END USER LICENSE AGREEMENT
READ THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “EULA”) CAREFULLY BEFORE USING THE SOFTACUS PROPRIETARY SOFTWARE (THE “SOFTWARE PACKAGE”).
THE SOFTWARE PACKAGE, AS WELL AS ASSOCIATED MEDIA, PRINTED MATERIALS, AND “ONLINE” OR ELECTRONIC DOCUMENTATION ARE PROTECTED BY INTERNATIONAL INTELLECTUAL PROPERTY LAWS AND TREATIES AND IS PROVIDED TO YOU STRICTLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS EULA.
THE SOFTWARE IS LICENSED, NOT SOLD. ALL RIGHTS RESERVED. THIS EULA REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SOFTWARE BETWEEN YOU AND SOFTACUS AG(THE “SOFTACUS”) AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION OR UNDERSTANDING BETWEEN YOU AND SOFTACUS. SOFTACUS RESERVES THE RIGHT TO UPDATE THIS END USER LICENSE AGREEMENT FROM TIME TO TIME, AND YOUR CONTINUED USE OF THE PACKAGE CONSTRUES ACCEPTANCE OF ANY UPDATES. WE SHALL INFORM YOU ABOUT ANY UPDATES OF THIS EULA.
FURTHERMORE, BY OPENING THE SOFTWARE PACKAGE CONTAINING THE SOFTWARE AND/OR BY USING THE SOFTWARE, YOU AND YOUR LEGAL ENTITY (COLLECTIVELY "YOU") ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS EULA. ANY USE OF THE SOFTWARE WILL CONSTITUTE YOUR AGREEMENT TO THIS EULA (OR RATIFICATION OF ANY PREVIOUS CONSENT). IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF ANY SUCH EULA, YOU SHOULD PROMPTLY CONTACT SOFTACUS FOR INSTRUCTIONS ON RETURN OF THE SOFTWARE IN ACCORDANCE WITH SOFTACUS’S RETURN POLICY.
IF YOU DISAGREE WITH THE TERMS DESCRIBED HEREIN DO NOT DOWNLOAD, INSTALL, ACCESS, OR USE THE SOFTWARE PACKAGE.
1. GRANT OF LICENSE FOR REGISTERED USERS. SOFTACUS GRANTS YOU A NON-EXCLUSIVE NON-PERPETUAL ROYALTY-FREE LIMITED LICENSE TO USE THE SOFTWARE PACKAGE WITH WHICH THIS LICENSE IS DISTRIBUTED INCLUDING ANY DOCUMENTATION FILES ACCOMPANYING THE SOFTWARE ("DOCUMENTATION") ON A MULTIPLE SERVERS (IF THE SOFTWARE IS SERVER BASED) AND TO MAKE ONE BACKUP COPY OF THE SOFTWARE, PROVIDED THAT (I) THE SOFTWARE IS INSTALLED ON ONLY ONE SERVER OR PERSONAL COMPUTER; (II) THE SOFTWARE MAY NOT BE MODIFIED; (III) ALL COPYRIGHT NOTICES ARE MAINTAINED ON THE SOFTWARE; AND (IV) YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. THE SOFTWARE IS LICENSED TO YOU AND NOT SOLD TO YOU.
2. OWNERSHIP. YOU HAVE NO OWNERSHIP RIGHTS IN THE SOFTWARE. RATHER, YOU HAVE A LICENSE TO USE THE SOFTWARE PURSUANT TO THE TERMS OF THIS EULA AS LONG AS THIS EULA REMAINS IN FULL FORCE AND EFFECT. OWNERSHIP OF THE SOFTWARE, DOCUMENTATION AND ALL INTELLECTUAL PROPERTY RIGHTS THEREIN SHALL REMAIN AT ALL TIMES WITH SOFTACUS. ANY OTHER USE OF THE SOFTWARE BY ANY INDIVIDUAL, OR LEGAL ENTITY, TO WHICH THIS LICENSE IS NOT GRANTED IS STRICTLY FORBIDDEN AND IS A VIOLATION OF THIS EULA. AFTER DOWNLOADING SOFTWARE PACKAGE YOU SHALL BE RESPONSIBLE FOR ITS VALIDATION AND TESTING.
