SOFTWATCH TECHNOLOGIES 2009
END USER LICENSE AGREEMENT
This End User License Agreement (the “Agreement“) is made between you (both the individual using the SoftWatch System accompanying this Agreement, and any legal entity on whose behalf such individual is acting) (hereinafter: “you” or “your”) and SoftWatch Technologies 2009 Ltd. (“SoftWatch”).
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE ACCEPTING, AND/OR BEFORE REGISTERING FOR THE SERVICES AND/OR DOWNLOADING OR INSTALLING THE SYSTEM (DEFINED BELOW). THIS SYSTEM IS COPYRIGHTED AND LICENSED (NOT SOLD). TAKING ANY STEP TO SETUP OR INSTALL THE SYSTEM CONSTITUTES YOUR ASSENT TO AND ACCEPTANCE OF THIS AGREEMENT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. THE REGISTRATION BY YOU TO THE SERVICES (DEFINED BELOW) IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE ALL USE OF THE SYSTEM.
NOTE: ALL USE OF THE SOFTWARE AND SERVICES SHALL BE AS APPROVED BY SOFTWATCH HEREUNDER, AND SUBJECT TO THE SPECIFICATIONS, FEES, FEATURES, SCOPE, DURATION AND SUCH ADDITIONAL TERMS AND CONDITIONS AS AGREED BETWEEN SOFTWATCH AND YOU IN WRITING (“ADDITIONAL TERMS”), INCLUDING ANY SUCH ADDITIONAL TERMS WHICH MAY BE SPECIFIED UNDER ANY CORRESPONDING SERVICE ORDER (AS DEFINED BELOW) WHICH YOU HAVE EXECUTED, SIGNED OR OTHERWISE AUTHORIZED IN CONJUNCTION WITH THE ORDER OF THE SERVICE, AND WHICH SOFTWATCH APPROVES. THE TERMS AND CONDITIONS OF SUCH ADDITIONAL TERMS AND/OR SERVICE ORDER ARE HEREBY INCORPORATED BY REFERENCE INTO THIS AGREEMENT, AND ANY REFERENCE TO “AGREEMENT” SHALL ALSO REFER TO SUCH ADDITIONAL TERMS AND/OR SERVICE ORDER, AS APPLICABLE.
- “Agent” means the proprietary SoftWatch software code owned or licensed by SoftWatch which may be provided to you by SoftWatch and/or downloaded and installed by you on your Device or Devices, for the purpose of using the Services and Software, in accordance with the Additional Terms, Service Order and/or License (as defined below).
- “Customer Data” means all electronic or other data or information collected via the System, about you, your systems, Devices or network, or in connection with any of your Device Users, all through or in connection with the use of the System;
- “Device(s)” means a workstation, server, laptop or other networked appliance.
- “Device User(s)” means those individuals who are determined and/or authorized by you or on your behalf to use the System or to otherwise be subject in any way to the operation and/or use of the System by you (including such end-users as your employees or services providers who operate Devices at your organization).
- “Intellectual Property Rights” means any and/or all (a) patents, patent applications and patent rights including divisionals, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired; (b) rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions, moral rights; (c) trademarks, trade names, service marks, applications therefore, all goodwill associated with the same; (d) rights relating to know-how and the protection of trade secrets and confidential information; (e) design rights and industrial property rights; (f) rights similar to those set forth herein and any other proprietary rights relating to intangible property, whether or not capable of registration, including, without limitation; and (g) all rights to sue for any infringement of any of the foregoing rights and the right to all income, royalties, damages and payments with respect to any of the foregoing rights
- “Service(s)” means products and services specified in Annex A including data analysis provided to you by SoftWatch and/or its reseller, to which you are granted access under this Agreement, and which are accessible via the Website or any other third party website designated by SoftWatch.
- “Software” means an Agent downloaded to your Device(s) and any other software code provided to you and/or used as part of the Services, together with any related and accompanying documentation (the “Documentation“) and any images, graphic user interfaces, design elements, custom made adaptations, order of operations, so called “look and feel”, data organization, ideas, concepts, photographs, animations, text and “applets” that are incorporated into the abovementioned Agent and/or software code, and any update or a new release thereto or thereof.
