End-User License Agreement (EULA)
|TERMS AND CONDITIONS OF USE
BY CLICKING THE “I AGREE” BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU, FOR AND ON BEHALF OF LICENSEE UNDER THE RELEVANT LICENSE ORDER (AS DEFINED BELOW) AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SOFTWARE (AS DEFINED BELOW) AND THE MASTERKEY TECHNOLOGY (AS DEFINED BELOW) AS PROVIDED BY MASTER KEY COMPUTER SYSTEMS LLC (“Licensor”) TO AUTHORIZED USERS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SOFTWARE OR MASTERKEY TECHNOLOGY.
ARTICLE 1 - DEFINITIONS AND INTERPRETATION
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES
- Definitions: The following terms (except as otherwise provided or unless the context otherwise requires) for all purposes of this Agreement shall have the respective meanings hereinafter specified.
“Agreement” means this end-user license agreement, each any every License Order, price lists, charge forms, amendments and any materials available on Licensor’s website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Licensor from time to time.
“Confidential Information” means:
- any and all data, information or material relating to the business, management or affairs of either party including all proprietary and trade secrets, technology, design, software, technical concepts and accounting records of such party that a reasonable person would consider from the nature of the information and circumstances of disclosure is confidential or proprietary; and
- any information relating to and/or disclosed in the course of this Agreement, which is confidential or proprietary to the disclosing party including without limitation know-how, trade secrets, log data, technical processes, formulas, source codes, product designs, sales, charges, costs, unpublished financial information, the Software or the Masterkey Technology.
“Database” means any data, information or material provided or submitted by You to Licensor as imported onto the Software.
“Derivative Work” means:
- for material subject to copyright, registered or unregistered design protection, any work which is based on one or more pre-existing works of the Software or the Masterkey Technology, such as upgrades, revisions, modifications, improvements, translations, abridgments, condensation, expansion, collections, compilation or any other form in which such pre-existing works may be recast, transformed or adapted;
- for material subject to trade secret protection, any new material, information or data relating to, and derived from, the Software or the Masterkey Technology, including without limitation, new material which may be protected by copyright, patent, trademark and other proprietary rights, and with respect to each of the above, the preparation and/or use of which, in the absence of this Agreement or other authorization from Licensor, shall constitute infringement under any law; and with respect to each of the above, the preparation and/or use of which, in the absence of this Agreement or other authorization from Licensor, shall constitute an infringement under applicable law.
“Email Services” means the services defined in Article 6.10.
“Intellectual Property Rights” means, including without limitation, any and all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof and forms of protection of a similar nature anywhere in the world, moral rights, confidentiality rights or similar rights under any law.
“Licensor” means Master Key Supreme Ltd. including without limitation affiliates, subsidiaries and assigns.
“License Order” means the license order which evidences the user subscription to the Software and specifies, amongst other things, product services, applicable fees, billing periods and other charges as agreed between You and Licensor and shall include any subsequent license order that You enter into with Licensor. Each License Order shall be incorporated into and become an integral part of this Agreement (in the event of any conflict between the terms of this Agreement and any applicable License Order, the terms of the relevant License Order shall prevail).
“Masterkey Technology” means all of the proprietary technology (including software, hardware, data, operating manuals, user instructions, technical literature and all other related materials, products, algorithms, source codes, formulas, user interfaces, know-know, techniques, designs and other tangible and intangible material or information) contained in, or made available to You by Licensor in providing, the Software, Program Documentation, Derivative Works and Updates.
“Program Documentation” means the operating manuals, user instructions, technical literature, and all other related materials in eye readable form supplied to You in connection with the use and application of the Software.
“SMS Services” means the services defined in Article 6.9.
“Server” means a Server owned and managed by Licensor or its subsidiary or affiliate or assigns and on which the Software will be hosted.
“Software” means the software application known as “Masterkey” (which shall include, without limitation, any future Updates, Derivative Works and the Program Documentation).
“Start Date” means the start date as specified in the applicable License Order.
“Updates” means any and all future releases, revisions or upgrades of the Software whether or not the same incorporate additional features or changes in functionality of such Software. The Updates shall not include additional features and/or functionality of the Software that the Licensor may make generally available for a separate fee or charge as may be mutually agreed.
“User Subscriptions” means subscriptions for use of the Software and Masterkey Technology to be purchased for a relevant subscription term for a fee as defined in the Agreement and the License Order.
“You" or "Your" means the Licensee entity that is accepting terms of this Agreement and the License Order.
