Famoc Software Limited
END USER LICENSE AGREEMENT
IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. DOWNLOADING, INSTALLING OR USING FAMOC SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
Famoc Software Limited registered in Ireland under company number 462110 and having its registered office at Grand Union House, Drury’s Avenue, Midleton, co. Cork, Ireland, (“Famoc”) is willing to license the software program (“Program(s)”) and related documents, training materials and user guides (collectively the (“Documentation”) identified below to you (“Licensee”) upon the condition that you accept all the terms contained in this license agreement (“Agreement”). Please read this Agreement carefully and indicate your acceptance to these terms and conditions by selecting the “Accept” button at the bottom of the Agreement. If you are not willing to be bound by all the terms, select the “Decline” button at the bottom of the Agreement and the download or install process will not continue. Downloading or installing this software, constitutes automatic acceptance by you of the terms of this Agreement. No conflicting terms contained in any Licensee purchase order or other document shall have any effect.
THIS IS A LICENSE AND NOT A SALE
1.1 Famoc hereby grants, solely to the entity of record in Famoc business records, a non-exclusive, non-transferable license to use the Program(s) for its own internal business purposes only at the site specified in the applicable Famoc business records and solely in accordance with the accompanying Documentation and subject to the terms and conditions of this Agreement.
1.2 All proprietary rights and trade secrets in the Program(s) and the Documentation, and all copies (in whole or part) shall be the exclusive property of Famoc (and its licensors), and are protected by the laws of the United States, the United Kingdom, the European Union and international treaty provisions. Licensee shall have no right, title, or interest therein except for the rights expressly granted under this Agreement.
1.3 Neither this Agreement nor any licenses granted hereunder may be assigned, sub-licensed or otherwise transferred or used for the benefit of third parties without the prior written consent of Famoc.
1.4 Licensee may not use, copy, alter, decrypt, decipher, merge, adapt, modify, rent, or lease the Program(s) or the Documentation, or any copy thereof, in whole or in part, except as expressly provided in this Agreement or under applicable statutes. Except to the extent applicable statutory law specifically prohibits such restrictions, Licensee shall not reverse engineer or decompile the Program(s) for any reason. Neither Licensee nor its personnel who have access to the Program(s) may use the Program(s) to design software with similar or competitive functionality for distribution to third parties.
1.5 Licensee acknowledges that the Program(s) includes certain third party software for which Famoc has obtained the right to sub-license to Licensee. Copies of the terms and conditions of these third party licenses can requested by sending an email to firstname.lastname@example.org
1.6 The Program(s) may include certain third party open source and other free download components (“Free Download Components”). Licensee may have additional rights in the Free Download Components that are provided by the third party licensors of those components. The Free Download Components and any such third party licences and third party-required notices for the Program(s) which govern your use of the Free Download Components are provided with the Program(s) and can be viewed by selecting the “Full Copyright Information” link at the bottom of the main page of the Program(s) UI. By accepting this Agreement Licensee hereby agrees to abide by the terms of all such licenses. Any obligations undertaken by
Famoc in this Agreement in relation to the Free Download Components as part of the Program(s) are provided by Famoc alone, and not by the third party licensors of the Free Download Components. The Free Download Components are provided “as is” by the third party licensors who disclaim all liabilities, damages (even if they have been advised of the possibility of such damages), warranties, indemnities and other obligations of any kind, express or implied, with regard to the Free Download Components. The Free Download Components are excluded from any indemnity provided by Famoc in this Agreement. Nothing in the foregoing affects any performance warranty provided by Famoc with regard to the Program(s) as a whole.
