Last updated: June 23rd, 2020
THIS SOFTWARE END-USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT ("Agreement") BETWEEN YOU (THE CUSTOMER, EITHER AS AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AS AN ENTITY) AND TUNEX LLC ("Licensor" and "Company"). IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. THE SOFTWARE IS COPYRIGHTED. THE SOFTWARE IS LICENSED, NOT SOLD, TO YOU UNDER THIS AGREEMENT. If you do not understand or agree to the terms of this Agreement, do not download, install, or use the Software.
. Grant of License
1.1 General Use. Subject to your full and ongoing compliance with the terms and conditions of this Agreement, including without limitation payment of all applicable license fees and service costs, and according to and in conjunction with the Company's Software License Agreement which also applies, this Agreement hereby grants you, and you accept, a non-exclusive, non-transferable to third parties, affiliates, affiliated parties, any other person, any company, or other entity, which, directly or indirectly, controls, is controlled by, or is under joint control by the Customer limited license to the use rights for the Software, without the right to grant sublicenses to third parties, subject to the terms and conditions in this Agreement. The Software is licensed, not sold.
1.2 Company's Software License Agreement ("License"). You may install and use the Software, so that no more than a single instance of production exchange is ran concurrently / simultaneously on any number of hosts, in any environment, including but not limited to, development, testing, staging, and production environments beginning at the date of purchase of Company's Software License. You are permitted to use and maintain all instances of the Software within the terms of the Company's Software License Agreement.
1.3 Storing Copies. You are entitled to make copies of the Software made available by the Company for archival or backup purposes. Each copy must preserve all copyright, licenses, and other legal notices on, in, or distributed with the Software. 1.4 Electronic Delivery. All Software and license documentation shall be delivered by electronic means in the time frame indicated in the Company Software License Agreement. Software shall be deemed delivered upon completion of the 'Software Acceptance' period as indicated in the Company Software License Agreement.
"Modification" means: (a) any addition to, alteration to, or deletion from the contents of a file included in the original Software or previous Modifications created by you, or (b) any new file that contains any part of the original Software or previous Modifications, including the bundle or archive file in which it was distributed. You retain all rights to any original work authored by you as part of the Modifications, and the Company continues to own all copyright and other intellectual property rights in the Software.
3.1 You shall not, and shall not allow any third party, to: (1) distribute, sell, sublicense, rent, lease or use the Software for time sharing, hosting, service provider or like purposes, except as expressly permitted under this Agreement; (2) redistribute the Software or Modifications other than by including the Software or a portion thereof within your own product or service, which must have substantially different functionality than the Software or Modifications and must not allow any third party to use the Software or Modifications, or any portions thereof, without a proper license to account for its use; (3) redistribute the Software as part of an "appliance", "consumer device", or "virtual server"; (4) redistribute the Software on or to any machine which is not directly under your control or management; (5) remove any product identification, proprietary, copyright, or other notices contained in the Software; (6) use the Software to develop a product which is similar to or competitive with any of the Company's products or service offerings; (7) distribute the Software commercially, including to, for, or within a company or for business purposes; (8) use the Software in any ways, and for any purposes, that may be considered as illegal in the jurisdictions of the Licensee and any other, depending from the relevant applicable laws; (9) misuse the Software to cause any harm, damage, losses or interference for the Company, or any other third parties. Violation of any of these is subject to 'Termination' clauses in Section 7.
3.2 Under no circumstances may this software be used as a part of a product or service, providing identical or similar functionality to the software itself without documented consent from the Company. Consent request must be submitted by the client and acknowledged as an email communication by an authorized party from the Company.
4. Software Ownership
Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Company and its suppliers have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, feedback or suggestions). You acknowledge that you are obtaining only a limited license right to the Software, and that irrespective of any use of the words "purchase", "sale", "transaction", or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
5. Fees and Payment
The Software license fees will be due and payable in full as set forth in the applicable invoice or at the time of purchase. You shall be responsible for all taxes, withholdings, duties and levies arising from the order. Refunds and other payment terms are in accordance with the Company's Software License Agreement.
6. Support, Maintenance, and Services
Subject to the terms and conditions of this Agreement and according to the Company's Software License Agreement, and as set forth in your invoice, support from the Company may be included with the purchase of your Software License. Company is not obliged to provide support in relation to the Software, without conclusion of the terms outlined in the Company's Software License Agreement.
7. Term of Agreement
This Agreement is effective upon completion of the 'Testing and Acceptance' period, as outlined in the Company's Software License Agreement.. For clarification, the term of your license under this Agreement shall be designated as perpetual License, upon completion of terms outlined in the Company's Software License Agreement, and with respect to the terms outlined in this End User License Agreement. Either party may terminate this Agreement (including all related invoices) if the other party: (1) fails to cure any breach of this Agreement within ten (10) days after written notice of such breach, provided that the Company may terminate this Agreement immediately upon any breach of Section 3, or if you exceed any other restrictions contained in Section 1, unless otherwise specified in the Company's Software License Agreement; (2) ceases operation without a successor; or (3) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
7.2 Termination. Upon any termination of this Agreement, all Software updates and services pursuant to the license shall cease, including any copies that you have distributed to, currently manage or previously managed for other affiliated parties.
