Terms of Use

Last updated: May 13, 2017
Effective date: May 1, 2017

Terms of Use

These Terms of Use constitute the agreement (hereinafter referred to as the "Terms") between e-shoptimizer (hereinafter referred to as "Licensor", "Company", "we", "our", or, "us") and you as the user of the Software e-Monitoring system --> (hereinafter referred to as the "Licensee", "User" "you", or, "your").

General Provisions

These Terms govern your use of the Software e-Monitoring system (hereinafter referred to as the "Software") as well as the use of, and access to, the Licensor's official website https://e-shoptimizer.com including all other domains owned and operated by e-shoptimizer (hereinafter collectively referred to as the "Site").

In order to lawfully use the Software and the Site, you shall read carefully and accept the present Terms.

You agree to be bound by these Terms by: - checking the "I Agree"-checkbox while creating your account at the Site; or - using the Site; or - using the Software ; or - using free trial version of the Software .

If you have entered into a separate License Agreement with e-shoptimizer , then, in case of any discrepancies or inconsistencies, the terms and conditions of such separate License Agreement shall prevail over the present Terms.

Access to the Software

The Software shall become available to Licensee in accordance with the terms and conditions of the License Agreement entered into by Licensor and Licensee (hereinafter referred to as the "License Agreement").

You will be granted access to the Software once you: - have signed the License Agreement with Licensor; and - have made all the necessary License Fee payments as stipulated in the License Agreement between you and the Licensor.

Privacy Policy

The Privacy Policy governs the use, collection and disclosure of the personal information (data) provided by you to e-shoptimizer . The Section "Confidential Information" is an integral part of the Privacy Policy.

While using the Software and/or the Site, you may be required to provide us with personal information. By voluntarily providing the Licensor with personal information you confirm that you have the right to transfer this information to us.

By accepting the Terms of Use, you give your consent for the processing by Licensor of your personal information provided by you.

The personal information you are required to provide is necessary for your identification as our User and communication with you. All personal data shall be used inside the Company only for the identification purposes, supporting the use of the Software and for the communication with you as our User.

Confidential Information

"Confidential Information" means all proprietary or confidential information that is disclosed to the recipient ("Recipient") by the discloser ("Discloser"), and includes, among other things any and all information relating to products or services provided by a Discloser, its financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; and as to Licensor, and its licensors, the Software.

Confidential Information does not include information that Recipient can show: - was rightfully in Recipient's possession without any obligation of confidentiality before receipt from the Discloser; or - is or becomes a matter of public knowledge through no fault of Recipient; or - is rightfully received by Recipient from a third party without violation of a duty of confidentiality and without obligation of confidentiality; or - is independently developed by or for Recipient without use of the Confidential Information; or - is required to be disclosed by applicable law or court order.

Recipient may not disclose Confidential Information of the Discloser to any third party or use the Confidential Information for any other purposes, except as for the cooperation within these Terms, without written concent of Discloser unless such a disclosure is required by law.

All personal data provided by Licensee are confidential. The Licensor shall provide the same level of protection for personal data received from Licensee, subject to Licensee's compliance with the Terms, as provided for its own personal databases.

All data and information obtained by the Licensee as a result of use of the Software and/or the Site including the results of tests of the Software and/or the Site are confidential. Licensee MAY NOT disclose any such data, information and results of the Software to any third party.

Licensee hereby undertake to keep its personal account details confidential. Licensee may not transfer its personal account details to any third party.

e-shoptimizer shall have the right to mention Licensee's name (logo and/or its Trademark) to any third party while promoting its services and/or Software without disclosing Confidential Information.

License

Subject to the terms of the License Agreement, including without limitation the payment of any applicable License Fee, Licensor grants to Licensee a non-exclusive, non-transferable, non-sublicensable License to use the Software.

Licensee is entitled only to those rights with respect to the Software that are expressly granted by this Agreement.

The License rights will take effect subject to License Fee payment by Licensee and acceptance of terms and conditions of this Agreement.

