- These General Terms and Conditions governs the Software license granted by Phonanium as well as the provision of the Services carried out by Phonanium.
- These General Terms and Conditions are considered as formally and explicitly accepted by the Customer as soon as the Customer has downloaded the Software. They prevail upon the general or special terms and conditions of Customer, unless Phonanium has accepted the Customer’s conditions explicitly and in writing.
- These General Terms and Conditions are without prejudice to the application of the GNU General Public License on the software PRAAT (http://www.fon.hum.uva.nl/praat/GNU_General_Public_License.txt), which will prevail when applicable.
- “Phonanium” refers to Mr. Youri Maryn offering the Software and the related Services under the trade name Phonanium, and having its offices at Papestraat 62, 9160 Lokeren, Belgium.
- “Software” is the software developed by Phonanium for various acoustic analyses of clinical voice and speech recordings. The Software licensed to Customer is an executable text or a script in machine-readable form (“macro”) and includes the documentation (in written or audio-visual form) and material provided by Phonanium (the “Documentation”). The licensed Software includes the Updates proposed by Phonanium during the Duration of the Agreement, but excludes any new software feature or substantial additional functionality.
- “Customer” means entity specified as the customer on the applicable ordering document.
- “Use“: Unless otherwise defined in this Agreement, the term Use shall mean the use of all or any part of the licensed Software.
- “User” means personnel of Customer authorised by Phonanium and Customer to use the Software.
- Updates” mean any periodic Software releases, if any, for purposes of 1) providing minor enhancements and/or improvements, patches, fixes, or the like to the Software; or 2) resolving technological issues related to Customer’s then-current Version of the Software.
- “Services”: the services provided by Phonanium (tutorials, support, etc.).
- “Site” means all personal computers and servers with the same operating system platform at a single location or at different locations which are connected by a single networked system.
3.1. Once the Customer has clicked for downloading the Software, it will receive by email a summary of its order (Order Confirmation). By clicking to download the Software and paying the invoice, the Customer enters into an agreement with Phonanium, which is governed by the present General Terms and Conditions (without prejudice to the application of the GNU license when applicable).
3.2. Phonanium grants the Customer a non-exclusive, non-transferable, limited license to use on its own computer in Customer’s normal course of business, the Services, the Software and any Updates proposed by Phonanium, but excluding any new software feature or substantial additional functionality for which Phonanium, in its sole discretion, generally charges customers of the Software additional charges.
3.3. Phonanium is not responsible for the installation of the Software, unless otherwise agreed between the parties in writing. If Phonanium agrees to assist with installation of the Software, Customer shall pay for this in accordance with Phonanium’s price list for such services in force at the time of the installation.
3.4. Customer may make copies of the Software for backup purposes only. Each copy made by Customer must include the copyright notice embedded in and affixed to the Software. All other copying is prohibited.
3.5. Customer may not transfer, sell, loan, lease, distribute or transfer the Software or copies to third parties. Customer may not use the Software, nor allow Software to be used, to provide services for third parties. Customer may not reproduce all or any portion of the Software (except as expressly permitted herein) or any accompanying Documentation, or modify, translate or otherwise create derivative works of the Software. Customer agrees to notify its employees and sub-contractors who may have access to Software of the restrictions contained herein. Notwithstanding the foregoing, the User may ask Phonanium for a special offer for making the Software and Services available to students and other scientific or educational purposes.
4.1. Phonanium shall deliver, the following Standard Support Services during Phonanium’s normal business hours:
(a) Tutorials: Phonanium shall send Customer a password for viewing videos/tutorials on Phonanium’s website explaining how the Software has to be used
(b) Telephone and email support: Phonanium shall answer Customer’s questions sent by email during 10 days as from the downloading of the Software if such questions can, according to Phonanium, be easily answered by email or by phone. Support later than 10 days will be charged as announced on the website.
c) Phonanium may provide Updates to and/or new Versions for the Software to Customer which shall be included in the Price. Customer will be responsible for installing any such Updates. However, Phonanium will provide Support for only the most current version and the immediately preceding version of the Software.
4.2. Customer shall ensure that Phonanium is provided with such information under Customer’s control as is reasonably necessary to enable Phonanium to comply with its obligations hereunder.
