END USER LICENSE AGREEMENT
This software end user license agreement (this “EULA”) is an agreement between you (the “Licensee”) and Kramer Electronics Ltd. (“Kramer”) (Licensee and Kramer each, a “Party” and collectively, the “Parties”),which sets forth the terms of the license granted by kramer to the licensee as to the software (as defined below). This EULA provides a license to use the Software and contains warranty information and liability disclaimers. Read this EULA carefully before using the Software. By downloading the software or by clicking “I agree”, “Accept” or other similar button(s), you are confirming your acceptance of this license to use the Software and agreeing to become bound by the terms of this EULA (the date of such occurrence being the “Effective Date”). If you do not agree to the terms of this EULA, do not use the Software.
The Software is owned and remains the property of Kramer or its third-party licensors, is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold, solely to the Licensee, for Permitted Use (as defined below) and only on the terms and conditions set forth below.
The term “Software”, means any software component provided to you by Kramer, any of its related entities or any of its distributors, resellers or other authorized representatives (“Partners”), and any copies of it, including any enhancements, derivative works, translations, modifications, updates, releases, versions, Third Party Components or other changes to such software programs, Documentation, sample files, extension files, or other tools and utilities which are provided under this EULA. In some cases, the Software may be composed of both a “client” component that is downloaded from a website and runs on your computers or cellphones (the “Client Component”) and a “server” component that is installed on your servers and/or that your computer or cellphone will access through the Internet or over an internal network (the “Server Component”). Any reference to installation or subscription of the Software in this EULA and any license related to such installation or subscription refer to both the Client Component and the Server Component. The term “Documentation” means any instructions or other materials (including online documentation) provided with the Software or on any website through which you may access it. The term “Third Party Components” means components of the Software, whether in the form of a runtime version or object code, provided by third party vendors to Kramer for inclusion as an embedded component of the Software object code or utilities.
1.1. Grant of License. Subject to the terms herein, Kramer grants you (the “Licensee”) a non- exclusive, non-transferable, perpetual (except in the event of termination of this EULA) license to install, use, and/or remotely access (i.e., on a SaaS basis, installed on Licensee’s premises or both) the Software solely for the Permitted Use, according to the instructions in the Documentation, and in strict compliance with this EULA.
1.2. Account. In order to use some of the Software features you may have to create or use an account (an “Account”). If you create an Account, you must provide accurate and complete information for yourself. You are solely responsible for the activity that occurs in your Account, and you must keep your Account password secure. You must notify us immediately of any unauthorized use of your Account.
1.3. Permitted Users. The Software may be accessed solely by Licensee’s employees and/or subcontractors who are explicitly authorized by Licensee to use the Software on Licensee’s behalf (each, a “Permitted User”). Licensee will ensure that the Permitted Users comply with the terms of this EULA at all times; and shall be fully responsible for any breach of this EULA by a Permitted User. Unauthorized access or use of the Software must be immediately reported to Kramer.
1.4. Permitted Use. The Licensee is permitted hereunder to use all capabilities of the Software subject to the terms and conditions contained herein and subject to any limitations as to number of installations, number of rooms or halls covered or other agreed limitations. The Software may be provided with internal or external controls that preclude use except within such agreed limitations. Notwithstanding the above, the Licensee may not:
(a) Use the Software for commercial time-sharing, rental/service bureau use or for treatment of any person other than the user;
(b) Create a derivative work of the Software;
(c) Use Third Party Components included in the Software as a separate, stand-alone product.
1.5. Modification. Only Kramer is allowed to alter, maintain, enhance or otherwise modify the Software.
1.6. Reverse Engineering. The Licensee will not cause, nor permit either through its direct efforts or through any third party, the disassembly, de-compilation, or reverse engineering of the Software. The Licensee will not attempt to create or permit others to attempt to create, by reverse compiling or disassembling or otherwise, any part of the source code of the Software from the object code or from other information made available to the Licensee. The Licensee will make no attempt to gain access to the object code or the source code of the Software.
