NOTICE TO END-USER: PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY INSTALLING AND/OR OTHERWISE USING ALL OR ANY PART OF THE SOFTWARE AS DEFINED HEREIN YOU ACCEPT AND UNDERTAKE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE.
This End User Software License Agreement (the “Agreement”) is entered into between You as the person purchasing a license to use the Software and whose details are contained below (the “End-User” or “You”), and Smart Projects Holding, Ltd., a company organized and existing under the laws of the Republic of Malta, with offices located at 85 St. John Street, Valletta, Malta (the “Licensor”);
1. Grant of License.
1a. Subject to the terms of this Agreement, the Licensor grants You a limited, personal, non-exclusive, non-transferable, non-sublicensable license to use the Software as provided herein, solely for using the Software according with its documentation (the “License”).
1b. Each License allows You to install Software on two (2) different Computers and allows one (1) user at a time. Use of the Software by two or more users requires a separate License for each such user.
1c. For network deployment of the Software each user connected to the same Software’s server requires to have same Licence Type.
1d. The End-User acknowledges that updates may be licensed by the Licensor with additional or distinct terms and conditions.
1e. The License given pursuant to this Agreement is without prejudice to any additional user policies, rules or instructions which may be supplied with the Software or published by the Licensor from time to time. The End-User hereby agrees to comply with all such policies, rules or instructions and failure to do so shall be deemed to be a material breach of this Agreement.
1f. The Licensor reserves the right to amend the terms of the License given to the End-User pursuant to this Agreement. Continued Use of the Software by the End-User following the date of notification by the Licensor of the new terms shall be deemed to be an acceptance by the End-User of the new terms. The new terms shall supersede the terms of the original License and shall thereafter be deemed to be binding and enforceable.
2. Other Rights and Limitations.
You may not, and may not permit or aid others to, translate, reverse engineer, decompile, disassemble, update, modify, reproduce, duplicate, copy, distribute or otherwise disseminate all or any part of the Software, or extract source code from the object code of the Software. You may not assign, sublicense, transfer, pledge, lease, rent, or share your rights under this Agreement.
3. Proprietary Rights; Confidentiality.
You acknowledge and agree that the Software is a product of the Licensor protected under copyright laws and international treaties. This Agreement does not convey to you any interest in or to the Software, except for a limited right of use as set forth herein, terminable in accordance with the terms of this Agreement.
4. Data collection and usage.
You agree that the Licensor may collect and use anonymous technical data and related information to facilitate technical support, the provision of software updates, and other services related to the Software.
5. Term and Termination.
The Licensor may terminate this Agreement upon the breach by You of any of its terms. Any termination of this Agreement shall also terminate the License granted hereunder. Upon termination of this Agreement for any reason, You agree to destroy or remove from all computers, hard drives, networks, and other storage media all copies of the Software and, at the request of the Licensor, shall so certify to the Licensor that such actions have been performed. Termination of this Agreement does not entitle You to any refund of any license fees paid by You, if any.
The Licensor does not and cannot make any express or implied warrantees, guarantees, certification, assurances or representations of similar nature or effect (“Undertaking”), whether by law, civil or common, custom, usage or otherwise, with respect to the usability, performance of the Software for any purpose or to the fitness or reliability of the Software or any results obtained from the Use of the Software and/or for non-infringement of third-party rights, integration, satisfactory quality or fitness for any particular purpose.
The End-User understands and is aware that the Use, including the interfacing of the Software in conjunction with other Third-Party software or hardware, without the prior consent or authorization of the Third-Party may be deemed to be unlawful or illegal in particular jurisdictions and/or may be in breach of the rights, conditions or rules of the third-party on whose platform, services, equipment, hardware or software or otherwise the Software is Used, interfaced with or otherwise applied to or Used in conjunction with, and therefore it shall be the responsibility of the End-User to ensure that its use of the Software is lawful and not in breach of any third-party rights or other applicable laws in some jurisdictions. The Licensor makes no Undertaking and accepts no liability with respect to any thirds-party claims in this respect. The provisions of this Clause shall survive the termination of this Agreement, howsoever caused, provided that this shall not imply or create any continued right to Use the Software after termination of this Agreement.
