OQLIS SOFTWARE CORPORATION End User License Agreement (EULA)
PLEASE READ CAREFULLY BEFORE USING THIS PRODUCT: This End-User License Agreement (“EULA”) is a legal agreement between (a) the Customer and (b) OQLIS SOFTWARE CORPORATION (Pty) Ltd (“OQLIS SOFTWARE CORPORATION”) that governs the Customer use of any Software Product, installed on or made available by OQLIS SOFTWARE CORPORATION. BY AGREEING, YOU (1) ARE DULY AUTHORISED BY YOUR EMPLOYER TO ENTER INTO THIS CONTRACT AND AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF THE CUSTOMER DOES NOT ACCEPT THE EULA TERMS, DO NOT USE THE SOFTWARE PRODUCT.
1. GRANT OF LICENSE. The Software Product includes two types of computer software (1) software that is owned by OQLIS SOFTWARE CORPORATION (the “Software Product”) and (2) other software provided by third parties and used with the Software Product (“Third Party Software”). OQLIS SOFTWARE CORPORATION grants the Customer the following nonexclusive rights provided the Customer agrees to and comply with all terms and conditions of this EULA:
a. Use. The Customer may use the Software Product on the Customers server. The Customer may not use the Software Product on additional computers and do not have the right to distribute the Software Product. The Customer agrees to only use the Software Product as expressly permitted herein.
b. Reservation of Rights. The Software Product is licensed, not sold, to the Customer by OQLIS SOFTWARE CORPORATION. OQLIS SOFTWARE CORPORATION and its suppliers own all right, title and interest in and to the Software Product and reserve all rights not expressly granted to the Customer in this EULA. The Customer agrees to refrain from any action that would diminish such rights or would call them into question.
c. Third Party Software. Notwithstanding the terms and conditions of this EULA, all or any portion of the Software Product which constitutes Third Party Software, is licensed to the Customer subject to the terms and conditions of the software license agreement accompanying such Third Party Software whether in the form of a discrete agreement, shrink wrap license or electronic license terms accepted at time of download. Use of the Third Party Software by the Customer shall be governed entirely by the terms and conditions of such license.
d. Support. Technical support for the Software Product will be included within the license fee for the term of the license. Support will be available via e-mail or telephone during regular business hours.
2. UPGRADES. To use a Software Product identified by OQLIS SOFTWARE CORPORATION as an upgrade, the Customer must first be licensed for the original Software Product identified by OQLIS SOFTWARE CORPORATION as eligible for the upgrade. After upgrading, the Customer may no longer use the original Software Product that formed the basis for the Customers upgrade eligibility and the upgraded software shall be deemed the “Software Product”.
3. ADDITIONAL SOFTWARE. This EULA applies to updates or supplements to the original Software Product provided by OQLIS SOFTWARE CORPORATION unless OQLIS SOFTWARE CORPORATION provides other terms along with the update or supplement. In case of a conflict between such terms, the other terms will prevail.
a. Third Party. The Software Product may only be transferred to another Server as part of a transfer of the computer(s) on which it is installed. Any transfer must include all component parts, media, printed materials and this EULA. Prior to the transfer, the end user receiving the transferred product must agree to all the EULA terms. Upon transfer of the Customers computer(s), the Customers license is automatically terminated and the Customer is no longer permitted to use the Software Product.
b. Restrictions. The Customer may not rent, lease or lend the Software Product or use the Software Product for commercial timesharing or bureau use. The Customer may not sublicense, assign or transfer the license or Software Product except as expressly provided in this EULA.
5. PROPRIETARY RIGHTS. All intellectual property rights in the Software Product and user documentation are owned by OQLIS SOFTWARE CORPORATION or its suppliers and are protected by law, including but not limited to copyright, trade secret, and trademark law, as well as other applicable laws and international treaty provisions. The structure, organisation and code of the Software Product are the valuable trade secrets and confidential information of OQLIS SOFTWARE CORPORATION and its suppliers. The Customer shall not remove any product identification, copyright notices or proprietary restrictions from the Software Product.
