PLEASE READ THIS DOCUMENT CAREFULLY BEFORE INSTALLING THE DIGIFABSTER SOFTWARE. BY INSTALLING AND USING THE SOFTWARE, YOU AGREE ON BEHALF OF THE ENTITY LICENSING THE SOFTWARE AND WHO IS BECOMING A PARTY TO THE SERVICVES AGREEMENT AND ORDER FORM (“THE COMPANY”) TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND THE COMPANY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT, DO NOT INSTALL OR USE THE ON-PREMISE DIGIFABSTER SOFTWARE.
This is an agreement entered into by and between you (the “Company”) and DigiFabster and its subsidiaries (“DF”). This Agreement states the terms and conditions upon which DF offers to license the DigiFabster on-premise software (the “Software”).
Affiliate means a company which is controlled, under common control or controlling the Company during the period of such control.
End User means an employee, contractor or agent of the Company and its Affiliates authorized by the Company to use the Software as per the terms of this EULA.
1. Grant of Rights
For the term of this Agreement and subject to the Company’s payment of the license fees as defined in the Services Agreement and Order Form, DF grants the Company a non-exclusive, non-transferable, non-sublicensable right to use the Software only for the Company’s own internal use and limited to the terms, conditions and limitations set out in the Order Form.
2. Company’s Responsibility for End Users
The Company shall be responsible for any act or omission of all End Users and for their compliance with all of the terms of this Agreement. Any action or breach by any of the Company’s employees, contractors, agents or Affiliates shall be deemed an action or breach by the Company of this Agreement and the Company hereby indemnifies and holds DF harmless from any and all such breaches of this Agreement.
3. Delivery and Acceptance of the Software
The Software shall be deemed accepted once it has been installed on the Company’s system.
The Company shall not, directly or indirectly: (i) remove or alter any copyright, trademark or proprietary notice in the Software; (ii) transfer, use or export the Software in violation of any laws or regulations of any government or governmental agency; (iii) reverse engineer, decompile or modify any protected code which forms part of the Software; (iv) distribute the Software without entering into a separate distribution agreement with DF; (v) use and or modify the Software to develop a competitive product.
5. Fees and Payment
For using the Software the Company shall pay the fees per Order Form.
6. Legal Terms
DF reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. DF own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold. The Company may not remove the copyright notice from any copy of the Software or any copy of the written materials, if any, accompanying the Software.
TRANSFER OF LICENSE
The Company may not transfer its license in terms of this EULA to any external third parties.
LIMITATIONS ON USING, COPYING, AND MODIFYING THE SOFTWARE
Except to the extent expressly permitted by this Agreement, it may not use, copy or modify the Software. Nor may the Company sub-license any of its rights under this Agreement.
DECOMPILING, DISASSEMBLING, OR REVERSE ENGINEERING
The Company acknowledges that the Software contains trade secrets and other proprietary information of DF and its licensors. Except to the extent expressly permitted by this Agreement or by the laws of the jurisdiction where the Company is located, it may not decompile, disassemble or otherwise reverse engineer the Software, or engage in any other activities to obtain underlying information that is not visible to the user in connection with the normal use of the Software.
In particular, the Company agrees not for any purpose to transmit the Software or display the Software’s object code on any computer screen or to make any hardcopy memory dumps of the Software’s object code. If the Company believes that it requires information related to the interoperability of the Software with other programs, it shall not decompile or disassemble the Software to obtain such information, and it agrees to request such information from DF at the address listed below. Upon receiving such a request, DF shall determine whether the Company requires such information for a legitimate purpose and, if so, DF will provide such information to the Company within a reasonable time and on reasonable conditions.
In any event, the Company will notify DF of any information derived from reverse engineering or such other activities, and the results thereof will constitute the confidential information of DF that may be used only in connection with the Software.
DURATION AND TERMINATION
The license granted to the Company is effective for the period set out in the Order From. The license will also terminate automatically without any notice from DF if the Company fails to comply with any term or condition of this Agreement or the Order Form. Upon termination, DF may also enforce any rights provided by law. The provisions of this Agreement that protect the proprietary rights of DF will continue in force after termination.
Software Maintenance includes DF’s providing to the Company of updates and/or enhancements of the Software made generally available to customers from time to time, and online technical support (and where applicable, phone support) to one Company-designated technical contact for the sole purpose of addressing technical issues relating to the use of the Software (excluding any form of on-site visits by DF personnel or contractors). DF will make commercially reasonable best efforts to remedy defective code and to release these fixes as updates according to DF’s product roadmap.
DISCLAIMER OF ANY WARRANTY
DF does not warrant that the functions contained in the Software will meet the Company’s requirements or that the operation of the Software will be correct, uninterrupted or error-free.
THE SOFTWARE IS PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.
The Company assumes responsibility for the support and fault-finding of any modifications made to the Software, or merger and integration undertaken with or between any other program or code.
The Company assumes full responsibility for the selection of the Software to achieve its intended results, and for the installation, use and results obtained from the Software. The Company also assumes the entire risk as it applies to the quality and performance of the Software.
During any term of this Agreement, if any portion of the Software is held by a court of competent jurisdiction to infringe any third party intellectual property rights and the Company incurs a liability or expense as a result of such holding, then the Company’s sole remedy shall be, and DF will, at its option: (i) obtain the right for the Company to continue to use the Software consistent with this Agreement; (ii) modify the Software so that it is non-infringing; or (iii) replace the infringing component with a non-infringing component, or (iv) refund all money paid in the then-current calendar quarter and all of the Company’s rights and licenses under this Agreement shall automatically terminate.
The Company grants DF the right to include the Company as a customer in promotional material for the Software or for DF.
The Company can deny DF this right by submitting a written request via e-mail to email@example.com requesting to be excluded from such promotional material. Confirmation of such denial (via reply e-mail) must be received prior to purchasing for this to be effective.
During any term of this Agreement, the Company grants to DF a non-transferable, non-exclusive, license to reproduce and display its logos, trademarks, trade names and similar identifying material so that DF may refer to the Company as a user of the Software should DF so desire, such as on the DF website, in press releases and in other marketing materials.
If the Company distributes the Software in violation of this Agreement, it hereby indemnifies, hold harmless and defends DF from and against any and all claims or lawsuits, including attorney’s fees and costs that arise, result from or are connected with the use or distribution of the Software in violation of this Agreement.
LIMITATION OF REMEDIES AND DAMAGES
In no event will DF be liable for any indirect, incidental, special or consequential damages, or for any personal injury or bodily injury (including death) to any persons, or for any lost profits, lost savings, loss of use, lost revenues or lost data arising from or relating to the Software or this Agreement. In no event will DF’s liability or damages to the Company or any other person ever exceed the amount paid by the Company to use the Software, regardless of the form of the claim.
This Agreement is binding on the Company as well as its employees, employers, contractors and agents, and on any successors and assignees. Neither the Software nor any information derived therefrom may be exported except in accordance with the laws of the State of Delaware or other applicable provisions. This Agreement is governed by the laws of the State of Delaware.