The following terms and conditions govern all Use of the Software. The software is provided by Bluewhale ApS, Fruebjergvej 3, DK-2100 København Ø, Denmark, CVR-no. 29824479 (“Bluewhale” or “Licensor”). The license to the software is offered subject to your acceptance without modification of all the terms and conditions contained herein and all other disclaimers, operating rules, policies and procedures made available by Licensor (“Agreement”).
The license may be subject to additional conditions contained in ordering documents, which describe the order specific information, i.e. subscription prices, additional license terms, billing information and your Use of the Software is subject to such conditions.
1. DEFINITIONS
a. "Software" means Bluewhale’s Bluewhale Server software with the current functionality provided by Bluewhale. It also includes any accompanying instructions, documentation, technical data, images, and other related materials.
b. "Use" means storing, loading, installing, executing, or displaying the Software on a single device.
c. "Product" means the downloadable Software product and its documentation as built at the time of the download.
d. "License" means the Software license granted under this Agreement.
e. "Terms of Use" means any and all prohibitions and restrictions on Use.
g. "Licensee" (sometimes referred to as "you") means the individual or entity who purchases the rights to Use the Software under this Agreement.
i. "Customer" means Licensee and any entity or individual who Uses the Software through Licensee's license.
j. "Agreement" means this entire License Agreement and all other applicable terms and conditions governing the Use of the Software.
k. "Upgrade" means a new release of the Product that includes a substantial new functionality or capability.
2. USE OF SOFTWARE
2.1. Licensee receives a License as described below. Bluewhale will provide updates to the Software, such as correction of "bugs" and minor improvements to existing functionality of the Software as Bluewhale may choose to provide. The license does not automatically include the right to receive any Upgrades or new product releases by Bluewhale. Bluewhale will in its own discretion determine whether and on what terms any Upgrade or new product release will be made available to existing Licensees.
2.2. The Customer is entitled to use the support documentation found at www.bluewhaleserver.com. Further support requires an additional support agreement. Licensor is not obliged to provide support for any Software where a new version has been launched and Licensee has decided not to purchase such version.
3. LICENSE GRANT
3.1. Licensor hereby grants Licensee a non-exclusive, non-transferable and non-sublicensable right to download and Use the Software on a single device.
3.2 If Licensee allows another individual to Use the Software on Licensees behalf, Licensee is liable for compliance with this Agreement, and for any violations by that user of the terms and conditions or License.
3.3 The Software is activated with license key(s). The license keys are issued to you or your organization and must not be shared with third parties. You acknowledge and accept that the license keys permit the specified number of users ("Number of users") to operate the Software and additional users will require a new license.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. The Software is owned, patented and copyrighted by Bluewhale or by third party suppliers. The License confers no title or ownership and does not constitute sale of any rights in the Software. Customer is solely granted the right to Use the Software without the right of sublicense.
4.2. Customer may not alter or remove any of the Bluewhale’s trademarks, trade names, logos, patent or copyright notices or markings, or add any other notices or markings to the Software. Customer may not copy the Software onto any public or distributed network.
4.3. Customer may not modify, reverse engineer, disassemble, decompile or otherwise attempt to access or determine the source code of the Software, copy, reproduce or distribute the Software in any way in whole or in part or create any derivative work based on the Software, except to the extent permitted under mandatory Danish law. Any use of the Software on any other website or networked computer environment for any purpose is prohibited. The Software is copyrighted and any unauthorized use of it is prohibited. If Customer breaches any of these terms, the License to Use the Software automatically terminates and Customer must immediately destroy any downloaded or printed materials.
4.4. Customer agrees that Software contains proprietary information including trade secrets, knowhow and confidential information that is the exclusive property of Bluewhale. During the Term of the Agreement and at all times after its termination, Customer and anyone acting on its behalf such as employees and agents shall maintain the confidentiality of this information and not sell, license, publish, display, distribute, disclose or otherwise make available this information to any third party nor use such proprietary information concerning the Software, including any flow charts, logic diagrams, user manuals and screens, to persons not an employee of Customer without the prior written consent of Bluewhale.
5. CANCELLATION RIGHT
5.1. If you Use the Software for private use as a consumer, you will have a right to cancel this Agreement up until fourteen (14) days after the Agreement is finalized in accordance with Danish law, provided however that your cancellation right will expire when you initiate Use of the Software.
