END USER LICENSE AGREEMENT (EULA)
PLEASE READ THIS END-USER LICENSE AGREEMENT (“EULA” OR “AGREEMENT”) CAREFULLY BEFORE DOWNLOADING, ACCESSING, INSTALLING OR USING THE KURMI SOFTWARE AND DOCUMENTATION (“SOFTWARE PRODUCT(S)”).
BY DOWNLOADING, ACCESSING, INSTALLING OR USING KURMI SOFTWARE AND DOCUMENTATION YOU AGREE TO THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT DOWNLOAD, INSTALL, ACCESS OR USE THE SOFTWARE. THIS EULA CONTAINS DISCLAIMERS OF
WARRANTIES AND LIMITATIONS OF LIABILITY AND EXCLUSIVE REMEDIES. THE PROVISIONS BELOW FORM THE ESSENTIAL BASIS OF OUR AGREEMENT.
This End-User License Agreement is a legal agreement between (a) CUSTOMER (either an individual or a single entity) and (b) Kurmi Software (“KURMI”) that governs your use of any Software Product, installed or made available by KURMI. The term “Software Product” means KURMI computer software and may include associated media, printed materials or electronic documentation.
1. Grant of license
Subject to the terms and conditions set forth in this Agreement, KURMI grants CUSTOMER a nonexclusive, nontransferable, non-sublicensable and revocable right and license to install and use an object code version of the Software Product in accordance with the related documentation solely for its own internal business operations. KURMI reserves all rights in the Software Product not expressly granted to CUSTOMER under this
Agreement.
Except in the case of a particular configuration for several servers, this license is intended to be used on a single specified server on which the Software Product is installed. This server, identified at the implementation phase, is registered in KURMI’s database and only this server may be used to manage the implementation of the Software Product and the database. The CUSTOMER must give prior written notification, receipt of which must be acknowledged by KURMI, of any change in the server. This license is personal. At any moment there is only one license holder who is also the only holder of the copy of the object code passed on in pursuance of this Agreement and of any subsequent copies made under the conditions set out below.
The CUSTOMER is permitted to make two copies of the Software Product and its documentation as backups, to carry out tests or for archiving purposes. The statement of copyright must be reproduced on each copy and each saved copy in such a way that the CUSTOMER is able to justify its existence in compliance with the provisions of
this Agreement.
All copies of the Software Product, in whatever form are the exclusive intellectual property of KURMI.
The source code of the Software Product shall be deposited within a French escrow agent called l’Agence Pour la Protection des Programmes (APP). The CUSTOMER may have access to the source code in case of amicable or judicial winding-up of KURMI without resumption of KURMI’s obligations by a third-party in respect of the use of
the Software Product. In this case, the CUSTOMER will have access to the source code solely for the needs set out above, detailed in its claim to the Agence pour la Protection des Programmes. In pursuance of its regulations, the board of arbitration will be called to examine both sides to ascertain the validity of this claim. The APP will only
pass on to the CUSTOMER the parts of the Software Product concerned. The CUSTOMER, in temporary possession of the Software Product source codes, will ensure that their use is solely reserved to the needs defined in its claim and will treat the source code as a confidential document.
The Software Product is licensed, not sold, to CUSTOMER by KURMI. KURMI and its suppliers own all right, title and interest in and to the Software Product and reserve all rights not expressly granted to CUSTOMER in this EULA. CUSTOMER agrees to refrain from any action that would diminish such rights.
2. Upgrades
To use a Software Product identified as an upgrade, CUSTOMER must first be licensed for the original Software Product identified by KURMI as eligible for the upgrade. After upgrading, CUSTOMER may no longer use the original Software Product that formed the basis for your upgrade eligibility.
3. Additional Software
This EULA applies to updates or supplements to the original Software Product provided by KURMI unless KURMI provides other terms along with the update or supplement which, in case of conflict with the terms of this EULA, will prevail.