2 License Fees
2.1 Unless expressly stated in any signed license agreement, Licensee shall pay the non-refundable license fees for the Program(s) set out in the applicable invoice within 21 (twenty-one) days of the date of such invoice. Upon payment of the applicable license fees Famoc will enable the Program(s). Past due amounts owed by the Licensee shall bear interest at a rate of 1.5% (one and a half percent) per month. Licensee shall also be responsible for all reasonable costs incurred in the collection of past due amounts owed by Licensee and all taxes and duties, including but not limited to any current or future local sales taxes, withholding taxes or use taxes, or import or export duties, assessed in connection with the licensing of the Program(s) (except for any taxes based on Famoc’s net income).
2.2 The license fees payable under this Agreement include the provision of support and maintenance services to the extent that they are expressly stated as being part of the license fee. Such services will be provided in accordance with Famoc’s standard support terms as may be updated from time to time.
2.3 Support and maintenance services that are not included in the license fee are available on request for additional charge. Such services will be provided in accordance with Famoc’s standard support terms as may be updated from time to time.
2.4. Current support terms and payment conditions are available on request by sending an email to email@example.com if not stated otherwise in separate agreement between the Licensee and the Famoc or an approved third party on Famoc’s behalf.
2.5. Installation of the Program(s) onto Licensee’s server and training of Licensee’s personnel is available on request for an additional charge, payable within 21 (twenty-one) days from the date of invoice, and will be performed by Famoc or an approved third party on Famoc’s behalf.
3 Confidentiality and Data protection
3.1 The Program(s) and the Documentation contain certain information that is confidential and of substantial value to Famoc. Except as expressly permitted herein, Licensee shall not use or disclose any confidential information, or cause it to be disclosed, to any third party.
3.2 No benchmark results nor results of any functional testing or evaluation of the Program(s) shall be disclosed to any third party or used for any purpose other than to facilitate Licensee’s internal use of the Program(s).
3.3. Famoc shall use its best endeavours to keep all restricted information (including personal data) which is disclosed by the Licensee pursuant to or in connection with this Agreement as confidential and accordingly not disclose it to any other person.
4 Limited Warranty and Disclaimer
4.1 Famoc warrants that the Program(s), when used in accordance with the terms of this Agreement, will operate substantially as set forth in the accompanying Documentation for a period of 90 (ninety) days following delivery.
4.2 Famoc warrants that prior to delivery of the Program(s) to Licensee, Famoc has used commercially reasonable efforts to prevent the Program(s) and any modified or enhanced versions of the Program(s) prepared by, or at the direction of, Famoc, from being infected with, any “worms”, “viruses”, “Trojan Horses”, “protect codes”, “data destruct keys” or other programs or programming devices that might be used to access, modify, delete or damage the Program(s), or other software, computer hardware or data of Licensee.
4.3 Licensee’s sole and exclusive remedy for breach of any of the above warranties shall be, at Famoc’s option, the repair or replacement of the Program(s). If in the Famoc’s reasonable opinion Famoc is unable to remedy such non-conformance the Famoc will accept return of the Program(s) and refund all fees already paid for the Program(s) on a depreciated basis, whereupon this particular Agreement shall immediately terminate.
4.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4 AND NOTWITHSTANDING ANY OTHER TERMS IN THIS AGREEMENT, FAMOC MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE PROGRAM(S), DOCUMENTATION OR MAINTENANCE TO BE SUPPLIED BY FAMOC, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. FAMOC DOES NOT WARRANT THAT ANY PROGRAM(S) WILL BE ERROR-FREE, OR THAT ANY DEFECTS THAT MAY EXIST IN ANY PROGRAM(S) CAN BE CORRECTED.
5 Licensee’s Obligations
5.1 Licensee hereby undertakes, where relevant, to obtain written agreement from all users for the installation or use of the Program(s) on any mobile phone handset or any other device.
5.2 As far as it’s not reasonably forbidden by Licensee’s security policy requirements Licensee shall provide Famoc with remote access to any on-site server for the provision of licensing information and support and maintenance services. In the event that such access is not granted, Famoc is automatically relieved from any support and maintenance obligations it may have under this Agreement, but will use its reasonable commercial efforts to support the Licensee in the absence of remote access (for example by telephone), but in the event any on-site visits are required extra charges may be levied on Licensee.
