END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT SHALL BE READ IN CONJUNCTION WITH THE SERVICE ORDER EXECUTED BETWEEN YOU AND MAGIC SOFTWARE ENTERPRISES LTD. (“MSE”) OR ANY OF ITS DISTRIBUTORS OR RESELLERS (“SERVICE ORDER”) AND MSE’S TERMS OF LICENSE, BOTH OF WHICH ARE ATTACHED HERETO AND MADE AN INTEGRAL PART HEREOF. THE TERM “EULA” AS USED HEREIN REFERS TO THIS END USER LICENSE AGREEMENT, THE SERVICE ORDER AND THE TERMS OF USE, COLLECTIVELY.
PLEASE READ CAREFULLY BEFORE USING THIS PRODUCT: THIS EULA IS A LEGALLY BINDING AGREEMENT BETWEEN YOU, THE SINGLE INDIVIDUAL OR ENTITY IDENTIFIED IN THE TERMS OF LICENSE AS THE LICENSEE OF THE PRODUCT (“YOU”), AND MSE, THAT GOVERNS YOUR USE OF THE MAGIC PRODUCT. [IN THE EVENT THAT YOU PURCHASED THE PRODUCT IN NORTH AMERICA, “MSE” SHALL INCLUDE MAGIC SOFTWARE ENTERPRISES INC.]
BY OPENING THE PACKAGE AND/OR INSTALLING, COPYING, DOWNLOADING, ACCESSING AND/OR USING THE PRODUCT YOU AGREE TO BE BOUND BY AND STRICTLY ADHERE TO THE TERMS AND CONDITIONS OF THE EULA. IF YOU DO NOT AGREE TO THE TERMS OF THE EULA, DO NOT OPEN THE PACKAGE, DOWNLOAD, INSTALL AND/OR USE THE PRODUCT. IF YOU HAVE RECEIVED A COPY ON DVD OR ANOTHER MEDIUM, PLEASE PROMPTLY RETURN THE PRODUCT TO MSE.
1. DEFINITIONS
“PRODUCT” means MSE’s software application(s) identified in the Terms of License, including any associated media, printed materials, and “online” or electronic documentation, and any updates and supplements to the Product which may be provided by MSE in accordance with the terms hereof.
The terms “You” and “Your” shall have a correlative meaning.
2. LICENSE GRANT
a. Provided You comply with all terms and conditions of the EULA, MSE grants You a limited, non-transferable, non-exclusive license to electronically access and use the Product for which the applicable fee has been paid by you, subject to the following limitations:
(i) if the Product is licensed to You under a “concurrent user”” type of license (see Terms of License), the Product may be accessed and used simultaneously by the limited number of concurrent users, specified in the Terms of License;
(ii) if the Product is licensed to You under a “thread” type of license (see Terms of License), Your use of the Product is limited to the number of concurrent threads (i.e., processing tasks simultaneously executed by components of the Product) specified in the Terms of License;
(iii) if the Product is licensed to You under a “named device” type of license (see Terms of License), the Product may be used, whether or not on a concurrent basis, by the limited number of unique devices specified in the Terms of License, which are owned or controlled either (x) by individual users which are members of Your, or Your business partners’, organization, or (y) by external clients or the general public, as the case may be, depending on the method of distribution you have been authorized for in the Terms of License (i.e., “Internal” or “External”). Please note, that if you choose the “External” distribution option in the Terms of License , You shall be prohibited from using the Product to create an application or service that is designated to be accessed or used by members of Your organization (e.g., employees, or suppliers) and/or Your business partners’ organization or for your internal business purposes. For the purpose of this clause, the first devices accessing or using the Product, up to the number specified in the Terms of License, shall be considered as the “named devices”;
(iv) if the Product is licensed to You under a “Core” type of license (see Terms of License), You may install the Product on one or more machines in Your organization, which machines(s) are identified by the host ID(s) which you have provided to MSE, and run the Software on such machine(s) through the use of the limited number of cores (tangible or virtual) specified in the Terms of License.
b. You may keep no more than a single active instance of each Product licensed to You at all times. You agree not to create several instances of the Product on different sites or on different networks.
