End-User Software License Agreement

(EULA) rev 3.3 (15.06.2016)
Last modified on 15th June 2016.
Your use of the software (as specified below) is subject to the terms and conditions set forth in this EULA. By installing, using or accessing the Inventia services or any materials included in or with the Inventia services, you hereby accept the terms of this EULA. If you do not accept the terms of this EULA, do not install, use or access the Inventia services.

AGREEMENT

1. Definitions

1.1 Except to the extent expressly provided otherwise, in this EULA:

Charges” means those amounts that the parties have agreed in writing shall be payable by the User to the Licensor in respect of this EULA;

Documentation” means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the User;

EULA” means this end user license agreement, including any amendments to this end user licence agreement from time to time;

Effective Date” means the earliest date among the date upon which the User gives the User’s express consent to this EULA, following the issue of this EULA by the Licensor following the issue of this EULA by the Licensor OR the installation date of the Software OR the receiving date of activation keys from the Licensor;

Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

Licensor” means Inventia SRL, a company incorporated in Italy registration number Reg.Imp. MI 19990222, VAT N. IT 07914430967) having its registered office at via Privata Antonio Fontanesi, 4 – Milano- Italy;

Licensor Indemnity Event” has the meaning given to it in Clause 12.1;

Maintenance Services” means the application to the Software of Updates; Upgrades, when available, will be provide on User request and regulated by a separate EULA;

Minimum Term” means, in respect of this EULA, the period of 12 months beginning on the Effective Date, unless otherwise specified and accepted in the purchase order;

Services” means any services that the Licensor provides to the User, or has an obligation to provide to the User, under this EULA;

Software” means Inventia platform and its components, including but not limited to: Inventia  Server, Inventia  Web Widget, Inventia Mobile SDK, Inventia Operator Console, Inventia Admin Dashboard, Inventia Video Recorder Module, Inventia Cobrowsing Module;

Software Defect” means a defect, error or bug in the Software having an adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:

  1. any use of the Software contrary to the Documentation by the User or any person authorised by the User to use the Software;
  2. a failure of the User to perform or observe any of its obligations in this EULA;and/or
  3. an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification;

Software Specification” means the specification for the Software set out in the Documentation;

Source Code” means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software;

Support Services” means support in relation to the use of the Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise;

Term” means the term of this EULA, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

Update” means a hotfix, patch or minor version update to the Software;

Upgrade” means a major version upgrade of the Software and can be subject to charges according to Licensor commercial policies;

User” means the person to whom the Licensor grants a right to use the Software under this EULA; and

User Indemnity Event” has the meaning given to it in Clause 12.3.

2. Term

2.1 This EULA shall come into force upon the Effective Date.

2.2 This EULA shall continue in force for period specified in the purchase order, if charges are regularly paid OR until the software is declared retired by Licensor, subject to termination in accordance with Clause 14.

3. License

3.1 The Licensor hereby grants to the User from the date of supply of the Software to the User until the end of the Term a non-exclusive license to:

  1. install the Software;
  2. use the Software in accordance with the Documentation ;
  3. use a single instance of the Inventia Server Software; and
  4. create, store and maintain up to 3 back-up copies of the Software,subject to the limitations and prohibitions set out and referred to in this Clause 3.

3.2 The User may not sub-license and must not purport to sub-license any rights granted under Clause 3.1 without the prior written consent of the Licensor. The User may sub-license the rights granted in Clause 3.1 to any third party approved by the Licensor for the purposes of hosting the Software and supporting the User’s use of the Software in accordance with this EULA only. Any such sub-license shall automatically terminate upon the termination of the license in Clause 3.1.

