EULA AND SERVICES AGREEMENT
F CASE Limited(hereinafter called The “VENDOR”), is a limited company registered in England and Wales
“Affiliate” means any legal entity that controls, is controlled by or is under common control with you or VENDOR (as applicable); where “control” refers to ownership of more than fifty percent (50%) of voting securities.
“You” means the individual accessing or using the Software or the company, or other legal entity on behalf of which such individual is accessing or using the Software, as applicable.
“Documentation” means, collectively, the official product operation instructions, release notes, user manuals, Statement of Work, Implementation Plan provided by VENDOR for the Software, in electronic or written form.
“Professional Services” means any of VENDOR’s deployment, consulting, training, and education services to be performed by VENDOR or its subcontractors to the extent identified in a statement of work signed by both Parties referencing this Agreement.
“Software” means the object code form of the VENDOR proprietary software product(s) made available by VENDOR under this Agreement, including any Documentation.
“SaaS” means “Software as a Service”, the software delivery model in which Software is hosted and maintained by VENDOR.
“SaaS Offering” means VENDOR’s provision of the Software as a hosted service under this Agreement.
“Support and Maintenance Services” means those technical support and maintenance services for the Software made available by VENDOR under this Agreement.
“User” means an individual employed by or who otherwise provides services (whether as an independent contractor or otherwise) to you who is supported with or uses the Software.
“DPA” means; Data Processing Addendum . For SaaS offerings, If you are located or have a data subject in the European Union, you will be subject to VENDOR’s then-current Data Processing Addendum.
- GRANT OF LICENCE.
Software Licence. Subject to the terms of this Agreement, to the extent you purchase a license to the Software from VENDOR, VENDOR hereby grants you a non-exclusive, non-transferable licence (except as set forth within this Agreement), without rights to sublicense, to copy and use the Software in accordance with the Documentation for the number of licences for the applicable Licence Type for the Licence Model (defined below) purchased. Use of the Software shall be strictly limited to the number and License Type purchased and paid for by you. Users shall use and/or access the Software solely on behalf of and for the benefit of you or your applicable Affiliates and in accordance with the licence purchased and the terms of this Agreement. You shall be responsible for all acts and omissions committed by any Users and any actions by such Users that would be a breach of this Agreement if taken by you shall be deemed a breach of this Agreement. You may make one backup, unmodified copy of the Software solely for archival purpose.
Licence Models. Software falls into two general licence models: perpetual and subscription licences (the “Licence Models“). A “perpetual” licence is a licence to use the Software that is not time-limited when used in accordance with the terms of this Agreement. A “subscription” licence is a time-limited licence to use the Software that expires at the end of a specified term. Software licenced under a subscription licence may contain disabling code that may disable itself upon the expiration of the subscription period.
VENDOR or a VENDOR authorised reseller or distributor (“Reseller“) shall provide an invoice that sets forth the SaaS Offering or the Licence duration and model of the Software you are purchasing.
Evaluation. If the Software is for evaluation purposes and provided on a trial use basis then, notwithstanding any contrary provision in this Agreement, you are permitted to use the Software only for internal demonstration, test or evaluation purposes in a non-production environment, and for the period specified on the software licence key (if not indicated this period will be forty-five (45) days from delivery) following which the Software may automatically disable itself. You acknowledge that VENDOR is not obligated to permit further use of the Software past the expiration date. NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS AGREEMENT THE EVALUATION SOFTWARE IS PROVIDED “AS-IS” WITHOUT SUPPORT OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.
- SAAS OFFERING
If you purchase a subscription to a SaaS Offering, then VENDOR’s provision of the SaaS Offering to you is subject to the terms and conditions contained in this Agreement and the Supplemental Terms found at SaaS Subscription Agreement. On or as soon as reasonably practicable after your order for the SaaS Offering, VENDOR shall provide you the necessary credentials, passwords, security protocols and policies and network links or connexions to allow you and your Users access to the applicable SaaS Offering.
Use of the SaaS Offering shall be strictly limited to the SaaS Offering subscription purchased and paid for by you (“Usage Limits“). In the event you exceed your Usage Limits, you will incur additional fees for such excess usage. Except as otherwise agreed upon in writing, you may not decrease your use of the SaaS Offering within any contractual term unless agreed to in writing by the Parties. Users shall use and/or access the SaaS Offering solely on behalf of and for the benefit of you or your applicable Affiliates and in accordance with the subscription purchased and the terms of this Agreement.
