End User License Agreement
for Flexbby One Process and Workflow Automation Software
License Terms and Conditions
by Flexbby Inc.
INSTANCE- means a copy of Software installed within a single operating system environment or virtual machine image.
SUBSCRIPTION- Instance run inside the Cloud Infrastructure in which the Software was ordered
DOCUMENTATION- means the user guides and manuals for Software, including additional, updated or revised documentation, if any, provided by Flexbby to Customer for Customers own internal business purposes.
ORDER FORM- means the cover sheet to this Agreement, online marketplace shopping cart, or any subsequent order form for additional Products, or Services that has been accepted by Flexbby or Cloud Infrastructure Provider.
PRODUCTmeans the Software, Configuration, Technical Support and other services provided by Flexbby hereunder.
USER;- means an individual who is authorized by Customer to use, has access to or receives any benefit of exposure to, the specified Product, regardless of whether the individual is actively using the Product at any given time.
USER LICENSE KEY;- means License Key which allows to add the User.
CLOUD USER LICENCE KEY- means License Key which allows to add the User.
СONFIGURATION- means the software setting included to the Instance
SOFTWARE- means the software programs described on an Order Form, related Documentation, Cloud Licence Key, User Licence Key provided by Flexbby, and updates and enhancements made to the foregoing pursuant to Technical Support or other services.
TECHNICAL SUPPORT- means the support services described on an Order Form.
2.1 License Grant. Flexbby grants Customer a nonexclusive, nontransferable (except in connection with a permissible assignment per Section 12.2), nonsublicensable license to install, run and use the Software for Customers internal business purposes, which includes the internal business purposes of any subsidiaries that Customer controls either directly or indirectly. Customers use is subject to the applicable per instance, user, run environment, field of use and other restrictions described on the Order Form.
2.2 License to Make Customer Configuration. Flexbby further grants to Customer the right to modify and adapt Software Configuration for Customers internal business purposes.
2.3 License Term. Each Software license is granted for the time period specified in the Order Form pursuant to which the Software is provided to Customer.
A subscription license continues for the term stated in the applicable Order Form or, if no such term is stated, then for one year, in either case subject to the provisions of this Agreement; provided that certain online marketplaces may not state any term and in those cases the term is month to month.
2.4 Renewal. The subscription term will automatically renew for a period equal to the initial term unless either party notifies the other in writing at least thirty (30) days prior to expiration of the then current term, so long as Flexbby makes the Products available. Flexbby will invoice Customer for the subscription fees at the list prices in effect at the time of renewal.
2.5 Restrictions. Customer shall not, and shall not allow others to:
(i) cause or permit the reverse engineering, disassembly, or decompilation of any portion of any Products; (ii) remove any copyright notices or other proprietary notices or restrictions from any of the Products; (iii) knowingly disclose results of any benchmark or other performance tests to any third party without Flexbby prior written consent; or (iv) distribute, sell, sublicense, rent, lease or use the Products (or any portion thereof) for time sharing, hosting, service provider or similar purposes. (v) run the Instance with the Cloud License Key outside the Cloud Infrastructure in which the Software was ordered.
2.6 Ownership. The Products constitute proprietary works of Flexbby and its licensors, protected by copyright and other intellectual property laws. Except for the rights granted herein, Flexbby and its licensors retain all rights, title and interest, including all intellectual property rights, in the Products and the Documentation. The terms purchase and sale in reference to the Products notwithstanding, it is expressly agreed by the parties that title to the Products does not pass to Customer and Customers rights with respect to the Products will only be that of a licensee.
2.7 No Transfers. The Products may not be transferred or redistributed to any third party, except in connection with a permissible assignment pursuant to Section 12.2. Customer may not permit access or use of the Products by any third party, except Customers employees and contractors performing services for Customers benefit. Customer may transfer the Products to another location within Customers organization or that of a contractor performing services for Customers benefit.
3.1 Support Terms. Flexbby will provide the level of Technical Support specified in the applicable Order Form subject to payment of applicable support fees and this Agreement. Unless otherwise specified in the applicable Order Form, a term of Technical Support is coterminous with the applicable Products. Customer may renew Technical Support by advance payment of the Technical Support fees for the applicable Products, so long as made commercially available by Flexbby.
3.2 Training. Customer is responsible for providing support to Users. Technical Support does not include training or consultation regarding configuration or implementation.
3.3 Customer Use. In order to minimize the burden of Flexbby support obligations, Customer will use good faith efforts to minimize the effects of any Product problem consistent with industry standards, including (i) adequate testing prior to live usage and (ii) a review of Customer procedures at reasonable intervals. Customer also agrees to make provisions for the backup of data transmitted, received, generated or used in conjunction with the Products. Flexbby shall not be responsible for any loss or corruption of any such messages or data.
