By installing the program AVALANCHE offline, or c.q., on the on-line version, activating the checkbox on the registration form, you consent to these operating conditions, stipulated in this Agreement. You also acknowledge that you hold a proxy from your company or organization to enter into this Agreement. If you do not hold such a proxy from your company or organization, or if you do not consent to these conditions, your are not entitled to use AVALANCHE offline or on-line.
The program AVALANCHE actually exists in the following versions and comprises the following modules:
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TODAY IT INTERNATIONAL B.V., chamber of commerce number 2728994, further to be referred to as TODAY, holds the copyright to the computer program AVALANCHE and is authorized to grant the user rights, stipulated in this contract to the Licensee. TODAY may, pursuant to this contract, extend certain user rights to the Licensee.
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TODAY grants to the Licensee, for an indefinite period of time, the non-exclusive and non-transferable right to use the program AVALANCHE for business purposes, as well as for internal purposes, taking into account these Operating Conditions.
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The right to use AVALANCHE may only be utilized, at one time, on one network and/or location of a network. The user right is granted as long as the Licensee pays the license fees. If the license fees are not paid in good time, after giving notice to pay within seven days, if still the payment is not settled, TODAY is entitled to suspend the services. If, however, the Licensee pays after more than seven days, reconnection costs will be charged to the Licensee. In case the Licensee does not settle the payment after 14 days, TODAY is entitled to terminate the services, not affecting its rights to the payment of any unpaid invoices. In case of termination of the services by the Licensee, the Licensee is entitled to a further access of 4 weeks to download the data.
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The user right of AVALANCHE may not be transferred to third parties without the written permission of TODAY. The Licensee is not allowed to sell, lease, or in any other way alienate or transfer in a secure manner the license for AVALANCHE, or to make it disposable to any third party, e.g. by passing on the login codes.
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The Licensee may use the program AVALANCHE only for data processing within his/her own company. The program AVALANCHE may not be used for consultancy assignments, consultancy projects, service processing for third parties or implementation of orders for third parties, irrespective of their nature.
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The Licensee may not release the program AVALANCHE to the public domain, copy or otherwise duplicate or modify it.
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The Licensee is not permitted to decompile, dismantle or disassemble the program code, nor to duplicate, translate or otherwise subject it to reverse engineering, except to the extent that such is permitted by law.
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The intellectual property rights to all the Products or Services that TODAY makes available within this Agreement, remain with TODAY or any third party from whom TODAY may have obtained the right to make (any part) of the Products or Services available to the Licensee. With reference to the Software, and other Products or Services that may apply, with the condition precedent of regular payments by the Licensee of all payments that are due with reference to this Agreement, TODAY hereby, grants a right to use to the Licensee that is not exclusive and cannot be transferred, unless explicitly stipulated otherwise in the Agreement. If, upon the judgment by TODAY, it were to be(come) reasonably certain that any of the content that is made available by TODAY within this Agreement would infringe any right by a third party, TODAY is entitled, upon proper judgment, to act as follows: 1) ensure that the Licensee can continue to utilize the specified content, or, 2) suspend the providing of the specified content. By that, any further responsibility, liabilities and obligation for compensation are being excluded. The Licensee is liable, if and to the extent that, with reference to the Agreement, any material or data would be made available by him/her to TODAY, to which he/she is entitled to, and also that the material and data do not infringe any rights of third parties. The Licensee is not entitled to remove any of the displayed information with reference to intellectual property rights from any of the content. The same applies to messages stating that the nature of certain displayed information is ‘confidential’. If not otherwise ruled by a Court of Law, the Licensee is not entitled to duplicate or decompile any of the Software that is made available, or to apply reverse engineering. Also, it is not allowed to remove or bypass securities/protections or technical restrictions (with reference to the use).
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All of the prices are stated in EUR (€) and they do include VAT, nor other taxes imposed by the government. If a periodic payment obligation applies to the Licensee, by law, TODAY is entitled, applying a period of at least three months and only in a written manner, to change the applicable prices and price rates. In case the Licensee decides not to consent with the specified change(s), he/she is entitled to terminate the Agreement within thirty days after the notice, starting on the date when the change(s) become applicable. The Parties are to stipulate, in the Agreement, the date or dates on which TODAY is to invoice the Licensee for the specified services. The invoices must be paid by the Licensee according to the payment conditions specified on the invoice. If there is no such specific regulation, the Licensee is to pay any invoice within thirty days after the date of invoice. The Licensee is not entitled to settlements or a suspension of the payments. If the Licensee does not timely pay the amounts that are due, the Licensee is obliged, without any notice or formal notice being required, to pay a legal interest on the amount that is unpaid. If the Licensee fails to make the necessary payment(s), after a notice or formal notice, TODAY is entitled to pass the claim on to an external party for further actions, in which case, the Licensee is obliged, on top of the total amount that is due, to pay all the legal and juridical costs, including expenses calculated by external experts in addition to the costs determined by law.
