END USER LICENSE AGREEMENT
Finance Security End User License Agreement
This Finance Security End User License Agreement (“Agreement”) is a legal Agreement between you (either an individual or an entity) (“Customer”) and Finance Security Inc., a Delaware corporation whose registered office address is at 17 Battery Place, Suite 1307, New York, NY 10004 (hereinafter referred to as “Licensor” or “Finance Security”) regarding [description of the software] (hereinafter referred to as “Finance Security Software”) made available by Finance Security for download.
Finance Security offers the Customer a free trial of its software for thirty (30) days. By ordering this free trial version the Customer has to decide whether he or she wants to continue with a subscription for one year with two (2) months free of charge or with a subscription on a monthly basis. This Agreement is concluded by the parties after the order process.
The Customer accepts this Agreement by clicking on the checkbox or by using the Finance Security Software:
The Customer must register for an account prior to use the Finance Security Software. Thereby, the Customer is responsible for the security of his or her account and also for any actions taken in connection with the account. The Customer must give written notice to Finance Security in the event of any unauthorized use of the account. Finance Security disclaims the liability for any actions or omissions. The Customer is not allowed to create multiple accounts. The email address indicated in the account is used by Finance Security to contact the Customer.
- OBJECT OF AGREEMENT; LICENSE TERM 2.1
Against payment of the applicable license fee the use of the license is limited to the period of time during which the Customer shall be entitled to use the particular Finance Security Software as determined in additional license authorization and otherwise to be terminated by Finance Security at any time (License Term). 2.2
The object of this Agreement is to make the Finance Security Software and the documentation available for the License Term. Upon acceptance of the Agreement, the Licensor shall enable the Customer to download the Finance Security Software. 2.3
The Licensor is not responsible for the installation and configuration of the Finance Security Software which is to be done by the Customer in accordance with the documentation or other instructions provided to the Customer by the Licensor.
- LICENSE 3.1
The Licensor grants to the Customer a non-exclusive, non-transferable, non-assignable and non-perpetual limited licence to install and use the Finance Security Software for the License Term in accordance with the terms of this Agreement. 3.2
The Finance Security Software, and any versions, updates or maintenance releases of any component thereof, will be delivered only through an electronic transfer. 3.3
The Customer shall not:
(a) sub-license, assign or novate the benefit or burden of its obligations under this Agreement in whole or in part;
(b) allow the Finance Security Software to become the subject of any charge, lien or encumbrance; and
(c) deal in any other manner with any or all of its rights and obligations under this Agreement, without the prior written consent of the Licensor
The Customer shall permit the Licensor or someone appointed by the Licensor (e.g. the Reseller) to inspect and have access to any premises (and to the computer equipment located there) at or on which the Finance Security Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this Agreement, provided that the Licensor provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.]
The Licensor may provide the Customer with all Maintenance Releases generally made available to its customers during the License Term. Such releases shall be deemed Finance Security Software under this Agreement.
Finance Security is not obligated to provide maintenance and support services for the Finance Security Software licensed under this Agreement.
- PAYMENT PROCESS
With the exception of any free trial period, the customer is required to pay a fee for the right to use the Finance Security Software. The customer is obligated to provide a credit card and his name and address.
Finance Security [the provider] will charge the Customer’s credit card on a monthly basis. Finance Security will provide the invoice document as a pdf-file to the customer. [The payment process will be conducted by “provider”]. The Customer agrees that Finance Security is allowed to provide the credit card and payment information to [the provider].
All Fees are due and payable ten (10) days from receipt of invoice by Customer. Any Fees not paid when due shall bear interest at a monthly rate of 1.5%. The Customer is responsible for paying all reasonable expenses and attorneys’ fees that Elastic incurs in connection with collecting unpaid amounts that are past due.
Finance Security may change the fees and payment policies at any time, provided that such changes will apply upon the start of the next billing cycle. Changes to the fees or payment policies will be communicated via the email address indicated in the registered account.
The Customer shall, during the term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any Confidential Information as described in 3.2 which may become known to it from the Licensor and which relates to the Licensor or any of its Affiliates, unless that information is public knowledge or already known to the Customer at the time of disclosure, or subsequently becomes public knowledge lawfully other than by breach of this Agreement, or subsequently comes lawfully into the possession of the Customer from a third party. The Customer shall use its reasonable endeavours to prevent the unauthorised disclosure or copying of any Confidential Information.
Confidential Information means the Finance Security Software, modifications, and the terms and conditions of this Agreement. Customer expressly agrees that all information in connection with the Finance Security Software is Confidential Information.
Each party shall immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested by such other party.
This clause shall survive termination of this Agreement, however arising.
- CUSTOMER’S RESPONSIBILITY
The Customer agrees to comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Services, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data. The Customer agrees to comply strictly with all U.S. export laws and assumes sole responsibility for obtaining licenses to export or re-export as may be required. Any unauthorized use of the Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. The Services may use encryption technology that is subject to licensing requirements under U.S. Export Administration Regulations, 15 C.F.R. Part 730-774 and Council Regulation (EC) No. 1334/2000.
- DISCLAIMER OF WARRANTIES
Finance Security disclaims all warranties, conditions or other terms, express, implied or statutory or otherwise, with regard to the Finance Security Software or any other materials provided under this Agreement. Furthermore, Finance Security disclaims all other warranties including without limitations the implied warranties of merchantability, fitness for a particular purpose and noninfringement and those arising from a course of dealing or usage or trade. All such warranties are excluded to the fullest extent permitted by law.
The Finance Security Software is provided on an “as is” and “as available” basis.
- LIMITATION OF LIABILITY
The Licensor shall only be liable for wilful misconduct or gross negligence.
