Updated: 18 October 2019
eXtensi End User License Agreement
The individual using this software represents and warrants that he or she has authority to enter into this agreement with eXtensi on behalf of the Licensee, that he or she has read the terms and conditions set out herein and that the Licensee accepts and agrees to be bound by this agreement. If the Licensee does not agree with the terms and conditions, the Licensee must not use or permit the use of the Product.
Accessible Code means source code contained within the Product that is unprotected and accessible under this agreement.
Authorised User means a person or user account who is Licensed to use the Product, regardless of whether that person is an employee, contractor, subcontractor, vendor, partner or customer of the Licensee.
Commencement Date means the date when Licensee started License subscription or renewal.
Fees mean all fees and expenses payable by the Licensee to Licensor in acquiring the Product.
Embedded Software means third party software licensed by eXtensi from a Licensor and embedded in the Product.
License means a license granted under this EULA to the Licensee to permit an Authorised User to use the Product.
Licensee means the individual or entity (inclusive of subsidiaries) that has licensed the Product under the terms and conditions of this agreement.
Licensor means the licensor of the Embedded Software.
OEM Distribution means distribution of the Product 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-premises 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.
Product means the eXtensi branded software that accompanies this EULA, which may include computer software, Accessible Code, Embedded Software, associated media, printed materials and electronic documentation.
eXtensi means eXtensi Chudziński Jędryka s.p. j., ul. Rysia 1A / 362, Wrocław, 53-656, Poland, VAT No. PL8943146425, KRS 0000807163
2. SUBJECT OF THE AGREEMENT
Subject to the terms and conditions of this agreement, eXtensi hereby grants Licensee a non-exclusive, non-transferable right to use the Product for Licensee’s own internal business operations.
3. LICENSE FEE
The Licensee must pay all Fees by the due date and in the manner directed at the time of purchase of Product. Failure to pay Fees by the due date will result in the immediate termination of the licenses granted under this EULA.
4. NO WARRANTY
Save as provided in clauses 12 and 13 below, the Product is provided on an "as is" and "as available" basis without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance or merchantability or fitness for a particular purpose, including without limitation that eXtensi does not warranty that the Product will be error-free, complete, or correct.
5. eXtensi OBLIGATIONS
eXtensi will provide Software Maintenance as defined in Clause 6 for a period of the License subscription or renewal.
6. SOFTWARE MAINTENANCE
Software Maintenance includes eXtensi provisioning to Licensee Product updates and/or enhancements made generally available to customers and online technical support for the sole purpose of addressing technical issues relating to the use of the Product (excluding any form of on-site visits by eXtensi personnel or contractors).
7. LICENSEE OBLIGATIONS
The Licensee must at all times:
(a) ensure that only an Authorised User may use the Product in accordance with the terms and conditions of this agreement;
(b) install, within forty-five (45) calendar days, those updates and enhancements specifically provided by eXtensi to avoid or mitigate claims addressed by Clauses 12 or 13 below;
(c) advise eXtensi in writing within thirty (30) calendar days if the Licensee becomes aware of any unauthorised use or distribution of the Product by any person; and
(d) with respect to any use of the Product, any attribution to eXtensi contained in the Product in the form of logo, hyperlink to https://extensi.io or similar must not be removed or changed unless explicitly permitted.
8. UNAUTHORISED USE OR DISTRIBUTION
Licensee may not, whether through deliberate or negligent act or act of omission:
(a) distribute or cause the distribution of the Product to any third party other than an Authorised User; or
(b) directly access or use any Embedded Software independently of the Product.
Licensee is required to report its discovery of any such violations to eXtensi, in writing within thirty (30) calendar days. Any such violations will entitle eXtensi and/or its Licensors to, in addition to any other right or claim that eXtensi or Licensor may have against Licensee, retroactively charge the Licensee, in addition to any other fees payable by the Licensee under this agreement, a fee calculated based on the number of prohibited distributions times the respective list prices that eXtensi and/or the Licensor charges for the Product or Embedded Software respectively.
9. LICENSEE'S RESTRICTIONS
Licensee must not, without the prior written consent of eXtensi, which may be withheld and which may include certain conditions:
(a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, the Protected Code;
(b) sell, sublicense, redistribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form the Product or any data/information provided to the Licensee through the Product to a person (except that nothing in this paragraph (b) is intended to prevent an Authorised User to use the Product);
(c) publish, promote, broadcast, circulate or refer publicly to the eXtensi name, trade name, trademark, service mark or logo, without the prior written consent of eXtensi;
(d) commit any act or omission the likely result of which is that eXtensi 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 eXtensi interests.
Under no circumstance may Licensee distribute the Product via OEM Distribution without entering into a separate OEM Distribution agreement with eXtensi. Licensee shall also not copy or embed elements of the Accessible Code into other applications. In addition, the Product includes license protection mechanisms that are designed to manage and protect the intellectual property rights of eXtensi. Licensee must not modify or alter those features to try to defeat the Product use rules that the license protection mechanisms are designed to enforce.
The term of this agreement begins on the Commencement Date and will continue in full force and effect until terminated in accordance with Clause 11.
This agreement may be terminated by either party if the other party commits a material breach. Either party will have thirty (30) calendar days following receipt of written notice to remedy any material breaches. Clauses 1, 3, 4, 8, 9, 12, 13, 14 and 17 shall survive any termination of this agreement.
(e) This Product incorporates analytics and feedback features. This Product also collects certain data automatically, including, but not limited to your IP address, your operating system, the type of Internet browsers you use and information about the way in which you use this Product.
