Revision 1 Friday, December 1, 2017
END USER LICENSE AGREEMENT (EULA) End User License Agreement (EULA) IMPORTANT: BY INSTALLING, USING, ACCESSING OR OTHERWISE RECEIVING (INCLUDING THROUGH CLOUD SERVICES) THIS SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT DO NOT INSTALL, COPY, USE OR ACCESS THE SOFTWARE.
This END USER LICENSE AGREEMENT (this "Agreement") is made by and between SHOTTY ("The Company"), and you, as either an individual or a single entity ("Licensee"). In consideration of the mutual covenants contained herein and for other good and valuable consideration (the receipt and sufficiency of which is acknowledged by each party hereto) the parties agree as follows:
SECTION 1. GRANT OF LICENSE.
Subject to the limitations of Section 2, The Company hereby grants to Licensee a limited, non-transferable and non-exclusive license to install and use a machine readable, object code version of this software program (the "Software") and accompanying user guide and other documentation (collectively, the "Documentation") solely for Licensee's own internal business purposes (collectively, the "License"); provided, however, Licensee's right to install and use the Software and the Documentation is limited to those rights expressly set out in this Agreement.
SECTION 2. RESTRICTIONS ON USE.
Licensee is authorized to use the Software in machine readable, object code form only, and Licensee shall not:
- assign, sublicense, sell, distribute, transfer, pledge, lease, rent, share or export the Software, the Documentation or Licensee's rights hereunder;
- alter or circumvent the copy protection mechanisms in the Software or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software;
- modify, adapt, translate or create derivative works based on the Software or Documentation; (d) use, or allow the use of, the Software or Documentation on any project other than a project produced by Licensee (an "Authorized Project");
- allow or permit anyone (other than Licensee and Licensee's authorized employees to the extent they are working on an Authorized Project) to use or have access to the Software or Documentation;
- copy, use or install the Software or Documentation other than as expressly provided for herein; or
- take any action, or fail to take action, that could adversely affect the trademarks, service marks, patents, trade secrets, copyrights or other intellectual property rights of The Company or any third party with intellectual property rights in the Software (each, a "Third Party Licensor").
Furthermore, for purposes of this Section 2, the term "Software" shall include any derivatives of the Software.
Licensee shall install, use, access or otherwise receive only a single copy of the Software on one server. Please note that in order to guard against unlicensed use of the Software a licence key is required to access and enable the Software.
If the Software is provided or accessed free of charge for demonstration, testing or evaluation purposes, then Licensee agree, subject to the terms and conditions of this Agreement, (a) to use the Software solely for such purposes and that (b) such use shall only be valid for a period of twelve months after which Licensee will be given an opportunity for extension ("Free License"). The Company reserves the right to revoke a Free License at any time and The Company will not provide any technical support or any warranties for the Free Licensees.
SECTION 3. SOURCE CODE.
Notwithstanding that Section 1 defines "Software" as an object code version and that Section 2 provides that Licensee may use the Software in object code form only, The Company may also agree to license to Licensee (including by way of upgrades, updates or enhancements) source code or elements of the source code of the Software the intellectual property rights in which belong either to The Company or to a Third Party Licensor ("Source Code"). If The Company does so Licensee shall be licensed to use the Source Code as Software on the terms of this Agreement and: (a) notwithstanding Section 2 (c) Licensee may use the Source Code at its own risk in any reasonable way for the limited purpose of enhancing its use of the Software solely for its own internal business purposes and in all respects in accordance with this Agreement; (b) Licensee shall in respect of the Source Code comply strictly with all other restrictions applying to its use of the Software under this Agreement as well as any other restriction or instruction that is communicated to it by The Company at any time during this Agreement (whether imposed or requested by The Company or by any Third Party Licensor); (c) notwithstanding any other term of this Agreement The Company gives no warranty whatsoever in respect of the Source Code, which is licensed on an "as is" basis, or in respect of any modification of the Source Code made by Licensee ("Modification"); (d) notwithstanding any other term of this Agreement The Company shall have no obligation to provide support, maintenance, upgrades or updates of or in respect of the Source Code or of any Modification; and (e) Licensee shall indemnify The Company against all liabilities and expenses (including reasonable legal costs) incurred by The Company in relation to any claim asserting that any Modification infringes the intellectual property rights of any third party.