c. If the Product is licensed to You under a subscription based model (see Terms of License), Your use of the Product is subject at all times to Your continuous payment in a timely manner of the recurring subscription license fee specified in the Service Order.
c. MSE and its licensors reserve all rights not expressly granted to you in this EULA.
d. You shall not: loan, rent, lease, give, sub-license or otherwise transfer the Product (or any copies thereof) in whole or in part, to any other person or entity; copy or translate the user manual, training materials or any other documentation included with the Product; make copies of the product (other than for back back-up purposes, provided that the copy contains all of the original Product's proprietary notices and that it is used only for back-up purposes); alter the Product, including but not limited to, modify the Product to make it operate on non-compatible hardware; reverse engineer, disassemble, decompile, decode, or in any manner extract any source code from the Product; remove, alter or cause not to be displayed, any trademarks, copyright notices, proprietary restrictions, product identification, or start-up messages contained in the Product.
3. TERM
a. This EULA commences on the date it is executed and continues until terminated in accordance with its terms. You understand and agree that this EULA shall terminate if You fail to comply with any term or condition of this EULA.
b. If the Product is licensed to You under a perpetual type model (see the Terms of License), this EULA shall continue perpetually, unless terminated earlier upon the conditions set forth in this EULA.
c. If the Product is licensed to You under a subscription based model (see Terms of License), this EULA shall continue until the expiration of the initial subscription term specified in the Service Order (“INITIAL SUBSCRIPTION TERM”), unless terminated earlier upon the conditions set forth in this EULA. The Initial Subscription Term shall be renewed automatically, for successive one (1) year terms (each, a “RENEWAL SUBSCRIPTION TERM”) unless either party gives the other party written notice of its intent not to renew the Initial Subscription Term or the Renewal Subscription Term, as applicable, at least thirty (30) days prior to the expiration of the then-current subscription term. For clarity, any such renewal shall become effective subject to the full and timely payment of the applicable recurring subscription license fee for the respective Renewal Subscription Term, and no Renewal Subscription Term shall be deemed to have commenced until the concerned recurring subscription license fee has been paid in full.
4. LICENSE FEES; PAYMENT TERMS
a. Your right to use the Product is subject to full and timely payment by You of the license fees specified in the Service Order, in accordance with the payment terms set forth therein. Unless otherwise specified in the Service Order, fee will be paid cash-in-advance, within 30 days from invoice.
b. If the Product is licensed to you under a subscription based model (see Terms of License), the recurring subscription fee shall be invoiced and payable by You to MSE in advance, no later than the first day of the period to which such payment relates.
c. TIME IS OF THE ESSENCE REGARDING ALL PAYMENTS DUE TO MSE. License fees are non-refundable and non-cancelable and shall be made by You without any deduction, set-off or counterclaim of any kind or nature. All license fees are exclusive of value added taxes and/or any other applicable taxes, duties or other governmental assessments. You shall be liable for the payment of all such taxes and other assessments. If payment is not received by MSE when due, MSE may, without prejudice to any other rights and remedies of MSE and without incurring liability to You, disable Your password(s), account(s) and access to the Product (in cases where Your access to the Product is made via the Internet) and/or otherwise suspend (by notice to You in writing) Your right to use the Product until all concerned invoices are paid in full. You agree to promptly comply with any such suspension notice. Interest shall accrue on any late payments at a monthly rate of 1.5% or the maximum rate allowable under law, whichever is greater, commencing on the due date and continuing until fully paid, whether before or after judgment.
5. PROPRIETARY RIGHTS
All intellectual property rights in and to the Product are retained by MSE and its licensors and are and are protected by law, including but not limited to United States copyright, trade secret, and trademark law, as well as other applicable laws and international treaty provisions. You agree to exercise due care and diligence under this EULA to protect the interests and rights of MSE and its suppliers.
