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END USER LICENSE AGREEMENT EXHIBIT
Article 1 Grant of License for Authorized Users
Subject to the terms and conditions of this Software End User License Agreement (the “EULA”) and the payment of all applicable license or subscription fees, Arondor (“ARONDOR”) grants to you (the “End User”) a limited, non-exclusive and non-transferable license (the “License”) to install and use, for internal purposes only, the ARender software programs with which this license is distributed (the “Software”), including any printed documentation or documentation files published by ARONDOR and accompanying the Software (the “Documentation”) within the terms as described in this EULA.
The End User shall also store as many development and test/UAT/integration instances of the Software, as required, as long as these instances are involved and dedicated to the End User project perimeter this EULA applies to. Any other use of the Software by any third party, except as provided in this EULA, is strictly forbidden and is a breach of this EULA.
ARONDOR may, at any time during the End User’s normal business hours, and upon reasonable advance notice, conduct an audit at the End User’s premises to ascertain whether the End User’s use of the Software is in compliance with the provisions of this EULA. The End User shall reasonably assist ARONDOR in the conduct of such audit and shall grant ARONDOR reasonable access to the End User’s premises and computer equipment for that purpose. In the event that such audit reveals any use of the Software by the End User other than in material compliance with this EULA and/or any other agreement between ARONDOR and the End User, the End User shall reimburse ARONDOR for all reasonable costs and expenses related to such audit in addition to any additional license / subscription fees and maintenance fees owed to ARONDOR as a result of such non-compliance.
Article 2 Ownership
The End User has no ownership rights in the Software. The Software, Documentation and the intellectual property rights associated therewith are and will remain at all times the sole and exclusive property of ARONDOR and its affiliates and the End User has no right, title or interest in or to the Software, Documentation or the intellectual property associated therewith, except as expressly set forth in this Agreement. This EULA does not grant the End User any rights in the trade-marks or service marks of ARONDOR, all of which remain the exclusive property of ARONDOR and its affiliates. The End User may not alter or remove trade-marks, service marks or other markings from the Software, Documentation or their associated packaging. Upon ARONDOR’s request, the End User agrees, at ARONDOR’s expense, to take such actions as ARONDOR may reasonably request to perfect ARONDOR’s ownership in the Software.
Article 3 Copyright Statement
The Software and Documentation contain material that is protected by copyright laws and international treaty provisions. Accordingly, the End User may not make copies of the same, except that the End User may (a) make a copy of the Software as permitted above solely for backup or archival purposes, and (b) transfer the Software from digital media to hard disks provided that the Software is used only as specified in this EULA. The End User may not copy the Documentation. Also, the End User shall maintain at all times all copyright notices provided on the Software, Documentation and associated packaging and any copies thereof. The End User shall ensure that any permitted copy of the Software is produced only for the End User’s own benefit, that it is clearly marked on the copy that such copy is subject to copyright and confidentiality, and that a written list is maintained of the number of copies and place of storage. Copies of the Software constitute ARONDOR’s property. All the terms and conditions of this EULA shall also apply to such copies.
Article 4 Other Restrictions and Assignment
This EULA grants the End User the right to use the Software for internal purposes only. The End User may not use the Software to operate a subscription service, service bureau, Software as a Service (SaaS) model, or other similar access fee-based services for the benefit of any third party without the prior express written consent of ARONDOR. The End User must protect the Software and Documentation in a manner consistent with ARONDOR’s rights expressed in this EULA. The End User may not sublicense, modify, distribute, or create derivative works based on the Software or any part thereof. The End User may not reverse engineer, decompile, disassemble, translate, or adapt the Software, nor shall the End User attempt to create the source code from the object code of the Software unless explicitly permitted by applicable and mandatory law.
The End User acknowledges and agrees that the intellectual property associated with the Software and the Documentation, and any other nonpublic information of a technical or commercial nature concerning ARONDOR, the Software and the Documentation disclosed to the End User in connection with this EULA constitute ARONDOR's proprietary information and trade secrets, and the End User agrees to hold such information in strict confidence.
