End-User Licence Agreement – U.S.
This End User License Agreement is entered into by and between:
NanoLock Security (United States) Inc., a limited liability company organized under the laws of the State Delaware, with its registered address 16086 Willow Creek Rd Lewes, Delaware 19958, USA (“Licensor”); and [FILL IN LICENSEE NAME AND ADDRESS] (“Licensee”).
The following terms shall have the following meaning “Annual Software License”: means the right to use the Licensed Software on a yearly basis; such license includes the right to Maintenance.
“Documentation”: means any program / software documentation, user manuals, handbooks and other materials describing the use, design, installation, operation, maintenance, and/or functional and technical specifications of the Software.
“Errors”: means the substantial failure to meet the functional or technical specifications as set forth in the Documentation of the Licensed Software made known by Licensor in writing. An Error shall only be deemed to exist if Licensee is able to demonstrate the Error and if it can be reproduced.
“First Level Support Services”: means the support provided by Partner to Licensee as set forth by Partner.
“Intellectual Property Rights”: mean any patent, copyright, word mark or pictorial mark, trade name, logos, designs, model right, design right, know-how, and all other intellectual property rights whatsoever of Licensor or its suppliers/licensors. “License Fee”: mean either the: (1) one-time fee for the Perpetual Software License or (2) the annually recurring fee for the Annual Software License, both payable to Licensor’s Partner for use of the Software and the Documentation.
“Licensed Software”: means both the Perpetual Software License and the Annual Software License, including the object code version of the Licensor computer programs, their Documentation and other supplemental materials as provided to Licensee by Licensor, including but not limited to any software security keys, modifications or additions relating thereto. The Licensed Software shall also include any new releases, Updates, Upgrades, revisions, modifications, additions, corrections and fixes of the Licensed Software that Licensee receives under Maintenance for which Licensee has (separately) contracted and paid. This License Agreement does not grant Licensee the right to any new releases, Updates, Upgrades, revisions, modifications, additions, corrections and fixes of the Licensed Software unless provided by Licensor under Article 1 and Article 2 below.
“Maintenance”: means First Level and Second Services Support Services, which may include new releases, Updates, Upgrades, revisions, modifications, additions, corrections and fixes of the Licensed Software and support during normal business hours.
“Perpetual Software License”: means the right to use the Licensed Software for an indefinite period of time – unless terminated pursuant to the terms of this EULA and does not include Maintenance, except for a maximum of one (1) year when explicitly agreed with Partner in writing.
“Partner”: means the distributor or reseller of Licensor that provided the Licensed Software to Licensee.
“Second Level Support Services”: means the support services provided by Licensor to Partner.
“System”: means the equipment, hardware (including systems software) on which the Licensed Software must be installed.
“Update”: means a bug fix, update, patch, module replacement or improved version of the whole or any part of the Software, provided as part of the Maintenance;
“Upgrade”: means a new version of the Software consisting of a major release to be implemented on the System as a result of a System update or change.
1. Grant of License
For payment of the applicable non-refundable license fees Licensor grants solely to Licensee, as an end user, a personal, in case it concerns the Perpetual Software License a perpetual – and in case it concerns the Annual Software License a temporary, non-transferable, non-sub licensable and non-exclusive license to use the Licensed Software subject to the terms and conditions set forth in this License Agreement and in accordance with the selected license model (Perpetual Software License or Annual Software License). Licensee shall have the right to use the Licensed Software on a designated System in accordance with the Documentation solely for its own internal use and benefit. For the avoidance of doubt, the use of the Licensed Software does not permit: (i) third parties contractors (including without limitation outsourcing parties) to access or use the Licensed Software for Licensee’s internal use and benefit without the prior written consent of Licensor and payment of an additional license fee, (ii) to use the Licensed Software on behalf of third parties, e.g. for services such as ‘time-sharing’, ‘application service provision’, ‘software as a service’ and ‘outsourcing’, and/or (iii) installation, use or access of the Licensed Software on, in or from hardware and software except as the designated System provided by Licensor.
