2. GRANT OF LICENSE
Upon Licensee’s acceptance of this EUTU, DEISER grants the Licensee the non-exclusive right to use the Software subject to the following:
2.1 Authorised Users
The licenses granted are subject to the condition that the Licensee must ensure the maximum number of Authorised Users accessing and using the Software concurrently is equal to the number of User Licences for which the necessary Fees have been paid to the Reseller or DEISER. The Licensee may purchase additional User Licenses at any time on payment of the appropriate Fees to the Reseller or DEISER.
The Licensee is permitted to copy the Software for data protection, archiving and backup purposes only and for no other purpose. However, only the strictly necessary number of backup copies may be made.[GMJ1]
2.3 Installation and Use
DEISER may in its sole discretion provide evaluation copies of the Software for customers to assess the Software, which may not have full functionality. If the Software is only provided for evaluation purposes the rights of the Licensee are limited to this evaluation license which permits the Licensee to download[GMJ2] , install, use and operate the Software for a limited period (“Evaluation Period”) and be accessed by a limited number of temporary users only, as determined by DEISER (“Evaluation Licence”). On the expiry of the Evaluation Period the Software will cease to function and the Licensee must remove and delete all copies of the Software in its possession.
General License Terms
Each license granted by DEISER under this EUTU is unless otherwise specified in this EUTU or agreed by DEISER in writing; worldwide, non-exclusive and non-transferable.
Subject to the terms of this EUTU and unless terminated earlier in accordance with this EUTU, the term granted hereunder shall be: one calendar year (365 days) from the date of Purchase for a Paid License, except that an Evaluation License will operate for the Evaluation Period only.[GMJ3]
2.6 Permitted Computers
Except as otherwise agreed in writing by DEISER, the Licensee must only install the Software and make the Software available for use on hardware systems owned, leased or controlled by the Licensee.
2.7 Responsibility for Non-controlled systems[GMJ4]
If DEISER permits the Licensee to install the Software or make the Software available for use on hardware systems not owned, leased or controlled by the Licensee (“Uncontrolled Systems”), the Licensee will ensure the terms of this EUTU are complied with by users of such Uncontrolled Systems and the Licensee indemnifies DEISER for all costs, damages and loss DEISER suffers arising from such installation or use of the Software on Uncontrolled Systems.
The Licensee must pay all Fees by their due date notified to Licensee and in the manner directed at the time of Purchase of the Software. Failure to pay Fees by the due date will result in the immediate termination of the licenses granted under this EUTU.
4. EMBEDDED SOFTWARE
The Licensee acknowledges the Software contains Embedded Software and that in addition to the obligations of this EUTU, additional obligations may apply in relation to any use of Embedded Software by the Licensee which is not in accordance with the use of the Software as permitted under the terms of this EUTU. In such circumstances the Licensee must consult the relevant third party to acquire any necessary licenses and consents in relation to its use of any Embedded Software.
While the Licensee is permitted to conduct performance and comparison “benchmarking” in relation to the Software as a whole against other software, the Licensee must not conduct any “benchmarking” in relation to the Software or any part thereof.
5. RESERVATION OF RIGHTS AND OWNERSHIP
DEISER reserves all rights not expressly granted to the Licensee in this EUTU. The Software and all copies thereof are protected by copyright and other intellectual property laws and treaties. DEISER or its relevant third parties own the title, copyright, and all other intellectual property rights in the Software and all subsequent copies of the Software. The Software is licensed, not sold and the Licensee does not acquire any rights of ownership in the Software hereunder.
6. SUPPORT AND MAINTENANCE
6.1 Additional Software / Services
This EUTU applies to updates, supplements, add-on components, or Internet-based services components, of the Software (“Supplementary Software”) that DEISER may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software, unless DEISER provides other terms along with any Supplementary Software. DEISER reserves the right to discontinue any Internet-based services provided to the Licensee or made available to the Licensee through the use of the Software.[GMJ5]
6.2 Support and Upgrades
Should any support services be provided by DEISER to the Licensee, then Licensee may request information about such services and such services may be subject to the payment of additional Fees.
