END USER LICENSE AGREEMENT (EULA)
PLEASE READ THIS EULA CAREFULLY BEFORE ORDERING OR DOWNLOADING OR USING ANY SOFTWARE PRODUCTS OF IMBALANCE. YOUR ATTENTION IS PARTICULARLY DRAWN TO CLAUSES 11 AND 12 WHERE WE LIMIT OUR LIABILITY TO USERS OF OUR SOFTWARE PRODUCTS
IMPORTANT NOTICE TO ALL USERS: BY DOWNLOADING AND/OR USING THIS SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA DO NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE.
IMPORTANT NOTICE TO CONSUMERS WHO PURCHASE SOFTWARE PRODUCTS DIRECT FROM IMBALANCE: YOU HAVE THE RIGHT TO CANCEL YOUR CONTRACT AND OBTAIN A FULL REFUND IN ACCORDANCE WITH CLAUSE 8. HOWEVER YOU WILL LOSE THIS RIGHT ONCE YOU INSTALL THE SOFTWARE. THIS DOES NOT AFFECT YOUR CONSUMER RIGHTS IN RELATION TO DEFECTIVE PRODUCTS OR SERVICES.
This END USER LICENSE AGREEMENT ("EULA") is, in cases where you purchase our product(s) direct from Imbalance, incorporated into the agreement between Imbalance Ltd. a company registered in England and Wales with company number 10715479 and whose registered office is at 142 Bow Road, E33AH, London, ("Imbalance"), and you, as either an individual or a single company or other legal entity ("Licensee ") on the terms of which you will purchase the products and services of Imbalance (the “Agreement”).
Imbalance reserves the right to refuse to grant a License (as defined in clause 1.1) to any Licensee who has failed to pay any sum due to Imbalance in connection with the Agreement.
1. GRANT OF LICENSE
1.1 Subject to terms and the scope of the applicable licence model as set out in clause 2, the limitations of clause 3 and all the other terms of the Agreement, Imbalance grants to Licensee a limited, non-transferable (subject to clause 2.1(b) below) and non-exclusive license to download, install and use a machine readable, object code version (subject to clauses 3 and 4 below) of the compiled portions of the software program(s) purchased by Licensee and accompanying human readable source code (the "Software") and any accompanying user guide and other documentation (the "Documentation"), solely for Licensee's own internal purposes (the "License"); provided, however, that Licensee's right to download, install and use the Software and the Documentation is limited to those rights expressly set out in this EULA.
1.2 Only to the extent that is proportionate to, and reasonably necessary to support, Licensee’s licensed use of the Software in accordance with the Agreement, Licensee may (provided valid license keys or license entitlements have been obtained) install the Software on more than one computer, provided always that Licensee’s concurrent use of different installations of the Software does not exceed the number of valid Licenses that Licensee has paid for or licensed (as applicable).
2. LICENSE MODELS
2.1 For each Software product that you purchase from Imbalance, the product will be licensed (and not sold) to you on the terms of one or more of the license models set out in this clause 2.1 and as specified in Imbalance’s invoice or order confirmation (as applicable), and subject to the other terms and conditions of this EULA. Licensee shall not at any one time use more copies of the Software than the total number of valid licenses purchased by Licensee or granted to the Licensee.
(a) “Time Limited Node Locked License”
If Licensee purchases or is granted a Node Locked License, Licensee will install and use only a single copy of the Software on only one computer at a time. License lasts a limited specified period on the expiry of which the Software will automatically cease to function.
(b) “Trial License”
Licensee may be granted a “Trial License” of the Software. A Trial License lasts a limited specified period on the expiry of which the Software will automatically cease to function. Licensee will use the Software on only one computer at a time.
