NOTICE: PLEASE READ THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING, ACCESSING, COPYING OR USING THE TAPESTRY SOFTWARE AND/OR SERVICES. DOWLOADING, INSTALLING, ACCESSING, COPYING OR USING THE SOFTWARE AND/OR SERVICES, CREATES A LEGALLY ENFORCEABLE CONTRACT AND CONSTITUTES ACCEPTANCE OF ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION. IF YOU ARE NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT, OR IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT INSTALL, ACCESS, COPY OR USE THE SOFTWARE AND/OR SERVICES, AND YOU MUST, WITHIN 3 DAYS, DELETE AND PERMANENTLY ERASE FROM ALL COMPUTER MEMORIES AND STORAGE MEDIA ALL COPIES OF THE SOFTWARE AND DOCUMENTATION, AND TO OBTAIN A REFUND, YOU MUST NOTIFY TAPESTRY IN WRITING THAT YOU HAVE COMPLIED WITH THE FOREGOING.
This End-User License Agreement (the Agreement), effective as of the date you accept the terms hereof (unless returned as specified above, the Effective Date), is entered into between Sango Technologies Sp. z o.o. Wróblewskiego 18, 93-578 Łódź, Poland (“Tapestry”) and Licensee. The parties agree as follows:
"Documentation" means the user guide, help information and/or other documentation provided by Tapestry with the Services.
"Licensee" means the User, together with the business or other entity for which Software is obtained or Services are subscribed.
"Services" means all web sites, Software, services, and applications which together constitute Tapestry’s overall offering to subscribers.
"Software" means any Tapestry computer program (in object code) accompanying this Agreement. This term is inclusive of Tablet Software.
"Tablet Software" means specifically any Software that is loaded on a tablet device for use by a Tablet User.
"Tablet User" refers is the User that is also the primary user of a Tapestry-enabled tablet device, regardless of whether the tablet hardware device is purchased through Tapestry or acquired through other channels.
"Updates" means, if applicable, any patch, update or new version of the Software and/or Services delivered to Licensee.
"User" means you, the individual who accepts this Agreement, not any other person.
1.1 Services. For all Users, subject to all terms and conditions in this Agreement, Tapestry grants Licensee nonexclusive, nontransferable non-sub-licenseable rights to use of the Services, yet excluding Tablet Software (subject to conditions in Section 1.3).
1.2 Software. For Users subscribing and downloading Tablet Software as a Tablet User, or on behalf of a Tablet User, and subject to all terms and conditions in this Agreement, Tapestry further grants Licensee a nonexclusive, nontransferable, non sub-licenseable right and license to have the User download and use the Tablet Software and Documentation without modification.
1.3 Limitations. Prior to download and use of Tablet Software, a User must register as a “Tablet User”. Tablet Users may use 1 copy of the Tablet Software. However, subject to the same use limitations and restrictions, Tablet User may make a second copy and install it on a second tablet computer device, provided that: (a) both copies of the Tablet Software are not used at the same time; and (b) the second copy of the Tablet Software is not installed or used after the time such Tablet User is no longer the primary user of the tablet computing device on which the primary copy of Tablet Software is installed.
1.4 License Control. Licensee acknowledges that the Services may contain code or require devices that detect or prevent unauthorized use of, or disable, the Services.
2.1 Updates. To ensure network support for the Services, Tapestry may periodically need to provide Licensee with Updates. Any Update delivered by Tapestry shall be treated as part of Services for all purposes under this Agreement.
3.1 Scope. The term Confidential Information means all trade secrets, know-how, software and other financial, business or technical information of Tapestry or any of its suppliers that is disclosed by or for Tapestry in relation to this Agreement, but not including any information Licensee can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any obligation to the Tapestry, (b) generally available to the public without breach of this Agreement or (c) independently developed by it without reliance on such information. All Services and Documentation are Confidential Information.
3.2 Confidentiality. Except for the specific rights granted by this Agreement, Licensee shall not possess, use or disclose any Confidential Information without Tapestry's prior written consent, and shall use reasonable care to protect the Confidential Information. Licensee shall be responsible for any breach of confidentiality by its employees.