License Restrictions

By using the Software and/or the Site, you agree that you WILL NOT: - assign, sell, sublicense, rent, lease or otherwise distribute the Software (or any part thereof) to any third party, or use the Software (or any part thereof) for time sharing, hosting or similar purposes; or - cause or permit reverse engineering, decompile, disassemble, make any attempt to discover the source code of the Software; or - modify, translate, or create derivative works from the Software, incorporate the Software (or any part thereof) into or with other software; or - remove any Software identification, proprietary, copyright or other notices contained in the Software; or - disclose the results of any benchmark tests of the Software to any third party; or - use the Software or the Site in any way that may violate the rights of the Licensor in relation to the Software and/or any Intellectual Property rights of the Licensor; or - use the Software or the Site in any way that violates the Terms and/or contradicts the provisions hereof, and/or violates the legislation governing the contractual relations between you and the Licensor; or - use any viruses and/or other programs that may cause damages to or influence the functioning of the Software or the Site.

Licensee undertakes to prevent any illegal use of its personal account by any third party and undertake not to transfer its personal account details to any third party.

Support and Upgrade Policy

The Licensor grants you the Level of Support and upgrade as specified in the License Agreement between you and the Licensor.

Payment Policy

The use of the Software is subject to the License Fee that should be paid on the terms and conditions as stipulated in the License Agreement.

The payment of the License Fee is a compulsory condition for granting the license rights specified in the License Agreement and the lawful use of the Software and/or the Site.

The use of a free trial version of the Software is not subject to the License Fee.

Intellectual Proptery Rights

The Licensor retains all right, title and interest to the Software and the Site and all related intellectual property and proprietary rights. The Software and the Site is protected by applicable copyright, trade secret, industrial and other intellectual property laws. The Licensee may not remove any product identification, copyright, trademark or other notice from the Software and/or the Site. The Licensor reserves any rights not expressly granted to the Licensee.

All data and information developed by the Licensee, when the Software is lawfully used under the License terms and conditions, shall belong to the Licensee. The Licensor may not disclose, use or transfer them to any third party without prior written approval by the Licensee.

Applicable Law

These Terms shall be governed by the laws of Denmark .

The parties shall endeavour to resolve all disputes arising during the term of validity of these Terms by way of negotiations. If the parties fail to settle a dispute in an amicable way, any such dispute regardless of its nature shall be resolved by courts in accordance with the applicable laws of Denmark . The courts of Denmark shall have the compulsory jurisdiction to settle any disputes which may arise out of or in connection with these Terms.

Licensee acknowledge and agree that in the event of its breach of the terms and conditions of the License Agreement and/or Terms of Use (including any misuse or threatened misuse of the Software and/or the Site) will cause immediately irreparable harm to Licensor for which there is no adequate remedy at law. Accordingly, Licensor IS entitled to immediate and permanent injunctive relief from a court of competent jurisdiction.

Warranty

To the extent permitted by applicable law, the Software is provided to Licensee "AS IS" without any warranty, whether express or implied, that Software usage will be uninterrupted and that all errors have been or can be eliminated from the Software.

The Licensor’s sole liability (and Licensee’s exclusive remedy) for any breach of this warranty shall be, at the Licensor’s sole discretion to: - use commercially reasonable efforts to provide the Licensee with an error correction or workaround which corrects the reported nonconformity; or - provide Software upgrades with the errors corrected for an upcoming Software release.

If Licensor determines such remedies to be impracticable within a reasonable period of time Licensor can, at its own discretion, terminate the Agreement and refund the License Fee paid for the period of nonconformity.

The limited warranty shall not apply to warranty claims arising out of or relating to: - use of the Software with hardware or software not supported by the Software according to its documentation; or - defects in the Software due to accident, abuse or improper use by the Licensee; or - Software provided on a no charge or non-commercial trial use basis, if any.

Limits on Liability

THE LICENSOR SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RELATING TO, OR ARISING OUT OF, THIS AGREEMENT, SUPPORT OR THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME AND DAMAGE TO, OR LOSS OF USE OF DATA CONSIDERED AS INDIRECT LOSS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE LICENSOR’S TOTAL LIABILITY FOR DAMAGES OF ANY KIND IS LIMITED TO THE AMOUNT OF TOTAL FEES PAID FOR THE LICENSE FOR THE APPLICABLE SOFTWARE GIVING RISE TO SUCH DAMAGES.

