Software Licence Agreement

DEFINITIONS

  1. In this SLA:
  2. “Application form” means a form, available for downloading or filling in directly on the LICENSOR’s website;
  3. “Computer” means a desktop, notebook, netbook or similar computer owned by and in the control of the LICENSEE or End-Users;
  4. “Documentation” means any documentation concerning the Software supplied by the LICENSOR or by the Software supplier to the LICENSEE with the Software;
  5. “End-Users” means final users - employees of the LICENSEE;
  6. “Effective Date” means the date when the LICENSEE first agrees to the terms and conditions of this SLA, as detailed in the Preamble to this SLA;
  7. “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the Law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
  8. “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing of rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
  9. “LICENSEE Application(s)” means a software applications developed or used by the LICENSEE integrating the Software or data from the Software;
  10. “LICENSEE” means the licensee of the Software under this SLA;
  11. “LICENSOR” means EFIX DATA sp. z o.o., a limited company incorporated in Poland, registered in the Register of the District Court Poznań – New Town and Wilda in Poznań VIII Economic Department KRS 0000630737, NIP: 7822638962, whose registered office is at ul. Pilsudskiego 100, 61-246 Poznań, Poland;
  12. “LICENSOR’s website” means http://exeria.com.
  13. “SLA” means this software licence agreement (including the Preamble), and any amendments to it from time to time;
  14. “Software” means the software under the domain exeria.com including indicators and tools for importers and exporters) which is licensed under this SLA including following the application of any Upgrade;
  15. “Upgrade”, an upgrade, update, enhancement, improvement or patch to the Software supplied by the LICENSOR.

PREAMBLE

  1. The LICENSOR is the owner of, and has the exclusive right to grant licences and sub-licences, to the software known as Exeria.
  2. The LICENSEE is willing to obtain, and the LICENSOR is willing to grant, a non-exclusive licence under the terms and conditions hereinafter set forth for the sole purpose of using the Software under the terms and conditions of this SLA.
  3. This SLA together with the Application form, as well as any amendments hereof, constitute a legal agreement between the LICENSOR and the LICENSEE, and govern the use of the Software on any computer where it shall be installed, either by the LICENSEE, End-Users or any third parties.
  4. By filling in the Application form and clicking the acceptance button or accessing, using or installing any part of the Software, the LICENSEE expressly agrees to be bound by the terms and conditions of this SLA. The LICENSEE further agrees that its employees and/or any persons authorized by the LICENSEE to use the Software will also be bound by the terms and conditions of this SLA. If the LICENSEE does not agree to all of the terms of the SLA, the non-acceptance option must be selected, in which case the LICENSOR will promptly cancel this transaction and the LICENSEE may not access, use or install any part of the Software or the the LICENSEE must promptly delete the Software and Documentation.
  5. If the information provided by the LICENSEE in the Application form is incorrect, false, or incomplete, the agreement between the LICENSEE and the LICENSOR is considered null and void.

  1. ARTICLE 1 - LICENSING OF THE SOFTWARE

    1. LICENSE GRANT

      1. Subject to the payment by the LICENSEE of the relevant charges and fees in respect of the Software licence, and the LICENSEE’s compliance with the provisions of this SLA, the LICENSOR grants to the LICENSEE a global, non-exclusive, non-transferable licence as defined below.

        The Licence grants the right to:
        1. download and store the Software and Documentation; and
        2. to access and use the Software by End-Users only;
        Unless expressly agreed otherwise, the Licence is granted solely for the Software.
      2. The LICENSEE must not:
        1. copy or reproduce the Software or Documentation or any part of the Software or Documentation other than in accordance with the licence granted in this Article 1;
        2. sell, resell, rent, lease, loan, supply, distribute, redistribute, publish or re-publish the Software or Documentation or any part of the Software or Documentation, unless in accordance with Article 1.1.1 (b);
        3. modify, alter, adapt, translate or edit, or create derivative works of, the Software or Documentation or any part of the Software or Documentation, for the purpose of making a software product which is significantly similar to the Software;
        4. reverse engineer, decompile, disassemble the Software or Documentation or any part of the Software or Documentation;
        5. create a substantially similar product or component to the Software, e.g. wrapping the Software library in a wrapper for distribution to multiple developers / departments, either for sale, or as part of an internal framework used by other developers in the LICENSEE’s organization;
        6. circumvent or remove or attempt to circumvent or remove the technological measures applied to the Software and Documentation for the purposes of preventing unauthorised use, providing that nothing in this Article 1.1.2 will prohibit or restrict the LICENSEE or any other person from doing any act expressly permitted by applicable Law;
        7. distribute or in any way, or make available to any third parties/persons any part of the Source-Code;
        8. The License herein granted conveys no right to grant sub-licences, except to the End-User of the LICENSEE Application(s), is not to be deemed transferable for any purpose and is indivisible and non-assignable except to a business successor of the LICENSEE or with the LICENSOR’s prior written approval.
      3. All Intellectual Property Rights in the Software and Documentation are, and will remain, the property of the LICENSOR.
      4. The LICENSEE must provide to the LICENSOR, or procure for the LICENSOR, upon reasonable notice and during normal business hours, reasonable evidence of compliance with the terms of this SLA.

