ASDEQ LABS LICENSE TERMS
asdeqdocs® ENTERPISE MOBILE CONTENT MANAGEMENT SOLUTION SOFTWARE
These License terms are an agreement between the Business/Customer (you) and Asdeq Labs PTY LTD (or, IF YOU Are Located IN THE UNITED STATES, ASDEQ LABS, INC.) (Asdeq Labs). They apply to the software named above and any updates, enhancements or support services.
By clicking on the “Accept” button below, you agree to the terms of this License (as amended by Asdeq Labs from time to time and published on its website at http://docs.asdeqlabs.com/docs/display/KB/EULA) which will bind you and all your employees AND AGENTS. For the avoidance of doubt, if there is any INCONSISTENCY between these terms and the terms published on asdeq labs’ website, the terms on the website prevail.
If you do not accept the terms of this License, you must immediately discontinue the installation and/or use of the software. If you purchased the software from an authorised Distributor or Reseller please contact them to determine the applicable refund or credit policy.
In consideration of you agreeing to abide by the terms of this License, Asdeq Labs hereby grants you a non-exclusive, non-transferable license to use the software in accordance with clause 2 (License), for twelve (12) months from the date your unique product activation key is issued (License Term). On or before the expiry of the License Term you will be given an option to renew your License. If you choose not to enter into an agreement to renew your License then most features of the software will cease to operate.
You have no right to use the software unless the software is activated with a valid product registration key.
2. Scope of License
Asdeq Labs grants you the right for the License Term to install and operate one production instance of the software, accessible by multiple networked computers on your computer network. You may make a reasonable number of backup copies and may operate an instance of the software in parallel as a backup in case the first instance fails.
Your license is for the number of individual named users you agreed to at the time you purchased the software. Each user is licensed to operate the software on one web browser and up to five (5) mobile devices simultaneously (User).
You agree that the software will only be used by you for the benefit of Users and that it may not be shared or used for the benefit of other employees, contractors or persons generally with access to your server. For the avoidance of doubt, you are responsible for maintaining and updating the list of Users.
In addition to any other restrictions set forth herein, you will not, and will not permit any third party, to:
i. modify or create any derivative work of any part of the software or documentation;
ii. rent, lease, or loan the software;
iii. disassemble, decompile or reverse engineer the software or otherwise attempt to gain access to the source code of the software; or
iv. sell, license, sublicense, publish, display, distribute, assign or otherwise transfer to a third party the software or documentation, any copy thereof, or any rights thereto, in whole or in part, without Asdeq Labs’ prior written consent.
‘Documentation’ is the Asdeq Labs technical and user documentation, including any release notes provided with enhancements or updates.
3. Support Services
Asdeq Labs will provide you the following support services for twelve (12) months from the License Activation Date.
i. documentation on Asdeq Lab’s website as amended and updated from time to time;
ii. provision of Updates and minor Enhancements to the software;
iii. third level support accessed via the Asdeq Labs website, including access to a knowledge base and other technical support material (Support Services).
Asdeq Labs will not be obligated to provide Support Services if you have modified the software (except as expressly authorized by Asdeq Labs).
By using the software you consent to Asdeq Labs or Asdeq Labs’ duly authorized representative being able to (upon reasonable prior written notice), examine your records and computer system during your normal business hours to verify your use of the software complies with the terms of this agreement (Verification).
Any Verification will be at Asdeq Labs’ sole expense unless it reveals that your use of the software is in breach of this agreement in which case you will reimburse Asdeq Labs for all reasonable expenses of the examination.
5. Intellectual Property
For the purposes of this agreement “intellectual property” means all intellectual and industrial property rights including patents, know-how, registered trade marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trade marks, rights to prevent passing off or unfair competition, copyright, database rights, topography rights, domain names and any other rights in any invention, discovery or process, in each case in all countries, together with all renewals and extensions, from time to time.
Asdeq Labs and its licensors own and will retain all proprietary rights, including any and all intellectual property rights, in and to the software and documentation delivered to you under this agreement.
You acknowledge that the License does not provide you with title to or ownership of the software or documentation, but only a right of limited use as expressly granted under these terms.
You have no rights to the source code for the software and you agree that, except to the extent otherwise required by law or expressly provided for in this agreement, only Asdeq Labs has the right to maintain, enhance, or otherwise modify the software.
On the request of Asdeq Labs or its Distributor or Reseller, you agree to provide references, case studies and testimonials on the product for the purpose of the promotion of the software to 3rd parties including partners and customers and potential new partners and customers. The Customer agrees to the use of its name, logo, case studies and testimonials in Asdeq Labs’ web page and other appropriate marketing material.
You acknowledge that Asdeq Labs does not warrant that the software can be rendered error-free.
Subject to the above, Asdeq Labs represents and warrants that for the first ninety day (90) period of the License Term, the software will perform materially as set out in the documentation.