3. RESTRICTIONS ON USE
Please note that in order to guard against unlicensed use of the Software, a license key is required to access and enable the Software. Licensee is authorized to use compiled portions of the software in machine readable, object code form only (subject to clause 4), and Licensee shall not: (a) assign, sublicense, sell, distribute, transfer, pledge, lease, rent, lend, share or export the Software, the Documentation or Licensee's rights under this EULA; (b) alter or circumvent the license keys or other copy protection mechanisms in the Software or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software; (c) implement or use any method or mechanism designed to enable product functionality not available in the Software but available in (i) other Imbalance products; (d) (subject to clause 4) modify, adapt, translate or create derivative works based on the Software or Documentation; (e) take any action, or fail to take action, that could adversely affect the trademarks, service marks, patents, trade secrets, copyrights or other intellectual property rights of Imbalance or any third party with intellectual property rights in the Software (each, a "Third Party Licensor"). For purposes of this clause 3, the term "Software" shall include any derivatives of the Software.
Licensee is also authorized to use portions provided as human readable source code, but shall not (a) assign, sublicense, sell, distribute, transfer, pledge, lease, rent, lend, share or export the Software, the Documentation or Licensee's rights under this EULA; (b)use the human readable source code to alter or circumvent the license keys or other copy protection mechanisms in the compiled portion of the Software
4. SOURCE CODE
4.1 to the extent that the Software links to any open source software libraries (“OSS Libraries”) that are provided to Licensee with the Software, nothing in the Agreement shall affect Licensee’s rights under the licenses on which the relevant Third Party Licensor has licensed the OSS Libraries, as stated in the Documentation. To the extent that Third Party Licensors have
licensed OSS Libraries on the terms of v2.1 of the Lesser General Public License issued by the Free Software Foundation (see http://www.gnu.org/licenses/lgpl-2.1.html) (the “LGPL”), those OSS Libraries are licensed to Licensee on the terms of the LGPL and are referred to in this clause 4.2 as the LGPL Libraries. Imbalance will at any time during the
three year period starting on the date of the Agreement, at the request of Licensee and subject to Licensee paying to Imbalance a charge that does not exceed Imbalance’s costs of doing so, provide Licensee with the source code of the LGPL Libraries (the “LGPL Source”) in order that Licensee may modify the LGPL Libraries in accordance with the LGPL, together with certain object code of the Software necessary to enable Licensee to re-link any modified LGPL Library to the Software (the “Object”); and
4.2 notwithstanding any other term of the Agreement, Imbalance gives no express or implied warranty, undertaking or indemnity whatsoever in respect of the Source Code, the OSS Libraries (including the LGPL Libraries), the LGPL Source or the Object, all of which are licensed on an “as is” basis, or in respect of any modification of the Source Code, the OSS Libraries (including the LGPL Libraries) or the LGPL Source made by Licensee (“Modification”). Licensee may not use the Object for any purpose other than its use of the Software in accordance with this EULA. Notwithstanding any other term of the Agreement, Imbalance shall have no obligation to provide support, maintenance, upgrades or updates of or in respect of any of the Source Code, the OSS Libraries (including the LGPL Libraries), the LGPL Source, the Object or any Modification. Licensee shall indemnify Imbalance against all liabilities and expenses (including reasonable legal costs) incurred by Imbalance in relation to any claim asserting that any Modification infringes the intellectual property rights of any third party.
5. BACK-UP COPY
Licensee may store one copy of the Software and Documentation off-line and off-site in a secured location within the Home Country that is owned or leased by Licensee in order to provide a back-up in the event of destruction by fire, flood, acts of war, acts of nature, vandalism or other incident. In no event may Licensee use the back-up copy of the Software or Documentation to circumvent the usage or other limitations set forth in this EULA.
Licensee acknowledges that the Software (including, for the avoidance of doubt, any Source Code that is licensed to Licensee) and Documentation and all related intellectual property rights and other proprietary rights are and shall remain the sole property of Imbalance and the Third Party Licensors. Licensee shall not remove, or allow the removal of, any copyright or other proprietary rights notice included in and on the Software or Documentation or take any other action that could adversely affect the property rights of Imbalance or any Third Party Licensor. To the extent that Licensee is authorized to make copies of the Software or Documentation under this EULA, Licensee shall reproduce in and on all such copies any copyright and/or other proprietary rights notices provided in and on the materials supplied by Imbalance hereunder. Nothing in the Agreement shall be deemed to give Licensee any rights in the trademarks, service marks, patents, trade secrets, confidential information, copyrights or other intellectual property rights of Imbalance or any Third Party Licensor, and Licensee shall be strictly prohibited from using the name, trademarks or service marks of Imbalance or any Third Party Licensor in Licensee's promotion or publicity without Imbalance's prior express written approval.
