VISUAL WEBGUI – DESIGN TIME
END USER LICENSE AGREEMENT
This Design Time - End-User License Agreement (the "Agreement") is made upon the date of Acceptance (defined below), by and between you (both the individual installing the Library (defined below) and any legal entity on whose behalf such individual is acting) (hereinafter: “You” or “Your”) on the one hand and Gizmox Ltd. on the other hand (“Gizmox”).
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING OR INSTALLING THE LIBRARY. THIS LIBRARY IS COPYRIGHTED AND LICENSED (NOT SOLD). TAKING ANY STEP TO SETUP OR INSTALL THE LIBRARY CONSTITUTES YOUR ASSENT TO AND ACCEPTANCE OF THIS AGREEMENT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF YOU SHALL BE CONSTRUED AS INFERENCE TO THE CONTRARY. THE ACCEPTANCE OF ANY ORDER FORMS PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE ALL USE OF THE LIBRARY AND RETURN ALL COPIES OF THE LIBRARY AND DOCUMENTATION TO GIZMOX.
1. Definitions. "Application" means the application developed by You based on the Library, being the combined product of the Library and the code developed by You.
"Derivative Library" means a product of Your use of the Library, that is a library in itself, and not an Application.
"Documentation" means user manuals, documents, drawings and other written and/or electronic materials pertaining to the Library provided by Gizmox to You in accordance herewith.
“Library” means the object code copy of the Gizmox’ proprietary Visual WebGui Standard addition Development Kit product licensed to You in connection with this Agreement, as described in the Order Form (defined below) together with all other related and accompanying Documentation (defined below), provided by Gizmox (or by any authorized distributor of Gizmox’s products), unless otherwise specifically indicated by Gizmox, and any update or a new release of the Library.
"Order Form" means the order form submitted by You electronically through the Website for the purchase of the License (defined below) to use the Library in such number of Seats (defined below) as set forth in the Order Form. The Order Form shall be deemed attached hereto as Exhibit A, and shall be deemed an integral part hereof. In the event of inconsistency between the terms of the Order Form and the terms of this Agreement – the terms of the Order Form shall prevail. This Agreement shall apply to all future additional and/or replacement Order Forms submitted by You. The Order Form shall be in force and effect upon receipt of an electronic confirmation from Gizmox to You ("Acceptance").
"Seat" means one (1) working station, in which the Library is installed. The number of Seats under Your License is set forth in the Order Form.
"SLA" – the Service Level Agreement attached hereto as Exhibit B and which serves as an integral part hereof. In the event of inconsistency between the terms of the SLA and the terms of this Agreement – the terms of the SLA shall prevail.
“Upgrade”- means, with respect to any element of the Library, a new version of such element that includes bug fixes and enhancements to the Library, as designated by a progressing of the version number. Upgrades, if any, will be released by Gizmox in its sole discretion.
2. License. Subject to the terms and conditions of this Agreement and payment applicable License Fee (defined below), Gizmox hereby grants You, and You hereby accept, a non-exclusive, non-sublicensable, non-transferable and fully revocable license to install and use the Library in mechanic-readable object-code form only and to use the Documentation in the manner described hereinbelow, in such number of Seats as set forth in the Order Form, during the Term and also after the Term, subject to the provisions set forth hereinbelow (the "License").
3. Use of Library. This Library and accompanying documentation is protected by intellectual property laws and international treaty provisions. Unauthorized copying of the Library in whole or in part is expressly forbidden. The Library may be installed in such number of Seats as set forth in the Order Form within Your internal network environment for the sole and exclusive purpose of using the Software in Your organizational environment. If You wish to install the Library on additional Seats, additional licenses must be purchased. The Library may be used by You for development of Applications, which You are entitled to distribute free of charge or for consideration, at Your sole discretion. The Library Licensed to You hereunder may be used during the Term; after termination or expiration of the Term, You may continue to use the last version of the Library rendered to You by Gizmox, free of charge, provided that the provisions of Sections 1 through 4, 6, 7, and 9 through 12 shall apply to Your use of the Library after termination or expiration of the Term.
