End User License Agreement for Profiler Software (the “EULA”)
THIS EULA IS A BINDING LEGAL AGREEMENT. PLEASE CAREFULLY READ THE FOLLOWING END USER LICENSE AGREEMENT BEFORE INSTALLING THIS SOFTWARE. BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA.
The Profiler software, and any files that are delivered to you by Hibernating Rhinos Ltd (via on-line transmission or otherwise) to “patch,” update, or otherwise modify the Software, as well as any printed materials and any online or electronic documentation (the “Manual”), and any and all copies and derivative works of such software program and materials (collectively the “Software”) are the copyrighted work of Hibernating Rhinos Ltd, or its suppliers and licensors (collectively referred to herein as “Licensor”). All use of the Software is governed by the terms of this EULA. The Software is distributed solely for use by authorized individuals or entities according to the terms of this EULA. Any use, reproduction or redistribution of the Software not expressly authorized by the terms of the EULA is expressly prohibited.
Subject to the terms and conditions of this Agreement, Licensor grants you a non-exclusive, non-transferable, license to install and use the Software for your business internal use, at your facilities. the license granted herein allows the usage of the Software by one user only. Usage by multiple users is expressly prohibited. If you wish to use the Software by multiple users, you may obtain additional licenses for such purpose from Licensor.
All worldwide rights, title, ownership rights and intellectual property rights (whether patentable or and whether registered or not) in and to the Software and all copies thereof (including, but not limited to, any titles, computer code, artwork, any related documentation, executable code, shared libraries, proprietary computer protocols and “applets” incorporated into the Software) are owned or rightfully possessed by Licensor and will remain the sole and exclusive property of Licensor and you will not acquire any right or interest therein. The Software may contain certain licensed materials of third parties, and the licensors of those materials may enforce their rights in the event of any violation of this EULA.
3. Responsibilities of End User
You shall not sublicense or distribute or authorize any person to use the Software licensed under this EULA. You shall NOT, in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code, modify, disassemble, decompile, or create derivative works based on the Software, or remove any proprietary notices or labels on the Software, with the exception of the non-compiled source files provided with the Software, including but not limited to template files and script files, which may be modified for your own commercial use. Failure to comply with any of the restrictions and limitations contained in this Section 3 shall result in immediate termination of the license granted under this EULA, without limitation of any other liability that may be imposed pursuant to such failure. All rights not expressly granted in Section 1 are hereby reserved.
You shall pay the Company the applicable license fee as shown in the Company’s website or such other updated price list of the Company. All payments shall be made without withholding or deduction, except as required by law. If you are required by law to withhold or deduct any amount from amounts due hereunder, you shall make payment of such additional amounts as are required to ensure that Licensor receives the full amount due hereunder as if no such withholding or deduction was made. The applicable license fee does not include applicable taxes or government charges except as may be expressly set forth in the Company’s website or such other updated price list of the Company. Late payments shall bear interest at the lower of either 1.5% per month or the highest rate permitted under applicable law. All payments must be made according to instructions provided by Licensor from time to time.
5. Term and Termination
This EULA shall commence on the date of payment for the Software by the you and shall continue for term of 12 months (”Initial Term”). Thereafter, by paying the applicable license fee you may renew the term for additional successive periods of 12 months each (each a “Renewal Period”, and together with the Initial Term – the ”Term”). Notwithstanding the foregoing, this EULA: (a) may be terminated by you at any time by removing the Software from your hard drive; or (b) may otherwise be terminated in accordance with the provisions of this EULA.
Notwithstanding the foregoing, and without prejudice to any other rights or remedies to which the parties may be entitled under this EULA and/or any applicable law, either party may immediately terminate this EULA without liability to the other if: (a) the other party commits a material breach of any of the terms of this Agreement (including without limitation any payment terms herein) and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing of the breach; and/or (b) if the other party (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (v) has a receiver appointed, or (vi) institutes any proceedings for the liquidation or winding up.
Upon termination or expiration of this Agreement for any reason whatsoever: (a) all rights granted to you under this EULA shall immediately terminate; (b) you shall immediately cease any use of the Software; (c) all outstanding payments will immediately become due and payable by you; and (d) No refunds will be provided upon termination of this EULA for any reason.
