End-User Licence Agreement
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING THIS SOFTWARE, YOU AGREE TO THE TERMS OF THIS END USER LICENSE AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS.
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
‘Acceptance Date’ means the date on which the terms of the present Agreement are accepted by the Licensee;
‘Confirmation of Automatic Renewal’ means the option to automatically renew the License under the present Agreement at the end of every Subscription Period;
‘Licensor’ shall mean Bluefort Limited; a company incorporated and registered in Malta with company number C 66163 whose registered office is at Dragonara Business Centre, Dragonara Road, St. Julians STJ 3141, Malta;
‘Licensee’ shall mean and refer to you as the authorised user of the Licensed Program following your acceptance of the terms of this Agreement;
‘Intellectual Property Rights’ means all vested contingent and future intellectual property rights including but not limited to copyright, trade marks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up, database rights and any applications for the protection or registration or these rights and all renewals and extensions thereof existing in any part of the world whether now known or in the future created to which the Licensor may be entitled;
‘License’ means the license to the Licensed Programs granted in terms of the present Agreement;
‘Subscription Fee’ means the fee due for each Subscription Period;
‘Subscription Period’ means the period of one year from the Acceptance Date of this Agreement or from the Renewal Date;
‘Licensed Program’ means the application Product image import app forming the subject of the present Agreement, and shall include, where applicable, the source code and/or object code constituting the said application;
‘Program Documentation’ means the operating manuals, user instructions, technical literature and all other related materials in eye-readable form which may be supplied to the Licensee by the Licensor for aiding the use and application of the Licensed Program;
‘Renewal Date’ means the first day following the last day of the first Subscription Period and every subsequent Subscription Period;
‘Subscription’ shall refer to the License granted under the terms and conditions of this Agreement;
‘Update’ means all content related to the Licensed Program, including, without limitation, all DATs, signature sets, policy updates, and database updates for the Licensed Program, and that are made generally available by the Licensor;
‘Upgrade’ means any and all improvements in the Licensed Program that are made generally by the Licensor.
2 Grant of Licence
2.1 The Licensor grants to the Licensee a non-exclusive, non- transferable license to use the Licensed Program solely for individual use subject to the terms and conditions contained in this Agreement.
2.2 The Licensed Program is strictly confidential to the Licensor, and the Licensor exclusively owns and reserves all right, title, and interest in and to the Licensed Program, including, without limitation, all intellectual property rights in, except to the extent of license granted to the Licensee in terms of this Agreement.
2.3 This Agreement is not an agreement of sale, and no title, intellectual property rights, or ownership rights to the Licensed Program are transferred to you pursuant to this Agreement, the Licensed Program and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the software, all future Updates and Upgrades, and all other improvements, revisions, corrections, bug-fixes, patches, modifications, enhancements, releases, DATs, signature sets, upgrades, and policy and database updates and other updates in, of, or to the Licensed Program, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and the intellectual property of the Licensor.
2.4 The Licensee acknowledges that it is licensed to use the Licensed Program only in accordance with the express terms of this Agreement and not further or otherwise.
3 Paid Subscription
3.1 The license under the present Agreement is being offered subject to a paid Subscription Fee after trail acceptance, which may be renewed at the end of every Subscription Period subject to the provisions found in clause 3.2 below.
3.2 The Licensee will be given the option, at the same time when agreeing to the terms and conditions of this Agreement, to opt for a Confirmation of Automatic Renewal in which case the stated Subscription Fee shall remain in place and due until such time that this Agreement shall remain in place between the parties.
4.2 The Subscription Fee and other charges payable under this Agreement are exclusive of any applicable VAT and other sales tax which shall be payable by the Licensee at the rate and in the manner prescribed by law against submission of a valid tax invoice.
4.3 Any charges payable by the Licensee under this Agreement in addition to the Subscription Fee shall be paid within thirty (30) days after the receipt by the Licensee of the Licensor's invoice therefor.
4.4 The Licensor shall have the right to charge interest on overdue invoices at the rate of three percent (3%) per year above the base rate of European bank calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment whether before or after judgment.
5 Restrictions on alterations
5.1 Subject to clause 5.2, the Licensee undertakes not to translate, adapt, vary, modify, disassemble, decompile or reverse engineer the Licensed Program without the Licensor’s prior written consent.
5.2 Notwithstanding clause 5.1, in the case of reverse analysis where permitted by applicable law, the Licensee may incidentally decompile the Licensed Program only if it is essential to do so in order to achieve interoperability of the Licensed Program with another software program or hardware (‘Permitted Purpose’) and provided the information obtained by the Licensee during such decompilation is only used for the Permitted Purpose and is not disclosed or communicated to any third party without the Licensor's prior written consent and is not used to create any software which is substantially similar to the expression of the Licensed Program nor used in any manner which would be restricted by copyright.
5.3 Notwithstanding clause 5.1, the Licensee undertakes to first consult the Licensor regarding any data the Licensee requires in order to achieve interoperability or to deduce underlying ideas and principles so that the Licensor may consider making the same available to the Licensee (without the Licensee having to rely on clause 5.2) subject to the restrictions on disclosure set out in clause 5.2.
Intellectual Property Rights
6.1 The Licensed Program and the Intellectual Property Rights of whatever nature in the Licensed Program, or any part thereof, including any Update or Upgrade, are and shall remain the property of the Licensor, and any act in violation of the Licensor’s copyright in the Licensed Program, including but not limited to the reproduction, distribution, transmission, adaptation and/or modification of the Licensed Program, or the making available of the Licensed Program to the public (’Unauthorised Use’), shall constitute a breach of the Licensor’s Intellectual Property Rights, provided that the Licensee is allowed to perform any acts necessary to observe, study or test the functioning of the Licensed Program as long as these acts do not infringe the copyright in that program.
