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EULA – End-user License Agreement
This License Agreement ("Agreement") is a legal agreement between either an individual or an entity ("Licensee") and Share A Dream Solutions LLC, a Swiss company headquartered in Céligny or any Share A Dream’s Affiliate ("Licensor" or “Share A Dream” and together the "Parties").
BY DOWNLOADING OR INSTALLING THE SOFTWARE, OR SELECTING THE “ACCEPT” OR “YES” BUTTON WHEN PROMPTED TO DO SO, LICENSEE ACKNOWLEDGES:
LICENSEE, OR IF THE SOFTWARE WILL BE USED BY AN ENTITY, ON BEHALF OF THAT ENTITY, REPRESENT AND AGREE THAT LICENSEE HAS THE LEGAL CAPACITY AND AUTHORITY TO ACCEPT THE AGREEMENT, LEGALLY REPRESENT AND BIND SUCH ENTITY, THAT LICENSEE HAS READ ALL TERMS OF THIS AGREEMENT, UNDERSTANDS THEM AND AGREES TO BE BOUND BY THEM; AND
LICENSEE UNDERSTANDS THAT, IF THE SOFTWARE LICENSE IS ACQUIRED THROUGH A RESELLER, THAT RESELLER IS NOT LICENSOR’S AGENT AND IS NOT AUTHORIZED TO MAKE ANY REPRESENTATIONS ON LICENSOR’S BEHALF OR TO VARY THE TERMS OR CONDITIONS OF THIS AGREEMENT.
The Agreement concerns the provision of Software and related Services. Licensee shall be granted the rights and subject to the obligations recorded in this Agreement for any Software licenses and Services purchased and recorded on an ordering document entered into with Licensor or a Reseller. Such ordering document will note the term, quantities, pricing and payment terms for such Software and Services.
In the event of a conflict between the terms of this Agreement and any ordering document, the terms of this Agreement will govern and control. The present Agreement shall prevail over any other agreement relating to the provision and use of the Products as defined below, unless an express reference to this Agreement is made when deviating from the terms and conditions below.
(a) “Affiliate” means any legal entity that owns, is owned by, or is commonly owned by a party, whereby “own” means having more than 50% ownership or the right to direct the management of the entity;
(b) “Claim(s)” means all third-party claims, actions, demands, proceedings, damages, costs and liabilities of any kind;
(c) “Documentation” means any user manuals and instructional guides or videos provided by Licensor with the Product, which describe the installation, functionality and operational instruction sufficient to allow Licensee to use the Software;
(d) “Direct Distribution” means the direct sale of licenses and delivery of the Product to Licensee by Share A Dream, without any intervention from a Reseller;
(e) “Fees” has the meaning set forth under Section 6;
(f) “Indirect Distribution” means the sale of licenses and delivery of the Product to the Licensee by a Reseller, as defined below;
(g) “Intellectual Property Rights” or “IP” means all intellectual property rights throughout the world, whether existing under statute, at common law or equity, registered or unregistered, now or hereafter in force or recognized, including, copyrights, trade secrets, trademarks and service marks, patents, petty patents, inventions, designs, logos and trade dress, database rights, mask works, publicity rights, and privacy rights or any right in relation to the Software; and any application or right to apply for any of these rights and all renewals, extensions and restorations;
(h) “Share A Dream Platform” means Licensor’s core component of the Products;
(i) “Share A Dream Customer Improvement Program" means the improvement program put in place by Licensor to improve features of the Product based on the data collected in accordance with section 10 below, and to which the Licensee may voluntarily opt out through a setting modification in the Share A Dream Web Console;
(j) "Personal Data" means, unless defined otherwise by any law applicable to the Licensee, all information relating to an identified or identifiable person, including, when applicable, the Licensee itself, as defined within the Swiss Federal Act of 19 June 1992 on Data Protection (FADP). Any reference to the FDAP shall always also include a reference to the Ordinance to the FADP (the OFADP) and any other provision of the substantive Swiss data protection law;
(k) “Product” means Licensor’s Platform, Documentation and Software, as well as Share A Dream Modules when applicable;
(l) “Reseller” means a third party authorized by Licensor to sell licenses and distribute the Products under the terms of this Agreement;
(m) “Revisions” means any Software fixes, updates, and upgrades, improvement and new versions of the Software that Licensor provides to Licensee;
(n) “Services” means the Support and Maintenance services for the Products as set forth in Section 8 of the support and maintenance chapter;
(o) “Software” means the software licensed to the Licensee by the Licensor, directly or through a Reseller, as may be amended and updated by the parties, including Share A Dream Platform, all Revisions, and any licensed Share A Dream Modules.