7. LICENSEE OBLIGATIONS
7.1 Positive Obligations
Licensee must at all times: (a) ensure that only an Authorised User uses the Software and only in accordance with the terms and conditions of this EUTU, (b) ensure that the Software is not used for rental, timesharing, subscription service, hosting or outsourcing.
7.2 Negative Obligations
Licensee must not, whether through negligent act or omission, or without the prior written consent of DEISER, which may be withheld at DEISER’s discretion and include certain conditions: (a) decompile; reverse engineer; disassemble; modify; adapt; create derivative works from; or otherwise attempt to derive; any part or whole of the Software; (b) directly or indirectly access or use any Embedded Software independently of the rest of the Software; (c) sell; sublicense; redistribute; reproduce; transmit; circulate; disseminate; translate or reduce to or from any electronic medium or machine readable form the Software or any data/information not owned by the Licensee which is provided to Licensee through the Software to a person who is not an Authorised User; (d) vary or amend the Software (including any Embedded Software; Protected Code or Accessible Code); (e) except as otherwise permitted in this EUTU, publish; promote; broadcast; circulate or refer publicly to the DEISER name; trade name; trademark; service mark or logo; (f) commit any act or omission the likely result of which is that DEISER’s or any of its third party suppliers’ reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on DEISER’s interests; (g) distribute the Software via OEM Distribution without entering into a separate OEM Distribution Agreement with DEISER; or (h) copy or embed elements of the Accessible Code contained in the Software into other software.
7.3 Protection Mechanisms
The Software includes license protection mechanisms that are designed to manage and protect the intellectual property rights of DEISER and its third party suppliers. Licensee must not modify or alter those features to try to defeat the Software or use rules that the license protection mechanisms are designed to enforce. Any such attempt by the Licensee will result in the immediate termination of any license granted under this EUTU.
If the Licensee discovers it has breached any of its obligations under this EUTU and in particular but not limited to the obligations in clause 7, the Licensee must immediately report such breach to DEISER, in writing.
8.2 Breach of Additional Licences
Where a breach involves the distribution or use of Software outside of the terms of the User License or any Additional User License (including but not limited to the use and distribution of Embedded Software), DEISER and/or any third party owner of Embedded Software will be entitled (without prejudice to any other right or claim that DEISER or any third party owner of Embedded Software may have against Licensee) to charge Licensee, in addition to any other Fees payable by Licensee under this EUTU, a fee calculated based on the number of prohibited distributions or uses multiplied by the respective list prices that DEISER and/or any third party owner of Embedded Software charges for the Software or Embedded Software respectively.
9. INVESTIGATION OF UNAUTHORISED USE AND DISTRIBUTION
If DEISER reasonably suspects the Software has been distributed to or obtained by any person or party without DEISER’s prior written consent, that Embedded Software is being varied or accessed or used independently of the Software or that Licensee is otherwise breaching a term of this EUTU and in particular, but without limitation, its obligations under clause 7, DEISER reserves the right to require the Licensee to provide an unqualified certificate executed by the Licensee’s auditor verifying compliance with the terms of this EUTU. Such requests shall be made no more frequently than once per calendar year. If such an unqualified certificate is not received by DEISER within ninety (90) calendar days of being required, it will be considered that a breach of this EUTU has occurred allowing DEISER to terminate the licenses granted under this EUTU.
10. PERMITTED FIXES
Notwithstanding anything else in this EUTU but subject to any amendment or addendum to this EUTU supplied with the Software.
11.1 Without prejudice to any other rights and in addition to any other termination rights in this EUTU, DEISER may terminate with immediate effect, this EUTU if
(a) the Licensee fails to comply with the terms and conditions of this EUTU; or
(b) Licensee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts; or
(c) Licensee commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of Licensee (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of Licensee with one or more other companies or the solvent reconstruction of Licensee; or
(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over Licensee (being a company); or
(f) the holder of a qualifying floating charge over the assets of Licensee (being a company) has become entitled to appoint or has appointed an administrative receiver; or
(g) a person becomes entitled to appoint a receiver over the assets of Licensee or a receiver is appointed over the assets of Licensee; or
(h) a creditor or encumbrancer of Licensee attaches or Licensee takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of Licensee’s assets and such attachment or process is not discharged within 14 days; or
(i) Licensee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.2 Immediately upon termination of a license granted under this EUTU, the Licensee must at its own cost:
(a) cease permitting access to and procure that all Authorised Users immediately cease all use of the Software; and (b) remove all copies of the Software from its computer systems or any Uncontrolled Systems; (c) provide DEISER with written certification that it has destroyed all copies of the Software including but not limited to all Accessible Code in its possession, custody or control.
