Legal Notice
UNLESS OTHERWISE EXPRESSLY STATED BY UCit, THE PROGRAM DESCRIBED IN THIS DOCUMENT IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL UCit BE LIABLE TO ANYONE FOR SPECIAL, COLLATERAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, DATA, OR SAVINGS, ARISING OUT OF THE USE OF OR INABILITY TO USE THIS PROGRAM.
Copyright
Copyright © 2015-2023, UCit.
All rights reserved.
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End-User License Agreement
End-User License Agreement (EULA)
for UCit Software and Solutions
Version 2.3
July 2023
UCit SAS (UCit), a company having its principal place of business at 97 rue de
Freyr, Le Genesis - Parc Euréka, 34000 Montpellier, FRANCE, hereby grants to the
licensee named in the applicable order form(s) (the "Licensee") the license set
out below to use the software products accompanying this agreement (the "EULA"
or the "Agreement"), on the following terms and conditions.
THIS IS A LEGAL AGREEMENT BETWEEN UCit AND Licensee
PREMISES
The Software is owned by UCit. The Software is licensed, not sold. Each party
retains ownership of its copyright, patents and any other intellectual property
rights.
1. LICENSE
a) Evaluation License - Subject to the terms and conditions set out below
herein, UCit grants to Licensee a limited, non-exclusive, non-transferable,
revocable, non-sublicensable license to use the Software identified in the
applicable order form(s) (the "Software") for evaluation purposes only. Unless
Licensee enters into a Perpetual or time-based license, Licensee's ability to
use the Software for evaluation purposes will terminate at the end of the
evaluation period that is set, by default, to two weeks starting from the date
of installation of the evaluation license key. Subject to additional agreement,
this evaluation period can be extended by UCit at its discretion in writing
(which may be sent via email). At the end of the evaluation period, the Licensee
will return all the licenses and all the documentation related to the same (the
"Documentation") and will uninstall the software.
b) License Grant - Subject to the terms and conditions set out below herein,
UCit grants to License for the term specified in the appropriate order form(s) a
royalty free, non-transferable, revocable, non-sublicensable license to use the
Software for Licensee's internal business purposes only and for the licensed
number of HPC clusters (number of types and instances of job scheduler's
master/controller) used with the software, as specified in the applicable order
form(s). Copies of the Software are permitted only for back-up purposes and
shall be marked by the Licensee as back-up copy. Licensee shall not make copies
of the Documentation unless authorized by UCit. Licensee agrees to use the
Software to process only Licensee's data, or data lawfully obtained from third
parties with direct business relationship with Licensee. Licensee may allow a
third-party contractor to access and use the Software solely for the benefit of
Licensee for implementation of Licensee's projects or to assist resolving
problems with the Software or to provide services to Licensee as an application
service provider or data service provider or consultant, and, such use of the
Software by the contractor will be subject to the same terms and conditions
provided hereunder; Licensee is responsible for such use and any breech of these
terms and conditions by such parties. Except as provided in this Agreement,
Licensee shall not permit any other person or entity to access and use the
Software.
2. RESTRICTIONS
Licensee acknowledges and agrees that the Software (including the related
Documentation) comprises certain trade secrets and confidential and proprietary
information of UCit. Licensee agrees to maintain the Software in confidence and
not disclose it to any third party without UCit's prior written consent.
Licensee shall not modify, adapt, translate, reverse engineer (except for what
is expressly permitted under applicable law), transform, reproduce, copy,
decompile or disassemble the Software. Licensee may not modify, adapt, rent,
lease, loan, assign, sub-license or resell the Software. Provided, however, that
Licensee shall retain all right, title and interest to intellectual property
developed by Licensee independent of or prior to this Agreement but subject to
its obligations of confidentiality set out herein.
3. OWNERSHIP OF SOFTWARE
The Software (including the related Documentation) is owned by UCit. The
Licensee acknowledges and agrees that title to the Software, including the
Documentation, and all the copies thereof, including all industrial and
intellectual property rights (including the exclusive rights of economic
exploitation), copyright, trade secrets and patent rights, remains with UCit.
Licensee shall not alter, remove or modify the copyright notice or any other
proprietary rights disclaimer and/or credits from the Software and/or
Documentation. Licensee agrees to adopt adequate measures to prevent any
unauthorized copying of the Software and/or Documentation.
4. AUDIT
Licensee shall maintain accurate records as necessary to verify compliance with
this Agreement. Upon request by UCit, no more than once every twelve months,
Licensee shall furnish such records to UCit and certify its compliance with this
Agreement.