The End User shall have no right to transfer or assign the License or the End User’s rights or obligations under this EULA in whole or in part, and any attempted transfer or assignment shall be null and void. The foregoing notwithstanding, upon prior written approval by ARONDOR, the End User may assign, or otherwise transfer this EULA to any affiliate. For purposes of this EULA, the term “affiliate” means any entity which controls, is controlled by, or is under common control with the End User, where “control” means the legal, beneficial or equitable ownership of at least a majority of the aggregate of all voting equity interests in such entity.
Article 5 Maintenance
For the duration of this agreement, with a minimum of at least one calendar year, ARONDOR shall be maintaining the software which it developed and supplied to the End User. By means of this maintenance agreement the End User is given the opportunity to avail himself of the software maintenance services offered by ARONDOR and defined in article 5.2 of this EULA. Once this EULA has been terminated ARONDOR is no longer obliged to provide maintenance services. The maintenance involves only ARender platform and modules (add-ons, plugins and connectors) licensed to the End User by ARONDOR.
Maintenance services as referred to in this EULA include: support as defined in article 5.3 and maintenance as defined in article 5.4 with the exception of the services defined in article 5.5. Any maintenance service is provided on working days common in France, but at least between 09:00 and 17.00 hours. In any case, once the End User has reported a problem, ARONDOR will start dealing with it within three working days.
The term support implies provision of electronic support (using ARONDOR Support Ticketing Platform - Jira) in respect of End User questions regarding the use of ordered and supplied software. In order to facilitate issue resolution, the ARONDOR support team may require a telephone call (or any web meeting). Technical details on how to access those services as well as support by telephone in the case of software failures. When the End User requests telephonic support, the hardware containing the installed software has to be in the End User’s immediate vicinity and at his disposal. If it is found that the End User lodged an unjustified request for support, for instance if the reported problem does not refer to software failure or support related to End User questions regarding the use of the ordered and supplied software, ARONDOR will be entitled to invoice the support provided. Support can only be requested by an employee of the End User having the required knowledge and it has to be requested through ARONDOR’s ticketing system (Jira), using a named and registered per employee account. Maintenance will be invoiced to and paid by the End User, on each occasion, one month before the year in question. ARONDOR is entitled to suspend software maintenance for as long as full maintenance payment has not been received. If the full maintenance payment has not been received by ARONDOR for more than one year, ARONDOR is authorized to terminate the maintenance of ARender.
Named accounts to ARONDOR Support ticketing system are to be queried by sending an e-mail to firstname.lastname@example.org, stating :
- the End User company name,
- the full name of the End User employee along with her (his) professional e-mail address.
All access details, URLs and means of communication, will be sent back by our Support Team to the End User employee e-mail address.
1. The detection and repair of flaws in the ARender software corresponding documentation as well as related standard adjustments by ARONDOR to the best of their ability. Flaws include: any essential reproducible software faults and flaws as well as any deviations from the properties referred to in related documentation and found whilst using the software. In order to give ARONDOR the opportunity to isolate and reproduce the flaws, the End User has to inform ARONDOR immediately, following detection of flaws. In doing so the End User is required to pass on any diagnostic, system and other relevant details in relation to the flaw, in order to give ARONDOR the opportunity to isolate and reproduce the flaw;
2. The provision, depending on circumstances, of new releases (major versions) and/or software maintenance releases (minor versions). If a new release involves a significant change in functionality, ARONDOR shall provide the related documentation. Under normal circumstances ARONDOR shall not charge the End User, who has concluded a maintenance agreement, additional costs for providing new releases and/or software maintenance releases.
The End User understands that maintenance does not include making the Software suitable for another platform or another operational or network system, or adapt the Software to any third-party software not explicitly supported (other runtime environment versions, database versions, connectors to third-party applications).
Should technological developments give rise to it, ARONDOR can increase its demands regarding the configuration on which the new Version has to be installed on the End User’s premises. If the End User does not meet the configuration requirements and still has the new software version installed on the old configuration, ARONDOR’s obligation to provide maintenance for the software concerned, as referred to in the maintenance agreement, is cancelled after which ARONDOR shall be entitled to cancel the maintenance agreement with the End User with immediate effect.
Maintenance will in principle be provided online – from a distance. The End User is to provide the required connections and access facilities, potentially implying some convenient screen sharing techniques involving an employee of the End User. ARONDOR reserves the right to terminate maintenance services if they can reasonably assume that the available facilities do not meet their technical and safety requirements.
