Snowball EULA version 200701
END USER LICENSE AGREEMENT FOR SNOWBALL BETA
IMPORTANT – READ CAREFULLY: This End-User License Agreement (”EULA”) is a legal agreement between you (either an individual or a single entity) and Total Recall ApS for the Snowball software and associated documentation that accompanies this EULA, which includes the associated media and Snowball internet-based services (”Software”).
YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE ACCESSING OR USING THE SOFTWARE. YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS EULA IS A CONDITION TO THE GRANT OF LICENSE BELOW. THIS EULA, AS MAY BE MODIFIED BY ANY APPLICABLE SIGNED WRITTEN AGREEMENT BETWEEN YOU AND TOTAL RECALL APS, REPRESENTS THE ENTIRE SET OF TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SOFTWARE AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS ORAL OR WRITTEN COMMUNICATIONS, PROPOSALS AND PRESENTATIONS WITH RESPECT TO THE SOFTWARE OR THE SUBJECT MATTER OF THE EULA.
If this agreement is translated into a language other than English and there is a conflict of terms between the English and the other language, the English version will control. You should keep acopy of this EULA for your records. The latest version of this EULA appears in its entirety on http://www.trmem.com/legal/eula_en.txt. Total Recall ApS may update or amend the EULA at any time without notice to you; however, the form of EULA in effect at the time of the Software acquisition will apply.
1. Beta Software Test Program
1.1 This document is a Beta Software License Agreement (hereinafter the “Agreement”) between Total Recall ApS (hereinafter the “Licensor”) and the undersigned legal or natural person (hereinafter the “Licensee”), whereby Licensor grants to Licensee a right to install and use the pre-commercial beta release of the software program having as a working title the name “Snowball” provided to Licensee pursuant this Agreement at a time and place and by use of means of communication to be decided by Licensor in Licensor’s sole discretion.
1.2 This Agreement governs Licensee’s right to install and use the pre-commercial beta releases of the software program having as a working title the name Snowball and all information related hereto including without limitation, the software in object code and source code, any content included in the software, the media on which the software program is provided (if any) and manuals, instructions or other information (if any) per taining to the software program having as a working title the name Snowball as provided to Licensee pursuant to this Agreement (hereinafter the “Beta Software”).
1.3 The Licensee acknowledges and accepts that (i) this Agreement has been entered into for the purpose of allowing Licensee to participate in Licensor’s Beta Software Test Program on the specific terms and conditions set forth in this Agreement and (ii) this Agreement thus shall be interpreted and construed in accordance with this purpose.
2. Grant of License
2.1 Licensor hereby grants Licensee a limited royalty-free, non-exclusive, non-perpetual, and non-transferable right to install and use one (1) single copy of the Beta Software on one (1) single CPU solely for the purpose of fulfilling this Agreement.
2.2 Except as expressly stated in section 2(1), Licensee is not allowed to make any copies or otherwise exploit or dispose of the Beta Software. All rights not expressly granted are reserved by Licensor.
3. Restrictions
3.1 Licensee is not entitled to reverse-engineer, disassemble or decompile the Beta Software or in any other way attempt to investigate and discover the source code or the structural framework of the Beta Software except and only to the extent permitted by applicable and mandatory law.
3.2 Licensee is not entitled to alter, modify or otherwise change the Beta Software under this Agreement and Licensee shall thus only install and use the Beta Software as provided by Licensor.
3.3 The Licensee is not entitled to change or remove any marks and notices concerning copyright, patents, trademarks or other rights placed on or implemented in the Beta Software.
3.4 Without limiting the generality of any other restrictions set forth in this Agreement, Licensee expressly acknowledges and agrees that Licensee is not entitled to create any derivative works based directly or indirectly on the Beta Software. In addition hereto, Licensee acknowledges and agrees that Licensee will not directly or indirectly use, modify, alter, integrate or in any other way exploit the Beta Software in connection with any other software product to the extent that such use, modification, alteration, integration or other exploitation may result in the Beta Software becoming subject to terms and conditions which require (i) that the Beta Software in whole or in part is to be made available or distributed free of charge to any third party or (ii) that Licensor’s intellectual property rights vested in the Beta Software is limited or waived in any manner.
4. Intellectual Property Rights
4.1 The Beta Software is protected by copyright laws and international copyright treaties and other applicable legislation on proprietary rights and intellectual property rights.