The Software is licenced, not sold. You may not use the Software for any purpose beyond the scope of the licences granted in this Agreement, and all other rights are reserved by VENDOR or its suppliers. Without limiting the generality of the foregoing and except as expressly permitted in this Agreement, you will not (and will not permit any User or third party to): (i) authorise or permit access to or use of the Software or SaaS Offering by persons other than Users; (ii) assign, sublicence, distribute, sell, lease, rent, novate or otherwise transfer or convey the Software, SaaS Offering, or Documentation to any third party without VENDOR’s prior written consent, except as set forth in the assignment provision in this Agreement, or disclose the software licence key to the Software or SaaS Offering to any third party; (iii) pledge as security or otherwise encumber the rights granted under this Agreement; (iv) modify, adapt or create any derivative works of the Software or SaaS Offering (or any component thereof); (v) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Software or SaaS Offering except and only to the extent: (a) that Applicable Law expressly permits such actions despite this limitation; or (b) such actions are required to debug changes to any third party Open Source Software libraries linked to by the Software; (vi) use the Software as a service provider, application service provider or SaaS Offering for third parties; (vii) circumvent or attempt to circumvent any technical restrictions in the Software or SaaS Offering; or (viii) remove, alter or obscure any proprietary notices or legends from the Software, any copies thereof, or the SaaS Offering.You hereby agree that, to the extent that any applicable mandatory laws give you the right to perform any of the aforementioned activities without the consent of VENDOR to gain certain information about the Software, before you exercise any such rights, you shall first request such information from VENDOR in writing detailing the purpose for which you need the information. Only if and after VENDOR, at its sole discretion, denies your request, shall you exercise your statutory rights.
VENDOR and its licensors (if any) retain all rights, title and interest, including all patent, copyright, trade secret, trademark, moral rights and other intellectual property rights, in and to the Software and SaaS Offerings and VENDOR expressly reserves all rights not expressly granted under this Agreement.
- SUPPORT AND MAINTENANCE SERVICES
Support and Maintenance Services are included in the price of the Subscription and SaaS offerings. You may purchase Support and Maintenance Services for perpetual lincence type. Except as set forth herein, you have no rights to any updates, upgrades, enhancements or other modifications to the Software (collectively “Updates”) unless you purchase VENDOR Support and Maintenance Services. If you purchase Support and Maintenance Services for the Software, you are required to purchase and maintain such Support and Maintenance Services at the same level and for all licences of the Software. All Support and Maintenance Services are subject to VENDOR’s then-current Supplemental Terms as displayed at https://www.fcase.io/legal/support-terms and the relevant end-of-life policies as displayed at https://www.fcase.io/legal/end-of-life .
- PROFESSIONAL SERVICES
Professional Services. If you purchase any Professional Services, the provision of Professional Services will be subject to the terms of this Agreement and the Supplemental Terms found at https://www.fcase.io/legal/professional-services
Each Party shall keep confidential, and not disclose to any third party (except each Party’s respective employees or staff members or as maybe required by law or any legal or regulatory authority) any Confidential Information which may be provided in connexion with this Agreement. “Confidential Information” means any non-public information disclosed by one Party to the other Party, either directly or indirectly, whether communicated in writing, orally or by inspection of tangible objects (including, without limitation, pricing, trade secrets, product plans, products, services, customers, Software, designs, inventions, processes, drawings, engineering, hardware configuration information, marketing or financial information), which is designated as “Confidential,” “Proprietary” or some similar designation. Information communicated orally will be considered to be Confidential Information if such information is identified as Confidential Information at the time of its disclosure, or if such information by its nature should reasonably be understood by the receiving Party to be confidential. Confidential Information will include this Agreement, any and all non-public information relating to any Software and any associated training, Documentation and other related materials, regardless of whether or not such materials are marked as “Confidential,” “Proprietary” or some similar designation. Confidential Information may also include information that is disclosed to a Party by one or more third parties. Notwithstanding the foregoing, Confidential Information will not include any information that: (a) was publicly known prior to the time of disclosure by the disclosing Party; (b) becomes publicly known after disclosure by the disclosing party to the receiving Party through no action or inaction of the receiving Party; (c) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party (as shown by the receiving Party’s files and records) prior to the time of disclosure; (d) is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information (as shown by documents and other competent evidence in the receiving Party’s possession). Notwithstanding the obligations set forth above, the receiving Party may disclose the Confidential Information of the disclosing Party to the limited extent such disclosure is required by law to be disclosed by the receiving Party, provided that the receiving Party will promptly give the disclosing Party written notice of such requirement prior to any disclosure so that the disclosing Party may have sufficient time to seek a protective order or other appropriate relief.