7. LICENSE FEE
7.1 Licensee acknowledges that the rights granted to Licensee under this EULA are conditional on Licensee's timely payment of the license fee payable to Imbalance in connection with the Agreement or, as the case may be, payable for any contracting services which included licenses as part of the service agreement
7.2 Licensee will be charged and agrees to pay to Imbalance: (a) the License Fee as notified by Imbalance at the time of the initial purchase of the License;
7.3 In the cases of Trial Licenses for the avoidance of doubt, the fact that no License Fee may be payable shall not be construed as a waiver by Imbalance of any right or remedy available to it in relation to any breach by Licensee of this EULA or the Agreement, or of any other right or remedy arising under applicable law, all of which are expressly reserved.
8.1 Licensee may cancel a License within 14 days of the original purchase date to obtain a full refund and Licensee will no longer be able to use the Software from the cancellation date. Licensee’s right to obtain a refund will be lost once the Software has been installed.
8.2 Refunds are not payable for cancellations made after such date.
8.3 Cancellations and requests for refunds can be made by contacting Imbalance’s Sales Support team at firstname.lastname@example.org
9. TAXES AND DUTIES
Licensee agrees to pay, and indemnify Imbalance from claims for, any local, state or national tax (exclusive of taxes based on net income), duty, tariff or other impost related to or arising from the transaction contemplated by the Agreement.
10. LIMITED WARRANTY
10.1 Imbalance does not warrant that the Software or Documentation will meet Licensee's requirements or that Licensee's use of the Software will be uninterrupted or error free.
Licensee agrees to indemnify, hold harmless and defend Imbalance, the Third Party Licensors and Imbalance's and each Third Party Licensor’s respective affiliates, officers, directors, shareholders, employees, authorized resellers, agents and other representatives from all claims, defence costs (including, but not limited to, legal fees), judgments, settlements and other expenses arising from or connected with any claim that any authorised or unauthorised modification of the Software or Documentation by Licensee or any person connected with Licensee infringes the intellectual property rights or other proprietary rights of any third party.
12. LIMITATION OF LIABILITY TO BUSINESS USERS
This clause applies where Licensee is a business user. Licensee acknowledges that the Software has not been developed to meet its individual requirements, and that it is therefore Licensee’s responsibility to
ensure that the facilities and functions of the Software as described in the Documentation meet such requirements. The Software and Documentation is supplied only for Licensee’s internal use for its business, and not for any re-sale purposes or for the provision of the Software (whether directly or indirectly) to third parties. Imbalance shall not under any circumstances whatever be liable to Licensee, its affiliates, officers, directors, shareholders, employees, agents or other representatives, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement for loss of profits, sales, business, or revenue, business interruption, loss of anticipated savings, loss or corruption of data or information, loss of business opportunity, goodwill or reputation or any indirect or consequential loss or damage. In respect of any other losses, Imbalance’s maximum aggregate liability under or in connection with the Agreement whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to the greater of US$5,000 (five thousand USD) and a sum equal to the License Fee. Nothing in the Agreement shall limit or exclude Imbalance’s liability for death or personal injury resulting from our negligence, fraud or fraudulent misrepresentation or for any other liability that cannot be excluded or limited by applicable law. This EULA sets out the full extent of our obligations and liabilities in respect of the supply of the Software and Documentation. Except as expressly stated in this EULA, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Imbalance. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into, or incorporated in, the Agreement, whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
13. LIMITATION OF LIABILITY TO CONSUMERS
This clause applies where Licensee is a consumer. Licensee acknowledges that the Software has not been developed to meet Licensee’s individual requirements, and that it is therefore Licensee’s responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet such requirements. The Software and Documentation are only supplied for Licensee’s private use. Imbalance has no liability to Licensee for any loss of profit, loss of business, business interruption, or loss of business opportunity. Imbalance is only responsible for loss or damage suffered by Licensee that is a foreseeable result of Imbalance’s breach of the Agreement or its negligence but Imbalance is not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if they were an obvious consequence of a breach or if they were contemplated by Licensee and Imbalance at the time of forming the Agreement. Our maximum aggregate liability under or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the greater of US$5,000 (five thousand USD) and a sum equal to the License Fee. Nothing in the Agreement shall limit or exclude Imbalance’s liability for death or personal injury resulting from our negligence, fraud or fraudulent misrepresentation or for any other liability that cannot be excluded or limited by applicable law.