3. COPYRIGHT. THE SOFTWARE AND DOCUMENTATION CONTAIN MATERIAL THAT IS PROTECTED BY INTERNATIONAL COPYRIGHT LAW AND TRADE SECRET LAW AND BY INTERNATIONAL TREATY PROVISIONS. ALL RIGHTS NOT GRANTED TO YOU HEREIN ARE RESERVED TO SOFTACUS. YOU MAY NOT REMOVE ANY PROPRIETARY NOTICE OF SOFTACUS FROM ANY COPY OF THE SOFTWARE OR DOCUMENTATION.
4. RESTRICTIONS. THIS EULA IS YOUR PROOF OF LICENSE TO EXERCISE THE RIGHTS GRANTED HEREIN AND MUST BE RETAINED BY YOU. YOU MUST PROTECT THE SOFTWARE AND DOCUMENTATION CONSISTENT WITH SOFTACUS RIGHTS, INCLUDING INFORMING PERSONS WHO ARE PERMITTED ACCESS THERETO IN ORDER TO SATISFY YOUR OBLIGATIONS HEREUNDER AND MAINTAIN THE CONFIDENTIALITY OF THE SOFTWARE AND DOCUMENTATION. YOU MAY NOT PUBLISH, DISPLAY, DISCLOSE, RENT, LEASE, MODIFY, LOAN, DISTRIBUTE, ALTER OR CREATE DERIVATIVE WORKS BASED ON THE SOFTWARE OR ANY PART THEREOF. YOU MAY NOT REVERSE ENGINEER, DECOMPILE, TRANSLATE, ADAPT, OR DISASSEMBLE THE SOFTWARE, NOR SHALL YOU ATTEMPT TO CREATE THE SOURCE CODE FROM THE OBJECT CODE FOR THE SOFTWARE.
5. LIMITED WARRANTY. SINCE THE SOFTWARE PACKAGE IS PROVIDED FREE OF CHARGE, NO WARRANTIES IMPLIED. ALL RISKS RELATED TO USE OF SOFTWARE ARE PUT ON YOU. THE SOFTWARE PACKAGE IS PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SOFTACUS DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE. SOFTACUS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. SOFTACUS SHALL PROVIDE BEST EFFORT TO FIX ISSUES BUT SHALL NOT BE OBLIGATED TO DO IT. SOFTACUS IS NOT OBLIGATED TO PROVIDE ANY UPDATES TO THE SOFTWARE. ANY USE OF THE SOFTWARE PACKAGE BY YOU IS AT YOUR OWN RISK. THIS SOFTWARE PACKAGE IS SUPPLIED FREE OF CHARGE AND IS NOT DEVELOPED FOR USE IN THE OPERATION OF ANY BUSINESS, TRANSPORT, AIRCRAFT, SHIP, NUCLEAR FACILITIES, LIFE SUPPORT MACHINES, COMMUNICATION SYSTEMS, OR ANY OTHER EQUIPMENT IN WHICH FAILURE OF THE SOFTWARE PACKAGE COULD LEAD TO BODILY INJURY, DEATH OR PROPERTY DAMAGE. YOU ACCEPT FULL AND UNLIMITED LIABILITY FOR ANY USE OF THE SOFTWARE IN THE CONTRARY WITH THIS PROVISION.
