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                                        END USER LICENSE AGREEMENT

 

This End-user License Agreement (hereinafter referred to as “EULA”) is a legally binding agreement between the Licensee (as defined below) and FPT Digital Processing Service Company Limited (hereinafter referred to as the “Licensor”) being the legal owner of Software (as defined below). BY USING THE SOFTWARE, LICENSEE ACKNOWLEDGES ACCEPTANCE OF THE TERMS OF THIS EULA. IF LICENSEE DOES NOT ACCEPT THESE TERMS, LICENSEE MAY NOT USE THE SOFTWARE.

 

LICENSEE HEREBY AGREES TO COMPLY AND ABIDE WITH THE FOLLOWING:

1.    Definition

       Authorized Partner” means any of Software’s distributors, resellers or other business partners authorized by the Licensor.

       “Confidential Information” means all information furnished by or on behalf of the Licensor to the Licensee which relates, but is not limited to, the Licensor’s past, present and future policy, products, services, plans, pricing, marketing, finances, market opportunities, process, sales and/or business affairs, technology, technical data, software, know-how, trade secrets, research, development, trade practices, management viewpoints, economic activities, business activities, commercial activities and technical knowledge, any information or materials with the name, sign, trade name or trade mark and/or intellectual property rights; the terms and conditions of this Agreement and any other information is confidential or proprietary in nature. Such information may be in the form and nature of handbooks, documents, bulletins, reports, letters, drawings, computer files, print-outs, computer software, CD-Rom Discs, video tapes, verbal communications or otherwise. In the event of disclosure in written form, the Confidential Information shall be marked, stamped and labeled “Confidential” or another similar warning; or any disclosure in verbal and other forms, the Confidential Information must be identified orally as confidential or proprietary at the disclosing time and thereafter a written summary of such disclosure, conspicuously marked as “Confidential” or “Proprietary” or the like, shall be delivered to the receiving party within thirty (30) days of the original disclosure.

       Documentation” means the user manual and other written material relating to the Software that Licensor makes available to end users of that same Software.

        “Licensee” means the individual or entity that is licensed or authorized to use the Software under this EULA.

       Software” means the Licensor proprietary computer programs and other materials provided in relation to the use of such program(s) identified as being licensed to Licensee in applicable Purchase Order.

       Licensor Materials” means any software, programs, tools, systems, data or other materials made available by Licensor to Licensee in the course of the performance under this EULA including, but not limited to, the Software and Documentation, as well as any information, materials or feedback provided by Licensee to Licensor relating to the Software and Documentation.

       License Term” means the valid license term for the Software as set forth in the applicable Purchase Order.

       Purchase Order” means the documents for placing the Software for the Licensee by Authorized Partner to the Licensor from time to time.

 

2.    License Grant      

       Pursuant to a Purchase Order, and subject to payment of all applicable license fees and other charges under the License Term and compliance with the terms of this EULA, the Licensor grants the Licensee a limited, non-sublicensable, non-transferable (except as set forth herein), non-exclusive license to use the Software for the Licensee’s own internal business functions in accordance with the terms, conditions, and restrictions of this EULA.

       The Software is licensed on a Node-locked License basis, then the Software may be used on the computer on which the Software is installed. This license may not be transferred to any other computer or entity or the like unless the Licensor consents in writing.

       The Licensee acknowledges that Licensor has a valuable proprietary interest in the Software. The Licensor retains title to and all copyright and other intellectual property rights in the Software. The Licensee is not granted any right, title, or interest in the Software, except the right to use the Software in accordance with this EULA.

 

3.    Licensee Obligations       

The Licensee:

a.     agrees to comply with all legal requirements in connection with the use of the Software;

b.     agrees that all rights in and to any of the Software not expressly licensed are reserved to Licensor;

c.     agrees not to sublicense, assign, transfer, pledge, offer as security, or otherwise encumber the Software or any of the rights granted in this EULA in any way other than as expressly provided in the EULA;

d.     agrees not to use any of the Software in any manner or for any purpose in violation of the terms of this EULA;

e.     acknowledges and agrees that it shall not at any time during the License Term or thereafter (i) challenge the title or any other rights of Licensor or its successors in or to the Software or any parts or derivatives or any variations, (ii) claim any right, title or interest in or to the Software or any parts or derivatives or variations;

f.      acknowledges that the Licensor may develop and market new or different computer programs or editions of the Software that use portions of the Software or that perform all or part of the functions performed by the Software. Nothing contained in this EULA will give Licensee any rights with respect to such new or different computer programs or editions;

g.     acknowledges and agree that the Licensor reserves the right at any time: (i) not to release or to discontinue release of any Software, (ii) to change its list price for the Software, (iii) to change any of the services that it currently offers in connection with the Maintenance, and (iv) to alter features, specifications, capabilities, functions, release dates, general availability or other characteristics of the Software or the Maintenance or, as they relate to future purchases by Licensee or subsequent renewal terms for the Maintenance, the terms and conditions applicable to such licenses and/or the Maintenance.

h.    complies with other regulations and requirements of applicable laws.

i.      agrees that once the Licensor consents, the Licensee shall use its best efforts to cause the sub-licensee to comply with the terms of this section.

