IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE INSTALLING OR USING THE COMMUNITY EDITION FROM JABATIX S.A.
BY PROCEEDING TO INSTALL THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS END USER LICENCE AGREEMENT (EULA) WHICH WILL BIND YOU AND YOUR EMPLOYEES. ANY SOFTWARE THAT JABATIX MAKES AVAILABLE FOR DOWNLOAD OR USE FROM THIS WEBSITE IS THE COPYRIGHT OF JABATIX OR ITS LICENSORS OR SUPPLIERS. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE THE INSTALLATION PROCESS NOW. IN THIS CASE THE INSTALLATION PROCESS WILL TERMINATE.
1. GRANT AND SCOPE OF LICENCE
1.1 In consideration of you agreeing to abide by the terms of this Licence, JABATIX hereby grants you a personal, non-exclusive, non-transferable, non-assignable, limited and royalty-free licence to use the Software and the Documentation for your own internal business on the terms of this Licence. Unless explicitly stated otherwise, any new features that augment or enhance the Software, including but not limited to the release of new or specialised JABATIX web-based services, are subject to this Licence.
1.2 Except as expressly set forth in this Licence or otherwise expressly granted to you in writing by JABATIX, no rights are granted to you. Notwithstanding the aforementioned, you may:
(a) download free-of-charge, install and use the Software;
(b) transfer the Software from one computer to another;
(c) modify, enhance or change the Software as you deem fit;
(d) receive and use any supplementary updates of the Software;
(e) use any Documentation in support of the use permitted under condition 1.1 and make copies of the Documentation as are reasonably necessary for its lawful use.
2. LICENSEE’S UNDERTAKINGS
2.1 Except as expressly set out in this Licence or as permitted by any local law, you undertake:
(a) not to use the Software on a server or web farm environment for production purposes and/or testing purposes. You may use the Software on a single server or single web farm environment only in the JABATIX Enterprise Edition and upon payment of applicable license fees;
(b) not to build a competitive product or service;
(c) not to make or have made a product using similar ideas, features, functions or graphics of the Software;
(d) not to sell, rent, lease, market, sub-license, loan the Software or Documentation;
(e) to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
(f) to supervise and control use of the Software and ensure that the Software is used by your employees and representatives in accordance with the terms of this Licence.
Upon registration JABATIX may provide a scheme which provides a number of benefits including access to Software updates and customer or partner information. With your registration you agree to receive customer and partner updates or other Software related information via e-mail.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 You acknowledge that all intellectual property rights in the Software and the Documentation anywhere in the world belong to JABATIX or that JABATIX has the right, power and authority to license the same upon the terms and conditions of this EULA to you. Furthermore, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence.
4.2 You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments and that any provision or grant of a Licence to use the Software in source code form is based upon the sole and unfettered discretion of JABATIX.
4.3 You acknowledge that the Software contains, among other things, components of Open Source Software developed by third parties and licensed under an Open Source Software license. These Open Source Software components are protected by copyright. Your rights to use these Open Source Software components are governed by the applicable Open Source Software license conditions. You must comply with these license conditions in order to be entitled to use the Open Source Software as foreseen in the relevant license. In the event of conflicts, the applicable Open Source Software license conditions shall take precedence over the Licence with respect to the Open Source Software components contained in the Software.
4.4 You are permitted to modify proprietary components originating from JABATIX and to engage in reverse engineering for purposes of debugging such modifications, to the extent such components are linked to libraries licensed under the GNU Lesser General Public License. You are not permitted to distribute information resulting from such reverse engineering or to distribute the modified proprietary components. Your rights to modify proprietary components originating from parties other than JABATIX are governed by the respective third party´s license conditions.
4.5 The Open Source Software is licensed royalty-free (i.e., no fees are charged for exercising the licensed rights, whereas fees may be charged for reimbursement of costs incurred by JABATIX. A list of the Open Source Software components contained in the Software and the applicable Open Source Software licenses are indicated on the website under: http://www.jabatix.net/website-information/terms-of-use.html.