4. License restrictions
CUSTOMER agrees that only up to that number of individuals (“End Users”) for whom it has purchased the requisite licenses in accordance with this Agreement and the applicable order, may access and use the Software. CUSTOMER hereby agrees it is liable for the actions of all End Users and is responsible for ensuring each End User complies with the terms and conditions set forth in this Agreement. Except as expressly permitted by this EULA, CUSTOMER may not:
(i) translate, modify the Software Product nor allow a third party to do so;
(ii) render or attempt to render inoperative any security measure integrated in the Software Product;
(iii) lease, loan, resell, sublicense, or otherwise distribute a Software Product;
(iv) use a Software Product to provide or operate Application Service Provider (ASP), service bureau, marketing,
training, outsourcing services, or consulting services, or any other commercial service related to the Software Products;
(v) use a Software Product to develop a product which is competitive with any of the Software Products;
(vi) permit third-party access to, or use of, the Software Products, except as expressly permitted herein;
(vii) attempt to create, derive, obtain the source code of the Software Product, or create a source code equivalent of or derivative of the Software Product, or cause or permit any third party to do so;
Upon Editor’s approval CUSTOMER is authorized to delegate the administration of the Software Product to a third party.
CUSTOMER shall notify KURMI if CUSTOMER becomes aware of any unauthorized third-party access to, or use of, a Software Product.
5. Proprietary rights
All intellectual property rights in the Software Product and user documentation are owned by KURMI or its suppliers and are protected by law, including but not limited to the Republic of France copyright, trade secret, and trademark law, as well as other applicable laws and international treaty provisions. The structure, organization and code of the Software Product are the valuable trade secrets and confidential information of KURMI and its suppliers. CUSTOMER shall not remove any product identification, copyright notices or proprietary restrictions from the Software Product.
6. Open source licensing, third party materials
The Software Product may be provided with open source software. CUSTOMER’s use of such open source software must be in compliance with the terms of the applicable open source license. Except as otherwise set forth in the applicable open source license(s), the open source software provided with the Services is provided “as is” and without representation or warranty of any kind. KURMI will not indemnify the CUSTOMER against any claim that open source software infringes a third party’s intellectual property right nor will KURMI be liable for any damages arising out of your use of the open source software.
The Software Product may also include components licensed from third parties (“Third Party Materials”). CUSTOMER agrees: (a) to use the Third-Party Materials solely with the Software Product and in the form provided by KURMI; and (b) not to modify or attempt to gain direct access to the Third-Party Materials. CUSTOMER acknowledges and agrees that the owner(s) of the Third-Party Materials retain all ownership and intellectual property rights therein.
7. Limitation on reverse engineering
CUSTOMER may not reverse engineer, decompile, disassemble or create derivative works of the Software Product, except and only to the extent that the right to do so is mandated under applicable law. Nothing contained herein shall be construed, expressly or implicitly, as transferring any right, license or title to CUSTOMER other than those
explicitly granted under this EULA. Unauthorized copying of the Software Product or failure to comply with the above restrictions will result in automatic termination of this Agreement and will constitute immediate, irreparable harm to KURMI for which monetary damages may be an inadequate remedy, in which case injunctive
relief will be an appropriate remedy for such breach.
8. Term
This EULA is effective unless terminated.
Without prejudice to the foregoing, the license shall be terminable by KURMI on written notice if: (a) the continued use or possession of the Software Product by CUSTOMER infringes KURMI’s or a third party’s rights; or (b) CUSTOMER commits a material or persistent breach of this EULA which CUSTOMER fails to remedy (if remediable) within 10 days of written notice from KURMI.