ARONDOR, will under no circumstances, be held to repair flaws or provide maintenance services if these faults and/or flaws were the result of:
1. Any form of software modification, not carried out by or on under supervision of ARONDOR;
2. Using the software in a way or in connection with other software or not in accordance with instructions of related documentation or otherwise not authorized under this agreement;
3. Using a later or older software version;
4. Deliberate improper use of the software by an End User.
5. Flaws or faults of software installed in hardware, communication devices, peripherals, other equipment or software not originating from ARONDOR;
6. Entry errors or errors as a result of data used by the End User. ARONDOR can give the End User the opportunity for them to identify and solve the fault on the End User’s behalf against charges applicable at the time, should one of the above incidents mentioned under 5.4.5 occur.
Improper use includes but is not limited to not following the ARender documentation (prerequisites, installation, configuration, technical specification)
One year after having made a new version available to the End User, ARONDOR is no longer obliged to maintain the End User’s old version or provide support in respect of the old version.
Maintenance does not include problem solving with regard to:
1. System configurations, hardware and networks;
2. Installation tasks such as defining lay-outs, reports, installation of calculation modules, import definitions and software links to third parties;
3. Onsite support with the exception of services provided under warranty.
4. The End User’s request to extend the software’s functionality.
5. Making the software suitable for a configuration other than the original configuration; and
6. Any third-party application, middleware, platform not explicitly listed as supported by ARONDOR for use with ARender
For any new major version of the ARender software ARONDOR will release, ARONDOR reserves the right to cease development of existing features and modules. These features or modules will then be clearly identified as deprecated, and their support will cease at minimum one year after their deprecation.
ARONDOR reserves the right to transfer (part of) its obligations arising from the maintenance agreement to a third party, provided this third party is able to provide similar services. Any software, documentation and any other material supplied to the End User under this maintenance agreement is subject to the stipulations as referred to in the license agreement.
Maintenance will be invoiced to and paid by the End User, on each occasion, one month before the year in question. ARONDOR is entitled to suspend software maintenance for as long as full maintenance payment has not been received. If the full maintenance payment has not been received by ARONDOR for more than 3 months, ARONDOR is authorized to terminate the maintenance.
Article 6 Infringement of Third Party Intellectual Property Rights
ARONDOR shall pay those costs and direct damages finally awarded against the End User in connection with any claim by a third party that the Software directly infringes any copyright or misappropriates any trade secret recognized as such under applicable law (or those costs and damages agreed to by ARONDOR in a written monetary settlement) and the reasonable costs of defense incurred by the End User in connection therewith, including reasonable attorneys’ fees and court costs, provided that:
(a) the End User provides ARONDOR with prompt written notice of any such action or claim;
(b) the End User will permit ARONDOR to assume and control the defense and settlement of any such action or claim, at ARONDOR’s expense;
(c) the End User will not prejudice the defense of the action or claim nor will the End User make any admission as to liability nor compromise or agree to any settlement of any such action or claim without the prior written consent of ARONDOR; and
(d) the End User will provide ARONDOR with such assistance, documents, authority and information as ARONDOR may reasonably require in relation to the action or claim and defense or settlement thereof.
Notwithstanding the foregoing, ARONDOR shall have no liability to the End User for any claim that:
(a) arises out of any unauthorized use, reproduction, or distribution of the Software;
(b) arises out of any modification or alteration of the Software by anyone other than ARONDOR;
(c) arises out of the use of the Software in combination with any other software or equipment not approved in writing by ARONDOR; or
(d) would have been avoided by use of the then-current Release of the Software or if the End User had followed ARONDOR’s reasonable written instructions.
In addition, if the Software becomes, or in ARONDOR’s opinion is likely to become, the subject of an infringement or misappropriation claim, ARONDOR may, at its own expense and option, elect to either:
(a) procure the right for the End User to continue using the Software in accordance with the provisions of this EULA;
(b) make such alterations, modifications or adjustments to the Software so that the infringing Software or Documentation becomes non-infringing without incurring a material diminution in performance or function;
(c) replace the Software with a non-infringing substantially similar substitute; or
(d) if neither (a), (b) nor (c) can be achieved after the exercise of commercially reasonable efforts, terminate this License and refund to the End User: (i) all amounts paid by the End User to ARONDOR as license / subscription fees with respect to the affected Software, less an amount equal to depreciation of such license / subscription fees calculated on a three-year straight-line basis from the date of license, and (ii) a pro rata portion of any prepaid maintenance fees for the then-current annual maintenance period.