6.2 The Licensee shall notify the Licensor immediately if the Licensee becomes aware of any Unauthorised Use of the whole or any part of the Licensed Program by any person.
6.3 The Licensor shall defend at its own expense any claim brought against the Licensee alleging that the use of the Licensed Program infringes the Intellectual Property Rights of a third party (‘Intellectual Property Claim’) and the Licensor shall pay all costs and damages awarded or agreed to in settlement of an Intellectual Property Claim provided that the Licensee:
6.3.1 furnishes the Licensor with prompt written notice of the Intellectual Property Claim;
6.3.2 provides the Licensor with reasonable assistance in respect of the Intellectual Property Claim;
6.3.3 gives to the Licensor the sole authority to defend or settle the Intellectual Property Claim.
6.4 The Licensor shall have no liability for any Intellectual Property Claim resulting from the use of the Licensed Program in combination with any other software programs not supplied or approved by the Licensor.
7.1 To the extent permitted by applicable law, the Licensor:
7.1.1 disclaims all warranties with respect to the Licensed Program, either express or implied, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result;
7.1.2 makes no warranty that the Licensed Program is error free or that its use will be uninterrupted and the Licensee acknowledges and agrees that the existence of such errors shall not constitute a breach of this Agreement;
7.1.3 does not give any warranty in respect of third party products to be used in conjunction with the Licensed Program.
8.1 In no event will the Licensor be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of the use of the Licensed Program, whether such damages were reasonably foreseeable or otherwise.
8.2 The Licensee hereby expressly agrees that he Licensor’s maximum and total liability under this Agreement shall be limited to the total amount in the form of Subscription Fees that have been paid by the Licensee to the Licensor under the terms of this Agreement.
8.3 The Licensee's statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in this Agreement is excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other form of action. For the purposes of this clause, the ‘Licensor’ includes its employees, sub-contractors and suppliers. Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentation.
9.1 The Licensee may terminate the License at any time by simply uninstalling and/or removing form its system the Licensed Program. In any such event it is incumbent on the Licensee to duly inform in writing the Licensor of its intention not to maintain the License.
9.2 The Licensor may terminate this Agreement at any time subject that it provides the Licensee with advance notice of termination and that termination will take place on the expiration of the Subscription Period which was ongoing at the time of notification of termination by the Licensor.
9.3 The Licensor may terminate the License forthwith on giving notice in writing to the Licensee if the Licensee commits any serious breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within fifteen (15) days after the receipt of a request in writing from the Licensor to do so, to remedy the breach (such request to contain a warning of the Licensor's intention to terminate).
9.4 There shall be no refund of the Subscription Fee for the relevant ongoing Subscription Period where this Agreement is terminated in terms of Clause 9.1 and/or 9.3 prior to the expiration of the said Subscription Period.
9.5 There shall be no liability for any direct or indirect damage caused by the termination this Agreement in terms of Clause 9.2 and/or 9.3.
10 Data protection
The parties undertake to comply with the provisions of the Data Protection Act (Chapter 440 of the Laws of Malta) and any related legislation both present and future in so far as the same relates to the provisions and obligations of this Agreement, including but not limited to Regulation (EU) 2016/679 of the European Parliament and Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
11.1 In this Agreement unless the context otherwise requires:
11.1.1 words importing any gender include every gender;
11.1.2 words importing the singular number include the plural number and vice versa;
11.1.3 words importing persons include firms, companies and corporations and vice versa;
11.1.4 references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
11.1.5 reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
11.1.6 the headings to the clauses, schedules and paragraphs of this Agreement will not affect the interpretation;
11.1.7 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
11.1.8 any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
11.1.9 any party who agrees to do something will be deemed to fulfil that obligation if that party procures that it is done.
11.2 In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in any schedule, the provision in the body of this Agreement shall take precedence.
12 Agency, partnership
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
13 Entire agreement
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement.
14 Force majeure
Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party. If such circumstances continue for a continuous period of more than three (3) months, either party may terminate this Agreement by written notice to the other party.
15.1 All notices under this Agreement shall be in writing.
15.2 Notices shall be deemed to have been duly given:
15.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
15.2.2 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
15.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
15.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid, in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.
16 Changes to the Agreement
16.1 The Licensor may, in its discretion and subject that this is always done in line with applicable legislation, make changes to the present Agreement at any time, provided that notice of any such change shall be given to the Licensee by virtue of an automated message or by email.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
This Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of this Agreement and any version or translation of it in any other language, the English language version shall prevail.
20 Proper law and jurisdiction
20.1 This Agreement and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with Maltese law notwithstanding the conflict of law provisions and other mandatory legal provisions save that:
20.1.1 the Licensor shall have the right to sue to recover its fees in any jurisdiction in which the Licensee is operating or has assets; and
20.1.2 the Licensor shall have the right to sue for breach of its intellectual property rights and other proprietary information and trade secrets (‘IPR’) (whether in connection with this Agreement or otherwise) in any country where it believes that infringement or a breach of this Agreement relating to its IPR might be taking place. For the avoidance of doubt, the place of performance of this Agreement is agreed by the parties to be the Maltese Republic.
21 Compliance with relevant law
Both parties will comply with all applicable laws, rules and regulations in respect of all activities conducted under this Agreement.