4.1 Payment Terms. All fees due under this Agreement are payable in U.S. dollars only. Payment terms for Software licenses, related Technical Support and other services will be set forth on each Order Form. If not set forth, all fees for Flexbby products or services will be due thirty days from the date of Flexbby invoice. All fees are non cancelable and non refundable, except as expressly provided in this Agreement. Customer will reimburse Flexbby for all reasonable costs incurred (including attorneys fees) in collecting past due amounts. Customer shall be responsible for any taxes, duties or withholdings based on Customers order (excluding taxes based on Flexbby income) that are timely invoiced.
4.2 Compliance. On Flexbby written request, but not more frequently than annually, Customer will furnish Flexbby with a signed statement verifying that the Products are being used in full compliance with the provisions of this Agreement.
5.1 Confidential Information means
(i) any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, algorithms, business plans, customer data, customer lists, customer names, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, knowhow, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets or any other information which is designated as confidential, proprietary or some similar designation and (ii) any information otherwise obtained, directly or indirectly, by a receiving party through inspection, review or analysis of the materials described in clause (i). Information disclosed orally shall be considered Confidential Information only if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information of a third party that is in the possession of one of the parties and is disclosed to the other party under this Agreement. Confidential Information includes, without limitation, any Products, related documentation, specifications, pricing, disclosures in connection with Services or Technical Support and the terms and conditions of this Agreement. Confidential Information shall remain the sole property of the disclosing party or its licensors.
5.2 Nondisclosure. Information/items will not be considered as Confidential Information if the receiving party can establish by documentary evidence that the information is or was: (i) lawfully available to the public through no act or omission of the receiving party; (ii) in the receiving party’s lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; (iii) lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) independently developed by the receiving party. The parties agree, both during the term of this Agreement and for a period of five (5) years (or, as applicable, with respect to Confidential Information that is a trade secret, for an indefinite period) after its termination, to hold each others Confidential Information in confidence and not to disclose such information in any form to any third party without the express written consent of the disclosing party, except to employees and consultants performing services for the benefit of the receiving party who are under a written nondisclosure agreement protecting the applicable Confidential Information in a manner no less restrictive than this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement. A receiving party facing legal action to disclose Confidential Information of the disclosing party shall promptly notify and provide the disclosing party the opportunity to oppose such disclosure or obtain a protective order and shall continue to treat such information as Confidential Information. This Section 5.2 shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.
6.1 Software Warranty. Flexbby warrants to Customer that Software will perform the material functions described in the applicable Documentation when operated on the hardware and operating system platform generally supported by Flexbby and indicated on the Order Form pursuant to which it was provided.
6.2 Warranty Exclusions. Flexbby is not obligated to correct errors caused by unauthorized modification to Software or Configuration, by using Software other than as described in the Documentation, by nonFlexbby software, or by combining Software with any hardware or software not authorized by Flexbby in writing. Customers sole and exclusive remedy and Flexbby entire liability for Software nonconformity in breach of the foregoing warranty will be: (i) correction of Software errors causing the nonconformity, or (ii) if Flexbby determines that it is unable to make the Software operate as warranted using commercially reasonable efforts, Flexbby will refund the fees paid for the nonconforming Software and terminate the license to the Software.
6.3 Technical Support Warranty For breach of its Technical Support obligations, Customers exclusive remedy and Flexbby entire liability will be reperformance of the applicable Technical Support service at issue.
6.4 No implied warranties. the warranties above are the exclusive warranties regarding the products, technical support and services and are given in lieu of all other warranties of Flexbby, whether express or implied, including noninfringement and the implied warranties of merchantability and fitness for a particular purpose.
6.5 Disclaimer. Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. Content and beta services are provided “as is,” exclusive of any warranty whatsoever. Each party disclaims all liability and indemnification obligations for any harm or damages caused by any third-party hosting providers.
7.1. Indemnification by Flexbby. We will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Software infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Flexbby in writing of, a Claim Against Customer, provided Customer (a) promptly give Flexbby written notice of the Claim Against Customer, (b) give Flexbby sole control of the defense and settlement of the Claim Against Customer (except that Flexbby may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) give Flexbby all reasonable assistance, at Flexbby expense. If Flexbby receive information about an infringement or misappropriation claim related to a Software, Flexbby may in our discretion and at no cost to Customer (i) modify the Software so that they are no longer claimed to infringe or misappropriate, without breaching Flexbby warranties, (ii) obtain a license for Customer continued use of that Software in accordance with this Agreement, or (iii) terminate Customer Licence Keys for that Software upon 30 days; written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated Licence Keys. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-Flexbby Application or Customer use of the Software in violation of this Agreement, the Documentation or applicable Order Forms.
7.2. Indemnification by Customer. Customer will defend Flexbby against any claim, demand, suit or proceeding made or brought against Flexbby by a third party alleging that any of Customer Data infringes or misappropriates such third party’s intellectual property rights, or arising from Customer use of the Software or Content in violation of the Agreement, the Documentation, Order Form or applicable law (each a Claim Against Flexbby), and Customer will indemnify Flexbby from any damages, attorney fees and costs finally awarded against Flexbby as a result of, or for any amounts paid by Flexbby under a settlement approved by Customer in writing of, a Claim Against Flexbby, provided Flexbby (a) promptly give Customer written notice of the Claim Against Flexbby, (b) give Customer sole control of the defense and settlement of the Claim Against Flexbby (except that Customer may not settle any Claim Against Flexbby unless it unconditionally releases Flexbby of all liability), and (c) give Flexbby all reasonable assistance, at Customer expense.
