DUCENTIS END USER SOFTWARE LICENSE ‐
READ THIS LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING DUCENTIS SOFTWARE OR DOCUMENTATION. THIS LICENSE IS AN AGREEMENT BETWEEN YOU AND DUCENTIS PTY LTD ABN 68 606 637 432 (OR, AS APPLICABLE, SUCH OTHER DUCENTIS CORPORATION RELATED BODY CORPORATE LICENSOR) (“DUCENTIS”) GOVERNING YOUR RIGHTS TO USE THE SOFTWARE. BY INSTALLING OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE AND AGREE TO BE BOUND BY IT.
- License Grant. Ducentis may provide “Software” to you either (1) embedded within or running on a hardware product (together with Software, “Product”) or (2) as a standalone application or as a service hosted by Ducentis, with or without API integration features with third party software services, and Software includes upgrades acquired by you from Ducentis or a Ducentis authorized reseller. Subject to these terms, and payment of all applicable License fees including any usage‐based fees, Ducentis grants you, as end user, a non‐exclusive, non‐transferable, personal License to use the Software, subject to any applicable authorized use, activation requirements, usage levels, term or subscription period, or scope, and only for its intended use as evidenced by the applicable documentation. Unless the context does not permit, Software also includes associated documentation.
The grant for Software subscriptions includes Software upgrades, feature enhancements, API plug in/s and/or technical support Services, during the subscription term and only to the extent such API plug in/s, upgrades and support is specified in Ducentis’ documentation or otherwise included in the respective Ducentis, generally‐available Software subscription offering, as of the date of the applicable purchase order. Prior to the expiration of each subscription period, Ducentis, or its authorized reseller, will send you a quote for the annual renewal fee(s). To renew the subscription Software license(s) for additional subscription periods, you issue a purchase order in advance of the then‐current expiration date of such term.
- You are granted no title or ownership rights in or to the Software. Unless specifically authorized by Ducentis in writing, you are not authorized to create any derivative works based upon the Software. Title to the Software, including any copies or derivative works based thereon, and to all copyrights, patents, trade secrets and other intellectual property rights in or to the Software, are and shall remain the property of Ducentis and/or its licensors. Ducentis’ licensors are third party beneficiaries of this License. Ducentis reserves to itself and its licensors all rights in the Software not expressly granted to you.
- The Software contains trade secrets of Ducentis. Such trade secrets include, without limitation, the design, structure and logic of individual Software programs, their interactions with other portions of the Software, internal and external interfaces, and the programming techniques employed. The Software and related technical and commercial information, and other information received in connection with the purchase and use of the Software that a reasonable person would recognize as being confidential, are all confidential information of Ducentis (“Confidential Information”).
- You shall:
- Hold the Software and Confidential Information in strict confidence for the benefit of Ducentis using your best efforts to protect the Software and Confidential Information from unauthorized disclosure or use, and treat the Software and Confidential Information with the same degree of care as you do your own similar information, but no less than reasonable care;
- Keep a current record of the location of each copy of the Software you make;
- Use the Software only in accordance with the authorized usage level;
- Preserve intact any copyright, trademark, logo, legend or other notice of ownership on any original or copies of the Software, and affix to each copy of the Software you make, in the same form and location, a reproduction of the copyright notices, trademarks, and all other proprietary legends and/or logos appearing on the original copy of the Software delivered to you; and
- Issue instructions to your authorized personnel to whom Software is disclosed, advising them of the confidential nature of the Software and provide them with a summary of the requirements of this License.
- You shall not:
- Use the Software or Confidential Information a) for any purpose other than your own internal business purposes; and b) other than as expressly permitted by this License; Allow anyone other than your authorized personnel who need to use the Software in connection with your rights or obligations under this License to have access to the Software;
- Make any copies of the Software except such limited number of copies, in machine readable form only, as may be reasonably necessary for execution in accordance with the authorized usage level or for archival purposes only;
- Make any modifications, enhancements, adaptations, derivative works, or translations to or of the Software;
- Reverse engineer, disassemble, reverse translate, decompile, or in any other manner decode the Software;
- Make full or partial copies of the associated documentation or other printed or machine‐readable matter provided with the Software unless it was supplied by Ducentis in a form intended for reproduction;
- Export or re‐export the Software from the country in which it was received from Ducentis or its authorized reseller unless authorized by Ducentis in writing; or
- Publish the results of any benchmark tests run on the Software.
- Audit: Upon Ducentis’ reasonable request you shall permit Ducentis to audit the use of the Software to ensure compliance with this License.
- Term of License. This License is effective until the applicable subscription period expires or the License is terminated. You may terminate this License by giving written notice to Ducentis. This License will terminate immediately if (i) you breach any term or condition of this License or (ii) you become insolvent, cease to carry on business in the ordinary course, have a receiver appointed, enter into liquidation or bankruptcy, or any analogous process in your home country. Termination shall be without prejudice to any other rights or remedies Ducentis may have. Upon any termination of this License you shall destroy and erase all copies of the Software in your possession or control, and forward written certification to Ducentis that all such copies of Software have been destroyed or erased. Your obligations to hold the Confidential Information in confidence, as provided in this License,shall survive the termination of this License.
- Compliance with laws. You agree to comply with all laws related to your installation and use of the Software. If Ducentis authorizes you to import or export the Software in writing, you shall obtain all necessary licenses or permits and comply with all applicable laws.
- Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, AND WHERE THE AUSTRALIAN CONSUMER LAW DOES NOT APPLY, ANY LIABILITY OF DUCENTIS SHALL BE LIMITED IN THE AGGREGATE TO THE AMOUNTS PAID BY YOU TO DUCENTIS OR ITS AUTHORIZED RESELLER FOR THE SOFTWARE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. THE LIMITATIONS OF LIABILITY DESCRIBED IN THIS SECTION ALSO APPLY TO ANY LICENSOR OF DUCENTIS. NEITHER DUCENTIS NOR ANY OF ITS LICENSORS SHALL BE LIABLE FOR ANY INJURY, LOSS OR DAMAGE, WHETHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, CONTRACTS, DATA OR PROGRAMS, AND THE COST OF RECOVERING SUCH DATA OR PROGRAMS, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
- Exclusions of Warranties. To the extent permitted by law and subject to clause 12 (Australian Consumer Law), Ducentis makes no warranties or guarantees:
- the Software and/or services will be accessible at all times, uninterrupted or error free;
- any of the Software is without bugs or viruses;
- any of the technical information is without error or inaccuracy;
- the Software is immune to unauthorised access or security breach; and
- in respect of the retention of, or continued accessibility of, any data.
- Australian Consumer Law. Where applicable, Ducentis’ goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
- to cancel your service contract with Ducentis; and
- to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods.
If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
- Ducentis may assign this License to an affiliate or to a purchaser of the intellectual property rights in the Software. You shall not assign or transfer this License or any rights hereunder, and any attempt to do so will be void. This License shall be governed by the laws of the State of Queensland without regard to conflict of laws provisions. The U.N. Convention on Contracts for the International Sale of Goods shall not apply hereto. This License constitutes the complete and exclusive agreement between the parties relating to the license for the Software and supersedes all proposals, communications, purchase orders, and prior agreements, verbal or written, between the parties. If any portion hereof is found to be void or unenforceable, the remaining provisions shall remain in full force and effect.