1.7. Material Terms and Conditions.
The Licensee specifically agrees that, without affecting the materiality of any other provision of this EULA, each of the terms and conditions of this section are material and that failure of the Licensee to comply with these terms and conditions will constitute sufficient cause for Kramer to immediately terminate this EULA.
2. SUBSCRIPTION FEES
2.1. The license granted under Section 1 as well as related services (if any) are conditioned on Licensee’s payment in full of the applicable subscription fees set forth in the applicable order. Unless otherwise agreed between the Parties, following the Initial Subscription Term the subscription per each Renewal Subscription Term shall be according to Kramer’s then current price list. Unless otherwise specified in the applicable order: (i) Licensee will pay all amounts due under this EULA in U.S. Dollars currency, (ii) all amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice, and (iii) all fees and other amounts paid hereunder are non-refundable. Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law. All amounts payable under this EULA are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies, and duties.
2.2. If Licensee purchased the Software via a Partner, the subscription is subject to the full payment of the applicable fees as set forth in the Partner order between Licensee and the respective Partner. All payments shall be made directly to Partner, as agreed between Licensee and Partner. If Licensee is entitled to a refund under the terms and conditions of this EULA, then, unless Kramer specifies otherwise, Kramer will refund any applicable fees to the Partner, and the Partner alone will be responsible for refunding the appropriate amounts to Licensee.
3. DECLARATION OF DATA OWNERSHIP AND PRIVACY
3.1. Data Collection. The Licensee acknowledges and agrees that the Software may include a function which allows Kramer access to certain data resulting from the use of the Software, including information about the types and places of use, the extent to which a facility or equipment of the Licensee’s is put to use, use patterns and other data deriving from the use or performance of the Software, the Licensee’s facilities and the Licensee’s equipment (data so accessed by Kramer, “Data”).
3.2. Kramer Ownership of Data. The Data will be Kramer’s exclusive property. Kramer may use the Data for any purpose, publish it and make it available to other researchers, regulatory agencies or others. Kramer will not be obligated to make any payment of any sort to the Licensee relating to such use or publication.
3.3. As between the Parties, Licensee is, and shall continue to be, the sole and exclusive owner of all data inputted or uploaded to the Software by Licensee (“Licensee Data”).
3.5. Non-Release of Identifying Information. Kramer will not release Data to third parties that contains identifying information that could associate the Licensee with the Data or identify facilities or equipment as belonging to the Licensee, unless the Licensee agrees in writing or unless Kramer is required to do so by law or court order. Kramer may also disclose Data that contains identifying information to third parties in the following circumstances:
(a) in the event of a dispute, disagreement or any legal or quasi legal proceeding between the Licensee and Kramer;
(b) in the event that Kramer believes that disclosure may prevent harm to the Licensee or its property or to any third party and its property;
(c) In the event that all or some of the activities of Kramer are transferred to another corporation or due diligence is being conducted on Kramer in anticipation of a possible transfer, Kramer will be permitted to provide all the information in its possession to the corporation that will acquire Kramer’s activities or that is performing the due diligence, provided that the corporation accepts upon itself the provisions of privacy contained here.
The above reservation of rights by Kramer will not impose upon Kramer an obligation to report or provide information to any party, and no person will have any claim or suit against Kramer flowing from the transfer or provision of information or the non-transfer or non- provision of the aforesaid information.
4. TITLE TO SOFTWARE AND PROPRIETY RIGHTS
4.1. Ownership of the Software. The Software is not for sale and is proprietary to Kramer and title to it is and remains vested with Kramer. All applicable rights to patents, copyrights, trademarks, trade secrets, moral rights and any other intellectual property rights in and to the Software or evidenced by or embodied in, attached, connected, and/or related to the Software (and any and all improvements and derivative works thereof) and any other products, deliverables or services provided by Kramer belong to and will remain the sole property of Kramer. The Licensee acknowledges that the license granted under this EULA: (i) does not provide the Licensee with title to or ownership of the Software and (ii) that the license granted under this EULA provides the Licensee only with a right of limited use under the terms and conditions of this EULA. All rights not expressively granted to the Licensee are reserved and retained by Kramer.