6. LIMITATION ON REVERSE ENGINEERING. Except to the extent that such restriction is not permitted under applicable law, the Customer is not permitted (and the Customer agree not to) reverse engineer, decompile, disassemble or create derivative works of or modify the Software Product. Nothing contained herein shall be construed, expressly or implicitly, as transferring any right, license or title to the Customer other than those explicitly granted under this EULA. OQLIS SOFTWARE CORPORATION reserves all rights in its intellectual property rights not expressly agreed to herein. Unauthorised copying of the Software Product or failure to comply with the restrictions in this EULA (or other breach of the license herein) will result in automatic termination of this Agreement and the Customer agree that it will constitute immediate, irreparable harm to OQLIS SOFTWARE CORPORATION for which monetary damages would be an inadequate remedy, and that injunctive relief will be an appropriate remedy for such breach.
7. TERM. Each Term shall automatically renew for subsequent periods of the same length as the initial Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Term. EULA is effective unless terminated or rejected. This EULA will also terminate immediately and without additional notice in the event the Customer breaches this EULA and/or fail to comply with any term or condition of this EULA.
8. CONSENT TO USE OF DATA. The Customer agrees that OQLIS SOFTWARE CORPORATION and its affiliates or suppliers may collect and use statistics on the Customers use of the Software Product in performing backup operations and technical information the Customer provides in relation to support services related to the Software Product. OQLIS SOFTWARE CORPORATION and its suppliers agree not to use this information in a form that personally identifies the Customer except to the extent necessary to provide such services.
9. DISCLAIMER OF WARRANTIES.
a. THE CUSTOMER AGREES THAT THE USE OF THE SOFTWARE PRODUCT IS AT THE CUSTOMERS SOLE RISK AS TO SATISFACTORY QUALITY PERFORMANCE, ACCURACY AND EFFORT. Use of the Software Product may adversely affect the operation of other software and devices. To the maximum extent permitted under applicable law, the Software Product is offered on an “AS-IS” basis and OQLIS SOFTWARE CORPORATION does NOT warrant that the functions contained in the Software Product will meet the Customers requirements or that the operation of the Software Product will be uninterrupted or error free or that such errors will be corrected. Computer software is inherently subject to bugs and potential incompatibility with other computer software and hardware. The Customer should not use the Software Product for any applications in which failure could cause any significant damage or injury to persons or tangible or intangible property.
b. EXCEPT AS MAY BE SET OUT IN A SPECIFIC WARRANTY ACCOMPANYING THE SOFTWARE PRODUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OQLIS SOFTWARE CORPORATION SOFTWARE CORPORATION AND ITS SUPPLIERS PROVIDE THE SOFTWARE PRODUCT AND THIRD PARTY SOFTWARE “AS IS” AND WITH ALL FAULTS AND WITHOUT ANY OTHER WARRANTY OF ANY KIND, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NON-INFRINGEMENT, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND OF LACK OF VIRUSES ALL WITH REGARD TO THE SOFTWARE PRODUCT AND THIRD PARTY SOFTWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OQLIS SOFTWARE CORPORATION OR AN OQLIS SOFTWARE CORPORATION AUTHORISED REPRESENTATIVE SHALL CREATE A WARRANTY. To the extent applicable law requires OQLIS SOFTWARE CORPORATION to provide warranties, the Customer agree that the scope and duration of such warranty shall be to the minimum extent permitted under such applicable law. c. IN NO EVENT DOES OQLIS SOFTWARE CORPORATION PROVIDE ANY WARRANTY OR REPRESENTATIONS WITH RESPECT TO ANY THIRD PARTY HARDWARE OR SOFTWARE WITH WHICH THE SOFTWARE PRODUCT IS DESIGNED TO BE USED, AND OQLIS SOFTWARE CORPORATION DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY FAILURES THEREOF.