In case of slight negligence, the Licensor shall only be liable for breach of material obligations and the liability of the Licensor shall be limited to the typically foreseeable losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer). Finance Security shall have no liability for any consequential, incidental, special, indirect, punitive or exemplary damages, including without limitation typically unforeseeable, special damage even though the Licensor was aware of the circumstances in which such special damage could arise, loss of profits, business interruption, loss of anticipated savings, loss of business opportunity, loss of goodwill, loss or corruption of data or for any claim or demand by any other party, however caused and (to the fullest extent permitted by law) under any theory of liability.
The total liability of the Licensor (including the liability for defective or delayed delivery of the Finance Security Software), whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed $ 500.
- TERM AND TERMINATION
This Agreement will be effective as of the Effective Date and, subject to the provisions of clause 6.2, will continue for the License Term.
Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, either party may at any time terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party terminates or suspends its business, or becomes subject to any bankruptcy or insolvency proceedings, becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or has been wound up or been liquidated voluntary or otherwise.
- EFFECT OF TERMINATION
On termination for any reason:
(a) all rights granted to the Customer under this Agreement shall cease;
(b) the Customer shall cease all activities authorised by this Agreement;
(c) the Customer shall immediately pay to the Licensor any sums due to the Licensor under this Agreement; and
(d) the Customer shall immediately destroy or return to the Licensor (at the Licensor’s option) all copies of the Finance Security Software, Documentation and all Licensor’s Confidential Information then in its possession, custody or control and, in the case of destruction, certify to the Licensor that it has done so.
The following provisions will continue to apply upon termination of the Agreement: Clause 3 (Confidentiality), Clause 5 (Limitations of Liability), Clause 7 (Effect of Termination), Clause 8 (Intellectual Property) and Clause 10 (General).
- INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights of any kind existing anywhere in the world whether or not registered and all applications, renewals and extensions of the same including, without limitation, copyright, database rights, design rights, patents, trademarks, service marks, trade names and other rights in goodwill, rights in know-how, trade secrets and other Confidential Information in and to the Finance Security Software belong, and shall belong, to Finance Security, its Affiliates and/or its licensors.
Without prejudice to the right of the Customer or any third party to challenge the validity of any Intellectual Property Rights of Finance Security the Customer shall not do or authorize any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of Finance Security and its licensors and shall not omit or authorize any third party to omit to do any act which, by its omission, would have that effect or character.
Other than the license expressly granted under this Agreement, neither party grants any license of, right in or makes any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in this agreement, the Customer shall have no rights in respect of any trade names or trademarks used by Finance Security in relation to the Finance Security Software or their associated goodwill, and the Customer hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, Finance Security and its licensors.
The Customer shall promptly give notice in writing to Finance Security in the event that it becomes aware of:
• any infringement or suspected infringement of any Intellectual Property Rights in or relating to the Finance Security Software; or
• any claim that any Product or the manufacture, use, sale or other disposal of any Product infringes the rights of any third party.
If any Infringement Claim is made, or in the Licensor’s reasonable opinion is likely to be made, against the Customer, the Licensor may at its sole option and expense:
(a) procure for the Customer the right to continue using the Finance Security Software (or any part thereof) in accordance with the terms of this license;
(b) modify the Finance Security Software so that it ceases to be infringing;
(c) replace the Finance Security Software with non-infringing software; or
(d) terminate this Agreement immediately by notice in writing to the Customer and refund any of the License Fees paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Finance Security Software to the date of termination) on return of the Finance Security Software and all copies thereof.
This clause constitutes the Customer’s exclusive remedy and the Licensor’s only liability in respect of Claims and, for the avoidance of doubt, is subject to aggregate cap of liability.
Customer shall not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without Finance Security’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Finance Security shall have the right to assign this Agreement, provided it gives written notice to the Customer.
Severability. In the event that any provision of this Agreement is found to be unenforceable or invalid under any applicable law or is so held by a court of competent jurisdiction, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision will be changed and interpreted so as best to accomplish the objectives of such unenforceable or invalid provisions within the limits of applicable law or applicable court decision.
Injunctive Relief. It is expressly agreed that a violation or breach of this Agreement will cause irreparable harm to either party and that a remedy at law may be inadequate. Therefore, in addition to any and all remedies available at law, either party may be entitled to any injunctive relief or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of this Agreement.
Governing Law. This Agreement shall be governed by, interpreted under and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed within the State of New York without giving effect to principles of conflicts of laws thereof and any United States federal law as applicable. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Any action, suit or proceeding to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in any Federal Court located in the Southern District of the State of New York or any New York State Court located in the Borough of Manhattan, and the Parties agree to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) and each party waives (to the full extent permitted by law) any objection it may have to the laying of venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding has been brought in an inconvenient forum. This Agreement will be governed in all respects by the substantial laws of State of New York and the federal laws of the United States and the place of jurisdiction for all claims shall be New York, NY, USA. Finance Security shall also be entitled to take legal action before the competent court having jurisdiction at the Customer’s registered office at its choice.
Authority. Each party warrants that it has full power and authority to enter into and perform its obligations under this Agreement; that this Agreement has been duly authorized by and is binding and enforceable upon such party; that the person signing this Agreement on that party`s behalf has been duly authorized and empowered to enter into this Agreement. Each party further acknowledges that it has read this Agreement, understands it and agrees to be bound by it.
Entire Agreement. This Agreement sets forth the entire understanding and agreement of the parties as to the subject matter of this Agreement. This Agreement supersedes any prior representations (except those made fraudulently) or collateral agreements with respect to the matter covered by this Agreement.
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