End User License Agreement (EULA)
Version 1.0 | Updated March 14th 2019
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE INSTALLING THE SOFTWARE. BY INSTALLING AND USING THE SOFTWARE, YOU AGREE ON BEHALF OF THE ENTITY LICENSING THE SOFTWARE THAT THEY ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT (“THE COMPANY”) AND WILL BE BOUND BY THE TERMS OF THIS AGREEMENT AND THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND THE COMPANY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE. USE OF SOFTWARE INDICATES COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SHALL NOT APPLY.
This is an agreement entered into by and between you (the “Company”) and Skycore LLC and its subsidiaries (“Licensor”). This Agreement states the terms and conditions upon which Licensor offers to license the Lark Router software. The Lark Router software, together with all related documentation and accompanying items including, but not limited to, the executable programs, drivers, libraries and data files associated with such programs (collectively, the “Software”).
Accessible Code means source code contained within the Software that is accessible under this Agreement.
Affiliate means a company which is controlled, under common control or controlling the Company during the period of such control. For the purposes of this Agreement, “control” shall mean ownership, directly or indirectly, of more than 50% of the shares in the Company (or other voting securities) which vote for the election of the board of directors or other managing body of the Company.
End User means an employee, contractor or agent of the Company and its Affiliates authorized by the Company to use the Software as per the terms of this Agreement.
OEM Distribution means distribution of the Software as either a bundled add-on to, or embedded component of, another application with such application being made available to its users as, but not limited to, an on-premise application, a hosted application, a Software-as-a-Service offering or a subscription service for which the distributor of the application receives a license fee or any form of direct or indirect compensation.
Protected Code means source code contained within the Software that is protected against access by Licensor and is not accessible under this Agreement.
Distribution Archive means a software installer package, or any other distribution medium commonly utilized to package and distribute software.
Customer Service Systems means any online system provided by Licensor or its service providers to provide Company with product support, access to the Software, or user licenses, though not limited to these services.
1. Grant of Rights
For the term of this Agreement and subject to the Company’s timely recurring payment of the license fees as defined below, Licensor grants the Company a non-exclusive, non-transferable, non sub-licensable right to use the Software for the Company’s own internal use.
2. Company’s Responsibility for End Users
The Company shall be responsible for any act or omission of their End Users and for the compliance with all of the terms of this Agreement. Any action or breach by any of the Company’s End Users shall be deemed an action or breach by the Company of this Agreement and the Company hereby indemnifies and holds Licensor harmless from any and all such breaches of this Agreement. The Company waives all of those defenses that the Company may have in law or otherwise which may be raised to avoid liability should the Company not be liable for its employees, contractors’, agents’ or Affiliates’ acts, omissions and non-compliance with the terms of this Agreement.
3. Acceptance of the Software License
The Software and Software License shall be deemed accepted once the Company has successfully downloaded and unpacked the Distribution Archive.
The Company shall not, directly or indirectly: (i) remove or alter any copyright, trademark or proprietary notice in the Software; (ii) transfer, use or export the Software in violation of any laws or regulations of any government or governmental agency; (iii) reverse engineer, decompile or modify any protected code which forms part of the Software; (iv) distribute the Software via OEM Distribution without entering into a separate OEM Distribution Agreement with Licensor; (v) redistribute the Accessible or Protected Code; (vi) use and or modify the Software to develop a competitive product; and (vii) commit any act or omission the likely result of which is that Licensor’s reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on Licensor’s interests. The Software includes license protection mechanisms that are designed to manage and protect the intellectual property rights of Licensor. The Company must not modify or alter those features to try to defeat the Software use rules that the license protection mechanisms are designed to enforce. Licensor retains all right, title, and interest to the Software, technology, information, code or software provided to Company, including all portions, copies or modifications thereof. Except as expressly provided herein, no licenses of any kind are granted hereunder to Company, whether by implication, estoppel, or otherwise.
5. Fees and Payment
The Company shall pay all fees associated with the Software licensed and any services purchased hereunder. The Company shall designate an Administrator and provide the Licensor with the billing and contact information during registration. The Administrator will manage the license key and subscription for the Company. Professional Services can be added to the subscription by placing an order with Licensor. The Company is responsible for all billable activity occurring on any server using the Company’s License Key. The Company shall notify Licensor immediately of any unauthorized use of any password or account that provides Company access to the Customer Service Systems, any unauthorized use of Company’s License Key or unauthorized copying or distribution of the Software or related proprietary material. License Keys cannot be shared or used by more than one Company.