Amendments

e-shoptimizer reserves the right to unilaterally amend and/or change these Terms. In such a case the updated version of the Terms shall prevail over the previous one.

Your continued use of the Software and/or the Site after the effective date will be deemed to constitute your consent to, and acceptance of, the new and updated version of the Terms of Use.

Term and Termination

These Terms shall commence upon your acceptance of the present Terms in any manner as set forth in Section "General Provisions".

Licensor may suspend your access to the Software and terminate the present Terms without any notice if: - Licensee fails to pay the License Fee in accordance with the License Agreement; or - Licensee fails to comply with another term of this Agreement, including any misuse or threatened misuse of the Software. - Licensor has reasonable grounds to believe that Licensee have breached or are likely to breach the provisions of the Agreement; or - Licensor has reasonable grounds to believe that Licensee have presented inaccurate, incorrect or false information.

Any early termination shall not relieve the Licensee of its obligations to pay the License Fees arising during the term of this Agreement.

Survival

The provisions of the sections "License Restrictions", "Intellectual Property Rights", "Confidentiality", "Limits on Liability", and "Privacy Policy" shall survive and continue after any expiration or termination of these Terms.

Confidentiality provisions set out therein will remain in force for ten (10) years after the expiration or termination of the Terms.

License Agreement

Last updated: May 13, 2017

Effective date: May 1, 2017

The present License Agreement (hereinafter referred to as the "Agreement" ) is a legal contract between e-shoptimizer (hereinafter referred to as "Licensor", "Company", "we", "our", or, "us") and you as the user of the Software e-Monitoring system (hereinafter referred to as the "Licensee", "User" "you", or, "your").

The present Agreement specifies license terms and conditions for the software known as Software e-Monitoring system (hereinafter referred to as the "Software").

Hereinafter the Licensor and the Licensee are collectively referred to as the "party" and each separately as the "parties".

Licensee agrees to be bound by the terms and conditions of this Agreement by creating an account at https://e-shoptimizer.com . This Agreement shall become effective between Licensor and Licensee when Licensee completes the account creation process.

If you do not wish to be bound by the terms and conditions of this Agreement, You may refuse to create an account, access or use the Software. Accepting the terms and conditions stipulated below shall be a compulsory condition for the lawful use of the Software.

If you have entered into the separate paid License Agreement with e-shoptimizer , then, in case of any discrepancies or inconsistencies, the terms and conditions of such individual License Agreement shall prevail over the present License Agreement.

1. Definitions

  1. The "License" shall mean License rights to use the Software
  2. The "License Fee" shall mean any payment owed by Licensee to Licensor as a result of this Agreement.
  3. The "Site" shall mean the Licensor’s official website https://e-shoptimizer.com including all other domains owned and operated by e-shoptimizer
  4. The "Software" shall mean software suite, namely: fragments of resource or object code readable by the computer in order to bring the computer into action, known as Software e-Monitoring system .

2. License Terms and Conditions

  1. Subject to the terms of this Agreement, including without limitation the payment of any applicable License Fee, Licensor grants to Licensee a non-exclusive, non-transferable, non-sublicensable License to use the Software.
  2. Licensee is entitled only to those rights with respect to the Software that are expressly granted by this Agreement.
  3. The License rights will take effect subject to License Fee payment by Licensee and acceptance of terms and conditions of this Agreement.

3. License Restrictions

  1. Licensee MAY NOT:
    • assign, sell, sublicense, rent, lease or otherwise distribute the Software (or any part thereof) to any third party, or use the Software (or any part thereof) for time sharing, hosting or similar purposes; or
    • cause or permit reverse engineering, decompile, disassemble, make any attempt to discover the source code of the Software; or
    • modify, translate, or create derivative works from the Software, incorporate the Software (or any part thereof) into or with other software; or
    • remove any Software identification, proprietary, copyright or other notices contained in the Software; or
    • disclose the results of any benchmark tests of the Software to any third party; or
    • use the Software or the Site in any way that may violate the rights of the Licensor in relation to the Software and/or any Intellectual Property rights of the Licensor; or
    • use the Software or the Site in any way that violates the Terms and/or contradicts the provisions hereof, and/or violates the legislation governing the contractual relations between you and the Licensor; or
    • use any viruses and/or other programs that may cause damages to or influence the functioning of the Software or the Site.
  2. Licensee undertakes to prevent any illegal use of its personal account by any third party and undertake not to transfer its personal account details to any third party.