6. Disclaimer and Limitation of Liability
LICENSOR PROVIDES THE SOFTWARE “AS IS.” LICENSOR DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR ERROR FREE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN: (A) IN NO EVENT SHALL LICENSOR OR ITS SUBSIDIARIES OR AFFILIATES BE LIABLE, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE, FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES, LOSS OR CORRUPTION OF DATA OR INFORMATION (INCLUDING WITHOUT LIMITATION PRODUCT DATA, LAYOUTS, TEMPLATES, ARTWORK, PRICING AND OTHER INFORMATION STORED BY THE SOFTWAR), WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY SPECIAL, INDIRECT PUNITIVE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER SIMILAR LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF, MISUSE, INABILITY TO USE, OR THE RELIANCE UPON, THE SOFTWARE AND/OR OTHERWISE IN CONNECTION WITH THIS EULA; AND (B) IN NO EVENT SHALL LICENSOR’S TOTAL AGGREGATE LIABILITY, IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF, MISUSE, INABILITY TO USE, OR THE RELIANCE UPON, THE SOFTWARE AND/OR OTHERWISE IN CONNECTION WITH THIS EULA, EXCEED THE TOTAL LICENSE FEE PAID BY YOU FOR THE SOFTWARE DURING THE 12 MONTHS PERIOD PRECEDING THE DATE ON WHICH THE CLAIM LEADING TO LIABILITY AROSE.
THIS SECTION SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS EULA.
7. Equitable Remedies
You hereby acknowledge and agree that breach or violation of the terms of this EULA would cause Licensor irreparable harm, for which the award of damages would not be adequate compensation. Consequently, you agree that Licensor shall be entitled, without bond or other security and without proof of damages, to appropriate equitable remedies against any and all breaches or threatened breaches of this EULA, which remedy shall be cumulative and not exclusive, and in addition to any other relief to which the Licensor may be entitled at law or in equity.
This EULA does not address support issues. Support, if any, will be provided only pursuant to the terms of the standard support agreement of Licensor or such other agreement to be mutually agreed by the parties.
9. Changes to the Agreement
Licensor reserves the right, at its sole discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this EULA, at any time including when Licensor upgrades the Software, effective upon prior notice as follows: Licensor will post notification of any such changes to this EULA on the Licensor’s website and will post the revised version of this EULA in such location, and may provide such other notice as Licensor may elect in its sole discretion, which may include by email, postal mail or pop-up screen. If any future changes to this EULA are unacceptable to you or cause you to be noncompliance with this EULA, you may terminate the Term of this EULA in accordance with Section 5 herein. Your installation and use of any updated, upgraded or modifications to the Software following notice of changes to this EULA as described above shall mean that you have accepted any and all such changes and agreed to be bound by the terms of the updated EULA. Licensor may change, modify, suspend, or discontinue any component or functionality of the Software at any time. Licensor may also impose limits on certain features or restrict your access to parts or all of the Software without notice or liability. You have no interest, monetary or otherwise, in any feature or content contained in the Software.
This EULA shall be deemed to have been made and executed in Israel without regard to conflicts of law provisions, and any dispute arising hereunder shall be resolved in accordance with the laws of the State of Israel in the competent courts of Tel Aviv, Israel. Notwithstanding the foregoing, Licensor may seek an injunction or other interim equitable relief in any court of competent jurisdiction. You agree that any claim asserted in any legal proceeding by one of the parties against the other shall be commenced and maintained in Israel, having subject matter jurisdiction with respect to the dispute between the parties. In the event that any provision of this EULA shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible, and the remaining portions of this EULA shall remain in full force and effect. This EULA constitutes and contains the entire agreements between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements. Licensor may assign its rights hereunder to any third party without any notice to you. You shall not assign your rights and obligations hereunder to any third party without Licensor’s prior written consent, except that such consent shall not be required for the assignment of all of your rights and obligations hereunder to a purchaser of all or substantially all of your assets or share capital, or which is otherwise a successor to your business, provided that a senior officer of the successor entity provides Licensor with notice of the assignment, appropriate billing information, and a written commitment to satisfy all obligations hereunder including all payment obligations. Assignments in violation of the foregoing shall be null and void.
RIGHT OF PUBLICITY. Licensee expressly and irrevocably grants and permits the Licensor with the right to use its business name, logo and trademarks for display and show by Licensor on HR’s webpages or in any other medium. Licensee further agrees to allow Licensor to use its name, logo and URL on other advertisements, promotional materials and related collateral (“Marketing Uses”), including without limitation, for the purpose of demonstrating the usage of the Software by Licensee on its systems.
11. U.S. Government Restricted Rights
If the Software is acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as set forth in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency will obtain only those rights in technical data and software customarily provided to the public as defined in this EULA.
Updated: February 2020