12. INFRINGEMENT INDEMNIFICATION
12.1 Infringement of Software
If the Software becomes, or in the opinion of DEISER may become, the subject of a claim of infringement of any third party’s intellectual property rights, DEISER may, at its option and in its discretion: (a) procure for Licensee the right to use the Software free of any liability; (b) replace or modify the Software to make it non-infringing; or (c) refund any license Fees related to this Software paid by Licensee. The foregoing states the sole liability of DEISER and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Software or any other items provided by DEISER under this EUTU.
12.2 Licensee’s Use
Licensee will indemnify and hold harmless DEISER against all costs, expenses, losses and claims made against DEISER as a result of any infringement of a third party’s intellectual property rights arising from the Licensee’s or its Authorised User’s unauthorised use of the Software under this EUTU.
12.3 Third Party Products
Licensee acknowledges and agrees that if Licensee breaches this EUTU and DEISER or any third party owner of Embedded Software suffers any loss, damage, cost or expense directly or indirectly in connection with the breach, DEISER or the relevant third party owner of the Embedded Software may bring an action directly against Licensee.
13. EXCLUSION OF WARRANTIES
To the maximum extent permitted by applicable law in the jurisdiction in which the Software or any Supplementary Software is supplied or Maintenance is provided, DEISER and its third party suppliers provide the Software and any Maintenance AS IS AND WITH ALL FAULTS, and except otherwise expressly contained in the EUTU, hereby disclaim all other warranties and conditions, whether express, implied or statutory.
14. LIMITATION OF LIABILITY
14.1 Non-excludable Warranties
The Licensee may have remedies against DEISER imposed by law or statute which cannot be excluded by DEISER and its third party suppliers. To the extent the Licensee has such legal remedies against DEISER or its third party suppliers then to the fullest extent permitted by law DEISER and its third party suppliers’ liability is limited (a) at DEISER’s option, to: (i) in the case of the Software: 1) repairing or replacing the Software; or 2) the cost of such repair or replacement; and (ii) in the case of Maintenance services; 1) re supply of the Maintenance services; or 2) the cost of having the Maintenance services supplied again; or (b) if the limitation set out in 14.1(a) is not applicable then to an amount of the liability up to a maximum of the sum of the multiple of three times the amount actually paid by the Licensee for the Software.
14.2 Limitation of Liability for other Losses
Subject to section 14.1, notwithstanding any damages Licensee might incur for any reason whatsoever to the maximum extent permitted by applicable law the entire liability of DEISER and any of its third party suppliers under any provision of this EUTU and Licensee’s exclusive remedy hereunder shall be limited to an amount of the liability up to a maximum of the sum of the multiple of three times the amount actually paid by the Licensee for the Software.
14.3 Consequential Loss
Notwithstanding anything else in this section 14, to the maximum extent permitted by applicable law, in no event shall DEISER or its third party suppliers be liable for any loss of income; loss of business profits or contracts; business interruption; loss of the use of money or anticipated savings; loss of information; loss of opportunity, goodwill or reputation; loss of, damage to or corruption of data; special; incidental; punitive; indirect; or consequential damages whatsoever arising out of or in any way related to the use of or inability to use the Software; the provision of or failure to provide Maintenance or other services; information; software; and related content through the Software or otherwise arising out of the use of the Software; or otherwise under or in connection with any provision of this EUTU, even in the event of the fault; tort (including negligence); misrepresentation; strict liability; breach of contract; or breach of warranty of DEISER or any third party supplier, (including any such liability for the acts or omissions of its employees, agents and subcontractors); and even if DEISER or any third party supplier has been advised of the possibility of such damages.
14.4 DEISER shall have no liability to the Licensee where faults arise from:
(a) the possession, use, development, modification or maintenance of the Software (or any part thereof) by the Licensee other than in accordance with this licence, if the infringement would have been otherwise avoided; or
(b) misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission by; or
(f) any breach of the Licensee’s obligations under this licence; or
(g) any modification not authorised by DEISER resulting in a departure from the licence; or
(h) any operator error on the part of the Licensee.
