This End User License Agreement (the “Agreement”) is a binding contract between you and OvalEdge LLC, a company having its registered office at 5655 Peachtree Pkwy Suite#216 Peachtree Corners GA 30092 (“Licensor”) in furtherance of the Software License Agreement (“Contract”) entered into by Licensor with your employer (“Licensee”). For the purpose of this Agreement, “you” or “user” shall mean any natural person authorised by Licensee and who has agreed to accept the delivery of Software (defined below).
For the purpose of this Agreement, “Software” means Licensor’s proprietary software product, namely OVALEDGE (in an object code form) made available for download in installable form to you together with any update or upgrade, when and if made available by the Licensor to all its customers including Licensee.
BY CLICKING ON THE “I AGREE” (OR SIMILAR BUTTON) AND USING THE SOFTWARE, YOU INDICATE YOU ASSENT TO THE FOLLOWING TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THE TERMS OF THIS AGREEEMENT, DO NOT INSTALL, USE OR ACCESS THE SOFTWARE.
“Licensor”, “we”, “us” and “our” shall mean OvalEdge LLC.
1.1.Subject to the terms and conditions of this Agreement, the Licensor hereby grants you a personal, limited, non-exclusive, non-transferable, non-sublicensable license to install, access and use the Software supplied to you hereunder, as installed on the laptop, desktop provided by Licensee in the manner permitted by these terms solely for your internal business purpose commencing from the date of payment of the License Fees provided by Licensee.
2. ACCOUNT MANAGEMENT
As a condition for using the Software, you may be required to register with the Licensor and select a password and enter your email address. You must ensure to provide the Licensor with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You shall be responsible for maintaining the confidentiality of your account and password.
3. LICENSE RESTRICTIONS
3.1.You shall not copy, modify, distribute, disassemble, de-compile or reverse engineer or otherwise attempt to derive the source code of the Software or permit or encourage any third party, to do so.
3.2.You shall not permit any third party to access the Software, except as expressly provided in this Agreement.
3.3.You shall not defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others and Licensor, directors, employees or representatives, by using the Software;
3.4.You shall not publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information while using the Software;
3.5.You shall not try to hack, crash or sabotage the Software.
3.6.You shall not allow third parties to access or use the Software, including without limitation any use in any application service provider environment, service bureau, or time-sharing arrangements.
3.7.You shall not sell, resell, rent or lease the Software for timesharing or service bureau purposes, or otherwise use the Software on behalf of any third party.
3.8.adapt, alter, publicly display, publicly perform, translate, embed into any other product, or otherwise create derivative works of, or otherwise modify the Software.
3.9.You shall not use the Software in any manner to assist or take part in the development, marketing, or sale of a product potentially competitive with the Software.
3.10.You shall not use the Software for performing comparisons or other “benchmarking” activities, either alone or in connection with any software (and you will not publish or disclose any such performance information or comparisons);
3.11.You shall not interfere with or disrupt the integrity and performance of the Software.
3.12.You shall not copy any features, functions or graphics of the Software.
3.13.You are forbidden to transmit unsolicited commercial email (spam) by using the Software. Repeated violations or failures to comply with this anti-spam policy will result in termination of your access to the Software. You agree and acknowledge that, we shall not be held liable for any claim that may arise due to your violation of this anti-spam policy.
4. LICENSE FEE
The license to install access or use the Software provided by Licensor to you under this Agreement, shall be subject to Licensor’s receipt of the license fees from Licensee as per to respective plan selected by Licensee.
5. PROPRIETARY RIGHTS
5.1.You acknowledge and agree that the Software, including without limitation the Software’s sequence, structure, organization, source code and applicable documentation contains valuable trade secrets and other intellectual property of the Licensor, its suppliers or its licensors and is considered Licensor’s confidential information. The Software is licensed and not sold to you, and no title or ownership to such Software or the intellectual property rights embodied therein passes as a result of this Agreement or any act pursuant to this Agreement. The Software and all intellectual property rights therein are the exclusive property of the Licensor, its suppliers or its licensors, and all rights in and to the Software not expressly granted to you in this Agreement are reserved. Licensor owns all copies of the Software, however made. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any existing or future property of the Licensor, except to the extent necessary for users to use the Software as expressly permitted under this Agreement.
5.2.The copyright, trademark, and other proprietary rights notices contained or incorporated in the Software may not be removed, altered, or added to in any way.
You acknowledge that the Software may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of Software and/or the systems on which they are installed (including problems and issues that arise in connection therewith)and provide information back to Licensor. Licensor will be free to use for development, diagnostic, compliance monitoring, and corrective purposes any data and information it so collects.
7.1.The Software provided under this Agreement contains valuable trade secrets and is the confidential information of the Licensor. You shall not disclose, provide or otherwise make available the Software to any third party, except as expressly granted under this Agreement.
7.2.You agree to use all commercially reasonable precautions to protect the confidentiality of the Software, and shall secure from all third parties having access to the Software, per the terms of this Agreement, commitment to maintain the Software in confidence.