4. Restrictions. Neither the Library as a stand alone (as opposed to an Application) nor any portion thereof or a Derivative Library may be used by or on behalf of, accessed by, re-sold to, returned to, or distributed to any other party (whether for consideration or not), except if you have obtained a prior written approval by Gizmox. You acknowledge that the source code of the Library, and the underlying ideas or concepts are valuable intellectual property of Gizmox and You agree not to, except as expressly authorized in writing by Gizmox and only to the extent established by applicable statutory law, attempt to (or permit other third parties to) decipher, reverse translate, decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Library by any means whatsoever. You will not develop methods to enable unauthorized parties to use the Library, or to develop any other product containing any of the concepts and ideas contained in the Library. You will not (and will not allow any third party to) remove any copyright or other proprietary notices from the Library. You will not test the Library or use the Library in connection with any benchmark tests, evaluation or any other tests of which the results are designated or likely to be published in any form or media or otherwise made available to the public, without Gizmox's prior written approval. Other than explicitly permitted hereinabove, You will not rent, lend, lease, sub-license or transfer the Library and/or Your rights to the Library. You will not use the Library in a manner that is not in compliance with the Documentation and with Gizmox's specific instructions. You will not copy nor modify, adapt or translate into any language the Documentation, without the prior written consent of Gizmox.
5. Support and Services. Gizmox renders you technical support for installation and use of the Library, subject to the provisions of the SLA and as set forth therein. You may also subscribe for additional service packages offered by Gizmox, as set forth in the SLA, and service under such packages shall be made subject to payment of the applicable Service Fees. During the Term, you shall be entitled to receive free of charge Upgrades if and as released by Gizmox with respect to the Library for which You have subscribed for a License.
6. Title and Intellectual Property. You acknowledge and agree that the Library and the Documentation, including any revisions, corrections, modifications, enhancements, Upgrades and/or derivative works thereto as made by Gizmox (regardless of whether such derivative works were made pursuant to Your request and/or, and irrespective of any support and/or assistance Gizmox may receive, will receive or had received from You, or any third party on Your behalf, with respect thereto), are Gizmox's property protected under any applicable laws and treaties. You further acknowledge and agree that all rights, title and interests in and to the Library, including associated intellectual property rights (including but not limited to, copyrights, trade secrets, trademarks, etc.), evidenced by or embodied in and/or attached/connected/related to the Library are and shall remain with Gizmox. This Agreement does not convey to You an interest in or to the Library, but only a limited right of use, revocable in accordance with the terms and conditions of this Agreement. Nothing in this Agreement constitutes a waiver of Gizmox's intellectual Property rights under applicable Law.
7. Term and Termination. This Agreement shall commence as of the Acceptance date by Gizmox (the "Effective Date"), and shall be in full force and effect for the twelve (12) months period thereafter, and shall automatically renew for additional twelve (12) months periods, up to a period of three (3) year thereafter, unless terminated as set forth hereunder (the “Term”). Notwithstanding the foregoing, You may terminate the Agreement at the end of each twelve (12) months period after the Effective Date, by written notice to Gizmox furnished not later than thirty (30) days prior to the end of each twelve (12) months period. Provisions of this Agreement that are intended to survive after termination or expiration of this Agreement, as set forth herein, shall so survive. In the event of any violation, breach or default by You of any of the provisions of this Agreement (including the provisions of the Order Form and/or the SLA), which has not been remedied within ten (10) days after written notice by Gizmox to that effect ("Cause"), rights to use the Library and Documentation shall automatically expire and terminate. In addition, in the event of any violation, breach or default by You of any of the provisions of this Agreement applicable to You after the term, as set forth in Section 3 above, which has not been remedied within ten (10) days after written notice by Gizmox to that effect ("Cause After Termination"), rights to use the Library and Documentation shall automatically expire and terminate. In any of such events of termination for Cause or Cause After Termination, You shall indemnify Gizmox for any loss expenses and/or damages incurred by Gizmox pursuant to such breach or violation, in addition to any other rights and remedies available to Gizmox under applicable law. This Agreement shall automatically expire upon Your insolvency, bankruptcy or liquidation or filing of any application therefore, or upon assignment or transfer of all or substantially all of Your assets, stock and/or business to a trustee for the benefit of creditors.