The warranty is subject to you having complied with your obligations under this agreement and is not a warranty that the software does not operate where the substantial non-performance arises in any respect from the nature or operation of the equipment on which the software is used or the use of the software with any software or service not provided by Asdeq Labs.
To the extent permitted by law, your exclusive remedy for any breach by Asdeq Labs of the warranty given in this section 7 will be for Asdeq Labs, at its election, to either:
i. repair or replace the software so that the software performs materially as described in the documentation, at no charge; or
ii. accept return for a refund of the amount paid, if any, by you to Asdeq Labs or its Distributor or Reseller.
To the extent permitted by law, the express representations and warranties in this section 7 are the only representations and warranties made with respect to the software and any services performed hereunder, express or implied, and are made in lieu of all other representations and warranties, including but not limited to, implied warranties of fitness for a particular purpose and satisfactory quality.
In addition to and without limitation of the foregoing, Asdeq Labs expressly disclaims any warranty with respect to the quality or continuity of third-party telecommunication or information systems or services, or server connection speeds or that the software is error-free. This disclaimer of warranty constitutes an essential part of this agreement.
Modification of the software by you (other than modifications which are permitted by law or by the terms of this agreement) will void this warranty.
8. Limitation of Liability
Nothing in this agreement excludes or limits liability in respect of any claims:
i. for death or personal injury caused by the negligence;
ii. resulting from fraud including fraudulent misrepresentation;
iii. for the use or distribution of the software otherwise than in accordance with this agreement;
iv. for which liability may not otherwise be lawfully excluded or limited; or
v. for Asdeq Labs’ indemnity provided under section 9.
Subject to the above, in no event will either party be responsible or liable to the other for any losses arising out of or in connection with this agreement (whether under contract, tort including negligence, statute or otherwise) for:
i. any indirect, incidental, consequential, special, exemplary, punitive damages or losses arising under this agreement;
ii. including for any loss of profits, loss of revenue, loss resulting from interruption of business or loss of use or data, in each case whether direct or indirect, even if that party has been advised of the possibility of such damages or losses.
Subject at all times to the above, in no event shall the aggregate liability of Asdeq Labs arising out of or relating in any way to this agreement or its implementation exceed the total amounts paid to Asdeq Labs in relation to this agreement.
Asdeq Labs agrees to defend, indemnify and hold you and your officers, directors, employees, and agents, successors and permitted assigns (Indemnified Parties) harmless from all liabilities, claims, damages, losses, costs, expenses, demands, suits and actions of third parties (including without limitation reasonable attorneys’ fees) (collectively Damages) arising from or in connection with any claim that the software infringes any copyright, trade secret or trademark of any third party.
Asdeq Labs will have no liability or obligation to you hereunder with respect to any infringement of the intellectual property of a third party to the extent based upon and due to:
i. use of the software in combination with devices or products not provided by Asdeq Labs except to the extent specified or required by Asdeq Labs or the documentation;
ii. use of the software in an application or environment for which such software is not designed or contemplated; or
iii. modifications, alterations or enhancements of the software not created by or for Asdeq Labs.
Should the software become, or in Asdeq Labs’ opinion, be likely to become the subject of a claim or an injunction preventing its use as contemplated herein, Asdeq Labs may, at its option:
i. procure for you the right to continue, as applicable, using the software;
ii. replace or modify the software so that it becomes non-infringing, provided that such replacement or modification does not impair the functionality of the software: or
iii. if i. and ii. above are not commercially reasonable for Asdeq Labs, then;
iv. Asdeq Labs may elect to terminate the License and refund you the pro rata amount paid to Asdeq Labs in respect to this agreement.
v. This section 9 states the entire liability of Asdeq Labs with respect to infringement of third party intellectual property rights by the software or any part thereof or by their operation.
You will notify Asdeq Labs promptly of any Damages or claims for Damages in respect of which you or any other Indemnified Party intends to claim such indemnification, and Asdeq Labs will assume the defence of any related third party action, suit or proceeding.
The indemnity agreement in this section 9 will not apply to amounts paid in settlement of any claim, loss, damage or expense if such settlement is effected without the consent of Asdeq Labs, which consent shall not be withheld or delayed unreasonably.
The Indemnified Parties will provide reasonable cooperation with Asdeq Labs and its legal representatives at Asdeq Labs’ expense in the defence of any matter covered by this indemnification.
The failure of you to deliver prompt notice to Asdeq Labs after becoming aware of any such matter, if prejudicial to Asdeq Lab’s ability to defend such action, shall relieve Asdeq Labs of any liability to the Indemnified Parties under this section 9 with respect to such matter.
This agreement will continue for the License Term until terminated:
i. pursuant to entering into a new License agreement; or
ii. under sections 9, 10 or 11.
You or Asdeq have a right to terminate this agreement if the other party is in default of any material obligation under this agreement, which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) calendar days after receipt of written notice of such default (or such additional cure period as the non-defaulting party may authorise in writing).