SECTION 4. OWNERSHIP.
Licensee acknowledges that the Software (including, for the avoidance of doubt, any Source Code that is licensed to Licensee) and Documentation and all intellectual property rights and other proprietary rights relating thereto are and shall remain the sole property of The Company and the Third Party Licensors. Licensee shall not remove, or allow the removal of, any copyright or other proprietary rights notice included in and on the Software or Documentation or take any other action that could adversely affect the property rights of The Company or any Third Party Licensor. To the extent that Licensee is authorized to make copies of the Software or Documentation under this Agreement, Licensee shall reproduce in and on all such copies any copyright and/or other proprietary rights notices provided in and on the materials supplied by The Company hereunder. Nothing in this Agreement shall be deemed to give Licensee any rights in the trademarks, service marks, patents, trade secrets, confidential information, copyrights or other intellectual property rights of The Company or any Third Party Licensor, and Licensee shall be strictly prohibited from using the name, trademarks or service marks of The Company or any Third Party Licensor in Licensee's promotion or publicity without The Company's express written approval.
SECTION 5. LICENSE FEE.
Licensee understands that the benefits granted to Licensee hereunder are contingent upon Licensee's payment in full of the license fee payable in connection herewith (the "License Fee"). If Licensee fails to make any payment due to The Company in full on the due date then, without prejudice to any other right or remedy, The Company may (i) suspend performance under this Agreement until all sums due have been paid in full and (ii) charge Licensee penalty interest on any unpaid amount at a rate equivalent to the reference rate of interest from the due date until the actual date of receipt of such amount by The Company.
SECTION 6. UPGRADES/ENHANCEMENTS.
The Company may but is not obliged to provide Licensee with updates, bug fixes and enhancements to the Software, which will need to be installed or are automatically downloaded and installed on Licensee's computer or device. If Licensee receives any such updates, bug fixes or enhancements that The Company does not automatically install, the Licensee will install or download them as required.
SECTION 7. TAXES AND DUTIES.
Licensee agrees to pay, and indemnify The Company from claims for, any local, state or national tax (exclusive of taxes based on net income), duty, tariff or other impost related to or arising from the transaction contemplated by this Agreement.
SECTION 8. LIMITED WARRANTY.
The Company warrants that, to the best of The Company's knowledge, Licensee's use of the Software in accordance with the Documentation will not, in and of itself, infringe any third party's copyright, patent or other intellectual property rights. Except as warranted, the Software and Documentation is being provided "as is." THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND The Company DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER The Company KNOWS OR HAS REASON TO KNOW OF LICENSEE'S PARTICULAR NEEDS. The Company does not warrant that the Software or Documentation will meet Licensee's requirements or that Licensee's use of the Software will be uninterrupted or error free. No employee or agent of The Company is authorized to modify this limited warranty, nor to make additional warranties. No action for any breach of the above limited warranty may be commenced more than one (1) year after Licensee's initial receipt of the Software. To the extent any implied warranties may not be disclaimed under applicable law, then ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS AFTER DELIVERY OF THE SOFTWARE TO LICENSEE.
SECTION 9. LIMITED REMEDY.
The exclusive remedy available to the Licensee in the event of a breach of the foregoing limited warranty, TO THE EXCLUSION OF ALL OTHER REMEDIES, is for Licensee to destroy all copies of the Software, send The Company a written certification of such destruction and, upon The Company's receipt of such certification, The Company will make a replacement copy of the Software available to Licensee.
SECTION 10. INDEMNIFICATION.
Licensee agrees to indemnify, hold harmless and defend The Company, the Third Party Licensors and The Company's and each Third Party Licensor's respective affiliates, officers, directors, shareholders, employees, authorized resellers, agents and other representatives (collectively, the "Released Parties") from all claims, defense costs (including, but not limited to, attorneys' fees), judgments, settlements and other expenses arising from or connected with the operation of Licensee's business or Licensee's possession or use of the Software or Documentation.
SECTION 11. LIMITED LIABILITY.