5. WARRANTY
a) UCit warrants that the Software will for a period of 30 days from delivery of
the Software to the Licensee (the "Warranty Period"), when used in accordance
with UCit's written instructions, operate substantially in compliance with
UCit's official published documentation. UCit's sole responsibility, and
Licensee's exclusive remedy, in the event of breach of the limited warranty
during the Warranty Period, is for UCit, at its option, to use reasonable
efforts to repair the Software, replace the Software or provide a refund to
Licensee. UCit shall not be responsible or liable for any noncompliance with the
foregoing warranty or limitations or defects of the Software, if they have been
caused, in whole or in part, by unauthorized behavior of Licensee, any use of
the Software which is inconsistent with the Documentation, any accident, abuse,
or misapplication by the Licensee, and/or if they arise from or are related to
software or any other products which are not supplied by UCit.
b) Except as set out otherwise herein, Licensee acknowledges that the Software
is provided to Licensee on an "as is" basis and that UCit disclaims all other
warranties and conditions, express, implied or otherwise, including without
limitation, any warranty or condition of merchantability, merchantable quality,
or fitness for a particular purpose, or arising from a course of dealing, usage
or trade practice, and in particular, UCit does not warrant or represent that
the Software will operate uninterrupted or error free or that defects in the
Software are correctable or will be corrected.
6. LIMITATION OF LIABILITY
Excluding the indemnification obligation of UCit in section 9. and
confidentiality obligations in section 10. Both parties' entire liability and
responsibility for any and all claims, damages or losses arising from the use of
the software or otherwise arising from or related to this agreement, and
regardless of the form of action (whether in contract, tort, negligence or any
other theory of liability) shall be absolutely limited to Licensee's actual
direct, provable damages in an amount not to exceed the license fee paid by the
Licensee to UCit over the 12 months prior to the claim. In no event will either
party UCit be liable for any special, consequential, incidental or indirect
damages of any kind however caused, whether for breach of warranty, breach or
repudiation of contract, tort, negligence, or otherwise, even if the party has
been advised of the possibility of such loss. In no event shall either party be
liable for any loss of profits, loss of business or goodwill, or for loss of
data or use of data.
7. TERMINATION
Either party may terminate this Agreement for convenience or if the other party
defaults any term or condition of this Agreement or has defaulted on any
payments on amounts owing to UCit or its distributors, and fails to cure such
default within thirty (30) days after receipt of written notice of such default.
Without limiting the foregoing, the party shall be in default under this
Agreement if they become insolvent or any proceeding shall be commenced by or
against the party under any bankruptcy, insolvency or similar laws. In the event
that the term of this Agreement is terminated, Licensee shall forthwith return
to UCit all copies of the Software (including any printed materials) and will
certify in writing to UCit that all copies or partial copies of the Software
have been returned to UCit or destroyed. If termination is caused by UCit, a
prorated refund of the prepaid funds will be credited back to Licensee within
thirty (30) days of such termination. Neither party shall be liable to the other
party for damages of any kind by reason of such termination.
8. GENERAL
This License Agreement represents the complete and exclusive agreement between
the parties with respect to the subject matter hereof and supersedes all prior
agreements, negotiations and understandings. This Agreement can only be modified
by a later written agreement signed by authorized representatives of both
parties. Neither party may assign this Agreement without the prior written
consent of the other party. Any notice shall be deemed to be given on the date
it is delivered personally or by fax, or if mailed or e-mailed on the fifth
business day following the mailing thereof. It being specified that each Party
undertakes to send the other a pre-sent e-mail of any notice sent. This
Agreement shall be governed by and interpreted in accordance with the laws of
France. Any litigation or proceeding, including any arbitration, shall be
brought within UCit's principal place of business jurisdiction. In the event the
foregoing terms and conditions conflict with any terms and conditions affixed to
any purchase order or otherwise specified by Licensee, UCit's acceptance of
Licensee's order and delivery of the Software is solely on the express
understanding and condition that the foregoing terms and conditions will be the
only terms and conditions that will apply to such order and UCit hereby objects
to any conflicting or additional terms and conditions. This Agreement becomes
effective on the date of last signature below ("Effective Date").
9. INDEMNIFICATION
Intellectual Property Indemnification. Upon notification in writing of any
written claims against Licensee based on an allegation that Licensee's license,
possession or use of the Software or use of UCit's Services infringes or
misappropriates any patent, copyright, trademark, trade secret or other
intellectual or proprietary right ("Intellectual Property") of any third party,
UCit shall protect, defend, indemnify and hold Licensee harmless and settle or
defend any such claims and shall pay all costs, fees (including attorneys',
consultants' and expert witnesses' fees and expenses and court costs) and all
direct, indirect, special, incidental, consequential and any other damages
assessed by a court of competent jurisdiction ("Indemnification"). This right to
Indemnification also applies to any threatened action arising from Licensee's
possession or use in a country that UCit expressly licensed to Licensee the use
of the Software. This indemnification does not apply to modification of the
Software's source code by Licensee not approved by UCit. Should the Software
become, or in UCit's opinion, be likely to become, the subject of a claims of
such infringement, or is held to constitute an infringement or misappropriation,
UCit may at its expense and option either: (a) procure for Licensee the right to
continue to use the Software as contemplated hereunder without material loss of
functionality, or (b) replace or modify the Software and/or modify its use to
make its use non infringing while remaining either acceptable to Licensee or
without material loss of functionality, or (c) refund to Licensee the license
fees paid by it under this Agreement for the infringing Software (plus
reasonable cost of deinstallation but less a reasonable rental charge equal to
one sixtieth (1/60) of the license fees for each month of use from date of
delivery), in which case this Agreement shall terminate with respect to the
Software or part thereof removed. UCit shall make reasonable efforts to exercise
option (a) or option (b) before exercising option (c). For purposes of this
Section 9: "Indemnity", "Licensee" means Licensee, its parents, subsidiaries,
affiliated companies, and the officers, directors, employees, workers, agents,
servants and invitees of Licensee, its parents, subsidiaries, Affiliates and
Eligible Recipients.
