END USER LICENSE AGREEMENT FOR BEEZY SOFTWARE
This End User License Agreement (hereafter ‘EULA’) applies to the use of Beezy Software. By accepting this EULA or using the Software, you agree to all of the terms included in this EULA.
Agreement: the agreement between Beezy and Customer with respect to the Software, including this EULA and all other appendices or exhibits.
Beezy: Beezy Inc., with corporate headquarters, at Plug and Play Tech Center, 440 N. Wolfe Rd. – Sunnyvale, CA USA 94085.
Maintenance Release: a periodic release of the Software provided by Beezy at its sole discretion, which incorporates problem resolutions and which will usually not contain functional enhancements.
Software: the Beezy software in object code as specified in the Agreement, including the technical documentation and any Maintenance Release and/or Upgrade provided pursuant to a Maintenance and Support agreement.
Upgrade: a new version of the Software released by Beezy at its sole discretion, which may contain new features or functional changes to the Software
2. Scope of license
2.1 Subject to the terms and conditions of the Agreement and in consideration of the payment of all applicable license fees, Beezy grants Customer a limited, non-exclusive and non-transferable license to install, operate and use the Software for the number of users agreed upon in the Agreement.
2.2 Customer is not entitled to (i) decodify, decompile or disassemble the Software or apply techniques of reverse engineering or any other techniques aimed to access the source code of the Software, except were the rights to do so are mandatory by law and Beezy has refused to satisfy any conditions to such rights; (ii) modify, adapt and/or create derivative works based on the Software or any part thereof; (iii) reproduce, assign, transfer, distribute, sub-licence, lease, disclose or otherwise make the Software available to third parties; (iv) make a copy of the Software , without the prior written consent of Beezy, which consent will not be withheld in case of a back-up copy, unless Beezy decides to provide such back-up copy itself. A back-up copy may only be installed after involuntary loss of possession or damage and must have the same labels and copyright designations as are present on the original version; (v) delete or alter any trademark, trade name, logo, copyright notice, notice of reservation of rights, or limitation or exclusion of liability included in any part of the Software and/or in the documentation associated with it; or (vi) to permit the use of the Software to a greater number of users than agreed upon in writing.
2.3 Beezy shall be allowed to take technical measures to protect the Software or with a view to agreed restrictions in the duration of the right to use the Software. Customer shall not be allowed to remove or evade such technical measures.
2.4 Customer is not entitled to receive Upgrades and Maintenance Releases, unless it has entered in a written Maintenance & Support Agreement with Beezy.
3. Payment and delivery terms
3.1 Payments are due thirty (30) days after receipt of invoice.
3.2 If Customer fails to make any payment when due, Beezy may charge Customer interest in an amount of 1% per month on the unpaid balance from the due date. In addition, Beezy shall be entitled at its own discretion to withhold further deliveries to Customer. If Customer continues to be in default in its obligation to pay the outstanding invoice with accrued interest, Beezy can place the matter in the hands of a lawyer or debt-collector agency. All costs incurred by Beezy in respect of such collection, both in law (judicial costs) as well as out of law (extra judicial costs) will be borne by Customer. The extra judicial costs will be fixed at 15% of the outstanding invoice, with a minimum of $ 250 (two hundred and fifty USD).
3.3 After the payment of all applicable fees, Beezy shall deliver the Software to Customer on the agreed type and format of data carriers. Unless otherwise agreed upon in writing, Customer itself shall install and set up the Software and, if necessary, adjust the equipment and user environment used in this connection and convert and migrate all data.
3.4 All delivery and other periods stated or agreed by Beezy have, to the best of its knowledge, been determined based on data known to Beezy when it entered into the Agreement. Beezy shall use commercially reasonable efforts to observe agreed delivery and other periods as much as possible. The mere fact that a stated or agreed delivery or other period has not been met shall not cause Beezy to be in default.
