END USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT REGULATES THE TERMS AND CONDITIONS OF THE SOFTWARE FOR WHICH LICENSOR GRANTS YOU NON-EXCLUSIVE LICENSE. BY DOWNLOADING THE SOFTWARE TO YOUR COMPUTER OR USING IT; YOU REPRESENT THAT YOU HAVE READ THIS AGREEMENT, UNDERSTOOD THE CONTENT AND ACCEPTED THE PROVISIONS HEREUNDER. THIS AGREEMENT SHALL BE EFFECTIVE UPON DOWNLOADING AND/OR USING THE SOFTWARE. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD OR USE THE SOFTWARE.
1.1. Licensor: shall refer to NUBIGON Inc., which owns the intellectual and industrial property rights of the Software and is located at 11801 Domain Boulevard, Suite 300, Austin, TX 78758 USA.
1.2. Reseller: shall refer to the company authorized to resell the Software.
1.3. End User: shall refer to the real or legal person purchasing the license to use the Software.
1.4. Software: shall refer to NUBIGON, a standard Computer Program in human-readable or machine-readable format, which is developed by or for Licensor and whose property and financial rights/copyright rest with Licensor.
1.5. Order Form: shall refer to the Software Use License sales agreement executed between Licensor or Reseller and End User.
1.6. Product Registration Form: shall refer to the form where the End User is asked to provide information necessary for license verification during the Software installation.
1.7. Software Use License: shall refer to the non-exclusive license subject to the terms and conditions hereunder, for downloading, running, using the Software.
1.8. Annual Maintenance Agreement: shall refer to the agreement executed between Licensor or Reseller and End User who has a perpetual Software Use License to maintain End User’s rights with regards to Version Change and Support.
1.9. Documentation: shall refer to any printed or electronic document accompanying the Software provided by Licensor.
1.10. Third Party: shall refer to all local and foreign persons, other than parties to this Agreement, with legal capacity including real persons, legal persons, corporations, foundations, associations and public corporate entities.
1.11. Third-Party Software: shall refer to software owned by Third Parties including but not limited to open source software embedded or integrated into the Software and/or provided and/or processed with the Software.
1.12. Territory: shall refer to the territory where End User is granted the Use License for the Software. Unless stated otherwise, Territory is the whole world with the exception of countries embargoed by the United States.
- SUBJECT OF THE AGREEMENT
This Agreement sets forth the scope of a non-exclusive “Software Use License” granted to End User for the Software.
- LICENSE TERMS
3.1. Use Rights and Limitations: Within the scope of rights and limitations set forth hereunder, End User has a right to install the Software on a server/hardware found at the address stated by End User and within Territory (“Designated Hardware”). If End User wants to install the Software at a location outside Designated Hardware or to change Designated Hardware, End User shall notify the Licensor of the new address in writing, prior to re-installation of the Software.
End User shall have the right (i) to install the Software at a Designated Hardware with appropriate configuration and (ii) to use it for its internal business needs by making it available to the number of licensed users according to terms and conditions of this Agreement. The “right to use” shall enable End User to download, view and run the Software. Any other intellectual and industrial property rights, outside the scope of this non-exclusive and nontransferable limited license, shall rest with Licensor.
3.2. Prerequisites: (i) Minimum technical hardware requirements for installation of the Software; (ii) prerequisites for the operation of a module or function within the Software and (iii) if any, prerequisites for enabling the Software to run with Third-Party Software shall be announced on Licensor’s website and/or Documentation. End User shall be responsible for meeting such requirements. In case of failure to meet the prerequisites or technical requirements, End User shall be solely liable for consequences of such failure.
3.3. Delivery: The Software shall be downloaded via remote access to the access center notified by Licensor and shall be deemed delivered when made ready for download. End User does not have the right to demand delivery in tangible format.
3.4. Scope of License: Software Use License shall be subject to the terms and conditions of this Agreement. Unless otherwise stated by Licensor, obtaining additional licenses for capacity increase, such as increasing number of licensed users or operators, shall be me made via additional Order Forms subject to terms and conditions of this Agreement.
