Eltima IBC Inc.
END-USER SITE LICENSE AGREEMENT
THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN THE LICENSEE AND LICENSOR WITH RESPECT TO THE SOFTWARE IDENTIFIED BELOW. BY USING THE SOFTWARE (AS FURTHER DEFINED BELOW), LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THE LICENSOR IS UNWILLING TO GRANT THE LICENSEE ANY RIGHTS TO USE THE SOFTWARE. IN SUCH EVENT, LICENSEE MAY NOT USE THE SOFTWARE, AND LICENSEE SHOULD PROMPTLY DESTROY ALL COPIES OF THE SOFTWARE AND ACCOMPANYING DOCUMENTATION.
PLEASE READ THIS AGREEMENT CAREFULLY. LICENSEE’S USE OF THE SOFTWARE INDICATES THAT LICENSEE HAS READ, ACCEPTED AND UNCONDITIONALLY AGREED TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. LICENSEE MAY NOT USE THE SOFTWARE IF LICENSEE IS A (A) PERSON WHO IS NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH LICENSOR, AND/OR (B) PERSON WHO IS BARRED FROM RECEIVING THE SOFTWARE UNDER THE LAWS OF ANY COUNTRY INCLUDING THE COUNTRY IN WHICH THE LICENSEE IS A RESIDENT OR FROM WHICH THE LICENSEE IS USING THE SOFTWARE. LICENSEE HEREBY ACKNOWLEDGES THAT LICENSEE’S ELECTRONIC ASSENT CONSTITUTES LICENSEE’S AGREEMENT AND INTENT TO (A) BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND (B) HONOR ALL TRANSACTIONS ENTERED INTO.
“Affiliate(s)” means any entity which directly or indirectly controls, is controlled by, or is under common control with the Licensee. “Control” for purposes hereof, means (a) the legal power to direct or cause the direction of the general management and policies of an entity whether directly or indirectly and whether through the ownership of voting securities, by contract, or otherwise, or (b) the beneficial ownership, whether direct or indirect, of fifty percent (50%) or more of the voting securities or other ownership interest or other comparable equity interests of an entity.
“Intellectual Property Right(s)” means all rights in/to intellectual and industrial property, including the following rights protected, created or arising under the laws of the United States of America (USA) and/or any other jurisdiction: (i) all trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, corporate names, trade styles, logos, and other source or business identifiers and general intangibles of a like nature, together with the goodwill associated with any of the foregoing, along with all applications, registrations, renewals, and extensions thereof (the “Trademark(s)”); (ii) all copyrights, design rights, object/source code rights, algorithms and database rights whether or not registered or published, all registrations and recordations thereof, and all applications in connection therewith, along with all reversions, extensions, and renewals thereof; (iii) all trade secrets; (iv) all patents and applications therefor, including all continuations, divisionals, and continuations-in-part thereof and patents issuing thereon, along with all reissues, reexaminations, and extensions thereof, and (v) all other similar proprietary rights which may subsist in any part of the world and all applications and registrations relating to any of the foregoing rights.
“Licensee” means the legal entity (businesses/enterprises/companies) (i) the legal name of which is indicated on the related quotation, (ii) to which Licensor grants the Software License (as defined below) in accordance with the terms and conditions of this Agreement, and (iii) that will Use the Software through its Users (as defined below) in accordance with the terms and conditions of this Agreement and the Software License granted hereunder.
“Licensor” means Eltima IBC Inc., a company the registered office of which is located at No. 515 & 517, A-1 Building, Ajman Free Zone, Ajman, United Arab Emirates.
“Software” means (a) all source and object code, programs, contents of the files (including but not limited to digital images, stock photographs, clip art, sounds or other artistic works), disk(s), CD-ROM(s) or other media that are provided to Licensee or Used by Licensee, which pertain to Licensor’s exclusively owned “Virtual Serial Port Driver ®” ( https://www.eltima.com/products/vspdxp/ ) including but not limited to Software-related explanatory written materials or files (“Documentation”); and (b) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to Licensee by Licensor (collectively “Update(s)”).
System(s)” means Windows OS, GNU/Linux or macOS, or any virtual machine.
“Use” or “Used” or “Using” means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation.
“User(s)” means any individual who (i) is Licensee’s employee or the employee of Licensee’s Affiliate, (ii) is authorized by Licensee or any Licensee’s Affiliate to install, access and Use the Software, and (iii) is bound by enforceable Software licensing terms (entered into by and between Licensee and each User) identical to the terms of this Agreement.