4.2. Feedback. If Kramer receives any feedback (e.g., questions, comments, suggestions or the like) regarding any of the Services (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Kramer and Licensee hereby irrevocably and unconditionally transfers and assigns to Kramer all intellectual property rights it has in such Feedback and waives any and all moral rights that Licensee may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Kramer at its sole discretion, and that Kramer in no way shall be obliged to make use of any kind of the Feedback or part thereof.
4.3. Trademarks: The Licensee acquires no rights of any sort to any Kramer trademarks, tradenames, logos or other markings. In no event will the Licensee remove Kramer’s logos, trademarks, copyright or patent symbol or any other Kramer or third party proprietary markings or proprietary legends placed upon or contained within the Software or automatically included with its output.
4.4. Material Terms and Conditions. The Licensee specifically agrees that, without affecting the materiality of any other provision of this EULA, each of the terms and conditions of this section are material and that failure of the Licensee to comply with these terms and conditions will constitute sufficient cause for Kramer to immediately terminate this EULA and the license granted under this EULA.
5. THIRD PARTY SOFTWARE COMPONENTS
5.1. The Software may include certain software or software components which may have been developed, and the copyright to which may be held, by third parties (“Third Party Software Components”), including but not limited to certain open source code software and materials that are distributed together with the Software and that are subject to their respective open source licenses, and which may have been made available to the public according to certain terms and conditions (Third Party Licenses). A list of any third-party open-source software and related open source licenses will be provided by Kramer upon written request and/or maybe available in the Software dependencies.txt file and/or on Kramer’s website as may be amended from time to time, at Kramer’s sole discretion.
5.2. Therefore, this EULA will apply to Third Party Software Components only to the extent permitted by the respective Third-Party Licenses. In any event of a conflict or contradiction between this EULA and the provisions of a Third-Party License, the provisions of the respective Third-Party License will prevail over the provisions of this EULA with regard to the respective Third Party Software Component.
6. USE OF THE SOFTWARE
6.1. Use According to Documentation. The Licensee acknowledges that, the Software must be used solely as permitted under this EULA and according to the instructions in the Documentation. Any attempt to use the Software in other ways may result in poor results or side effects.
6.2. Minimum Requirements. System requirements detailing the minimum software and hardware requirements for the proper installation and use of the Software are contained in the Documentation. The Licensee warrants and represents that it has met the minimum software and hardware requirements.
During the Subscription Term Kramer shall use commercially reasonable efforts to repair the Software. This support is included in the applicable subscription fees set forth in the applicable order. The support shall be provided on a reasonable commercial efforts’ basis, via remote support only, during normal working hours, in accordance with Kramer’s than currant services and support terms and conditions. The support and maintenance services may be performed by Kramer, a Partner and/or Kramer’s certified third-party providers. Kramer’s support obligation shall not apply if the failure of the Software results from or is otherwise attributable to: (i) repair, maintenance or modification of the Software by persons other than Kramer or its authorized contractors; (ii) accident, negligence, abuse or misuse of the Software; (iii) use of the Software other than in accordance with the Software’s Documentation; (iv) Licensee’s failure to implement software updates provided by Kramer specifically to avoid such failure; (v) the combination of the Software with equipment or software not authorized or provided by Kramer.
8. NO WARRANTIES
8.1. No Uninterrupted or Error-Free Operation. Kramer does not warrant the operation of the Software will be uninterrupted or error-free. The Licensee hereby irrevocably waives any claim for damages due to the use of the Software or due to any defect or malfunction resulting from or connected to the use of the Software, including damages related to or based upon:
(a) Limited functionality or non-functionality of the Software;
(b) Non-compatibility with the Licensee’s software or hardware systems or printers/press machines;
(c) Fitness to any of the Licensee’s needs, operational requirements or particular use;
(d) Loss of data or business opportunities due to software failures or hardware or software conflicts;
(e) The Documentation provided by Kramer.