4.3. Updates. In the event that Phonanium determines that any of Customer’s reported problems cannot be resolved due to Customer’s failure to install Updates, Customer will be given a reasonable opportunity to install such Updates. If, after such opportunity, Customer fails or otherwise refuses to install such Updates, Phonanium shall be relieved of its obligations under this clause.
4.4. If Customer wants more support than the Standard Support Service, it shall inform Phonanium of the requested support and Phonanium shall send Customer by email an offer for the additional support. If Customer confirms by email that he wants the offered support, Phonanium shall make its best endeavors to perform the support as soon as reasonably possible during normal business hours.
4.5. Standard Support Services only include the foregoing and are subject to the limitations set forth in clause 7 below.
4.6. Phonanium will do its best to satisfy the Customer, but its obligations relating to services only concern the means and never the outcome.
5.1. Once the Customer has paid the invoice sent by Phonanium, it will be able to download the Software and use the Standard Support Services. Updates proposed by Phonanium are covered by the price paid for the Software License, but such prices does not include any new service or software feature or substantial additional functionality for which Phonanium, in its sole discretion, generally charges customers. Such new services / features / adaptations shall be proposed by Phonanium and, if accepted, shall be invoiced separately.
5.2. If Customer orders additional support services, such services shall be invoiced separately and performed as soon as such services have been paid by Customer.
5.3. Customer shall pay any undisputed invoice rendered by Phonanium in full within 30 days of invoice date. If full payment is not made by the due date, except to the extent that any part non-payment relates to a bona fides disputed invoice, without prejudice to any rights or remedies otherwise available, Phonanium reserves the right to charge interest on the outstanding balance of all overdue sums at the rate of 3% per annum above the current base rate at Belgian Central Bank or the maximum interest rate permitted by the law of 2 August 2002, whichever is the greater and (b) the right to terminate forthwith the Agreement in accordance with clause 8 below and require Customer to uninstall the Software and confirm by email to that the said Software has been uninstalled.
5.4. All Telecoms, hardware and other charges incurred in using any Software are the responsibility of Customer.
6. Ownership and confidential information
6.1. Customer shall not hold itself out as having any ownership or other rights with respect to the Services and/or the Software, except as specifically granted hereunder.
6.2. Customer shall maintain any information, ideas, know-how or techniques provided by Phonanium (“Confidential Information”) in strict confidence and shall not divulge or provide such Confidential Information to any third party, nor use them or have them used except as expressly permitted herein. Customer will not permit any third party access to, in any manner, the Confidential Information, except as provided in this Agreement. Customer may permit its independent contractors access to the Confidential Information to the extent necessary for such contractor’s provision of services to Customer if such contractor executes a confidentiality agreement with Customer or Phonanium.
7.1. PRAAT, which has been used for drafting parts of the Software, is governed by the GNU license as provided in clause 1. The Software has been developed by Phonanium, and is provided under the GNU license as far as based on PRAAT.
7.2. The Software is provided “as is” without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, fitness for a particular purpose, accuracy, omissions or completeness. Customer agrees that outputs from the Software will not, under any circumstances, be considered professional advice and are not meant to replace the experience and sound professional judgment of professional advisors.
7.3. Phonanium may (but is not obliged to) deliver updates to the Software. In case of updates proposed by Phonanium, Customer shall immediately implement such updates if required by Phonanium. If Customer does not immediately implement such updates, it looses its right to claim remedy as provided under clause 7.5-7.7.
7.4. Some systems/software may not be capable of supporting the Software and Customer acknowledges (a) that it has made appropriate investigations into the necessary systems/software required to support Customer’s use of the Software and (b) that performance of that Software may vary with equipment and telecommunications links with which it is used.
7.5. Once the Software has been downloaded, Customer shall examine the functionality and quality of the Software. If the Customer concludes that the Software does not properly function (“Bugs”) or deviates from the agreed specifications for the Software (“Defects”), the Customer shall notify Phonanium in writing within thirty (30) days of delivery (downloading) of the Defect or within thirty days after the Bug has for the first time occurred, with all available details regarding the alleged Bug or Defect. Failing this, the Customer looses the right to claim any remedy with respect to any Defects or Bugs which could have been discovered within such 30-day period.