4. Limited warranty
Beezy warrants that all unmodified Software will substantially conform to the functional specifications expressly agreed in the Agreement for a period of 6 (six) months from the delivery of the Software. Beezy’s entire liability and Customer’s exclusive remedy under this warranty shall be for Beezy to make reasonable efforts to fix errors reported in writing within the warranty period. Errors shall mean a substantial failure to meet the functional specifications expressly agreed between the parties in writing. An error shall only exist if the Customer can prove it and if it can be reproduced. The Customer shall be obliged to notify Beezy of errors immediately. In the event of failure of such remedy after reasonable efforts, Beezy shall credit the license fees paid for the Software minus a reasonable user’s fee and terminate this Agreement (without becoming liable for any damage).
5. Intellectual property rights
5.1 All Intellectual Property Rights to the Software, documentation and any other materials developed and provided by Beezy under the Agreement (such as analyses and designs), as well as preparatory materials in that regard shall be held solely by Beezy or its licensors. Customer shall only acquire the rights of use expressly granted in the Agreement and by law. Any other or more extensive right of Customer shall be excluded.
5.2 Customer will not be entitled to use the trademarks, brand names, logos, trade names, designs or know-how, or any other distinctive sign of Beezy, without its prior written consent.
6. Confidentiality and data protection
6.1 Parties warrant that all of the information received by them which is known to be or should be known to be confidential in nature shall remain secret and shall not be disclosed, unless a legal obligation mandates disclosure of that information. Information with a confidential nature includes, but is not limited to, information with respect to the object and source code, other technical information, errors, defects, methods and procedures necessary for the use of the Software, commercial information and the content of the Agreement. Parties shall only use the information for the purpose for which it has been provided. Information shall in any event be considered confidential if it is designated by a Party as such. The duty of confidentiality shall not apply to information which is already in the public domain at the time of disclosure.
6.2 Parties will give notice of the commitments deriving from this article to all employees that have access to any confidential information from the other Party, demanding full compliance with the obligation inserted in this Section. Parties will notify the other Party of any unauthorized use of the confidential information that it has had knowledge of by any means.
6.3 In the event that parties’ process personal data, parties will process such data of a personal nature in a confidential manner, appropriately complying at all times with the applicable provisions concerning the protection of personal data.
7. Limitation of Liability
EXCEPT TO THE EXTENT PROHIBITED BY LAW, BEEZY AND ITS LICENSORS DISCLAIM ALL WARRANTIES (OTHER THAN AS EXPRESSLY STATED IN SECTION 4 HEREOF), EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT IS BEEZY OR ITS LICENSORS LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF SOFTWARE OR THE SERVICES PROVIDED BY BEEZY TO CUSTOMER. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, THE ENTIRE LIABILITY OF BEEZY, ITS LICENSORS OR ITS AFFILIATES FOR ALL CLAIMS ARISING HEREUNDER SHALL BE LIMITED TO THE ACTUAL DIRECT DAGAMES OF CUSTOMER AND SHALL NOT EXCEED, IN THE AGGREGATE, (A) THE AMOUNT OF LICENSE FEES PAID IN THE ONE YEAR PERIOD PRIOR TO THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH DAMAGES OR LOSSES OCCURRED; AND (B) USD 10,000.- (WHICHEVER IS THE LOWER).
8. Infringement indemnity
8.1 Beezy shall indemnify Customer against any and all reasonable and verifiable costs imposed on Customer by a court of competent jurisdiction, or any settlement sum approved by Beezy, in respect of any third-party action or claim alleging that the Software infringes the intellectual property rights of such third party, provided that Customer: (i) provides Beezy with prompt written notice of any such action or claim; (ii) permits Beezy to assume and control the defense and settlement of any such action or claim; (iii) will not prejudice the defines of the action or claim nor will it make any admission as to liability nor compromise or agree to any settlement of any such action or claim without the prior written consent of Beezy; and (iv) provides Beezy with such assistance, documents, authority and information as it may reasonably require in relation to the action or claim and defence or settlement thereof.