Upon termination of this Agreement for Cause or for Cause After Termination: (a) You must cease all use of the Library and return all copies of the Library and the Documentation within Your possession to Gizmox, and certify in writing to Gizmox that all copies and partial copies of the Library and Documentation have been either returned to Gizmox or otherwise erased or destroyed and deleted from any computer libraries or storage devices and are no longer in use by You; and (b) Fees paid to Gizmox prior to effective date of termination shall not be refundable, and all Fees due and payable for the remainder of the Term shall be automatically and immediately due for payment in one installment upon the effective date of termination. Notwithstanding anything to the contrary in this Agreement, no warranty shall be provided by Gizmox after effective date of termination of this Agreement (for whatever reason). If Gizmox makes a request via public announcement or press release to stop using the copies of the Library, you will comply immediately with this request. The provisions of Section 8 will survive any termination of this Agreement, if not all payments due to Gizmox have been made in full.
8. Fees; Payment Terms. You will pay to Gizmox a non-refundable annual license fee (the "License Fee") and the fees for Services packages if you have subscribed for such packages (the "Service Fee"), the amounts set forth in the Website, upon subscription. Notwithstanding anything to the contrary herein, in the event that during the period beginning 14 days prior to the end of each 12 months period after the Effective Date, and until the lapse of such 12 months period, Gizmox shall receive from You an original copy of a statement (the "Statement") in the form attached hereto as Exhibit D, executed by Your authorized representative, then no License Fee shall be due from You for the License of the Library during the following 12 months period. For clarification purposes, the Service Fees, if and as applicable, shall be due for such following 12 months period of the License. For subscription for quantities of Licenses or for OEM arrangements, please contact sales team at Gizmox; for these subscriptions, a separate Order Form will be executed (via facsimile) by You and by Gizmox, and the provisions of such Order Form shall prevail the provisions of this Agreement.
All payments shall be made and payable in US Dollars. Failure to collect the License Fee and/or the Service Fee (if applicable) in accordance with this Agreement from You by Gizmox, for a period exceeding 14 days, will be subject to a late charge penalty of 1.5% per month (18% per year), but in such event, Gizmox shall be entitled to terminate this Agreement, without derogating from any other remedy it may have for such breach under applicable law. The License Fees and the Service Fees (if applicable) do not include taxes due such as use taxes, Value Added Taxes, employee-related taxes, intangible taxes and property taxes, all as applicable, resulting from the acceptance of this License or from the possession and use of the Library.
9. Limitation on Warranty. Gizmox warrants for Your benefit only, from the date of download of the Library by You as indicated in Gizmox' records and throughout the Term of this Agreement (the "Warranty Period"), the Library, if installed and operated as specifically directed by Gizmox shall operate substantially in accordance with the functional specifications in the Documentation and as specifically provided by Gizmox (the "Warranty"). Gizmox does not warrant however that Your use of the Library will be uninterrupted or that the operation of the Library will be error free or secure. Gizmox’s sole liability and Your sole and exclusive remedy for any breach of this warranty by Gizmox shall be, in Gizmox's sole discretion, either: (i) refund the License Fee paid by You for the Library for the last 12 months period for which License Fees were applicable; or (ii) repair or replace of the defective Library that does not meet this limited warranty. Any replaced or repaired Library will be warranted for the reminder of the original Warranty Period or for two (2) months, whichever is longer. The foregoing warranty applies only to failures in operation of the Library that are reproducible in standalone form and does not apply (i) if the defect is caused by faulty maintenance, installation or set-up, by alterations undertaken without Gizmox’s consent or by faulty repairs; (ii) if the defect is caused by use of a superseded Upgrade of that Library that Gizmox makes generally available to its customers, if the infringement would have been avoided by the use of the Upgrade; (iii) if the defect is caused by the combination, operation or use of the Library with software, hardware or other materials not licensed hereunder and not conforming to Gizmox’s specifications set forth in the Documentation; or (iv) if the Library is otherwise operated in violation of this Agreement or other than in accordance with the Documentation. Anything to the contrary notwithstanding, the Warranty stated in this Agreement shall not apply to third party software contained in the Library. However, any warranty relating to the third party software, made and/or rendered by the supplier of such software shall apply hereto and shall be deemed made solely on behalf of such software component manufacturer, and in lieu of any warranty made or given by Gizmox. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, THE LIBRARY AND THE DOCUMENTATION ARE LICENSED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, AND GIZMOX DISCLAIMS ANY AND ALL WARRANTIES, WETHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; NO LICENSOR, DEALER, DISTRIBUTOR, RESELLER, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY.