    2. OTHER USERS

      1. The LICENSEE may permit any employee of the LICENSEE to exercise the rights granted by the LICENSOR to the LICENSEE under Article 1.1.1, subject always to the restrictions set out in Article 1.1.2.
      2. The LICENSEE must ensure that any person using the Software and/or Documentation is made aware of, and agrees to, the terms of this SLA.

    3. UPDATES

      1. The LICENSEE may apply to the Software each Upgrade released by the LICENSOR and made available by the LICENSOR to the LICENSEE from time to time.
      2. The LICENSOR will have no obligation to provide support for the Software under Article 2 or repair or replace the Software, in relation to any version of the Software that does not incorporate the most recent Upgrade to the Software.

    4. TERM OF THE SLA.

      • This SLA will come into force on the Effective Date and will continue in force indefinitely, unless and until terminated in accordance with Article 7 “Termination”.

  2. ARTICLE 2 – SUPPORT

    1. NO SUPPORT INCLUDED

      • Support for the Software is NOT included. Any support provided, whether purchased or not, is done at the sole discretion of the LICENSOR and is covered by this EULA, including the No Warranty and Limitation of Liability sections below.

    2. OPTIONAL SUPPORT

      • In addition to the Software, the LICENSOR is also offering maintenance and support services to its licensees. These services are described, and may be purchased on the LICENSOR’s website. The terms of this SLA will apply to the aforementioned services, in addition to any specific terms and conditions set forth on the LICENSOR’s website and/or agreements made directly with third-parties regarding such services. Some of these services may be provided by third parties as specified on the LICENSOR’s website. The LICENSOR is not responsible for the services these third parties provide.

    3. SUPPORT RESTRICTIONS

      • The LICENSEE acknowledges that:
        1. the LICENSOR’s obligations, stemming from any maintenance and/or support services, whether purchased or not, are subject to such limits as the LICENSOR may determine from time to time;
        2. the LICENSOR’s sole obligation, stemming from any maintenance and/or support services, whether purchased or not, is to make reasonable endeavours to resolve issues raised by the LICENSEE;
        3. the LICENSOR does not warrant or represent that issues raised will be solved by means of the maintenance and/or support services; and
        4. the LICENSOR will not provide any on-site support under this SLA.

    4. THE LICENSOR MAY SUBCONTRACT ANY OF ITS OBLIGATIONS UNDER THIS ARTICLE 2 TO ANY THIRD PARTY.

  3. ARTICLE 3 - NO WARRANTY

    • THE SOFTWARE AND SERVICES ARE PROVIDED "AS IS." THE LICENSOR DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS, EXPRESSED OR IMPLIED, CONCERNING THE MERCHANTABILITY, TITLE, AVAILABILITY, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF THE SOFTWARE OR SERVICES. THE LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, OR THAT THE LICENSEE WILL BE ABLE TO DESIGN, DEVELOP, MANUFACTURE, MARKET OR SELL PRODUCTS INCORPORATING THE SOFTWARE. THE LICENSEE ASSUMES ALL RISK OF USE. NO WARRANTY IS GIVEN THAT THE SOFTWARE OR SERVICES WILL BE ERROR-FREE, FREE OF VIRUSES, OR THAT THEY WILL NOT ADVERSELY AFFECT YOUR COMPUTER OR OTHER PROGRAMS ON YOUR COMPUTER. THE LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE OR SERVICES WILL MEET THE LICENSEE REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED.

  4. ARTICLE 4 – LIMITATIONS AND EXCLUSIONS OF LIABILITY

    1. NOTHING IN THE SLA WILL:

        1. LIMIT OR EXCLUDE THE LIABILITY OF A PARTY FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE;
        2. LIMIT OR EXCLUDE THE LIABILITY OF A PARTY FOR FRAUD OR FRAUDULENT MISREPRESENTATION BY THAT PARTY;
        3. LIMIT ANY LIABILITY OF A PARTY IN ANY WAY THAT IS NOT PERMITTED UNDER APPLICABLE LAW; OR
        4. EXCLUDE ANY LIABILITY OF A PARTY THAT MAY NOT BE EXCLUDED UNDER APPLICABLE LAW, AND, IF YOU ARE A CONSUMER, ANY STATUTORY RIGHTS WHICH YOU HAVE, WHICH CANNOT BE EXCLUDED OR LIMITED, WILL NOT BE AFFECTED BY THE SLA.

