End User License Agreement
(EULA)
This End User License Agreement (this “EULA” or "Agreement") constitutes a valid and binding agreement between OverIT S.p.A., (hereinafter also "OverIT") and you (hereinafter also "You," or "Your") in quality of Licensee, for the use of the Software provided by OverIT (hereinafter also “Solution” or “Software”), namely any and all of the software products of which it is owner of and/or is holder of licensing rights and/or other entitlement that grants the right to distribute such products, including all Maintenance Releases and any New Version or other product.
You must enter into this agreement in order to install and use OverIT’s provided Solution.
BY INSTALLING AND USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU SHALL NOT BE ENTITLED TO INSTALL OR USE THAT LICENSED BY OVERIT.
1. License Grant
1.1 Subject to the terms of this Agreement, OverIT hereby grants you a limited, non-exclusive, non-sublicensable, non-assignable license on the mobile and server components of the provided Software (“License”), including the content and features available online or annexed. It must be understood that the right to use the server and mobile licenses shall be granted exclusively to the number of users expressly indicated in the technical or commercial documentation. Unless otherwise stated, the number of Users to whom the right of use is granted must be intended as unlimited. Unless otherwise specified in technical or commercial documentation, it must be understood that the licenses are granted for a limited period of time.
2. License Restrictions
2.1 Notwithstanding anything to the contrary, you may not: (i) remove any proprietary notices from the Software or any copy thereof; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling or disassembling or hacking of the Software; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights on the Software, including, without limitation, through sublicense, to any other entity without the prior written consent of OverIT; (iv) use the Software for the benefit of any third party or charge any person for the use of the Software; or (v) use the Software to violate any applicable law, regulation or ordinance; and (vi) use any type of bot, spider virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access or that are designed to distort, delete, damage or disassemble the Software.
2.2 Furthermore, you may not use the Software to develop, generate, transmit or store information that: (A) infringes any OverIT or third party's intellectual property or other proprietary right; (B) is defamatory, harmful, abusive, obscene or hateful; (C) in any way may obstruct or otherwise interfere with the normal performance of another person's use of the Software, (D) performs any unsolicited commercial communication not permitted by applicable law; (E) is harassment or a violation of privacy or threatens other people or groups of people;
2.3 OverIT shall not release the source code of the Software, except in the case in which: (i) OverIT shall develop a Software “ad hoc” upon Client’s specific request and indication (“Custom Software”); (ii) the Client requires and OverIT develops customizations, which can be separated from the Solution exclusively belonging to or licensed by OverIT.
The adaption, customization, parametrization, as well as the improvement and adjustment of the licensed solution to the functional requirements of the Client, including any work deriving from the source code amendment shall never be considered as Custom Software.
2.4 The Software and related documentation contain confidential and trade secret information owned or licensed by OverIT, and you agree to take reasonable steps at all times to protect and maintain the confidentiality of such information, with respect to the provisions of this EULA, or the agreement to which it is Party or annex.
2.5 The Software may be incorporated into and may combine technology, software and services owned and controlled by third parties. Use of such third party’s software or services is subject to the terms and conditions of the applicable third party’s license agreements and you agree to look solely to this and not to enforce any of your rights. All modifications or enhancements to the Software remain the sole property of OverIT. OverIT reserves the right to add additional features or functions to the Software. When installed on your infrastructure, the Software could periodically communicate with OverIT’s servers. You acknowledge and agree that OverIT has no obligation to make available to you any subsequent version of its software applications, unless otherwise provided for in a Maintenance agreement.
2.6 The server component license relies on a property technology for the verification of the MAC address, related to the creation of a key to be entered in the application. This technology requires for the Software application, that is run on a server, to check the MAC address of the network supply card and to include this datum in the list of the network cards the Client previously reported to OverIT. If, during the start-up of the application, the MAC address detected by the system differs from the one previously reported, or it is not possible to detect its value, the application will not allow any operations, reporting an “Invalid License” error.