(p) “Territory” means the country in which the Software is licensed for use.
(q) “Use” means the right to utilize the Software licensed, in accordance with the terms and conditions of this Agreement.
Subject to payment of all applicable Fees to Licensor or Reseller, as agreed in the relevant ordering document, and provided Licensee complies with all terms of this Agreement, Licensor grants to Licensee a personal, non-exclusive, nonsub licensable and non-transferable license to: (i) Use the Products, including any licensed Modules, and any of its Revisions for Licensee’s own internal business purposes ; (ii) access the Products on Share A Dream’s specific web site for Licensing. Licensee may not sell or transfer reproductions of the Software or Documentation to third parties. Evaluation copies provided to Licensee may be used only for Licensee’s internal evaluation of the suitability of the Software and in no event for production use. The right to use, access and install the Products is limited to the component of the Products licensed by Licensee. Furthermore, the Products are licensed under a number of users and the exercise of the rights granted herein are limited to the quantity of licenses purchased to that effect.
Licensee may not create derivative works from, adapt, translate, reverse engineer, decompile, or disassemble the Software.
Further, Licensee is expressly prohibited from disclosure, copying, renting, sublicensing, leasing, or other distribution of the Software and Documentation in any manner, without express written permission from Licensor. Licensee may not use the Software to conduct a service bureau or similar business for the benefit of other parties. Additional rights, and in particular the right to use the Products on behalf of or for the benefit of a third party, may be expressly granted in a separate written agreement to a Licensor’s business partner acting as a Managed Service Provider.
Title to the Software and Documentation, and patents, copyrights and all other applicable property rights, shall at all times remain solely and exclusively with Licensor and Licensor’s third party licensors, and Licensee shall not take any action inconsistent with such title. Any rights not expressly granted to Licensee herein are reserved to Licensor and Licensor’s third party licensors.
Licensee agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Products or which is visible during their operation or which is on any media or on any Documentation. Licensee shall incorporate such proprietary markings in any backup copies made of the Products.
Upon receipt of a purchase order or any similar ordering document, the Products shall be provided to Licensee by electronics means and the rights granted under Section 3 shall be activated by Share A Dream.
Upon the provision of each Product, a file containing information about the Customer with its license information shall be activated. This file will be updated on a yearly basis to reflect any modification of the License dates, the licensed Share A Dream Modules, the number of assigned users and the amount of data processed or any other relevant information relating to Licensee.
Licensee shall be regularly informed of the status of its Licenses; in particular, Licensee shall receive automatic reminders with sufficient advance notice about the License expiration date in cases of Subscription Licenses as defined under Section 7 below, informing Licensee of the Subscription License termination or modification options.
The Fee shall be paid by Licensee as set forth in the ordering document in accordance with Licensor’s then-current payment policy set forth below and/or on Licensor’s electronic payment platform.
The Licensee who has been licensed the Products for a Subscription Term shall be subject to an upfront one-time Fee payment, to be paid within 30 days upon receipt of the invoice.
Licensor may apply volume or duration discounts on the payment of the Fee, based on the number of users assigned to the Products and/or the duration of the granted License.
Details of the Licensor’s discount policies are made available to Licensee and may be freely updated by Licensor at any time, in which case it shall be notified to Licensee at least thirty (30) days prior to the entering into force of the modification.
Unless provided otherwise in writing, the Fees paid by Licensee are not refundable, even after termination of this Agreement between Licensor and Licensee.
Licensee shall be responsible for and shall pay, and shall reimburse Reseller or Licensor on request if Reseller or Licensor is required to pay, any sales, use, value added (VAT), consumption or other tax (with exception of taxes on Reseller or Licensor’s net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Products.