6. TERMINATION
6.1. Bluewhale is entitled to terminate the License immediately without prior notice, if you materially breach your obligations according to this Agreement or fail to comply with any terms of this Agreement. Immediately upon termination, Customer will no longer have any right to Use the Software. Customer must immediately destroy any materials received pursuant to this Agreement. Upon request, Customer is required to present documentation to this effect that such materials have been destroyed. The documentation must be sufficient in the reasonable opinion of the Licensor.
7. DISCLAIMERS AND LIMITATIONS OF LIABILITY
7.1. To the extent permissible by law, this software is provided to you “as is” without warranties or conditions of any kind, whether oral or written, express or implied, Bluewhale specifically disclaims any implied warranties or conditions of merchantability, satisfactory quality, non-infringement, title, accuracy of informational content, and fitness for a particular purpose, the entire risk as to the results and performance of the Software is assumed by you. No oral or written information or advice given by Bluewhale or Bluewhale authorized representatives shall create warranty. Bluewhale does not represent that its server will be available at all times or will be functioning properly. Our server may be unavailable at times for maintenance or for a variety of other reasons. We are not liable to you for any periods of unavailability and you will not be entitled to any refunds for those periods when the server is not available or is not functioning properly. Some jurisdictions do not allow exclusions of implied warranties or conditions, so the above exclusion may not apply to you to the extent prohibited by applicable laws.
7.2. Except to the extent prohibited by law, in no event will Bluewhale or its subsidiaries, affiliates, directors, officers, employees, agents, contractors or suppliers be liable for direct, indirect, special, incidental, consequential, punitive or other damages (including lost profit, lost data, or downtime costs), arising out of the Use, inability to use, or the results of Use of the Software, whether based in warranty, contract, tort or other legal theory, and whether or not Bluewhale was advised of the possibility of such damages. Bluewhale’s and its suppliers' entire liability and your exclusive remedy shall be, at Bluewhale’s option from time to time exercised subject to applicable law, (a) return of the price paid (if any) for the Product in the twelve (12) months prior to the incident causing the claim, or (b) repair or replacement of the Product.
7.3. Note, except to the extent allowed by local law, these warranty terms do not exclude, restrict or modify, and are in addition to, the mandatory statutory rights applicable to the License of the Software to you.
7.4. Bluewhale does not promise that the Software will function on or be compatible with your device. It is the Customer’s sole responsibility to ensure that Customer’s device and internet access are compatible with the Software and its functionality.
8. USER WARRANTIES
8.1. As a condition of Use of the Software, Customer may not Use the Software for any purpose that is unlawful or prohibited by these Terms of Use. Licensor reserves the right to suspend or terminate this license if the Software is used for an unauthorized purpose. In case of suspension of the license, Licensee will not be entitled to a refund.
8.2. Customer shall not use the Software to interfere with or disrupt servers or networks connected to the Software.
8.3. By accepting the terms and conditions in this Agreement and purchasing the License, Licensee represents and warrants that, Licensee is at least 18 years of age and/or is otherwise legally able to enter into a binding contract.
9. PERSONAL INFORMATION
9.1 To the extent Customer’s provide Licensor with personal information when Using the Software, Licensor will process such personal information as necessary for Use of the Software. Any processing of personal information will be performed in accordance with Bluewhale’s Privacy Policy which is available at www.bluewhaleserver.com.
10. ASSIGNMENT
10.1. Licensee may not assign or transfer its rights and obligations according to this Agreement. Any assignment or transfer will be null and void. Bluewhale shall have the right to terminate the Licensee and this Agreement in the event of attempted assignment or transfer.
10.2. Bluewhale is entitled to assign its right and obligations under this Agreement without condition.
11. GENERAL PROVISION.
11.1 This Agreement and any disputes arising hereunder shall be governed by Danish law, without regard to conflicts of laws principles. Any dispute arising out of or relating to this Agreement shall exclusively be referred to the courts of Denmark. The parties hereby consent to and submit to the jurisdiction of such courts. The parties hereby expressly exclude the application of the U.N. Convention on Contracts for the International Sale of Goods to the Agreement.
11.2 If any term or provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the terms or provisions herein will remain in full force and effect. Failure or delay in enforcing any right or provision of this Agreement shall not be deemed a waiver of such right or provision with respect to any subsequent breach. Provisions herein which by their nature extend beyond the termination of any license of Software will remain in effect after termination of the Agreement.
11.3. This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Customer's additional or different terms and conditions will not apply. This Agreement may not be changed except by an amendment signed by an authorized representative of each party.