2. User restriction/responsibility licensee
Licensee agrees not to:
Copy and distribute the Licensed Software, in whole or in part, for internal use without paying the applicable additional fees, except (i) for making a reasonable number of archival back-up copies, or (ii) as expressly authorized by Licensor in writing, or (iii) for making a reasonable number of copies of the Documentation supplied to Licensee by Licensor in electronic form. Licensee shall reproduce and affix all copyright and other (intellectual) property rights notices appearing in or on the Licensed Software in such copies thereof and shall under no circumstances remove or circumvent technical provisions intended to protect the Licensed Software, or arrange for this to be carried out.
- Copy and/or distribute the Licensed Software, in whole or in part to third parties.
- Install, access or use the Licensed Software on hardware and/or an (operating) system other than the hardware and (operating) system for which the Licensed Software was originally licensed to Licensee and other than provided by Licensor without prior written consent of Licensor.
- Assign, sell, rent, lease, lend, sublicense, outsource or otherwise transfer the Licensed Software to any third party, or authorize or appoint any third party to do so.
- Use the Licensed Software for ‘timesharing’, facilities management, outsourcing, hosting, ‘application service provider’ and ‘software as a service’.
- Modify the Licensed Software or provide a third party or any person with the means to do so.
- Create derivative works, translate, dissemble, recompile or reverse engineer any Licensed Software or attempt to do so (except to the extent applicable law specially permits such activity).
- Alter, destroy, or otherwise remove any (intellectual) property notices or labels and technical provisions intended to protect the Licensed Software on or embedded within the Licensed Software or Documentation.
- (Re)move or relocate the Licensed Software to another location than the location where Licensor has given his consent to without prior written consent of Licensor.
- Utilize or permit another party to utilize any software application program created, in whole or in part, utilizing any Licensed Software.
- Use the Licensed Software in a manner other than described in the Documentation or as specifically permitted in this License Agreement.
3. Documentation
Licensee will receive with the Licensed Software one electronic copy of Licensor’s standard Documentation, describing Licensor’s recommended use and application of the Licensed Software free of additional charge. Licensee is entitled to make copies of the Documentation solely for internal use and without destroying or removal of copyright and intellectual property notices on or embedded in the Documentation. Licensee is not permitted to modify the Documentation and to assign, sell, lend, sublicense, or otherwise transfer the Documentation to third parties without prior written consent of Licensor.
4. Term of License
This License Agreement and Licensee’s license for the Licensed Software is either perpetual (Perpetual Software License) or yearly (Annual Software License).
Licensor may terminate this License Agreement and Licensee’s license to the Licensed Software (whichever it has) immediately by giving Licensee written notice of termination in the event that either (i) Licensee breaches any term or condition of this License Agreement and Licensee has failed to remedy such breach within thirty (30) days after a written notice from Licensor to Licensee or (ii) Licensee is wound up or terminated, has a receiver appointed or enters into liquidation or bankruptcy or analogous process or process in Licensee’s home country or there is a change of control in Licensee’s company. If Licensee becomes bankrupt or is liquidated, the right of use of the Licensed Software shall terminate by operation of law.
Licensee may terminate this License Agreement voluntarily according to the terms as determined in the order or license agreement by giving written notice of termination by registered courier to Licensor. In case the Licensee has opted for the Annual Software License, such notice must be given according to the order or license agreement terms.
In the event of any termination Licensee will have no right to keep or use the Licensed Software or any copy of the Licensed Software for any purpose and Licensee shall destroy and erase all copies of such Licensed Software in its possession or control, and forward written certification to Licensor that all such copies of Licensed Software have been destroyed or erased. In the event of any termination of the License Agreement and Licensee’s license Licensor is under no circumstances obliged to pay Licensee any compensation in whatsoever form and/or to reimburse the paid license fees.
5. Maintenance
Where Licensee purchases or receives (as part of the Annual Software License) Maintenance services, Licensee’s maintenance term shall begin upon the delivery of the Licensed Software and continue for one (1) year thereafter unless otherwise specified in the applicable Maintenance agreement.
Neither Partner nor Licensor is obliged to provide Maintenance services with regards to a version of the Licensed Software older than the version behind the newest version of the Licensed Software.
6. Audit
Upon request, Licensee shall immediately lend its full cooperation to any investigators to be conducted by or on behalf of Licensor in relation to Licensee’s compliance with the agreed restrictions on use. At the first request of Licensor, Licensee shall grant Licensor access to the System. Licensor shall maintain the confidentiality of all company information to be regarded as confidential that Licensor obtains from or on the premises of Licensee within the context of this type of investigation, in so far this information does not relate to the use of the Licensed Software itself.