5. DISCLAIMER OF WARRANTIES
5.1 JABATIX DOES NOT WARRANT THAT YOUR ACTIVITIES OR USE OF THE SOFTWARE AND WEBSITE IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, JABATIX SPECIFICALLY DISCLAIMS SUCH WARRANTIES. YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THIS SOFTWARE AND WEBSITE, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE WEBSITE OR THE SOFTWARE. FURTHER, JABATIX AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE. JABATIX, ITS PARENT, SUBSIDIARIES OR AFFILIATES OR THE DIRECTORS, OFFICERS, EMPLOYEES, OR OTHER REPRESENTATIVES OF EACH OF THEM SHALL NOT BE LIABLE FOR THE USE OF THE SOFTWARE INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN. SOME JURISDICTIONS MAY LIMIT OR MAY NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT THAT SUCH JURISDICTION’S LAW IS APPLICABLE TO THIS LICENCE.
5.2 You acknowledge that the Software may contain test data and has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements
6. Disclaimer & limitation of JABATIX’s liability
6.1 Nothing in this Licence shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud, fraudulent misrepresentation, or deliberate personal repudiatory breaches of this agreement.
6.2 Notwithstanding clause 6.1 above; you understand and agree that JABATIX limits its liability in connection with your use of the Software as follows: UNDER NO CIRCUMSTANCES SHALL JABATIX, ITS PARENT, SUBSIDIARIES, OR AFFILIATES OR THE DIRECTORS, OFFICERS, EMPLOYEES, OR OTHER REPRESENTATIVES OF EACH OF THEM (JABATIX AND INDIVIDUALS) BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (1) THE WEBSITE, THE CONTENT OR SOFTWARE; (2) THE USE OF, INABILITY TO USE, OR PERFORMANCE OF THE SOFTWARE; (3) ANY ACTION TAKEN IN CONNECTION WITH RESPECTIVE COPYRIGHT OWNERS; (4) ANY ERRORS OR OMISSIONS IN THE TECHNICAL OPERATION OF THE SOFTWARE, EVEN IF FORESEEABLE OR EVEN IF JABATIX AND INDIVIDUALS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SOFTWARE). IN NO EVENT SHALL JABATIX’s AND INDIVIDUALS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED 100 % OF THE POTENTIAL SINGLE LICENCE FEE PAID AT ARM’S LENGTH CONDITIONS. JABATIX ENTITIES AND INDIVIDUALS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE PHONE, HARDWARE, SOFTWARE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION. YOUR ACCESS TO AND USE OF THIS SOFTWARE IS AT YOUR RISK. YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE WEBSITE AND SOFTWARE. YOU RECOGNISE AND CONFIRM THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF JABATIX’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEBSITE, PROPERTY, PRODUCT, PROGRAM, TELEVISION SHOW, OR OTHER AUDIO/VISUAL CONTENT OWNED OR CONTROLLED BY JABATIX AND/OR ITS PARENTS, SUBSIDIARIES, AND/OR AFFILIATES AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY JABATIX-SOFTWARE WEBSITE, PROPERTY, PRODUCT, PROGRAM, TELEVISION SHOW OR OTHER AUDIO/VISUAL CONTENT OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.
6.3 The Licensee agrees that the use of the Software is not a substitute for the exercise of commercial or professional judgment and that operation of the Software might not be uninterrupted or error-free. Accordingly, subject to the above, JABATIX shall not be liable for any liability, or losses resulting, whether directly or indirectly, from the commercial exploitation of any results, reports, data or other outputs of the Software. Notwithstanding the aforementioned, JABATIX’s total liability shall be limited to € 2.000,00 (two thousand) for damages under this agreement (including damages subject to clause 6.1), unlawful acts, (including negligence or violation of legal regulations), false statements, reimbursements or otherwise that are related to the implementation or intended implementation of this agreement.
6.4. This Licence sets out the full extent of JABATIX’s obligations and liabilities in respect of the supply of the Software and Documentation. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on JABATIX except as specifically stated in this Licence. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into, or incorporated in, this Licence, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
6.5. Open Source Software is provided free of charge. We are liable for the JABATIX Community Edition including Open Source Software contained in accordance with the license conditions applicable to the Software. The licenses listed under http://www.jabatix.net/website-information/terms-of-use.html define the warranty, if any, from the authors or licensors of the Open Source Software. Any liability for use of Open Source Software beyond the program flow intended for the Software is explicitly excluded. Furthermore, any liability for defects resulting from modifications to the Open Source Software by you or a third party is excluded. You have no warranty claims against JABATIX in the event that the Open Source Software components contained in the Software infringe the intellectual property rights of a third party.