The License is granted for a minimum of six months’ duration, for a fixed-term period (the “Subscription Term”). The Subscription Term will begin on the date that you pay to subscribe and expire at the end of the period selected in the subscription process and specified in the quote provided to you by Share A Dream, unless terminated earlier in accordance with this Agreement.
Unless either party provides notice that it does not intend to renew this Agreement at least 30 days before the end of the Contract Term, this Agreement will be automatically renewed for the same duration of the previous Subscription Term;
(a) on the terms and conditions of this Agreement then in effect;
(b) subject to the pricing structure and usage levels specified for renewal terms in this Agreement;
(c) for a term equal to one year. Except as provided in this Agreement, the License(s) cannot be canceled prior to its expiration. Fees for each Subscription Term are non-cancelable, and fees paid in advance will not be refunded.
If the Subscription Term is replaced by a different period than initially subscribed or if Licensee chooses a different License model, the pricing will be adjusted accordingly. Licensee will be alerted prior the expiry date of the Subscription Term as mentioned in Section 3 above.
The Licensee's rights under the License will terminate automatically without notice if Licensee fails to comply with any terms of this Agreement, including, but not limited to, non-payment of the Fees in accordance with Section 6 above or breach of the License granted under Section 3 above.
Upon termination of the License, Licensee shall cease all use of the Products, and destroy all copies, full or partial, of the Products.
In case of Direct Distribution, support and maintenance services (“Services”) (ex: on-boarding workshops, online support) shall be provided to Licensee by Share A Dream.
The provision of Services and the Support and Maintenance Agreement shall terminate simultaneously to this Agreement.
Such Services must be subscribed for a minimum initial period of six (6) months, subject to automatic renewal for further annual periods unless one party notifies the other of intent not to renew no less than thirty days prior to the expiration of the initial or subsequent term.
In case of Indirect Distribution, the provision of Services shall be governed exclusively by the agreement entered into between the Licensee and the Reseller and Licensor shall have no obligation to provide Services directly to such Licensees.
Licensor warrants that for a period of ninety (90) days after the delivery of the Software (“Warranty Period”), the Software will materially conform to the applicable Documentation. Licensee must make these warranty claims to Licensor within the Warranty Period.
NOTWITHSTANDING THE FOREGOING, EVALUATION OR TRIAL SOFTWARE, OPEN SOURCE, NOT-FOR-RESALE LICENSES
AND ANY OTHER PRODUCT PROVIDED TO LICENSEE FREE OF CHARGE IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND.
EXCEPT AS EXPLICITLY STATED ABOVE, LICENSOR AND ITS THIRD PARTY LICENSORS MAKE NO OTHER WARRANTY OR CONDITION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED
REPRESENTATIVE OR RESELLER SHALL CREATE A WARRANTY. LICENSEE’S EXCLUSIVE REMEDY FOR BREACH OF THIS LIMITED WARRANTY SHALL BE (i) FOR LICENSOR TO USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY DEFECTS COVERED BY THIS WARRANTY WITHIN A REASONABLE PERIOD OF TIME.
LICENSOR SHALL NOT BE LIABLE FOR ANY WARRANTY OBLIGATIONS AND DOES NOT WARRANT TO LICENSEE OR ACCEPT
ANY OTHER OBLIGATIONS IN RESPECT TO ANY THIRD PARTY SOFTWARE, PROGRAM OR HARDWARE THAT MIGHT BE SUPPLIED BY LICENSOR IN THE CONTEXT OF THIS AGREEMENT. ALL WARRANTIES, CONDITIONS OF USE AND LIABILITIES,
OF ANY KIND, EXPRESS OR IMPLICIT, IN CONTRACT OR OTHERWISE, IN RESPECT OF THIRD PARTY SOFTWARE PROGRAMS, INCLUDING AND NOT LIMITED TO CONDITIONS OF USE, QUALITIES, PERFORMANCE, SATISFACTORY QUALITY OR SUITABILITY FOR A SPECIFIC PURPOSE ARE EXPRESSLY EXCLUDED FROM THIS WARRANTY.
