Terms and Condition (these “Terms”)
IMPORTANT: BY SELECTING THE “I ACCEPT” BUTTON BELOW, YOU AGREE TO BE BOUND BY THESE TERMS. DO NOT SELECT “I ACCEPT” OR INSTALL THE SOFTWARE BEFORE YOU CAREFULLY READ, UNDERSTAND AND AGREED TO THESE TERMS. IF YOU SELECT “I DO NOT ACCEPT”, THE DOWNLOAD OR INSTALLATION PROCESS WILL NOT PROCEED. IF YOU DO NOT WISH TO AGREE TO THESE TERMS, DO NOT INSTALL THE SOFTWARE.
Each of the following terms shall have the meaning beside it below.
1.1 The “Company” – Accelario Software Ltd.
1.2 The “Confidential Information” – the Software, the Documentation, any information related to the Software and/or its performance, the existence and details of these Terms and any information disclosed to You by, or in connecting with, the Company and/or its third party licensors.
1.3 The “Documentation” – the documentation provided to You by the Company with the Software, as shall be updated from time to time by the Company.
1.4 The “Licensee Fee” – the license fee set forth in the Quotation.
1.5 The “License Period” – until the earlier of (i) perpetual; (ii) the expiration of the license period indicated in the Quotation; and (iii) the termination or expiration of these Terms.
1.6 The “M&A Services” – the Maintenance Services and the Support Services.
1.7 The “Maintenance Services” – provision of updates and upgrades of the Software, promptly after their commercial release by the Company.
1.8 The “Purpose” – the purpose for which the Software is licensed, as set forth in the Documentation.
1.9 “Services Quotation” – a Quotation provided to You by the Company regarding the M&S Services.
1.10 The “Services Period” – from the beginning of the services period indicated in the Quotation until the earlier of (i) the expiration of the services period indicated in the Quotation; and (ii) the termination or expiration of these Terms.
1.11 The “Software” – the Accelario Migration Software, in the version and level set forth in the Quotation.
1.12 The “Support Services” – telephone and remote support with respect to the operation of the Software and bugs therein during the Company’s normal working hours.
1.13 The “Quotation” – the Quotation provided to You by the Company regarding the Software.
1.14 “You” – the entity to which the Quotation was provided.
2. GRANT OF LICENSE.
2.1 Subject to Your compliance with these Terms, the Company grants to You a limited, non-exclusive, non-transferable, non-sublicensable license to use the Software in object code form in the number of copies (core licenses) set forth in the Quotation, solely internally for the Purpose, during the License Period and in accordance with the Documentation, these Terms and applicable law.
2.2 In the event that Your license is for evaluation, then these Terms shall apply to such license, provided that (i) You will only use one (1) copy of the Software; (ii) the License Period shall be fourteen (14) days, (iii) the Purpose shall be solely the evaluation of the Software; (iv) the Software and Documentation shall be provided with no warranty whatsoever and Section 7.1 shall not apply; (v) the Company shall have no liability whatsoever, in contact, tort or otherwise, in connection with these Terms; (vi) the Company shall not be obligated to provide you with any services whatsoever and any services that it chooses to provided shall be provided “AS IS” without any warranties; and (vii) each party shall be entitled to terminate these Terms by written notice to the other party.
3. LICENSE EXCLUSIONS.
3.1 The license granted in these Terms is solely for Your benefit and the Software may be used only for Your internal purposes.
3.2 The server and computers permitted to access the Software shall be in Your possession, under Your control and used only by individuals employed by You who have a specific need to use.
3.3 You shall not: (i) use the Software and/or the Documentation, except as explicitly permitted in these Terms; (i) copy, change, reverse engineer, decompile, disassemble or translate the Software, the Documentation and/or any portion of any of the foregoing; (ii) disclose, distribute, market, rent, lease, sublicense, assign, transfer, share or otherwise dispose of the Software or the Documentation or use the Software in any service bureau arrangement; (iii) use or export the Software or the Documentation in violation of any applicable law; or (iv) take any action to defeat the operation of any security measure in the Software.
3.4 No license, right or interest in or to any trademark, trade name, service mark, logo and/or the like, which is used or owned by the Company or any third party licensor thereof, is granted under these Terms.
4. LICENSE FEE.
You shall pay to the Company the License Fee, at the payment terms set forth in the Quotation. In the event that You approved a Services Quotation, You shall pay to the Company the Services Fee, at the payment terms set forth in the Services Quotation. You shall not be entitled, under any circumstances, to any refund of any Licensee Fee, Service Fee and/or any portion of any of the foregoing.
5. INTELLECTUAL PROPERTY.
The Company retains all copyrights and other intellectual property right and all title, interest and right in and to the Software, the Documentation and all translations, enhancements, improvements, modifications, chances and derivatives made to or derived from any of the foregoing. You shall retain on the Software and any copy thereof all product identification and proprietary licenses contain on the Software.
6.1 You acknowledge that the Software and the Documentation contain confidential and proprietary information and trade secrets of the Company.
6.2 You will keep the Confidential Information strictly confidential and protect it against any use, disclosure or use in breach of these Terms, exercising the same degree of care as the one applied to Your most valuable confidential information, but not less than a reasonable and proper degree of care.
