DIGITAL FILE S.L (1995) (“DIGITAL FILE”) License Agreement (“Agreement”)
IMPORTANT NOTICE: THIS IS A LEGALLY BINDING CONTRACT. PLEASE READ IT CAREFULLY. BY CLICKING THE “Yes” BUTTON AND/OR INSTALLING AND/OR USING THIS SOFTWARE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST CLICK THE “No” BUTTON AND YOU MUST NOT INSTALL OR USE THE SOFTWARE.
We, at DIGITAL FILE, thank you for your confidence in our software product. We are delighted to provide you with a copy of our software product, subject to the terms and conditions set forth hereunder, that we believe you will find reasonable and necessary.
Unless otherwise is expressly indicated in any certain provision, the provisions of this Agreement are applicable both to Evaluation Software subscribers and to Software subscribers.
By pressing the acceptance button at the bottom of this Agreement, downloading, accessing or using the Software you acknowledge and agree to the following:
Unless otherwise defined in this Agreement, the capitalized terms used in this Agreement shall have the following meanings:
“Confidential Information” is defined in Section 10 hereof.
“Evaluation Software” means a version of the Software, which is limited in time and functionality, for testing and evaluation purposes.
“Evaluation Term” means the time period indicated on the download panel for testing and evaluation of the Evaluation Software.
“Intellectual Property Rights” means, with respect to any technology, all related patent rights, copyrights, inventions, mask works, trade secret rights, trade dress rights, trademark rights, moral rights, any other rights analogous to those set forth herein, and any other proprietary rights relating therein or thereto.
“Object Code” means computer software in a form not readily perceivable by humans and suitable for machine execution without the intervening steps of interpretation or compilation.
“Software” means DIGITAL FILE’s software perpetually licensed hereunder, subject to the terms and conditions set-forth.
“Source Code” means computer software in human readable form that is not suitable for machine execution without intervening interpretation or compilation.
“Third Party Component” means a software component owned by third party, which is intended to be configured and/or managed by the Software.
2. License Fee.
For Software Subscribers only: In exchange for the license granted under this Agreement, you agree to pay to DIGITAL FILE the license fee specified in the downloading panel (the “License Fee”). The License Fee shall be paid on the terms specified in the downloading panel. The License Fee will be earned immediately upon ordering the Software and is not subject to reduction or refund if this Agreement is terminated for any reason. The prices referred to in the downloading panel do not include taxes and other similar charges. You are responsible for, and shall pay or reimburse DIGITAL FILE for, all taxes, including sales, use, value-added (VAT), general services (GST), gross receipts, excise, personal property, or other federal, state or local taxes, export taxes and import duties, or any similar assessments based on the licensing to you of the Software, and any penalties, interest and collection or withholding costs associated with any of the foregoing items, excluding taxes on DIGITAL FILE’s net income. You may provide DIGITAL FILE with a tax exemption certificate acceptable to the taxing authorities in lieu of paying such taxes. You shall reimburse DIGITAL FILE for any fines, penalties, taxes and other charges, including expenses incurred by it, due to your submission of invalid information. DIGITAL FILE may charge you interest on any delinquent balance. This interest is computed on a daily basis for each day that the payment is delinquent, at the rate of eighteen percent (18%) per year.
For Evaluation Software Subscribers only: Subject to this Agreement, DIGITAL FILE grants you a time-limited, non-exclusive, non-sublicensable, personal and non-transferable right and license to install and use the Evaluation Software for the sole purpose of evaluating and examining the Software. This license shall expire and be deemed terminated, null and void immediately upon the lapse of the Evaluation Term. The functionality of the Evaluation Software is limited. Accordingly, you are not permitted to utilize the Software for purposes other than the testing and evaluation thereof.
For Software Subscribers only: Subject to this Agreement, DIGITAL FILE grants you a non-exclusive, non-sublicensable, personal and non-transferable right and license to install and use the Software.
4. License Limitations.
You may not reverse assemble, reverse compile, reverse engineer, or otherwise attempt to discover any Source Code (or other underlying data) of the Object Code of the Software (except to the extent this prohibition is invalid under local law).
You are responsible for providing all hardware and software, other than the Software, required to install and run the Software, including but not limited to Third Party Components. You are also responsible for providing any additional technology or peripherals required to operate the Software, including but not limited to, communication devices and Internet access services.