2. SOFTWARE LICENSE GRANT
So long as Licensee complies with the terms of this Agreement, Licensor hereby grants the Licensee a limited, non-exclusive, non-transferable license to Use the Software (“Software License”) for the purposes as described in the Documentation subject to the following licensing terms, conditions and restrictions:
Copies of the Software may be installed and activated, for commercial/business use purposes (i.e. only in connection with Licensee’s business processes and tasks), on all Licensee’s compatible Systems (computers/machines) and on Users’ compatible personal computers (PCs) as specified in the related quotation;
Copies of the Software may be installed by a number of Users as specified in the related quotation, it being understood that one (1) copy of the Software may be installed on one (1) given System (machine/computer) by only one (1) User or for one (1) User (if installation is performed by Licensee) only; once the Software is installed on authorized Systems, Users may activate the Software on their respective Systems, by entering the unique Software License key (activation code) provided/generated by Licensor to Licensee in accordance with Section 3 of this Agreement;
The Software may be Used by only one User per System (machine/computer) on which it was installed and activated;
This License is non-transferable. The Licensee may not transfer the rights to Use the Software to third parties (persons or legal entities) even if the Licensee does not have a need in the licensed Software anymore;
The Licensee may not rent, lease, sublicense, lend or transfer any versions or copies of the Software to third parties (another person or legal entity) even if the Licensee does not have a need in the licensed Software anymore and/or even if the Licensee has not used all the Licenses purchased;
The Licensee may make a backup copy of the Software, provided a backup copy is not installed or used on any system not belonging to the Licensee. The Licensee may not transfer the rights to install or use a backup copy of the Software to third parties (persons or legal entities).
3. SOFTWARE ACTIVATION
3.1 Among other protection methods some portions of Licensor’s Software may require activation.
3.2 Should activation be required, the Licensor shall supply the Licensee with the activation code after the order has been processed. The supplied activation code may be used by Licensee to activate the licensed Software. Certain portions of the Software may not be fully functional without activation by Licensee.
3.3 Access to the Internet on the Licensee’s System is required to activate certain portions of the Software. If there is no access to the Internet available, Licensee may activate the Software manually (offline). In such case, Licensee will need to use a separate System that is online to get a special activation file, which will be made available to Licensee by Licensor.
3.4 The Software, which is licensed hereunder, will be activated automatically once the activation code is entered by Licensee. Any such Software may be occasionally reactivated by the Licensor, in the background, to ensure smooth and uninterrupted Software License compliance check. This will require an Internet connection as well (as stated in section 3.3 above).
3.5 During the activation process, the hardware unique identifier (generated based on the System or computer’s hardware and OS), the licensed software product ID and the build number, together with the activation code, shall be encrypted using Licensor’s proprietary encryption algorithms, exchanged with Licensor’s server over a secure HTTPS channel to verify that the copy of the licensed Software is genuine and to determine whether the number of permitted activations are not exceeded.
3.6 Demonstration versions of the Software will perform and achieve its activation in the background without any Users’ interference (no activation code is needed in such a case). Activation of any demonstration version of the Software shall be required for statistics only and shall not imply any collection of any personal information.
4. LICENSOR’S INTELLECTUAL PROPERTY RIGHTS IN/TO THE SOFTWARE
4.1 Licensee acknowledges and agrees that:
The structure, organization and code of the Software are the valuable trade secrets and confidential information of the Licensor;
The Software, Documentation and Updates are protected by copyright, including without limitation by copyright law and international treaty provisions;
Licensor and its Affiliates/licensors are and shall remain the sole and exclusive owner of all rights, titles, and interests in and to the Software (including any copy of the Software that the Licensee is authorized by the Licensor to make), Documentation and Updates, and all Intellectual Property Rights associated therein, subject only to the rights granted by Licensor to Licensee under the Agreement and Software License;
the Intellectual Property Rights in the Software, Documentation and Updates are licensed, not sold, to Licensee. Licensee does not, has not, and will not acquire any ownership interest in the Software, Documentation and Updates or any related Intellectual Property Rights under this Agreement;
nothing in this Agreement grants any implied rights to Licensee, including by implication, waiver, or estoppel, in any Intellectual Property Rights or other rights, title, or interest in any portion of the Software, Documentation and Updates Services and Documentation; and
Licensee unconditionally and irrevocably assigns to Licensor its entire right, title, and interest in any Intellectual Property Rights that Licensee may have currently or in the future relating to the Software, Documentation and Updates including any derivative works or patent improvement rights to the Software, Updates and/or Documentation however held or acquired.
