Flow Scheduler - End User License Agreement
This Licence Agreement govern your use of software called “Flow Scheduler”; by using this software, you accept these terms and conditions in full. If you disagree with these terms and conditions or any part of these terms and conditions, you must not use this software.
Unless otherwise stated, Cluster Reply S.r.l and/or its licensors own the intellectual property rights of this software. Subject to the license below, all these intellectual property rights are reserved.
1. Applicable Law: Definitions.
This order, the definition of terms used, performance hereunder, and the interpretation of this order shall be governed by and construed in accordance with Italian laws. "Confidential Information" means any non-public information or documentation provided by Supplier under this Order, including but not limited to Software, documentation, and information pertaining thereto. "End- User Customer" means the final licensor of Software who licenses for their use. "Order" means this purchase order. "Software" means Supplier’s proprietary Software and any third party proprietary software components licensed to Customer pursuant to this Order. "Terms" means, collectively, the terms and conditions set forth below and on the front of this Order.
2. Agreement
This Order constitutes an acceptance of Customer’s offer to license Software contingent and consistent upon the Terms contained herein. Any terms or conditions proposed by Customer inconsistent with or in addition to the Terms shall be void and of no effect, unless specifically agreed to in a signed writing by an authorized Supplier representative. Payment for Software by Customer or furnishing of the Software by Supplier, in whole or in part, shall constitute a binding agreement on the Terms of this Order unless Software is returned to Supplier unused. The failure of Supplier to insist upon performance of this Order, to enforce any of the Terms of this Order or other purchase orders from Supplier, or to exercise any right or privilege granted to Supplier under this Order or under law, shall not be construed as a waiver and the same shall continue in full force and effect.
3. License Grant
Subject to Customer's compliance with the terms of this Agreement, Supplier grants to Customer a non-exclusive, non-transferable, perpetual license to install, use and execute the Software in object code form on a per-license basis consistent with the licensing scheme applicable to the type of software purchased on this Order at a location specified by Customer (“Software License”) as may be changed by Customer from time to time upon prior written notice to Supplier, such Software License limited to the site(s), number of seats, concurrent users, agents, servers, ports, devices, managed applications, and/or copies as applicable to the Software obtained, not to exceed the number of licenses set forth on Orders placed pursuant to this Agreement. The Software License shall become effective upon Delivery of the Software and shall remain in force unless terminated. This right does not include permission to grant sub-licenses or otherwise transfer such rights. The Customer may make one (1) copy of the Software for non-productive archival purposes only, provided that it retains or affixes the equivalent of Supplier's proprietary legend and copyrights to the copy. Additionally, the Customer may make several copies of the system documentation, excluding training manuals and materials, provided that they are for internal use only. Customer may not reverse engineer, disassemble or otherwise translate the Software provided pursuant to this Agreement. Supplier, or any third party that owns the Software License, retains exclusive title to and all rights to the Software. The Customer acknowledges that the Software and documentation are the property of Supplier and that the only right that the Customer obtains to the Software is the right of use in accordance with the terms of this Agreement. To assist Supplier in the performance of its duties under this Agreement and in the protection of its proprietary rights, Customer hereby authorizes a Supplier representative to enter Customer's premises, physically or electronically, and inspect the Software License at reasonable times with prior notice.
This Agreement is not intended to nor does it provide any license rights to the Software. The original and all copies of the Software and Services remain the sole property of Cluster Reply S.r.l or its licensors, subject to all of the confidentiality and other restrictions set forth in these Terms. Customer must retain all legends relating to copyright, trademarks, patents, or confidentiality on all copies of the Documentation or any print of a screen display from the Services. Cluster Reply S.r.l reserves all right, title and interest in and to the Software and Services under all applicable federal, state and local laws of the United States and any other jurisdiction. Cluster Reply S.r.l is not obligated to provide, and Customer acquires no right of any kind with respect to, any source code for the Software.
3.1 Conditions of Use
Customer’s right to use the Services is subject to the following restrictions and limitations.
1) The Services must not be used for the sending of unsolicited commercial email (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act (the “Act”) or any other Applicable Law);
2) The Services will only be used for lawful purposes and in accordance with Applicable Law;
3) The Services will not be used for hosting content, including images and documents, that knowingly infringe on the intellectual property rights of third parties, or that include any obscene or libelous material or other material that violates any Applicable Law;
4) You will not access or otherwise use third party mailing lists or otherwise prepare or distribute mass unsolicited commercial email as such term is defined in the Act or other Applicable Law in connection with your use of the Services;
5) You will import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from you in connection with your use of the Services; You hereby covenant that you will not use any other lists in connection with your use of the Services;
6) You will comply with the restrictions on content of email messages and activities using the Service as set forth or referenced in these Terms;
7) The "from" line of any email message sent by You using the Services will accurately and in a non-deceptive manner identify your organization, your products or your services;
8) The "subject" line of any email message sent by You using the Services will not contain any deceptive or misleading content regarding the overall subject matter of the email message;
9) In your use of the Services, you agree to represent you or your organization accurately and will not impersonate any other person, whether actual or fictitious.