- LIMITED WARRANTY AND DISCLAIMER
VENDOR warrants that: (a) for a period of ninety (90) days from the date of purchase, the Software will perform substantially in accordance with the Documentation, (b) for the duration of the subscription term to the SaaS Offering, the SaaS Offering will perform substantially in accordance with the Documentation, and (c) the Support and Maintenance Services will be provided in a workmanlike manner. VENDOR and its Resellers’ entire liability and your exclusive remedy under this warranty (which is subject to you deleting all copies of the Software within your possession and control and certifying in writing to VENDOR or an authorised Reseller that you have done so) will be, at the sole option of VENDOR and subject to applicable law, to repair or replace the Software, the SaaS Offering, and/or Support and Maintenance Services to perform per the warranty within a reasonable time, or to refund the fees paid for the nonconforming Software, SaaS Offering, and/or Support and Maintenance Services and terminate this Agreement. This limited warranty will not apply unless: (i) the Software has been properly installed and used at all times in accordance with the Documentation; (ii) no unauthorised modification, deletion or addition has been made to the Software, SaaS Offering, or Support and Maintenance Services and (iii) VENDOR receives written notice of the non-conformity within the warranty period. Any third party products that are provided by VENDOR and are identified as such in the applicable invoice are provided pursuant to the terms of the applicable third party agreement, and your use of any such third party product constitutes agreement to comply with the terms of the applicable third party agreement. VENDOR assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any third party products. All such third party products are provided with the third party’s warranty and without any additional warranty of any kind, whether express or implied.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR THE ABOVE LIMITED WARRANTY, THE SOFTWARE, SAAS OFFERING, AND SUPPORT AND MAINTENANCE SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND VENDOR AND ITS LICENSORS MAKE NO WARRANTIES OR CONDITIONS OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, VALUE, ACCURACY OR QUALITY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. VENDOR CANNOT GUARANTEE AND DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE OR PROVISION OF THE SAAS OFFERING WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS CAN BE CORRECTED. THE SOFTWARE AND SAAS OFFERING ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR DISTRIBUTION WITH ANY EQUIPMENT, THE FAILURE OF WHICH COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
- LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AGREE THAT NEITHER PARTY, ITS RESPECTIVE AFFILIATES OR ITS OR THEIR LICENSORS OR RESELLERS SHALL BE LIABLE FOR ANY LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM USE OF THE SOFTWARE, UPDATES, THIRD PARTY SOFTWARE, SAAS OFFERING, OR OTHERWISE ARISING IN CONNEXION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE DPA, THE SUPPORT AND MAINTENANCE SERVICES AND/OR PROFESSIONAL SERVICES, HOWSOEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LIABILITY OF EITHER PARTY, ITS RESPECTIVE AFFILIATES OR ITS OR THEIR LICENSORS OR RESELLERS EXCEED THE AMOUNT PAID FOR THE AFFECTED SOFTWARE OR SAAS OFFERING, OR APPLICABLE SUPPORT AND MAINTENANCE SERVICE OR PROFESSIONAL SERVICE. THIS LIMITATION WILL APPLY EVEN IF A PARTY, ITS AFFILIATES OR ITS OR THEIR LICENSORS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THIS ALLOCATION OF RISK. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
- TERM AND TERMINATION
The term of this Agreement will be the initial contract period agreed to by the Parties. At the end of each contract period, this Agreement will automatically renew for additional contract periods of one (1) year each or as otherwise agreed by the Parties. You may terminate this Agreement without refund at any time by removing the Software from your environment and destroying all copies, and providing written notice to VENDOR of your desire to terminate the Software, or SaaS Offering, as applicable. Either Party may terminate this Agreement at the end of any contract period (as measured from the Effective Date) on ninety (90) days’ prior notice to the other Party or in the event that the other Party breaches this Agreement and the breaching Party fails to remedy such breach (if such breach is capable of remedy) within thirty (30) days from the other Party’s written notice. Upon termination of this Agreement, all rights granted herein will terminate and you must immediately remove and destroy all copies of the Software, including all back-up copies. Any obligations to pay fees incurred prior to termination shall survive termination.
