This End User License Subscription Agreement (hereinafter referred to as EULSA) is an agreement between Dynaway, the Licensor, who has developed the Software, and you, the Licensee, who is granted a right to use Dynaway EAM (hereinafter referred to as the Software) on the terms set out herein and for as long as the subscription is maintained.
The Software is licensed on a subscription basis – not sold.
You must read this EULSA before installing, having installed, or using the Software, as the right of use is subject to you complying with the terms herein.
By signing this EULSA, or by installing, having installed, or using the Software, you accept the terms herein. If you cannot accept them, do not install, have installed or use the Software.
The EULSA thus enters into force the moment you sign the EULSA or the Software is installed in your system or used by you, whichever comes first.
Please notice, that third party software may be embedded in the Software, in which case this EULSA shall prevail over the third party license terms, but only in relation to provisions therein granting you more extensive user rights or warranties than the EULSA. Thus you cannot rely on the third party license terms to obtain wider rights to the Software than set out in this EULSA.
A. Software. The Software may include
The term Software shall in any case be understood as the Software including:
unless such parts of the Software are subject to separate terms, in which case such terms shall apply as a supplement to this EULSA.
B. Other definitions
Licensee/you: The legal entity or physical person that has accepted this EULSA and your Affiliates, if any;
Affiliate: Any legal entity that owns, is owned by, or that is under common ownership with a Party, provided the ownership is by more than 50 % of the shares;
Software: software in the broad sense as described in point 1.a
Device: A single personal computer, workstation, terminal, handheld computer, personal digital assistant, or other electronic device, whether physical or virtual;
Server: A computer that is capable of running server software;
Client: Any Device that accesses the Server on which the Software is installed and thus runs/uses the Software;
User: A physical person that uses the Software;
Changes Any modifications, adaptations, developments etc. of the Software performed by you or a third party acting on your behalf;
Partner: A distributor or reseller of the Software that has signed a partner agreement with Dynaway authorizing the Partner to market, sell and/or distribute the Software. Dynaway and its Partners are however independent entities and shall be regarded as such. Hence Partners do not act on behalf of Dynaway and for the purpose of this EULSA such Partners are third parties
All rights to the Software, including without being limited to title and copyright, belong to Dynaway or any third party, who has produced components of the Software or other products included. Any disregard for Dynaway's and/or any such third party's rights is considered a breach of this EULSA.
You are not entitled to break or change any security codes, and you may not change or remove statements regarding rights of use, brands, etc. included in the Software or on the media on which the Software is supplied.
The Software is licensed on a subscription basis in accordance with the following model.
The model requires a Server License. A Server License covers use of the Software in connection with one specific Microsoft Dynamics 365 for Operations license/installation. If the Software is used in connection with or shared among different Microsoft Dynamics 365 for Operations installations, multiple Server Licenses are required.
You may make use of multiple copies of the Software for backup, development and testing purposes, so long as such copies are not used in production and the development is for your internal use only.
The model is further described below.
The Dynaway EAM License Subscription Model. Dynaway Enterprise Asset Management (EAM) requires:
You must acquire a User License Subscription for each User. A User is identified by a personal password, which may not be used by others.
Contractors, or agents also require a User License Subscription to access the Dynaway EAM solution. Your customers however do not require a User License Subscription to access the Dynaway EAM solution to manage their own accounts and orders, but they need an External Connector license subscription. Customers may not use the Software to manage any portions of their business.
User License Subscriptions cannot be reassigned
Server licenses are subscribed to for pre-paid terms of 12 months. Client licenses are subscribed to for pre-paid terms of a calendar month. Subscriptions continue until terminated. Termination for convenience may take place by 30 days written notice.
A. Proper Licensing. You must always ensure that you are sufficiently licensed to use of the Software, and hold the proper amount and types of license subscriptions for your actual use.
B. Multiplexing. Multiplexing is the use of hardware or software (including manual procedures) to reduce the number of Users or Clients that access or use the Software by pooling connections. Multiplexing does not reduce the number of license subscriptions required to access the Software. Any User or Client that accesses the Software — whether directly or indirectly — must be properly licensed.
You may not duplicate license keys without the prior written consent of Dynaway.