7.3 Expiration of License. Upon the expiration of any term under this Agreement, (1) all Software updates and services pursuant to the license shall cease, (2) you may continue to run any existing installations of the Software for internal company use or in any other commercial context, (3) you may not install the Software on any additional environments, and (4) any new installation of the Software shall require the purchase of a new license subscription from the Company.
8. Disclaimer of Warranties
The Software is provided "as is" with all faults, defects and errors, and without warranty past the 'Testing and Acceptance' period, unless specified otherwise in the Company's Software License Agreement. Company does not warrant that the Software will be free of bugs, errors, viruses or other defects, and the Company shall have no liability of any kind for the use of or inability to use the Software, the Software content or any associated service, and you acknowledge that it is not technically practicable for the Company to do so. To the maximum extent permitted by applicable law, the Company disclaims all warranties, express, implied, arising by law or otherwise, regarding the Software, the Software content and their respective performance or suitability for your intended use, including without limitation any implied warranty of merchantability, fitness for a particular purpose. 9. Limitation of Liability
In no event will the Company be liable for any direct, indirect, consequential, incidental, special, exemplary, or punitive damages or liabilities whatsoever arising from or relating to the Software, the Software content or this Agreement, whether based on contract, tort (including negligence), strict liability or other theory, even if the Company has been advised of the possibility of such damages. In no event will the Company's liability exceed the Software license price as indicated in the invoice. The existence of more than one claim will not enlarge or extend this limit. 10. Remedies
Your exclusive remedy and the the Company's entire liability for breach of this Agreement shall be limited, at the Company's sole and exclusive discretion, to (1) replacement of any defective software or documentation; or (2) refund of the license fee paid to the Company, payable in accordance with the Company's refund policy. 11. Acknowledgements
11.1 Consent to the Use of Data. You agree that the Company and its affiliates may collect and use technical information gathered as part of the support services outlined in the Company's Software License Agreement. The Company may use this information solely to improve services and will not disclose sensitive information in connection with personal identifiers.
11.2 Verification. Company or a certified auditor acting on the Company's behalf, may, upon its reasonable request and at its expense, audit you with respect to the use of the Software. Such an audit may be conducted by mail, electronic means or through an in-person visit to your place(s) of business. Any such in-person audit shall be conducted during regular business hours at your facilities and shall not unreasonably interfere with your business activities. We shall not remove, copy, or redistribute any electronic material during the course of an audit. If an audit reveals that you are using the Software in a way that is in violation of the terms of this Agreement, then you shall pay the Company reasonable costs of conducting the audit. In the case of a violation, you agree to pay the Company any amounts owing that are attributable to the unauthorized use. In the alternative, the Company reserves the right, at its sole discretion, to terminate the licenses for the Software. 12. Miscellaneous
12.1 Entire Agreement. This Agreement, in conjunction with the Company's Software License Agreement, sets forth the Company's entire agreement with respect to the Software and the subject matter hereof, and supersedes all prior understandings and agreements whether written or oral.
12.2 Amendment. The Company reserves the right, at its sole discretion, to amend this Agreement at any time. Amendments to this Agreement can be located on the Company's websites and related web properties.
12.3 Assignment. You may not assign this Agreement or any of the rights under this Agreement without prior written consent of the Company and any attempted assignment without such consent shall be void.
12.4 Export Compliance. You agree to comply with all applicable laws and regulations, including laws, regulations, orders or other restrictions on export, re-export or redistribution of software.
12.5 Indemnification. You agree to defend, indemnify, and hold the Company harmless from, and against, any lawsuits, claims, losses, damages, fines and expenses (including attorneys' fees and costs) arising out of your use of the Software or breach of this Agreement.
12.6 Governing Law. This EULA agreement, and any dispute, claims or controversy arising out of or in connection with this EULA agreement, shall be governed by and construed in accordance with the laws of England and Wales, without regard to conflict of laws rules ("Applicable Law"). The Parties hereby consent to submit to the exclusive jurisdiction of the courts of Ukraine. In the event the Parties encounter a disagreement regarding the provisions and/or effectivity of this Agreement, both Parties agree to organize an open discussion in this regard. If the dispute has not been resolved within 90 days of the discussion, then the Parties shall submit to binding arbitration in accordance with ICC Arbitration Rules. The place and seat shall be Kyiv, Ukraine. There shall be 1 arbitrator appointed in accordance with the Rules. The language shall be English.
12.7 Attorneys' Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorney's fees and costs in connection with such action.
12.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect.
12.9 Waiver. Failure or neglect by either party to enforce at any time any of the provisions of this license Agreement shall not be construed or deemed to be a waiver of that party's rights under this Agreement.
12.10 Freedom to Decline. The Company reserves the right to decline doing business, favors, or services, entering into agreements, or associating in any way, with any individual, organization, or other entity for any reason, and is not required to disclose the reason. 13. Contact Information
If you have any questions about this Agreement, please direct correspondence to email@example.com