4.2 Any copies that the Licensee is permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Software, Documentation and/or Updates. The Licensee may not alter, edit, or obscure any such copyright and other proprietary notices that appear on or in the Software, Documentation and/or Updates in any manner.
4.3 The structure, organization, and source/object code of the Software constitute the most valuable Intellectual Property of the Licensor. Therefore, the Licensee shall not to decompile, “unlock,” reverse-engineer, disassemble, or otherwise translate the source and/or object code versions of the Software to human-perceivable form except as permitted by applicable law which cannot be waived by this Agreement. Any attempts to decompile, “unlock,” reverse-engineer, disassemble, translate the source and/or object code versions of the Software, and/or to copy, clone, modify or alter in any way the Software or any related installer program(s) without the Licensor’s specific approval are strictly prohibited. The Licensee is not authorized to use any plug-in or enhancement that permits Licensee to save modifications to a file with the Software.
4.4 All of Licensor’s Trademarks shall be used in accordance with accepted trademark practice, including identification of a trademark owners’ names. Trademarks may only be used to identify printed output produced by the Software and such authorized use of any Trademark does not grant the Licensee any rights of ownership in any such Trademark.
5. SOFTWARE UPDATE(S)
5.1 All minor Updates shall be provided by Licensor free of charge. However, each major Update to the Software shall be provided by Licensor to Licensee in exchange for an additional major Update licensing fee. The Licensee may order any such major Update with a 50% discount. Licensor shall in its sole discretion determine whether any Update is “minor” or “major”.
5.2 In certain cases, the Licensor may provide a “grace period” wherein if the Licensee has subscribed for a Software License within any such grace period, shortly before a new major Update is released by Licensor, then the Licensor will provide the Licensee with the relevant Update, at no charge, regardless of the type of License. All grace periods shall be granted at Licensor’s sole discretion.
5.3 When an Update is made available by the Licensor, the Licensor shall assist the Licensee in the transition to the Update, provided that: (i) the Update and the previous version of the Software are installed on the same System; (ii) the previous version of the Software and/or any copies thereof are not transferred to any other third party or System that does not belong to the Licensee; and (iii) the Licensee acknowledges that any obligation the Licensor may have to support the previous version of the Software may be freely/voluntarily terminated or continued by the Licensor, when any Update is made available.
5.4 The Licensee may continue to Use the previous version of the Software regardless of whether the Licensee received any applicable Update.
6.1 The Licensor warrants that:
6.1.1 The Licensor is the exclusive owner of the Software and the Documentation and/or is in possession of valid and existing licenses that support the terms of this Agreement;
6.1.2 For the twelve (12) month period following the Licensee’s first Use of the Software, the Software will reasonably conform to the specifications and functionality as specified in the Documentation;
6.1.3 To the best of the Licensor’s knowledge, the Software does not infringe upon or violate any Intellectual Property Rights of any third party; and
6.1.4 The Software does not contain any back door, time bomb, drop dead device or another routine intentionally designed by the Licensor to disable a computer program or computer instructions that alter, destroy or inhibit the processing environment.
6.2 EXCEPT FOR THOSE WARRANTIES SPECIFIED UNDER SECTION 6.1 ABOVE, THE SOFTWARE, UPDATES AND DOCUMENTATION ARE BEING DELIVERED TO THE LICENSEE “AS IS” AND THE LICENSOR MAKES NO WARRANTY AS TO THEIR USE OR PERFORMANCE. THE LICENSOR MAKES NO OTHER WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, UPDATES AND DOCUMENTATION INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, SYSTEM INTEGRATION, OR ACCURACY.
6.3 The Licensor does not and cannot warrant the performance or results the Licensee may obtain from using the Software and Updates. The entire risk arising out of use or performance of the Software and Updates remains solely with the Licensee.
6.4 The Licensor gives no warranty, express or implied, that (i) the Software will be of satisfactory quality and suitable for any particular Licensee’s desired purpose or for any particular use under specified conditions, notwithstanding that such Licensee’s desired purpose, use, or conditions may be known to the Licensor; or (ii) the Software will operate error-free or without interruption or that any errors will be corrected.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, IN NO EVENT SHALL LICENSOR, ITS AFFILIATES AND/OR LICENSORS/SUPPLIERS BE LIABLE TO THE LICENSEE OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY (1) INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, (2) LOST PROFITS, LOST BUSINESS, OR LOST OR CORRUPTED DATA, OR (3) COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY, INTELLECTUAL PROPERTY RIGHTS, GOODS OR SERVICES, EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES.
