General Terms & Conditions
PLEASE READ AND CONFIRM FIELDCODE SOFTWARE LICENSE GENERAL TERMS AND CONDITIONS (THE “GT&C”). THIS DOCUMENT WILL HAVE BEEN DEEMED ACCEPTED BY THE CUSTOMER ONCE CLICKED ON “ACCESS NOW” OR SIMILAR AS SET FORTH HEREIN.
Version Date: 07/07/2020
A. Definitions: In these GT&C, the following terms shall have the meaning:
Approved Purpose – FIELDCODE grants the customer the right to access the FIELDCODE products in accordance with these GT&C for the customer to connect, manage and control their service network with the help of the FIELDCODE applications for internal business purposes only.
Confidential Information - the terms of these GT&C and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, these GT&C. FIELDCODE’s confidential information includes but is not limited to the software and the documentation.
Documentation - the user and technical documentation designed to enable the customer to properly use and operate the software (if any) and includes any update of the documentation.
Effective Date – the date on which the customer accepts these GT&C and acquires the license.
End Date - the end date of the license term as set out in the individual agreement, if any.
Event – A support query reported by the customer into the FIELDCODE software. Each event can be processed (e.g., dispatched, reported) individually in the FIELDCODE software.
Fees - the fees and costs for the license as per standard defined in the Special Terms and Conditions on software license.
Force Majeure - an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care.
Individual Agreement – a specific agreement made with customer containing the agreed fees for the license, payment terms and license term if specified. In case of conflict between the individual agreement and these GT&C, the individual agreement shall prevail.
Intellectual Property Rights - includes copyright, and all rights existing anywhere in the world conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
License – license of the software as described herein, received by customer in line with and after accepting these GT&C.
Software Releases - improvements, new enhancements and features to the software applications worked on continuously by FIELDCODE. FIELDCODE will schedule planned software releases to make the improved version of the software available for the customer.
Software - the applications that are provided by FIELDCODE on a software-as-a-service (SaaS) basis. The software applications are consisting of a browser application in order to manage and dispatch events as well as a mobile application to deliver and report events.
Special Terms and Conditions on Software License – FIELDCODE terms and conditions describing the applicable Software license models and the applicable fees arising therefrom, available on FIELDCODE’s website, (hereinafter: “ST&C)”.
A. Grant of licence: by accepting these GT&C, FIELDCODE grants to the customer, and the customer accepts, a non-exclusive, worldwide, non-transferable and revocable licence to use the software, and the documentation solely for the approved purpose and in line with GT&C as stipulated herein. Customer may not modify or in any way make copies of such software or create derivative works and may not translate, reverse engineer, disassemble or decompile the software.
B. Support Services. During the License Period, Fieldcode shall perform Support Services on the Software, consisting of:
(a) Software updates and releases,
(b) Support via e-mail in case of any software failures.
Any additional or extended support services, shall be subject to and described in an individual agreement.
C. Cooperation. Subject to subsection 2(B) herein, customer shall ensure that FIELDCODE’s personnel are provided with such information under customer’s control as is reasonably necessary to enable FIELDCODE to comply with its obligations hereunder. In the event there are any issues with access to software due to software refreshing or updating in whole or in part, customer shall be given a reasonable notice period in order to plan the software downtime due to the software release. If, after such opportunity, customer fails or otherwise refuses to acquire such software releases, FIELDCODE shall be relieved of its support obligations stipulated herein. Customer’s sole remedy for FIELDCODE’s material breach of its obligations set out in this subsection 2(C) shall be to have FIELDCODE re-perform the defective services so that they conform to the specifications provided herein.
A. The Customer must:
(a) use the software and the documentation for lawful purposes only and must not copy, reproduce, translate, decompile, reverse-engineer, resell, modify, vary, sub-license or otherwise deal in the software or the documentation except (i) as expressly provided for in these GT&C; or (ii) to the extent expressly permitted by any law where that law or treaty cannot be excluded, restricted or modified by these GT&C; or (iii) if it has been agreed upon in a written agreement between customer and FIELDCODE
(b) ensure the software and the documentation are protected at all times from misuse, damage, destruction or any form of unauthorised use, copying or disclosure;
(c) maintain all proprietary notices on the software and the documentation;
(d) not transfer, assign or otherwise deal with or grant a security interest in the software, the documentation or the customer’s rights under these GT&C;
(e) not challenge FIELDCODE’s ownership, or the validity, of the software, the documentation or any other item or material created or developed by or on behalf of FIELDCODE under or in connection with these GT&C (including the Intellectual Property Rights in those items); and
(f) notify FIELDCODE in writing immediately after it becomes aware of any circumstance which may suggest that any person may have unauthorised knowledge, possession or use of the software or the documentation.