7.6. The Customer’s right to claim remedy in accordance with Section 7.5-7.7 hereof is further conditioned on full compliance with each and all of the following conditions: (1) Customer shall have used the Software according to the instructions of Phonanium, (2) the Defect or Bug is not a consequence of Customer’s negligence or fault, (3) the Defect or Bug is not a consequence of modifications to the Software not made by Phonanium; (4) Customer has timely implemented all updates provided by Phonanium and (5) Customer has implemented and maintained a proper and adequate backup and recovery system for the Software and associated files and (6) the Defect shall have occurred within one hundred eighty (180) days from downloading of the Software.
7.7. Remedies in case of Bug or Defect: In case of a Bug or Defect, Phonanium will, subject to clause 7.4 above, free of charge either, at the option of Phonanium: (i) remedy the Defect within a reasonable time frame, (ii) replace the Software, or (iii) refund the price already paid by Customer for such Software.
7.8. Infringement claims.
7.8.1. Customer shall promptly inform Phonanium if Customer becomes aware of: (a) any unauthorized use of the Software; (b) any actual, threatened, or suspected infringement of any intellectual property of Phonanium, and (c) any claim by any third party coming to its notice that the Software infringes the intellectual property or other rights of any other party.
7.8.2. Customer shall at the request and expense of Phonanium do all such things as may be reasonably required to assist Phonanium in taking or resisting proceedings in relation to any infringement or claim referred to in this clause.
In the event a claim of infringement is made against Phonanium or Customer with respect to the Software, Phonanium, may, at its option, in respect of such allegedly infringing Software: (i) substitute equivalent non-infringing software; or (ii) modify the Software so that it no longer infringes but remains functionally equivalent.
If, as a result of such claim, Customer or Phonanium is enjoined from using the Software by a final decision from a court of competent jurisdiction, Phonanium will, at its own choice, take one or both of the actions set forth in (i) and (ii) above or will obtain for Customer at Phonanium’s expense the right to continue to use the Software.
7.8.3. Phonanium’s obligations in accordance with clause 7.8.2. are subject to Customer immediately informing Phonanium in details of the claim made by the third party and contingent upon Phonanium being given control of any such claim, settlement negotiations, suit or proceeding. Customer shall have the right to participate at its own cost in the defence of any such claim or action through legal counsel of its choosing. Customer shall not settle any such claim or action without Phonanium’s prior written consent.
7.8.4 This clause 7.8 contains Phonanium’s entire obligation and the exclusive remedies of Customer with regard to any claimed infringement arising out of or based upon the Software used by Customer.
7.9. Limitation of liability
7.9.1 Phonaniums does not make any warranty that access to and use of the Software will be uninterrupted, secure, complete or error free.
7.9.2 Other than in respect of the warranty given above, and except in case where the prejudice is the consequence of a voluntarily wrong doing of Phonanium, Phonanium shall not be liable in contract, tort, delict or otherwise for any loss of whatsoever kind howsoever arising suffered in connection with the Software, including loss of revenue, business, anticipated savings or profits, loss of goodwill or data or for any indirect or consequential loss whatsoever, howsoever arising suffered in connection with the Software.
7.9.3. Without prejudice to the generality of clauses 7.9.1 and 7.9.2., in no event shall Phonanium be liable to Customer for any claim(s) relating in any way to:
(a) Customer’s inability or failure to (properly) perform its services to any patient or client due to the (failure of) Software or the (failure) of any support services delivered by Phonanium; or (b) any lost profits (whether direct or indirect) or any damages relating in whole or in part to Customers’ use of or inability to use the Software even if Phonanium has been advised of the possibility of such damages; or (c) any liability of Customer to any third party (including Customer’s clients or patients) which might arise in connection with the use of the Software.
7.9.4. Customer shall accept sole responsibility for, and Phonanium shall not be liable for, the use of the Software by Customer, or any User, and Customer shall hold Phonanium harmless and fully indemnified against any claims, costs, damages, loss and liabilities arising out of any such use.