- Interpretation: In this Agreement, unless the context otherwise requires:
- all of the provisions of this Agreement (other than where expressly stated to be representations or warranties), where the context requires, are to be construed as covenants as though the words importing such covenants were used in each separate Article hereof;
- references to Articles and Sub-articles are to articles and sub-articles of this Agreement;
- headings are inserted for ease of reference only and are not to be used to define, interpret or limit any of the provisions of this Agreement;
- references to the singular number shall include references to the plural number and vice versa;
- the English language shall be deemed the language chosen by the parties to express their mutual intent; and
- all references to dates and times shall be according to the Gregorian calendar.
- 30-Day Free Trial
Licensor will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the thirtieth day after Your acceptance of this Agreement or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR 30-DAY FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE 30-DAY TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE 30-DAY FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE 30-DAY TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING A RTICLES 7, 8, 9, 10 and 11, DURING THE 30-DAY FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
ARTICLE 3 - GRANT OF LICENSE
- General Representations and Warranties: Each party represents and warrants to the other that it has the legal power and authority to enter into this Agreement and to perform its respective obligations hereunder.
- Specific Representations and Warranties: You further represent and warrant to Licensor that You have not falsely identified Yourself nor provided any false information to gain access to the Software or the Masterkey Technology and that Your billing information is correct.
ARTICLE 4 – ORDERS AND MODIFICATIONS
- License: Subject to terms and conditions of this Agreement, Licensor hereby grants to You a non-exclusive, non-transferable, without rights to sub-license, license to access and use the Software solely for Your own internal business purposes. The license granted herein is personal to You. All rights not expressly granted to You are reserved by Licensor.
ARTICLE 5 – PAYMENT OBLIGATIONS
- Orders: Licensor may, at Your request, assist You in determining Your specific requirements for the Software but notwithstanding any such assistance, You will be responsible for ensuring: (a) that the Software and any other services provided to You by Licensor meet Your requirements; (b) that You have software that enables you to use the Masterkey Technology; (c) that You have hardware which enables it to access the internet; and (d) the accuracy of the terms of any License Order including any specifications submitted by You in connection therewith.
- Requested Modifications: You may, from time to time during the term of this Agreement, request Licensor to develop and implement into, or change, alter or modify, the Software to accommodate certain features and functionality specifically for You. If the Licensor performs the requested development, implementation, change, alteration or modification it will do so provided that You pay all fees, costs and expenses charged by Licensor in connection with such development, implementation, change, alteration or modification as shall be agreed between the parties. Any and all information, documents, software, products, technology, processes, algorithms, formulas, source codes, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information and all Intellectual Property Rights, arising from, out of, or in connection with, such development, implementation, change, alteration or modification shall be deemed to be a Derivative Work. Licensor, its parent or licensor, as the case may be, shall own any and all Derivative Works and You will not claim any ownership, proprietary rights and/or Intellectual Property Rights in any Derivative Works but shall have the same rights and licenses to such Derivative Works as You have to the Software.
- Licensor Modifications: From time to time, changes, alterations and modifications may be developed and implemented into the Software or the Masker Key Technology. Any and all information, documents, software, products, technology, processes, algorithms, formulas, source codes, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information and all Intellectual Property Rights, arising from, out of, or in connection with, such development, implementation, change, alteration or modification shall be deemed to be a Derivative Work. Licensor, its parent or licensor, as the case may be, shall own any and all Derivative Works and You will not claim any ownership, proprietary rights and/or Intellectual Property Rights in any Derivative Works but shall have the same rights and licenses to such Derivative Works as You have to the Software.
ARTICLE 6 – LICENSOR’S OBLIGATIONS
- Payment Obligation: You shall pay all fees specified in all License Orders hereunder. Except as otherwise specified herein or in an License Order, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant billing term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that entire monthly period and the monthly periods remaining in the subscription term. All payments due under this Agreement and/or any License Order shall be made in United States Dollars (USD), unless in such currency specified in the applicable License Order.
- Electronic Payment Method: Unless otherwise specified in any License Order, You will provide Licensor with a valid credit card account number or other account number permitting electronic charge, debit or transfer of funds as a condition to being granted access to the Software and delivery of the Program Documentation and for Your continued use of the Software and Program Documentation throughout the term of this Agreement. You hereby authorize Licensor to charge the account number You specified. Licensor will automatically bill You in accordance with the fees and charges specified in each License Order.
- Receipt of Funds: All payments due hereunder and under any License Order shall be deemed by Licensor to have been made only when funds have been actually credited to Licensor’s account. Receipt of funds to Licensor’s account on the date due shall constitute discharge in respect of such payment by You and receipt of funds after 12 noon (local time) on the date due shall be deemed received on the day following the due date for payment.