B. FIELDCODE shall provide the customer with the support services in accordance with subsection 2(B) provided the customer has:
(a) paid all fees due;
(b) maintained a proper operating environment for the use of the software in accordance with any guidance from FIELDCODE, including in the documentation; and
(c) complied with these GT&C and the documentation.
C. Ownership: all rights, title and interest in and to the software, and any copies and/or derivatives thereof and all documentation, code and logic, which describes and/or composes such software or any such derivatives shall remain the sole and exclusive property of FIELDCODE, and as stipulated herein, customer shall not edit, reverse engineer, copy, emulate, create derivatives of, compile or decompile or otherwise edit, tamper or modify the software in any way. Notwithstanding anything contained herein, any (i) intellectual property existing prior to the effective date of the license; and/or (ii) intellectual property developed independently of the license shall remain the property of its current owner.
A. Fees: Fees and Payment terms shall be applicable as defined in the ST&C.
A. Fieldcode warrants that no Software is a subject of any claim or proceeding nor does it infringe any industrial or intellectual property rights of any third party. In case Customer becomes aware of any such potential infringement, it shall: (i) promptly notify Fieldcode in writing of any such infringement or infringement claims (hereinafter: “IP Claim”); (ii) make no admission of liability or prejudice or settle the IP Claim in any other way, without prior written approval of Fieldcode; and (iii) give Fieldcode complete and full authority to conduct or settle the dispute relating to such IP Claim, if any. For the avoidance of doubt, such responsibilities shall extend to Customer becoming aware of any unauthorised use of the Software and/or any potential infringement of Fieldcode’s Intellectual Property rights by a third party.
B. In the event of IP claims made against customer with respect to the software, FIELDCODE’s entire liability and customer’s exclusive remedy shall be for FIELDCODE to either: (i) substitute the infringing software with the fully non-infringing one; or (ii) modify the software so that it no longer infringes any intellectual property rights of third party while remaining functionally equivalent.
A. Except as expressly provided in these GT&C, neither party may use or disclose the other party's confidential information, including, but not limited to all information applicable to these GT&C, software and documentation as applicable herewith, any other information and procedures, documents, reports, data, records, forms and other materials of a confidential nature developed by one party for the other party or obtained or disclosed to such other party in the course of License under these GT&C. Customer shall comply with all requirements under these GT&C with respect to the security procedures and protection of FIELDCODE’s data. Any further claims for damages as well as the assertion of injunctive relief shall remain reserved.
B. Without limiting the generality of subsection 6(A), either party may use the other party's confidential information solely in the performance of its obligations or rights provided under the terms of these GT&C and disclose the other party’s confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s confidential Information is aware of, and complies with, the provisions of this section 6.
C. Notwithstanding anything contained herein, confidential Information shall not include any information or material that: (i) is already known to the receiving party at the time of disclosure; (ii) is or becomes publicly known through no wrongful act or failure of receiving party; (iii) is independently developed by the receiving party without benefit of the other party’s confidential Information.
D. Subject to the subsection 6(A), each party may not disclose confidential Information unless to the extent that it is required to be disclosed pursuant to a statutory or regulatory provision or court order.
E. This section 6 shall survive termination or expiry of the license. Both parties agree at the option of the other party to return or to destroy confidential Information of the other party upon expiry/termination of the license, to the extent that such information still exists.
A. Each party warrants that: (a) it has full authority and is entitled to enter into and perform its obligations under these GT&C; (b) its performance under these GT&C, including without limitation, the development, delivery and/or use of software, does not and shall not violate (i) any applicable law, rule or regulation; (ii) any contracts with third parties; or (iii) any third-party rights in any patent, trademark, copyright, trade secret or any other proprietary or intellectual property right.
B. FIELDCODE shall not be liable to remedy, repair, enhance or replace any defective software or its part under subsection 5(A) or 7(A) to the extent that the defect arises from or in connection with: (i) modification or alteration of the software by any person other than FIELDCODE; or (ii) a breach of these GT&C by the customer, including use of the software by the customer or its personnel in a manner or for a purpose not reasonably contemplated by these GT&C or not authorised in writing by FIELDCODE.
C. Customer hereby agrees to indemnify, hold harmless and defend FIELDCODE against any claims, liabilities, losses, expenses (including attorney’s fees and legal expenses related to such defense), fines, penalties, taxes or damages (collectively: “liabilities”) to the extent such liabilities arise out of or result from: (i) customer’s negligence or fault in using the software; (ii) customer’s failure to follow the instructions set forth in the documentation; (iii) material changes in the operating environment of the licensed software not authorised by FIELDCODE; or (iv) modifications to or changes in the software made by customer without consulting with FIELDCODE.