 

4.    IP right     

a.     Reservation of Rights. The Licensor Materials, and all legal and royalty intellectual property rights embodied in the foregoing, shall be the sole and exclusive property of the Licensor, or their successor, subject to any rights expressly granted to the Licensee in this EULA. The Licensee is not permitted to modify or otherwise make derivative works of the Software. Any such unauthorized works developed by the Licensee, and any intellectual property rights embodied therein, shall be the sole and exclusive property of the Licensor.

b.     Protection of Rights. Except for terms and conditions in this EULA, the Licensee shall not and shall not permit any other person to copy, translate, disassemble, embed software libraries provided as part of the Software into other software products, or decompile, nor create or attempt to create the source code from the object code of the Software in any manner or remove or alter any trademark, trade name logo, copyright or other proprietary notices, legends, symbols or labels in the Software. Reverse engineering of the Software and other Licensor Materials is prohibited. In no event shall the Licensee carry out, procure any business activities that might impact to the Licensor’s economic viability of the Software.

c.     The Licensee is permitted to back up data in accordance with good information technology practice and for this purpose to create the necessary backup copies of the Software.

d.     The Licensee must not change or remove Licensor’s copyright and authorship notices. All rights not expressly granted to the Licensee in this EULA are reserved by the Licensor and its successors.

e.     As applicable, certain parts of the Software may be using third party features, including open source code, some of which are managed by third-party providers for which additional terms and/or costs may apply. The Licensee must comply with such additional terms.

 

5.    Warranty and Disclaimer            

THE LICENSOR GRANTS AND THE LICENSEE ACCEPTS TO USE THE SOFTWARE AND ANY APPLICABLE DOCUMENTATION AS “AS IS.” THE LICENSOR PROVIDES NO WARRANTIES AS TO THE FUNCTION OR USE OF THE SOFTWARE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH THE LICENSEE. THE LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.

The Software may contain independent third-party products/ feature including open source code and rely on them to perform certain functionality. The Licensor makes no warranty as to the operation of any third-party products or the accuracy of any third-party information.

 

6.    Patent and Copyright indemnity            

       The Licensee shall indemnify, defend and hold harmless the Licensor, and their licensors for any claim (the “Indemnified Claims”) related to or arising from the Licensee’s use of the Software: (i) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of the Licensee relating to the Software other than as made in Documentation, or (ii) in breach of this EULA.

       The Licensor may control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided the Licensee shall have the right to approve the terms of any settlement or compromise that restricts its rights granted under this EULA or subjects it to any ongoing obligations.

7.    Limitation of liability      

THE LICENSOR’S LIABILITY TO THE LICENSEE UNDER ANY PROVISIONS OF THIS EULA FOR DAMAGES FINALLY AWARDED SHALL BE LIMITED TO THE AMOUNT THE LICENSEE PAID SPECIFICALLY FOR THIS SOFTWARE. IN NO EVENT SHALL THE LICENSOR BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING COSTS, EXPENSES, ATTONEY’S FEES, LOSS OF DATA, LOSS OF USE, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS SUFFERED BY THE LICENSEE OR ANY OTHER PERSON IN ANY WAY ARISING OUT OF OR RELATED TO THE EULA OR PERFORMANCE HEREBY HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN THOUGH THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

The Licensor and its successors will not be responsible under this EULA (i) if the Software is not used in accordance with the Documentation or in breach of this EULA; or (ii) if the defect or liability is caused by the Licensee or third-party software or service. THE LICENSOR SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED TO THIRD-PARTY SOFTWARE LICENSED HEREUNDER.

 

8.    Confidential Obligation   

a.     Use of the Confidential Information. The Licensee shall not reproduce the Licensor’s Confidential Information in any form except as required to accomplish the intent of this EULA. Any reproduction of any Licensor’s Confidential Information by the Licensee shall remain the property of the Licensor and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information, the Licensee: (a) shall take all Reasonable Steps (defined below) to keep all the Licensor’s Confidential Information strictly confidential; and (b) shall not disclose any Licensor’s Confidential Information of the other to any person other than its bona fide individuals whose access is necessary to enable it to exercise its rights hereunder. As used herein “Reasonable Steps” means those steps Licensee takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. The Licensor’s Confidential Information disclosed prior to execution of this EULA shall be subject to the protections afforded hereunder.

b.     Each Party may come into possession of any information of a confidential nature of the Party during execution of the EULA. Each Party agrees to use these information solely for the purposes of this EULA, and will not disclose such information to any third party without the other Party’s prior written consent, except as required by, competent state authorities, the bank, a Law firm, an auditor. This term of confidentiality obligations shall still survive after the termination of this EULA.

c.     If the Licensee become legally compelled (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information, it shall, to the extent practicable and permitted by applicable law, provide the Licensor with prompt prior notice of such requirement so that the Licensor may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, the Licensee agree to disclose only that portion of the Confidential Information which is legally required to be disclosed and to take all reasonable steps to preserve the confidentiality of the Confidential Information. In addition, the Licensee will not oppose any action (and will, if and to the extent requested by the Licensor, cooperate with, assist and join with the Licensor in any reasonable action) by the Licensor to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.