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In all cases of alleged malfunction of the program AVALANCHE, such to be determined by Today IT, Today IT shall endeavor to restore the functioning of the program as intended. Should Today IT, after repeated attempts be unable to do so, the Licensee shall be entitled to return the AVALANCHE package to TODAY within 30 days of written notification. TODAY shall NOT reimburse any procurement price paid.
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The total liability of TODAY due to accountable shortcomings with reference to what is bindingly stipulated in the Agreement, is limited to the compensation of any direct damage, up to a maximum that equals the amount set with reference to the Agreement (VAT not incl.). If it concerns an Agreement that is mainly based on a long periodicity of more than one year, the price for one year applies like it has been stipulated with reference to the Agreement for the total of the remunerations during the specified period (VAT not incl.).
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Any liability by TODAY for indirect damage, secondary damage, loss of profits, loss of savings, reduced goodwill, damage due to slacking business, damage because of claims by customers of the Licensee, damage to or loss of data, damage with reference to the use by the Licensee of items attached to TODAY, material or software from third parties, damage with reference to services by Licensee of suppliers attached to TODAY, and any other possible form of damage, whatsoever, is excluded. Any liability by TODAY due to accountable shortcoming with reference to honoring an Agreement, in any case, can only arise if the Licensee gives formal notice, without delay and adequately in writing, to TODAY, at which a reasonable term is set to adjust the shortcoming, and TODAY, even after that term, continues its shortcoming with reference to its obligations, in an accountable manner. The formal notice should describe the shortcoming as detailed as possible, allowing TODAY to respond adequately and adjust.
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Should the Licensee act in violation of the provisions of this licensing contract, the user right stipulated in article 2 shall be terminated immediately.
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Today IT shall implement the preventive, corrective and regenerative maintenance of AVALANCHE for the Licensee and also provide telephone support, under the terms and conditions of this contract. While the client is not under obligation to have an e-mail address for uninterrupted provision of maintenance, access to e-mail will be given priority for maintenance. There is a possibility also that, for countries specified for that purpose, telephone support will be provided by TODAY.
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Maintenance activities shall be conducted on normal working days, in consultation with the Licensee, during Today IT’s normal office hours (between 8.30 and 17.00). In cases of urgency, maintenance activities shall be conducted at the Licensee’s request, at the rates customarily charged by Today IT outside the specified times.
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The maintenance services to be conducted by Today IT do not include: the (re)configuration as such of the equipment at Licensee that can, based on the most recent releases of operating software and AVALANCHE supplied by Today IT, be started at an adequate level with the maintenance services.
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Today IT shall conduct for the Licensee corrective maintenance on AVALANCHE. This shall include the detection and correction of occurring and reproducible errors and defects in AVALANCHE. Today IT shall, within 4 office hours of notification, commence with those activities that will or may result in the swiftest possible correction of the error(s) or defect(s).
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Today IT shall conduct for the Licensee preventive maintenance of AVALANCHE. This shall include the continuing operation of AVALANCHE, meaning that by adopting the appropriate measures, both preventive and corrective, the best efforts are deployed towards guaranteeing that AVALANCHE functions for the duration of the maintenance contract.
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Today IT shall conduct for the Licensee regenerative maintenance on AVALANCHE. This comprises: the provision and, upon the Licensee’s request, implementation of new versions and releases of the AVALANCHE program, as soon as possible, after they become available. The Licensee shall not be obliged to adopt new versions. Today IT shall, however, continue to maintain only the most recent version and its immediate predecessor issued to the Licensee. This most recent version shall continue to be maintained for one year after the issuing of a new version.
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Regenerative maintenance shall not include modifications to customized software or software procured by third parties that operates in conjunction with AVALANCHE and that might be required as a result of the publication of a new version or release of AVALANCHE.
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The maintenance stipulated above shall consist of the provision to the Licensee of a new version of the AVALANCHE program. Today IT may, based on later calculation, implement the new version.
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Today IT shall provide the Licensee with telephone support. In the event of excessive use of this support, it will be based on later calculation and, in consultation, it will be billed. This shall include: the Licensee may, during office hours (Monday through Friday between 8.30 and 17.00 hour with the exception of generally recognized public holidays), obtain technical support for AVALANCHE at Today IT’s service department (help desk). Today IT shall ensure that the help desk is accessible by telephone.
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The help desk shall provide telephone support for queries on the use and functioning of AVALANCHE.
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The help desk shall analyze any defects in the AVALANCHE program, based on queries on the use of AVALANCHE.
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Today IT shall, if requested by the Licensee, at a time to be established in mutual consultation, provide support and/or instruction in-house at the Licensee, against the rates that are applicable.
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The Licensee’s liability with reference to or in connection with the maintenance services to be conducted by TODAY IT shall be limited to the amount of the fees that the Licensee paid during the current period (of one year) to Today IT for the services provided.
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Outside price increases linked to the Index, TODAY is entitled to increase its prices. With regard to the indexing, the following is applicable: a price increase starts at the moment of the next prolongation of the maintenance agreement. The indexing occurs conform to the monthly price index, in accordance to the Consumer Price Index (CPI), applicable to domestic situations (2007 = 100), made up by the ‘CBS’.
