013. Spain. or respectively to [email protected] ALIANTHA may also terminate a Contract by means of a respective notification within the Software.
11.4. Consequences of the termination of the Contract. Upon the termination or expiration of the Contract, the Customer shall delete the Software from its computers and refrain from any further use of the Software. Upon the termination or expiration of the Contract, the Customer shall no longer have access to the data stored by Customer in the Software, the ALIANTHA account and the ALIANTHA Management Console. The Customer shall be solely responsible for exporting the data – as far as possible – prior to the termination or expiration of the term of the Contract by means of the Software functions and to store it for further use. ALIANTHA shall not be obligated to any further release of data. Upon the termination or expiration of the Contract, ALIANTHA shall delete the Customer data, unless ALIANTHA is obligated by law to store it. If a deletion is only possible with unreasonable efforts (e.g. in backups), ALIANTHA shall be entitled to lock the data. This shall not affect ALIANTHA’s right to use data in accordance with section 6.2.