4. Support and Upgrade

  1. Licensee has the License rights to use the latest version of the Software, including major version releases, and to the Software support service during a subscription period.

5. License Payments

  1. The License Fee may consist of a Setup and/or Subscription fee.
  2. The amount of License Fee shall be agreed by the parties at the time of account creation. The Licensee shall cover all banks and correspondent banks’ commissions at its own costs on top of the License Fee.
  3. The payment of Setup fee shall be a compulsory condition for granting license rights stipulated in this Agreement.
  4. The Subscription fee shall be paid on monthly basis. Unless otherwise agreed by the parties. If the last due payment day is a bank holiday, the transfer shall be executed at the next working day. The day of incoming payment in the bank of the Licensor is deemed as the day of the License Fee payment.
  5. Licensor may suspend to Licensee the access to the Software, if Licensee fails to make a Subscription fee payment timely or comply with another term of Licensor’s Payment Policy.
  6. The License Fee paid by the Licensee is non-refundable in any circumstances, except in warranty cases specified below.

6. Intellectual Proptery Rights

  1. The Licensor retains all right, title and interest to the Software and the Site and all related intellectual property and proprietary rights. The Software and the Site is protected by applicable copyright, trade secret, industrial and other intellectual property laws. The Licensee may not remove any product identification, copyright, trademark or other notice from the Software and/or the Site. The Licensor reserves any rights not expressly granted to the Licensee.
  2. All data and information developed by the Licensee, when the Software is lawfully used under the License terms and conditions, shall belong to the Licensee. The Licensor may not disclose, use or transfer them to any third party without prior written approval by the Licensee.

7. Confidentiality

  1. "Confidential Information" means all proprietary or confidential information that is disclosed to the recipient ("Recipient") by the discloser ("Discloser"), and includes, among other things any and all information relating to products or services provided by a Discloser, its financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; and as to Licensor, and its licensors, the Software.

    Confidential Information does not include information that Recipient can show:

    • was rightfully in Recipient's possession without any obligation of confidentiality before receipt from the Discloser; or
    • is or becomes a matter of public knowledge through no fault of Recipient; or
    • is rightfully received by Recipient from a third party without violation of a duty of confidentiality and without obligation of confidentiality; or
    • is independently developed by or for Recipient without use of the Confidential Information; or
    • is required to be disclosed by applicable law or court order.

    Recipient may not disclose Confidential Information of the Discloser to any third party or use the Confidential Information for any other purposes, except as for the cooperation within these Terms, without written concent of Discloser unless such a disclosure is required by law.

  2. All personal data provided by Licensee are confidential. The Licensor shall provide the same level of protection for personal data received from Licensee, subject to Licensee's compliance with the Terms, as provided for its own personal databases.

  3. All data and information obtained by the Licensee as a result of use of the Software and/or the Site including the results of tests of the Software and/or the Site are confidential. Licensee MAY NOT disclose any such data, information and results of the Software to any third party.

  4. Licensee hereby undertake to keep its personal account details confidential. Licensee may not transfer its personal account details to any third party.

  5. e-shoptimizer shall have the right to mention Licensee's name (logo and/or its Trademark) to any third party while promoting its services and/or Software without disclosing Confidential Information.

8. APPLICABLE LAW

  1. This Agreement shall be governed by the laws of Denmark .
  2. The parties shall endeavour to resolve all disputes arising during the term of validity of this Agreement by way of negotiations. If the parties fail to settle a dispute in an amicable way, any such dispute regardless of its nature shall be resolved by courts in accordance with the applicable laws of Denmark . The courts of Denmark shall have the compulsory jurisdiction to settle any disputes which may arise out of or in connection with these Terms.
  3. Licensee acknowledge and agree that in the event of its breach of the terms and conditions of the License Agreement and/or Terms of Use (including any misuse or threatened misuse of the Software and/or the Site) will cause immediately irreparable harm to Licensor for which there is no adequate remedy at law. Accordingly, Licensor IS entitled to immediate and permanent injunctive relief from a court of competent jurisdiction.

