End User License Agreement (EULA) 2019 version, BV
Martello End User Software License Agreement
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING “I ACCEPT,” OR BY INSTALLING, DOWNLOADING OR OTHERWISE USING THE LICENSED SOFTWARE YOU EXPRESSLY ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” SHALL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE LICENSED SOFTWARE.
“Agreement” means this End User Software License and Data Processing Addendum.
“Data Protection Law” means all data protection and privacy laws applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.
“Documentation” means the end user reference and operating manuals that Martello and its suppliers publish relating to the Software.
“End User” means a person or entity authorized by Customer or on Customer’s behalf to use the Software or Services.
“EU Data Protection Law” means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”); and (ii) on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”).
“Martello” means Martello Technologies, on its own behalf and on behalf of its subsidiaries, divisions, affiliates and/or other authorized entities.
“Personal Data” means any information relating to an identified or identifiable natural person.
“Services” means the online services provided by Martello through which a Customer may access features and functions of the Software.
“Software” means MarWatch, MPA, Elfiq OS, Elfiq Central, or other Martello software and all setup, installation and configuration software, together with any related software downloaded by You, and includes any and all copies, modifications, updates, upgrades, firmware, enhancements and new releases of the Software.
“Software License Key” means a software activation file, and/or software activation key code, and/or License ID, and/or serial number issued to You by Martello and which may be required to install and/or activate the Software.
“Subscription License” means a time-limited license to use the Software.
“Warranty Period” means ninety (90) days from the earlier of the date (a) You purchase the license for the Software; or (b) the Software is downloaded by You or on Your behalf.
“You“, “Your“, “Customer” refers to any person or entity that acquires or uses the Software or Services.
2. Grant of License
2.1 Upon payment of the applicable license fee Martello grants to You a limited non-exclusive, non-transferable license to use the Software during the applicable Subscription Term.
2.2 You may not, and may not cause or permit others to: (a) remove or modify any program or services markings or any notice of Martello’s or its licensors’ proprietary rights; (b) modify, make derivative works of, disassemble, reverse compile, reverse engineer, reproduce, distribute, or republish any part of the Software or Services except as expressly provided under this Agreement.
2.3 You may not copy the Software except for a reasonable number of machine-readable copies of the Software for backup or archival purposes and except as expressly permitted in the License section above. You may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on the Software. You are not granted any rights to any trademarks or service marks of Martello. Martello retains all rights not expressly granted to You.
2.4 Use of the Software may be subject to the issuance of a Software License Key, which will be conveyed to You upon payment of the applicable license fees for the Software or accompanying software, including any extensions thereof.
3. Proprietary Rights
3.1 Martello retains all right, title, and interest in and to the Software and related copyrights, trade secrets, patents, trademarks, and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals, and extensions of such rights. No title to or ownership of the Software or Documentation or any right therein other than expressly set out herein is transferred to You. You will not infringe any proprietary right of Martello or its suppliers and will take appropriate steps for the protection of such rights.
3.2 If You breach any of your obligations under this section, Martello will suffer irreparable harm, not compensable by damages, and may seek injunctive or other equitable relief.
4. Open Source Software
4.1 The Software may include third party software that is distributed or otherwise made available as “free software”, “open source software” or under a similar licensing or distribution model (“Open Source Software”). If applicable, Open Source Software is distributed or made available under the terms of the open source license agreements referenced in the applicable distribution or the applicable help, notices, about or source files. Copyrights and other proprietary rights to the Open Source Software are held by the copyright holders identified in the applicable distribution or the applicable help, notices, about or source files.
5.1 You agree to indemnify and hold Martello, its affiliates, subsidiaries, parent companies, agents, partners, officers, directors, employees, shareholders, licensors, and any third party distributors harmless from and against any and all damages, losses, costs including attorney fees and expenses resulting from any violation by you of this Agreement or asserted by any third party due to or arising out of your use of or conduct with respect to the Software or Services.
6. Limited Warranty
6.1 Martello warrants that, for the Warranty Period, the media and hardware, if any, on which the Software is delivered will be free of defects and that if properly used the Software (excluding for the purposes of this warranty any Open Source Software) will substantially conform to the description contained in the applicable Documentation.
6.2 Except for the preceding express limited warranty, to the maximum extent permitted by applicable law, Martello provides the Software without any warranties of any kind, express, implied, statutory, or in any other provision of this Agreement or communication with you, and Martello specifically disclaims any implied warranties of merchantability, quality, fitness for a particular purpose, title and non-infringement. Martello does not warrant that the Software is error-free or that defects will be corrected.
