The individual using this software represents and warrants that he or she has authority to enter into this agreement with AgilePulse on behalf of the Licensee, that he or she has read the terms and conditions set out herein, and that the Licensee accepts and agrees to be bound by this agreement. If the Licensee does not agree with the terms and conditions, the Licensee must not use or permit the use of the Product.
1. DEFINITIONS
Authorised User means a person or user account who is Licensed to use the Product, regardless of whether that person is an employee, contractor, subcontractor, vendor, partner, or customer of the Licensee.
Commencement Date means the date when Licensee started using the Product.
Embedded Software means third party software licensed by AgilePulse from a Licensor and embedded in the Product.
License means a license granted under this EULA to the Licensee to permit an Authorised User to use the Product.
Licensee means the individual or entity (inclusive of subsidiaries) that has licensed the Product under the terms and conditions of this agreement.
Licensor means the licensor of the Embedded Software.
OEM Distribution means distribution of the Product as either a bundled add-on to, or embedded component of, another application with such application being made available to its users as, but not limited to, an on-premises application, a hosted application, a Software-as-a-Service offering or a subscription service for which the distributor of the application receives a license fee or any form of direct or indirect compensation.
Product means the AgilePulse branded software that accompanies this EULA.
2. SUBJECT OF THE AGREEMENT
Subject to the terms and conditions of this agreement, AgilePulse hereby grants Licensee a non-exclusive, non-transferable right to use the Product for Licensee’s own internal business operations.
3. LICENSE FEE
The Licensee must pay all Fees by the due date and in the manner directed at the time of purchase of Product. Failure to pay Fees by the due date will result in the immediate termination of the licenses granted under this EULA.
4. NO WARRANTY
The Product is provided on an "as is" and "as available" basis without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance or merchantability or fitness for a particular purpose, including without limitation that AgilePulse does not warrant that the Product will be error-free, complete, or correct. Although we will try our best.
5. PUBLICITY RIGHTS
The Licensee does not grant AgilePulse the right to include the Licensee as a customer in Product promotional material without a written request by AgilePulse and approval by the Licensee.
6. SOFTWARE MAINTENANCE
AgilePulse will provide Software Maintenance for a period of the License subscription or renewal. Software Maintenance includes AgilePulse provisioning to Licensee Product updates and/or enhancements made generally available to customers and online technical support for the sole purpose of addressing technical issues relating to the use of the Product (excluding any form of on-site visits by AgilePulse personnel or contractors).
7. LICENSEE OBLIGATIONS
The Licensee must at all times:
(a) ensure that only an Authorised User may use the Product in accordance with the terms and conditions of this agreement;
(b) advise AgilePulse in writing within thirty (30) calendar days if the Licensee becomes aware of any unauthorised use or distribution of the Product by any person.
8. UNAUTHORISED USE OR DISTRIBUTION
Licensee may not, whether through deliberate or negligent act or act of omission distribute or cause the distribution of the Product to any third party other than an Authorised User
9. LICENSEE'S RESTRICTIONS
Licensee must not, without the prior written consent of AgilePulse, which may be withheld and which may include certain conditions:
(a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, the Protected Code;
(b) sell, sublicense, redistribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form the Product or any data/information provided to the Licensee through the Product to a person (except that nothing in this paragraph (b) is intended to prevent an Authorised User to use the Product);
10. TERM
The term of this agreement begins on the Commencement Date and will continue in full force and effect until terminated.
11. TERMINATION
This agreement may be terminated by either party if the other party commits a material breach.
12. PRIVACY
(a) Privacy Policy regarding processing of personal data in relation to use of this Product is set out in our Privacy Policy, which constitutes an integral part of this EULA.
(b) In order to use our Product, you need to accept this EULA, as well as read, acknowledge and accept our Privacy Policy.
13. LIMITATION OF LIABILITY
Except for the breach of Clauses 3, 8 or 9, neither party will be liable to any person for any loss, damage, cost, expense or other claim (including consequential, direct, indirect, special, punitive or other damages and loss of data or profits) in relation to the Product including, without limitation:
(a) any use or reliance on a Product by the person (including the form and content of errors in and/or omissions from any information contained in a Product);
(b) any delay, interruption or other failure in the provision of the Product; or
(c) any change in the form or content of the Product.
In no event will AgilePulse and Licensors aggregate liability under any claims arising out of this agreement exceed the fees paid by Licensee under this agreement. Except for each party's indemnification obligations or breach of Clauses 3, 8 or 9, neither party will be liable for lost profits or for special, indirect, incidental or consequential damages, regardless of the form of action, even if such party is advised of the possibility of such damages. The foregoing liability limitations shall apply to the maximum extent allowed by applicable law. To the extent the foregoing liability limitations or the warranty disclaimers of Clause 4 are not allowed by applicable law, then the liability of AgilePulse, and the remedy of Licensee, shall be limited to the refund of any license fees paid by Licensee for such defective Product.
14. GOVERNING LAW
This agreement is governed by the laws of Germany, and the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts in Berlin, Germany.
15. INTELLECTUAL PROPERTY
The Licensee acknowledges that the Product and all intellectual property rights in relation to the Product are the property of AgilePulse or the Licensors and AgilePulse is entitled to take whatever action it may decide in order to protect its intellectual property rights in the Product.
17. NO ASSIGNMENT OR AMENDMENT
Licensee may assign this agreement to succeeding parties in the case of a merger, acquisition or change of control. AgilePulse may assign its rights and obligation under this agreement without consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this agreement.
18. CONFIDENTIAL INFORMATION
AgilePulse and the Licensee agree to maintain each other's confidential information in strict confidence. The parties agree to not reveal each other's confidential information to any third party or to use each other's confidential information for any reason other than to exercise rights or obligations clearly contemplated by this agreement.