7.3. Exclusive Remedy. This Section 7 states the indemnifying partys sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 7.
8.1 No indirect damages. Except customers breach of the license restrictions in section 2 and its confidentiality obligations in section 5, in no event shall either party or its licensors (including their directors, officers, employees, representatives, agents and suppliers) be liable for any indirect, incidental, special or consequential damages, including without limitation procurement of substitute products or services or loss of profits, revenue, data or data use, even if Flexbby and/or its licensors has/have been advised of the possibility of such damages.
8.2 Limit on direct damages. Except for each partys indemnification obligations pursuant to section 7 and customers breach of the license restrictions in section 2 and its confidentiality obligations in section 5, the aggregate, cumulative liability of each party (including its directors, officers, employees, representatives, agents and suppliers) under this agreement shall be limited to the fees paid or payable by customer to Flexbby during the twelve month period prior to the event giving rise to any claim.
8.3 Allocation of Risk. The provisions of this Agreement fairly allocate the risks between Flexbby, on the one hand, and Customer on the other. Customer acknowledges and agrees that the pricing reflects this allocation of risk and the limitation of liability specified herein, and that Flexbby would not enter into this Agreement without such allocation and limitation.
8.4. Limitation of Liability. In no event shall the aggregate liability of each party together with all of its affiliates arising out of or related to this agreement exceed the total amount paid by you and your affiliates hereunder for the software giving rise to the liability in the twelve months preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability, but will not limit your and your affiliates payment obligations under the invoicing, payment and records section above.
8.5. Exclusion of Consequential and Related Damages. In no event will either party or its affiliates have any liability arising out of or related to this agreement for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party or its affiliates have been advised of the possibility of such damages or if a party’s or its affiliates remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.
9.1 Termination for Breach. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
9.2 Effect of Termination. Immediately on termination of this Agreement, Customer shall cease all use of the Software. Within 10 business days following the termination date Customer and shall return to Flexbby or destroy (and certify to Flexbby in writing as to such destruction) all copies of the Software and Documentation and any other materials embodying the Products.
9.3 Survival. Sections 2.5 through 2.7 and 4 through 12 of this Agreement shall survive any termination of this Agreement.
12.1 Authorization. Each party represents and warrants that the person executing this Agreement on behalf of such party, or clicking I agree in the case of a Product trial or online marketplace subscription, is authorized to enter into this Agreement on behalf of such party.
12.2 Integration. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof. If any provision of this Agreement is adjudicated invalid or unenforceable, the remaining provisions will remain in effect and the Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. This Agreement shall supersede the terms of any purchase order or other business form. If accepted by Flexbby in lieu of or in addition to Flexbby Order Form, Customers purchase order shall be binding only as to the following terms: (i) the Products, Technical Support and services ordered and (ii) the appropriately calculated fees due. Other terms shall be void.
12.3 Assignment. This Agreement is personal to the Customer originally licensed and may not be assigned, whether by operation of law or otherwise, except that either party may assign this Agreement or any Software license to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party or an applicable business unit. Any other purported assignment shall be void.
12.4 Force Majeure. Neither party shall be liable to the other for its failure to perform its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to unforeseen circumstances beyond its reasonable control.
12.5 Amendment; Counterparts. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed by written signature or electronically and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement.
12.6 Governing Law and Venue. This Agreement shall be governed by the laws of the State of Nevada, United States of America without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action relating to this Agreement will be brought in Las Vegas, Nevada, U.S.A., and the parties agree to the exercise of jurisdiction by a state or federal court in such counties.
12.7 Notices. All notices under this Agreement shall be sent in writing and shall be delivered by (i) personal hand delivery, (ii) first class mail with return receipt, (iii) overnight mail by recognized commercial carrier with tracking receipt, or (iv) confirmed email or fax and copied by one of the methods described in (i), (ii) or (iii) above, to the address first listed above or to such other address that has been properly noticed.
12.8 No Agency Relationship. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between Customer and Flexbby.
12.9 Open Source Notice. Flexbby may distribute third party open source software programs with the Software either incorporated into the Software or provided separately. These third party programs are subject to their own additional license terms, none of which require notice, attribution, payment, disclosure or license back of any Customer information. A list of open source software programs delivered with the Software can be found in the readme.txt file in the Documentation.
12.10 Publicity. Customer agrees that Flexbby may use Customers name in Flexbby’s customer list and may publish information identifying Customer as a user of Flexbby products in advertisements, news releases and releases to professional and trade publications. Customer will have the right to approve each such release prior to its placement, but agrees not to unreasonably withhold its approval.