6. Third Party Components.
In order to use the Software you may need to pre-install Third Party Components. Such Third Party Components are not provided by DIGITAL FILE, and the use of these requires that you acquire a license for their use from the respective third parties. The use of Third Party Components may require payment of additional license fees. You agree to abide by the terms regarding the usage of any Third Party Components. DIGITAL FILE does not support any Third Party Components beyond ensuring that the interface between such Components and the Software is functional. Under no circumstances shall DIGITAL FILE be liable to any failure to use the Software due to your omission to elect from the downloading panel the option suitable to the specifications of the Third Party Components pre-installed on your system.
7. Software Ownership.
DIGITAL FILE shall at all times own and continue to own all Intellectual Property Rights in and to the Software. Except as expressly stated herein, DIGITAL FILE does not grant you any express or implied right under any Intellectual Property Rights.
8. No Transfers.
Upon any transfer by you of any copy of the Software to another party, this license will automatically terminate.
9. No Warranty.
THE SOFTWARE IS PROVIDED “AS IS” AND DIGITAL FILE DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE EVALUATION SOFTWARE OR AS TO THE SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY OF THE SOFTWARE REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DIGITAL FILE OR ANY OF ITS SUPPLIERS BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, NEGLIGENCE, OR STRICT LIABILITY) FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, CORRUPTION OR LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY) ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF DIGITAL FILE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE THAT DIGITAL FILE DOES NOT WARRANT OR GUARANTY THE SECURITY OR ACCURACY OF ANY CONVERSION PERFORMED WITH OR BY THE SOFTWARE AND YOU ASSUME ALL RISKS ASSOCIATED WITH SUCH SECURITY AND ACCURACY OF CONVERSION. Without derogating from the generality of the foregoing, under no circumstances shall DIGITAL FILE’s liability shall exceed beyond, at DIGITAL FILE’s option and expense, to: (i) modification of the Software so that it substantially conform to the applicable specifications, or (ii) replacement of the Software with software program that substantially conforms to the applicable specifications. For Software subscribers only: DIGITAL FILE may, in its sole discretion, in addition to the foregoing options, refund the License Fee paid for the defective Software.
10. Confidential Information.
You acknowledge that in the course of using the Software, you may obtain information, which is of a confidential and proprietary nature (“Confidential Information”). Such Confidential Information may include, without limitation, computer codes, trade secrets, know-how, inventions, techniques, processes, computer programs, algorithms, schematics, data, financial, business information, sales and marketing plans. You and your employees and agents shall, at all times, both during the term of this Agreement and after its termination, keep in trust and confidence all such Confidential Information, and shall not use or disclose such Confidential Information; except where such disclosure is required by law or by order of a governmental or regulatory authority. You will protect the Confidential Information with the same degree of care as you normally uses in the protection of your own confidential and proprietary information, but in no case with any less degree than reasonable care. You will not be bound by this Section with respect to information that you can document at the date hereof has entered or later enters the public domain not as a result of your act or omission or of your employees or agents. This obligation of confidentiality shall extend for a period of three (3) years after termination of this Agreement. You further agree to treat as confidential and not to disclose to any third party any information related to an alleged defect, bug or malfunction of the Software or related technology. You acknowledge that the Software in Source Code form remains a confidential trade secret of DIGITAL FILE and/or its suppliers and you agree not to modify it or attempt to decipher, decompile, disassemble or reverse-engineer it.
11. Notice to Government End Users.
The Software and the related documentation provided to you are “Commercial Items”, as that term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R.227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein, as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (Oct. 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14 (Alt III), as applicable.
You may not assign or transfer the license to use the Software and any related material provided to you by DIGITAL FILE (including all rights and obligations under this Agreement) without the prior written consent of DIGITAL FILE. Any waivers or amendments to this Agreement shall be effective only if made in writing signed by you and a representative of DIGITAL FILE that is authorized to bind DIGITAL FILE. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of Spain, without regard to conflicts of laws provisions thereof and without giving effect to the United Nations Convention on Contracts for the International Sale of Goods. The sole jurisdiction and venue for any dispute regarding the terms of this Agreement or any action relating to the subject matter hereof shall be the courts in Madrid, Spain. You and DIGITAL FILE agree that 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 of this Agreement.