6. License Fee
The Company shall pay to Licensor an amount specified during license key registration based on the number of Messages that Company sends in a month or other metric agreed upon during registration. Payment of all fees shall be due and payable at the end of each monthly cycle. All fees paid to Licensor are non-refundable. The Company will also be responsible to pay all applicable taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any federal, state, provincial or other government entity on the transactions contemplated by this Agreement.
Licensor reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. Licensor and/or its licensors own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold. The Company may not remove the copyright notice from any copy of the Software or any copy of the written materials, if any, accompanying the Software without the express written consent of Licensor.
8. Merger or Integration
Should the Company merge any portion of the Software or accessible code into, or integrate any portion of the Software or accessible code with, any other program or code, any portion of the Software or accessible code merged into or integrated with another program, if any, will continue to be subject to the terms and conditions of this Agreement, and the Company must reproduce on the merged or integrated portion all copyright and other proprietary rights notices included in the originals of the Software or accessible code.
9. Transfer of License
The Company may not transfer its license in terms of this Agreement to any external third parties.
10. Limitations on Use, Copying, and Modifying the Software
Except to the extent expressly permitted by this Agreement or by the laws of the jurisdiction where the Company acquired the Software, it may not use, copy or modify the Software. Nor may the Company sub-license any of its rights under this Agreement.
11. Decompiling, Disassembling, or Reverse Engineering
The Company acknowledges that the Software contains trade secrets and other proprietary information of Licensor and its licensors. Except to the extent expressly permitted by this Agreement or by the laws of the jurisdiction where the Company is located, it may not decompile, disassemble or otherwise reverse engineer the Software, or engage in any other activities to obtain underlying information that is not visible to the user in connection with the normal use of the Software. In particular, the Company agrees not to transmit the Software or display the Software’s object code on any computer screen or to make any hardcopy memory dumps of the Software’s object code. If the Company believes that it requires information related to the interoperability of the Software with other programs, it shall not decompile or disassemble the Software to obtain such information, and it agrees to request such information from Licensor at the address listed below. Upon receiving such a request, Licensor shall determine whether the Company requires such information for a legitimate purpose and, if so, Licensor will provide such information to the Company within a reasonable time and on reasonable conditions. In any event, the Company will notify Licensor of any information derived from reverse engineering or such other activities, and the results thereof will constitute the confidential information of Licensor that may be used only in connection with the Software.
12. Duration and Termination
The license granted to the Company is effective for one (1) month and will renew automatically each month upon the successful payment of license fees owed. The license will also terminate automatically without any notice from Licensor if the Company fails to comply with any term or condition of this Agreement. Upon termination, Licensor may also enforce any rights provided by law. The provisions of this Agreement that protect the proprietary rights of Licensor will continue in force after termination.
13. Software Maintenance
Licensor will make commercially reasonable best efforts to remedy defective code and to release these fixes as updates according to Licensor’s product roadmap. Licensor may provide to the Company one or more updates and/or enhancements of the Software from time to time. Most maintenance events will be optional. In the case of a mandatory software maintenance, the Company will be provided ample time and notice to conduct maintenance activities. Licensor may, but is not required to, make patches, updates and upgrades to the Software available from time to time. Installation and use of such releases are governed by the terms of this Agreement.
14. Software Support
Licensor shall provide paying customers email based technical support (and where applicable, phone support) to one Company-designated technical contact for the sole purpose of addressing technical issues relating to the use of the Software (excluding any form of on-site visits by Licensor personnel or contractors).
15. Warranty Disclaimer
Licensor does not warrant that the functions contained in the Software will meet the Company’s requirements or that the operation of the Software will be correct, uninterrupted or error-free. Licensor provides evaluation copies of the Product so that customers can assess the Product.
THE SOFTWARE IS PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.
The Company assumes responsibility for the support and fault-finding of any modifications made to the Software, or merger and integration undertaken with or between any other program or code. The Company assumes full responsibility for the selection of the Software to achieve its intended results, and for the installation, use and results obtained from the Software. The Company also assumes the entire risk as it applies to the quality and performance of the Software. Should the Software prove defective, the Company (and not Licensor, or its distributors or dealers) shall assume the entire cost of any and all necessary support, servicing, replacement or correction. Some countries/states do not allow the exclusion of implied warranties, so the above exclusion may not apply to the Company. Licensor disclaims all warranties of any kind if the Software was customized, repackaged or altered in any way by any third party other than Licensor.