7.3.You agree that under no circumstances the Licensor or its affiliates or subsidiaries shall be held responsible or liable for any loss, damage or harm caused due to your reliance on information obtained from the Software.
8. THIRD PARTY SOFTWARE
Third-Party Software is subject to separate terms and conditions provided by such Third-Party Software. The license restrictions contained in this Agreement do not apply to Third-Party Software to the extent they are inconsistent with such Third-Party Software terms. The Licensor shall not be responsible for any Third-Party Software.
9. AUDIT AND INSPECTION
We shall have the right to appoint an auditor at our cost to inspect the records maintained by You to validate the permitted usage of the Software by You. You agree to allow access to the auditor appointed by us during normal office hours. In the event the auditor identifies that any discrepancies in the amounts paid vis-à-vis the actual usage, then We shall have the right to require You to pay us up to 2 (two) times of the amount not paid. In addition, You shall be liable to pay for the audit fees incurred by Us.
10. TERM AND TERMINATION
This Agreement will commence upon payment of license fee by Licensee and after your download or installation of the Software and, unless earlier terminated as provided in this Section 10, will continue until the end of the applicable license term designated by Licensor . 1) This Agreement may be terminated by the Licensor with a written notice of thirty (30) days to the user or 2) This Agreement will immediately terminate upon your breach of this Agreement. Any termination of this Agreement shall also terminate the license granted hereunder. Upon the termination of this Agreement, you will immediately but not later than 2 days from the date of termination, promptly but not later than 2 days from the date of termination destroy or remove from all computers, hard drives, networks, and other storage media all copies of the the Software and any copies thereof, and, upon request by Licensor, certify in writing, that such destruction has taken place. These remedies are cumulative and in addition to any other remedies available with the Licensor. Sections 3, 4, 5, 7, 10, 11, 12, 13 and 16, shall survive the termination of this Agreement.
You will defend, indemnify and hold harmless the Licensor from and against any loss, cost, liability or damage, including attorneys’ fees, for which Licensor becomes liable arising from or relating to any claim relating to your data, including but not limited to any claim brought by a third party alleging that your data, or your use of the Software in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law.
12. WARRANTY DISCLAIMER
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SOFTWARE ARE AT YOUR SOLE RISK AND THAT THE SOFTWARE ARE PROVIDED ON “AS IS” AND “AS AVAILABLE” BASIS. LICENSOR, ITS SUBSIDIARIES AND AFFILIATES, DO NOT REPRESENT OR WARRANT TO THAT 1) YOUR USE OF THE SOFTWARE WILL MEET YOUR REQUIREMENTS, 2) YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERRORS, 3) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SOFTWARE WILL BE ACCURATE OR RELIABLE. LICENSOR FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND LICENSOR IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
13. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE LICENSOR BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, (INCLUDING WITHOUT LIMITATION DAMAGES FOR INTERRUPTION OF BUSINESS OR COMMUNICATION OR DELAY, LOST DATA, LOST PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES .
IN NO EVENT WILL THE CUMULATIVE LIABILITY OF THE LICENSOR ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED (A) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE LICENSE FEES PAID BY LICENSEE FOR THE APPLICABLE SOFTWARE IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE, OR, IF GREATER, ONE THOUSAND DOLLARS ($1,000). THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN. THIS LIMITATION OF LIABILITY IS A FUNDAMENTAL ELEMENT OF THIS AGREEMENT BETWEEN YOU AND THE LICENSOR. LICENSOR WOULD NOT PROVIDE THE SOFTWARE TO YOU ABSENT SUCH LIMITATION.
If you are part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defence Federal Acquisition Regulation Supplement as applied to military agencies. The Software is “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this Agreement.
You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and you shall not export, or allow the export or re-export of the Software or any related technical information in violation of any such restrictions, laws or regulations. By installing or using the Software, you agree to the foregoing and represents and warrants that you are not located in, under the control of, or a national or resident of any restricted country.
16. General Provisions:
16.1.This Agreement along with other policies referred under this Agreement, constitutes the entire or sole legal agreement between you and Licensor and shall govern the use of the Software and shall supersede and prevail over any prior agreements, whether oral or written, regarding subject matter hereof.
16.2.If any court of law, having the jurisdiction to decide on this matter, rules that any provision contained under this Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable.
16.3.Licensor shall have a right to assign this Agreement to its affiliates or any third parties at any time without notice to you.
16.4. This Agreement shall be governed by and construed under laws of Georgia as such law applies to agreements between Georgia residents entered into and to be performed within Georgia, and The U.N. Convention on Contracts for the International Sale of Goods shall not apply. Unless waived by Licensor in a particular instance, the sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Georgia and each party hereby consents to the jurisdiction of such courts for any such dispute
16.5.Any waivers and modifications must be in writing and signed by both parties. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
16.6.By registering your details with Licensor, you agree that we may contact you with important information relating to the Software.
16.7.No agency, partnership, joint venture, or employment is created between you and the Licensor as a result of this Agreement, and you do not have any authority of any kind to bind Licensor in any respect whatsoever.