6. LIMITATION OF LIABILITY. IN NO EVENT WILL SOFTACUS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF SOFTACUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. TERMINATION. THIS EULA IS EFFECTIVE UNTIL TERMINATED. THIS EULA SHALL AUTOMATICALLY TERMINATE UPON EXPIRATION OR TERMINATION OF AGREEMENTS ON PURCHASE OF IBM PRODUCTS SUBSCRIPTION AND SUPPORT CONCLUDED WITH SOFTACUS. IN ADDITION, SOFTACUS MAY TERMINATE THIS EULA IF SOFTACUS FINDS THAT YOU HAVE VIOLATED THE TERMS OF THIS EULA. UPON NOTIFICATION OF TERMINATION, YOU AGREE TO DESTROY OR RETURN TO SOFTACUS ALL COPIES OF THE SOFTWARE AND DOCUMENTATION AND, IF REQUESTED BY SOFTACUS, TO CERTIFY IN WRITING THAT ALL KNOWN COPIES HAVE BEEN DESTROYED. ALL PROVISIONS RELATING TO CONFIDENTIALITY, PROPRIETARY RIGHTS, NON-DISCLOSURE, PERSONAL DATA PROCESSING, DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY SHALL SURVIVE THE TERMINATION OF THIS EULA.
8. YOU MAY TRANSFER YOUR RIGHTS UNDER THIS EULA TO YOUR AFFILIATES AND SUBCONTRACTORS. FOR THE PURPOSE OF THIS EULA, AFFILIATES MEANS ANY LEGAL ENTITY WHICH AT THE TIME OF THIS LICENSE GRANTING IS AFFILIATED WITH YOU OR LEGAL ENTITY IN WHICH YOU DIRECTLY OR INDIRECTLY HOLD AN INTEREST AT LEAST 50% OR AT LEAST 50% OF VOTING RIGHTS. IF THIS EULA IS TERMINATED, YOU LOSE RIGHT TO PERFORM SUCH TRANSFER. THE LICENSE TRANSFERRED TO AFFILIATES OR SUBCONTRACTORS SHALL TERMINATE UPON TERMINATION OF THIS END USER LICENSE AGREEMENT.
9. ALL DISPUTES REGARDING THIS EULA SHALL BE SOLVED IN THE COURTS OF SWITZERLAND IN THE CITY OF ZURICH.
10. THIS EULA SHALL BE GOVERNED BY THE LAWS OF THE COUNTRY WHERE YOU WERE PROVIDED THE SOFTWARE PACKAGE, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. IF ANY PROVISION OF THIS AGREEMENT IS HELD TO BE INVALID OR UNENFORCEABLE, THE REMAINING PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT.
11. STATUTE OF LIMITATIONS. NEITHER PARTY WILL BRING LEGAL ACTION, REGARDLESS OF FORM, FOR ANY CLAIM ARISING FROM THIS AGREEMENT MORE THAN AFTER 2 YEARS THE CAUSE OF ACTION ARISE. UPON EXPIRATION OF SUCH TIME LIMIT, ANY SUCH CLAIM AND ALL RESPECTIVE RIGHTS RELATED TO THE CLAIM LAPSE.
12. COUNTRIES UNIQUE PROVISIONS
12.1. AUSTRIA
6. LIMITATION OF LIABILITY
Following is added: “THE FOLLOWING LIMITATIONS DO NOT APPLY TO DAMAGES CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.”
12.2. BELGIUM, FRANCE, ITALY AND LUXEMBOURG
6. LIMITATION OF LIABILITY
Following is added: “UNDER NO CIRCUMSTANCES IS SOFTACUS OR ANY OF ITS CONTRACTORS OR AFFILIATES LIABLE FOR ANY OF THE FOLLOWING EVEN IF INFORMED OF THEIR LIABILITY: (1) LOSS OF, OR DAMAGE TO, DATA; (2) INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; AND/OR 3)LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES.”
12.3. GERMANY
6. LIMITATION OF LIABILITY
Following is added: “IN THE EVENT OF LOSS, DAMAGE, OR FRUSTRATED EXPENDITURES CAUSED BY SLIGHT NEGLIGENCE, SOFTACUS WILL NOT BE LIABLE FOR INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF SOFTACUS WAS INFORMED ABOUT POSSIBILITY OF SUCH DAMAGES.”