For Software with User and/or Client Licenses you must submit information on the number of Users and/or Clients for your specified Microsoft Dynamics 365 for Operations installation to Dynaway in January every year. You hereby accept that Dynaway requires such information from you and/or from Microsoft.
A. Right of use
The Software is licensed on a subscription basis, neither sold nor licensed on a perpetual basis. You are only granted a right to use the Software for as long as the subscription is maintained. The right of use includes a right to perform Changes to the Software on the terms set out in point B below.
The right of use is non-exclusive, non-transferable and for the duration of the subscription only. Your rights under any subscription may be revoked if you or your Affiliates do not comply with the terms of this EULSA, or if the proper Subscription fee is not paid.
You may only use the Software for your internal business purposes, such as processing of your data as part of the administration of the business and/or the operation of the business.
You are, subject to prior consent, entitled to make the Software available to third parties (e.g. hosting service providers) operating the Software for you. Such consent can only be withheld by Dynaway upon reasonable grounds of fact. Dynaway may require the operator to sign a separate declaration regarding the rights to the Software.
Dynaway reserves all other rights. Unless applicable law or a separate written contract with Dynaway gives you more extensive rights despite this limitation, you may use the Software only as expressly permitted in this EULSA. In doing so, you must comply with any technical limitations in the Software that restricts use of the Software to be exercised in certain ways only.
This implies, that you may not e.g.:
B. Changes and Disclaimer
If you received the Software in source code form or you have licensed tools from Dynaway that allow you to modify the object code form of the Software, you may perform Changes to the Software.
The source code to the Software shall be considered and treated as confidential information.
You may allow a third party to perform Changes to the Software on your behalf, provided you ensure that such third party is subject to a duty of confidentiality in relation to the Software and any secrets about the business of Dynaway, which the third party gains insight into by having access to the Software.
Regardless of whether Changes are performed by you or a third party on behalf of you, Changes may only be performed for the purposes of internal use in your business.
You do not obtain any further rights to the Software than set out in this EULSA by performing Changes to the Software, and all intellectual property rights to the Software remain vested in Dynaway. Only the rights to actual and independent development (code) performed by you belongs to you.
You acknowledge and accept that Dynaway is not responsible for any consequences of any Changes made by you, a Partner, or any other third party acting on your behalf, including any problems in relation to compatibility with third party hardware or software or claims of infringement for third parties. Any Changes of the Software is thus at your own risk and expense, regardless of whether it is performed by you or any third parties acting in your behalf, including Partners.
Dynaway does not, and will not have any obligation to, provide technical or other support for Changes made by you, a Partner or any other third party.
C. Software call back
The Software – both Servers and Clients must be online and connected to the Internet at least once per 30 days in order to call home. Where Servers or Clients are not able to call home, the software may lock and you may thus be unable to utilize the Software until the Server or Client has been online and the Software has called home.
All call-home activities are only performed to verify that the Software is licensed correctly and no data is collected or processed that may identify individuals. The call-home feature includes that commands are returned to the Software
Dynaway may activate and deactivate the call-home feature remotely from time to time and does not affect your obligations to ensure that you are at any and all times correctly licensed. Dynaway thus may use this feature but is not obliged to and Dynaway has no obligation to communicate any results from call-home activities to you. Dynaway’s right to perform requests and audits in accordance with section 8 shall not be affected by this section on call-home.
You may make copies of the Software to the extent this is necessary for backup or archiving purposes (Backup Copies). A Backup Copy may only be used in case of deterioration or destruction of the original Software.
Furthermore, you may make copies of the Software for the purposes of performance of tests or Changes as allowed under the EULSA (Test Copies). Test Copies may only be used for the aforementioned purposes, and Test Copies may never be used in production.
You may only make copies of the Software and use these as explicitly stated above and otherwise in accordance with this EULSA.
A. For your part. You may not transfer and/or assign the subscription of the Software or any other rights and obligations under this EULSA to any third party without Dynaway’s prior written consent. If permitted, additional charges may apply and you shall ensure that the third party accedes to this EULSA.
B. For Dynaway’s part. Dynaway may at any given time, and without your prior consent, assign and/or transfer its rights or obligations under this EULSA, in part or as a whole, to any third party, that Dynaway sees fit and competent to fulfill the obligations.