d.     All Confidential Information disclosed under this EULA shall be and remain the property of the Licensor, and nothing contained in this EULA shall be construed as granting or conferring any rights (except the use rights in accordance with this EULA) to such Confidential Information on the Licensee. The Licensee shall honor any request from the Licensor to destroy within a reasonable time period all copies of the Confidential Information disclosed under this EULA and all notes related to such Confidential Information.

e.     The Parties agree that the Licensor will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this EULA and that the Licensor shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach.

f.      Exceptions. The above restrictions on the use or disclosure of the Licensor’s Confidential Information shall not apply to any Confidential Information that: (i) is independently developed by the Licensee without reference to the Licensor’s Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (ii) has become generally available to the public without breach of this EULA by the Licensee; (iii) at the time of disclosure, was known to the Licensee free of restriction; or (iv) the Licensor agrees in writing is free of such restrictions.

 

9.    Maintenance support and improvements          

The Licensor shall provide the Maintenance support and improvements, if any, as separately purchased by the Licensee and specified in the applicable Purchase Order. All support & maintenance shall be provided pursuant to the Licensor’s standard service terms which are available upon request from the Licensor.

 

10. Term        

This EULA shall be effective as of the first date that the Licensee install, copy or otherwise use the Software and continues until expiration of all License Terms, unless earlier terminated as set forth herein.

 

11. Termination         

       The Licensor may terminate this EULA if the Licensee is in default of any of the terms and conditions of this EULA and fails to cure such default within ten (10) days after written notice thereof from Licensor.

       In the event of termination, the Licensee will immediately discontinue the use of the Software. Within one (1) month after termination of this EULA, the Licensee will furnish to Licensor a certificate which certifies with respect to each of the Software that, through its best effort and to the best of its knowledge, the original and all copies, in whole or in part and in any form, of each of the Software have been destroyed.

 

12. Survival    

The provisions of Ownership, IP right, Warranty and Disclaimer, Patent and Copyright Indemnity, Limitation of liability, Confidential Obligation, Audit Right hereof shall survive any termination, cancellation or expiry of this EULA.

 

13. Audit Right           

The Licensor, or its authorized agent may audit the Licensee for compliance with use of the Software pursuant to this EULA. Upon written notice given in advance at least thirty (30) days, the Licensor may conduct an audit during normal business hours. The Licensee will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at its own cost. If an audit reveals noncompliance, then this EULA shall immediately terminate and Licensee shall also reimburse the Licensor for such audit costs.

 

14. Governing law and dispute resolution

       The EULA will be governed by and construed in accordance with the laws of where the Licensor has located and the courts of that locate will have jurisdiction.

       The Parties further agree that all arbitral proceedings conducted pursuant to this section, including the existence of any arbitral proceedings, information disclosed in the course of such arbitral proceedings, and any settlements, negotiations, discussions, proposals, and awards related thereto shall be considered the Confidential Information as defined above. The Parties may, however, disclose such information to an appropriate court, as is necessary to seek enforcement of any award rendered by the arbitrator.

 

15. Export Compliance.

The Licensee acknowledges that the Software may be subject to export control regulations in countries in which they operate, and the Licensee hereby declares and agrees that it will not directly or indirectly export, import, transmit or use the Software contrary to the laws or regulations of any other governmental entity that has jurisdiction over such export, import, transmission or use.

 

16. Assignment          

This EULA and the licenses granted by it may not be assigned, sublicensed, or otherwise transferred by the Licensee without the prior written consent of the Licensor.

 

17. Notices     

All notices in connection with this EULA shall be in writing and may be given by certified, registered, or first class mail or personally delivered at the addresses set forth on the front page. For purposes of this EULA, a notice shall be deemed effective upon personal delivery to the Party or if by mail five (5) days after proper deposit in a mail box

18. No Waiver

       No delay or omission by either Party hereto to exercise any right or power or curing upon any non-compliance or default by the other Party with respect to any of the terms of this EULA shall impair any such right or power or to be construed to be a waiver thereof.

       A waiver by either of the Parties thereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition or agreement herein contained.

       Unless stated otherwise, all the remedies provided for in this EULA shall be cumulative and in addition to not in lieu of any other remedies available to either Party at law, in equity or otherwise.

 

19. Entire Agreement            

This EULA sets forth the entire understanding between the parties with respect to the subject matter hereof, and merges and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters. This EULA shall take precedence over any additional or conflicting terms which may be contained in the agreement between the Authorized Partner with the Licensee related to the Software.

 

20. Amendments

The Licensee agrees that the Licensor may from time to time modify the EULA due to changes, including changes of the market, laws or our internal policies covering the Software and/ or Maintenance such as changes in charges or fees, changes in functionality, service of products, etc…. The Licensor will post the amended terms and conditions at any given time on Licensor’s website or the Licensor may inform the Licensee of such amendments by way of using any other methods permitted by applicable laws.