NOTICE TO USER: THIS TRIAL SOFTWARE LICENSE AGREEMENT ("AGREEMENT") IS ENTERED INTO BY AND BETWEEN WYGWAM™ SàRL, A LIMITED LIABILITY COMPANY LISTED ON THE TRADE REGISTER OF ROUBAIX-TOURCOING AT NUMBER B-448.248.575 ("LICENSOR"), AND THE END-USER (“YOU”).
PLEASE READ THIS AGREEMENT CAREFULLY.
BY COPYING, INSTALLING OR USING ALL OR ANY PORTION OF THE TRIAL SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL THE TRIAL SOFTWARE AND PROMPTLY RETURN THE PRODUCT UNIT TO LICENSOR OR LICENSOR’S RESELLER, AS APPLICABLE.
THE TRIAL SOFTWARE MAY CONTAIN LIMITED FUNCTIONALITY AND IS TO BE USED FOR DEMONSTRATION AND EVALUATION PURPOSES ONLY AND NOT FOR YOUR COMMERCIAL PURPOSES. YOUR USE OF TRIAL SOFTWARE IS AT YOUR OWN RISK. SEE SECTIONS 2.1 AND 2.2 FOR WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS WHICH GOVERN THE TRIAL SOFTWARE.
1.1 License Grant. You have accessed this Agreement because You have downloaded the Trial Software and/or attempted to install the Trial Software on one or more computers. Licensor hereby grants You a nonexclusive license to use the trial software, starter software, not for resale software or product sampler and any related documentation provided by Licensor or its reseller (each a “Trial Software”) on which this Agreement is contained on the terms and conditions as set forth herein.
1.2 Copies. You are NOT authorized to make additional copies of the Trial Software.
1.3 Intellectual Property Ownership. You acknowledge that Licensor owns all right, title and interest, including all Intellectual Property Rights (as defined below), in and to the Trial Software and any authorized copies thereof. Except as expressly stated herein, this Agreement does not grant You any Intellectual Property Rights in the Trial Software and all rights not expressly granted are reserved by Licensor. The structure, organization and code of the Trial Software are the valuable trade secrets and confidential information of Licensor. The Trial Software is protected by law, including but not limited to the copyright laws of the France and other countries, and by international treaty provision. For purposes of this Agreement, “Intellectual Property Rights” shall mean all present and future copyrights, trademark rights, service mark rights, trade secret rights, patent rights, moral rights, and other intellectual property and proprietary rights recognized in any jurisdiction.
1.4 Restrictions on Use. (a) No Modifications. You may not modify, adapt, alter,
translate, or create derivative works based on the Trial Software. You may not reverse
engineer, decompile, disassemble or otherwise attempt to discover the source code
of the Trial Software.
(b) No Unbundling. The Trial Software may include various applications, utilities
and components, may support multiple platforms and may be provided to You on multiple
media or in multiple copies. Nonetheless, the Trial Software is designed and provided
to You as a single product to be used as a single product on compatible computers
as permitted by this Article 1. You may not unbundle or repackage the Trial Software
for distribution, transfer or resale.
(c) No Service Bureau Use. You may not use the Trial Software in a service bureau,
rental or time-sharing arrangement.
(d) No Transfer. YOU MAY NOT RENT, LEASE, SELL, SUBLICENSE, ASSIGN
OR TRANSFER YOUR RIGHTS IN THE TRIAL SOFTWARE.
1.5 Compliance. You shall use all reasonable efforts to see that employees, agents, assigns or other persons under Your direction or control who have access to the Trial Software abide by the terms and conditions of this Agreement. You shall notify Licensor immediately in writing of any unauthorized use.
1.6 Third Party Agreements. Certain software, or portions thereof, accessed through, used in connection with or included in the Trial Software may be subject to the terms and conditions of other third party agreements (collectively, "Third Party Agreements") which contain terms that may expand (or restrict) Your and/or third parties' rights to use certain portions of the Trial Software (collectively, "Third Party Software"). The Third Party Agreements, any related documentation and other information about all such Third Party Software are available at the website http://csp.wygwam.com or its successor website(s). You acknowledge and agree that You have read, understood, and agree to the terms and conditions of each such Third Party Agreement. The Third Party Agreements may permit You and/or third parties to copy, modify, redistribute and have access to the source code of the Third Party Software portions of the Trial Software. To the extent the terms and conditions of any Third Party Agreement are inconsistent with or contradictory to the terms and conditions of this Agreement, then the terms and conditions of the Third Party Agreement shall prevail and control, only insofar as they apply to any Third Party Software included within the Trial Software.
2.1 DISCLAIMER. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THAT CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, LICENSOR AND ITS RESELLERS PROVIDE THE TRIAL SOFTWARE AND ACCESS TO ANY WEBSITES, ONLINE SERVICES AND CD SERVICES, IF ANY, “AS-IS” AND WITH ALL FAULTS AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO PERFORMANCE, SECURITY, NONINFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
2.2 DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, IN
NO EVENT WILL LICENSOR OR ITS AFFILIATES OR RESELLERS BE LIABLE TO YOU FOR ANY LOSS,
DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL
DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION,
PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY,
EVEN IF A LICENSOR OR RESELLER REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THIS DISCLAIMER OF WARRANTY
MAY NOT BE VALID IN SOME JURISDICTIONS. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT
OR OTHERWISE, LICENSOR’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND RESELLERS
UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID FOR
THE TRIAL SOFTWARE, IF ANY AND, IF NO AMOUNT WAS PAID BY YOU TO LICENSOR, LICENSOR’S
AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND RESELLERS UNDER OR IN CONNECTION
WITH THIS AGREEMENT WILL BE LIMITED TO 50,-EUR. THIS LIMITATION WILL APPLY EVEN
IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL
OR MATERIAL TERMS OF THIS AGREEMENT. Any cause of action brought by You under this
Agreement, whether in contract, tort or otherwise, shall be commenced no later than
one (1) year after such right of action accrues and may not be extended for any
reason. The prevailing party in any claim made under this Agreement shall be entitled
to its reasonable costs and attorneys' fees.
