End-user license agreement
1. Subject of the contract
1.1. novalink grants the customer the non-exclusive and – unless otherwise agreed separately: unlimited right to use the software provided to the customer by novalink.
1.2. The provision of the software, i.e. its delivery together with the user documentation, is carried out by agreement, usually online via download or via electronic mail. Upon downloading or installing the software, at the latest however upon the first commissioning, the customer accepts the present terms as legally binding.
2. Rights and duties of the customer
2.1. With the exception of the rights of use expressly mentioned in these contractual terms, the customer does not acquire any rights to the software and the user documentation. The right of use applies only to one installation and only to the number of users agreed between the parties.
2.2. The customer is not allowed to decompile or edit the software in any way without the written consent of novalink. The customer is permitted to make copies of the software, as long as these copies are used exclusively for the customer’s data backup purposes and are only used for this purpose.
2.3. Payment owed by the customer is due net without deductions within 20 days of the invoice date. If the customer does not notify us otherwise within this period, an invoice shall be deemed to be approved. The due date is the expiry date, at the expiry of which the customer shall be in default without a reminder.
2.4. The customer is entitled to resell the software including the user documentation to third parties (in particular end users), provided that he has been recognised as a reseller by novalink in writing, with the simultaneous transfer of all rights and obligations according to these contractual terms.
In case of a resale, the third party acquires the rights of use in accordance with the present contractual terms and thus takes the place of the customer. At the same time, the customer’s right to the further use of the software expires and the customer is obliged to delete every installation of the software and to destroy all copies.
2.5. In the event of resale, the customer must then ensure that the rights and obligations of the third party in accordance with these contractual terms are transferred to the third party in a legally binding manner.
If this does not occur, the right of use expires, all obligations of novalink including the warranty and liability obligations of novalink are nullified and the customer is obliged to indemnify novalink fully with regards to any claims of the third party.
3. Responsibility of the customer in particular
3.1. The customer shall be responsible for installing and using the software in relation to the hardware used and the interaction with other software in such a manner that the proper functioning of the software is ensured.
3.2. The customer is responsible for the proper, comprehensive and up-to-date training of all users of the software. This also applies to third parties in the event of resale.
3.3. The customer is responsible for ensuring the continued operation of the software in the event of system malfunctions or failures and for the provision of suitable replacement systems.
3.4. In cases in which the software or the system operated by the software is intended to prevent personal injury or damage to property, the customer is obliged to purchase, properly operate and continuously monitor a suitable self-monitoring system (watchdog).
3.5. The functionality of the software is to be checked and tested comprehensively by the customer on a monthly basis.
3.6. In case of the disregard of one of the aforementioned points, any warranty/liability obligation of novalink shall lapse.
4.1. novalink guarantees that the software will essentially fulfil the functions described in the user documentation when used in accordance with the contract.
The customer acknowledges and confirms, however, that the contractual software has been designed for various applications and cannot take into account every conceivable application in all details. The customer further acknowledges and confirms that malfunctions and interruptions in the functionality of the software cannot be ruled out even with the utmost care by novalink.
4.2. The subject of the warranty is exclusively the software in the version delivered by novalink. There is no warranty obligation for errors and malfunctions that are caused by subsequent interventions of the customer, insufficient backup of data, hardware failures, friction with other software, network disturbances, insufficient monitoring and the like.
4.3. The warranty period is 90 days from the date of delivery according to section 1.2.
The customer must give notice of any defects that become apparent when the software is put into operation within 10 days from the date of delivery in accordance with section 1.2. Other defects must be notified immediately, i.e. within 3 working days of their discovery. If the notification of defects occurs late, the software shall be deemed approved and all warranty and liability claims shall be forfeited.
4.4. Notices of defects must be made in writing and include a comprehensible description of the defect. Upon request, the customer shall provide novalink with system descriptions as well as monitoring protocols and the like.
4.5. There is no warranty obligation for malfunctions caused by auxiliary persons of the customer or third parties not involved in the present contractual relationship or which occur due to force majeure, explosions, fire-fighting and rescue operations, burglary and theft, electricity disturbances, voltage fluctuations and the like.
4.6. Any kind of modification of the software carried out or initiated by the customer shall lead to the complete loss of any warranty and liability of novalink.
4.7. novalink is entitled to remedy defects at its own discretion by eliminating the defect, through the delivery of defect-free software, or by delivery of a release.
4.8. In all other respects, the warranty obligation of novalink shall be excluded to the extent permitted by law.
5. novalink’s liability
5.1. Any liability of novalink beyond the scope of warranty according to section 4 above, in particular for indirect, collateral and consequential damages such as loss of profit, unrealised savings, additional expenses of the customer or claims of third parties, is expressly ruled out.
5.2. In deviation from section 5.1., novalink is liable if grossly negligent or intentional actions of employees or vicarious agents of novalink have caused damage to property or persons.
novalink is, however, also not liable in such a case if reasonable and suitable measures to prevent damage (in particular regarding data backup, monitoring, response to system disturbances or interruptions and the like) have not been taken by the customer or user.
5.3. novalink shall undertake to treat as confidential any data declared confidential by the customer that comes to novalink’s knowledge during the contract performance.
Unless otherwise agreed in writing, both parties are prohibited from making data, information and programs of the other party available to third parties. The parties assure each other to comply with the requirements of the General Data Protection Regulation (GDPR) and the Swiss Federal Act on Data Protection (FADP) respectively when collecting, processing and using personal data.
5.4. novalink will not knowingly infringe the industrial property rights of third parties. Should third parties assert claims against the customer for alleged infringement of industrial property rights, novalink shall assume the defence at its own expense, provided that the asserted claims are directly related to the contractual software.
5.5. If it is established on the basis of a legally binding court ruling or at the discretion of the supplier that the fulfilment of the contract by the supplier infringes the property rights of third parties, the supplier is entitled to make modifications at his own expense in order to eliminate the infringement of property rights or to acquire the right of use from authorised third parties.
If these measures do not lead to the desired result and the infringement of property rights has been established by a legally binding judgement, the supplier will compensate the customer by refunding the paid remuneration, deducting the customary depreciation over the period of use. Further claims of the customer are ruled out.
6. Final provisions
6.1. Agreements between novalink and the customer – also those that aim to change the content of the present terms – are only legally binding in written form, signed by both parties.
6.2. Should parts of a contract or these terms and conditions be or become legally ineffective, this shall not affect the remaining content of the contract and/or these terms and conditions. In this case, the contract and/or these terms and conditions shall be interpreted in such a way that the purpose intended by the legally ineffective parts is achieved as far as possible.
6.3. The contractual parties are obliged to transfer all rights and obligations existing between them to any legal successors and to obtain the written consent of the other contractual party in advance.
6.4. The offsetting of claims of the customer against claims of novalink is only permissible with the written consent of novalink.
6.5. Unless otherwise agreed, contracts between customers and novalink are governed by the jurisdiction and applicable law at the registered office of novalink.
6.6. The validity of the customer’s general terms and conditions is expressly ruled out if they are in contradiction with agreements in the contract or the content of these terms.