Without limiting its other rights or remedies, KURMI may terminate this EULA with immediate effect on notice to the CUSTOMER if a false or misleading information is provided in respect of the End Users. Upon termination of this EULA for any reason: (a) all rights granted to the CUSTOMER under this EULA shall cease; (b) the CUSTOMER must cease all activities authorized by this EULA; (c) CUSTOMER must immediately pay to KURMI any sums due to KURMI under this EULA; (d) the CUSTOMER must immediately delete or remove the Software Product from all computer equipment in the CUSTOMER’s possession, and at KURMI’s option, immediately destroy or return to KURMI all copies of the Software Product and any KURMI materials and documentation and , in the case of destruction, certify to KURMI that the CUSTOMER has done so; (e) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of this EULA which existed at or before the date of termination
or expiry. Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
9. Consent to use of data
CUSTOMER agrees that KURMI and its affiliates or suppliers may use technical information CUSTOMER provides in relation to support services related to the Software Product. KURMI and its suppliers agree not to use this information in a form that personally identifies any natural persons, except to the extent necessary to provide such services. In such case personal data will be processed as follow.
9.1
Under this article, the following capitalized terms, whether in the singular or the plural, shall have the meaning assigned below:
“Applicable Data Protection Regulation” refers to (i) the EU Directive 95/46 on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (EU Data Protection Directive);
(ii) European Regulation 2016/679 relating to the processing of Personal Data (GDPR); and (iii) any regulation law or enactment relating to the processing of Personal Data applicable during the term of the Agreement.
“Data Controller” means the CUSTOMER which determines the purposes and means of the processing of Personal Data.
“Data Processor” means KURMI acting on behalf of a Data Controller.
“Personal Data” refers to any information relating to a Data Subject.
“Data Subject” means an identifiable natural person, who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that
natural person.
“Personal Data Breach” refers to a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
“Transfer of Personal Data” means the processing, material transfer or distant access to Personal Data by, from or to third party entities established out of the European Economic Area (EEA).
9.2
In order to perform the Agreement, KURMI may be required to process Personal Data concerning the CUSTOMER, the customers of the CUSTOMER or employees of the CUSTOMER or customers of the CUSTOMER. KURMI and CUSTOMER shall comply with the Applicable Data Protection Regulation that may apply to the
performance of the Agreement.
The CUSTOMER shall act as a Data Controller.
KURMI, acting as a Data Processor, shall:
- Process Personal Data on behalf of the CUSTOMER to the extent, and in such a manner as is necessary for the purposes of the Agreement;
- Process the Personal Data only on documented instructions from the Controller, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Union or Member State law to which the Processor is subject. In such a case, the Processor shall inform the Controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
- Ensure that persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
- Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk;
- Refrain from engaging another processor without prior specific or general written authorization of the Controller. When engaging another processor, KURMI shall ensure that the same data protection obligations as set out in this Agreement shall be imposed on that other processor by way of a contract or other legal act, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the Applicable Data Protection Regulation, it being understood that where that other Processor fails to fulfil its data protection obligations, KURMI shall remain fully liable to the Controller for the performance of that other processor’s obligations;
- Taking into account the nature of the processing, assists the Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising the Data Subject’s rights;
- Assist the Controller in ensuring compliance with its obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing and the information available to the Processor;
- At the choice of the Controller, delete or return all the Personal Data to the Controller after the end of the provision of services relating to processing, and delete existing copies unless Union or Member State law requires storage of the Personal Data;
- Make available to the Controller all information necessary to demonstrate compliance with the obligations laid down in this article.
10. Disclaimer of warranties
KURMI warrants the CUSTOMER that the Software Product will comply with the features outlined in its documentation.
KURMI does NOT warrant that the functions contained in the Software Product will meet your requirements or that the operation of the Software Product will be uninterrupted or error free. Computer software is inherently subject to bugs and potential incompatibility with other computer software and hardware. CUSTOMER should not use the Software Product for any applications in which failure could cause any significant damage or injury to persons or tangible or intangible property.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KURMI AND ITS SUPPLIERS PROVIDE THE SOFTWARE PRODUCT “AS IS” AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NONINFRINGEMENT, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND OF LACK OF VIRUSES ALL WITH REGARD TO THE SOFTWARE PRODUCT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KURMI OR A KURMI AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. IN NO EVENT DOES KURMI PROVIDE ANY WARRANTY OR REPRESENTATIONS WITH RESPECT TO ANY THIRD-PARTY HARDWARE OR SOFTWARE WITH WHICH THE KURMI PRODUCT IS DESIGNED TO BE USED, AND KURMI DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY FAILURES THEREOF.
