Last updated on 18th September 2020.
This End User License Agreement (the “EULA”) for the Software is hereby entered into and agreed upon by You and the business entity you represent (“Licensee” or collectively, “you”, “your” or “end user”) and Undo Limited, a company registered in England and Wales, number 05494036 (“Licensor”, “Undo Limited,” or “Us”)
By clicking through these terms online upon downloading the Software, or by entering into an Order Form (as defined below), or by using the Service or Software, You agree that you have read, understood, and agree to be bound by this Agreement, as may be amended by Undo Limited from time to time.
Undo Limited, may provide you with notice of material changes to this EULA. Your continued use of the Services and/or Software constitutes your acceptance to the amended terms. This Agreement shall apply to any order form, evaluation trial, sales quotation, proposal, purchase order, or other ordering document that references this Agreement (each an “Order Form”), as may be applicable.
Software Evaluation/ Beta/ Early Access License
If you are licensing the Software for evaluation purposes, your use of the Software is only permitted for the period limited by the Software License Key. Notwithstanding any other provision in this EULA, an Evaluation License of the Software is provided “AS-IS” without support or warranty of any kind, expressed or implied.
1.1 “Documentation” means, collectively, the operation instructions, release notes, user manuals and/or help files and training materials for the Software in electronic or written form.
1.2 “Software” means software products that are licensed to Licensee under this Agreement, including, but not limited to, any related components purchased or provided with the Software, Documentation, and any maintenance releases thereto. The term “Software” includes the Open Source Software except where the context or this Agreement indicates otherwise.
1.3 “Software License Key” means a valid license key issued to Licensee to activate and use the Software.
1.4 “Open Source Software” means various software components including open source software components that may be part of the Software (as further described in Section 2.1).
2. General use
2.1 Open source Software and/or Components. Portions of the Software provided to Licensee contain Open Source Software or publicly available content under separate license and copyright requirements which can be found within the file LICENSE-3rd_party.txt in the Software distribution archive. Nothing in this Agreement limits an end user’s rights under, or grants the Licensee rights that supersede, the terms of any applicable Open Source Software license agreement.
3. Grant of license
Upon payment of the fees applicable under this Agreement, Licensor hereby grants to Licensee a nonexclusive, non-transferable license to use the Software and Documentation, for internal purposes, for the period of time for which Licensee has paid the fees, subject to the following terms:
For each Software license key that Licensee purchases, Licensee may: (i) use the Software on any computer in use by the Licensee; (ii) only use the Software for that number of users permitted by the Software License Key; and (iii) copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software’s proprietary notices.
The Software is “in use” on a computer when it is loaded into temporary memory or installed in permanent memory (Hard Drive, CD-ROM or other storage device). Licensee agrees to use Licensee’s best efforts to prevent and protect the contents of the Software and Documentation from unauthorized use or disclosure. Licensee agrees to only install a Software License Key obtained directly from the Licensor.
Licensee is responsible for ensuring that all individuals who access the Software through Licensee are familiar with the terms of this Agreement and that such individuals use the Software in compliance with these terms.
4. License restrictions
4.1 Licensee may not: (i) permit other individuals to use the Software or Documentation except as expressly provided in this Agreement; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for back-up or archival purposes); (iv) rent, lease, transfer, or otherwise grant rights to the Software or Documentation except to the extent expressly permitted under this Agreement; or (v) remove any proprietary notices or labels on the Software or Documentation. In addition to, and without limiting the foregoing, Licensee may not break out of the virtual machine console menu or gain access to the shell via any other means in order to execute commands from the command line.
4.2 Export Restrictions. Licensee represents that it is not a national or resident of any country subject to U.S. export restrictions. Licensee agree that it will not export or re-export, or allow the export or reexport of, the Software or any technology or information contained therein, or any direct product thereof, to any country, person, entity or end user subject to U.S. export restrictions. Licensee represents that neither the U.S. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied Licensee’s export privileges. Licensee agrees to comply with all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority.
