END USER LICENSE AGREEMENT (EULA)

Y Soft Corporation, a.s.

Version No. of the End User License Agreement: EULA V 6
Effective date of this version of the End User License Agreement: 07/19/2016
Issue date of this version of the End User License Agreement: 07/19/2016

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These license terms and conditions specified hereunder are binding upon all users of all software developed, or in any other manner delivered, by the company Y Soft Corporation, a.s., registered in the Commercial Register maintained by the Municipal Court in Prague under Section B, Entry No. 16279, ID No.: 26197740, with its registered office at Prague 3, U Kněžské louky 2151/18, Postcode: 13000 (hereinafter referred to as the ”Company“), irrespective of the method of delivery of the software.
 

1. DEFINITIONS

1.1 Licensee

A person being granted a specific License to Software consisting of modules and/or programs (if any) set out in: (i) the applicable License Certificate issued by the Company or generated by its License activation system; or (ii) by other means determined by the Company.

1.2 Company's Software

All software that is licenced directly by the Company or, as the case may be, which the Company may, on the basis of any other right, sublicence to potential Licensees.

1.3 Licensed Software

Company’s Software, the License to which has been granted to a specific Licensee, in its version current at the moment of the License grant and in extent compliant with the License Certificate and this EULA.

1.4 NFR Software

Such version of Company’s Software marked as “Not-for-resale” or “NFR” which has the full functionality of the Company’s respective Software, but may be used only for promotional purposes, namely for presentation, or training of use of the respective software.

1.5 Trial Software

Such version of Company’s Software marked as “Trial” which either (i) has the full functionality but might be used only for a limited period of time, or (ii) which might be used for an unlimited period of time but its functionality is restricted. The Trial Software might be used only by end users for purposes of evaluation of the Company’s relevant Software.

1.6 License

A non-exclusive right granted by the Company to the Licensee to use the Licensed Software and Related Documentation in the limited scope of its business activities subject to this EULA, and where applicable to the extent and for the period stated in the License Certificate.

1.7 Outsourcing License

Such License under which the Licensee is entitled to provide services to third parties through the use of the Licensed Software.

1.8 Subscription License

Such License which is provided in the form of a software subscription – i.e. for a definite period of time, which might be extended by further payments of the License Fee.

1.9 License Certificate

A certificate issued by the Company for the particular Licensee in order to grant such  Licensee a License. The License Certificate, in particular, contains (i) the date of the License grant, (ii) the individual modules and programs or the quantity thereof for which the usage right is granted (e.g. number of servers, clusters, terminals and connected devices) and other license parameters, if applicable, (iii) time period for which the Licensee is allowed to use the granted License, as well as (iv) reference to the current version of EULA stating the conditions under which the License is granted to the Licensee. The Company reserves the right to stipulate and/or update from time to time the manner of issuance and/or distribution of the License Certificates with respect to available distribution channels, License activation and Licensee authentification methods as available from time to time. Specifically, the License Cerificates may be issued (depending on agreement between Licensee/Partner and the Company) as a hardcopy document or generated by Company’s License authentification system based on activation of a License through electronic means.

1.10 Authorized Partner of the Company

A company authorized by the Company to distribute, implement and maintain the Company's Software.

1.11 License Fee

Fee that Licensee shall pay to the Company directly or indirectly (through the Authorized Partner) for the License.  License Fee shall be paid in an amount based on the currently valid manufacturer’s suggested retail pricelist (MSRP) of the Company for the Licensed Software unless a different amount of the License Fee has been agreed upon between the Licensee and the Company.   Certain Software might be provided free of charge by the Company.

1.12 Related Documentation

With respect to the Licensed Software, all materials, documentation, specifications, technical manuals, user manuals, diagrams, file descriptions and other written information (regardless of the form of such documentation, hardcopy or electronic) that describe the functionality and use of such Licensed Software and that are publicly available or are otherwise customarily provided to Customers for use with the relevant Licensed Software.

1.13 Software Support

An optional service to be provided to the Licensee by the Company or its Authorized Partners based on a separate agreement on software support.

2. USE OF SOFTWARE

2.1 Subject of the License 

Upon the issuance of the License Certificate or acceptance of this EULA by the Licensee as the case may be, the Licensee shall be granted the License under the terms and conditions stated herein.

2.2 Right to Use the Licensed Software

The Company represents that it is authorized to grant the License to the Licensed Software. Both contracting parties acknowledge that the Licensee does not, and shall not, obtain the ownership right hereunder to the Licensed Software and that the Licensee shall only have the rights to the Licensed Software that are specified in the currently valid EULA of the Company.