(f) Any of the representations made by the Licensee hereinabove.
8.2. Disclaimer of Warranty. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS”. KRAMER MAKES NO PROMISES OR REPRESENTATIONS AND EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE. ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AS TO NON-INFRINGEMENT OF THIRD-PARTY RIGHTS ARE EXPRESSLY EXCLUDED, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
8.3. KRAMER WILL HAVE NO LIABILITY FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT OR COMMERCIAL LOSS OR LOSS OF DATA, OR DAMAGE TO OTHER SOFTWARE OR OTHER COMPUTERS OR COMPUTER MALFUNCTION OR DOWNTIME, IRRESPECTIVE OF THEORY UPON WHICH ANY CLAIM MAY BE BASED, EVEN IF KRAMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.4. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KRAMER WILL HAVE NO LIABILITY FOR ANY DAMAGE AS A RESULT OF:
(a) Misuse or abuse of the Software;
(b) Service or modification made to the Software by anyone other than Kramer;
(c) The Software being installed, implemented and operated other than in accordance with all the instructions in the Documentation;
(d) The Licensee’s failure properly to install all updates made available with respect to the Software, and updates recommended by Kramer with respect to Third Party Components or third-party software (including operating system software) that materially affect performance of the Software;
(e) The Licensee’s failure to properly maintain all associate equipment, software and environmental conditions in accordance with applicable specifications; and
(f) The Licensee acknowledges that Kramer’s Third-Party Component licensors make no warranties to the Licensee under this EULA.
9. LIMITATION OF LIABILITY
WITHOUT DEROGATING FROM KRAMER’S INDEMNIFICATION OBLIGATION UNDER THIS SECTION 9 AND EXCEPT FOR: (i) ANY DAMAGES RESULTING FROM ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, (II) AND/OR LICENSEE’S MISAPPROPRIATION OR OTHERWISE VIOLATION OF KRAMER’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING MISUSE OF THE LICENSE BY LICENSEE):
KRAMER’S MAXIMUM LIABILITY FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS EULA, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO KRAMER BY LICENSEE IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. FOR CLARITY, THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO PAYMENTS DUE TO KRAMER UNDER THIS EULA.
THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION (LIMITATION OF LIABILITY) WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND: (A) EVEN IF KRAMER HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (B) EVEN IF ANY REMEDY IN THIS EULA FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY).
Subject to the limitation of liability set forth above, Kramer agrees to defend, at its expense, any third party actions or suits brought against Licensee alleging that the Software (but excluding any open source therein), when used as permitted under this EULA, infringes intellectual property rights of a third party (“IP Infringement Claim”); and Kramer will pay any damages awarded in a final judgment against Licensee that are attributable to any such claim, provided that (i) Licensee promptly notifies Kramer in writing of such claim; and (ii) Licensee grants Kramer the sole authority to handle the defense or settlement of any such claim and provides Kramer with all reasonable information and assistance, at Kramer’s expense. Kramer will not be bound by any settlement that Licensee enters into without Kramer’s prior written consent.
If the Software becomes, or in Kramer’s opinion is likely to become, the subject of an IP Infringement Claim, then Kramer may, at its sole discretion: (a) procure for Licensee the right to continue using the Software; (b) replace or modify the Software to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite Kramer’s reasonable efforts, then Kramer may terminate this EULA and provide a refund for any amount pre-paid by Licensee for such returned Software for the remaining unused period of the license.
Notwithstanding the foregoing, Kramer shall have no responsibility for IP Infringement Claims resulting from or based on: (i) repair, maintenance or modifications to the Software made by a party other than Kramer or its or its authorized contractors; (ii) accident, negligence, abuse or misuse of the Software (iii) Licensee’s failure to implement software updates provided by Kramer specifically to avoid infringement; or (iv) combination or use of the Software with equipment, devices or software not supplied by Kramer or not in accordance with the Documentation.;
This Section states Kramer’s entire liability, and Licensee’s exclusive remedy, for claims or alleged or actual infringement.
