ASP SOFTWARE One User
a Swiss company incorporated in Switzerland since 1957
with its registered office at 7, avenue Krieg, 1208 Geneva, Switzerland
(hereafter: "The Supplier")
and YOU "The Customer"
THIS USER AGREEMENT (THIS "AGREEMENT") IS A LEGAL AND BINDING CONTRACT BETWEEN THE CUSTOMER AND THE SUPPLIER GOVERNING THE CUSTOMER’S ACCESS TO AND USE OF THE SUPPLIER’S SOFTWARE (AS FURTHER DEFINED BELOW, THE "SOFTWARE" OR "THE TOOLS").
BY REGISTERING FOR THE TOOLS AND PAYING THE LICENSE FEE, YOU (THE CUSTOMER) INDICATE YOUR ACCEPTANCE OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT APPROVE THE PAYMENT AND DO NOT USE THE TOOLS.
THIS AGREEMENT APPLIES TO THAT VERSION OF THE TOOLS THAT THE CUSTOMER HAS LICENSED, WHETHER OBTAINED BY THE CUSTOMER DIRECTLY FROM THE SUPPLIER OR FROM AN AUTHORIZED THE SUPPLIER LICENSEE OR RESELLER. THE TOOLS IS LICENSED, NOT SOLD. THE CUSTOMER MAY USE ONLY THE VERSION OF THE TOOLS THAT THE CUSTOMER HAS LICENSED FROM THE SUPPLIER AND HAS PAID FOR, AND MUST USE IT STRICTLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
a) The Supplier and its partners (collectively called “the Supplier”) have developed a proprietary method for managing innovation and business development called "Innovation by Opportunity" or “IpOp Model” (IpOp) or (IbOp) - as well as a management practice called "Management by Opportunity" (MbOp) which integrates IpOp with others management practices supporting entrepreneurial and innovative behavior within large organizations.
b) The Supplier is the inventor and exclusive intellectual property owner of the software program (= Internet and/or Intranet applications) called INNOVATION BY OPPORTUNITY Tools ™ or IpOp Model ToolsTM (the Tools), which uses IpOp to help manage innovation and business developemnt as well as implement MbOp within organizations. The Supplier made substantial investments to develop the Tools. "Software" or "the Tools" shall mean the Supplier's Tools software collectively and each separate component of the foregoing individually, any updates, upgrades or enhancements to the Software or a Software component provided to the Customer by the Supplier, including, without limitation, any support software provided to the Customer by the Supplier via the Internet or by any other means.
a) The data of all the Supplier customers is stored in one data base, whose access is restricted to Users authorized by the Supplier, in particular those who have been granted a licence. Each customer can normally only access his own data. The access is restricted by the use of a User name and a password. Although the Supplier takes necessary precautions to avoid fraud, the Supplier cannot be held responsible for the consequences of an unauthorized access to the data of the Customer. To avoid sharing one database, an Intranet version can be implemented on a separate server at the Customer premices; this option requires a separate agreement with a different pricing structure.
2 Restricted use
a) The license giving access to the Tools is only for one project (one license = one project)
b) Access to the Tools is restricted to the Users who have been duly authorized by the Supplier. Those Users are not authorized to communicate their Tools access information to others. Each User can access the Tools from one computer only. The Supplier is duly authorized at his own discretion to terminate any license showing any unauthorized use or change of computer.
3 Use of the Tools
a) The Customer may not use the Tools to:
(a) defame, abuse, harass, threaten or otherwise violate the legal
rights (such as rights of privacy and publicity) of others;
(b) publish, post, distribute, disseminate or link to any:
(i) defamatory, infringing, or unlawful topic, name, material or
(ii) software or other material protected by intellectual
property laws, copyright licenses, rights of privacy or publicity, or
other proprietary rights, unless the Customer owns, controls such rights or has received all necessary consents for the Customer’s use of such software and other materials;
(c) violate any applicable government laws or regulations.
b) The Customer is solely responsible for the Users’s activities in using the Tools services including the activities of the Customer employees, Users, contractors and all parties that the Customer allows to have access to the Tools. The Customer is solely responsible for the contents, modification, management and/or deletion of any and all files and data used by the Users in conjunction with the Tools. Further, the Customer is responsible to ensure that such files and data are not used in conjunction with the Tools in violation of any copyright or any other proprietary right of the Supplier or any third party. The Supplier will not access the file itself or any data or information contained therein.
c) The Supplier does not guarantee the accuracy, completeness, or usefulness of any content entered in the database by the Users (User Content), nor its merchantability or fitness for any particular purpose. Under no circumstances will the Supplier be liable for any loss or damage caused by the Customer’s reliance on any User Content. It is the Customer’s responsibility to evaluate the accuracy, completeness and/or usefulness of any User Content.