IN NO EVENT SHALL LICENSOR’S AGGREGATE LIABILITY FROM ALL LAWSUITS, CLAIMS, WARRANTY OBLIGATIONS, INDEMNITY OBLIGATIONS, AND ANY OTHER OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY USE OF THE SOFTWARE, UPDATES OR ASSOCIATED DOCUMENTATION PROVIDED HEREUNDER EXCEED THE AMOUNT PAID BY THE LICENSEE TO THE LICENSOR DURING THE TWELVE (12) MONTH PERIOD PRECEEDING THE EVENT GIVING RISE TO ANY SUCH CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THESE LIMITS.
8. GENERAL TERMS
8.1 TERMINATION. Licensee’s right to use the Software continues until termination of this Agreement. Licensee may terminate this Agreement at any time by notifying Licensor in writing. Upon termination, Licensee shall destroy all copies of the Software, Documentation and Updates and cease all use of the Software, Documentation and Updates. Without limiting the generality of the foregoing, Licensor is entitled to disable Licensee’s access to and use of the Software, Documentation and Updates at any time and without observing any notice period if Licensee is in breach of any provision of this Agreement.
8.2 ASSIGNMENT. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, by Licensee to any third party, whether voluntary or by operation of law. Any such attempted assignment shall be void and of no effect without the prior written consent of Licensor. The foregoing shall not prohibit or restrict Licensor from assigning this Agreement in connection with a merger, assignment, sale of assets or similar change of control transaction, or from assigning its rights or delegating its duties under this Agreement to an Affiliate.
8.3 ENTIRE AGREEMENT & AMENDMENT. This Agreement constitutes the sole, entire, complete and final agreement between Licensor and Licensee with respect to the Software License and supersedes (i) all prior and contemporaneous understandings, representations, agreements, and warranties, whether written, oral or implied with respect to its subject matter; and (ii) prevails over any conflicting or additional terms of any order, acknowledgment, or similar communication between the Licensor and the Licensee. It may be amended only by a writing executed by both Licensor and Licensee.
8.4 NON-WAIVER. A party’s failure to exercise any right under this Agreement will not constitute a waiver of (a) any other terms or conditions of this Agreement, or (b) a right at any time thereafter to require exact and strict compliance with the terms of this Agreement.
8.5 SEVERABILITY. In the event any provision/portion of this Agreement is held or declared to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force. It means that if one section of the Agreement is not lawful, the rest of the Agreement is still in force.
8.6 GOVERNING LAW. This Agreement, including all revisions and amendments thereto, is governed by and construed in accordance with the laws of the United Arabic Emirates (UAE), without regard to its conflict or choice of law principles. The United States Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on Contracts for the International Sale of Goods (CISG or also known as the Vienna Convention) shall not apply. If either the Licensor or the Licensee employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees.
8.7 EQUITABLE RELIEF. Licensor and Licensee agree that a breach by Licensee of this Agreement would cause irreparable injury to Licensor for which there may be no adequate remedy at law. Accordingly, Licensor shall have the right to apply to any court of competent jurisdiction for injunctive relief and specific performance, without prejudice to any remedies available to it at law or in equity.
8.8 LEGAL AND EXPORT COMPLIANCE. Licensee shall comply fully with all international and national laws and regulations that apply to the Software and Documentation and to Licensee’s Use thereof, including, but not limited to, the U.S. Export Administration Regulations, end-user, end-use and destination restrictions issued by U.S. and other governments. Licensee represents and warrants that (i) Licensee is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Licensee is not listed on any U.S. Government list of prohibited or restricted parties.
8.9 FORCE MAJEURE. Licensor, its Affiliates and its licensors/suppliers shall not be liable in any respect for failures to perform or delay in performing Licensor’s obligations hereunder due wholly or substantially to the elements, acts of God, labor disputes, acts of terrorism, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, armed hostilities, riots and other unavoidable events beyond the control of Licensor. The time, by which performance by Licensor of its obligations hereunder shall be delivered, shall be extended by a time period equal to the time lost due to such force majeure event.