7. Intellectual Property Rights
All Intellectual Property Rights to the Licensed Software or other materials such as analyses, designs, Documentation and other documentation, reports, quotations and related preliminary material developed or made available to Licensee on the basis of this License Agreement shall remain exclusively vested in Licensor, its licensors or its own suppliers. This License Agreement does not convey any (intellectual) property interest to Licensee with respect to the Licensed Software other than the license specified herein.
8. Confidentiality/Privacy
Licensee acknowledges that the Licensed Software is of a confidential nature and that this Licensed Software contains trade secrets if Licensor, its own suppliers and/or the software manufacture.
The Licensed Software may contain features which may allow Licensee to collect personal data of employees or other individuals without notice to or knowledge by these persons. Licensee is solely responsible for, and assumes all liability with respect to, the collection or processing of personal data of persons. Licensee shall indemnify and hold Licensor harmless from and against any damages, claims, losses, settlements, attorney’s fees, legal fees and court costs and other expenses related to any such activities or any claims in connection therewith.
9. No Guarantee
Licensor does not guarantee that the Licensed Software made available to Licensee will be fit for the actual and/or intended use by Licensee. Licensee, moreover, accepts that the Licensed Software may not operate and function without interruptions, Errors or other defects or that not all Errors and defects may always be fixed. Licensee specifically understands and accepts that the Licensed Software may not detect all network intrusions.
Licensor shall make every effort to fix Errors in the Licensed Software within a reasonable period of time if Licensor receives a detailed written notification of these Errors within a period of 12 (twelve) months following delivery. Errors shall be fixed free of charge during this 12 (twelve) month period, provided that Licensor shall not fix any Errors or other defects arising from or related to:
- usage errors or the improper use of the Software, including errors that occur during the data input process or in the data itself;
- changes to the Software other than those carried out by or on behalf of Licensor;
- use of the software contrary to the applicable conditions or contrary to the instructions in the Documentation or other instructions of Licensor;
- changes to or errors, defects or shortcomings in the hardware or Software that is not included within the scope of the maintenance work to be carried out by Licensor;
- the use of an older version of the Software that is no longer maintained by Licensor;
the recovery of scrambled or lost data; - other causes that are not attributable to Licensor.
Licensor shall be entitled to invoice the costs of fixing Errors at its standard rates in the event that any condition listed above under a. up to and including g. is met. Licensor shall not be obliged to fix Errors if Licensee has made changes to the Licensed Software, or has arranged for this to be carried out, without the written consent of Licensor.
The fixing of Errors shall take place at a location to be determined by Licensor. Licensor shall be entitled to install temporary solutions, workarounds or problem-avoiding restrictions in the Licensed Software at any time.
10. Indemnity third-party software claims
Licensor shall indemnify Licensee against any legal claim from third parties based on the assertion that the Licensed Software infringes an intellectual property right of the third party in question, provided that Licensee (i) promptly notifies Licensor in writing of such claim, (ii) does not make any admission as to liability or agree to any settlement or comprise of the claim without Licensor’s prior written consent; (iii) at Licensor’s request, gives Licensor a power of attorney to conduct all negotiations and litigation, and to settle all litigation, arising from such claim; and (iv) provides Licensor with all available information and assistance as Licensor may reasonably require. This Article does not apply if any infringement arises from any addition or modification made to Licensed Software other than by or under the authority of Licensor. If it is irrevocably established in court that that the Licensed Software constitutes an infringement of any intellectual property right vested in a third party or Licensor believes there is good change that such an infringement may occur, Licensor shall, where possible, ensure that Licensee can continue to use the Licensed Software or functionally similar alternatives. All other or further-reaching obligations to indemnify shall be excluded.
11. Miscellaneous
Licensor and Licensee are not entitled to assign rights and obligations of this License Agreement to third parties without prior written consent of the other party.
12. Applicable Law and Dispute Resolution
12.1 This License Agreement and any ensuing agreement shall be governed by and construed in accordance with the laws of Israel.
12.2 Any dispute between Licensor and Licensee arising from this Agreement and/or any ensuing agreement shall be exclusively settled by the competent court of the State of Delaware.