9. Warranty

  1. To the extent permitted by applicable law, the Software is provided to Licensee "AS IS" without warranty, either express or implied, that Software usage will be uninterrupted and that all errors have been or can be eliminated from the Software.
  2. Licensor’s sole liability (and Licensee’s exclusive remedy) for any breach of this warranty shall be, in Licensor’s sole discretion, to:
    • use commercially reasonable efforts to provide Licensee with an error correction or workaround which corrects the reported nonconformity; or
    • provide Software upgrades with corrected errors for the upcoming Software release or service pack. If Licensor determines such remedies to be impracticable within a reasonable period of time Licensor can, at its own discretion, terminate the Agreement and refund the License Fee paid for the period of nonconformity.
  3. The limited warranty shall not apply to warranty claims arising out of or relating to:
    • use of the Software with hardware or software not supported by the Software according to its documentation; or
    • defects in the Software due to accident, abuse or improper use by Licensee; or
    • Software provided on a no charge or non-commercial trial use basis.

10. Limits on Liability

  1. LICENSOR IS NOT LIABLE FOR ANY SPECIAL, INDIRECT, THE LICENSOR SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RELATING TO, OR ARISING OUT OF, THIS AGREEMENT, SUPPORT OR THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME AND DAMAGE TO, OR LOSS OF USE OF DATA CONSIDERED AS INDIRECT LOSS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE LICENSOR’S TOTAL LIABILITY FOR DAMAGES OF ANY KIND IS LIMITED TO THE AMOUNT OF TOTAL FEES PAID FOR THE LICENSE FOR THE APPLICABLE SOFTWARE GIVING RISE TO SUCH DAMAGES.

11. Force Majeure

  1. Either Party shall not be held liable for non-performance or undue performance of the obligations under this Agreement, should such non-performance or undue performance be caused by circumstances such as a fire, flood, hostilities, acts of government and other circumstances beyond the control of either party, interfering with the performance of this Agreement.
  2. The parties undertake to inform each other in writing about the circumstances beyond the party's control as soon as the fact becomes known to the party.

12. Term and Termination

  1. This Agreement becomes effective from the day of account creation by Licensee
  2. Licensor may terminate this Agreement and/or suspend Licensee's access to the Software, if:
    • Licensee fails to make License Fee payment timely; or
    • Licensee fails to comply with another term of this Agreement, including any misuse or threatened misuse of the Software.
    • Licensor has reasonable grounds to believe that Licensee have breached or are likely to breach the provisions of the Agreement; or
    • Licensor has reasonable grounds to believe that Licensee have presented inaccurate, incorrect or false information.
  3. The Agreement may be terminated unilaterally initiated by either party without stating reasons by written notice to the other party not later than 30 (thirty) days prior to the date of termination.
  4. Any early termination shall not relieve the Licensee of its obligations to pay the License Fees arising during the term of this Agreement.

13. Entire Agreement

  1. This Agreement and the Terms of Use constitutes the entire agreement between the Licensor and the Licensee and supersedes all prior and contemporaneous agreements, arrangements, negotiations and understandings between the parties, whether oral or written, relating to the subject matter hereof.
  2. No failure by either party hereto to exercise and any right hereunder in time shall be considered as a waiver thereof or shall not preclude exercising any right hereunder by that party in future.

14. Survival

  1. The provisions of the sections "License Restrictions", "Intellectual Property Rights", "Confidentiality", "Limits on Liability" shall survive and continue after any expiration or termination of this Agreement.

  2. Confidentiality provisions set out therein will remain in force for ten (10) years after the expiration or termination of the Terms.

15. Amendments

  1. e-shoptimizer reserves the right to unilaterally amend and/or change this Agreement. In such a case the updated version of the Agreement shall prevail over the previous one.

  2. Your continued use of the Software after the effective date will be deemed to constitute your consent to, and acceptance of, the new and updated version of the Agreement.

16. Miscellaneous Provisions

  1. Headings are used in this Agreement exclusively for convenience and shall not affect the interpretation of the Agreement provisions