D. FIELDCODE PROVIDES THE SOFTWARE TO THE CUSTOMER ON "AS IS" BASIS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY FIELDCODE EMPLOYEE, REPRESENTATIVE OR DISTRIBUTOR WILL CREATE A WARRANTY FOR THE SOFTWARE, AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
A. Liability Period Limitation: Unless otherwise agreed in the individual agreement with the customer, customer shall not have the right to make any claim against FIELDCODE, under any circumstances, after a period of six (6) months from the date of the occurrence (hereinafter: liability period). For the avoidance of doubt, after the expiry of such liability period, FIELDCODE shall not be held responsible for any liabilities arising out of the occurrence that the customer would otherwise have sought to claim, whether in contract, tort (including negligence), breach of statutory duty or otherwise.
B. Exclusion of Liability. IN NO EVENT SHALL FIELDCODE BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING LOSS OF PROFITS), WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), EVEN IF FIELDCODE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
C. Exclusion of FIELDCODE’s liability described in subsection 8(B) above, shall apply but not be limited to: (i) loss of profit, loss of revenue, loss of use or loss of contract howsoever arising, including out of any unplanned downtime or any other acts or omissions of FIELDCODE; (ii) loss of data and/or use howsoever arising; (iii) any third party claims howsoever arising; or (iv) any damage caused by any computer viruses, worms, software bombs, trojans or other similar items that are not entirely and directly caused and introduced to customer system by FIELDCODE’s Software. For the avoidance of doubt, abovementioned shall be considered indirect damages for which FIELDCODE shall not be held liable and any claim to otherwise will need to be proven by customer.
D. None of the terms of this section 8 shall apply to (i) indemnity and payment obligations of customer set out in these GT&C; (ii) personal injury or death.None of the terms of this Section 8 shall apply to (i) indemnity and payment obligations of Customer set out in these GT&C; (ii) personal injury or death.
A. Duration: Unless terminated under this section 9, the license shall (i) commence on the effective date and continue for successive terms of twelve (12) months from the effective date unless a party gives at least thirty (30) days’ prior notice that the License and these GT&C will terminate on the expiry of the then-current term. Notwithstanding anything contained herein, if customer ceases to use the software and does not process any events in connection thereof for the period of six (6) consecutive months, the license shall be deemed terminated with an immediate effect. In such case, FIELDCODE shall submit a notification to customer with information of erasing customer data and any related confidential information.
B. Termination rights. Either party may, by notice to the other party, immediately terminate the license, if (i) the other party commits a material breach of these GT&C and fails to cure such breach within 30 day period after written notice is provided to the breaching party; (ii) the other is adjudicated bankrupt, enters into liquidation or any arrangement or composition with or assignment for the benefit of its creditors.
C. Upon termination for whatsoever reason, if customer has pre-paid any fees in respect of license being terminated or cancelled, FIELDCODE’s sole liability to customer in respect of such termination shall be to refund the pre-paid fees in respect of that license for the period following termination to the end of the term. No such refund shall be required in event of termination for customer’s breach of these GT&C. Notwithstanding anything contained herein, on termination or expiry of the license, the customer must pay all fees for the rights and services provided prior to that termination or expiry.
A. Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, these GT&C through good faith negotiations. Each party must, to the extent possible, continue to perform its obligations under these GT&C even if there is a dispute.
B. This section 10 does not affect FIELDCODE’s right to seek urgent interlocutory and/or injunctive relief.
A. Force majeure. Neither party is liable to the other for any failure to perform its obligations under these GT&C to the extent caused by force majeure, provided that the affected party (i) immediately notifies the other party and provides full information about the force majeure; (ii) uses best efforts to overcome impact of the force majeure; and (iii) continues to perform its obligations to the extent practicable. Such force majeure event shall not extend to customer’s payment obligations as set out herein.
B. Independent contractor. FIELDCODE is an independent contractor of the customer. No other relationship (e.g. joint venture, agency, trust or partnership) exists under these GT&C.
C. Notices. A notice given by a party under these GT&C must be delivered to the other party via email to an email address notified by the other party for this purpose.
D. Severability. If any provision of these GT&C is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification under this subsection 11(D) is not possible, the provision must be treated for all purposes as severed from these GT&C without affecting the legality, enforceability or validity of the remaining provisions of these GT&C.