ADDITIONALLY, THIS LIMITED LIABILITY SHALL NOT APPLY IF (i) THE PRODUCTS ARE NOT USED IN ACCORDANCE WITH THE APPLICABLE DOCUMENTATION; (ii) PRODUCT DEFECT HAS BEEN CAUSED BY LICENSEE’S MALFUCTIONING EQUIPMENT; or (iii) LICENSEE HAS MADE MODIFICATIONS TO THE PRODUCTS NOT EXPRESSLY AUTHORIZED IN WRITING BY LICENSOR.
Licensor's total liability under this Agreement, whether arising under contract, tort, or other cause of action, shall be limited to fees paid to Licensor by Licensee within the 12 months preceding the action giving rise to the claim. Nothing in this provision shall limit or exclude Licensor’s statutory liability (i) for fraud (ii) gross negligence or (iii) any other liability which cannot be excluded by law.
IN NO EVENT SHALL LICENSOR BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR ANY OTHER INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF ACTUAL OR ANTICIPATED PROFIT (INCLUDING WITHOUT LIMITATION, LOSS OF PROFIT ON CONTRACTS), LOSS OF REVENUE, LOSS OF THE USE OF MONEY, LOSS OF ANTICIPATED SAVINGS, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, LOSS OF REPUTATION, LOSS OF OR DAMAGE TO OR CORRUPTION OF DATA, EVEN IF LICENSOR IS ADVISED OF OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES. .
Licensee is fully and solely responsible and liable for the installation and use of the Products, and for the strict compliance of such installation and use with applicable law, including but not limited to data protection and copyright laws. Licensee will indemnify and hold Licensor harmless from and against all liability, loss, cost, damage or expense, including reasonable attorney's fees, arising from Licensee’s installation or use of the Product, including any Claims
made by Licensee's customers or other third parties.
Licensee acknowledges and agrees that the Software and information provided to Licensee by Licensor which is either marked as being confidential or which, due to the nature of such information or the circumstance under which it was disclosed, ought reasonably to be treated as confidential information of Licensor, all constitute “Confidential Information” and agrees that it shall not use such information except as expressly permitted by this Agreement, nor disclose such information to others except where expressly permitted in writing by Licensor or required by law to do so.
Licensee agrees to take any and all necessary precautions to avoid disclosure and misuse of the Confidential Information.
Licensee will promptly disclose to Licensee any breach of its obligations under this section and take all necessary actions to remedy such breach.
Licensee warrants that its representatives, agents, employees, and consultants shall comply with the obligations of confidentiality set forth in this Section 11 and agrees to indemnify and hold Licensor harmless from and against any and all damage and liability caused by any violation of said confidentiality by such representatives, agents, employees, and consultants.
The obligations stipulated in this Section 11 shall survive the expiration or termination of this Agreement or any licenses acquired hereunder, regardless of the reason for termination.
The Products contain code, objects and other intellectual property developed by and licensed from third party licensors, and incorporated into the Products (“Embedded Third Party Software”). The terms and conditions associated with such software are expressly stated in the Products, and Licensor herewith passes through to Licensee any warranties provided in such terms and conditions. Nothing in this Agreement shall restrict, limit or otherwise affect any rights or obligations that Licensee may have, or conditions to which Licensee may be subject, under any applicable open source licenses to any open source code contained in the Software.
Licensee understands that, by installing and/or using the Products, including any Share A Dream Modules, certain information about the Licensee, any users of the Licensee IT environments on which Products are deployed, and such Licensee IT environments (“Collected Data”) are collected by Licensor.
Collected Data include the following: 1) items sent to deliver product features through Share A Dream 2) items sent for product updates and usage statistics including product versions and usage frequency; 3) items sent for license administration purposes including identifier codes for Licensee’s current rights to use Products; and 4) where Licensee is participating in the Share A Dream Customer Improvement Program, anonymized and non-anonymized data related to used product features and Share A Dream appliances performance. Further information on the particular Collected Data transferred by Products is contained in the Documentation, as well as information on the location of Opt Out election fields within the Products.
Collected Data is used solely for the purposes of providing the services purchased, supporting the Products and overall improvement of the Products. All Collected Data will be used, processed and stored as confidential information. Licensee and Licensor agree that wherever possible the Collected Data will be anonymous and will not constitute Personal Data. In the event that any Collected Data is Personal Data, Licensor will handle such data in compliance with the data protection laws of the jurisdiction from which such data has been collected.