Each Party may have access to certain non-public information of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section, with respect to any Confidential Information of the disclosing party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, or use of, the disclosing party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this EULA (“Permitted Use”). The receiving party shall only permit access to the disclosing party’s Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the disclosing Party of such required disclosure to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
12. TERM AND TERMINATION
12.1. Term. This EULA and the license granted hereunder will commence upon acceptance by the Licensee of this EULA and will continue until terminated by either party in accordance with the provisions contained herein.
12.2. Termination by Kramer. Kramer will have the right to terminate this EULA and the license granted herein immediately upon the Licensee’s failure to comply with any of the material terms and conditions of this EULA;
12.3. Immediate Termination. Without prejudice to any other rights or remedies available hereunder or under any applicable law or treaty, the license will automatically terminate if the Licensee transfers possession of any copy, modification or module of the Software to any other party of if the Licensee makes any use of the Software other than the Permitted Use
12.4. Termination for IP Violations. The foregoing notwithstanding, in the event Kramer exercises its right to terminate this EULA pursuant to sections “License” and “Title to Software” above, Kramer will have the right to take immediate action to prevent further use of the Software and the Documentation.
13.1. Entire Agreement; Amendment and Waiver. This EULA constitutes the full and entire understanding and agreement between the parties with regard to the subject matters hereof, supersedes all prior courses of dealings, proposals and negotiations between Kramer and the Licensee and no representations, communications, negotiations or statements not expressed herein will be binding upon Kramer. Any term of this EULA may be amended, and the observance of any term hereof may be waived (either prospectively or retroactively and either generally or in a particular instance) only with the written consent of the parties to this EULA. Notwithstanding the preceding sentence, Kramer will be entitled to notify the Licensee that it desires to amend the terms of this EULA. Should Licensee not accept the terms of the amended EULA, in addition to the termination provisions above, Kramer will be entitled to terminate this EULA unilaterally and immediately.
13.2. Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to Kramer upon any breach or default under this EULA will be deemed a waiver of any other breach or default theretofore or thereafter occurring.
13.3. Severability. If any provision of this EULA is held by a court of competent jurisdiction to be unenforceable under applicable law, then such provision will be excluded from this EULA and the remainder of this EULA will be interpreted as if such provision were so excluded and will be enforceable in accordance with its terms; provided, however, that in such event this EULA will be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded provision as determined by such court of competent jurisdiction.
13.4. This EULA does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Kramer will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of Kramer including, but not limited to on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi-governmental authorities actions, acts of terrorism, earthquakes, power outages, pandemic or epidemic (or similar regional health crisis), or any other cause that is beyond the reasonable control of Kramer.
13.5. Successors and Assigns; Assignment. The terms and provisions of this EULA will be binding upon and inure to the benefit of the parties to this EULA and to their respective heirs, successors, assigns and legal representatives, except that the Licensee shall not assign, sub- license or otherwise transfer the Software or any rights, duties or obligations under this EULA to any person or entity without Kramer’s prior written consent which shall not unreasonably withheld delayed or denied. A Licensee who is a guardian of a minor user and who acquires a license for the purpose of use by such a minor user may allow such use by such minor user, in accordance with the provisions of this EULA.
13.6. Governing Law. This EULA will be construed in accordance with and governed for all purposes by the substantive laws of the State of Israel without regard to principles of conflicts of law. Any conventions regarding the international sale of goods or similar, including, without limitation, the United Nations Convention on Contracts for the International Sale of Goods, will not apply to this EULA.
13.7. Jurisdiction. The competent courts of Tel-Aviv, Israel, will have the sole and exclusive jurisdiction over any dispute between the parties hereto, and any claim by the Licensee against Kramer’s employees, ex-employees, officers, agents, or affiliates. The Licensee hereby submits irrevocably to the jurisdiction of such venue. Notwithstanding the aforesaid, and without derogating from the effect thereof, Kramer may initiate proceedings against the Licensee in any other court of competent jurisdiction.