15. PUBLICITY RIGHTS
Licensee grants DEISER the right to include Licensee as a customer in Software promotional material, including Licensee’s logo. Licensee can deny DEISER this right at any time by submitting a written request via email to firstname.lastname@example.org, requesting to be excluded from Software promotional material. Requests made after Purchasing may take thirty (30) calendar days to process.
This EUTU may not be amended except with the written agreement of DEISER whose consent may be withheld in its complete discretion without any requirement to provide reasons.
Licensee may assign this EUTU to: (i) succeeding parties in the case of a merger, acquisition or change of control; or (ii) if Licensee is a supplier to a government agency; provided, however, that in each case, (a) DEISER is notified in writing within ninety (90) days of such assignment, (b) the assignee agrees to be bound by the terms and conditions contained in this EUTU and (c) upon such assignment the assignee makes no further use of the Software licensed under this EUTU. DEISER may assign its rights and obligation under this EUTU without consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this Agreement.
The export of the Software from the country of original Purchase may be subject to control or restriction by applicable local law. Licensee is solely responsible for determining the existence and application of any such law to any proposed export and for obtaining any needed authorisation. Licensee agrees not to export the Software from any country in violation of applicable legal restrictions on such export.
19. GOVERNING LAW AND EXCLUSIONS
19.1 Applicable Law
This EUTU and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of the Kingdom of Spain and the Spanish Courts shall be the competent court of jurisdiction.
19.2 Exception from Jurisdiction.
Notwithstanding the foregoing, the parties reserve the right to seek and obtain injunctive relief, whether in the form of a temporary restraining order, preliminary injunction, injunction to enforce an arbitration award, or other order of similar import, including obtaining full payment of all fees and costs under this Agreement from any court of competent jurisdiction (e.g. local courts at the Licensee place of residence) prior to, during, or after commencement or prosecution of arbitration proceedings or the final decision and award of the arbitrators.
19.3 Exclusion of UN Convention
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this EUTU.
20. ENTIRE AGREEMENT
This EUTU (and any addendum or amendment to this EUTU which is included with the Software) is the entire agreement between the Licensee and DEISER relating to the Software and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EUTU.
Each party acknowledges that, in entering into this EUTU (and the documents referred to in it), neither relies on any statement, representation, assurance or warranty (“Representation”) of any person (whether a party to this EUTU or not) other than as expressly set out in this EUTU or those documents.
Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as provided in this EUTU.
Nothing in this clause shall limit or exclude any liability for fraud.
All notices given to DEISER must be given to DEISER Calle Valentín Beato, 22 – planta baja derecho – 28037 Madrid. SPAIN and to the Licensee at the address provided by it upon Purchase of the Software. Notice will be deemed received and properly served 24 hours after an electronic communication (including email) is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an electronic communication, that such e-mail was sent to the specified e-mail address of the addressee.
If DEISER fails, at any time during the term of this EUTU, to insist upon strict performance of any of the Licensee’s obligations under this EUTU, or if DEISER fails to exercise any of the rights or remedies to which it is entitled under this EUTU, this shall not constitute a waiver of such rights or remedies and shall not relieve the Licensee from compliance with such obligations.
A waiver by DEISER of any default shall not constitute a waiver of any subsequent default.
No waiver by DEISER of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the Licensee in writing.
If any provision of the EUTU (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable and to give effect to the commercial intention of the parties.
24. NO PARTNERSHIP ETC.
Nothing in the EUTU is intended to, or shall be deemed to, establish any agency, partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party.
25. RULES OF INTERPRETATION
In this EUTU, the following rules apply:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
A reference to a party includes its personal representatives, successors or permitted assigns;
The headings in this EUTU are inserted for convenience only and shall not affect its construction.
A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
A reference to one gender includes a reference to the other gender.
Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
A reference to writing or written includes faxes, e-mails, communications via websites and comparable means of communication.
Clauses 1, 4, 5, 7, 9, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 24, 25, 26 and 27 shall survive any termination of this EUTU.