6 Limitation on Liability
6.1 IN NO EVENT SHALL FAMOC BE LIABLE FOR ANY LOSS OF PROFITS, USE, BUSINESS, DATA OR INFORMATION, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM LOSS OF ANTICIPATED SAVINGS OR LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF REPUTATION, OR LOST OPPORTUNITIES, EVEN IF FAMOC HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES RESULTING FROM ANY AND ALL CLAIMS BY ANY THIRD PARTIES. THE AGGREGATE LIABILITY OF FAMOC HEREUNDER WHETHER IN CONTRACT OR IN TORT SHALL IN NO EVENT EXCEED THE LESSER OF THE FEES PAID BY LICENSEE OVER THE PRECEDING 12 (TWELVE) MONTHS OR THE POUNDS STERLING EQUIVALENT OF US DOLLARS $1,000,000 (ONE MILLION DOLLARS).
7.1 Famoc shall indemnify Licensee for any claim, demand or cause of action by a third party (“Demand”) to the extent
that it is based upon a claim that the Program(s) infringe any U.S. or U.K. patent, U.S. or U.K. trademark, or Berne Convention copyright, or that the Program(s) misappropriate any trade secret of any third party within the country in which the Program(s) are located. The foregoing indemnification is conditioned on Licensee notifying Famoc promptly in writing of such Demand, Licensee giving Famoc sole control of the defense thereof (and any negotiations for settlement or compromise thereof), and Licensee cooperating in the defense thereof at Famoc request and expense, provided that Licensee may, at its own expense, assist in such defense if it so chooses. Famoc, at its sole option and expense may: (a) procure for Licensee the right to continue using the Program(s); or (b) substitute a non-infringing version of the Program(s) so that the Program(s) become non-infringing and still conform to the applicable specifications; or (c) return the license fee paid by Licensee hereunder for the Program(s), less an amount equal to straight line depreciation of the Program(s) over 4 (four) years, and Licensee shall immediately return the Program(s) to Famoc. Licensee shall not incur any costs or expenses on behalf of Famoc or its approved third party under or pursuant to this Section without Famoc’s prior written consent.
7.2 Famoc shall have no liability to Licensee for any Demand by a third party alleging infringement or misappropriation based upon (a) any use of the Program(s) in a manner other than as permitted in this Agreement; or (b) any use of the Program(s) in combination with any product not provided by Famoc, to the extent that such Demand is directed against the combination. Notwithstanding the foregoing, no indemnification is given in relation to Free Download Components or any third party software. The licensors of any third party software may extend indemnities which are to be found in the third party licenses referred to in 1.5 above. THE FOREGOING STATES THE ENTIRE LIABILITY OF THE PARTIES AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR SUCH DEMANDS.
8 Term and Termination
8.1 The license granted herein shall be for a period of 1 (one) year from the date of delivery (unless recorded otherwise in Famoc’s business records), subject to Famoc’s receipt of the applicable license fees and Famoc’s right to terminate the license in accordance with this Section.
8.2 Famoc may terminate this license and the Agreement immediately upon written notice to Licensee if Licensee breaches any of the provisions of Section 1 (License). Either party may at its option terminate this license and the Agreement immediately upon written notice in the event that the other party: (a) breaches any term of this Agreement, which breach remains uncured for a period of 30 (thirty) days after written notice of such breach to the other party; or (b) becomes insolvent or asserts that it is insolvent, fails to pay its general obligations as they become due, institutes or has instituted against it any proceeding, arrangement, receivership or assignment for the benefit of creditors, or files or has filed against it any petition under applicable bankruptcy laws.
8.3 ON TERMINATION OF THIS LICENSE FOR ANY REASON LICENSEE SHALL CEASE USING THE PROGRAM(S) AND THE DOCUMENTATION AND ALL COPIES OF THE SAME SHALL BE IMMEDIATELY RETURNED TO FAMOC.