Any person that has valid and legitimate access to your computer or internal network may copy and use the documentation for your internal, reference purposes.
A. Injunctive relief. If you do not comply with the EULSA, Dynaway may seek injunctive relief without providing security.
B. Guarantee for actions of third parties. As for any Affiliates, legal entities, physical persons or third parties, which you give access to the Software, you shall act as guarantor with primary liability for their compliance with this EULSA. For the avoidance of doubt, this guarantee does not allow you to give access to the Software beyond, what has been explicitly set out in this EULSA.
C. Audit. Upon request, you must provide Dynaway with documentation for the compliance with these license subscription terms, e.g. a list of the Clients and Users and/or third parties having access to the Software. Dynaway has the right to verify that this documentation, including inter alia list of Clients and Users provided in accordance with point 3.C, is correct at any time and without notification. Dynaway also has the right to perform Audit without notification either by Dynaway itself or by an independent third party not being a competitor to you to verify whether in general you are correctly licensed – also without first requiring any documentation from you. Any costs related to such audit shall be paid by Dynaway unless the audit reveals a deficiency between your purchased license subscriptions and the actual required number of subscriptions to be rightfully licensed to use the Software. On any violation in relation to number of users, Dynaway shall be entitled to demand payment from you for the additional license subscription fees calculated from the time when this Agreement is effective or the actual time the Software is installed on the clients or servers for the first time where you can provide evidence thereof plus a penalty calculated as 10 % of the calculated subscription fee. Dynaway may instead terminate any and all of your subscriptions with immediately effect without incurring any liability towards you or anyone else.
For the duration of your subscription period you are granted access to the latest version of the Software, including service packs and hot fixes.
However, Dynaway cannot guarantee that you can fully utilize all service packs and hot fixes, as this will depend on e.g. your configuration, any Changes to or customizations or modifications of the Software, your hardware platform etc. Furthermore, the upgrades are standard upgrades based on the latest standard version of the Software, and it is your own responsibility to ensure that the upgrades, the functions of the upgrades, the effect of the upgrades and the documentation fulfills your requirements and Dynaway hereby renounces all liability in relation hereto.
Installation of the upgrade services is thus entirely you own responsibility, and installation services are not included in the Agreement and your right to access the updated versions of the Software, but must be purchased separately if needed.
Any and all access to and use of upgrades including the latest version of the Software, including service packs and hot fixes is subject to the terms and conditions of this EULSA.
This EULSA (including the warranty below form the entire agreement between you and Dynaway for the Software and any upgrades.
The EULSA is subject to the laws of Denmark, regardless of its rules on conflict of laws. Any disputes that cannot be settled amicably shall be settled at home court of Dynaway, regardless of which law applies.
This EULSA describes certain legal rights. You may have other rights under the laws of your state or country. This EULSA does not change your rights under the laws of your state or country, if Dynaway is subject to the laws of your state or country, and such laws do not permit agreements on deviation. But please notice, Dynaway is a company established and registered in and operating from Denmark and thus as a starting point subject to Danish law.
You may also have rights with respect to the Partner or another third party from whom you acquired the Software. This is a matter between you and the Partner or another third party, and irrelevant in relation to Dynaway.
Dynaway will defend you against any claims made by a third party that the Software infringes its patent, copyright or trademark or misappropriates its trade secret. The terms “misappropriation” and “trade secret” are used as defined in the Uniform Trade Secrets Act. You must notify us promptly in writing of any claim and give us sole control over its defense or settlement. Dynaway will then take over the case and any expenses related to it, including payment of the amount resulting from an adverse final judgment or a settlement. In all circumstances, Dynaway have the right to take over the case at our own expense and subsequently take legal action or settle the alleged infringements out of court. You agree to provide us with reasonable assistance in defending the claim, and Dynaway will reimburse you for reasonable out of pocket expenses that you incur in providing that assistance
Our obligations will not apply to the extent that the claim or adverse final judgment is based on (i) your use of the Software after Dynaway notifies you to discontinue use due to such a claim; (ii) your combining the Software with a non-Dynaway product, data or business process including third party add-ons or programs; (iii)) you or a third party having performed Changes to Software or in any other way altered, adapted or modified the Software; (iv) your distribution of the Software to, or its use for the benefit of, any third party; (v) your use of Dynaway trademark(s) without express written consent to do so; or (vi) use of the Software for other purposes than it was intended and/or contrary to any instructions from Dynaway on use. You shall indemnify us for any costs or damages that result from such actions.