- “System” means the Software, the Services, the Agent and all associated processes.
- “Service Order” means a service order made by you directly with SoftWatch or its reseller.
- “Website” means SoftWatch’s website at: http://www.softwatch.com
- License. SoftWatch grants you a non-exclusive, non-transferable, non-assignable, non-sublicensable, fully revocable limited license, for the Term (as defined below), to download install and use, the Agents and Software ,solely for your own internal use on your Devices, in connection with the Services and in accordance with the terms of this Agreement (the “License“). You may remove an Agent(s) and Software at any time and from any of your Devices.
- Privacy. The System may be used in order to access, collect, store, analyze and process certain Customer Data, for the purposes of this Agreement. You hereby represent and warrant that you have the full right, permissions and consents including from each of your Device Users for using such Customer Data, including for SoftWatch’s use on your behalf, for the purpose of rendering the Services. You hereby waive any and all claims against SoftWatch in relation to the collection, use, storage or processing of such Customer Data and in relation to any breach of your and/or any of your Device Users’ privacy.
- Use of System. The System is protected by applicable intellectual property laws and international treaty provisions. You acknowledge and agree to the following: (i) Unauthorized copying of the System in whole or in part is expressly forbidden; (ii) Neither the System nor any portion thereof may be used by or on behalf of, accessed by, re-sold to, returned to, or distributed to any party other than you. You agree not to allow others to use the System, except as expressly authorized in this Agreement, and you will not use the System for the benefit of third parties; (iii) You acknowledge that the source code of the System, and the underlying ideas or concepts are valuable intellectual property of SoftWatch and you agree not to attempt to (or permit your Device Users or others to) decipher, reverse translate, decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the System by any means whatsoever, except as expressly authorized in writing by SoftWatch on a case-by-case basis and only to the extent permitted by applicable law; (iv) You will not develop methods to enable unauthorized parties to use the System, or develop any other product containing any of the concepts and ideas contained in the System, except as expressly authorized in this Agreement; (v) You will not (and will not allow others to) modify and/or emulate the System or create a derivative work of the System (or any part thereof); (vi) You will not (and will not allow your Device Users or others to) remove any copyright or other proprietary notices from the System; (vii) You will not test the System or use the System in connection with any benchmark tests, evaluation or any other tests of which the results are designated or likely to be published in any form or media or otherwise made available to the public, without SoftWatch’s prior written approval; (viii) Other than as explicitly permitted herein, you will not rent, lend, lease, sub-license or transfer the System and/or your rights to the System (or any part thereof); (ix) You or any person under your authority or control will not make copies of the System or any portions thereof, except as expressly authorized in this Agreement; (x) You will not use the System (or any part thereof) in a manner that is not in compliance with the Documentation and with SoftWatch’s specific instructions; (xi) You will not copy nor modify, adapt or translate into any language the Documentation, nor create derivative works based on the Documentation, without the prior written consent of SoftWatch.
- You may, at any time, elect to obtain the SoftWatch License subject to SoftWatch’s service and subscription fees. In the event that you have elected to pay the fees via SoftWatch’s online credit card payment process, you will be required to provide your payment card details and related billing information to enable SoftWatch, via a third party payment service provider, to charge you for the fees, all in accordance with the Online Payment Terms and Conditions. You must read and accept the Online Payment Terms and Conditions prior to proceeding with the online payment process. In the event that you may not pay via SoftWatch’s online credit card payment process, you may contact SoftWatch at www.softwatch.com to finalize your payment arrangements.
- Third Party Licenses. The System includes software, components and materials of third parties licensed under certain Open Source licenses (“Open Source Materials”). The System does not, as of the Effective Date, contain any Open Source Materials which are expected by SoftWatch to materially and adversely affect, by themselves or given the manner of their use in the System, your systems, network or Devices.
- Intellectual Property.