- Interest: In the event of any delay in any payment to be made by You under this Agreement or any License Order, You shall pay to Licensor, on first demand from time to time (by way of agreed compensation and not as a penalty) interest at a rate of three percent per annum (3% p.a.) above LIBOR on the amount due and unpaid from and including the due date thereof up to and including the actual date when the payment is made (after as well as before judgment). Interest shall accrue on a daily basis and be compounded monthly and shall be calculated on the basis of the actual number of days elapsed and a 360 day year.
- No Deductions or Withholding: All amounts due under this Agreement and any License Order to be paid by You to Licensor shall be paid in full without any deduction or withholding whether in respect of set-off, counterclaim, duties or taxes imposed in any jurisdiction from which such payments are made unless You are prohibited by law from doing so, in which event You will gross up the payment amount such that the net payment received by Licensor after any deduction or withholding equals the amounts required under this Agreement or the relevant License Order. You shall not be entitled to assert any credit, set-off or counterclaim against Licensor in order to justify withholding payment of any amounts (whether in whole or in part) due under this Agreement or any License Order.
- Value Added Taxes: All amounts payable by You under this Agreement and any License Order are exclusive of any value added tax, turnover tax or similar tax or duty which may from time to time be payable in respect thereof. If a value added tax, turnover tax or any similar tax or duty is payable in respect of any amounts due hereunder, You shall pay the full amount of such amount due hereunder and shall, in addition, pay all such taxes or duty and indemnify Licensor, its parent, licensors and their respective affiliates and subsidiaries against any claims for the same.
ARTICLE 7 – USE AND RESTRICTIONS
- Access: Provided that Licensor has received the payments due to it under the applicable License Order prior to the Start Date, Licensor will on the Start Date provide You with Your user ID and password and all such other information as may be required to enable You to access the Software.
- Updates: Throughout the term of this Agreement, Licensor will provide You with periodic Updates to the Software. Unless otherwise, such Updates shall be provided at no additional cost other than handling charges.
- Training: The Licensor can provide You with training upon written request. Such additional training will be charged to Licensee at the rates provided by the Licensor.
- Marketing: You consent to the Licensor’s inclusion of Your name on a general list of Licensor’s customers used for marketing and promotional purposes.
- Support: Licensor will provide You with ten (10) hours of on-line or telephonic product support per month free of charge. Additional product support will be provided upon written request and shall be charged to Licensee at the rate provided by the Licensor.
- Data Security: Licensor will use commercially reasonable efforts to adhere to the latest industry standards and guidelines to maintain a secure application and database.
- Data Backups: Licensor will use commercially reasonable efforts to make separate weekly and incremental back-ups of the Database.
- Storage: You may upload documents, photos, images and floor plans onto the Software and Database provided that you do not exceed Your storage limit.
- SMS services: Licensor through its service provider will provide a facility to Licensee for transmission of SMS via any type of interface offered by Licensor and/or service provider(“SMS Services”). The Licensee shall have following obligations to Licensor and/or the service provider in connection with use of this facility;
(a) The Licensee agrees that Licensor and/or the service provider exercises no control in any way over the content and messages and is merely providing the transmission and handling of the content and messages. The Licensee shall bear sole responsibility for:
- the content transmitted using the services; and
- the acts, omissions or breaches of subscribers with respect to the use of the services, projects and the messages, including but not limited to the content. Prior to the utilisation of any services, the Licensee shall, at its own expense, take legal advice with regard to both the content and the conduction of the intended services.
(b) The Licensee agrees to initiate or conduct any services only after this Agreement has been signed by the Licensee.
(c) Licensee agrees that it will strictly comply with the rules set out by applicable competition law. In particular, without limitation, the Licensee agrees that it will not send unsolicited advertising material or any other unsolicited content (Spam) to subscribers.
(d) Licensee will send messages only to subscribers who have consented or "optedin" to receiving the quantity, frequency and types of messages send through any Gateway provided by Licensor and/or service provider and who have been informed of their rights to and the process for canceling receipt or "opting-out" of receiving future messages. The Licensee will stop sending messages to a subscriber who has "opted-out" from receiving such messages as soon as possible but in no case later than twenty four (24) hours after receipt of the opt-out request (or any shorter time frame required by the network operator regulations, the applicable regulatory entity or regulation or the applicable code(s) of conduct).
(e) Licensee will provide Licensor and/or service provider with a proof of subscribers OPTIN or OPT-OUT requests and/or the Licensee’s response time to discontinue the transmission of any messages to Licensor and/or service provider’s satisfaction within twenty-four (24) hours of receiving such request. The Licensee agrees to keep such records during the term of this agreement and for one (1) year after termination.