In case of any unlicensed use, Licensor has the right to claim corresponding retrospective license fees for unlicensed use, based on the then-current price list on the date of detection of unlicensed use. Licensor’s other rights and remedies relating to unlicensed use shall be reserved.
3.5. Use in the Network: End User has the right to install and use the Software for the Term in a network provided that the number of users specified in the Order Form is not exceeded and that the Software is not downloaded to more than one fileserver. In order to download the Software to more than one server or make it available for use to more than one user, a new software pack or an additional user license should be purchased.
3.6. Version Change: At Licensor’s sole discretion; Licensor may upgrade the Software within the timing and scope preferred by Licensor and release new editions or versions. Licensor does not undertake that release of the new edition and new version programs will be announced to End User or that any data entered through previous edition/versions will be compatible with new versions. However, Licensor may provide special software tools for new versions, enabling transfer of data from the previous version to the new version. Whether such tools will be provided in return for a fee or free of charge shall be determined by Licensor during the transition.
End User shall have the right to make use of the use license within the Term. End User with a fixed-term Software Use License shall have the right to use new versions and editions of the Software within the Term of the license without paying an additional fee. End User with a perpetual Software Use License and an active Annual Maintenance Agreement, shall have the right to use new versions and editions of the Software within the Term of the Annual Maintenance Agreement. End User shall be responsible for downloading and/or obtaining updates, new versions and/or editions of the Software via remote access and by technical means set forth by the Licensor.
In the event that the licensed Software requires other software to operate, End User shall be responsible for obtaining such software and for ensuring edition-version compatibility.
New editions or versions of the Software may be released due to legislative or technical requirements. Obtaining such editions or versions in return for corresponding license fees shall be End User’s responsibility.
3.7. Software Copyright: All title to and copyright/intellectual property rights of the Software and Documentation belong to Licensor and are the exclusive property of the Licensor. In the case of illegal copying or any action outside the scope of this License, such actions may be subject to imprisonment and substantial administrative fines. End User shall not disassemble, copy, reverse engineer, decompile the source code or make use of it in any manner without prior written consent of Licensor even if it is for purpose of maintaining compatibility with other software. End User shall not make the Software available to Third Parties. End User does not have the right to make derivatives of or modify the Software or Third-Party Software. In the event the Software is modified in violation of this article; all rights, including the intellectual property rights of the modified Software, shall belong to Licensor.
It is the End User’s liability to obtain valid licenses for databases, operating systems, networks and any such Third-Party Software on which the Software operates.
3.8. Support: The Licensor, or if purchased through a Reseller, then the Reseller will provide email support to the End User for the duration of the fixed-term Software Use License. End Users with a perpetual Software Use License will receive support from the Licensor, or if purchased through a Reseller, then from the Reseller for the duration of their Annual Maintenance Agreement.
3.9. Audit: Licensor has the right to carry out an investigation at End User’s premises or demand that the relevant audit module is run through the Software for purpose of checking the proper use of Software. Licensor may carry out the license audit himself or have such audit carried out through Third Parties authorized by Licensor. Licensor shall give End User prior notice of such audit in a timely manner and End User shall cooperate in the conduct of audits and provide Licensor with the required information. In the event it is determined during the audit that End User has exceeded the license scope, End User shall purchase additional user or module licenses for the overuse based on the then-current price list. Licensor reserves all rights at law with respect to unlicensed use in excess of valid license scope. End User agrees and acknowledges that the Software may send data to Licensor during activation, verification or use of internet-based services and certain downloads may be required for the Software to function properly.
4.1. Licensor takes utmost care to ensure substantial compatibility of the Software with its Documentation. Licensor does not claim or undertake that the Software is error free, flawless, and perfect and that it will meet the specific requirements and/or expectations of End User. The Software should be accepted as is by End User.
Licensor does not give any express or implied warranty regarding, including but not limited to, the performance, merchantability, fitness for a particular purpose and non- infringement.
4.2. The Software may contain information and parameters from Third-Party websites. Licensor does not undertake or guarantee the accuracy and safety of such information and parameters under any circumstances. The accuracy of such third-party content and any data, report and such information should be verified by End User.