4.2 Licensor is the sole proprietor and owns and retains any and all intellectual property rights including without limitation copyrights, patent rights, trademark rights in and to the Beta Software and to all copies hereof.
5. Licensee’s obligation to provide Feedback
5.1 Licensee acknowledges and agrees that Licensee may provide Licensor with feedback based on Licensee’s experiences obtained using the Beta Software (including such different versions hereof as may be provided to Licensee by Licensor for testing during the term of this Agreement) in Licensee’s live business environment, cf. section 2(1), which feedback may include without limitation information concerning usability, bug reports, test results, errors, user applicability, user friendliness etc. as well as such additional specific information as may be reasonably requested by Licensor (hereinafter the “Feedback”).
5.2 Licensee agrees that Licensor may free of charge and without any restrictions, obligations or conditions use improve, develop, modify, alter, disclose, reproduce, make available license, sub-license, transfer, distribute, market, sell and in any other manner exploit the Feedback for whatever purpose deemed appropriate by Licensor whether in connection with a subsequent commercial release of the Beta Software or in connection with any other software, product, technology or other service made available now or in the future in connection with Licensor’s business operations.
5.3 If Licensee’s Feedback includes material subject to intellectual property right protection, Licensee hereby transfers free of charge, irrevocably, perpetually and globally any and all intellectual property rights and proprietary rights vested in such Feedback to Licensor. Licensor is entitled without limitation or any obligation to pay any royalties to Licensee or any third party to improve, develop, modify, alter, disclose, reproduce, make available license, sub-license, transfer, distribute, market, sell and in any other manner exploit such intellectual property rights vested in the Feedback for whatever purpose deemed appropriate by Licensor whether in connection with a subsequent commercial release of the Beta Software or in connection with any other software, product, technology or other service made available now or in the future in connection with Licensor’s business operations. Licensor owns any and all rights to any derivative works based on such Feedback. If Licensee’s rights to the Feedback are not capable of being transferred under applicable mandatory law, Licensee irrevocably and unconditionally waives all enforcement rights with regard to these rights. Sections 54, 55 and 56 of the Danish Copyright Act are expressly derogated from by this Agreement and do thus not apply.
6. No updates, upgrades, maintenance or support
6.1 Licensor undertakes no obligation to provide Licensee with any updates, upgrades, maintenance, support or any technical assistance or information under this Agreement. Licensee acknowledges and accepts that it is the sole responsibility of Licensee to investigate, scrutinize and install the Beta Software and to ensure that the Beta Software can operate and function in conjunction with Licensee‘s IT systems and needs including Licensee’s hardware, software etc. and that the Beta Software may be installed and operated by Licensee in such a way that no risk of damage on Licensee’s IT systems, business or business operations may occur.
7. Indemnification
7.1 The Licensee shall promptly notify Licensor in writing in the event that Licensee becomes aware of any breach or alleged breach of confidentiality undertaking as set forth in section 7 and/or of any claim of infringement of intellectual property rights from any third party regarding the Beta Software.
7.2 The Licensee shall compensate, defend and indemnify Licensor from and against any claims, damages and losses, including claims for damages, taxes, penalties, interests etc. to the extent that (i) such claim or loss is a result of Licensee’s breach of the confidentiality undertaking set forth in section 7 or (ii) a claim from a third party concerning infringement of such third party’s intellectual property rights is a result of Licensee’s use of the Beta Software contrary to the provisions of this Agreement and irrespective of whether awarded by a court or agreed between Licensor and a third party.
8. Disclaimer of warranties
8.1 Licensor provides the Beta Software and any upgrades, modifications, documentation or information related to the Beta Software “as is” and with all faults that may be herein.
8.2 Licensor disclaims any and all warranties and conditions, whether express, implied or statutory, including without limitation any warranties, duties or conditions of or related to merchantability, fitness for a particular purpose, lack of viruses, accuracy or completeness of responses, results, quiet enjoyment, correspondence to description, non-infringement, workmanlike effort and lack of negligence with respect to the Beta Software and the entire risk as to the quality, performance and/or non-performance of the Beta Software shall thus remain with Licensee.
8.3 Licensee acknowledges and accepts that this grant of license under this Agreement do not in any manner imply that Licensee has been granted any right to any particular favorable prices from Licensor should a product similar to the Beta Software be commercially released by Licensor.