4. PROPRIETARY RIGHTS.
4.1 Restrictions. Licensee shall not (a) use any Confidential Information to create any software or documentation that is similar to any Documentation or Services, (b) disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying structures, ideas or algorithms of the Services, (c) encumber, lease, rent, loan, sublicense, transfer or distribute any Services, (d) copy, adapt, merge, create derivative works of, translate, localize, port or otherwise modify any Documentation or Services, (e) use Services in an automated process, or (f) permit any third party to engage in any of the foregoing proscribed acts. Licensee shall not use Services for the benefit of any third party (e.g., time-share or service bureau arrangement) without Tapestry's prior written consent, at its discretion.
4.2 No Implied License. Except for the limited rights and license expressly granted hereunder, no other license is granted, no other use is permitted and Tapestry (and its suppliers) shall retain all right, title and interest in and to the Services and Documentation (and all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights embodied therein).
4.3 Markings. Licensee shall not alter, obscure or remove any trademark, patent notice or other proprietary or legal notice displayed by or contained in any Services, Documentation or packaging.
4.4 Third Party Software. The Services may operate or interface with software or other technology (In-Licensed Code) that is in-licensed from, and owned by, third parties (Third Party Licensors). Licensee agrees that (a) it will use In-Licensed Code in accordance with this Agreement and any other restrictions specified in the applicable license set forth or referenced in the Documentation, (b) no Third Party Tapestry makes any representation or warranty to Licensee concerning the In-Licensed Code or Services and (c) no Third Party Licensor will have any obligation or liability to Licensee as a result of this Agreement or Licensee's use of the In-Licensed Code.
5. WARRANTY DISCLAIMERS.
THE SERVICES, INCLUDING ALL SOFTWARE, ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. TAPESTRY DOES NOT WARRANT THAT THE SERVICES WILL MEET LICENSEE'S REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, TAPESTRY HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
6. LIMITATION OF LIABILITY.
IN NO EVENT SHALL TAPESTRY (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) AGGREGATE DAMAGES, IN EXCESS OF THE AMOUNT PAID TO TAPESTRY FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE PRIOR 12-MONTH PERIOD, EVEN IF TAPESTRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
7. TERM AND TERMINATION.
7.1 Licensee Termination. If you want to terminate this Agreement, you may do so by notifying Tapestry at any time. Your notice should be sent, in writing, to Tapestry’s address at the beginning of this Agreement.
7.2 Tapestry Termination. Tapestry may, at any time, terminate this Agreement with the Licensee, if: (a) you have breached, or demonstrate inability to comply with, any of the conditions of the Agreement; (b) Tapestry is required to do so by law; (c) Tapestry is prevented from continuing service with the partner or channel through which Licensee subscribed the Services; or (d) Any part or whole of the Services is discontinued by Tapestry.
7.3 Effects of Termination. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) all obligations that accrued prior to the effective date of termination and any remedies for breach of this Agreement shall survive any termination, (b) Licensee shall promptly return or destroy all Software and other tangible Confidential Information, and permanently erase all Confidential Information from any computer and storage media and (c) the provisions of Sections 3 (Confidentiality), 4 (Proprietary Rights), 5 (Warranty Disclaimers), 6 (Limitation of Liability), 8 (General Provisions) and this Section (7) shall also survive.
8. GENERAL PROVISIONS.
8.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Terms set forth in Licensee's Purchase Order (or any similar document) that are in addition to or at variance with the terms of this Agreement are specifically waived by Licensee. All such terms are considered to be proposed material alterations of this Agreement and are hereby rejected. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
8.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of New South Wales, Australia, without regard to its conflicts of law provisions.
8.3 Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested. Notices shall be delivered to the address specified by Licensee when the Services/Software was ordered/downloaded, or to the address above for Tapestry, as the case may be, or at such other address designated in a subsequent notice. All notices shall be in English.
8.4 Assignment. This Agreement and the rights and obligations hereunder are personal to Licensee, and may not be assigned or otherwise transferred, in whole or in part, without Tapestry's prior written consent. Any attempt to do otherwise shall be void and of no effect. Without Licensee's consent, Tapestry may assign this Agreement to any third party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.
8.5 Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS ARE MATERIAL BARGAINED-FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT BY EACH PARTY AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY HEREUNDER AND IN THE DECISION TO ENTER INTO THIS AGREEMENT.
8.6 Acknowledgment. Licensee acknowledges that (a) it has read and understands this Agreement, (b) it has had an opportunity to have its legal counsel review this Agreement, (c) this Agreement has the same force and effect as a signed agreement, (d) Tapestry requires identification of the User and Licensee before issuing this license and (e) issuance of this license does not constitute general publication of the Software or any other Confidential Information related to Services.