10) Customer’s use of Third-Party Platforms is at Customer’s own risk and is governed by the terms and conditions of such Third-Party Platforms (and you shall comply with all such terms and conditions). Cluster Reply S.r.l. makes no representations and has no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Platform or any transactions completed and any contract entered into by you with any such third party.
11) Customer will not:
11.1) Resell, sublicense, time-share, or otherwise share the Services with any third party unless otherwise approved by Cluster Reply S.r.l.;
11.2) Make the Services available to anyone who is not an “Authorized User.” An Authorized User is an employee of Customer, or a person to whom Customer has outsourced service, who is authorized to access the Software;
11.3) Modify or create derivative works of or decompile, disassemble or reverse-engineer the Software or otherwise attempt to derive the source code of the Software;
11.4) Copy any feature, design or graphic in the Software or the Services; or
11.5) Access or use the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
12) Customer Data are property of Dynamics 365 or Flow Scheduler. Flow Scheduler is NOT owner of any data inside the systems
4. Compliance with Laws
Customer shall comply with all applicable laws, including, without limitation, the statutes and regulations of the United Kingdom and the export control laws of the United States. The United Nations Convention on the International Sale of Goods (CISG) is specifically excluded.
5. Limited Warranty
Supplier warrants to Customer that Software will perform in every material respect according to the published specifications for a period of thirty (30) days from Delivery. However, neither Supplier nor its third-party supplier’s warrant Software will meet Customer's requirements or that the Software operation will be uninterrupted or error-free. Remedies for Software defects reported during the warranty period consist of (and are limited to), at Supplier’s option, repairing, replacing or refunding the purchase price of the Software. This warranty is contingent upon the proper use and application of the Software in accordance with Supplier’s instructions. The warranty does not (i) cover the Software if modified by anyone other than Supplier; (ii) apply if Software warranty support is requested as a result of accident, neglect, or operating conditions exceeding specifications; (iii) cover malfunctions caused by defects in or incompatibility to Customer's computer system or equipment; (iv) cover malfunctions caused by defects in or arising from the installation, repair, or programming of the Software other than by Supplier; and (v) apply if Customer has rejected or not used any Software corrections, updates, or modifications supplied or made available by Supplier. THE WARRANTIES HEREIN DO NOT APPLY TO THIRD-PARTY SOFTWARE FURNISHED BY SUPPLIER UNDER THIS AGREEMENT, AND SUCH PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS. AS APPLICABLE, SUPPLIER AGREES TO ASSIGN ANY WARRANTY IT MAY HAVE WITH RESPECT TO THIRD-PARTY SOFTWARE TO CUSTOMER, AND CUSTOMER AGREES TO PROCEED DIRECTLY AND EXCLUSIVELY AGAINST THE THIRD-PARTY SUPPLIER AS TO ANY CLAIMS OF WARRANTY. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Cluster Reply S.r.l has no obligations under Section 5.1 if (i) the Software has been modified by Customer or any third party, unless the modification has been pre-approved in writing by Cluster Reply S.r.l; or (ii) the non-conformance is caused by any third party software or hardware, by accidental damage or by other matters beyond Cluster Reply S.r.l reasonable control.
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE SERVICES ARE PROVIDED WITH NO OTHER WARRANTIES OF ANY KIND, AND Cluster Reply S.r.l.DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Cluster Reply S.r.l DOES NOT WARRANT THAT THE USE OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. Cluster Reply S.r.l.IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY PLATFORMS ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY PLATFORMS.
6. No Maintenance and Support or Other Services
Supplier will provide no Services under this Order and after the expiration of the warranty period specified in Section 6, no other ongoing maintenance or technical support will be provided under this Order, including, without limitation, upgrades, license revisions, updates, fixes or telephone support of any kind. Customer may purchase maintenance and support or various training, installation, or other professional services from Supplier separate from this Order under a separate agreement.