14. TERM; TERMINATION
14.1 The Agreement is effective upon Licensee's download of the Software, and the Agreement will remain in effect until termination or expiry. Licensee may terminate the Agreement on written notice to Imbalance if Imbalance is in breach of this Agreement and fails to cure the breach within 10 (ten) working days of receiving notice of such breach. If Licensee breaches the Agreement, Imbalance may terminate the License immediately by notice to Licensee.
14.2 If the Agreement expires or is terminated, the License will cease immediately and Licensee will immediately cease use of any Software and Documentation and either return to Imbalance all copies of the Software and Documentation in Licensee's possession, custody or power or, if Imbalance directs in writing, destroy all such copies. In the latter case, if requested by
Imbalance, Licensee shall provide Imbalance with a certificate confirming that such destruction has been completed.
14.3 Imbalance reserves the right to terminate and/or suspend the License as it deems reasonable in its sole discretion by notice to Licensee if it becomes aware that Licensee has failed to pay any sum due to Imbalance in connection with the Agreement or in connection
with any other Software license to use any product(s) of Imbalance, in connection with any Maintenance and Support Agreement or if the Licensee is otherwise in breach of or fails to comply with any term of the Agreement.
14.4 Imbalance may also terminate this EULA if Licensee becomes subject to bankruptcy proceedings, becomes insolvent, or makes an arrangement with Licensee’s creditors. This EULA will terminate automatically without further notice or action by Imbalance if Licensee goes into liquidation.
Licensee agrees that the Software (including, for the avoidance of doubt, any Source Code that is licensed to Licensee) and Documentation are proprietary to and the confidential information of Imbalance or, as the case may be, the Third Party Licensors, and that all such information and any related communications (collectively, "Confidential Information") are confidential and a fundamental and important trade secret of Imbalance and/or the Third Party Licensors. If Licensee is a business user, Licensee shall disclose Confidential Information only to Licensee's employees who are working on an Authorized Project and have a "need-to-know" such Confidential Information, and shall advise any recipients of Confidential Information that it is to be used only as expressly authorized in the Agreement. Licensee shall not disclose Confidential Information or otherwise make any Confidential Information available to any other of Licensee's employees or to any third parties without the express written consent of Imbalance. Licensee agrees to segregate, to the extent it can be reasonably done, the Confidential Information from the confidential information and materials of others in order to prevent commingling. Licensee shall take reasonable security measures, which measures shall be at least as great as the measures Licensee uses to keep Licensee's own confidential information secure (but in any case using no less than a reasonable degree of care), to hold the Software, Documentation and any other Confidential Information in strict confidence and safe custody. Imbalance may request, in which case Licensee agrees to comply with, certain reasonable security measures as part of the use of the Software and Documentation. This clause shall not apply to any information that is in or comes into the public domain, or was in Licensee’s lawful possession before receipt or which Licensee develops independently and without breach of this clause. Licensee acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information, and that Imbalance shall be entitled, without waiving any other rights or remedies, to such injunctive or other equitable relief as may be deemed proper by a court of competent jurisdiction.