6. LIMITED SOFTWARE WARRANTY
a. Subject to any other limitations and exceptions set forth in this EULA, MSE warrants that when properly used for the purpose and in the manner authorized by this EULA the Product will perform substantially in accordance with the enclosed documentation for a period of 30 (thirty) days from the date of issue specified in the Terms of License. In the event of notification, within the foregoing warranty period, of a failure of the Product to perform properly, Your sole and exclusive remedy and MSE's or any MSE Product distributor's or dealer's sole and exclusive obligation shall be, at MSE's sole discretion (i) for MSE to correct any failure of the affected Product to perform as warranted, or (ii) for MSE to replace the effected Product (or the defective magnetic medium) or the documentation so that the Product will perform substantially in accordance with the documentation, or (iii) for MSE to terminate this EULA and the licenses granted herein and refund to You a portion of the license fees prepaid by You for this copy of the Product, pertaining to the period during which the Product did not perform as warranted.
b. You assume full responsibility for the selection of the Product, and for its installation and use and the results of that use. While every reasonable effort has been made to ensure that You will receive a Product that You can use and enjoy, neither MSE nor the distributors and dealers of MSE’s Product(s) warrant that the functions of the Product will meet Your requirements or that the operation of the Product will be uninterrupted or error-free. Due to the complex nature of computer programs, the Product will never be completely error-free. The above Limited Warranty does not cover any magnetic medium which has been the subject of abuse, damage or misapplication, nor does it cover any Product which has been altered or changed by anyone other than MSE. Neither MSE nor the distributors and dealers of MSE Product(s) are responsible for problems caused by changes in the operating characteristics of the hardware or operating system software that are officially supported by the Product and that were made after the release date of the Product's major version, nor for problems in the interaction of the Product with any other software. No action for breach of warranty may be commenced more than 1 (one) year following the expiration date of the above Limited Warranty.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED ABOVE THE PRODUCT IS PROVIDED "AS IS", WITH ALL FAULTS, AND YOU ACCEPT AND ASSUME THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND RESULTS OF USE OF THE PRODUCT. EXCEPT AS OTHERWISE RESTRICTED BY LAW, MSE AND ITS LICENSORS, SUPPLIERS, DISTRIBUTORS, DEALERS AND AGENTS DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCT AND ANY SERVICES FURNISHED IN CONNECTION WITH THIS EULA, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY OR MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NONINFRINGEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU IN FULL, BUT SHALL BE INTERPRETED TO APPLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
THE ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY AND ALL CLAIMS THAT YOU MAY HAVE AGAINST MSE OR ANY OF ITS LICENSORS, SUPPLIERS, DISTRIBUTORS, AGENTS OR DEALERS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT, WHETHER MADE OR SUFFERED BY YOU OR ANOTHER PERSON AND WHETHER BASED IN CONTRACT, TORT OR OTHERWISE.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR, THE ENTIRE LIABILITY OF MSE AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS EULA AND/OR OTHERWISE IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE PRODUCT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU SEPARATELY FOR THE PRODUCT OR U.S. $50.00. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MSE OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IF MSE OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8. UPDATES
To use a Product identified as an upgrade, You must first be licensed for the original Product, as eligible for the upgrade. After upgrading, You may no longer use the original Product that formed the basis for Your upgrade eligibility. This EULA applies to updates or supplements to the Product unless MSE provides other terms along with the update or supplement. In case of a conflict between the terms of this EULA and such other terms, the latter will prevail.
9. TERMINATION
If any of the terms and conditions of the EULA is violated by You, MSE may, in addition to all other legal rights and remedies available to MSE under this EULA and/or applicable law, terminate this EULA.
Without prejudice to the foregoing, if the Product is licensed to You under a subscription based model (see Terms of License) then, in the event that You fail to pay the recurring subscription license fee for any subscription period when due, Your license to use the Product shall be deemed to have automatically expired on the last day of the subscription period for which payment has been made in full.
Upon expiration or termination of this EULA, for any reason whatsoever, Your license to use the Product shall automatically expire (in cases where Your access to the Product is made via the Internet, MSE shall disable Your password(s), account(s) and access to the Product). You agree that immediately upon such termination or expiration You shall (i) discontinue all uses of the Product and its related documentation; (ii) remove and destroy all tangible or electronic copies of the Product and its related documentation in Your possession or control; (iii) return or destroy all Confidential Information in Your possession or control; and (iv) certify in writing to MSE that You have complied with all of the foregoing requirements.