2.3 Third Party Software. You acknowledge that Licensor does not give any warranties (and expressly disclaims any and all warranties), express or implied, grant any license or right or give a covenant not to sue, or grant any other rights, including Intellectual Property Rights, with respect to any Third Party Software accessed through, used in connection with or included in the Trial Software. Notwithstanding anything to the contrary in this Agreement, this Agreement does not and shall not be interpreted or construed to include any representation or warranty that the Third Party Software, or the use thereof, whether alone or in combination with other hardware, software, apparatuses, or methods, is or will be free from infringement of any Intellectual Property Rights or other rights of third parties. Licensor disclaims any and all liability arising from the use of such Third Party Software, including claims of infringement of third party Intellectual Property Rights or other rights arising out of or relating to such Third Party Software. You assume all risk and liability arising from the use, copying and distribution of such Third Party Software.
3.1 Online Services. The Trial Software may rely upon or facilitate Your access to websites maintained by Licensor or its affiliates or third parties offering goods, information, software or services ("Online Services"). Your access to and use of any website or online services is governed by the terms, conditions, disclaimers and notices found on such site or otherwise associated with such services, for example, the Terms of Use located at http://csp.wygwam.com. Licensor may at any time, for any reason, modify or discontinue the availability of any website or Online Services.
3.2 Third Party Online Services. Licensor does not control, endorse or accept responsibility for websites or Online Services offered by third parties. Any dealings between You and any third party in connection with a website or Online Services, including delivery of and payment for goods and services and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such third party. EXCEPT AS EXPRESSLY AGREED BY LICENSOR OR ITS AFFILIATES OR A THIRD PARTY IN A SEPARATE AGREEMENT, YOUR USE OF WEBSITES AND ONLINE SERVICES IS AT YOUR OWN RISK UNDER THE WARRANTY AND LIABILITY LIMITATIONS OF SECTIONS 2.1 and 2.2.
4.1 Termination. This Agreement is effective until terminated. Termination of this Agreement constitutes termination of the licenses granted herein. This Agreement will automatically terminate if You fail to comply with any term or condition of this Agreement or if You cease to use the Trial Software with no intent to resume use. Upon termination of this Agreement for any reason, at Licensor’s sole and absolute discretion, You shall immediately return the Trial Software to Licensor together with all copies in any form or destroy the same.
5.1 Feedback. It is expressly understood, acknowledged and agreed that You may, regardless of whether or not formally requested to do so, provide to Licensor suggestions, comments and feedback regarding the Trial Software (collectively, “Feedback”). If You provides Feedback to Licensor, You grants Licensor the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: (i) to make, use, copy, modify, sell, distribute, sublicense and create derivative works of the Feedback as part of any Licensor product, technology, service, specification or other documentation including, without limitation the Software and the related explanatory written materials and files provided in connection with the Software (individually and collectively, “Licensor Products”); (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Licensor Products; and, (iii) solely with respect to Your copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties.
5.2 Notices. Any notice required or permitted to be given under this Agreement shall be validly given, made or served if in writing and delivered personally by hand, by a recognized overnight courier service (ex: FedEx) or registered first class mail, postage prepaid with return receipt requested. Each such notice or other communication shall be effective if delivered (a) personally by hand or by a recognized overnight courier service, when delivered at the address specified in this Section; or (b) by registered first class mail, on the date appearing on the return receipt therefore. In the event that a party is unable to deliver a notice or other communication due to the inaccuracy of the address provided by the other party pursuant to this Section, or the other party’s failure to notify the party of a change of its address as specified pursuant to this Section, such notice or other communication shall be deemed to be effective upon confirmation by a recognized overnight courier service of its failure to complete delivery to the other party’s address as set forth in this Section (or other address duly given to the party by the other party in accordance with this Section).
Addresses for notices (unless and until written notice is given of any other address):
If to Licensor, to: Wygwam™ SàRL
Attn: Mr Gregoire Malvoisin
1, rue de la Performance
F-59650 Villeneuve d’Ascq
France
If to You, to the address and facsimile number provided by You to Licensor or its reseller when receiving the Trial Software.
6.1 Communication of Agreement. You agree to communicate the terms and restrictions contained in this Agreement to all persons under your employment, direction or control who have access to the Software.
6.2 Governing Law and Jurisdiction. Any disagreement relating to the structure, interpretation or validity of this License Agreement or any of its clauses which the Parties have been unable to solve amicably shall be submitted to the exclusive competence of the Commercial Court of ROUBAIX-TOURCOING, notwithstanding plurality of defendant or third-party complaint, even for urgent or conservatory procedures, in summary proceedings or by petition.
6.3 Transfer/Assignment. You shall not assign or transfer this Agreement, or any part thereof, whether directly or indirectly (including, without limitation, through a transfer of your equity interests or for any other reason including bankruptcy) without the prior written consent of an officer of Licensor or a representative of Licensor authorized in writing to exercise such authority on behalf of Licensor. You and any authorized transferee must also comply with such procedures as Licensor requires and the transferee must agree to be bound by the terms and conditions of this Agreement.
6.4 Independent Contractors. The relationship of Licensor and You established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.
6.5 Language: The official language of this License Agreement is French.