16. U.S. GOVERNMENT LICENSE RIGHTS
All Software, including all components thereof, and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, a government end user will acquire the Software and Documentation with only those rights set forth in this Agreement. Use of either the Software or Documentation or both constitutes agreement by the government that all Software and Documentation are “commercial computer
software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein. The Software is the subject of the following notices:
* Copyright © 2017 - 2018 Imbalance Limited Ltd. All Rights Reserved.
* Unpublished-rights reserved under the Copyright Laws of the United Kingdom.
Clause 6, clause 7 and clauses 11 to 20 inclusive shall survive any termination or expiration of the Agreement.
18. IMPORT/EXPORT CONTROLS
To the extent that any Software made available under the Agreement is subject to restrictions upon export and/or re-export from the United States, Licensee agrees to comply with, and not act or fail to act in any way that would violate, applicable international, national, state, regional or local laws and regulations, including, without limitation, the U.S. Export Administration Act and the Export Administration Regulations, the regulations of the U.S. Department of Treasury Office of Foreign Assets Control, and the International Traffic in Arms regulations (collectively, “U.S. Export Laws”), and the United States Foreign Corrupt Practices Act, as those laws may be amended or otherwise modified from time to time, and neither Imbalance nor Licensee shall be required under the Agreement to act or fail to act in any way which it believes in good faith will violate any such laws or regulations. Without limiting the foregoing, Licensee agrees that it will not export or re-export, directly or indirectly, Imbalance’s Software or related products and services, or any commodity, technology, technical data, software or service that incorporates, contains or is a direct product of Imbalance’s Software, products and/or services, (i) in violation of the U.S. Export Laws; (ii) to any country for which an export license or other governmental approval is required at the time of export, without first obtaining all necessary export licenses or other approvals; (iii) to any country, or national or resident of a country, to which trade is embargoed by the United States; (iv) to any person or firm on any government agency’s list of blocked, denied or barred persons or entities, including but not limited to the U.S. Department of Commerce’s Denied Persons List and Entities List, and the U.S Treasury Department’s Specially Designated Nationals List; or (v) for use in any nuclear, chemical or biological weapons, or missile technology end-use unless authorized by the U.S. Government by regulation or specific license.
Unless Licensee is a consumer, the Agreement is the exclusive agreement between the parties concerning its subject matter and supersedes any and all prior oral or written agreements, negotiations, or other dealings between the parties concerning such subject matter. Licensee acknowledges that Licensee has not relied upon any representation or collateral warranty not recorded in the Agreement inducing it to enter into the Agreement.
The failure of either party to enforce any rights granted under the Agreement or to take action against the other party in the event of any such breach shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including, unless Licensee is a consumer, non-contractual disputes or claims) shall be governed by, and construed in accordance with English Law and the parties irrevocably submit to the
non-exclusive jurisdiction of the English Courts, subject to any right that a consumer may have to bring proceedings or to have proceedings brought against them in a different jurisdiction.
If Imbalance fails to insist that Licensee performs any obligation under the Agreement, or delays in doing so, that will not mean that Imbalance has waived its rights.
Imbalance and Licensee intend that each Third Party Licensor may enforce against Licensee under the Contracts (Rights of Third Parties) Act 1999 (the “Act") any obligation owed by Licensee to Imbalance under this EULA that is capable of application to any proprietary or other right of that Third Party Licensor in or in relation to the Software. Imbalance and Licensee reserve the right under section 2(3)(a) of the Act to rescind, terminate or vary this EULA without the consent of any Third Party Licensor.
Email Address for Notices. Licensee shall notify Imbalance of an email address for the provision of any notices and correspondence in connection with this Agreement and shall notify Imbalance via email@example.com of any change(s) to that email address. Please note, the email address you provide is important for the provision of notices to you,
20. COMPLAINTS & ONLINE DISPUTE RESOLUTION PLATFORM
We hope that you are satisfied with any Software purchase made or service received from Imbalance, but if you have a complaint, in the first instance, please contact us on firstname.lastname@example.org We will do our best to resolve the issue but if you are still not happy with our response, you may seek to resolve it using the Online Dispute Resolution Platform at www.ec.europa.eu/consumers/odr