6.3 Martello does not warrant or represent that the Software or Services are immune from fraudulent or unauthorised intrusion or use. Martello disclaims and will not be liable for any loss, damage, injury or non-performance, cost or expense directly or indirectly occasioned thereby.
7. High-risk Activities
7.1 The Software and Services are not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage.
8 Usage Information
8.1 Martello may collect information about Your use of the Software and Services. (“Usage Information”).
8.2 By way of example, and not intended to be limiting, Usage Information which may be collected by Martello includes feature usage metrics, OS version, configurations, crash/issue types and other counters, that helps improve the usability, performance and utility of the software.
8.3 Martello may collect other pertinent information to enable Martello to enforce this Agreement, to comply with the law, or to comply with legal process. You may not under the terms of this agreement alter the Software in any manner that disables or restricts the ability of the Software to provide Martello with this information.
9. Personal Data
9.1 Martello may collect Personal Data from Your use of the Software or Services and You hereby agree to the collection. By way of example, and not intended to be limiting, Personal Data collected by Martello includes IP addresses, email addresses, telephone numbers, call detail records, voice quality records, and subscriber names associated with telephone numbers.
9.2 The collection of Personal Data is for the provision of the Services to Customer as specified in the Agreement.
10. Data Protection
10.1 Both parties will comply with the requirements of Data Protection Law, as expressed in the Data Processing Addendum, which forms an integral part of this Agreement.
11.1 Fair Usage. Customer acknowledges and agrees that while Martello may not currently have set a fixed upper limit on the number of transmissions sent or received through the Services or on the amount of storage space used for the provision of any Service, such fixed upper limits may be set by Martello at any time, at Martello’s discretion.
11.2 Service Availability. Martello will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) scheduled downtime or (b) any unavailability caused by circumstances beyond Martello’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or internet service provider failures or delays. Customer shall be fully responsible for all internet access and connectivity issues to the Services.
12. Limitations of Liability
12.1 To the maximum extent permitted by applicable law, in no event will Martello be liable for any lost profits or business opportunities, loss of use, business interruption, loss of data, or any other indirect, special, incidental, or consequential damages under any theory of liability, whether based in contract, tort, negligence, product liability, or otherwise. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the preceding limitation may not apply to You.
12.2 Martello’s liability under this Agreement will not, in any event, exceed the fees, if any, paid by You to Martello for the Software licensed by You, or Services provided to You, under this Agreement. The foregoing limitations shall apply to the maximum extent permitted by applicable law, regardless of whether Martello has been advised of the possibility of such damages and regardless of whether any remedy fails its essential purpose.
13. Export Controls
13.1 You agree to comply fully with all relevant export laws and regulations of Canada, United States, and Europe and any other applicable export laws and regulations to ensure that the Software is not exported directly, or indirectly, in violation of such laws.
14. U.S. Government Restricted Rights
14.1 If You are acquiring the Software on behalf of any unit or agency of the United States Government, the following provisions apply.
15.1 Martello does not provide any support services under this Agreement. This Agreement does not give You any rights to any updates or upgrades to the Software or to any extensions or enhancements to the Software developed by Martello at any time in the future.
16. Entire Agreement, Governing Law and Venue
16.1 This Agreement sets forth the entire agreement and understanding between You and Martello relating to Your use of the Software and supersedes all prior or contemporaneous communications, understandings, expectations, representations, discussions, undertakings or agreements with respect to the Software.
16.2 This Agreement, its validity, construction, effect and enforcement, and the relationship between Martello and You shall be governed in accordance with the laws of the Province of Ontario and the applicable federal laws of Canada, without regard to conflict of law principles.
16.3 You agree to submit to exclusive jurisdiction in the Province of Ontario, and You expressly waive all defenses to jurisdiction.
17. Term and Termination
17.1 This Agreement takes effect when you install the Software and remains in effect until the earlier of termination or expiration. Martello may terminate this Agreement, without notice, if (a) you fail to comply with any term or condition of this Agreement; (b) if a bankruptcy or insolvency proceeding is filed by or against you; (c) you make an assignment for the benefit of creditors; or (d) an event or proceeding analogous to those set out in (b) or (c) above occurs or takes place in any jurisdiction. You may terminate this Agreement at any time. This Agreement expires at the end of the Subscription Term. In the event of either termination or expiration, you must destroy all copies of the Software and any applicable Software License Key. In addition you must remove all copies of the Software from the Server(s) on which it is installed. The provisions contained herein shall survive termination of this Agreement.