    2. LIMITED LIABILITY

      • THE LICENSOR WILL NOT BE LIABLE TO THE LICENSEE IN RESPECT OF ANY LOSS OR CORRUPTION OF ANY DATA, DATABASE OR SOFTWARE. THE LICENSOR AND ITS SUPPLIERS SHALL UNDER NO CIRCUMSTANCES BE HELD LIABLE WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY OR ANY OTHER THEORY OF LIABILITY, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF OPPORTUNITY, BUSINESS DISRUPTION OR OTHER PECUNARY LOSS ARISING OUT OF THE USE OF OR INABILITY TO USE THIS SOFTWARE, EVEN IF THE LICENSOR HAS BEEN INFORMED BY THE LICENSEE OF THE POSSIBILITY THAT THE LICENSEE COULD SUFFER SUCH DAMAGES. IN ANY CASE, THE LICENSOR’S AGGREGATE LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT, UNDER ANY WARRANTY OR ANY OTHER THEORY OF LIABILITY OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY THE LICENSEE UNDER THIS LICENSE.

    3. INDEMNITY

      • THE LICENSEE AGREES TO INDEMNIFY AND HOLD THE LICENSOR, AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, CO-BRANDERS, ALLIANCE MEMBERS, OR OTHER PARTNERS, AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF ANY LICENSEE APPLICATION, LICENSEE’S USE OF THE LICENSOR’ SOFTWARE, INCLUDING ANY USE BY THE LICENSEE’S EMPLOYEES, THE LICENSEE’S VIOLATION OF THE PRESENT LICENSE AGREEMENT, OR THE LICENSEE’S VIOLATION OF ANY RIGHTS OF A THIRD PARTY.

  5. ARTICLE 5 – TRADEMARKS

      • The LICENSEE shall follow all reasonable instructions that the LICENSOR gives from time to time with regard to the use of trademarks, copyrights or other notice of ownership rights of the LICENSOR or its suppliers.
      • The LICENSEE agrees to include and display the "Charts by Exeria" or similar attribution (and/or any other attribution(s) required by the LICENSOR) and a link to the LICENSOR’s website in the LICENSEE Application(s), as described in the Documentation. Such attribution can be included or generated automatically, and the LICENSEE agrees not to modify or obscure this automatically generated attribution.
      • Content provided to the LICENSEE through Software may contain the trade names, trademarks, service marks, logos, domain names, and other distinctive brandings of the LICENSOR, its partners, or other third party rights holders of content provided by the LICENSOR. When the LICENSOR provides this attribution, the LICENSEE must display it as provided through Software or as described in the Documentation and may not delete or in any manner alter these trade names, trademarks, service marks, logos, domain names, and other distinctive brandings.

  6. ARTICLE 6 – COMPENSATION

      • The LICENSEE agrees to pay, on time, to the LICENSOR, service fees for any services that the LICENSEE chooses to use, based on the Table of fees and commissions available on the LICENSOR’s website.
      • The LICENSEE chooses the services it wants to use and the payment method of the service fees in the Application form on the LICENSOR’s website.
      • These service fees are subject to change. Changes in service fees will be notified to the LICENSEE by posting on the LICENSOR’s website. The LICENSEE agrees that the LICENSOR may bill the LICENSEE for the service fees as provided in the table of fees and commissions available on the LICENSOR’s website. Should the LICENSOR raise the charge for any services, the LICENSEE agrees to be billed at the new rate. Service fees are non-refundable.
      • Failure to pay any fees, set out in the Table of fees and commissions, on time, shall constitute a breach of this SLA.
      • The LICENSOR may collect statistical information about the number of times that Software has been accessed, used, performed and/or displayed, and the LICENSEE undertakes that it shall not disturb or prevent the LICENSOR from collecting such information.