E. Entire agreement. These GT&C set out everything agreed by the parties relating to the license and the support services and supersedes and cancels anything discussed, exchanged or agreed prior to the effective date. The parties have not relied on any representation, warranty or agreement relating to the software, license and the support services that is not expressly set out in these GT&C, and no such representation, warranty or agreement has any effect from the effective date. Any customer-specific variation, if any, to these GT&C shall be included in individual agreement.
F. No assignment. Customer may not assign, novate, subcontract or transfer any right or obligation under these GT&C without the prior written consent of FIELDCODE. Notwithstanding any assignment, subcontracting or any other transfer of rights and/or obligations, customer shall remain solely liable for its obligations under these GT&C. Any assignment, novation, subcontracting or transfer must be in writing. Any change of control of customer is deemed to be an assignment for which FIELDCODE’s prior written consent is required under this Subsection 11(F).
G. Customer hereby grants to FIELDCODE the express right to use customer's company logo in marketing, sales, financial, and public relations materials and other communications solely to identify customer as an FIELDCODE customer and to use it as a reference project by FIELDCODE. FIELDCODE hereby grants to customer the express right to use FIELDCODE’s logo solely to identify FIELDCODE as a provider of services to customer. Other than as expressly stated herein, neither party shall use the other party's marks, codes, drawings or specifications without the prior written permission of the other party.
H. Except as otherwise provided in these GT&C and individual agreement, FIELDCODE may make changes to these GT&C at its sole discretion. Changes shall be communicated by uploading amended GT&C on the FIELDCODE website (at www.FIELDCODE.com/) or by notifying them to customer and customer’s acceptance of and/or continued use of any software after such notification of amended GT&C is provided. FIELDCODE reserves the right to require customer to confirm these amended GT&C following any material changes.
I. For the avoidance of doubt, if the individual, being a natural person, accepts these GT&C on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “customer” shall refer to such entity and its affiliates, in accordance with warranties enumerated in section 7A herein.
J. FIELDCODE processes personal data in line with the provisions of applicable law and contractual rules. FIELDCODE ensures that any of its personnel and other representatives engaged in data processing are obliged to maintain confidentiality and to comply with data protection requirements in accordance with the General Data Protection Regulation Directive 2016/679 (“GDPR”). Fieldcode processes personal data in line with the provisions of applicable law and contractual rules. Fieldcode ensures that any of its Personnel and other representatives engaged in data processing are obliged to maintain confidentiality and to comply with data protection requirements in accordance with the General Data Protection Regulation Directive 2016/679 (“GDPR”).
Special Terms & Conditions on Software License
THESE TERMS AND CONDITIONS SHALL APPLY IN CONJUNCTION WITH AND BE GOVERNED BY FIELDCODE GENERAL TERMS AND CONDITIONS (HEREINAFTER: “GT&C”). IN THE EVENT OF ANY INCONSISTENCY BETWEEN GT&C AND THESE SPECIAL TERMS AND CONDITIONS ON SOFTWARE LICENSE (HEREINAFTER: “ST&C”), THE ST&C SHALL PREVAIL.
Version Date: 13/07/2020
The following ST&C provide specific rules on the scope of the customer's right to use the standard FIELDCODE Software. Capitalized terms used but not defined in this ST&C have the meanings assigned to them elsewhere in the GT&C available at https://www.fieldcode.com/en/informations/legal.
In these ST&C, the following terms shall have the meaning:
Account – The account created upon registration for use of the FIELDCODE software.
Event – A support query reported or imported by the customer into the FIELDCODE software. Each event can be processed (e.g., dispatched, reported) individually in the FIELDCODE software. Each event will have an unique number automatically assigned by the software called “CNI”. An event is called “ticket” in the software.
Individual Agreement - a specific agreement made with Customer containing the agreed fees for the License, payment terms and License term if specified. In case of conflict between the Individual Agreement and these ST&C, the Individual Agreement shall prevail.
Software - the applications that are provided by FIELDCODE on a software-as-a-service (SaaS) basis. The Fieldcode software is consisting of three main applications: Fieldcode work place to manage your events throughout the whole delivery cycle (browser application), Fieldcode admin panel to configure and automate your account and processes (browser application) as well as the Fieldcode mobile app to deliver your events in the field (smartphone application).
User – Each user being able to access the FIELDCODE software and process events therein. The definition of user holds regardless of the user’s role.
A. Account Creation: To access the FIELDCODE Software, an Account must be created. Any such Account shall be by default free of charge and shall provide for use of all Software functions without any restrictions and/or limitations on events or actions in the Software. Each Customer shall be authorized to create one Account only, wherein the number of Users assigned shall not be limited. At creation of an Account, Customer will be set up as the first User of an Account.