3.3 Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any license granted under this Clause 3 shall be subject to the following prohibitions:

  1. the User must not sell, resell, rent, lease, loan, transfer the legal ownership, supply, publish, distribute or redistribute the Software or any passwords or usernames of Inventia Services;
  2. the User must not alter, translate, edit or adapt the Software; and
  3. the User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate, reverse engineer or otherwise modify the Software, in whole or in part, or prepare derivative works based on;
  4. The User may not use the Software for operations of any type on aircrafts, ships, nuclear plants, life support machines, communication systems or any other equipment in which the malfunctioning of the Software could lead to personal injury, death or environmental damage; and
  5. The User may not falsify, remove or obscure any author attribution, copyright, trademark and legal notices of Licensor, nor the copyright or trademark notices of third parties that the Licensor has included in the Software or in the supporting documentation; and
  6. The User may not exceed the limits set by licenses purchased for the duration of the License.

3.4 The User shall be responsible for the security of copies of the Software supplied to the User under this EULA and shall use all reasonable endeavors (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorized to use them under this EULA.

4. Source Code

4.1 Nothing in this EULA shall give to the User or any other person any right to access or use the Source Code or constitute any licence of the Source Code.

5. Maintenance Services

5.1 The Licensor shall provide the Maintenance Services to the User during the Term.

5.2 The Licensor shall provide the Maintenance Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Licensor’s industry.

5.3 The Licensor warrants to the User that the application of Updates and Upgrades to the Software by the Licensor will not introduce any Software Defects into the Software.

5.4 The Licensor warrants to the User that the application of Updates and Upgrades to the Software by the User in accordance with the instructions of the Licensor will not introduce any Software Defects into the Software.

5.5 The Licensor may suspend the provision of the Maintenance Services if any amount due to be paid by the User to the Licensor under this EULA is overdue, and the Licensor has given to the User at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

5.6 The Licensor may terminate the Maintenance Services by giving to the User at least 30 days’ written notice expiring on or at any time after the first anniversary of the Effective Date.

5.7 If the Licensor stops or makes a good faith decision to stop providing maintenance services in relation to the Software to its customers generally, then the Licensor may terminate the Maintenance Services by giving at least 90 days’ written notice of termination to the User.

5.8 If the Maintenance Services are terminated in accordance with the provisions of this Clause 5:

  1. the User must pay to the Licensor any outstanding Charges in respect of Maintenance Services provided to the User before the termination of the Maintenance Services;
  2. the Licensor must refund to the User any Charges paid by the User to the Licensor in respect of Maintenance Services that were to be provided to the User after the termination of the Maintenance Services; and
  3. the provisions of this Clause 5, excluding this Clause 5.8, shall cease to apply, but the other provisions of this EULA will continue notwithstanding such termination.

6. Support Services

6.1 The Licensor shall provide the Support Services to the User during the Term.

6.2 The Licensor shall provide the Support Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Licensor’s industry.

6.3 The Licensor may suspend the provision of the Support Services if any amount due to be paid by the User to the Licensor under this EULA is overdue, and the Licensor has given to the User at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

6.4 The Licensor may terminate the Support Services by giving to the User at least 30 days’ written notice expiring on or at any time after the first anniversary of the Effective Date.

6.5 If the Support Services are terminated in accordance with the provisions of this Clause 6:

  1. the User must pay to the Licensor any outstanding Charges in respect of Support Services provided to the User before the termination of the Support Services;
  2. the Licensor must refund to the User any Charges paid by the User to the Licensor in respect of Support Services that were to be provided to the User after the termination of the Support Services; and
  3. the provisions of this Clause 6, excluding this Clause 6.5, shall cease to apply, but the other provisions of this EULA will continue notwithstanding such termination.

7. No assignment of Intellectual Property Rights

7.1 Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the User, or from the User to the Licensor.

7.2 The Software contains copyrighted material, trade secrets and other proprietary material. The Licensed Software, as well as any authorized copy that the User uses, constitute the intellectual property of Inventia.

8. Charges

8.1 The User shall pay the Charges to the Licensor in accordance with this EULA.

8.2 All amounts stated in or in relation to this EULA are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, duties, custom taxes or others taxes which will be added to those amounts and payable by the User to the Licensor.

9. Payments

9.1 The Licensor shall issue invoices for the Charges to the User at the order acceptance unless otherwise specified.

9.2 The User must pay the Charges to the Licensor within the period of 30 days following the issue of an invoice in accordance with this Clause 9.