During the term of this Agreement and for two (2) years after termination of the Agreement or Support and Maintenance Services for the applicable Software, you shall maintain accurate and complete records regarding your use of the Software and/or SaaS Offering and you shall (a) permit VENDOR (or persons authorised by VENDOR) to inspect such records and your computer equipment in order to verify that your use of the Software or SaaS Offering is in compliance with this Agreement and that you have paid the applicable fees for the Software, SaaS Offering, or Support and Maintenance Services, as applicable; (b) if so requested by VENDOR, certify through a director or officer of the company, that your use of the Software or SaaS Offering is in accordance with this Agreement; and (c) permit VENDOR (or persons authorised by VENDOR) to inspect records regarding your use of SaaS Offering or the Software through the provision of Support and Maintenance Services by VENDOR using such tools and/or Software available to VENDOR from time to time. VENDOR may not conduct an audit more than once per calendar year and such audits shall take place during normal business hours and on reasonable prior notice. Without prejudice to any other rights and remedies, where such audit reveals any underpayment, you shall immediately pay such underpayment to VENDOR and where any underpayment is more than five percent (5%) of the amounts payable by you for the audited period, you shall promptly reimburse VENDOR for the reasonable costs of the audit.
This agreement will become effective on the date you accept the terms of this agreement By installing, configuring, and/or using the software or SaaS offering in any way, you represent and warrant that you have the authority to bind the entity or individual identified as the customer (“you”) to this agreement, and are unconditionally consenting to be bound by the terms of and become a party to this agreement with VENDOR.
Applicable Laws. Each Party will comply with any statutes and regulations that apply to its performance under this Agreement, including but not limited to those applicable to the privacy and security of personal information, including trans-border data transfers and data breach notification requirements as required by law.
Authorised Resellers. If you purchase Software through a Reseller, you acknowledge that the Reseller and VENDOR are independent of each other and that the Reseller does not have any authority to bind VENDOR in any way, make any modifications to this Agreement or to make any warranties or representations on VENDOR’s behalf and that VENDOR has no liability whatsoever for any actions or omissions of any Reseller.
Governing Law. The agreement will be governed by the laws of England and Wales without regard to conflict of laws principles and any dispute arising out of or in connexion with this Agreement you consent to the exclusive jurisdiction and venue in the courts within London, United Kingdom.
Severability. If any provision of this Agreement is held to be unenforceable, void or invalid under Applicable Law, such provision shall be deemed omitted and the remaining provisions will remain in full force.
Entire Agreement; English Language Agreement Controls. This Agreement, including without limitation the Supplemental Terms or DPA represent the complete and exclusive statement of the agreement between VENDOR and you with respect to the Software, SaaS Offering, Support and Maintenance Services, and Professional Services, and supersedes all prior or contemporaneous oral or written communications and arrangements concerning the subject matter contained herein. Any printed or other terms and conditions on a purchase order or similar order document conflicting with, or purporting to add to, the terms and conditions of this Agreement or its exhibits and addenda will be of no force or effect. In the event of any inconsistency between this Agreement in English language and any translation of it into another language, the English language version of the Agreement shall control. Unless the Parties have a different agreement signed by both Parties, all use of the Software, SaaS Offering, Support and Maintenance Services, and Professional Services are subject to the terms of this Agreement.
No Waiver. No failure or delay to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other rights or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right shall preclude or restrict the further exercise of that or any other right or remedy.
No Assignment. Except for a transfer of all or substantially all of a Party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise, neither Party shall assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement without the prior written consent of the other Party.
Force Majeure. Neither Party will incur any liability to the other Party for any loss or damage resulting from any delay or failure to perform any part of the Agreement if such failure or delay is caused by circumstances beyond the Parties’ reasonable control including, without limitation, flood, fire, acts of war, terrorism, earthquake and acts of God; however, inability to meet financial obligations is expressly excluded. VENDOR shall not be liable for any failure of delay in performing its obligations on account of your failure to perform your obligations under this Agreement.
Third Party Rights. A person who is not a party to the Agreement shall not have any rights under or in connexion with it.
Variation. Any variation to the Agreement shall only be binding when agreed in writing and signed by both Parties.
Counterparts. The Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement. The Agreement may be executed in person or electronically and delivered physically or electronically in Portable Document Format (“PDF”). The Parties agree that such electronic execution and delivery shall have the same force and effect as delivery of an original document with original signatures, and that each Party may use such facsimile, PDF, or e-signatures as evidence of the execution and delivery of this Agreement by all Parties to the same extent that an original signature could be used.
Survival. Sections 2, 3, 4, 8, 9, 10, 11, 12 and 13 shall survive the termination or expiration of this Agreement.
Contact Information. Please direct legal notices or other correspondence, if to www.fcase.io Attention: Legal Department.