If you, or an employee or agent of yours, breaches any provision in section 2, you agree that Asdeq Labs may immediately terminate your License and this agreement with no refund of any amount paid for the software and in addition to any other remedies it be entitled to under law.
You agree that if you are in default of your agreement with the Distributor/Reseller or Installer of the software that party may notify Asdeq Labs who may immediately suspend and/or terminate your License and this agreement with no refund of any amount paid for the software, and you will hold Asdeq Labs harmless from any associated loss or damage.
Either you or Asdeq Labs may terminate this agreement by written notice to the other, if the other party
i. makes a general assignment for the benefit of creditors or summons a meeting or creditors;
ii. files a voluntary petition of bankruptcy;
iii. suffers or permits the appointment of a receiver, for its business or assets;
iv. becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign which is not dismissed within sixty (60) days; or
v. has been dissolved, liquidated, or ceased doing business.
In the event this agreement is terminated all:
i. rights of you, and licenses granted, in section 1 terminate;
ii. other rights and obligations of both parties survive the said termination; and
iii. copies of the software and documentation in your possession will be returned to Asdeq or destroyed by you.
Force Majeure. Neither party will be liable for any failure to perform this agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection, inability to obtain labour, materials, equipment, transportation or energy sufficient to meet needs, or any other cause beyond the reasonable control of the party invoking this provision (Force Majeure Event). Notwithstanding the foregoing, in the event that any Force Majeure Event prevents the performance of any material obligation of a party for a period of three (3) months or more, the other party may terminate this agreement by written notice. For the avoidance of doubt, an obligation to make payment due under this agreement is not constitute a Force Majeure Event.
Assignment. The Customer will not assign or otherwise transfer any of its rights and obligations under this agreement except with the prior written consent of Asdeq Labs, which consent shall not be unreasonably withheld, and any such attempted assignment or transfer without such consent will be void; provided, however, that you may assign this agreement without the aforementioned consent to a successor to its business in connection with the merger, consolidation, or sale of all or substantially all of its assets.
Governing Law. If you acquired the software in the United States, this agreement is governed by and construed in accordance with the laws of the State of California and the other federal laws of the United States of America and each party irrevocably and unconditionally submits to the non- exclusive jurisdiction of the courts of the State of California. If you acquired the software outside of the United States, then the law of Tasmania, Australia applies and each party irrevocably submits to the non-exclusive courts of Tasmania, Australia.
Taxes. You are responsible for the payment of any applicable sales, use, and other taxes due pursuant to the purchase of the License, and you agrees to pay (or reimburse Asdeq Labs to the extent that Asdeq Labs is required by law to collect and pay such taxes) any such taxes due in connection with this agreement, excluding taxes on Asdeq Labs’ income, for which Asdeq Labs is solely responsible.
Entire agreement. This agreement contains the entire agreement between the parties relating to the matters covered by it, superseding all other oral or written representations, understandings, proposals or other communications between the parties. Each of the parties acknowledges that it does not enter into this agreement on the basis of and does not rely upon any statement, representation, or warranty (in any case whether oral, written, express or implied) given by any person which is not expressly contained or referred to in this agreement. Each party agrees that the only remedy available in respect of any misleading or false warranty or other term contained in this agreement is a claim for breach of contract under this agreement. Nothing in this clause 10 excludes or limits either party’s liability to the other for fraud including fraudulent misrepresentation.
Variation. The terms of this agreement may be varied by Asdeq Labs publishing varied, amended or new terms on its website. You agree to the varied terms by your continued use of the software.
Inconsistencies. If there is any inconsistency between these terms and the terms published at http://docs.asdeqlabs.com/docs/display/KB/EULA then the terms on website prevail to the extent of that inconsistency.
Severability. If one or more of the provisions of this agreement are at any time found to be invalid by a court, tribunal or other forum of competent jurisdiction, or otherwise rendered unenforceable, such provision or provisions will be severable from this agreement so that the validity or enforceability of the remaining provisions of this agreement, or the validity of the provision(s) in question in any other jurisdiction, is not thereby affected.
No Waiver. No failure on the part of a party hereto to exercise, and no delay in its exercise of, any right, power or privilege hereunder operates as a waiver thereof. Moreover, no single or partial exercise by a party of any right, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, power or privilege. Any waiver of any breach of this agreement will only have full force and effect when in writing and signed by the waiving party in respect of each and every waiver.
Third party rights. This agreement does not create or confer any rights or benefits enforceable by a person not a party to it unless expressly provided herein. The parties retain the right to vary and/or rescind this agreement or any of its terms without obtaining consent from any third party who is expressly granted any right or benefit under this agreement.
Online Terms & Conditions May 2013
Asdeq Labs Pty Ltd ACN 151 290 461 of Level5, 29 Elizabeth Street, Hobart TAS 7000, Australia
Asdeq Labs, Inc. 1753A Stockton Street, San Francisco CA 94133, USA