(f) eXtensi collects the following personal information provided by you in completing the purchase of this Product: contact details, license details, transaction details. eXtensi may use this information to:
(i) provide, administer, and improve our products,
(ii) better understand your needs and interests,
(iii) fulfil requests you may make,
(iv) personalize your experience,
(v) provide Service announcements,
(vi) provide you with further information and offers from eXtensi, eXtensi affiliates, and our business partners, and
(vii) protect, investigate, and deter against fraudulent, harmful, unauthorized, or illegal activity.
This may include without limitation the following specific activities:
(i) target offers to users;
(ii) evaluate the eligibility of customers for certain offers, products or services;
(iii) evaluate the types of offers, products or services that may be of interest to users;
(iv) provide user support;
(v) communicate with users regarding support, security, technical issues, commerce, marketing, and transactions;
13. INFRINGEMENT INDEMNIFICATION
(a) eXtensi will defend or settle, at its expense, any action brought against Licensee based upon the claim that the Product, if used within the scope of the License granted under this agreement, directly infringe a registered United States or European Union patent or copyright; provided, however, that:
(i) Licensee shall notify eXtensi promptly in writing of any such claim;
(ii) Licensee shall not enter into any settlement or compromise any claim without eXtensi prior written consent;
(iii) eXtensi shall have sole control of any such action and settlement negotiations; and
(iv) Licensee shall provide eXtensi with information and assistance, at eXtensi request and expense, necessary to settle or defend such claim.
eXtensi agrees to pay all damages and costs finally awarded against Licensee attributable to such claim. The foregoing states the sole liability of eXtensi and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Product or any other items provided by eXtensi hereunder.
(b) If the Product becomes, or in the opinion of eXtensi may become, the subject of a claim of infringement of any third party right, eXtensi may, at its option and in its discretion:
(i) procure for Licensee the right to use the Product free of any liability;
(ii) replace or modify the Product to make it non-infringing; or
(iii) refund any license fees related to this Product paid by Licensee.
(c) Licensee will defend or settle, at its expense, any action brought against eXtensi based upon the claim that any modifications to the Product or combination of the Product with products infringes or violates any third party right; provided, however, that:
(i) eXtensi shall notify Licensee promptly in writing of any such claim;
(ii) eXtensi shall not enter into any settlement or compromise any such claim without Licensee's prior written consent;
(iii) Licensee shall have sole control of any such action and settlement negotiations; and
(iv) eXtensi shall provide Licensee with information and assistance, at Licensee's request and expense, necessary to settle or defend such claim. Licensee agrees to pay all damages and costs finally awarded against eXtensi attributable to such claim.
(d) Notwithstanding Subsection (a) above, eXtensi assumes no liability hereunder for, and shall have no obligation to defend Licensee or to pay costs, damages or attorney's fees for, any claim based upon any modifications to any of the Product not approved by eXtensi or combination of any of the Product with products not approved by eXtensi.
14. LIMITATION OF LIABILITY
Except for the indemnification obligations of Clause 13 or breach of Clauses 3, 8 or 9, neither party will be liable to any person for any loss, damage, cost, expense or other claim (including consequential, direct, indirect, special, punitive or other damages and loss of data or profits) in relation to the Product including, without limitation:
(a) any use or reliance on a Product by the person (including the form and content of errors in and/or omissions from any information contained in a Product);
(b) any delay, interruption or other failure in the provision of the Product; or
(c) any change in the form or content of the Product.
In no event will eXtensi and Licensors' aggregate liability under any claims arising out of this agreement exceed the fees paid by Licensee under this agreement. Except for each party's indemnification obligations or breach of Clauses 3, 8 or 9, neither party will be liable for lost profits or for special, indirect, incidental or consequential damages, regardless of the form of action, even if such party is advised of the possibility of such damages. The foregoing liability limitations shall apply to the maximum extent allowed by applicable law. To the extent the foregoing liability limitations or the warranty disclaimers of Clause 4 are not allowed by applicable law, then the liability of eXtensi, and the remedy of Licensee, shall be limited to the refund of any license fees paid by Licensee for such defective Product.
15. INTELLECTUAL PROPERTY
The Licensee acknowledges that the Product and all intellectual property rights in relation to the Product are the property of eXtensi or the Licensors and eXtensi is entitled to take whatever action it may decide in order to protect its intellectual property rights in the Product.
16. PUBLICITY RIGHTS
The Licensee grants eXtensi the right to include the Licensee as a customer in Product promotional material. Licensee can deny eXtensi this right at any time by submitting a written request via email to email@example.com, requesting to be excluded from Product promotional material. Requests made after purchasing may take thirty (30) calendar days to process.
17. NO ASSIGNMENT OR AMENDMENT
Licensee may assign this agreement to:
(a) succeeding parties in the case of a merger, acquisition or change of control; or
(b) if Licensee is a supplier to a government agency; provided, however, that in each case,
(i) eXtensi is notified in writing within ninety (90) days of such assignment,
(ii) the assignee agrees to be bound by the terms and conditions contained in this agreement and
(iii) upon such assignment the assignee makes no further use of the software licensed under this agreement.
eXtensi may assign its rights and obligation under this agreement without consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this agreement.
18. CONFIDENTIAL INFORMATION
eXtensi and the Licensee agree to maintain each other's confidential information in strict confidence. The parties agree to not reveal each other's confidential information to any third party or to use each other's confidential information for any reason other than to exercise rights or obligations clearly contemplated by this agreement.
19. GOVERNING LAW
This agreement is governed by the laws of Poland, and the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts in Wrocław, Poland.