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TODAY is entitled to modify these conditions. Clients are to provide their contact data when they sign on, including their e-mail data. By acceptance of these conditions, the Licensee grants to TODAY the right to utilize the specified data (opt-in), such as the e-mail address, for marketing purposes. Clients are entitled to sign off, whenever they choose, by changing their preferences with reference to their user information, or, c.q., by signing off for the e-mail messages.
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Direct competitors of TODAY are not entitled to utilize the program without prior written authorization by TODAY. Also, it is prohibited to use the on-line version, or check the availability or functions, for competition purposes.
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If the Licensee utilizes the Software, he/she is not allowed to distribute or transmit any information, content or other material via the Websites, or, generally, to perform any actions, to which the following applies:
- infringement of the rights of third parties, including but not limited to the following: patents, trade mark rights, trade secrets, copyright, right to publication or any other property rights;
- illegal, threatening, insulting, harassing, slandering, feinting, fraudulent or misleading, invading someone else’s personal life, or containing explicit descriptions or details of sexual actions or events, or being pornographic;
- victimizing persons or groups of persons, or torment, humilate or intimidate based on religion, gender, sexual orientation, race, ethnicity, age or handicap;
- giving the impression that the Licensee is, falsely, posing as another person, company or organization;
- containing computer viruses or any other computer codes, files or programs, of whichever kind, capable of interrupting, affecting or restricting the functionality of computer software and/or hardware, or, c.q., enabling illegal access to a computer or computer network;
- provoking behavior that could lead to a criminal offence or to an offence punishable by civil law;
- being contrary to these conditions, directives or other policy regulations made known on or via the Websites;
- or impeding or restricting others to make use of the Websites.
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The Licensee is not allowed to use the Websites for the following:
- to offer or provide any sort of commercial action or promotion, without prior written consent;
- to distribute or give false personal information, or without consent, distribute or give information, content or material that belongs to someone other than the Licensee.
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By utilizing the services provided by TODAY, the Licensee declares the following:
- to comply with these General Conditions;
- to keep the contact data updated and accurate; and
- not to pass on or distribute the password without the consent of TODAY
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The Licensee is responsible for the setting up of an account and he/she is also responsible with reference to the confidentiality and privacy of the access codes linked to the account that the Licensee utilizes for the specified Services. The Licensee is only responsible for all activities that may occur linked to the account that has been set up.
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If the Licensee would become aware about any unauthorized use of his/her access codes or account, TODAY is to be notified immediately on that (mis)use, after which the account will be deactivated.
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By way of the access to the Websites of TODAY, the Licensee is only given a right to use to the specified content which may only be used for personal, non-commercial purposes, that is non-exclusive and cannot be transferred. If the Licensee were to download software from third parties, the applicable license conditions from that third party are applicable.
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TODAY offers no guarantee, whatsoever, with reference to the suitableness and availableness of the software offered by third parties. It is not allowed to gain access from countries where the specified content is prohibited by law. The gaining of access from outside The Netherlands occurs at one’s own initiative and risk and under the strict liability of the Licensee to obey the applicable local legislation.
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The costs for a prolongation equal the number of user licenses multiplied by the price rate for one user from the previous license period, unless prior notice, at least 30 days in advance, of a price increase.
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The use of AVALANCHE ONLINE Basic is subjected to certain limitations, such as a maximum of 5,000 transactions, no more than 1 user and limited disk space. All the limitations are specified in the (online ) documentation. Currently, AVALANCHE ONLINE Basic is offered for free. TODAY is entitled to change the price(s) whenever it chooses. However, clients will be notified of price changes at least 3 months in advance.
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TODAY is also entitled to terminate any given free account, for whatever reason and whenever it chooses, without any further obligations for TODAY. TODAY is not obliged to preserve the data in question, or to return it. Moreover, all free accounts that are not used during a period of 3 months or longer, will be terminated.
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TODAY is entitled to modify the operating directions, if it is imposed to TODAY to do so by an official authority, or, c.q., by a country, or in case local and/or national authorities order TODAY to implement certain legal regulations, or to adopt them.
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TODAY does not guarantee, as far as the law allows, that the software is free from errors, or, c.q., that the availability will be free from interruptions and permanent.
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The General Conditions and the Agreement are subjected to the jurisdiction of The Netherlands.
The stipulations from these Conditions and any potential further agreements jointly set the juridical relationship between the Parties and replace all other earlier made agreements or specifications made by TODAY with reference to the subject stipulated in the Agreement, by which they become exclusive.
With reference to the execution of the Agreement, TODAY is entitled, upon its own judgment, to call upon third parties. TODAY is entitled to transfer the rights and obligations from the Agreement to third parties and is obliged to inform the Licensee of that. If such a transfer of the obligations to a third party is reasonably unacceptable for the Licensee, he/she is entitled to cancel the Agreement within 5 (five) days after the reception of the specified announcement. If not bindingly stipulated otherwise by national and/or international legislations, any disputes between the Parties are to be subjected to the authorized Court of Law in The Hague (“’s Gravenhage”).