7.9.5. In any event, Phonanium’s liability arising out or in connection with the present Agreement shall be limited to the amount paid by the Customer under this Agreement.
7.9.6. Except for claims relating to non-payment of the Prices or improper use of the Software, no claim regardless of form which in any way arises out of this Agreement may be made, nor action based upon such claim brought, by either party to this Agreement more than three months after the basis for the claim becomes known to the party desiring to assert it.
7.10. All Phonanium’s obligation hereunder, and in particular all obligations relating to support services, concerns the means, not the outcome.
7.11. Force majeure
7.10.1. Phonanium shall not be liable to the Customer for any delay or non-performance of its obligations hereunder in the event that such delay or non-performance is due to an event of force majeure.
7.10.2. Events of force majeure are events beyond the control of Phonanium which occur after the date that these Terms and Conditions have entered into force and which were not foreseeable at that time and whose effects cannot be overcome without unreasonable expense and/or loss of time. Events of force majeure shall include (without being limited to) civil unrest, blockades, strikes, lock-outs and other general labor disputes, acts of government or public authorities, natural disasters, exceptional weather conditions, breakdown or general unavailability of transport facilities, breakdown or malfunctioning of the Internet or telecom facilities of Phonanium, accidents, fire, explosions and general shortages of energy, failures in external network, software defects or inefficiencies (other than with respect to the Software), or other defects in computer equipment.
8. Entering into force and Termination
8.1. The Agreement enters into force on the date on which Customer has paid the invoice sent by Phonanium and has downloaded the Software. The Customer which has paid for the Software shall be entitled to use it as long as it deems fit. The license shall terminate when the Customer uninstall the Software.
8.2. Without prejudice to any rights that have accrued under this Agreement, or any of its rights of remedies, either Party (the “Terminating Party”) shall have the right to terminate this Agreement forthwith upon giving written notice of termination to the other Party (the “Defaulting Party”), upon the occurrence of any of the following events at any time during this Agreement:
a) the Defaulting Party commits a breach of a material obligation set out in this Agreement which is not capable of remedy;
b) the Defaulting Party commits a breach of a material obligation set out in this Agreement which is capable of remedy but has not been remedied within thirty (30) days of the receipt by it of a notice identifying the breach and requiring its remedy, it being understood that the timely payment of sums due under this Agreement constitutes such material obligation;
c) the Defaulting Party takes any action, or any legal proceedings are started or other steps taken by a Third Party, with a view to the winding–up, re-organisation or dissolution of the Defaulting Party or the appointment of an administrator, receiver, administrative receiver or trustee in bankruptcy in relation to the Defaulting Party or all or substantially all of its assets;
8.3. Phonanium can at any time terminate the Agreement on a 90 days written notice if it generally ceases the provision or the support of the Software for any reason whatsoever.
8.4. Upon termination for whatsoever reason, if Customer has pre-paid any Price, Phonanium shall refund the pre-paid price for the period following termination to the end of the normal Term, unless the termination has been notified for Customer’s breach of this Agreement.
8.5. In case of termination of the Agreement for whatever reason, Customer shall immediately stop using the Software and uninstall it, and return to Phonanium all documents received from Phonanium
9. General provisions
- Phonanium may amend these General Terms and Conditions (“Amended Terms”) by giving Customer at least 15 days prior written or online notice. Such Amended Terms shall only apply as from the renewal ,of the Agreement.
- Except otherwise provided herein, all notices and correspondence must be given in writing to Phonanium at: Papestraat 62, 9160 Lokeren, Belgium.
The email address to be used by Customer in its relationship with Phonanium is the following (except as otherwise agreed): email@example.com.
- Phonanium may assign this Agreements and all rights and obligations deriving therefrom to any third party. Customer may not assign or transfer this Agreement or any obligation or right deriving therefrom to any third party without Phonanium’ s prior written consent.
- Should any provision of this Agreement be held to be invalid, or unenforceable by a court, the validity and enforceability of the other provisions will not be affected thereby.
- Failure of any party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
10. Disputes and applicable law
- These General Terms and Conditions shall be governed by and construed according to Belgian law.
- The courts of Brussels, Belgium, shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.