In no event shall the Released Parties' cumulative liability to Licensee or any other party for any loss or damages resulting from any claims, demands or actions arising out of or relating to this Agreement (or the Software or Documentation contemplated herein) exceed the License Fee paid to The Company or its authorized reseller or distributor for use of the Software. Furthermore, IN NO EVENT SHALL THE RELEASED PARTIES BE LIABLE TO LICENSEE UNDER ANY THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS OR LOSS OF PROFITS) OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF WHETHER THE RELEASED PARTIES KNOW OR HAVE REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. No action arising out of or related to this Agreement, regardless of form, may be brought by Licensee more than one (1) year after Licensee's initial receipt of the Software; provided, however, to the extent such one (1) year limit may not be valid under applicable law, then such period shall be limited to the shortest period allowed by law.
SECTION 12. TERM; TERMINATION.
This Agreement is effective upon Licensee's acceptance of the terms hereof and Licensee's payment of the License Fee, and the Agreement will remain in effect until termination. If Licensee breaches this Agreement or Licensee becomes bankrupt or otherwise is insolvent or goes into compulsory liquidation, The Company may terminate the License granted hereunder by notice to Licensee. In the event the License is terminated, Licensee will either return to The Company all copies of the Software and Documentation in Licensee's possession or, if The Company directs in writing, destroy all such copies. In the later case, if requested by The Company, Licensee shall provide The Company with a certificate signed by an officer of Licensee confirming that the foregoing destruction has been completed.
SECTION 13. CONFIDENTIALITY.
Licensee agrees that the Software (including, for the avoidance of doubt, any Source Code that is licensed to Licensee) and Documentation are proprietary and confidential information of The Company or, as the case may be, the Third Party Licensors, and that all such information and any communications relating thereto (collectively, "Confidential Information") are confidential and a fundamental and important trade secret of The Company or the Third Party Licensors. Licensee shall disclose Confidential Information only to Licensee's employees who are working on an Authorized Project and have a "need-to-know" of such Confidential Information, and shall advise any recipients of Confidential Information that it is to be used only as authorized in this Agreement. Licensee shall not disclose Confidential Information or otherwise make any Confidential Information available to any other of the Licensee's employees or to any third parties without the express written consent of The Company. Licensee agrees to segregate, to the extent it can be reasonably done, the Confidential Information from the confidential information and materials of others in order to prevent commingling. Licensee shall take reasonable security measures, which such measures shall be at least as great as the measures Licensee uses to keep Licensee's own confidential information secure (but in any case using no less than a reasonable degree of care), to hold the Software, Documentation and any other Confidential Information in strict confidence and safe custody. The Company may request, in which case Licensee agrees to comply with, certain reasonable security measures as part of the use of the Software and Documentation. Licensee acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information, and that The Company shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
SECTION 14. NON-SOLICITATION.
Licensee agrees not to solicit for employment or retention any of The Company's current or future employees who were or are involved in the development and/or creation of the Software.
SECTION 15. SURVIVAL.
Sections 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 shall survive any termination or expiration of this Agreement.
SECTION 16. COMPLIANCE, IMPORT/EXPORT CONTROLS.
To the extent that any Software made available hereunder is subject to restrictions upon export and/or reexport from the United States, Licensee agrees to comply with, and not act or fail to act in any way that would violate, the applicable international, national, state, regional and local laws and regulations, including, without limitation, the United States Foreign Corrupt Practices Act, the Export Administration Act and the Export Administration Regulations, as amended or otherwise modified from time to time, and neither The Company nor Licensee shall be required under this Agreement to act or fail to act in any way which it believes in good faith will violate any such laws or regulations. Furthermore, Licensee shall comply with any other applicable laws and regulations relating to the use of the Software.
SECTION 17. MISCELLANEOUS.
This Agreement is the exclusive agreement between the parties concerning the subject matter hereof and supersedes any and all prior oral or written agreements, negotiations, or other dealings between the parties concerning such subject. This Agreement may be modified by The Company at any time without prior notice. If any action is brought by either party to this Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorneys' fees and expenses of litigation. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms of this Agreement. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If The Company is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of The Company, including fire, casualty, accident, terrorism, strike, lockout or riot, then The Company's performance will be excused (force majeure). By using the Software Licensee consent to The Company's and/or Third Party Licensors processing, storage and transfer of its data and/or personal information, including to a server in a country outside Licensee's domicile. The Company and Licensee intend that each Third Party Licensor may enforce against Licensee under applicable law any obligation owed by Licensee to The Company under this Agreement that is capable of application to any proprietary or other right of that Third Party Licensor in or in relation to the Software.