7. Limitation of Liability
SUPPLIER’S LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO, AT SUPPLIER’S OPTION, REPAIR OR REPLACEMENT OF THE DEFECTIVE SOFTWARE. IN NO EVENT WILL SUPPLIER BE LIABLE FOR DAMAGES IN EXCESS OF THE FEES PAID TO SUPPLIER IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS. EXCEPT FOR ANY MATTER FOR WHICH IT WOULD BE UNLAWFUL TO LIMIT, SUPPLIER SHALL NOT HAVE ANY LIABILITY TO CUSTOMER (HOWSOEVER ARISING, INCLUDING ANY LIABILITY IN CONTRACT OR TORT) WHETHER DIRECT, INDIRECT, SPECIAL AND/OR CONSEQUENTIAL LOSS OR DAMAGE, UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOSS OF PROFITS OR ANTICIPATED SAVINGS, LOSS OF BUSINESS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF OR DAMAGE TO REPUTATION OR GOODWILL, LOSS OF OPPORTUNITY OR CONTRACTS, WASTED MANAGEMENT OR OTHER STAFF TIME, LOSSES OR LIABILITIES UNDER OR IN RELATION TO ANY OTHER CONTRACT, OR LOSS OF, DAMAGE TO OR CORRUPTION OF DATA OR INFORMATION AND SUPPLIER SHALL HAVE NO LIABILITY FOR ANY OTHER INDIRECT, SPECIAL AND/OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. THIS LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. NO ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION HEREUNDER MAY BE BROUGHT AGAINST SUPPLIER MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION HAS ARISEN.
8. Relationship of the Parties
Each party acknowledges that they are independent contractors, and that the relationship between Supplier and Customer is that of manufacturer/Customer. Neither party shall in any way represent or obligate the other party to any contract, term, or condition, nor may it represent the other party as agent, employee, franchisee, or in any other capacity. Customer is expressly prohibited from making representations to other third parties regarding Supplier or the Software and Services in excess of or contrary to representations contained in Supplier’s or its third-party supplier's product specifications, brochures, newsletters, and other publications provided to Customer by Supplier. Nothing in this Order shall be construed to limit either party's right to independently develop or distribute products which are functionally similar to the other party's products, so long as Confidential Information of the other party is not used in such development or distribution.
9. Assignment.
Neither this Order nor any rights under it may be assigned by Customer without Supplier’s prior written consent. Any unauthorized assignment by Customer shall be void. Supplier may assign the Order, in whole or in part, upon thirty (30) days’ notice to the Customer.
10. Severability.
If a court of competent jurisdiction holds any provision in this Order to be invalid, void, or unenforceable, the remaining provisions will yet continue in full force without being impaired or invalidated in any way
11. Notices.
Any notices given to Supplier may be made either by facsimile, overnight courier, hand delivery, or by registered or certified mail, postage prepaid with return receipt requested. Mailed notices shall be addressed to Supplier at the address appearing below, but Supplier may change such address by written notice in accordance with this paragraph. Notices mailed, or delivered personally or by electronic means will be deemed communicated as of actual receipt or the date of transmission, as applicable.
12. Confidentiality.
The parties agree to accept in confidence all Confidential Information provided to them. The parties further agree not to use or disclose any Confidential Information supplied by the other except as required to perform their obligations in accordance with this Order. Any disclosure of Confidential Information to agents or employees shall be made only in the normal course of business, on a need-to-know basis, within the scope and purpose of this Order, and under written agreements requiring such agents or employees to treat all such information as strictly confidential. The parties agree not to use, publish, reproduce, disseminate, or otherwise disclose the other's proprietary or Confidential Information, including, but not limited to customer lists, without the prior written consent of the other.
Customer shall not develop, manufacture, maintain, or, except as contemplated under this Order, market products or services incorporating Supplier’s Confidential Information or Software. Customer agrees to include Supplier’s proprietary notice on all copies of Supplier’s Confidential Information made by Customer and to maintain records of the location of these copies.
Customer agrees that the Software, and any proprietary and/or trade secret information and data furnished to Customer by Supplier or any of its third-party suppliers will be considered Confidential Information and subject to the provisions of this Section. Supplier reserves for itself all proprietary rights in all designs, engineering details, and other data pertaining to the Software and other proprietary data arising out of work done in connection with designing, manufacturing, servicing, and testing the Software, including the sole right to manufacture and, except as provided herein, market all such items. Customer shall not reverse, translate, disassemble, or decompile the Software or any component of the Software.
13. Entire Agreement.
This Agreement is the entire agreement of the parties regarding the subject matter hereof, and supersedes and terminates any prior agreements, understandings or representations, written or oral, except with respect to any trade indebtedness owing between the parties.