Insofar as a third party objects to your use of the Software, Dynaway is upon becoming aware thereof entitled at its sole discretion to either a) provide for the right for you to continue to use the Software or b) end the infringement by changing the Software or c) replace the Software with another software application with basically the same functionality or d) cancel this EULSA with immediate effect against repayment of the license subscription fee you paid for the last 12 months. On cancellation of the EULSA you must return the Software and all documentation and destroy any copies, including Backup or Test Copies. If any other type of third party claim is brought against you regarding Dynaway’s intellectual property, you must notify us promptly in writing. Dynaway may, at its option, choose to treat these claims as being covered by this section.
This Section 13 constitutes your sole and exclusive remedy in case of third party infringement and trade secret misappropriation claims.
In all circumstances Dynaway shall be liable only for direct damages up to the amount of subscription fees Dynaway received as payment for your right to use the Software during the last 12 months calculated from the time incident on which you base your claim took place. . This maximum applies as a total accumulated maximum for all liability of Dynaway in relation to the Software, any use thereof and any other claims in relation to this Agreement.
Dynaway is not responsible for indirect losses or any consequential damage, including without being limited to damage caused by computer viruses, operating losses, loss of data and costs connected with their recovery, loss of profit and other commercial losses.
The limitations apply regardless of whether the damages have been caused by the Dynaway's negligence or not.
A. LIMITED RESPONSIBILITY FOR FAULTS IN THE SOFTWARE. The Software will perform substantially as described in the original user documentation Dynaway provides for the Software. The Software is however complex computer software and it is neither fault tolerant nor free from errors, conflicts or interruptions. Deviations must thus be expected to some extent and do thus not constitute faults.
Moreover, the performance of the Software will vary depending on your hardware platform, software interactions, the configuration of the Software as well as a line of other factors.
Dynaway is only responsible for corrections of faults if the Software does not perform as you may reasonably expect on the basis of this EULSA and the original user documentation provided by Dynaway for the Software, cf. also point 15.B.
Dynaway does not assume any responsibility or liability for the Software other than what has been expressly set out in this EULSA. Any warranties, representations, guarantees or conditions whether express or implied are excluded to the fullest extent permitted by law. This means that e.g. warranties of merchantability, fitness for a particular purpose and non-infringement are excluded.
B. TERM OF RESPONSIBILITY FOR CORRECTION OF FAULTS. Dynaway is responsible for corrections of faults in the Software during the entire subscription period.
C. DYNAWAY'S RESPONSIBILITY FOR CORRECTION OF FAULTS. Dynaway will repair or replace the Software at no extra charge. If Dynaway cannot repair or replace it, Dynaway will for the future reduce the subscription amount to reflect the value of the Software subscription without the functionality that cannot be repaired. These are your only remedies in case of faults Dynaway is under an obligation to correct.
D. PROCEDURE FOR CLAIMS. You need proof of purchase, if the licenses, which your claim concerns are not reflected in Dynaway’s internal records. To make a claim under this EULSA, you should contact Dynaway.
E. EXCLUSIONS FROM THE RESPONSIBILITY. Dynaway has no responsibility in relation to problems caused by your acts (or failures to act), the acts (or failures to act) of others, including but not limited to, Changes, modifications or implementations made by you, a Partner, or any other third party, whether or not acting on your behalf, or events beyond Dynaway’s reasonable control.
You are expressly made aware that this EULSA does not consider your use of third party software. Your use of third party software is subject to the regulations of the terms of that third party, who has manufactured the software, and Dynaway is thus not responsible for such terms containing stricter provisions or restrictions in the right of use granted to you in this EULSA.
If Dynaway has developed software or customizations intended to function with third party software, this EULSA only covers the customizations whereas third party software is subject to the terms of the manufacturer/the owner of the rights to the software.