Collected Data will be transferred, processed, and stored by Licensor or its Affiliates in Switzerland or the European Union.
Licensee hereby expressly represents and warrants that it will fully comply with all relevant privacy and data protection laws of its jurisdiction and will indemnify and hold Licensor harmless in the case of any third party claims arising from the breach of this warranty.
Licensor may, at its expense and no more than once every twelve (12) months, appoint its own personnel or an independent third party (or both) to verify that Licensee’s use, installation, or deployment of the Software and services comply with the terms of this Agreement. Any verification may include an onsite audit conducted at Licensee’s relevant
places of business upon 7 days’ prior notice, during regular business hours, and will not unreasonably interfere with Licensee’s business activities. If the verification shows that Licensee, its Affiliates or third-party contractors of Licensee or its Affiliates are deploying, installing or using the Software or services beyond the quantity that was legitimately
licensed; or in any way not permitted under this Agreement, so that additional fees apply, Licensee must pay the additional license fees at Licensee’s then-current, country-specific list price, within 30 days of invoice date. If use, deployment, or installations exceeds 5% of the legitimately licensed amounts, Licensee must pay Licensor’s reasonable costs of conducting the verification, in addition to paying the additional fees.
Neither this Agreement nor any of Licensee's rights, licenses or obligations hereunder may be assigned or delegated by Licensee to any third party, including without limitation in connection with a merger, acquisition, reorganization, outsourcing, change of control or under any other circumstance without the prior written consent of Licensor. Any such
purported assignment or delegation shall be void and of no effect and shall constitute an incurable breach of this Agreement resulting in the automatic termination of this Agreement and all rights and licenses granted to Licensee hereunder.
Neither Party shall be liable for any breach of this Agreement due to any circumstances outside Licensor's reasonable control including, but not limited to, acts of God, fire, acts of Government, war, military operation or riot, accidents, embargo, industrial actions, terrorist threat, hereinafter referred to as "Force Majeure". In case of Force Majeure, each party shall without delay notify and furnish the other party in writing with all relevant information thereto.
The waiver by a Party of one breach or default by another Party under this Agreement will not constitute the waiver of any subsequent breach or default. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party. If any court or competent jurisdiction determines that any provision of this Agreement is illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect.
In the event Licensee exports the Software from the country in which Licensee first received it, Licensee assumes the responsibility for compliance with all applicable import, export and re-export regulations, including but not limited to any regulations of the Office of Export Administration of the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. Agencies and the export control regulations of the European Union and the Country of Switzerland. Licensee acknowledges and agrees that the Software shall not be used, nor any of the underlying information or technology included therein, transferred in any manner to countries that
are presently under embargo by the United States, Switzerland, and/or the European Union. Licensee agrees to comply strictly with all applicable laws and assumes sole responsibility for obtaining licenses to import, export or re-export as may be required. The Software may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-744 and Council Regulation (EC) No. 1334/2000. Licensee represents and warrants to Licensor that Licensee will not use the Software or any portion thereof in violation of applicable laws or regulations, and Licensee agrees to indemnify and hold Licensor harmless from and against claims, losses, costs, or liability arising in connection with Licensee’s breach of this Section.
Licensee is responsible for all acts and omissions of its Affiliates or any person or entity that Licensee is permitted under this Agreement to allow the use of, or access to, the Software and services.
This Agreement and the License shall be governed by and interpreted according to Swiss substantive laws and the Parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the Canton de Genève, Switzerland.
Licensee acknowledges that Licensor’s rights in and to the Products are unique and that financial remedies will be insufficient to compensate Licensor for any infringement of such rights. Licensor shall be entitled to seek injunctive and other equitable relief to protect, maintain, defend, enforce, and preserve such rights, in addition to any other remedy
that may be available.
This Agreement hereby cancels and fully replaces any previous license agreement entered into between Licensor and Licensee, in particular agreements regulating the use of previous versions of the Products.
This Agreement constitutes the entire understanding between Licensor and Licensee with respect to the subject matter hereof and any change to the terms of this Agreement must be in writing and signed by both parties. Terms and conditions presented in any ordering document or purchase order that differ from, conflict with or are not included in this Agreement shall not become part of this Agreement unless specifically accepted by Licensor in writing.