8.4 The exclusions and limitations as set forth in this section 10 shall apply to the maximum extent permitted by law.
9. Limitation of Liability
9.1 The entire risk in relation to the implementation and use of the Beta Software and for any damage the Beta Software may cause while at Licensee’s disposal according to this Agreement remains with Licensee. Licensee acknowledges that Licensee is solely responsible for the use of the Beta Software and to ensure that Licensee’s IT systems and business operations including hardware, software and business processes are in place and suited for use in conjunction with the Beta Software including that appropriate back-up procedures and other security related features are in place taking into consideration the prerelease nature of the Beta Software.
9.2 Licensee acknowledges and agrees that the Beta Software is a prerelease product which is under development and that the Beta Software therefore will contain defects, malfunctioning features and bugs and that use may be associated with certain problems. Accordingly, Licensee acknowledges and accepts that because of the fact that the Beta Software is a prerelease Licensor shall not be liable for and may choose not to correct or remedy any defects, malfunctioning features and bugs or any other problems experienced by Licensee in relation to the Beta Software.
9.3 Licensor shall not be liable for any damages and losses suffered by Licensee or a third party arising out of either party’s fulfillment or failure to fulfill this Agreement which shall irrespective of whether such damages and losses may be qualified as direct, indirect, punitive or other damages or losses (including, without limitation, damages for loss of business profits, business interruption, loss or restoration of business data and information, any other data, product liability or personal injury) arising out of the implementation or use of or inability to use the Beta Software, and irrespective if such are caused by acts or omissions by Licensor attributable to Licensor as negligent (including both gross and simple negligence) or incidental.
9.4 In addition to the exclusions and limitations of liability set forth in this Agreement, the entire liability of Licensor shall under any circumstances be limited to a total aggregate amount of DKK 500.00.
9.5 The exclusions and limitations as set forth in this section 10 shall apply to the maximum extent permitted by law.
10. Term and Termination
10.1 Unless otherwise terminated earlier in accordance with the provisions of this Agreement, this Agreement shall terminate automatically and without notice at the date on which Licensor notifies Licensee in writing that Licensor has decided to make a commercially release of a software product based in whole or in part on the Beta Software.
10.2 In the event of the either party’s material breach of this Agreement the other party is entitled to terminate this Agreement with immediate effect.
10.3 Except as stated in section 11(2) of this Agreement Licensee shall not be entitled to terminate this Agreement. Licensor may at any time terminate this Agreement for convenience with immediate effect by serving written notice upon Licensee in this respect.
10.4 Except as otherwise expressly set forth in this Agreement as the Beta Software is provided to Licensee free of charge and as a prerelease product “as is” and with all faults, and Licensee acknowledges and agrees that Licensee’s sole and exclusive remedy under this Agreement in the event of Licensor’s material breach of this Agreement shall be to terminate this Agreement.
10.5 Upon termination of this Agreement and irrespective of the reason for such termination, Licensee shall immediately (i) cease to use the Beta Software, (ii) return to Licensor any media on which the Beta Software is stored as well as any other information, documentation etc. provided to Licensee in a tangible format and (iii) delete any installation of the Beta Software made pursuant to this Agreement.
11. Marketing and Trade References
11.1 Licensor is entitled to use the name of Licensee as trade references in connection with Licensor’s future development, marketing, licensing and sales of the Beta Software and/or any future commercial release of any software based on or derived from the Beta Software.
12. Entire Agreement
12.1 This Agreement constitutes the entire, full and complete agreement between Licensee and Licensor concerning the subject matter hereof and supersede any and all prior agreements whether oral or in writing. Representations by Licensor, whether oral, in writing, electronic or otherwise, that are not expressly set forth or referred to in this Agreement shall not be binding upon Licensor and does not constitute part of this Agreement.
13. Assignment
13.1 Licensee shall not be entitled to assign this Agreement or any of Licensee’s rights or obligations under this Agreement to any third party without the prior written consent of Licensor. Licensor shall not be entitled to assign this Agreement or any of Licensor’s rights or obligations under this Agreement to any third party without the prior written consent of Licensee except that Licensor may assign this Agreement to (i) a company affiliated with Licensor or (ii) an unaffiliated third party to the extent that such assignment takes place in connection with a restructuring, divestiture, merger, acquisition or the like without the consent of Licensee.
14. Survival
14.1 Sections 4, 5, 7, 8, 9, 10, 12, 13 and14 shall survive any termination of this Agreement.
15. Miscellaneous
15.1 This Agreement shall be governed by and construed in accordance with Danish law.
15.2 Any disputes arising from this License Agreement shall be subject to the jurisdiction of the ordinary Danish courts.