  7. ARTICLE 7 – TERMINATION

      • Each Party may terminate this SLA upon 30 days written notice.
      • The LICENSOR may terminate this SLA immediately, by written notice, if:
        1. the LICENSEE or any employee of the LICENSEE or person authorised by the LICENSEE to use the Software and/or Documentation breaches any provision of this SLA;
        2. the LICENSEE: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
        3. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the LICENSEE;
        4. an order is made for the winding up of the LICENSEE, or the LICENSEE passes a resolution for its winding up.
      • Any notice required or permitted under the terms of this SLA required by law must be in writing and must be (a) delivered in person, (b) sent by registered mail, return receipt requested, or (e) by email, in each case forwarded to the appropriate address set forth at the end of this SLA. Notice will be considered to have been given at the time of actual delivery in person, ten (10) business days after posting through regular mail, or one day after the moment of transmission by email.
      • Upon termination all the provisions of this SLA will cease to have effect, save that the following provisions will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Definitions, Articles 3, 4, 6, 7, and 8.
      • Upon termination of this Agreement, all rights granted to the LICENSEE shall revert to the LICENSOR. The LICENSEE shall, thereafter, remove all reference to the LICENSOR and shall:
        1. immediately prevent all access to Software through the LICENSEE Applications and/or website, including removing any links or buttons located on any third party platform and otherwise completely bar access to Software from all users, including but not limited to End-Users;
        2. delete Software, including without limitation any portion, component, copy, archive, backup or part of Software stored on Computers;
        3. discontinue all uses of the LICENSOR Intellectual Property Rights.
      • Save as expressly provided in this SLA, the LICENSEE will not be entitled to a refund of service fees upon the termination of this SLA. This expressly applies to setup and quarterly fees due or already paid at the moment of termination.

  8. ARTICLE 8 – GENERAL

    1. NO WAIVER

      • No breach of any provision of this SLA will be waived except with the express written consent of the party not in breach.

    2. SEVERABILITY

      • If a provision of this SLA is determined by any Court to be unlawful and/or unenforceable, the other provisions of this SLA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the Parties, in which case the entirety of the relevant provisions will be deemed to be deleted).
      • The LICENSOR may freely assign this SLA and/or its rights and/or obligations under this SLA without the LICENSEE’s consent. Save as expressly provided in this SLA, the LICENSEE must not assign, transfer, charge, license or otherwise dispose of or deal in this SLA and/or any its rights and/or obligations under this SLA.

    4. NO THIRD PARTY BENEFICIARIES

      • This SLA is made for the benefit of the Parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the Parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this SLA are not subject to the consent of any third party.
      • This SLA, together with the Application form, constitute the entire agreement and understanding of the Parties in relation to the subject matter of this SLA, and supersede all previous agreements, arrangements and understandings between the parties relating to the subject matter of this SLA.

    6. FORCE MAJEURE

      • Under no circumstances shall either Party be held liable for failure to perform its obligations under this Agreement in case such a failure is due to a Force Majeure event as defined in Preamble. The Party prevented by Force Majeure shall inform the other Party of the occurrence of the Force Majeure event within fifteen (15) days by written notice. Except as defined below, the Parties shall have no right to assert Force Majeure in order to terminate this Agreement.
      • If Force Majeure continues for a period of more than three (3) months from the date of the Force Majeure Declaration and has prevented either of the Parties from performing its obligations in whole or in part during that period, then either Party shall be entitled to terminate the SLA by written notice to the other Party.
      • The Parties shall have no right to claim for any compensation of liquidated damages to the other Party for delays or non-performance of the Agreement by such Party in the case of Force Majeure, even if the Force Majeure results in the termination of the SLA.

    7. TITLES

      • The titles in the present SLA are for information purposes only. In case of contradiction in the core of an article and its title, its title shall be ignored and only its contents shall be reputed written.

    8. APPLICABLE LAW AND JURISDICTION

      • This SLA shall be interpreted and construed in accordance with the laws of Poland without regard to any conflict of law principles and the parties irrevocably submit to the exclusive jurisdiction of the courts of Poland (Poznan) and waive any right to transfer venue.

    9. THIRD PARTY COMPONENTS, USAGE & RESTRICTIONS

      • The Software may include certain third party components duly licensed by the LICENSOR. A list of included third party components and their licences can be provided upon request.

    10. EXCLUSIVITY

      • Both Parties understand and acknowledge that this SLA is a non-exclusive arrangement for both the LICENSOR and the LICENSEE and that both Parties are free to enter into similar relationships with other parties, even competitors of the other Party.
      • The LICENSOR shall have the right to review the LICENSEE’s Applications and/or website on a regular basis in regards to the number of uses of Software and the LICENSEE’s compliance with the provisions of this SLA. Any actions or omissions by the LICENSEE to prevent the LICENSOR of being able to do so, shall constitute a breach of this SLA.
      • Any and all amendments to this SLA require written form under the pain of nullity.