10. CONFIDENTIALITY
For the purpose of this article, "Confidential Information" means any financial,
statistical, personnel and other business data relating to either Party's
business, and any other information which is obviously confidential or
identified as confidential by either Licensee and/or UCit including any
Licensee's or UCit's proprietary methodology, template, tool kit, training
material, software and tool, method, concept, know-how, structure, technique,
invention, development, process, discovery, improvement and proprietary data
(including personal data) and program. The Receiving Party shall treat the
Disclosing Party's Confidential Information as confidential and shall prevent
disclosure of the Disclosing Party's Confidential Information to anyone, except
on a confidential basis to its employees and contract employees, agents,
consultants, subcontractors or to Licensee's parents, subsidiaries, Affiliates
or Eligible Recipients, and their employees and contract employees, who need to
know in connection with this Agreement or who need to know to host the Receiving
Party's software, and who are bound to preserve the confidentiality thereof.
These efforts to maintain confidentiality shall be reasonable and shall include
taking at least such steps to protect the Confidential Information as the
Receiving Party takes to protect its own similar valuable confidential and
proprietary information. The Receiving Party and its personnel shall use such
Confidential Information only for the purpose for which it was disclosed and
shall not otherwise use or exploit such Confidential Information for its own
benefit or the benefit of another without the written consent of the Disclosing
Party. Unless Confidential Information becomes the property of Licensee pursuant
to this Agreement, all written, including electronic versions, of the
Confidential Information, and any copies thereof, shall remain the property of
the Disclosing Party and shall be returned to the Disclosing Party or deleted in
accordance with written request of the Disclosing Party. However, electronic
versions of the Confidential Information that have been automatically backed up
with other data of the Receiving Party shall be kept confidential and deleted in
the normal schedule of backups and deletions. Neither Party's Confidential
Information provided under this Agreement shall be used by the Receiving Party
after termination of this Agreement.
11. SUPPORT SERVICES AND UPGRADES
Licensee shall have the option of subscribing to software support for any or all
of the Software with cost and coverage as set forth in the applicable order
form(s) (the "support Services" as described and regulated under the UCit
Software Standard Support Services Agreement). In the event Support Services are
terminated, Licensee shall still retain the right and license to continue using
the Software in the latest version prior to termination of Support Services. All
payments shall be due thirty days from receipt of a correct invoice if renewed.
If Licensee terminates Support Services, it may be renewed later by payment of
125% of the current annual charge for each lapsed year (or part thereof pro
rata), and Licensee will be entitled to receive the then current version or
back-copies of all amendments and any other materials or documents that would
otherwise have been issued.
The annual cost of said Maintenance (Support Services and entitlement to new
version and releases of the Software) shall be no more than twenty (20%) of the
net software license fee set forth for Perpetual License and in no event can
increase by more than five percent (5%) in any one-year period. Licensee may
renew Maintenance for subsequent one-year terms at its option. At least sixty
days prior to the expiration of the current annual Maintenance period, Licensor
shall invoice Licensee for the renewal Maintenance fee. Licensee shall have
thirty days to pay the invoice and renew Maintenance for another year or, by
failure to pay the invoice by the end of the term, terminate Maintenance. In the
event Maintenance is terminated, Licensee shall still retain the right and
license to continue using the Software in the latest version prior to
termination of Maintenance.
12. NO MEDIA RELEASES
There shall be no media releases, public announcements or public disclosure
(including, but not limited to, promotional or marketing material) by either
party, or by their employees or agents, relating to this Agreement or any
project carried out hereunder or that a contractual relationship exists between
the parties, unless both parties have approved the release in writing prior to
any release.
13. NOTICES
Any notice required or permitted by this Agreement to be given to either Party
shall be effective upon receipt if given in writing and sent by facsimile or
mailed by first class, certified mail, postage prepaid, to the addresses
indicated below. Receipt shall be presumed received five business days after
mailing by first class mail or presumed received the next day if sent by
over-night courier. Certified mail shall be deemed received upon the earlier of
actual receipt of such notice or when notice is given to the addressee of its
delivery. In addition, notice via e-mail to each Party's primary contact with
the other should also be given. Either Party may designate a different address
than that given below by notice to the other Party in accordance with this
paragraph. UCit - 97, rue de Freyr, Le Genesis, 34000 Montpellier, FRANCE.
E-mail: admin@ucit.fr