Termination of this EULA will not relieve You from Your obligation to pay all fees that have accrued or are otherwise owed by You for the remainder of the then-current Term. Any provisions providing for limitations on liability, indemnity, confidentiality, the provisions which protect the proprietary rights of MSE and those terms which by their nature were intended to survive any termination of this EULA shall remain in force after the termination of this EULA.
10. INDEMNITY
You shall defend, indemnify, and hold MSE and its officers, directors, employees, agents, licensors, dealers, distributors, and affiliated companies harmless from and against any and all liabilities, losses, damages, costs, and expenses (including reasonable legal fees and expenses) arising from or in connection with Your failure to comply with any term or condition of this EULA
11. CONFIDENTIALITY
You acknowledge that by reason of the relationship created between the parties by this EULA, You may have access to certain non-public information of substantial value concerning MSE’s business operations and/or technology (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties or used other than for purposes expressly authorized hereunder. Without limiting the foregoing, but for avoidance of doubt the terms of this EULA, and any performance, warranty and like information relating to the Product (by whomsoever generated or communicated) will be considered the Confidential Information of MSE. Accordingly, You agree (a) to maintain all Confidential Information, in whatever form disclosed, in strict confidence, (b) not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of MSE, and (c) not to use the Confidential Information except as required in the performance of Your obligations or the exercise of Your rights hereunder. Upon the written request of MSE or upon any termination or expiration of this EULA, for any reason whatsoever You shall (a) immediately return to MSE or destroy all copies and partial copies of the Confidential Information, whether maintained in tangible, electronic or other form (including permanently erasing any portions thereof from computers and systems) and (b) provide MSE with written certification of Your compliance with the terms of this section. You acknowledge that any breach of any of Your obligations with respect MSE's Confidential Information may cause or threaten irreparable harm to MSE. Accordingly, You agree that in such event, MSE shall be entitled to seek equitable relief in any court of competent jurisdiction without the necessity of posting bond and in addition to such other remedies as may be available to MSE under law or in equity.
12. ACKNOWLEDGMENT
You acknowledge reading this EULA, understanding it, and agree to be bound by its terms and conditions.
13. GOVERNING LAW AND JURISDICTION
This EULA shall be governed and construed in accordance with the laws of the State of Israel, without giving effect to its conflict of law provisions, and the courts in Tel Aviv, Israel, shall have sole and exclusive jurisdiction over any conflict and/or dispute arising out of or in connection to this EULA. Notwithstanding the foregoing, MSE reserves the right to take action, as a plaintiff, against You in any competent courts of the territory where You reside, in which case the law governing this EULA and the interpretation hereof shall be the laws of the specific country in the Territory where MSE has taken such action against You.
14. COMPLIANCE WITH EXPORT LAWS
You shall comply with all laws and regulations of the United States and other countries ("Export Laws") to assure that the Product is not (i) exported, directly or indirectly, in violation of Export Laws, or (ii) used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
15. U.S. GOVERNMENT RESTRICTED RIGHTS
The Product and any accompanying documentation are provided with restricted rights. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (b) (3) and (c) (1) (ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227 - 19, as applicable. Contractor/manufacturer is Magic Software Enterprises Ltd., 5 HaPlada St., Or-Yehuda 60218, Israel.
16. GENERAL
This EULA constitutes the entire understanding between You and MSE, and supersede all prior discussions, representations, understandings, or agreements (including any pre-existing nondisclosure agreement, except as to its surviving terms and with respect to information disclosed under that agreement), whether oral or in writing, between the parties with respect to the subject matter of this EULA. Any modification or amendment to this EULA must be in writing and signed by each party’s authorized representatives. Unless expressly agreed to in writing by MSE, no terms in any Terms of License, Service Order or other document delivered by You shall be deemed to amend the terms of this EULA and any such additional or inconsistent terms shall be deemed unacceptable to and rejected by MSE. If any provision of this EULA shall be held by a court of law of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect and, to the extent allowed and practicable, the unenforceable provision shall be modified so as to be enforceable consistent with its original intent and economic effect. The headings and captions used in this EULA are for convenience only, and shall not affect the interpretation of the provisions of this EULA. Initially capitalized terms used, but not otherwise defined, herein have the meanings given them in the Terms of License.