9.3 The User must pay the Charges by any payment method using such payment details as are notified by the Licensor to the User from time to time.

9.4 If the User does not pay any amount properly due to the Licensor under this EULA, the Licensor may charge the User interest on the overdue amount at the rate of 8% per annum above the European Central Bank base rate from time to time which interest will accrue daily until the date of actual payment.

10. Warranties

10.1 The Licensor warrants to the User that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.

10.2 The Licensor warrants to the User that:

  1. the Software as provided will conform in all respects with the Software Specification;
  2. the Software will be supplied free from Software Defects and will remain free from Software Defect for a period of at least 12 months following the supply of the Software;
  3. the Software will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
  4. the Software shall incorporate security features reflecting the requirements of good industry practice.

10.3 The Licensor warrants to the User that the Software, when used by the User in accordance with this EULA, will not breach any laws, statutes or regulations applicable under Italian law.

10.4 The Licensor warrants to the User that the Software, when used by the User in accordance with this EULA, will not infringe the Intellectual Property Rights of any person in the European Union and under any applicable law in that territories.

10.5 If the Licensor reasonably determines, or any third party alleges, that the use of the Software by the User in accordance with this EULA infringes any person’s Intellectual Property Rights, the Licensor shall act reasonably at its own cost and expenses to:

  1. modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights, providing that any such modification must not introduce any Software Defects into the Software and must not result in the Software failing to conform with the Software Specification, or;
  2. procure for the User the right to use the Software in accordance with this EULA.

10.6 The User warrants to the Licensor that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.

10.7 All of the parties’ warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract.

11. Acknowledgements and warranty limitations

11.1 The User acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.

11.2 The User acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be entirely secure.

11.3 The User acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software.

11.4 The User acknowledges that the Licensor will not provide any legal, financial, accountancy or taxation advice under this EULA or in relation to the Software; and, except to the extent expressly provided otherwise in this EULA, the Licensor does not warrant or represent that the Software or the use of the Software by the User will not give rise to any legal liability on the part of the User or any other person.

12. Indemnities

12.1 The Licensor shall indemnify and shall keep indemnified the User against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the User and arising directly or indirectly as a result of any breach by the Licensor of this EULA (a “Licensor Indemnity Event”).

12.2 The User must:

  1. upon becoming aware of an actual or potential Licensor Indemnity Event, notify the Licensor;
  2. provide to the Licensor all such assistance as may be reasonably requested by the Licensor in relation to the Licensor Indemnity Event;
  3. allow the Licensor the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Licensor Indemnity Event; and
  4. not admit liability to any third party in connection with the Licensor Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Licensor Indemnity Event without the prior written consent of the Licensor,without prejudice to the Licensor’s obligation to indemnify the User under Clause 12.1 shall not apply unless the User complies with the requirements of this Clause 12.2.

12.3 The User shall indemnify and shall keep indemnified the Licensor against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Licensor and arising directly or indirectly as a result of any breach by the User of this EULA (a “User Indemnity Event”).

12.4 The indemnity protection set out in this Clause 12 shall be subject to the limitations and exclusions of liability set out in this EULA.

13. Limitations and exclusions of liability

13.1 Nothing in this EULA will:

  1. limit or exclude any liability for death or personal injury resulting from negligence;
  2. limit or exclude any liability for fraud or fraudulent misrepresentation;
  3. limit any liabilities in any way that is not permitted under applicable law; or
  4. exclude any liabilities that may not be excluded under applicable law,and, if a party is a consumer, that party’s statutory rights will not be excluded or limited by this EULA, except to the extent permitted by law.

13.2 The limitations and exclusions of liability set out in this Clause 13 and elsewhere in this EULA:

  1. are subject to Clauses 13.1 and 16.6; and
  2. govern all liabilities arising under this EULA or relating to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this EULA.