4.3. License and warranty conditions of Third-Party Software included in the Software are subject to original license agreements of such software. Licensor does not give any express or implied warranty regarding, including but not limited to, the performance, merchantability, fitness for a particular purpose, non-infringement, the reliability of any Third-Party Software. End User accepts and undertakes to comply with the license and warranty conditions of such Third-Party Software. License and, if any, warranty conditions of such Third-Party Software are set forth on the websites of relevant companies and/or in the files containing Third Party software and/or installation files accompanying Licensor Software provided to End User. End User may not use any Third-Party Software, for which a use license is granted hereunder, independently of Licensor Software and/or separately. End User may not duplicate, modify, process or decompile all or any part of Third-Party Software provided within the scope of this Agreement.
5.1. Licensor shall have no legal liability in following cases; (i) installation, downloading of the Software and transition to another edition or version; (ii) Back-up, restoring such back-up and/or any error and loss in the data in spite of carrying out such processes; (iii) Product use trainings, supports and on-site support services; (iv) Form and report designs; (v) Misuse of the Software contrary to Documentation or legislation; (vi) Hardware, operating system and network designs, failures and connection errors; (vii) Database software and Third-Party Software; (viii) Failures due to voltage fluctuation and power outage, virus infection and other environmental factors; (ix) Consequences of all User errors including information, data and software loss; (x) any kind of data loss in End User’s system during use of Software or its integration with other software and failure to take necessary measures.
5.2. End User shall not (i) loan, lease or rent the Software or the license activation key required for Software either for a fee or free of charge, make available, sublicense, resell the foregoing to any third party; (ii) assign this Agreement or any of the rights granted hereunder to Third Parties; (iii) exceed the number of users set forth in the License, create user copies; (iv) use the Software in a manner contrary to law, outside the scope of its purpose, or authorize any third party to perform the foregoing or take part in such action. End User shall be responsible for regular back-up of information and data resulting from the use of the Software; for taking and monitoring the necessary safety and security measures. End User shall be responsible for the accuracy, safety, storage of any username, password and such information required to download or use the Software and nondisclosure of the foregoing to third parties. End User shall be liable for any errors in such data and/or any unauthorized access to the Software or other locations by means of the Software.
5.3. End User must have the legal capacity to agree to the Agreement; cannot be located in a country embargoed by the United States and cannot be on the U.S. Treasury Department’s list of Specially Designated Nationals. End User shall comply with all applicable laws and regulations in connection with the use of the Software, and in accordance with the terms and conditions specified in the Agreement. End User shall not make the Software available or export to countries or institutions where the use of the Software is prohibited by such legislation. End User shall fulfill the obligations under Third-Party Software agreements regarding the use and export of such Third-Party Software. End User accepts and undertakes to indemnify and hold harmless Licensor for any damage as a result of actions in breach of this article hereunder and for damage resulting from End User’s breach of any state or federal law or regulation including but not limited to the Digital Millennium Copyright Act.
5.4. Except for damages arising from gross negligence, Licensor’s liability with regards to any damages, losses and/or claims (including negligence, misleading statement, breach of agreement or tort claims) shall be limited to the fee paid to Licensor for the Software Use License. Licensor shall have no liability for financial results, indirect or consequential damages, data loss, profit loss, malfunction, or special damages.
- TERM AND TERMINATION
6.1. Term: Software Use License granted under this Agreement shall be effective upon downloading and/or using the Software. The expiration date depends on whether the Software Use License is fixed term or perpetual which is laid out in the Order Form.
6.2. Fixed-term Software Use License shall expire at the end of the duration set forth in the Order Form. In order to be able to continue using the Software, End User shall purchase a new fixed-term Software Use License.
6.3. Perpetual Software Use License shall not expire for as long as the End User complies with all the terms and conditions of this Agreement.
6.4. In the event a fixed-term Software Use License expires or is terminated for any reason, End User’s fixed-term Software Use License right for the Software and all related rights shall automatically expire. End User represents and undertakes that End User shall delete the Software from all computers and/or storage under the possession, or control of End User and shall not use or attempt to use the Software in any way upon expiration or termination of the Agreement.