- inform subscribers that the Licensee is the source and supplier of the content and the related messages which must include a source indication within each message (i.e. mobile telephone number, "From" field in text message, etc.);
- comply with the applicable laws and regulations governing the provider identification and
- clearly describe the price and inform subscriber(s) that charges for any premium message will be included on the subscriber’s mobile phone bill.
(g). Each party will promptly inform the other party if such party becomes aware of any violation of the terms of this clause.
- Email services: Licensor through its service provider will provide a facility to Licensee for collection of tools and resources to create, launch, and manage online email marketing campaigns and surveys. The Email Services and Survey Services are collectively referred to as the ("Email Services”).The Licensee shall have following obligations to Licensor and/or the service provider in connection with use of this facility;
(a) Licensee shall not directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services, documentation, or data related to the Services; modify, translate, or create derivative works based on the Services or copy (except for archival purposes), distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party unless specifically authorized by licensor and/or service provider; or remove any proprietary notices or labels.
(c) Licensee may not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email or surveys to any third party. Licensee may only use permission based lists. A permission based list is defined as a list in which each entity on the list is a person or organization that has explicitly granted their permission to receive emails, surveys or other communications from Licensee. The agreement of a person or entity to participate in a survey does not constitute a valid consent to receive correspondence from Licensee to such person or entity. Consent to receive correspondence from Licensee shall be obtained through an opt-in link contained within the body of the survey. Licensee is solely responsible for ensuring that its email campaigns do not generate a number of spam complaints in excess of industry norms. Licensor, in its sole discretion, shall determine whether the level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. Licensor may terminate Licensee's use of the Services if Licensor determines that the level of spam complaints is higher than industry norms.
(d) Licensee agrees that each email sent by Licensee in connection with the Services shall contain the Licensor “unsubscribe" link that allows a recipient to remove themselves from Licensee's mailing list. Licensee is prohibited from mailing to any recipient who has clicked on the unsubscribe link. Licensee shall process all unsubscribe requests within ten (10) days of request by a Licensee's email recipient. Failure to comply with this requirement may result in a termination of Licensee's account by Licensor, and all payments previously paid to Licensor shall be forfeited by Licensee at the time of termination.
(f) Subject to the posted terms and conditions, Licensee may upload images hosted by Licensor into their email and postcard campaigns, and within the body of surveys. Any images hosted by Licensor are only to be used in conjunction with the Services, and Licensee is expressly prohibited from using the images for any other purpose. Licensee is prohibited from using images within an email, survey or postcard campaign to:
(g) For every email message sent or survey launched in connection with the Services, Licensee acknowledges and agrees that the Services shall automatically add an identifying footer stating "Powered by Licensor and/or service provider" or a similar message, unless Licensee has obtained specific authorization from Licensor to remove such identifying footer.
- Sublicense, distribute, transfer or assign any images in connection with any other product except for a Licensor email or postcard;
- Reverse engineer, decompile, translate or dissemble any part of the Images;
- Remove any copyright notices, trademarks or watermarks from any place where it appears on the Images;
- Use the Images as part of another trademark, service mark or logo;
- Use the Images in any way that could be considered by a reasonable person to be defamatory, pornographic, libelous, immoral, obscene or fraudulent, or illegal, either by making physical changes to them, in the juxtaposition to accompanying text or images or otherwise;
- Use the Images in a manner that includes people as part of any sensitive subject matter, which shall be determined by Licensor in its sole discretion. Example of sensitive subject matters include, but are not limited to, mental and physical health issues, sexual activity or preferences, substance abuse, guns and weapons, crime, suicide, abortion, hate groups, political or religious fanaticism, etc.
(h) In using the varied features of the Services, Licensee may provide information (such as name, contact information, or other registration information relating to either the Licensee or Licensee's employer) to Licensor. Licensor may use this information and any technical information about Licensee's use of this web site to tailor its presentations to Licensee, facilitate Licensee's movement through this web site, or communicate separately with Licensee. If Licensee accessed the Services through a partner of Licensor, all Licensee information obtained by such partner may be shared with Licensor. Licensor may also share any Licensee information with such partners. Licensor will not provide information to companies Licensee has not authorized, and Licensor will not permit the companies that get such information to sell and redistribute it without Licensee's prior consent.
(i) Licensee hereby agrees to indemnify and hold harmless Licensor and its business partners, third party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorney's fees) in connection with any claim or action that arises in any way from (a) an alleged violation of the Agreement or (b) Licensee's use of the Services. Although Licensor has no obligation to monitor the content provided by Licensee or Licensee's use of the Services, Licensor may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the Agreement.
(j) Licensee shall not use the Services in any manner (including, without limitation, the transmission of third party content or information) that may violate or infringe upon any rights of a third party. Licensee shall be subject to the indemnification provisions in this Agreement if Licensee's use of the Services violates or infringes upon such rights.