8.4 The operation of Clauses 1, 3, 6, 7, 8 and 9 shall survive the termination of this Agreement.
8.5. This Agreement will automatically terminate if Famoc exercises its right to accept the Program’s return as a reasonable remedy under this Agreement.
8.6. Licensee shall also be entitled to terminate this Agreement by giving not less than 30 days’ written notice to Famoc if Famoc substitutes this Agreement with a version that isn’t acceptable to the Licensee.
9.1 The Program(s) is subject to laws and regulations that restrict its export. Licensee agrees not to export or “re-export” (transfer) the Program(s) unless all applicable government export controls and approvals have been compiled with.
9.2 Famoc licenses products for ultimate end use by federal government agencies and other federal government customers (“federal government customers”) only under the following conditions. Rights granted herein include only those
rights customarily provided to end use customers of Program(s) and Documentation as defined in this Agreement. This customary commercial license in software is provided in accordance with FAR 12.211 (Technical Data) and 12.212 (Computer Software) and, for Department of Defense purchases, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a federal government or other public sector customer has a need for rights not conveyed under these terms, it must negotiate with Famoc to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written agreement specifically conveying such rights must be executed by both parties. To the extent that Licensee sublicenses Program(s) pursuant to the terms and conditions of the Agreement to any sub-licensee that is a federal government agency or other federal government customer, Famoc will accept only the following subcontract or flow-down provisions: FAR 52.222-26, “Equal Opportunity”; FAR 52.222-35, “Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era”; and FAR 52.222-36, “Affirmative Action for Workers with Disabilities.” Any additional subcontract or flow-down provisions, including any provisions imposed by federal, state, local or other governmental or quasi-governmental entities, must be negotiated between the parties and reflected in a mutually acceptable written agreement executed by both parties.
9.3 Famoc and its licensors shall have the right to conduct an audit of (and to copy) Licensee’s records on reasonable notice and not more than once in each 12 (twelve) month period to verify that Licensee is complying with the terms hereof. In the event that an underpayment is revealed as the result of such audit Licensee shall immediately upon being so requested by Famoc pay such underpayment together with the costs of any such audit.
9.4 If one or more provisions of this Agreement are held to be illegal or unenforceable under applicable law, such illegal or unenforceable provision(s) shall be limited or excluded from this Agreement to the minimum extent required so that this Agreement shall otherwise remain in full force and effect and enforceable in accordance with its terms.
9.5 This Agreement shall be governed by and construed under the laws of Ireland and the parties hereto submit to the exclusive jurisdiction of the courts of Ireland save that FAMOC may assert its intellectual property rights in any jurisdiction.
9.6 Licensee agrees that this Agreement is the complete and exclusive statement of the mutual understanding between the parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement. It may not be modified or waived except in writing signed by authorized representatives of both parties.
9.7 All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, or after being sent by prepaid certified or registered mail to and received by the address of the party to be noticed or such other address as such party last provided to the other by written notice.
9.8 A party who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any term of this Agreement. This condition isn’t applicable in regard to Famoc’s approved third party who acts on Famoc’s behalf and furnishes the Program(s), licenses and all related services to the Licensee.
9.9 Licensee shall not assign, transfer, or sublicense any obligations or benefit under this Agreement without the prior written consent of Famoc (and any such attempt shall be void). Famoc may assign this Agreement in whole or in part.
9.10 The Program(s) are not specifically developed or licensed for use in any nuclear, aviation, mass transit or medical application or in any other inherently dangerous applications. Neither Famoc nor its suppliers shall be liable for any claims or damages arising from such use and Licensee agrees to indemnify and hold harmless Famoc and its suppliers from any claims for losses, costs, damages, or liability arising out of or in connection with the use of the Program(s) in such applications.