7. TERM AND TERMINATION
7.1 Subject to clause 7.2, this Licence (and the rights granted herein) shall commence on the date on which the Software is downloaded or otherwise provided (Effective Date) and shall continue for the period of use (Initial Term) by the Licensee.
7.2. Upon expiration of the Initial Term this Licence will terminate automatically. Subject to a new registration by the Licensee this agreement can be renewed. JABATIX may terminate this Licence immediately and without notice to you if:
(a) you commit a material or persistent breach of this Licence; or
(b) a petition for a bankruptcy order to be made against you has been presented to the court; or
(c) the Licensee (where it is a company) becomes insolvent or unable to pay its debts, enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt, unable to pay your debts.
7.3 Upon termination for any reason:
(a) all rights granted to you under this Licence shall cease;
(b) you must cease all activities authorised by this Licence; and
(c) you must immediately delete, erase and remove the Software from all computer equipment in your possession, and immediately delete, erase or destroy beyond retrieval or return to JABATIX all copies of the Software then in your possession, custody or control.
8. TRANSFER OF RIGHTS AND OBLIGATIONS
8.1 This Licence is binding on you and JABATIX, and on our respective successors and assigns.
8.2 You may not transfer, assign, charge or otherwise dispose of this Licence, or any of your rights or obligations arising under it, without JABATIX’s prior written consent.
8.3 JABATIX may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of JABATIX’s rights or obligations arising under it, at any time during the term of the Licence.
All notices given by you to JABATIX must be given to JABATIX S.A., a company registered in the Grand Duchy of Luxembourg under number B 91815 and with headquarters at 1a, op der Ahlkerrech, L-6776 Grevenmacher, Luxembourg. JABATIX may give notice to you at either the e-mail or postal address you provided to JABATIX or our representative when downloading the Software. Notice will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail 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 e-mail that such e-mail was sent to the specified e-mail address of the addressee.
10. EVENTS OUTSIDE OUR CONTRO
10.1 JABATIX will not be liable or responsible for any failure to perform, or delay in performance of, any of JABATIX’s obligations under this Licence that is caused by events outside JABATIX’s reasonable control (Force Majeure Event).
10.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(e) impossibility of the use of public or private telecommunications networks;
(f) the acts, decrees, legislation, regulations or restrictions of any government.
10.3 JABATIX’s performance under this Licence is deemed to be suspended for the period that the Force Majeure Event continues.
11.1 If JABATIX fails, at any time during the term of this Licence, to insist upon strict performance of any of your obligations under this Licence, or if we fail to exercise any of the rights or remedies to which we are entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
11.2 A waiver by JABATIX of any default shall not constitute a waiver of any subsequent default.
11.3 No waiver by JABATIX of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
13. ENTIRE AGREEMENT
13.1 This Licence and any document expressly referred to in it represents the entire agreement between JABATIX in relation to the licensing of the Software and Documentation and supersedes any prior agreement, understanding or arrangement between JABATIX, whether orally or in writing.
13.2 You acknowledge that, in entering into this Licence, you have not relied on any representation, undertaking or promise given by JABATIX or be implied from anything said or written in negotiations between JABATIX and you prior to entering into this Licence except as expressly stated in this Licence.
13.3 You shall have no remedy in respect of any untrue statement made by JABATIX, whether orally or in writing, prior to the date you entered into this Licence (unless such untrue statement was made fraudulently) and your only remedy shall be as provided in these terms and conditions.
14. LAW AND JURISDICTION
14.1 This Licence and the interpretation of this Licence shall be governed and construed in accordance with the Laws of the Grand Duchy of Luxembourg, without regard to its conflicts of laws rules and specifically will not be governed by the United Nations Conventions on Contracts for the International Sale of Goods, if otherwise applicable.
14.2 The parties shall use their best efforts to negotiate in good faith and settle amicably any dispute arising out of or in connection with this agreement.
14.3 No party may commence any court proceedings in relation to any dispute arising out of or in connection with this agreement until it has attempted to settle the dispute by mediation, provided that the right to issue proceedings is not prejudiced by a delay.