(k) Licensee shall be solely responsible for securely maintaining its user name, password and other account information. Licensor may follow the instructions of any person who represents he is authorized by the Licensee to use or make any changes to the account, provided such person delivers the correct user name and password. Licensor shall have no liability to Licensee for any unauthorized use of Licensee's account or the services provided hereunder.
ARTICLE 8 – INTELLECTUAL PROPERTY OWNERSHIP
- Your Use: You agree to use the Software only for Your own internal business purposes and for lawful purposes in compliance with applicable laws. You are responsible for strict compliance with any and all terms and conditions of this Agreement. You are entirely responsible for any and all activities which occur under Your user ID and password, unless the password’s confidentiality is breached by Licensor’s own negligence. You agree to immediately: (a) notify Licensor of any unauthorized use of the Software, the Masterkey Technology, Your user ID or password or any other known or suspected breach of Your obligations under this Agreement; and (b) report to Licensor, and use reasonable efforts to immediately stop, any copying not expressly permitted herein or distribution of the Software or the Masterkey Technology in whole or in part that is known or suspected by You, Your directors, officers, employees, servants, agents, affiliates or subsidiaries.
- Copies of Program Documentation: You may make copies of the Program Documentation provided that such copies are used solely for training Your own employees, use in Your own internal seminars or internal casual use or to provide copies for emergency back-up for Your own business purposes; provided always that appropriate copyright notices are included on all such copies.
- Restrictions: You shall not:
User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. Licensor reserves the right to conduct audits from time to time upon not less than thirty (30) days’ advance written notice to verify compliance with this Agreement.
- use either the Software, the Masterkey Technology or any part thereof or any Intellectual Property Rights therein in any manner or for any purpose not expressly permitted under this Agreement including, without limitation, any commercial or pecuniary use thereof; or
- rent, lease, license, sublicense, loan, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party, whether directly or indirectly, the Software or the Masterkey Technology in whole or in part, in any medium whatsoever; or
- allow or permit any parent, affiliate, subsidiary or other third party to benefit from the use or functionality of the Software or the Masterkey Technology, either directly or via a facility management, timesharing, service bureau or any other arrangement; or
- transfer any or all of the rights granted to You under this Agreement; or
- take, or allow any third party to take, any action inconsistent with Licensor’s, its parent’s or licensor’s, as the case may be, Intellectual Proprietary Rights in the Software or the Masterkey Technology, including without limitation: (i) removing any proprietary notices or labels thereon; (ii) decompling, reverse engineering or disassembly of the Software or the Masterkey Technology; (iii) the translation, adaptation, arrangement, or other alteration of the Software or the Masterkey Technology in whole or in part; (iv) modifying or creating Derivative Works based upon the Software or the Masterkey Technology in whole or in part; or (v) the combination or incorporation of the Software or Masterkey Technology with, or into, any other computer software; or (vi) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device
- duplicate, reproduce or copy, whether in whole or in part, the Software or the Masterkey Technology or any ideas, features, functions or graphics thereof except as otherwise provided in this Agreement; or
- develop, or allow any third party to develop, a competitive product that incorporates or uses similar ideas, features, functions or graphics of the Software or the Masterkey Technology; or
- use, or allow any third party to use, the Software, the Masterkey Technology or the Database to: (i) fraudulently represent products; (ii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Software or the Masterkey Technology or any part thereof; or (iv) attempt to gain unauthorized access to the Software or the Masterkey Technology or any related systems or networks.
ARTICLE 9 - CONFIDENTIALITY
- Software/Program Documentation: You acknowledge and agree that Licensor’s parent or its licensor owns all right, title and interest, including all related Intellectual Property Rights, in and to the Software and the Masterkey Technology and any Derivative Works, suggestions, ideas, enhancement requests, feedback, recommendations or other information (other than the Database) relating to the Software or the Masterkey Technology. You further agree that:
- this Agreement is not a sale and Your possession, access to, or use of the Software or Program Documentation does not convey or transfer to You, and You will not acquire or claim, any rights of ownership, title or registerable interest in, or related to, the Software or the Masterkey Technology or any Intellectual Property Rights therein or any copies thereof;
- You will properly reproduce on any copy of the Program Documentation produced under Article 7.2, such notices of Intellectual Property Rights as Licensor may advise from time to time. The placing of such notices shall not mean that the Software and/or Program Documentation are in the public domain;
- You will take adequate security measures to safeguard the Software and the Masterkey Technology from access or use by any unauthorized person. For the purposes of this Agreement, authorized persons are You, Your directors, officers and employees but shall not include Your parent, subsidiaries, affiliates, agents, servants or subcontractors or any of their respective directors, officers, employees, agents or servants; and
- the trade name, trade dress, logo and product names associated with the Software and the Masterkey Technology are trademarks of Master Key Supreme Ltd. or third parties and no right or license is granted to use them.