Where software products of third parties which may be governed by their own license terms (such as program libraries, parts of software tools, etc.) constiute a part of the the Company’s Software, the Company shall provide the Licensee with at least a simple non-exclusive and non-transferable right to use such software packages to operate the Licensed Software under the conditions and in the extent as specified in the Third Party Software Terms and Conditions document which forms an integral part of the EULA and is accessible via our website.

2.3 Limited Validity of the License, Revocation and Disabling Code 

Until the Company receives the full License Fee on behalf of the Licensee for the License, the Licensee has only a temporary right to use the Licensed Software that is conditional upon the due and timely receipt of the Licence Fee payment (if any is due for any given Software), and the Company may, at its sole discretion, ensure the temporary and conditional nature of the operation of the Licensed Software, by enforcing appropriate technical measures including the activation of a disabling access code (as stipulated below) within the Licensed Software.  

The Company is also entitled to terminate the  License with immediate effect in the event that the License Fee for the use of the Licensed Software (if any is due) is not paid for any reason whatsoever to the bank account of the Company within the due period and in the full amount.  In such case, the Licensee shall (i) return any Related Documentation of the Licensed Software as well as any media containing installation files; (ii) represent in writing and upon Company’s request provide proof of the destruction of any backup installations or installation files for the Licensed Software; (iii) not use the Licensed Software in any way; and (iv) enable the representatives of the Company to audit the fulfilment of these obligations.

The Licensed Software may contain computer code capable of automatically disabling proper operation or functioning of the Licensed Software or its parts.  Such disabling code may be activated if: (i) Company is not paid the full amount of the License fee (if any is due); (ii) Company is denied reasonable access to the Licensed Software to periodically reset such code (where applicable); (iii) Licensee has defaulted under this EULA; or (iv) the License is terminated or expires.

2.4 Non-transferability of the License

Unless expressly stated otherwise in this EULA, the License to the Licensed Software shall be granted to the Licensee solely for its internal business use. Without a Company´s prior express consent, the Licensee may not, either for or without consideration, return service, or payment, in any way further assign the rights and duties arising from the granted License, or lend, lease, sub-license, or in any other manner transfer the Licensed Software, or use the same as collateral or as security with respect to the Licensee's or any other person's obligations.

2.5 Changes to the License

The Licensee may not use the Company's Software in a scope exceeding the License granted to it (e.g. by involving a higher number of users, terminals, or servers etc.), or use the License in a manner other than as determined hereunder (e.g. as a terminal License for servers etc.), without the prior written (or electronically confirmed for electronic License activation procedures) consent of the Company (thereby exceeding the scope of the License Certificate) and without paying additional License Fees based on the Company's valid price list. Should the Licensee use any of the Company’s Software in a manner or in a scope other than that permitted under this EULA, without the prior written consent of the Company, the Licensee shall pay the Company a contractual penalty amounting to twice the License Fee for Company's Software License which the Licensee would have needed to acquire to use the Company's Software to the extent and for the purpose that it in fact uses the Company's Software. Payment of the stated contractual penalty shall not affect the Company's right to terminate the validity of any License granted to the Licensee without entitling the Licensee to receive any settlement or reimbursement of any previously paid License Fees.

2.6 Copying the Licensed Software 

The Licensee is authorized to make one backup copy of the installation disks/files for the Licensed Software and/or Licensed Software, unless a different number of backup copies was agreed by the Company based on justified request. The Licensee may not use the backup copy of the Licensed Software within the scope of its regular activities, or for training or demonstration purposes. The Licensee agrees to mark the backup copy with a statement regarding the Company's intellectual property rights and the fact that this is strictly a backup copy, and with identification labels containing the details of the period for which the License is valid. With the exception of the backup copy, the Licensee may not make copies of the Licensed Software for any purpose.

2.7 Altering the Licensed Software

The Licensee may not conduct reverse engineering, decompile, or disassemble the Licensed Software or any other software of the Company, and it may not reconstitute the source code of the Licensed Software or any other software of the Company, and where such a restriction is not permitted under governing law, it is entitled to do so only to the minimum extent and for the purpose as required by the governing law.

2.8 Infringement of Rights related to the Licensed Software 

The Licensee undertakes to promptly inform the Company of any instance of which it becomes aware regarding the infringement of the Company's rights in relation to the Company's Software, and in particular, the Licensed Software, and to provide the Company with adequate assistance in establishing the Company's claim regarding the infringement of the  rights to the Company's Software.

2.9 Warranties

The Company warrants that the Licensed Software will for 90 days from its installation operate in accordance with the specifications stated in the Related Documentation, provided that i) the software’s operation does not conflict with any other applications operated by the Licensee or in the Licensee’s IT environment, and ii) it is used according to the Related Documentation, and iii) is duly installed by a person trained for this purpose (i.e. by a technician of the Company or of an Authorized Partner of the Company), iv) is duly used in accordance with the specification and purpose of the Licensed Software.