The End-User is hereby notified and understands that most software products contain programming errors (“Bugs”) which may or may not be fixed or amended and therefore, the Licensor makes no Undertaking that the Software licensed pursuant to this Agreement is error free. Any implied warranties, whether at law, in custom or pursuant to industry standards, in this respect are also excluded and waived in their entirety by the End-User and the Licensor shall accept no liability towards the use of the Software or the completeness, accuracy or reliability of any data or other results generated from the Software and excludes all liability in respect to any damages of whatever kind suffered by the End-User through the use or reliance on the Software. Use and reliance of the Software is completely at the End-User’s risk. The Licensor furthermore does not guarantee any (i) Service-Levels, (ii) Uptime-Levels, (iii) Response-Times and/or (iv) that it shall fix and bugs, errors or faults in the Software and shall be entitled to request a fee for costs and expenses in providing a fix or turn-around solution.
The End-User agrees to defend, indemnify and hold harmless the Licensor from any claims, disputes, suits, proceedings, losses, liabilities, damages, costs and expenses (including without limitation reasonable legal, court and attorney’s fees) made against or incurred by the Licensor arising out of claims, suits or proceedings based on allegations alleging that the Use of the Software by the End-User infringes upon any third party’s intellectual property rights or otherwise violates any law, statute, ordinance or regulation. The End-User agrees to indemnify in full to the Licensor for any resulting, consequential, direct or indirect damages, costs and expenses finally awarded to a third party.
7. Limitation of Liability.
Notwithstanding anything stated herein to the contrary, the Licensor’s cumulative liability to you or any third party for any loss, cost or damage resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the license fees actually paid to the Licensor hereunder, if any. In no event shall the Licensor be liable for any indirect, incidental, consequential, special, or exemplary damages or lost profits, even if the Licensor has been advised of the possibility of such damages.
8. Governing Law.
This Agreement shall be governed by and construed in accordance with the English law and the United Kingdom Courts shall have the exclusive jurisdiction over all disputes relating to this Agreement.
9. Miscellaneous Provisions.
If any Clause of this Agreement, or part thereof, is deemed to be null, void and/or unenforceable, it shall not affect the validity of the remainder of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement does not and shall not be deemed to create or imply an agency, partnership or other type of joint venture by and between the parties. Any amendment to this Agreement shall be valid only and to the extent that it shall be in writing, duly executed and signed by an authorized officer of the Licensor. The provisions contained in this Agreement constitute the entire agreement between the Parties and supersede all prior agreements, representations, discussions, Undertakings, whether oral or written, and all other communications between the Parties. No term or condition contained in any document provided by one Party to the other Party pursuant to this Agreement shall be deemed to amend, modify, or supersede or take precedence over the terms and conditions contained herein unless explicitly agreed to in writing by and between the Parties. Any waiver of any failure to comply with any provision of this Agreement (or part thereof) or any waiver of any obligation imposed under this Agreement shall be executed in writing, dated and signed by both Parties. Provided that any waiver of one clause or of any failure to comply shall not be deemed to create any subsequent or similar waivers unless as stipulated by written and signed agreement. The End-User may not assign its obligations and/or rights pursuant to this Agreement. The validity of this License is dependent on the payment of all fees relating to the account of the End-User connected with the Use of the Software. All rights not expressly granted in this Agreement are reserved entirely to the Licensor.
For the purpose of this Agreement the following terms shall have the following meaning:
“Computer” means and refers to any programmable electronic device or technical mechanism or terminal that, amongst other things, accepts, reads and/or utilizes information in digital or similar form and converts or otherwise manipulates it for a specific result based on a sequence of instructions and/or which may respond to new instructions which it is given.
“Software” means and includes all the software, all documentation and other computer information (whether stored on disk, read only memory or any other media) with which this Agreement is provided including any modified versions, updates, upgrades and additions which may become available from the Licensor to the End-User.
“Use” or “Using” means and refers to any and all access, installation, running, download, copy, transfer, sharing, uploading or any other type of benefit from or use of the Software and its functionality and any other utilization, operation, manipulation or interfacing of the Software.
“License Type” means variation of License which allows End-User to use different set of Software’s functionality.