d) If the Website contains bulletin board services, forums, communities, personal web pages, electronic mail postings and/or other message or communication facilities designed to enable the Customer to communicate with others or with a group (collectively, "Communication Services"), the Customer agrees to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service, and to comply in the Customer’s use of the Communication Services with all applicable laws and regulations and the terms and conditions of this Agreement, including, but not limited to, this article. In addition, the Customer agrees that when using a Communication Service, the Customer shall not:
(a) Advertise or offer to sell or buy any goods or services;
(b) Restrict or inhibit any other User from using and enjoying its rights in the Communication Services;
(c) Upload, post or otherwise transmit (including by linking to websites that so upload or post) files that contain viruses, spyware, worms, Trojan horses, or any other programs that may damage the operation of anyone's computer, are designed to program anyone's computer to perform any function which is unwanted by its owner, are designed to collect or transmit any information about a computer's owner without his or her knowledge, or are designed to perform any other illegal or illicit function;
(d) Impersonate any person or entity, including the Supplier, the Supplier employees or other industry professionals;
(e) Use racially, ethnically, or otherwise offensive language;
(f) Violate any code of conduct or other guidelines that may be
applicable for any particular Communication Service; or
(g) Link the Communication Services to any unsolicited communication sent to any third party, or otherwise use or mention the Communications Services in connection with any such unsolicited communication. The Supplier is not a publisher of information and material posted by Users of the Communication Services ("User Content"). Accordingly, the Supplier has no more editorial control over such content than does a library or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available as part of such User Content are those of the respective Users and not of the Supplier.
The applicable license fee for each project is the fee indicated in the IpOp Tools Pricing section of this website and for a maximum duration of one year from date of purchase.
5 Intellectual property
a) The Customer expressly acknowledges that the Supplier is the exclusive owner of all the intellectual property rights concerning the Tools and of the trade marks “IpOp Model Tools”, “Innovation by Opportunity” and "Management by Opportunity", whether registered or not. The Customer agrees not to contest this ownership as well as the ownership of future trade marks that the Supplier might use or register. The Customer also agrees not to copy or transfer to others any functionality or content of the Tools.
b) The Customer is nevertheless authorized to freely publish or disclose the output results provided by Tools. Each publication or result bearing the Supplier’s structure and presentation shall indicate the following copyright reference:
“produced with the assistance of “IpOp Model Tools®”;
© for structure: Management Boosters, Switzerland;
© for content: ….” (=the Customer)
(“the Copyright Notice”)
c) The Customer may not modify or make derivative works of the Tools, the documentation therefore or any other component that may be included in the Software or provided with the Software, nor rent, lease or otherwise distribute the Software or the documentation therefore.
d) The Customer is not authorized to, directly or indirectly, adapt, show or transmit to third parties, use or copy intellectual property obtained from or developed by Management Boosters such as, the results of the Supplier’s research, trademarks (registered or not), software, course or training material without the prior explicit written agreement of the Supplier which agreement may be withheld or granted unconditionally at the Supplier’s discretion. This commitment remains in force for the duration of this agreement and continues after its termination, expiry or cancellation.
e) The Customer may not reverse engineer, modify, decompile, or disassemble the Tools, directly or indirectly, in whole or in part.
f) In any event, all worldwide ownership of and all rights, title and interest in and to the Tools, and all copies and portions thereof, including without limitation, all copyrights, patent rights, trademark rights, trade secret rights, inventions and other proprietary rights therein and thereto, are and shall remain exclusively in the Supplier. The only rights the Customer acquires under this Agreement are the licenses set forth in this Agreement.
g) The Tools software and its functionalities must be treated as confidential information, in accordance with the provisions of article 8 below.
h) This license allowing the Customer to use the Tools or the Trainers to train other Users does not give the Customer any right of ownership whatsoever in the software developed by the Supplier.
i) The Customer is obligated to ensure that each User authorized to access the Tools is individually obligated to respect all the intellectual property obligations of the Customer. Customer shall use commercially reasonable care but no less than the same degree of care as it uses to protect its own intellectual property of like nature with respect to Users.
j) The Supplier reserves the right to disable the accounts of Users who the Supplier believes to be infringing the intellectual property rights of others and to remove any such infringing materials.
a) The Customer data stored in the Tools database exclusively belongs to the Customer. The Supplier agrees not to use nor to give access to third parties to the Customer’s data. The Supplier will treat all information stored in the Tools database as confidential.