Since the Licensed Software is an up-to-date developed product of the computer technology of its type, and it is currently not possible to test and monitor all potential uses of this software, the Licensee hereby acknowledges that because of the variability of elements in the environment in which the Licensed Software is used, and the continuous development of technical equipment through which the Licensed Software is operated and with which it coexists, the Company cannot warrant that the Licensed Software is unconditionally error-free. Nevertheless, subject to the Software Support  being active for the relevant License (either automatically or optionally activated) the Company undertakes to use its best endeavours to repair any detected errors, anomalies, or repeated errors that are reported to the Company by the Licensee, and to remedy the same through, at its sole discretion and according to the severity of the error, a “hotfix” (one-off repair) or general repair (cumulative updates or maintenance updates or new version), as provided to all eligible users of the relevant version of the Licensed Software. The Company hereby also reserves the right to resolve the warranty claim by granting a License to a later version of the Licensed Software with relevant functionality. For the period of the provided warranty, support for the relevant version of the Licensed Software shall also be made available via the Authorized Partners of the Company.

The Company hereby reserves the right to release such repairs from time to time with respect to any of the Company's Software for the purpose of resolving defects, anomalies, or the limited functionality of any of the Company's Software. Unless and for the period such repairs (cumulative updates, hot-fixes and/or maintenance updates) are not installed by the Licensee, the Licensee cannot claim any rights arising from the provided warranty.   

The Licensee shall also not retain any rights arising from the warranty if the Licensee does not provide the Authorized Partner of the Company or the Company's representative with the appropriate assistance required to determine the causes and the effects of the claimed defect, as well as appropriate assistance required for its remedy.

The Licensee shall lodge its warranty claim (i.e. claim for the resolution of a defect in the Licensed Software) through the Authorized Partner of the Company which delivered or, as the case may be, which implemented the Licensed Software.

The warranty hereunder shall not apply to Software that is being provided free of charge.

2.10 Use of newer software versions by Licensee

Unless this EULA provides expressly otherwise, the Licensee may use the Licensed Software in only the version as indicated on the License Certificate with the following exceptions:

(i)     Subject to the Software Support  being active for the granted License (either automatically or optionally activated) the Licensee may use newer versions of the Licensed Software released by the Company within the term of the Software Support being active;

(ii)    Where the Company opted to replace the Licensed Software version listed in the License Certificate with a new one as a result of fixing of defects of such version – in which case the Licensee may use only the replacement version of the Licensed Software provided by the Company for this purpose.

2.11 Obligations arising from the Operation of the Licensed Software

The Licensed Software shall be operated and used only for the Licensee's activities, and under the Licensee's supervision and at its liability. The Licensee shall be solely responsible for (a) assessing and evaluating the effectiveness of the Licensed Software for its requirements; (b) ascertaining that the Licensed Software is appropriately used with respect to its personnel and computer resources, (c) ensuring that, specifically, all computer programs and hardware used in conjunction with the Licensed Software are free from any defects that adversely affect the functionality and operation of the Licensed Software, (d) establishing adequate operating supervision and procedures within the organization of the Licensee, and (e) for preparing or implementing troubleshooting plans including replacement and safeguarding measures (covering regular and adequate data backups, security of data traffic, data protection and the redundancy of critical systems) f) operating the software in compliance with the law governing the handling of personal and/or sensitive data.

2.12 Liability

To the extent permissible by applicable laws, the Company shall not be liable for any direct or indirect damage (including, but not limited to, damage in the form of business losses, tax penalties, or other debts to administrative authorities, loss of profit, damage to business relations, and loss or corruption of data) arising on the side of the Licensee or other parties to which the Licensee provides its services as a result of the use of the Licensed Software in accordance with the content of the respective License, or arising from the use of the Licensed Software. This shall also apply in cases where the Company has been notified in advance of the possibility of such damage arising. In no case shall the Company's liability towards the Licensee or any third parties arising from the use of the Company's Software, or any amount of damages, exceed the License fee paid by the Licensee for use of the Licensed Software, and this liability shall cover all of the Licensee's claims for damages against the Company arising from the granting of the License to the Licensed Software and its use by the Licensee. The Company shall also not be liable for any damage caused by (i) the activities of third parties, or by the services which they provide, (ii) the use of other software, or (iii) the neglected maintenance of the Licensed Software (including but not limited to, non-installation of available repairs), including any and all damage caused by other delivered software or services provided by Authorized Partners of the Company.