14.4 In the event that a dispute is not capable of amicable resolution in good faith then the parties agree that the dispute may be referred by a party to the courts of the Grand Duchy of Luxembourg which shall have final, exclusive and irrevocable jurisdiction to hear and decide any suit, action or proceedings, and/or to settle any disputes, which may arise out of or in connection with this agreement or its formation or validity (including non-contractual disputes or claims) and, for these purposes, each party irrevocably submits to the exclusive jurisdiction of the courts of the Grand Duchy of Luxembourg.
15. CONFIDENTIAL INFORMATION
15.1 The disclosure of confidential and proprietary information hereunder shall be governed by the terms and conditions of this clause 15.
15.2 The disclosure of confidential and proprietary information hereunder shall pertain to the consideration of a business relationship or transaction between JABATIX and the Licensee, and any resulting relationship or transaction, but not a recipient’s use outside of such relationship (Permitted Purpose).
15.3 All information disclosed (a) to a recipient by a discloser hereunder or any of discloser’s suppliers, employees, contractors or customers; (b) in writing or by way of any other media or orally or visually; and (c) in such a manner that a reasonable person would understand that such information is confidential; except any portion thereof that a recipient can clearly demonstrate (d) as known to that recipient before receipt thereof under this agreement; (e) is disclosed to that recipient by a third person who has a right to make such disclosure without an obligation of confidentiality; or (f) enters the public domain through no act or default on the part of that recipient; provided that only the specific information that meets the exclusions shall be excluded, and not any other information that happens to appear in proximity to such excluded portions (for example, a portion of a document may be excluded without affecting the confidential nature of those portions that do not themselves qualify for exclusion) (Confidential Information).
15.4 Subject to all of the terms and conditions of this clause 15, both, JABATIX and the Licensee, are willing to disclose certain Confidential Information to the other solely for the Permitted Purpose. Each of the parties hereto represents and warrants that it is authorised to disclose any and all Confidential Information made available to the other party pursuant to this agreement.
15.5 Each recipient agrees (a) to keep secret and maintain the Confidential Information as confidential and to hold the Confidential Information in trust for the exclusive benefit of discloser; (b) to use the Confidential Information solely for the Permitted Purpose; (c) to segregate the Confidential Information from that recipient’s other information and that of third parties; (d) not to copy, disassemble or reverse engineer the Confidential Information; (e) to notify promptly discloser upon learning about any court order or other legal requirement that purports to compel disclosure of any Confidential Information and to cooperate with discloser in the exercise of discloser’s right to protect the confidentiality of the Confidential Information before any tribunal or governmental agency; (f) not to disclose the Confidential Information to any person or entity not a party to this Agreement other than such of that recipient’s employees or contractors who (i) have a need to know the Confidential Information for the Permitted Purpose; (ii) are apprised of the confidential nature of the Confidential Information; and (iii) execute a confidentiality agreement restricting disclosure of the Confidential Information in a manner consistent with the provisions of this agreement, provided that the recipient shall be responsible for breaches of this agreement by its employees and contractors; (g) to exercise all reasonable precautions to prevent unauthorised access to the Confidential Information (including without limitation, all precautions the recipient employs with respect to its confidential materials); and (h) to return promptly to discloser at any time upon discloser’s request, any and all materials pertaining to or containing any information. For the purpose of this clause 15, the Software, related Documentation, test data and deposit materials shall be deemed to be the Confidential Information of JABATIX.
15.6 All of discloser’s rights in and to the information disclosed hereunder by it shall remain the exclusive property of discloser and neither this clause 15, nor any disclosure of Information hereunder, in any way (a) grants to a recipient any right or licence under any copyright, patent, mask work or trademark now or hereafter owned or controlled by discloser, except solely for the Permitted Purpose; (b) obligates either party to disclose or receive any information, perform any work, enter into any licence, business engagement or other agreement; (c) creates any joint relationship or authorises either party to act or speak on behalf of the other; or (d) limits either party from entering into any business relationship with any third party.
You agree to defend, indemnify and hold harmless JABATIX and its subsidiaries, individuals with respect to any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses, including solicitors’ fees arising out of or in connection with this Licence, including, without limitation: (a) your use of the Software; (b) your violation of these Licence or any law, rule or regulation; or (c) your use of this website. You will cooperate as fully and reasonably as required by JABATIX in the defence of any claim. Notwithstanding the foregoing, JABATIX retains the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of actions which are brought against JABATIX herein under the terms and provisions of this section 16 and in no event, shall you settle any such claim without JABATIX’s prior written approval.
Version: 8 May 2017