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Licence agreement concerning AgroSoft A/S’s SOFTWARE 

  1. Scope, terms and limitation of the licence

AgroSoft A/S (“AgroSoft”) hereby grants to the licensee a fixed-term, non-transferable and non-exclusive right to use one or more of the delivered software programme(s)/software programme module(s) from AgroSoft to which the licence key gives access, including WinOpti, WinPig, WinKalv and WinVet and relating documentation (collectively the “software”) on the terms and conditions laid down in this licence agreement.

The right to use the software includes only the licensee’s own internal use of the software and only by the number of users (employees/personal computers) for which the licensee has paid from time to time. 

The right of use is conditional upon the licensee at all times paying the installation charge as well as the licence fees on a continuous basis. The right of use is applicable for as long as the licensee keeps up payment of the licence fees on a continuous basis to AgroSoft for the continued right to use the licensed software or until this licence agreement otherwise terminates in accordance with the terms of this licence agreement as a consequence of a party’s termination for breach or convenience of the licence agreement.

In the event that the licensee acquires other licences to use the software or in the event that the licensee installs new versions, changes, modules, updates, patches, software fixes potentially made available by AgroSoft, this licence agreement will automatically govern the right to use such software, unless AgroSoft chooses to license such new software components on terms and conditions other than those laid down in this licence agreement.

The licensee is not entitled to copy or otherwise dispose of the software other than as expressly stated in this licence agreement.

The licensee is not entitled to use the contents of any databases accompanying the software in other contexts than the software and, in addition, such use is subject to the terms and conditions laid down in this licence agreement. In the event that the licensee sells or transfers equipment to third parties on which the software is installed, the licensee must see to it that the software is deleted prior to handing over the equipment to such third parties.

The licensee is not entitled to modify, change, process, improve, decompile or perform reverse engineering in relation to the software other than what follows from mandatory rules.

The licensee is not entitled to crack or change any licence codes, security codes or source codes, just as the licensee is not entitled to change or remove software information on rights, module-specific serial numbers, copy lock attachments, trademarks, logo, computer programmer information, etc.

AgroSoft reserves all rights in respect of the software which are not expressly stated.

  1. Delivery and terms of payment

In this licence agreement, “delivery” means the time when the software has been sent from AgroSoft to the licensee or otherwise made available to the licensee in case of online or digital delivery (for example by way of email, link or download).

A sign-on fee will be invoiced by AgroSoft upon delivery of the software. The licence fees payable on a continuous basis will be invoiced in advance for one year at a time. Invoices will fall due for payment 10 days after the date of the invoice, and if the amount invoiced is not paid when due, AgroSoft is entitled to a default interest of 1.5% per month or fraction thereof, without any further request. In the event of reminders due to overdue payments, AgroSoft will charge a reminder fee of DKK 100 for each reminder. No demands for repayment of amounts paid at the time of conclusion of this agreement may be made unless the licensee proves material defects pursuant to Clause 7 below.

If the licensee fails to pay invoices when due, all rights to use the software in its entirety will lapse, and the licensee must immediately uninstall the software and cease to use the software.

If payment has not been received by AgroSoft on the due date at the latest, AgroSoft is entitled to cancel the licensee’s right to use the software. AgroSoft may choose to reactivate the licensee’s right to use and access the software provided that AgroSoft receives payment of the full outstanding amount as well as a fee of DKK 500.

  1. AgroSoft’s registration of the licensee’s data and licence control

The licensee accepts that AgroSoft continuously registers the licensee’s data to be used for adjustments, new developments and statistical purposes. The licensee accepts that AgroSoft may amend the licence agreement on the basis of the licensee’s data if it turns out that the actual number of employees/crew members does not match the licensee’s rights of use.

The licensee accepts that AgroSoft performs licence controls upon installation, start-up of programme as well as logs the use of software features. The information is solely used to check the licensee’s right to use the programme and for the work with further developing and improving the software. The information will not be disclosed to any third parties.

If, at the sole discretion of AgroSoft, AgroSoft’s control/logging shows any irregularities, AgroSoft is also entitled to perform control inspections/audits without notice by itself or by means of a third party appointed by AgroSoft at the licensee’s addresses of installation of the software for the purpose of ascertaining whether the licensee has obtained sufficient licences considering the licensee’s actual use of the software (under-licensing). The licensee is obliged to grant AgroSoft or any third party appointed by AgroSoft access to all information deemed necessary by AgroSoft.

  1. AgroSoft’s improvement of the software

AgroSoft endeavours to develop and improve the software. Such improvements, etc., will, however, solely be released in the form of future updates or versions.

In order to receive any such future updates or versions, the licensee is, however, required to have Internet access and to accept the terms and conditions on which AgroSoft should choose to make such improvements, etc., available to the licensee.

  1. Intellectual property rights

AgroSoft and/or AgroSoft’s suppliers own all rights in the software, including any and all copyrights, trademark rights and other intellectual property rights in the software, such as for example object code, source code, manuals, instructions, documentation, user interfaces, images, sound, video, animation, text and other media incorporated or used in the software, and this licence agreement does not imply any assignment of ownership in whole or in part of any rights to the licensee.