4.3 Compliance with Applicable Laws. Without limiting anything in Section 4.2, Licensee agrees that it will only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which Licensee will use the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
5. Proprietary Rights
5.1 Except for the license conveyed herein, all rights, title, and interest in and to the Software, Documentation, and corresponding intellectual property shall remain in Licensor or its suppliers or are publicly available. The Software and Documentation are protected by the copyright and intellectual property laws of England and Wales and international copyright and intellectual property laws and treaties. All rights not expressly granted under this Agreement are reserved by Licensor, its suppliers, or third parties.
6. Limited Warranty
Licensor warrants to Licensee that for a period of thirty (30) days following delivery of the Software to Licensee that the Software will perform substantially in conformance with the Documentation. Licensor does not warrant that the Software will meet all of Licensee’s requirements or that the use of the Software will be uninterrupted or error-free. The foregoing warranty applies only to failures in operation of the Software that are reproducible in standalone form and does not apply to: (i) a failure by Licensee to operate the Software within the systems requirements provided for the Software or Licensee’s use of the Software in combination with other products not provided or expressly approved by Licensor; (ii) Software that is modified or altered by Licensee or any third party that is not authorized, in writing, by Licensor; (iii) Software that is operated in violation of this Agreement or other than in accordance with the Documentation; (iv) failures that are caused by other software or hardware products; or (v) Licensee’s failure or refusal to implement maintenance releases. To the maximum extent permitted under applicable law, as Licensor and its supplier’s entire liability, and as Licensee’s exclusive remedy for any breach of the foregoing warranty, Licensor will, at its sole option and expense, promptly repair or replace any Software that fails to meet this limited warranty or, if Licensor is unable to repair or replace the Software, terminate the license and refund to Licensee a pro-rated portion of the applicable license fees for the period following termination, which shall be paid upon return of the nonconforming item to Licensor. The warranty is void if failure of the Software has resulted from accident, abuse, or misapplication.
Any replacement Software will be warranted for 30 days.
EXCEPT AS EXPRESSLY STATED IN THIS SECTION, THE SOFTWARE IS LICENSED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
7. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE, IN THE AGGREGATE, FOR MORE THAN THE AMOUNT OF LICENSE FEES THAT LICENSEE HAS PAID TO LICENSOR IN THE PRECEDING SIX (6) MONTHS OR BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF LICENSOR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY. THIS PARAGRAPH DOES NOT LIMIT LIABILITY FOR BODILY INJURY OR DEATH AS A RESULT OF LICENSOR’S NEGLIGENCE TO THE EXTENT SUCH LIABILITY CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
The Licensor shall defend Licensee against any third party claim that Licensee’s use of the Software in accordance with the terms of this Agreement infringes any U.K. copyright, trademark or patent, and Licensor will indemnify Licensee against damages awarded on any such claim, provided that Licensor is promptly notified of any such claim and given reasonable assistance (at Licensor’s expense) with, and sole control over, the defense and all negotiations for a settlement or compromise. Failure to so notify Licensor shall not relieve Licensor of its obligation to indemnify Licensee except to the extent such failure to notify shall have materially impaired Licensor’s ability to defend against the claim. Licensor will not be responsible for any settlement it does not approve in writing.
In the event that Licensee’s use of the Software is determined to infringe any third party’s intellectual property rights, Licensor will, at its option, and at no cost to Licensee, either (a) procure a license enabling Licensee to continue to use the Software, (b) replace the Software with substantially equivalent software, or (c) terminate this Agreement and refund a prorated portion of the fee paid by Licensee hereunder for the period following termination, which shall be paid upon return of the Software to Licensor.
The obligations of the Licensor under this Section 8 do not apply with respect to Software or portions or components thereof (1) that are modified or altered by Licensee or any third party that is not authorized, in writing, by Licensor, (2) that are combined with other products, processes or materials to the extent that the alleged infringement is based on such combination, (3) to the extent that Licensee continued allegedly infringing activity after being notified thereof or of the availability of maintenance releases or other modifications that would have avoided the alleged infringement, or (4) where Licensee uses the Software in violation of this Agreement or other than in accordance with the Documentation.
This Section sets forth Licensee’s sole and exclusive remedy and the Licensor’s sole obligation with respect to claims of infringement.