8.2 Beezy shall have no liability to Customer for any infringement claims based on (i) any unauthorized use of the Software; (ii) any modification or alteration of the Software by anyone other than Beezy; or (iii) the use of the Software in combination with any other software or equipment not approved in writing by Beezy. Furthermore, Beezy shall have no liability for any infringement claims that could have been avoided by the use of the then-current Maintenance Release or Upgrade or if Customer had followed Beezy’s reasonable written instructions.
8.3 If it has been established in court that the Software is infringing or if, in Beezy’s judgement, it is likely that such infringement will occur, Beezy shall ensure that the Customer can continue to have an undisturbed use of the Software, or functionally equivalent other software by (i) replacing or modifying the Software or (ii) obtaining for the Customer a right to continue using the Software. If, in its exclusive judgment, Beezy cannot ensure or cannot ensure except in a manner that is unreasonably burdensome (financially or otherwise) for it that the Customer can continue to have undisturbed use of the Software, Beezy shall take back the Software, with crediting of the license fees minus a reasonable user’s fee and may terminate the Agreement
8.4 This clause states Beezy’s entire liability, and the Customer’s sole remedies, for any infringement or alleged infringement of third-party intellectual property rights in relation to the Software.
Beezy may, at any time upon reasonable advance notice, conduct an audit at Customer’s premises to ascertain whether Customer’s use of the Software is in compliance with the provisions of the Agreement. Customer shall assist Beezy in the conduct of such audit and shall grant Beezy access to its premises and computer equipment. In the event that such audit reveals any use of the Software by Customer other than in full compliance with the Agreement, Customer shall reimburse Beezy for all reasonable costs and expenses related to such audit in addition to any other liabilities Customer may incur as a result of such non-compliance.
10. Term and termination
10.1 The Agreement will be valid for the initial term agreed upon in the Agreement. Following the expiration of this initial term, this Agreement shall be automatically renewed for consecutive one-year periods, unless either party notifies the other in writing at least three months prior to the expiration of the initial term or then-current renewal term of its intent not to renew the Agreement.
10.2 Notwithstanding the term agreed upon in the Agreement, Beezy shall be entitled to terminate the Agreement at any time without liability to the Customer, if the Customer: (i) commits a breach of any of the terms of the Agreement (and if such breach is remediable) fails to remedy that breach within 15 (fifteen) days of the Customer being notified in writing of the breach; (ii) applies for a moratorium of payments, is declared bankrupt or otherwise ceases to meet its (financial) obligations; or (iii) suspends or discontinues its business activities.
10.3 Upon termination of the Agreement, any license granted under the Agreement shall automatically terminate and Beezy will cancel Customer’s access to the Software and/or Customer will terminate its use of the Software and destroy the Software any documentation associated with it, as soon as possible and under no circumstances any later than one (1) week after the termination of the Agreement. On request from Beezy, Customer will confirm in writing that it has complied with its obligations under this article.
10.4 The termination of the Agreement shall not relieve Customer of its obligations to pay all fees that have accrued or otherwise are owed by Customer under the Agreement. The stipulations in Section 5 – 8 survive the termination of this Agreement and will therefore remain in full force and effect.
11.1 The Agreement constitutes the full agreement between the parties with respect to the use and license of the Software and it replaces any prior agreements concerning the subject hereof. The Agreement can only be modified by means of a written agreement signed by the Parties.
11.2 Customer is not entitled to assign or otherwise transfer any rights or obligations under the Agreement, without the prior written consent of Beezy. Beezy shall be entitled to assign or otherwise transfer its rights and obligations under the Agreement without requiring the consent of Customer.
11.3 Beezy retains the right to disclose the identity of any Customer on its website or in any sales or funding efforts or processes of Beezy, however, always with due consideration to the interests of the Customer.
11.4 The Agreement will be governed and interpreted in accordance with California legislation. Expressly waiving their own places of venue or competence, the parties agree that all disagreements, disputes, arguments or claims related to the Agreement, will be settled before the Courts and Tribunals of the city of San Francisco.