b) The Customer is responsible for safeguarding the confidentiality of the User’s password(s) and User name(s) selected or created by the Customer for use with the Tools, and for any use or misuse of the Customer’s Data resulting from any third party using a password or User name created by the Customer. The Supplier warrants and represents that the Tools software employs commercially reasonable security methods to prevent such misuse by unauthorized third parties.
c) Excluding the Customer’s authorized use of the Tools for its own benefit, each party agrees not to use, for other purposes or for the benefit of third parties, Confidential Information which has been received from the other party. Each party commits to only communicate such information to its employees and Users to the extent that it is necessary for them to do their work and provided that they are bound by the same confidentiality obligations. Each party remains the intellectual property owner of its own inventions.
d) "Confidential Information" covers all the information (including data stored in a database, training methods, technical data or know-how, and in particular all information concerning research, products, services, customers, suppliers, markets, software, inventions, projects under development, processes, drawings, methods, marketing, finance, trade method or any document) which has been explicitly identified in writing as being confidential. Confidential information provided orally must be confirmed in writing within 30 days after the oral communication.
Information will no longer be considered confidential as soon as it has become available to the public, has been freely obtained by the Recipient from another source who is not breaching any confidentiality obligation, or has been independently developed or discovered by the Recipient.
e) All confidentiality obligations remain in force during this agreement and continues for 5 years after its cancellation, termination or expiry.
f) The parties will not share confidential information with their parent or sister companies or with their subsidiaries unless they are bound by a Non Disclosure Agreement also protecting the intellectual property of the disclosing party. Each party will take commercially reasonable steps to ensure that these provisions are also fully respected by its employees, Users and parent companies.
g) However, the Supplier is expressly authorized to reveal the existence of this agreement provided the Supplier does not disclose the content of its provisions. Except for mentioning the Customer’s name as a client of the the Supplier, the Supplier must nevertheles obtain the Customer’s prior written consent for all public communication (i.e. press release, advertising, etc). Such consent will not be withheld by Customer unless the publication can have a negative effect on the Customer’s image.
a) The license granted herein is effective for one year commencing on the date of purchase
b) This Agreement shall terminate immediately, without notice, in the event the Customer
(i) fails to comply with any of the terms and conditions set forth in this Agreement,
(ii) being a business entity, the Customer ceases doing business,
c) Except as set forth in 9d, upon termination the Customer must immediately cease all of the Customer use of the software, and destroy all copies of the Software and Software documentation in the Customer’s possession.
a) The Supplier has the right to transfer, at any time, whole or part of its rights and/or obligations stated in this agreement to any individual or corporation of its choice. In this case, the Supplier must immediately notify the Customer in writing. Any partial transfer of the rights and obligations will have to guarantee to the Customer that all the Supplier obligations contained in this agreement for the benefit of the Customer will not be negatively affected by the transfer.
b) In the event of a complete transfer of this agreement, the Supplier will be free of any obligation towards the Customer as soon as the Customer has been notified in accordance with article 11.a).
c) The Customer shall not assign, sublicense, rent or otherwise transfer the Customer’s access and use rights under this Agreement regarding the Tools without the prior written approval of the Supplier.
a) THE SOFTWARE AND ALL OF THE CONTENTS THEREOF ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND,WHETHER EXPRESSED, IMPLIED OR STATUTORY, AND THE SUPPLIER HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY WITH RESPECT THE SOFTWARE AND ALL CONTENTS THEREOF, THE TOOLS, THE ACCOMPANYING DOCUMENTATION, AND ANY ACCOMPANYING SUPPORTING MATERIALS OR TRAINING. THE CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THE SOFTWARE MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. NO EMPLOYEE, User, AGENT, RESELLER, DEALER OR DISTRIBUTOR IS AUTHORIZED TO MODIFY THIS LIMITED WARRANTY OR TO MAKE ANY ADDITIONAL WARRANTIES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO THE CUSTOMER. THIS WARRANTY GIVES THE CUSTOMER SPECIFIC LEGAL RIGHTS, AND THE CUSTOMER MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
b) NO LIABILITY FOR CONSEQUENTIAL DAMAGES. The Customer IS SOLELY RESPONSIBLE FOR INPUTS INTO THE SOFTWARE, VERIFYING THE RESULTS OF THE USE OF THE SOFTWARE AND HOW THE OUTPUT FROM THE SOFTWARE IS USED BY the Customer. The Supplier SHALL NOT BE RESPONSIBLE OR LIABLE TO the Customer OR ANY THIRD PARTY FOR THE RESULTS OR WORK PRODUCT OBTAINED FROM the Customer’s USE OF THE SOFTWARE. IN NO EVENT SHALL the Supplier OR ITS SUPPLIERS OR LICENSORS BE LIABLE OR OBLIGATED TO the Customer IN ANY MANNER FOR ANY SPECIAL, NON-COMPENSATORY, CONSEQUENTIAL, INDIRECT, INCIDENTAL, STATUTORY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST Data OR PROGRAMS, BUSINESS INTERRUPTIONS, LOST PROFITS AND LOST REVENUE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF the Supplier IS AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO the Customer. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, the Supplier SHALL NOT BE LIABLE TO the Customer IN AN AMOUNT IN THE AGGREGATE GREATER THAN THE AMOUNT THAT RECEIVED BY the Supplier FOR THE SOFTWARE LICENSED BY the Customer. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT EASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
c) Both parties agree to defend, indemnify and hold harmless the other party, and its employees, officers, directors, licensors, licensees and affiliates from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys' fees) arising from violation of any warranty, representation or covenant under this Agreement, infringement of any third-party's rights, (including, without limitation, infringement of any copyright, violation of any proprietary right and invasion of any privacy rights), and/or the use or misuse of the Tools by any third party using the Customer’s password(s) and/or User name(s). These obligations will survive any termination of the Customer’s relationship with the Supplier.