3. Proprietary Rights
3.1 The industrial and intellectual property rights referring to the Software shall remain sole and exclusive proprietorship of OverIT, or its legitimate owner, according to the current applicable legislation (pursuant to and in accordance with L. 22.4.1941, n. 633 as
integrated and/or modified by L.D 29.1.1992, n. 518 and the related execution regulation, "Copyright Law" and/or "Law") and to the international copyright law, as for all economical exploitation rights.
3.2 The Software contains proprietary and confidential information of OverIT, including copyrights, trade secrets and trademarks contained therein, which are protected by international copyright laws. Title to and ownership of the Software, including without limitation all intellectual property rights therein and thereto, are and shall remain the exclusive property of OverIT and its suppliers, and except for the limited license granted to You, OverIT reserves all right, title and interest in and to the Software. You shall not take any action to jeopardize, limit or interfere with OverIT's ownership of and rights with respect to the Software. You acknowledge that any unauthorized copying or unauthorized use of the Software is a violation of this Agreement and copyright laws and is strictly prohibited.
4. Terms and Termination.
4.1 This Agreement will be effective on the date of your acceptance, thus by this latter it must be understood that the terms and conditions herein are considered as expressly approved; the EULA shall be effective until termination by either party, according to the manners indicated herein following. The Contract shall be intended as integrally accepted by signing in footnote this document or by subscribing a supply contract in which it is an integral part, or an annex, or through concluding facts as installing the Software on your infrastructure.
4.2 You may terminate this Agreement at any time provided you cease all use of the Software and destroy or remove from all hard drives, networks, and other storage media all copies of the Software in your possession. OverIT may terminate this Agreement if you do not comply with the terms and conditions of this Agreement by providing notice to you and/or preventing your access to the Software. In any case, once the breach to the conditions of this EULA has been recognized, OverIT shall promptly notify its will to immediately cease such violation. Should you not take action to remedy the breach within 7 (seven) days from receipt of the notice, OverIT shall proceed to withdrawal of the license to use.
4.3 Upon termination of this Agreement for any reason (i) all licenses and rights to use the Software shall terminate and you must remove the Software from your computer equipment and dispose of all originals and copies of the Software in your possession, and (ii) Sections 2.1., 2.2., 2.4., 2.5., 3.1., 3.2., 5.1., 6.1., 7, 8.1, 10.1. shall survive such termination.
4.4 Under no circumstances the amount of the purchased Licenses will be reimbursed.
5. Your Representations and Warranties
5.1 You represent and warrant that (i) You possess the legal right and ability to enter into this Agreement and to comply with its terms, (ii) You will use the Software for lawful
purposes only and in accordance with this Agreement and all applicable laws, regulations and policies, (iii) You will not attempt to decompile, reverse engineer or hack the Software to defeat or overcome any encryption and/or other technical protection methods implemented by OverIT with respect to the Software and/or data transmitted, processed or stored by OverIT or other users of the Software, (iv) You will not take any steps to interfere with or in any manner compromise any of OverIT's security measures, any other individual's or entity's computer on the Network and/or otherwise sharing Services, (v) You will always provide and maintain true, accurate, current and complete information as requested by OverIT, and (vi) You will only use the Software on a computer on which such use is authorized by the computer's owner.
5.2 You agree to not use any automatic or manual device and/or process to interfere, or attempt to interfere, with the proper working of the Software, except to remove the Software from an infrastructure of which You are owner or authorized user in a manner permitted by this Agreement. You may not violate or attempt to violate the security of the Software. OverIT reserves the right to investigate occurrences which may involve such violations, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations.
5.3 If OverIT has reasonable grounds to suspect that your representations, warranties or promises are inaccurate or breached, OverIT may terminate this license, deny any or all use of the Software, and pursue any appropriate legal remedies.
6. Indemnity
6.1 You agree to indemnify, hold harmless and defend OverIT and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents and network service providers at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys' fees and other dispute resolution expenses) incurred by OverIT arising out of or relating to your (a) violation or breach of any term of this Agreement or any policy or guidelines referenced herein, or (b) use or misuse of the Software.