7.1 The Company warrants that the Software will function in substantial conformity with the Documentation for a period of one (1) month from delivery of the Software. The Company’s sole obligation and/or liability and Your exclusive remedy under this Section 7 is limited to the Company using reasonable commercial endeavors to rectify any material non-conformance as aforesaid, which is reported by You within the above period, by repair, replacement, or correction of the Software, at the Company’s election. The warranty above shall not apply in the event that (i) the Software is modified by any party, other than by the Company, (ii) the Software has been installed, used, utilized or operated, or subject to conditions, not in accordance with the Documentation and these Terms or improperly or has otherwise been mishandled, misused or neglected, or (iii) the non conformity is related to software (other than the Software), hardware, equipment and/or the like and/or the combination between any of the foregoing and/or the Software.
7.2 OTHER THAN THE FOREGOING LIMITED WARRANTY, THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND THE COMPANY AND ITS THIRD PARTY LICENSORS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED. ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INGRINGEMENT AND/OR THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR, BUG, VIRUS AND/OR MALWARE FREE ARE DISCLAIMED.
8. LIALIBITY LIMITATIONS.
8.1 IN NO EVENT SHALL THE COMPANY OR ITS THIRD PARTY LICENSORS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN CONNECTION WITH OR ARISING OUT OF THE SOFTWARE, THE USE OF OR INABILITY TO USE THE SOFTWARE AND/OR THESE TERMS, EVEN IF THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 THE COMPANY’S AGREGATE LIABILITY IN CONNECTION WITH THESE TERMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AGREGATE LICENSE FEES ACTUALLY RECIVED BY THE COMPANY UNDER THESE TERMS.
8.3 You shall be fully responsible and liable for, and neither the Company not any third party licensor thereof shall have any responsibility and/or liability, in connection with any data, content, information, text, software, sound, photographs, graphics, video messages and/or materials generated, created, stored, owned, held or used by You.
9. THIRD PARTY SOFTWARE.
The Software includes the third party software listed in Schedule I, which is subject to the terms and conditions referred to in Schedule I. Therefore, You undertake to comply with and perform such terms and conditions (including, without limitation, as “you” thereunder), in addition to all other provisions of these Terms. It is clarified that if with respect to any third party software as aforesaid, in any aspect one of (i) these Terms, and (ii) the terms and conditions referred to in Schedule I, is less beneficial to you than the other, then in such aspect the one that is less beneficial to you will apply with respect to such third party software. It clarified that in this Section 9, Accelario shall not be considered a third party. The Company shall have no liability in connection with any of the aforesaid third party software.
10.1 In the event that You approved a Services Quotation, then, subject to Your compliance with the terms and conditions of these Terms, the Company shall provide to You, the M&S Services during the Services Period.
10.2 The Company’s sole warranty with respect to the Support Services is to make commercially reasonable efforts during the Services Period to repair bugs in the Software reported by You in writing and in detail during the Services Period, excluding bugs related to modifications of Software not explicitly authorized in writing by the Company, to any installation, use, utilization or operation, of the Software, or subjection of the Software to conditions, not in accordance with the Documentation and these Terms, any mishandling, misuse or neglect of the Software, to software (other than the Software), hardware, equipment and/or the like and/or the combination between any of the foregoing and/or the Software.
10.3 Upon provision by the Company to You of any patch, update, upgrade or the like under the M&S Services, such item shall be considered part of the Software.
These Terms shall not be terminated by any Party, except that the Company may terminate these Terms and the license granted pursuant thereto if You breach any of these Terms. Upon expiration or termination of these Terms for any reason, You shall return all copies of the Software to the Company or permanently delete them from Your systems and approve the performance of the aforesaid in this sentence to the Company in writing. Sections 1, 4- 9, 2.2(iv)-(vi), 10.2, 10.3 and 12 and Schedule I of these Terms shall survive the expiration or termination of these Terms for any reason.
These Terms will be governed by the laws of the State of Israel, except with regard to its choice of laws rules. Any dispute in connection with these Terms shall be resolved solely by the courts in Tel Aviv, Jaffa, Israel. These Terms constitute the entire agreement between You and the Company, and supersede any prior agreements between You and the Company, with respect to the subject matters of these Terms. The Quotation shall constitute part of these Terms, solely to the extent incorporated by reference in these Terms. The Schedule to these Terms shall constitute an integral part thereof. These Terms may only be modified in writing signed by the Company and You. If any provision or provisions of these Terms are determined by a court of competent jurisdiction to be unenforceable, the enforceability of the remaining provisions of these Terms will not be affected thereby. You may not assign, transfer, delegate, pledge, charge or otherwise dispose of these Terms or any portion thereof. The Company may freely assign and/or transfer these Terms and/or any portion thereof to any third party. You hereby represent and warrant that You have all authority and rights to enter into and perform these Terms and that this Terms have been accepted by an authorized representative of Yours.
Third Party Software
Apache Tomcat – Apache License, Version 2.0 – http://www.apache.org/licenses/LICENSE-2.0 JRE – JAVA SE RUNTIME ENVIRONMENT – http://www.oracle.com/technetwork/java/javase/downloads/jre-6u21-license-159054.txt http://www.oracle.com/technetwork/java/javase/terms/license/index.html Use of the Commercial Features for any commercial or production purpose requires a separate license from Oracle. “Commercial Features” means those features identified Table 1-1 (Commercial Features In Java SE Product Editions) of the Java SE documentation accessible at http://www.oracle.com/technetwork/java/javase/documentation/index.html