The Licensee is responsible for the consequences of its use of the Software. The Licensee agrees to defend, indemnify and hold harmless Licensor, and any of its directors, officers, employees, affiliates, suppliers, resellers or agents, from and against any and all losses, damages, liabilities, costs and other expenses (including reasonable attorneys’ fees) based on any claim brought by a third party, arising from the Licensee’s use or modification of the Software except to the extent The Licensor is required to indemnify the Licensee under Section 8, provided that the Licensee is promptly notified of any and all such claims and given reasonable assistance (at the Licensee’s expense) with, and sole control over, the defense and all negotiations for a settlement or compromise. Failure to so notify the Licensee shall not relieve the Licensee of its obligation to indemnify the Licensor except to the extent such failure to notify shall have materially impaired the Licensee’s ability to defend against the claim.
The Licensee will not be responsible for any settlement it does not approve in writing.
The Licensee will treat the Software as a trade secret and proprietary information belonging to the Licensor that is being made available to the Licensee in confidence. The Licensee agrees to treat the Software with at least the same care as it treats its own highly confidential or proprietary information, but not less than reasonable care. The Licensor will not use any information provided by the Licensee that is marked confidential or that a reasonable person would presume is confidential for any purpose other than to provide the Software and Maintenance under this Agreement. Further, the Licensor will restrict disclosure of such confidential information to employees or contractors of the Licensor who have a need to know such information for purposes of this Agreement.
10. Support and Maintenance
10.1 Maintenance Services. The Licensor agrees to provide to the Licensee, during the validity of the license and term of this Agreement, support and maintenance (collectively “Maintenance”) as follows:
10.2. Support: The Licensor will provide email and online support to Licensee for current versions of the Software. The Licensee agrees to provide adequate information to the Licensor to assist in the investigation and to confirm that any problems have been resolved. The Licensor does not provide guaranteed response time but will make good faith effort to answer emails and online support tickets within forty-eight (48) hours or less during weekdays, excluding holidays.
10.3 Maintenance: The Licensor will supply, at no additional charge, any improvements, upgrades, or modifications to the Software that the Licensor makes generally available. Any such improvements, upgrades, or modifications shall become part of the Software for all purposes of this Agreement. The Licensee acknowledges and agrees that the Maintenance to be provided by the Licensor hereunder is limited to the most current version of the Software.
10.4 Exclusions. The Licensor’s obligation to provide Support is contingent upon proper use of the Software and full compliance with this Agreement. Moreover, the Licensor shall be under no obligation to provide Support should such services be required due to (a) failure to operate the Software within the systems requirements provided for the Software or use of the Software in combination with other products not provided or expressly approved by the Licensor (b) any modification or attempted modification of the Software by Licensee or any third party that is not authorized, in writing, by the Licensor (c) Licensee’s failure or refusal to implement maintenance releases(d) Software that is operated in violation of this Agreement or other than in accordance with the Documentation or the Licensor’s written instructions, or (e) failures that are caused by other software or hardware products.
11. Term and Termination
Licensor may terminate this Agreement, including the license hereunder, if Licensee fails to comply with any of its terms and does not cure the same, if curable, within 10 days after receiving written notice thereof. Without limiting the foregoing, Licensee’s license under this Agreement shall automatically terminate without further action required on the part of the Licensor if Licensee uses the Software outside of the scope of its license or violates its confidentiality obligations. The Licensor shall have the right to audit Licensee’s use of the Software during the term of this Agreement and for two (2) years following termination.
If any provision of this Agreement is held to be unenforceable, that shall not affect the enforceability of the remaining provisions, and such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect while most nearly adhering to the intent expressed herein. This Agreement shall be governed by the laws of England and Wales, without regard to any conflict of laws provisions, except that the United Nations Convention on the International Sale of Goods shall not apply. Licensee hereby consents to jurisdiction of the courts of Cambridge, England. Licensee may not assign, sublicense or otherwise transfer this Agreement or any of its rights hereunder without the Licensor’s prior written consent. The provisions of Sections 5, 7, 8, 9 and 9 shall survive the expiration or termination of this Agreement.
13. Complete Agreement
This Agreement constitutes the entire agreement between the Parties and supersedes all prior or contemporaneous communications, agreements and understandings, written or oral, with respect to the subject matter hereof including without limitation any purchase order issued in connection with this Agreement unless otherwise expressly agreed by the Licensor in such purchase order or other written document. No waiver shall be enforceable against the Licensor unless it is in a writing signed by the Licensor.
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