- Database: Licensor acknowledges and agrees that the ownership of all Intellectual Property Rights in the Database and any and all copies thereof shall be and remain Your exclusive property. Neither Licensor, its parent nor its licensor shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and right to use the Database and neither Licensor, its parent, licensor nor their respective affiliates, subsidiaries, directors, officers, shareholders, employees, servants or agents shall be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store the Database or any part thereof.
ARTICLE 10 - INDEMNIFICATION
- Non-Disclosure: Each party acknowledges that in the course of performing this Agreement, it may obtain information from the other party that is confidential and proprietary in nature. Each party covenants that, except as otherwise provided in Article 9.2, it shall at all times, both during the term of this Agreement and for a period of three (3) years after the termination of this Agreement, keep confidential (and shall procure that its directors, officers, employees, servants, agents, affiliates and subsidiaries shall keep confidential) all Confidential Information now or hereafter received or obtained from the other party.
Exceptions: party may disclose any Confidential Information about the other:
- to the extent to which it is required to be disclosed pursuant to applicable law, provided that if any disclosure is required to be made to a government entity or by valid legal process, the disclosing party shall notify the other party prior to any disclosure;
- to the extent to which it is specifically permitted by the other party in writing;
- to the extent that such Confidential Information is publicly available (other than as the result of a breach by the parties of their respective obligations under Article 9.1); or
- to its own directors, officers, employees, servants, agents and, in the case of Licensor, its subcontractors, on a need-to-know basis and provided that such directors, officers and
employees and subcontractors are bound by a confidentiality undertaking substantially on the terms set out in Article 9.1.
- Injunctive Relief and Other Remedies: Each party hereby acknowledges that the covenants and obligations contained in this Article 9 relate to special, unique and extraordinary matters and are necessary for the protection of such party’s business and goodwill and are reasonable for such purpose. Each party hereby agrees that any breach by the other of this Article 9 will cause irreparable damage to the other party and that in the event of such breach, the non-breaching party shall be entitled, in addition to monetary damages and to any other remedies available to it under this Agreement and at law, to equitable relief, including injunctive relief, and to payment by the breaching party, of all costs (including, without limitation, legal costs) incurred by such in enforcing the provisions of this Agreement.
ARTICLE 11 - WARRANTY, DISCLAIMER AND LIMITATION OF LIABILITY
- Indemnification of Licensor: You will defend, indemnify and hold Licensor, its parent, licensor, affiliates and subsidiaries and each of their respective directors, officers, shareholders, employees, agents and servants harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising from, out of or in connection with:
provided that: (i) Licensor gives You prompt notice of any such claim; (ii) Licensor provides reasonable assistance and information to You in the defense of such claim; (iii) Licensor gives You sole control of the defense of any such claim; and (iv) Licensor has not compromised or settled such claim. The indemnity contemplated in this Article 10.1 shall not extend to costs, damages, losses, liabilities and expenses to the extent that such costs, damages, losses, liabilities and expenses have resulted from the gross negligence or willful misconduct of the indemnitees specified in this Article 10.1.
- any breach of Your obligations under this Agreement;
- Your use of the Software; or
- any claim or contention that the Database infringes the rights of, or has caused harm to, a third party or violates any third party’s rights of privacy or publicity
- Indemnification of You: Licensor will defend, indemnify and hold You and Your directors, officers and employees harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising from, out of or in connection with:
- any breach by Licensor of its obligations under this Agreement; or
- any claim or contention that the Software or the Masterkey Technology directly infringes a copyright, patent issued as of the Start Date, or a trademark of a third party;
provided that: (i) You give Licensor prompt notice of any such claim; (ii) You provide reasonable assistance and information to Licensor in the defense of such claim; (iii) You give Licensor sole control of the defense of any such claim; and (iv) You have not compromised or settled such claim. The indemnity contemplated in this Article 10.2 shall not extend to costs, damages, losses, liabilities and expenses to the extent that such costs, damages, losses, liabilities and expenses have resulted from the gross negligence or willful misconduct of the indemnitees specified in this Article 10.2.
ARTICLE 12 - FORCE MAJEURE
- Warranty: Licensor warrants that the Software will be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Software will perform substantially in accordance with the Program Documentation under normal use and circumstances. Licensor makes no warranty that the Software or the Masterkey Technology will be error-free, or free from interruptions or other failures or that the Software or the Masterkey Technology will satisfy Your specific requirements. Licensor makes warranty that Licensor shall use best efforts to ensure that the Software or the Masterkey Technology is virus free.