6.5. In the event a perpetual Software Use License is terminated for any reason, End User’s perpetual Software Use License right for the Software and all related rights shall be automatically terminated. End User represents and undertakes that End User shall delete the Software from all computers and/or storage under the possession, or control of End User and shall not use or attempt to use the Software in any way upon expiration or termination of the Agreement.
6.6. In the event this fixed-term Software Use License expires or is terminated for any reason, Licensor assumes no liability or warranty with regards to accessing End User data in the Software or transferring such data. Within maximum six (6) months following expiration or termination of the Agreement, End User may purchase services from Licensor for accessing or transferring such End User data within the scope to be determined by Licensor and in return for a remuneration.
6.7. In the event a perpetual Software Use License is terminated for any reason, Licensor assumes no liability or warranty with regards to accessing End User data in the Software or transferring such data. Within maximum six (6) months following termination of the Agreement, End User may purchase services from Licensor for accessing or transferring such End User data within the scope to be determined by Licensor and in return for a remuneration.
6.8. A perpetual Software Use License includes annual maintenance for the first year of the Term. Starting with the second year, End User shall execute an Annual Maintenance Agreement with the Licensor, or the Reseller (if the perpetual Software Use License has been obtained from a Reseller) to maintain rights associated with Version Change and Support.
6.9. An End User with a perpetual Software Use License but without an active annual maintenance can execute an Annual Maintenance Agreement at any time. However, this agreement needs to retroactively cover the entire period since the end date of the last annual maintenance period.
6.10. Additional services and/or additional periods set forth hereunder and/or provided to End User by Licensor shall, under no circumstances, be interpreted as the renewal of this Agreement and/or extension of the term of the use license.
7.1. In case of any action in breach of this Agreement, Licensor shall have the right to suspend the Agreement, suspend the service, terminate for good cause or take legal action at its own discretion.
7.2. Use of Data: For purposes of user security, performance of its own obligations and certain statistical evaluations; Licensor has the right to record, save, process, use for an indefinite period of time the End User information such as trade name, name, surname, telephone number, address, tax or identity number, e-mail address; and organize the foregoing in a database and transfer such data to its affiliates in accordance with applicable legislation. End User hereby consents to Licensor recording, processing and using such information as set forth hereunder.
7.3. Force Majeure: Licensor shall not be liable for any damage or loss occurring as a result of any failure or delay in performance of any of its obligations hereunder due to internet and infrastructure failures beyond its control; failures, delays or errors of service providers or any event of force majeure stipulated by law. In case of any force majeure event which directly affects Licensor’s obligations hereunder, Licensor shall have the right to terminate this Agreement unilaterally and without compensation.
7.4. Conclusive Evidence Agreement: In case of any disputes, records, reports, documents and computer records kept by Licensor shall be deemed as conclusive evidence.
7.5. Severability: No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of this EULA shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this EULA shall otherwise remain in full force and effect and enforceable.
7.6. Assignment: End User may not assign or transfer any or all of the rights and obligations hereunder to Third Parties without the prior written consent of Licensor. Any attempt for such assignment shall be void for Licensor. Licensor reserves the right to assign the rights and obligations hereunder to its shareholders or affiliates.
7.7. Governing Law and Jurisdiction: This Agreement and any disputes arising out of or relating to this Agreement shall be governed by and construed under the laws of the State of Texas. Parties acknowledge and submit to the sole and exclusive jurisdiction of courts of the State of Texas for disputes and claims arising from this Agreement.
7.8. Notices to End User: All notices and notifications relating to this Agreement shall be sent to End User’s electronic mail address provided by the End User in the Order Form. End User cannot claim that any notification sent to such address has been received by unauthorized parties. Parties agree that any notification sent to End User’s electronic mail address shall be deemed served even if such notification is returned.
7.9. Notices to Licensor: All notices to the Licensor under this Agreement are to be provided at the following electronic mail address: firstname.lastname@example.org or 11801 Domain Boulevard, Suite 300, Austin, TX 78758, USA
7.10. Definitions and statements hereunder shall be interpreted based on the license guidelines announced on Licensor’s website and the laws of the State of Texas.
For additional information regarding this EULA, please contact:
Attn: Bert Azizoglu