  1. Third party rights

AgroSoft warrants that the software does not infringe any third party copyrights or patent rights within the EU/EEA.

In the event that any third party objects to the use of the software, the licensee must notify AgroSoft thereof immediately. In the event of such notification, AgroSoft may choose to take over the case and pay any expense incidental thereto. AgroSoft is entitled, at its own expense, to take over the case, including to safeguard AgroSoft’s interests in any legal proceedings, as well as enter into a settlement concerning the alleged infringements.

In the event that any third party succeeds in its claim of infringement either by way of a final judgment or arbitration award, AgroSoft is obliged to indemnify the licensee for any claim, including claim for damages, following from such final judgment or arbitration award, and, in addition, at its own expense and discretion – to either:

  • procure a licence enabling the licensee to continue its use of the software
  • stop the infringement by changing the software
  • replace the software with another product with essentially the same features as the original software, or
  • terminate the licence agreement without notice with respect to the entire software or those parts of the software in which rights have not been granted and repay the proportionate share of the licence fee already prepaid by the licensee which the licensee has paid to be able to use the software from the beginning of the current one-year licence period until the time of the licensee’s complaint.

AgroSoft does not assume any obligations or liabilities other than the above, and the licensee cannot rely on remedies for breach other than the above as a consequence of the infringement of third party rights. Clause 8 also applies.

  1. Remedy of errors and defects

AgroSoft’s software is a standard software product which contains the features only which are described in the documentation attaching to the software as well as the features appearing from the software itself, see Appendix 1.

It is the sole responsibility of the licensee to assess whether the software fulfils the licensee’s requirements and needs, and AgroSoft assumes no responsibility whatsoever as to whether the software fulfils the licensee’s requirements, needs or other requests.

In addition, the licensee accepts that it is not practically viable to manufacture software which performs correctly in all situations and combinations.

The software is licensed on an “as is” basis and without any guarantees, warranties, rights of remedy or remedies for breach of any kind other than those stipulated in this Clause 7.

The licensee must install and test the software immediately upon delivery. AgroSoft guarantees for a three-month period upon delivery to be able to deliver replacement software in case of incorrect delivery. This, however, is no guarantee that the software may be installed (or works correctly).

In the event that material defects are found in the software, and the licensee complains in writing of such material defects in the software implying that one or more features of vital commercial importance to the licensee cannot be performed, AgroSoft is, for a three-month period upon delivery of the software, obliged – at its discretion – to either:

  • deliver a new software version free of charge, which does not contain the material defect(s), or
  • correct any material defects free of charge within reasonable time, provided that the defect may be made to re-occur, or
  • direct applications or make recommendations as to how the material defect may be avoided by the licensee by changing the procedures of the licensee, or
  • return the proportionate share of the licence fee already paid by the licensee for the software for the period from the time of the licensee’s complaint and until AgroSoft’s return of the proportionate share of the licence fee, whereby the licence agreement will concurrently terminate without notice.

The licensee’s rights are subject to the latest software update, version, patch, fix or the like having been installed.

The licensee cannot make any further claims against AgroSoft due to errors and defects in the event of AgroSoft’s failure to remedy such errors and defects or if the functionality and performance of the software are not free from disruptions or faults.

In all circumstances, the licensee cannot rely on remedies for breach if errors or defects are due to circumstances for which AgroSoft is not liable, including for example:

  1. Unforeseeable circumstances
  2. Misapplication of the software
  3. Use of the software in violation of the licence agreement
  4. Damage to the data medium
  5. Circumstances which are attributable in whole or in part to the licensee and/or third parties, or
  6. Any form of changes to the software made by the licensee or third parties irrespective of whether permission to make such changes has been granted by AgroSoft.
  1. Limitation of liability

The parties are liable in damages pursuant to the general rules of Danish law, subject however to the limitations and disclaimers stated below.

Under no circumstances is AgroSoft liable for indirect or consequential losses, including loss of future earnings, expected support or payouts in general, loss of profits, operating loss, loss of goodwill or image, or loss of or damage to the licensee’s data or databases, business and/or operational interruptions, or loss because of other business interruption that might occur using the software, or lack of/insufficient performance or productivity of the software.

AgroSoft is not liable for errors and defects to the extent that such have been caused by external factors, including other software or products. Furthermore, AgroSoft is not liable for the applicability of the software in relation to the specific use requested by the licensee, including integration of or interaction between the software and the licensee’s own equipment and software environment or third party systems.  In addition, AgroSoft is not liable for any loss arising as a consequence of AgroSoft allowing third parties to change the software, the licensee using the software in violation of the licensing conditions, or the licensee otherwise by way of negligence having contributed to occurrence of the loss.

In connection with the implementation of new versions, updates, releases, patches, fixes, etc., AgroSoft does not assume any liability for the licensee’s ability to fully use new features or changes in the software programme logic or parts thereof, or for such updates, etc., being compatible with or otherwise faultless considering any adjustments, settings or changes which the licensee has had made to the software and/or in relation to third party products.  In addition, AgroSoft does not guarantee backward compatibility between new versions, their functionalities or between language-specific and country-specific functionalities. AgroSoft assumes no liability for the software being compatible with new versions, etc., of third party products.