- Disclaimer: THE SOFTWARE, THE MASTERKEY TECHNOLOGY AND OTHER SERVICES UNDER THIS AGREEMENT ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL USES OF THE SOFTWARE AND THE MASTERKEY TECHNOLOGY ARE AT YOUR SOLE RISK. EXCEPT AS SPECIFICALLY PROVIDED IN ARTICLES 2.1 AND 11.1, ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OR STATUTORY, ARE HEREBY EXPRESSLY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY AND/OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
- Internet Delays: LICENSOR WILL USE REASONABLE COMMERCIAL EFFORTS TO ENSURE THAT THE SOFTWARE WILL BE ACCESIBLE TO CONNECTION FROM THE INTERNET.THE SOFTWARE IS ACCESSIBLE VIA THE INTERNET AND THEREFORE IS SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT TO THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NEITHER LICENSOR, IT’S PARENT OR LICENSOR NOR ANY OF THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, SERVANTS OR AGENTS, SHALL BE LIABLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE USE OF THE SOFTWARE MAY BE INTERRUPTED BY ROUTINE MAINTENANCE; LICENSOR WILL USE COMMERCIALLY REASONABLE EFFORTS TO MINIMIZE SUCH INTERRUPTION AND SCHEDULE MAINTENANCE AT NON-PEAK HOURS.
- Limitation of Liability:
- In no event shall either Party’s total aggregate liability, either in contract, tort (including negligence), under any other theory of liability or otherwise arising out of, from, or in connection with, either this Agreement, the supply of, and/or access to, the Software or the Masterkey Technology, or the provision of any ancillary support or services exceed the amounts actually paid by You in the twelve (12) month period immediately preceding the event giving rise to the claim. The foregoing shall not limit Your liability for breach of Your obligations under Articles 5, 7, 8, 9 and 10.1., in which case your liability under these Articles shall be unlimited.
- In no event shall either Party have any liability to the other Party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the Party has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to, the extent prohibited by applicable law and Your liability for breach of your obligations under Articles 5, 7, 8, 9 and 10.1 in which case your liability under these Articles shall be unlimited.
ARTICLE 13 – NON-PAYMENT AND SUSPENSION
- No Liability: Neither Licensor, its parent, licensor, affiliates, subsidiaries nor any of their respective directors, officers, employees, shareholders, servants and agents shall be liable for any failure or delay in performing its obligations hereunder when required if such failure or delay is due to circumstances beyond Licensor’s control which shall include, without limitation, civil disturbances, strike or other labor disturbances, epidemics, insurrections, sabotage, embargos, fires, floods, natural disasters, wars, acts of any governmental body, acts of terrorism, acts of God, interruption of, or delay in, transportation, unavailability or, or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain materials, supplies or power used in, or equipment needed for the provision of the Software, the Masterkey Technology and/or any training, product support or other services or any other such events outside the control of Licensor that make it impossible for it to comply with its obligations hereunder. Such failure or delay in performing such obligations shall not constitute a breach or default of this Agreement and shall not subject Licensor to any liability to You so long as such event exists. To the extent that Licensor is unable to perform its obligations hereunder, such obligations shall be suspended so far as they are affected by the event and Licensor shall resume performance of the relevant obligation as soon as practicable following the elimination of such event.
ARTICLE 14 – TERM & TERMINATION
- Suspended Access: In addition to any other rights granted to Licensor herein, Licensor reserves the right to suspend Your access to the Software, with immediate effect and without notice to You, if You fail to pay any amount due under this Agreement by the due date or within 30 days thereof. You will continue to be charged for the license granted hereunder during any period of suspension.
- Reconnection Fee: Licensor reserves the right to impose a reconnection fee in the event Your access to the Software is suspended pursuant to Article 13.1 and thereafter You request access to the Software.
ARTICLE 15 - MISCELLANEOUS
- Term of Agreement: This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
- Term of Purchased User Subscriptions: User subscriptions purchased by You commence on the start date specified in the applicable License Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable License Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
- Termination with Notice: Either party may terminate this Agreement by giving sixty (60) days’ written notice to the other prior to the expiry of the Initial Term or any renewal term, in which case this Agreement will terminate as of the end of such term unless the parties agree an earlier termination date.
- Termination without Notice: If:
- You fail to pay any amount due under this Agreement or any License Order by the due date or within 30 days thereof; or
- You fail to comply with any provision (other than obligations referred to in Article 14.2(a)) of this Agreement, and such failure, if capable of being remedied, is not remedied to Licensor’s satisfaction within thirty (30) days after written notice thereof from Licensor requiring such remedy; or
- there is an actual or proposed change in control of You that results or would result in a direct competitor of Licensor directly or indirectly owning or controlling 50% or more of You; or
- You are adjudged bankrupt or insolvent by a competent authority or court.