If ARONDOR modifies or replaces the Software, the End User shall have the same rights in respect thereof as it would have had under this EULA.
This section states ARONDOR’s entire liability, and the end user’s sole remedies for any infringement or alleged infringement of third party rights in relation to the Software and the Documentation.
Article 7 Limited Warranty
This warranty extends only to the original End User of this License, and no third party shall have the right to make any claim or assert any right hereunder.
ARONDOR warrants that for a period of ninety (90) days from the date of the acquisition of the License (the “Warranty Period”): (a) the Software will perform substantially in accordance with the Documentation; and (b) the Software is properly recorded on the media or in the files to be downloaded. ARONDOR does not warrant that the operation of the Software will be uninterrupted or error free. This warranty is void if failure of the Software has resulted from accident, abuse, or misapplication or from the End User having modified the Software or used it for a purpose or in a context other than the purpose or context for which it was designed.
If, during the Warranty Period, the Software does not perform substantially in accordance with the Documentation or is not recorded properly on the media or files to be downloaded, the End User’s sole and exclusive remedy, and ARONDOR’s sole obligation and liability under this warranty shall be as follows: if the End User notifies ARONDOR in writing of the non-conformity within the Warranty Period, ARONDOR shall, at ARONDOR's option, either (i) return the license / subscription fees paid (if any) with respect to the non-conforming Software; or (ii) repair or replace the non-conforming Software. If ARONDOR elects to return the license / subscription fees, the End User agrees to promptly return the Software to ARONDOR or establish to ARONDOR’s satisfaction that it has destroyed/uninstalled the Software. Any replacement Software will be warranted for the remainder of the original Warranty Period or thirty (30) days from replacement, whichever is longer. There is no warranty after expiration of the Warranty Period.
Article 8 Limitation of Liability
Except for the limited warranty provided above, the Software and the Documentation are provided ‘as is’. All other warranties, whether express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose, title and non-infringement are hereby disclaimed.
ARONDOR ‘s maximum aggregate liability under this EULA (regardless of the form of action, whether in contract, tort, or otherwise) shall be limited to direct damages not to exceed the amount of license / subscription fee paid by the End User to ARONDOR for the License to which a specific claim relates. In no event shall ARONDOR be liable for any direct, consequential, incidental, special, or punitive damages or losses of any kind arising under any theory of liability (including tort), including without limitation damages or losses for loss of profits, loss of production or expected savings, business interruption, loss or corruption of business data or information, or other pecuniary loss, even if ARONDOR has been advised of the possibility of such damages.
Article 9 Termination
The Agreement shall come into force on the commencement date and thereafter shall continue for an indefinite period of time or the time specified for the subscription unless and until terminated in accordance with the provisions thereof. Either party may terminate this EULA for any reason at any time by giving to the other party six (6) months prior written notice but not earlier than the second anniversary of the commencement date. ARONDOR may terminate this EULA immediately at any time by written notice to the End User if the End User has breached any of the terms of this EULA. Upon notification of termination, the End User agrees to promptly destroy or return to ARONDOR all copies of the Software and Documentation and to certify in writing that all known copies, including backup copies, have been destroyed or returned to ARONDOR. All provisions relating to confidentiality, proprietary rights and non-disclosure shall survive the termination of this EULA.
Article 10 General
The Software includes software developed by the Apache software foundation (http\\www.apache.org).
The End User shall not export the Software or the Documentation in violation of applicable export laws. This EULA may only be modified by a written document that has been signed by both the End User and ARONDOR. If any provision of this EULA is held to be unenforceable, the parties shall substitute for the affected provision an enforceable provision which approximates the intent and economic effect of the affected provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future.
This EULA constitutes the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all previous agreements, representations, warranties, statements, negotiations, understandings and undertakings, whether verbal or written, pertaining to such subject matter. The End User represent and acknowledge that in entering into this EULA, you did not rely on any representations or warranties other than those expressly set forth in this EULA.
This EULA is governed by and construed in accordance with the laws of France. Any dispute between ARONDOR and PARTNER that cannot be solved amicably shall exclusively be submitted to the competent court in Paris, France