2.13    Commencement and termination of the License 

The License shall be effective from the date the Licensee agrees to the terms of EULA of the Company, e.g. by accepting the click-wrap license. The License terminates/expires at the end of the time period for which it was granted. The Company may terminate the License, if the Licensee is in breach of this EULA of the Company. Irrespective of the manner of termination of the License, the provisions of Subarticles 2.7, 2.8 and 2.11 shall survive its termination or expiration.

SPECIFIC LICENSE TYPES

Where applicable, based on the type of License acquired, the following provisions shall prevail over general License provisions.

3. USE OF NFR SOFTWARE

3.1 License Fee 

The License to use NFR Software is granted free of charge, therefore the Licensee is not obliged to pay to the Company any License Fee for the License to use NFR Software.

3.2 No Warranties and no Software Support

With regard to the NFR Software the Company provides no warranties or representations regarding the operation and functionality of the NFR Software. Regarding the NFR Software, the Company provides no Software Support.

The Licensee may only use the NFR Software in the version as indicated therein, however, during the validity of the License the Licensee is entitled to receive updates.

3.3 Termination of License

The Company is entitled to at its sole discretion terminate the License to use NFR Software with immediate effect and without any remedy to the Licensee.

4. USE OF TRIAL SOFTWARE

4.1 License Fee 

The License to use Trial Software is granted free of charge, therefore the Licensee is not obliged to pay to the Company any License Fee for the License to use Trial Software.

4.2 No Warranties and no Software Support

With regard to the Trial Software the Company provides no warranties or representations regarding the operation and functionality of the Trial Software. Regarding the Trial Software, the Company provides no Software Support.

The Licensee may only use the Trial Software in the version as indicated therein, however, during the validity of the License the Licensee is entitled to receive updates.  

4.3 Termination of License

The Licensee may only use the Trial Software for a limited period of time (usually three months), as set out in the relevant Licence Certificate, and after lapse of such period the Company is entitled to at its sole discretion terminate the License to use the Trial Software with immediate effect and without any remedy to the Licensee, even if the License to use Trial Software is not technically restricted for a limited period of time as defined under Art. 1.5 hereunder.

5. OUTSOURCING LICENSE

5.1 License Certificate 

In addition to the information listed in Subarticle 1.9 above, the License Certificate shall contain details of a person(s) to whom services may be provided by the Licensee through the use of the Licensed Software.

5.2 Extent of the License 

If the Licensee is granted the Outsourcing License, the Licensee is entitled to provide services through the use of the Licensed Software to third parties, but only to such third parties which are listed in the License Certificate.

5.3 Liability of the Licensee

In case of the Licensee being granted the Outsourcing License, it retains full liability for all actions as stipulated in Subarticle 2.10 above towards person(s) to whom services shall be provided through the use of the Licensed Software.

6. SUBSCRIPTION LICENSE

6.1 Use of newer versions

In addition to the exceptions stipulated in Subarticle 2.9 the Licensee may also use newer versions of the Licensed Software released by the Company within the term of the software subscription but only until the end of software subscription period.

6.2 Term of the License and its termination

The License shall expire at the end of the Licensed Software subscription period. Prior to such expiration the Licensee may extend the License by paying the respective License Fee to the Company. In such case the License shall be extended for such period for which the License Fee is paid. The License may be repeatedly extended by the above procedure.

7. RIGHTS FOR EXISTING LICENSEE AND CHANGES OF THE EULA

7.1

The Licensee who acquired its License(s) from the Company before the effective date of this version of the EULA:

(i)   may use the Licensed Software subject to licensing terms valid at the moment of issuance of the relevant License; but

(ii)  has a right to opt for and accept this version by informing the Company in writing about its intention and its will to accept this version of EULA as binding (directly or through Authorized Partners of the Company and always with reference to the current version of this document).

7.2

7.2 The Licensee may use the Licensed Software under the licensing terms (EULA terms) valid at the time of issuance of the License Certificate until (i) for a Subscription license: expiration of the period of the License as specified in the License Certificate or (ii) for a License purchased for a specified or indefinite period: Licensee acquires an upgrade of the Licensed Software. Once a subscription is extended or Licensed Software is upgraded, the Licensee accepts the EULA (or generally licensing terms) valid at the moment of such renewal, extension or upgrade.

8. Governing Law and Jurisdiction, Dispute Resolution

8.1

This EULA shall be governed, construed and enforced by the laws of the Czech Republic.

8.2

All disputes arising from, and in relation to  this EULA shall be resolved with final effect by the Arbitration Court attached to the Czech Chamber of Commerce and Agricultural Chamber of the Czech Republic, according to its Rules, by three arbitrators in accordance with the Rules of that Arbitration Court. The place of the proceedings shall be Prague and the language of the proceedings shall be English.

8.3

This EULA shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

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