A number of features and computations in the software originate from legislation, rules and guidelines within the relevant fields. AgroSoft undertakes to keep itself continuously informed of such rules, guidelines, etc., but DOES NOT WARRANT to have knowledge of all rules, guidelines, etc., within the field. Computations, recommendations and specifications may in some circumstances result from AgroSoft’s use and interpretation of such rules, for example on the basis of guidelines issued by public authorities. AgroSoft seeks to interpret the underlying rules and regulations correctly in accordance with current and good business practices, but DISCLAIMS ANY LIABILITY for the correct use and interpretation of the rules as well as the results of any computations and specifications made in the software. CONSEQUENTLY, ANY USE OF COMPUTATIONS, RECOMMENDATIONS AND SPECIFICATIONS IN AGROSOFT’s SOFTWARE IS SOLELY AT THE LICENSEE’S OWN RISK, and AgroSoft disclaims any liability vis-à-vis the licensee or third parties in that respect.

In some circumstances, AgroSoft may also choose to leave out complex computations and interpretations, and AGROSOFT DOES NOT WARRANT THAT THE SOFTWARE FEATURES SUPPORT ALL COMPUTATIONS.

The licensee is at all times responsible for the results or the failing results of the use of the software, and the licensee must at all times professionally assess such results, including computations, etc., prior to making decisions on the basis thereof.

Furthermore, irrespective of the basis of liability and the type of loss, AgroSoft’s maximum and total liability in damages is in all circumstances limited to an amount equivalent to the licence fee actually paid by the licensee for all AgroSoft’s actions giving rise to liability for each period of 12 months calculated as from the effective date of this licence agreement.

The above disclaimer of liability also applies in the event of product liability, unless mandatory rules provide otherwise.

  1. Term and termination of the agreement

The licensee is entitled to terminate this licence agreement in writing. The right of use enjoyed by the licensee will lapse upon expiry of this licence agreement. The notice of termination must be received one month before expiry of each licence period of one year.  Any amounts paid at the time of concluding this agreement or any extensions thereof cannot be requested repaid in connection with the termination by the licensee.

AgroSoft may at all times terminate this licence agreement at 3 (three) months’ prior written notice. In the event of termination by AgroSoft, any prepaid licence fee paid under the licence agreement will be repaid proportionately for the period after termination of the licence agreement.

Upon termination of this licence agreement, and irrespective of the cause of such termination, the licensee must immediately cease to use the software, uninstall such software, return the licence key (dongle/copy lock), programme modules and other material to AgroSoft no later than two weeks after termination. In the event of failure to return the licence key (dongle/copy lock) as well as programme modules, AgroSoft will issue an invoice for a one-year licence fee.

  1. Confidentiality

The parties undertake not to disclose and to observe full confidentiality in respect of confidential information received by a party or its employees, sub-suppliers or advisers from the other party in connection with the performance of the licence agreement.

The parties each undertake to take such precautionary measures as are required for the purpose of protecting confidential information against unauthorised access, use, copying and/or disclosure and at least as provided for by legal and regulatory requirements.

Notwithstanding the above, AgroSoft is, however, entitled to make references to the licensee in its own marketing material.

11 Assignment

The licensee is not without AgroSoft’s prior written consent entitled to assign its rights and obligations under this licence agreement in whole or in part, including the right to use the software, irrespective of whether this takes place by way of directly or indirectly selling, leasing or lending, etc., such software to any third parties.

AgroSoft is entitled to assign its rights and obligations under this licence agreement in whole or in part to third parties without the licensee’s prior consent.

12 Damages in the event of breach by the licensee

In the event of material breach by the licensee of this licence agreement, for example by way of infringement of AgroSoft’s copyrights, including by reproducing it in violation of this licence agreement or by transferring the right to use the software to or otherwise making the software available to third parties and/or by failing to fulfil payment obligations, AgroSoft is entitled to terminate this licence agreement for breach and claim damages pursuant to the general rules of Danish law in that respect.

In the event of material breach by the licensee of this licence agreement, the licensee is, in addition to paying damages, obliged to pay an agreed penalty of DKK 100,000 to AgroSoft for any individual breach. This applies irrespective of whether AgroSoft is able to prove any loss in that respect. The licensee’s payment of an agreed penalty does not prevent AgroSoft from claiming damages where AgroSoft’s loss exceeds an amount equivalent to the agreed penalty paid.

In such event, AgroSoft is also entitled to suspend or cancel the licensee’s right of use and, subsequently, the licensee is no longer entitled to use the software.

  1. Other terms and conditions

AgroSoft’s general terms of sale and delivery attached hereto as Appendix 1 (“General Terms of Sale and Delivery”) constitute an integral part of this licence agreement. In the event of discrepancy between the terms of this licence agreement on the one hand and the General Terms of Sale and Delivery on the other hand, the terms of this licence agreement must apply and prevail at all times.

July 2014