11. Limitation of liability
Notwithstanding any damages that CUSTOMER might incur, the entire liability of KURMI and any of its suppliers under any provision of this EULA and your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by CUSTOMER for KURMI Software Product during twelve (12) months preceding the event giving rise to the claim. To the maximum extent permitted by applicable law, in no event shall KURMI or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, for loss of data or other information, for business interruption, for personal injury, for loss of privacy arising out of or in any way related to the use of or inability to use the Software Product, or otherwise in connection with any provision of this EULA), even if KURMI or any supplier has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.
12. IP Indemnification
KURMI undertakes to defend the CUSTOMER against any claim from a third party and to compensate it for any costs and/or damages and interest incurred on the basis of a final court decision if: (1) it concerns the violation of an intellectual property right; (2) it concerns the Software Product in the form provided to the CUSTOMER; (3) the CUSTOMER immediately notifies KURMI in writing, entrusting KURMI with the exclusive defense and negotiations with a view to a settlement or compromise solution with the third party and (4) the CUSTOMER provides KURMI with all assistance required to contest the claim.
If the claim made by a third party regarding the violation of property rights is successful, the CUSTOMER accepts that KURMI may, at its own cost, (i) modify or replace the Software Product or parts of the Software Product in question, depending on which solution is more beneficial, or (ii) obtain for the CUSTOMER the right to continue to use the Software Product. If neither of these options is reasonably acceptable in the opinion of KURMI, the CUSTOMER should, at the request of KURMI, return the Software Product to KURMI, which will refund the cost of the license. The obligations above set out the entire obligations from KURMI to the CUSTOMER regarding such claim and do not apply to any legal proceedings based on the violation or alleged violation of any patent or copyright resulting from the combined use of the Software Product and its documentation in full or in part with any elements not provided by KURMI.
13. Complifance with export laws
CUSTOMER shall comply with all applicable export laws and regulations (“Export Laws”) to ensure that the Software Product is not (1) exported, directly or indirectly, in violation of Export Laws, or (2) used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
14. Usage auditing, piracy and our privacy policy
KURMI may audit your software usage for anti-piracy purposes, to verify a valid registration, and to assess your use of the Software Product. In case such audit cannot be carried out due to the CUSTOMER’s security policy, the CUSTOMER shall produce a screenshot of the page showing the CUSTOMER’s use of the Software Product.
These audits may take place once a year and will be financed by KURMI unless they reveal failure by the CUSTOMER to carry out the obligations outlined in this Agreement. In this case, as well as the immediate payment of the licenses owed, the CUSTOMER will be required to refund KURMI the entirety of the justified costs incurred by the performance of these audits, KURMI reserving the option to invoke the provisions relating to the failure to fulfil a major contractual obligation.
15. Assignment or transfer
Neither party may assign or transfer this Agreement without the prior written permission of the other party. Such consent, which may not be retained without a valid reason, may depend on the prior execution of a given obligation or on the provision of legitimate guarantees.
16. Applicable law
This EULA is governed by the laws of the Republic of France exclusive of conflict of law provisions and CUSTOMER attorn to the jurisdiction of the courts of Paris with respect to any proceedings arising from this EULA.
17. Entire agreement
This EULA (including any addendum or amendment to this EULA which is included with KURMI Software Product) is the entire agreement between CUSTOMER and KURMI relating to the Software Product and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software Product or any other subject matter covered by this EULA. To the extent the terms of any KURMI policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall prevail. If any provision of this EULA is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of the EULA will remain in force and effect.