7. Disclaimer of Warranties
7.1 THE SOFTWARE IS PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY OVERIT, EITHER EXPRESS, IMPLIED, WITH RESPECT TO THE SOFTWARE, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. OVERIT FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE, OR WILL OPERATE WITHOUT
PACKET LOSS, NOR DOES OVERIT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
7.2 YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE OVERIT SOFTWARE REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7.3 THE SOFTWARE IS UTILIZED AND DISTRIBUTED BY THIRD PARTIES WHICH ARE UNRELATED TO OVERIT. YOU ACKNOWLEDGE THAT INSTALLATION OF THE SOFTWARE WILL ALLOW THIRD PARTIES, WHO ARE NOT AFFILIATED WITH OVERIT, THE ABILITY TO COMMUNICATE WITH YOUR COMPUTER ("OUTSIDE PARTIES"). YOU AGREE THAT OVERIT WILL NOT BE LIABLE FOR ANY DAMAGE, CLAIM OR LOSS OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES AS STATED IN PARAGRAPH 7.1 ABOVE, RESULTING FROM ANY ACTIONS OR OMISSIONS OF THE OUTSIDE PARTIES.
7.4 As some jurisdictions do not allow some of the exclusions set forth in this Section 7, some of these exclusions may not apply to You.
8. Limitation of Liability
8.1 In no event shall OverIT, its affiliates, parent companies, subsidiaries, officers, directors, employees, agents or network service providers be liable whether in contract, warranty, tort including any indirect, incidental, special or consequential damages (including without limitation any loss of data, service interruption, computer failure) arising out of the use or inability to use the software, even if OverIT has been advised of the possibility of such damages, notwithstanding liability in cases of intentional or gross negligence acts.
8.2 As some jurisdictions do not allow some of the exclusions set forth in this Section 8, some of these exclusions may not apply to you.
9. Electronic Signatures and Agreements
9.1 You acknowledge and agree that by installing and using the Software you accept the terms and conditions of this Agreement and You are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. You recognize that the use of electronic signatures represents your consent and intent of being bounded by the present agreement. Further, You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records.
10. General Provisions
10.1 OverIT reserves all rights not expressly granted herein. OverIT may modify this Agreement at any time by providing such revised Agreement to You. Your continued
use of the Software shall constitute your acceptance of such revised Agreement. You may not assign this Agreement or any rights hereunder. Nothing in this Agreement shall constitute a partnership or joint venture between You and OverIT. Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remaining part of this Agreement shall nonetheless remain in full force and effect. The failure of OverIT at any time to require performance of any provision hereof shall in no manner affect its right, at a later time, to enforce the same unless the same is waived in writing.
10.2 The terms of this Contract and any related service contract are to be considered final contract, complete and exclusive with regards to the Software and substitute any previous agreement, oral or written and/or other terms. OverIT shall, at its exclusive discretion, decide to transfer the present contract to an affiliate or subsidiary, without previous notification.
11. Applicable law and Jurisdiction
11.1 This Agreement shall be governed by and construed in accordance with the laws of Italy, without regard to the related principles of private international law.
11.2 Any legal proceeding arising out or relating to the establishment, interpretation, execution or termination of this Agreement, in the case where you have legal office in the European territory, will be subject to the exclusive jurisdiction of the Court of Pordenone or of the Tribunal of the Entrepreneurs of Trieste, when having Jurisdiction in the matter. Otherwise, if you don’t have registered office in a UE Member State, the Jurisdiction shall be subject to Arbitral Tribunal, which will decide based on the rules of the Arbitration Institute of the International Chamber of Commerce (ICC). The Arbitration Court shall be composed by one Arbitrator, the location shall be Milan and the language used shall be English.
YOU EXPLICITLY AKNOWLEDGE TO HAVE READ THIS CONTRACT AND TO HAVE COMPREHENDED ALL RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS STATED HEREIN AND APPROVE, IN COMPLIANCE TO ARTICLES 1341, II° AND 1342 C.C., THE FOLLOWING CONTRACTUAL CLAUSES: 2) License restrictions; 4) Terms and termination; 5) Your Representations and Warranties; 6) Indemnity; 7) Disclaimer of Warranties; 8) Limitation of Liability; 11) Applicable law and Jurisdiction.