10. Limitation of Liability. YOU HEREBY AGREE THAT IN NO EVENT SHALL GIZMOX OR ITS AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION OR DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE LIBRARY, EVEN IF GIZMOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FAILURE OF ANY ESSENTIAL PURPOSE. THIS LIMITATION IS AN ESSENTIAL PART OF THE AGREEMENT BETWEEN YOU AND GIZMOX. IN NO EVENT WILL GIZMOX BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT GIZMOX RECEIVED FROM YOU FOR THE LICENSE OF THE LIBRARY GIVING RISE TO THE LIABLITY. YOU ACKNOWLEDGE THAT THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK, AND THAT GIZMOX WOULD NOT PROVIDE THE LIBRARY EXCEPT UNDER THE TERMS OF THIS LICENSE AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
11. Export Control. You shall comply with all applicable government trade and export control laws and regulations with respect to the Library. You agree that the Library will not be transferred or exported into any country or used in any manner prohibited by any applicable laws in any jurisdiction.
12. Miscellaneous. (a) It is hereby acknowledged that the terms of the GNU General Public License and/or the GNU Lesser Public License shall not apply to the License granted hereunder. (b) Without derogating from the provisions of Section 3 above, You shall not assign, sub-license, subcontract, charge or otherwise encumber any of Your rights or obligations hereunder without the prior written consent of Gizmox. Gizmox may assign this Agreement upon a thirty (30) day prior written notice to You. (c) If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of the provisions of this Agreement shall remain in full force and effect. (d) The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. (e) The laws of the state of Israel shall govern all issued arising under or relating to this Agreement, without giving effect to the conflict of laws principles thereof. All disputes arising under or relating to this Agreement shall be resolved exclusively in the appropriate Israeli court sitting in Tel Aviv-Jaffa, Israel. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. (f) This Agreement, including the Order Form and the SLA and all exhibits and addendums thereto, and also the terms of use and privacy policy set forth in Gizmox' website (www.visualwebgui.com), sets the entire understanding and agreement between You and Gizmox, it supersedes any prior proposal, representation and understanding concerning the Library, and may be amended only in writing signed by both parties. (g) Nothing in this Agreement shall create or be construed as creating any relationship of partnership, of employer/employee, franchiser/franchisee, or principal/agent between You and Gizmox. (h) All notices and other communications required or permitted hereunder shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the recipient by hand delivery or a nationally recognized overnight courier (e.g., Federal Express); (ii) when sent by confirmed facsimile if sent during normal business hours of the recipient, or if not, then on the next business day; (iii) five (5) days after having been sent by registered or certified airmail, return receipt requested, postage prepaid; or (iv) one (1) business day after having been sent by email message. For the purpose of this Agreement Gizmox' address shall be as set forth in Gizmox' website (www.visualwebgui.com), and email address: sales@gizmox.com. Your address shall be as set forth in the Order Form(s). (i) If You are a corporation, partnership or similar entity, then the license to the Library granted hereunder is deemed to be accepted by a person authorized to sign for and bind the entity.