During any term of this Agreement, if any portion of the Software is held by a court of competent jurisdiction to infringe any third party intellectual property rights and the Company incurs a liability or expense as a result of such holding, then the Company’s sole remedy shall be, and Licensor will, at its option: (i) obtain the right for the Company to continue to use the Software consistent with this Agreement; (ii) modify the Software so that it is non-infringing; or (iii) replace the infringing component with a non-infringing component, or (iv) refund all money paid in the then-current calendar quarter under this Agreement and all of the Company’s rights and licenses under this Agreement shall automatically terminate.
17. Publicity Rights
The Company grants Licensor the right to mention the Company in sales and promotional material. The Company can deny Licensor this right by submitting a written request via e-mail to firstname.lastname@example.org. Confirmation of such denial (via reply e-mail) must be received for this to be effective. Should the Company already be included in promotional material, Licensor will remove any reference to the Company and make no further reference to the Company. During any term of this Agreement, the Company grants to Licensor a non-transferable, non-exclusive, license to reproduce and display its logos, trademarks, trade names and similar identifying material so that Licensor may refer to the Company as a customer of the Software.
Company hereby indemnifies, holds harmless and defends Licensor from and against any and all claims or lawsuits, including attorney’s fees and costs that arise, result from or are connected with the use or distribution of the Software in violation of this Agreement.
19. Limitation of Remedies and Damages
In no event will Licensor or its licensors be liable for any direct, punitive, exemplary, indirect, incidental, special, or consequential damages (including lost data, lost profits or savings) whether based on contract, tort, or any other legal theory, or for any personal injury or bodily injury (including death), to any persons caused by Licensor’s negligence, or for any lost profits, lost savings, loss of use, lost revenues or lost data arising from or relating to the Software or this Agreement, even if Licensor or its licensors have been advised of the possibility of such damages. In no event will Licensor’s liability or damages to the Company or any other person ever exceed the amount paid by the Company to use the Software, regardless of the form of the claim.
20. Government Restricted Rights
Programs delivered to the U.S. Defense Dept. are delivered with Restricted Rights and the following applies: “Restricted Rights Legend: Use, duplication or disclosure by Government is subject to restrictions as currently set forth in subparagraph (c)(1)(ii) of DFARS 252-227-7013, Rights in Technical Data and Computer Software (October 1988). Software manufacturer is Skycore LLC. Inc., 397 Moody Street #202, Waltham, MA 02453. Programs delivered to a U.S. Government Agency not within the Defense, Dept. are delivered with “Restricted Rights” as defined in FAR 52.227-14, Rights in Data – General, including Alternate III (June 1987).
Company agrees to comply with all international and national laws that apply to the Software, including, but not limited to, the U.S. Export Administration Regulations, economic sanctions regulations administered by the Office of Foreign Assets Control, as well as similar restrictions issued by U.S. and other governments, which prohibit the provision of Software to specified destinations, end-users and end uses. Customer specifically represents and warrants that it will not export, re-export, sell, supply or transfer the Software to any country or person to which the United States has embargoed or restricted the provision of the Software.
The Contractor/Manufacturer for the Software is:
Skycore LLC. Inc.
397 Moody Street #202
Waltham, MA 02453
Phone: +1 617.314.7688
This Agreement is binding on the Company as well as its employees, employers, contractors and agents, and on any successors and assignees. Neither the Software nor any information derived therefrom may be exported except in accordance with the laws of the Commonwealth of Massachusetts or other applicable provisions. This Agreement is governed by the laws of the Commonwealth of Massachusetts and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding; however, this provision shall not restrict Licensor’s right to bring an action against Company or its subsidiary in the jurisdiction where Company’s or its subsidiary’s place of business is located. This Agreement is the entire agreement between Licensor and the Company and the Company agrees that Licensor will not have any liability for any untrue statement or representation made by it, its agents or anyone else (whether innocently or negligently) upon which the Company relied upon entering this Agreement, unless such untrue statement or representation was made fraudulently. This Agreement supersedes any other understandings or agreements, including, but not limited to, advertising, with respect to the Software. If any provision of this Agreement is deemed invalid or unenforceable by any country or government agency having jurisdiction, that particular provision will be deemed modified to the extent necessary to make the provision valid and enforceable, and the remaining provisions will remain in full force and effect. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. This Agreement may only be modified in writing by authorized representatives of the parties. All notices required or authorized under this Agreement must be in writing and shall be sent, as applicable, to Company’s legal department. Waiver of terms or excuse of breach must be in writing and shall not constitute subsequent consent, waiver or excuse. The failure of Licensor to exercise or enforce any right or provision of this EULA will not be deemed a waiver of such right or provision. The original of this Agreement has been written in English, and that version will govern.