10. LIMITATION OF LIABILITY. Notwithstanding any damages that the Customer might incur, the entire liability of OQLIS SOFTWARE CORPORATION and any of its suppliers under any provision of this EULA and the Customer exclusive remedy for all of the foregoing shall be limited to the amount actually paid by the Customer for the Software Product license. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OQLIS SOFTWARE CORPORATION OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, FOR LOSS OF DATA OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT, THIRD PARTY SOFTWARE AND/OR THIRD PARTY HARDWARE USED WITH THE SOFTWARE PRODUCT, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS EULA), EVEN IF OQLIS SOFTWARE CORPORATION OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11. INDEMNITY. The Customer agrees to indemnify and hold OQLIS SOFTWARE CORPORATION and its officers, directors, employees and licensors harmless from any claim or demand (including but not limited to reasonable legal fees) made by a third party due to or arising out of or related to the Customers violation of the terms and conditions of this Agreement, the Customers violation of any laws, regulations or third party rights or the Customers negligent act, omission or willful misconduct.
12. COMPLIANCE WITH LAWS. The Customer shall comply with all laws and regulations of the South Africa and other countries (“Export Laws”) to ensure that the Software Product is not (1) exported, directly or indirectly, in violation of Export Laws, or (2) used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. The Customer further agree that the Customer will not use the Software Product for any purpose prohibited under applicable law.
13. NON DISCLOSURE AGREEMENT. For the purposes of this agreement, unless inconsistent with or otherwise indicated by the context, the words and expressions, listed below shall bear the meanings ascribed to them: “Disclosing Party” means either party which discloses any of its Proprietary Confidential Information to the other party. “Parties” means, collectively, Customer and OQLIS SOFTWARE CORPORATION and “Party” means either one of them as the context dictates.
a. Proprietary Confidential Information” means a Disclosing Party’s trade, technical, software, research and development, commercial, financial and management secrets and confidential information, directly or indirectly obtained, including, but not limited to: operating know-how, processes and techniques used by the Disclosing Party in the conductor its business;
b. The Disclosing Party’s method of conducting business, management, costs and source of material;
c. Knowledge of details and particulars in regard to the Disclosing Party’s suppliers, customers and business associates;
d. The contractual, financial management and supply arrangements between the Disclosing Party and its clients and business associates;
e. Trade secrets, know-how, inventions, technical data, product or process specifications, exclusivity arrangements, designs, formulations, computer program’s and all other technical, mechanical and computer information, belonging to or in the possession of the Disclosing Party and used by its business operations;
f. The requirements and needs of clients and potential clients of the Disclosing Party(including potential clients with which the Disclosing Party has not yet contracted, but intends contracting for purposes of doing business). names and addresses of clients and potential clients of the Disclosing Party (including potential clients with which the Disclosing Party has not yet contracted, but intends contracting for purposes of doing business); and/or any other matter which relates to the business of the Disclosing Party in respect of which information is not readily available in the normal course of business and which may come to the knowledge of the Receiving Party.
g. “Receiving Party” means any Party which receives any Proprietary Confidential Information from the Disclosing Party, The Receiving Party hereby irrevocably agrees: not to divulge or disclose to any person whatsoever in any form or manner whatsoever, either directly or indirectly, any of the Disclosing Party’s Proprietary Confidential Information without the prior written consent of the Disclosing Party;
h. Not to use, exploit, permit the use of, directly or indirectly, or in any other manner whatsoever apply the Disclosing Party’s Proprietary Confidential Information disclosed to it pursuant to the provisions of this agreement for any purpose whatsoever other than for the purpose for which it was disclosed, and otherwise than in accordance with the provisions of this agreement;
i. To maintain in secrecy all the Disclosing Party’s Proprietary Confidential Information which may be acquired by or disclosed to it and shall safeguard such Proprietary Confidential information with no less than a reasonable degree of care;
j. Not directly or indirectly at any time after the coming into force and effect of this agreement and irrespective of its termination for any cause at any time subsequent to the coming into force and effect of this agreement:
k. Do not purport to do anything or assist any other person in doing anything which may or could impair, prejudice or interfere with the other party’s vested rights, title and interest in and pertaining to the proprietary confidential information; and to represent that it has any right, title or interest in and pertaining to the Disclosing Party’s Proprietary Confidential Information; and under any circumstances, to disclose to any publishing or news media (such as newspapers, magazines, radio or television) any Proprietary Confidential Information or any information of any nature whatsoever with regard to the products, services or activities of the Disclosing Party, which such Disclosing Party has not already made known to the public at large, without the prior written consent of the Disclosing Party.