13.3 The Licensor will not be liable to the User in respect of any losses arising out of a Force Majeure Event.

13.4 The Licensor will not be liable to the User in respect of any loss of profits or anticipated savings.

13.5 The Licensor will not be liable to the User in respect of any loss of revenue or income.

13.6 The Licensor will not be liable to the User in respect of any loss of business, contracts or opportunities.

13.7 The Licensor will not be liable to the User in respect of any loss or corruption of any data, database or software.

13.8 The Licensor will not be liable to the User in respect of any special, indirect or consequential loss or damage.

13.9 The liability of the Licensor to the User under this EULA in respect of any event or series of related events shall not exceed the greater of:

  1. 1.000 euro; and
  2. the total amount paid and payable by the User to the Licensor under this EULA in the 12 month period preceding the commencement of the event or events.

13.10 The aggregate liability of the Licensor to the User under this EULA shall not exceed the greater of:

  1. 5.000 euro; and
  2. the total amount paid and payable by the User to the Licensor under this EULA.

14. Termination

14.1 The Licensor may terminate this EULA by giving to the User written notice of termination, expiring at the end of any calendar month OR after the end of the Minimum Term.

14.2 The User may terminate this EULA by giving to the Licensor not less than 30 days’ written notice of termination, expiring at the end of any calendar month OR after the end of the Minimum Term.

14.3 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

  1. the other party commits any breach of this EULA, and the breach is not remediable;
  2. the other party commits a breach of this EULA, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
  3. the other party persistently breaches this EULA (irrespective of whether such breaches collectively constitute a material breach).

14.4 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

  1. the other party:
    1. is dissolved;
    2. ceases to conduct all (or substantially all) of its business;
    3. is or becomes unable to pay its debts as they fall due;
    4. is or becomes insolvent or is declared insolvent; or
    5. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
  2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
  3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this EULA); or
  4. if that other party is an individual:
    1. that other party dies;
    2. as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
    3. that other party is the subject of a bankruptcy petition or order.

14.5 The Licensor may terminate this EULA immediately by giving written notice to the User if:

  1. any amount due to be paid by the User to the Licensor under this EULA is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given;
  2. the Licensor has given to the User at least 30 days’ written notice, following the failure to pay, of its intention to terminate this EULA in accordance with this Clause 14.5; and
  3. the Software contains a technology suitable to prevent unauthorized use: this measure will be used by Inventia to validate the possession by the user of a copy with a valid License of the Software. The User may not interfere with such access control measures or attempt to disable or circumvent such security features. If the User disable or otherwise tamper with the technical protection measures, the software will not function properly and the Licensor may immediately terminate License.

15. Effects of termination

15.1 Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.1, 9.2, 9.4, 12, 13, 15, 16 and 17.

15.2 The termination of this EULA shall not affect the accrued rights of either party.

15.3 Within 30 days following the termination of this EULA for any reason:

  1. the User must pay to the Licensor any Charges in respect of Services provided to the User before the termination of this EULA and in respect of licenses in effect before the termination of this EULA; and
  2. the Licensor must refund to the User any Charges paid by the User to the Licensor in respect of Services that were to be (but are not) provided to the User after the termination of this EULA and in respect of licenses that were to be (but are not) in effect after the termination of this EULAwithout prejudice to the parties’ other legal rights.

15.4 For the avoidance of doubt, the licenses of the Software in this EULA shall terminate upon the termination of this EULA; and, accordingly, the User must immediately cease to use the Software upon the termination of this EULA.

15.5 Within 20 Business Days following the termination of this EULA, the User must:

  1. return to the Licensor or dispose of as the Licensor may instruct all media in its possession or control containing the Software; and
  2. irrevocably delete from all computer systems in its possession or control all copies of the Software.

16. General

16.1 No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.

16.2 If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or
unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

16.3 This EULA may not be varied except by a written document signed by or on behalf of each of the parties.

16.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this EULA.

16.5 This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.

16.6 Nothing in this EULA shall exclude or limit any liability of a party for fraud or fraudulent misrepresentation, or any other liability of a party that may not be excluded or limited under applicable law.

16.7 Subject to Clauses 13.1 and 16.6, this EULA shall constitute the entire agreement between the parties in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

16.8 This EULA shall be governed by and construed in accordance with Italian law.

16.9 The courts of Milan – Italy shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.