Licensor may, in its sole discretion, terminate this Agreement and/or Your access to the Software immediately without notice to You.
- Effects of Termination: The termination of this Agreement will terminate Your access to the Software and Masterkey Technology. Neither Licensor, its parent or licensor nor any of their respective affiliates, subsidiaries, directors, officers, shareholders, employees, servants or agents shall be liable to You or to any third party for termination of this Agreement or Your access to the Software for any reason whatsoever. Upon termination of this Agreement for any reason whatsoever, You shall promptly return to Licensor the Program Documentation and all copies thereof. Upon termination of this Agreement other than pursuant to Article 14.2 Licensor will, if You so request that the time of termination return the Database to You. Licensor reserves the right to withhold, remove and/or discard the Database without notice for any breach of Your obligations under this Agreement.
- Survival of Obligations: The termination of this Agreement does not relieve You of Your obligation to pay to any amounts accrued or payable by You pursuant to this Agreement or any License Order prior to the date of termination of this Agreement. Your obligations set forth in this Agreement and the relevant License Order which were due to have been performed but have not been fully performed prior to the termination of this Agreement pursuant to this Article 14 shall survive. Any provision of this Agreement that expressly or by implication is intended to survive termination shall continue in force.
- Return of Your Data: Upon request by You made within 30 days after the effective date of termination of a License Order, Licensor will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, Licensor shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Licensor’s systems or otherwise in Licensor’s possession or under Licensor’s control.
QUESTIONS OR ADDITIONAL INFORMATION: If You have questions regarding this Agreement or wish to obtain additional information, please send an email to firstname.lastname@example.org
- Independent Contractors: This Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between You and Licensor. Neither party will have the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party in any respect whatsoever.
- No Assignment: Your rights and obligations under this Agreement shall not be transferred or assigned directly or indirectly without the prior written consent of Licensor. Any purported assignment or transfer in violation of this Article shall be void.
- Subcontracting: Licensor shall be entitled to subcontract any or all of its obligations under this Agreement and any License Order. Notwithstanding any such subcontracting, Licensor shall remain fully liable to perform its obligations under this Agreement and such License Order during the period of the subcontract, provided that if any obligation which is required to be performed by Licensor under this Agreement or such License Order is performed by its subcontractor, then performance by such subcontractor shall, for the purposes of this Agreement or such License Order, constitute performance pro tanto by Licensor.
- Entire Agreement: This Agreement together with each License Order constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all previous or contemporaneous offers, proposals, agreements and other written and oral communications in relation thereto.
- Modification to Terms: Licensor reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Software or the Masterkey Technology at any time, effective upon posting of an updated version of this Agreement on its website. You are responsible for regularly reviewing this Agreement. Continued use of the Software after any such change shall constitute Your consent to such changes.
- No Waiver: The failure of either party to enforce any right, power or remedy hereunder or to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such rights, powers, remedies, terms, covenants and conditions, unless such waiver is an express written waiver which has been signed by the waiving party. Waiver of one breach shall not be deemed a waiver of any other breach of the same or any other provision hereof.
- Binding Effect: This Agreement and each License Order are binding and shall inure to the benefit of the parties and their respective assigns.
- Notices: Any notice or other communication to be made hereunder or in connection with this Agreement or any License Order shall be in writing in the English language and shall be delivered personally or by post, facsimile transmission or email transmission to the address, facsimile number or email address specified in the relevant License Order and will be effective upon delivery or transmission.
- Severability: In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein and there shall be deemed substituted for such invalid, illegal or unenforceable provision such other provision as will most nearly accomplish the intent of the parties to the extent permitted by the applicable law.
- Governing Law: This Agreement, including all matters of construction, validity and performance shall be governed by and construed in accordance with the laws of England and Wales.
- Dispute Resolution: Any dispute arising out of, or relating to, this Agreement or any License Order or any of their respective provisions thereof shall be settled by negotiation in good faith by the parties. In the event that the parties are unable to reach agreement within two (2) months after commencement of such negotiations, the dispute shall be referred to arbitration in accordance with the provisions set forth in the Rules of Arbitration of the International Chamber of Commerce. The arbitration shall take place in London, England or such other location as the parties may agree, the number of arbitrators shall be one (1), who shall be appointed in accordance with the said Rules, the language used in the arbitral proceedings shall be English and the procedure (insofar as not governed by the said Rules) shall be governed by the laws of England and Wales. The parties agree that the decision of the arbitrator shall be final and binding..