- You acknowledge and agree that SoftWatch or its licensors, the System (and any part thereof), including any revisions, corrections, modifications, enhancements, derivatives and/or upgrades thereto as well as any knowhow, trade secrets, pricing information, materials, methodology and documentation in connection with the Service and System are SoftWatch’s exclusive property protected under any applicable laws and treaties. You further acknowledge and agree that all right, title and interests in and to the System, including associated Intellectual Property Rights evidenced by or embodied in and/or attached/connected/related to the System are and shall remain with SoftWatch. This Agreement does not convey to you an interest in or to the System, but only a limited right of use of the System, revocable in accordance with the terms and conditions of this Agreement. Nothing in this Agreement constitutes a waiver of SoftWatch’s Intellectual Property Rights under applicable law.
- You are under no obligation to provide to SoftWatch any suggestions, comments and/or other feedback regarding the System or any part thereof (“Feedback”); however in the event that you choose to provide SoftWatch with such Feedback, whether it is provided prior to, on or after the Effective Date, such Feedback shall become the sole and exclusive property of SoftWatch, and you hereby irrevocably assign to SoftWatch all of your right, title and interest in and to all Feedback, and hereby irrevocably waive any moral right you may have in such Feedback.
- Customer Data. As between SoftWatch and you, you shall retain all ownership and interest in and to the Customer Data, except as otherwise provided in hereunder.
- You hereby grant SoftWatch a perpetual, irrevocable, non-exclusive, worldwide, royalty-free right and license to use the Customer Data for the purpose of providing you with the System and Services during the Term, and in order to create high-level statistics and other aggregated and non-identifying information, data and analysis, for such purposes as improving the System and Services, performing general market research, and for the development and/or evaluation of additional or modified services, features and functionality with respect to the System.
- SoftWatch will reasonably safeguard your Customer Data and prevent unauthorized, negligent or inadvertent use or disclosure thereof. SoftWatch and/or its reseller shall only use such Customer Data as required to provide the Services to you and maintain the System. SoftWatch reserves the right to withhold, remove, and/or discard Customer Data for any breach of this Agreement. It is your responsibility to download any Customer Data prior to terminating the Service. You may request SoftWatch to delete your Customer Data by emailing us at firstname.lastname@example.org and then following the identification and related instructions provided to you by SoftWatch
- Confidentiality. In connection with carrying out this Agreement the parties may have access to one another’s information that is confidential (“Confidential Information”). Each party may disclose to the other only Confidential Information of the other party that is required for the performance of its obligations under this Agreement or otherwise for carrying out this Agreement. Confidential information shall be limited to the terms and pricing of the Services, the System including any and all revisions, corrections, modifications, enhancements, derivatives and/or upgrades thereto as well as any knowhow, documentation and any information relating to the technology and code contained therein, any Customer Data, and all information clearly identified as confidential at the time of disclosure. Each party agrees to hold each other’s Confidential Information in confidence until such Confidential Information is no longer considered to be Confidential Information. Also, each party agrees to disclose Confidential Information only to those employees or agents who are required to know it for the purposes stipulated hereunder, and to protect it against unauthorized disclosure in a manner no less protective than it uses for its own Confidential Information. Nothing shall prevent either party from disclosing the terms or pricing under the Terms in any legal proceeding arising from or in connection with this Agreement or from disclosing the Confidential Information to a governmental entity as required by law. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
- Term and Termination.
- The Term of the Agreement shall be as set forth under the respective Service Order or as otherwise agreed between you and SoftWatch in writing. Upon any violation by you of any of the provisions of this Agreement, which has not been remedied within 5 days after you have been given written notice of the violation, which may be made via email, then without derogating from any right or remedy to which SoftWatch may be entitled, rights to use the System shall automatically terminate. In such event, you shall indemnify SoftWatch for any loss, expense and/or damage incurred by SoftWatch pursuant to such breach or violation, in addition to any other rights and remedies available to SoftWatch under applicable law. You may terminate this Agreement at any time by removing all copies of the Software and Agents from all your Devices.