d) The Tools may contain links to third-party web sites that may be framed within the Tools, but that are not under the Supplier's control. When the Customer clicks on these links the Customer is moving to another website. The Supplier makes no representations about third-party websites. When the Customer accesses a third party website, the Customer does so at the Customer’s own risk. The Supplier is not responsible for the reliability of any data, programs, opinions, advice, or statements made on third-party websites. The Supplier provides these links merely as a convenience. The inclusion of such links does not imply that the Supplier endorses, recommends, or accepts any responsibility for the content of such sites.
e) The Tools may contain mention of third-party products and services for informational purposes. The Supplier makes no recommendations or endorsements about third-party products and services. References to third-party services and products are provided by the Supplier "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING, BUT WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
10 Governing law and litigation
a) This agreement cancels and replaces all previous oral or written agreements. This Agreement embraces the full, complete understanding of the parties as to the subject matter hereof, and may not be altered or modified, except by written amendment or collateral agreement which expressly refers to this Agreement and which is duly executed by the Supplier and the Customer’s duly authorized representative. All prior representations, understandings and agreements regarding the subject matter hereof whether written or oral, expressed or implied, are superseded and shall be of no effect..
b) This Agreement shall be construed and governed in accordance with the laws of Geneva, Switzerland excluding the application of its conflicts of law rules. Both parties agree to the sole and exclusive jurisdiction of the courts located in Geneva, Switzerland.
c) The Customer acknowledge that a breach of this Agreement will cause irreparable and continuing damage to the Supplier for which money damages are insufficient, and the Supplier shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including money damages if appropriate). In the event of litigation between the Customer and the Supplier concerning the Software or any other item which is subject to this Agreement, the prevailing party in the litigation will be entitled to recover attorney fees and expenses from the other party.
d) The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
e) If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.
f) The Customer agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export law, restrictions or regulations.
g) No waiver by the Supplier of any breach or default by the Customer of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.
h) BY INSTALLING, ACCESSING AND USING the Tools, the Customer ACKNOWLEDGES THAT the Customer HAS READ THIS AGREEMENT, UNDERSTAND IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
i) IF THE PARTIES DISAGREE ON TECHNICAL ISSUES, THEY AGREE TO SUBJECT THEIR DISAGREEMENT TO THE FINAL DECISION OF A SINGLE ARBITRATOR DESIGNATED BY THE PRESIDENT OF THE GENEVA (SWITZERLAND) CHAMBER OF COMMERCE AND INDUSTRY; THE ARBITRATOR MUST HAVE A GOOD COMMERCIAL AND TECHNICAL EXPERIENCE, INCLUDING INTERNET AND Data PROCESSING KNOWLEDGE. THIS ARBITRATOR WILL BE REQUIRED TO ISSUE HIS/HER RULING WITHIN 15 DAYS AFTER HIS APPOINTMENT; HIS/HER COST WILL BE EQUALLY SHARED BETWEEN THE PARTIES.
j) SUBJECT TO THE PROVISIONS OF SUBPARAGRAPH 15i) ABOVE, ALL OTHER DISPUTES BETWEEN THE PARTIES WILL BE SETTLED BY THE CIVIL COURTS OF THE REPUBLIC AND CANTON OF GENEVA, SWITZERLAND, SUBJECT TO THE RECOURSE TO THE FEDERAL COURT, LAUSANNE.