B. License Models: Account creation shall stipulate license grant for Software on an on-demand basis. Such License shall be granted to Customer and based on two separate license models, differentiated by the number of Users assigned to one Account (hereinafter: “License Model”): (i) Free model; and (ii) Pay-per-event model.
C. Free model: Free model shall be available only for the Accounts with no more than ten (10) assigned Users, excluding the initial Customer account as defined under 3(A). Within the Free model such Users shall be authorized to access and use the Software free of charge without limitations, except to those applicable by GT&C, ST&C and statutory law.
D. Pay-per-event model: Pay-per-event Model shall be a billable License Model, whereby FIELDCODE shall charge Customer a flat fee of two (2) EUR* per event. Pay-per-event Model shall be automatically applied for the Accounts where the number of assigned Users is established for or exceeds eleven (11), excluding the first User as defined under Section 3(A). Customer will be notified upon change from the Free model to the Pay-per-event-Model and shall be requested to provide and specify the applicable payment method as indicated in Section 4(A) below. FIELDCODE shall not apply any fees and expenses other than 2 EUR per Event. An event is applicable for invoicing when the following two (2) requirements are met:
a) Event has been successfully received or created. A ticket has been successfully created or received when the unique number named “CNI” has been assigned by the system automatically.
b) The Event has at least one (1) scheduled appointment. An appointment is scheduled and saved in the ticket history when the scheduling assistant is being used. An appointment will be set in both cases, optimized as well as manual, scheduling both resulting in an entry of a date in the field "Fixed to date".
E. Non-reversibility: After exceeding the amount of 11 Users per Account, the number of Users shall not have an impact on the License Fee. For the avoidance of doubt, Customer shall not be allowed to revert from the Pay-per-event Model to the Free model once the eleven (11) Users threshold is achieved, regardless of any further change in their number.
*F. Pay-per-event fee shall be stipulated in one of three following currencies: EUR, GBP or USD as indicated in the Appendix A to theses ST&C. For the avoidance of doubt, the applicable currency of Pay-per-event fee and any other additional costs and expenses shall be determined by the Customer address entered during the registration process.
A. License Fees: Unless otherwise provided herein or in an Individual Agreement, FIELDCODE may invoice Customer for all license fees, other fees, and charges monthly based on a calendar month in line with the License Model specifications. Invoices will be sent to Customer within three (3) working days following the last day of the calendar month being billed.
B. Payment Due Date: All invoices shall be payable by Customer in the currency stipulated in 3(F) of these ST&C, unless otherwise agreed in an Individual Agreement. Payment shall be made via Credit Card upon receipt of the invoice. Notwithstanding any provision to the contrary, any and all payments required to be made hereunder shall be timely made, and no payments to FIELDCODE shall be withheld, delayed, reduced or refunded if FIELDCODE has fully performed its material obligations and its inability to meet any schedule or delivery requirements is caused by Customer’s actions or omissions.
C. Late Payment: Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.
D. Taxes: All amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse Licensor and hold Licensor harmless for all sales, use, VAT, excise, property, or other taxes or levies which Licensor is required to collect or remit to applicable tax authorities. This provision does not apply to Licensor’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished Licensor with a valid tax exemption certificate.
A. Rights to the Software within the License Model. Subject to and in addition to GT&C, by choosing and accepting any of the License Models, Customer acknowledges and agrees that:
a) Software remains subject to FIELDCODE’S sole ownership and is covered by intellectual property protection. Unless otherwise permitted by applicable law or in GT&C and/or these ST&C, Customer shall not use the Software beyond accepted and agreed purpose and in violation of License Model specifications.
b) Any Software License granted to Customer under License Model and GT&C shall be non-exclusive, worldwide, non-transferable, unlimited in time and revocable and restricted only to the Approved Purpose as defined in GT&C and to the License Model specifications. Any use of the License by Customer beyond the permitted scope shall be considered breach of GT&C and these ST&C resulting in FIELDCODE having right to seek all remedies and damages available by these terms and applicable law.
c) Customer shall not in any way modify or remove copyright or license notices in the Software.
A. Support Services: During the License Period and within a License Model, FIELDCODE shall perform Support Services on the Software free of charge, consisting of:
(a) Software Releases,
(b) E-mail support in case of any Software issues.
Any additional or extended Support Services (hereinafter: “Additional Services”), if any, shall be subject to and described in a quote.
B. Software Update: In the event there are any issues with access to Software due to Software refreshing or updating in whole or in part, Customer shall be given a reasonable notice period in order to plan the software downtime due to the Software Release. If, after such opportunity, Customer fails or otherwise refuses to acquire such Software Releases, FIELDCODE shall be relieved of its support obligations stipulated herein.