- All rights and licenses granted to you under this Agreement shall immediately terminate upon expiration or termination of this Agreement, and you shall cease all use of the System and/or Services, and promptly delete and purge all traces of the Agent from your systems and custody, and shall be permitted (except in the event of termination by SoftWatch due to a breach by you) to download any Customer Data then currently available on the SoftWatch Product, within 7 business days of such termination or expiration, after which SoftWatch may remove and/or otherwise discard any such Customer Data at is discretion. You agree and acknowledge SoftWatch has no obligation to retain Customer Data and/or End User Data after Termination or expiration and that Customer Data may be irretrievably deleted by SoftWatch 30 days following the termination of the this Agreement. The provisions of Sections 1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13 and 14 hereof shall survive the expiration or termination of these Terms. The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced by the termination or expiration of the Term
- Limitation of Warranty. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH UNDER THIS AGREEMENT, THE LICENSE TO USE THE SYSTEM AND/OR SERVICES AS SET FORTH HEREIN, IS PROVIDED FOR THE USE OF THE SYSTEM AND/OR SERVICES “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, AND SOFTWATCH DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Limitation of Liability. YOU HEREBY AGREE THAT IN NO EVENT SHALL SOFTWATCH OR ITS SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION OR DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE SALE OF, USE OF OR INABILITY TO USE THE SYSTEM, EVEN IF SOFTWATCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SOFTWATCH BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT SOFTWATCH RECEIVED FROM YOU FOR THE SPECIFIC LICENSE FOR WHICH YOU HAVE SUBSCRIBED, WHICH GIVES RISE TO THE LIABLITY. YOU ACKNOWLEDGE THAT THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK, AND THAT SOFTWATCH WOULD NOT PROVIDE THE SYSTEM EXCEPT UNDER THE TERMS OF THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL AND ANY CLAIMS, INCLUDING FOR BREACH OF CONTRACT, BREACH OF WARRANTY, GUARANTEE OR CONDITION, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT TO THE EXTENT PERMITTED BY APPLICABLE LAW. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FAILURE OF ANY ESSENTIAL PURPOSE. THIS LIMITATION IS AN ESSENTIAL PART OF THE AGREEMENT BETWEEN YOU AND SOFTWATCH.
- YOU HEREBY ACKNOWLEDGE THAT SOME FUNCTIONS OF THE SOFTWARE AND/OR SERVICES MAY NOT BE FULLY FUNCTIONABLE, DUE TO YOUR COMPUTER SYSTEM AND/OR NETWORK CONFIGURATION OR THE USE OF WHICH MAY BE LIMITED DUE TO LEGAL REQUIREMENTS APPLICABLE IN AND/OR TO YOUR JURISDICTION. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE AND/OR SERVICES IS BORNE BY YOU.
- SOME JURISDICTIONS MAY NOT ALLOW SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS OF LIABILITY, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU TO THE LIMITED EXTENT THAT THEY CONFLICT WITH APPLICABLE LAW. YOU MAY ALSO HAVE ADDITIONAL CONSUMER RIGHTS IN YOUR LOCATION WHICH MAY NOT BE CHANGED BY THIS AGREEMENT.
- Export Control. You shall comply with all applicable government trade and export control laws and regulations with respect to the System. You agree that the System will not be transferred or exported into any country or used in any manner prohibited by any applicable laws in any jurisdiction.
- Miscellaneous. You may not assign your rights or obligations under this Agreement without the prior written consent of SoftWatch, provided that such consent shall not be required in connection with a merger or acquisition of all or substantially all of your share capital or assets. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of the provisions of this Agreement shall remain in full force and effect. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. SoftWatch is an independent contractor and you agree that no partnership, joint venture, or agency relationship exists between you and SoftWatch. Each party will be responsible for paying its own employees, including employment related taxes and insurance. Except for actions for nonpayment or breach of SoftWatch’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement and transaction contemplated hereunder may be brought by either party more than two years after the cause of action has accrued.
- Law and Venue. This Agreement shall be exclusively governed by and construed under the laws of the State of New York, exclusive of its choice of law rules. The competent courts of New York shall have exclusive jurisdiction over all affairs arising out this Agreement.
- Entire Agreement. This Agreement and any Schedule(s) thereto including the Additional Terms and/or Service Order (where applicable), sets the entire understanding and agreement between you and SoftWatch, it supersedes any prior proposal, representation and understanding concerning the System, and may be amended only in writing signed by both parties. If you are a corporation, partnership or similar entity, then the license to use the System granted hereunder is deemed to be accepted by a person authorized to sign for and bind the entity.
Annex A – Products and Services
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