END-USER LICENSE AGREEMENT FOR SERAFIM FUTURES SOFTWARE
This end-user license Agreement (“EULA”) is a legally binding license agreement between the entity or organization you represent, or if you do not designate an entity or an organization in connection with a license purchase, you in your individual capacity (“you” or “your”) and Serafim Ltd, whose address is 231 Bangor Road, Holywood, County Down, BT18 0JQ, United Kingdom (“Serafim”) for the Serafim Software identified above and as further defined in this EULA.
Definitions used in this EULA.
Except as may be set forth in a separate agreement, amendment, or addendum to this EULA which sets forth a different term for your license, Serafim hereby grants you a perpetual, non-exclusive, non-transferable, non-sublicensable, limited license to install and run the Software in a manner consistent with its design and documentation. The license granted herein is in all cases subject to and conditioned on your compliance with this EULA.
2.1 General and Cross Platform Use.
Except as otherwise provided in this EULA and so long as you comply with the terms and conditions of this EULA, you are licensed to install and run one copy of the Software on one licensed device (the first licensed device) for use by one person at a time. Provided that you comply with all the terms and conditions of this EULA and when required by the Software, you present a valid, authorized, and activated Software key, you may also install and run a second copy of the Software on a second licensed device for use only by you for your internal business or individual use only, whichever is applicable. Only one person at a time may use the Software on each licensed device and the two licensed devices may not be used simultaneously by that one person. The components of the Software are licensed as a single unit, and you may not separate or virtualize the components and install them on different devices. By way of clarity, if this license has been entered into by an entity or organization, the copies of the Software licensed hereunder may only be used for the internal business purposes of the licensee entity or organization.
2.2 Distribution from Server.
So long as you comply with the terms and conditions of this EULA, you are licensed to copy an image of the Software onto Computer file server(s) within your Internal Network for the purpose of downloading and installing the Software onto devices within the same Internal Network for use as permitted herein.
2.3 Server use.
So long as you comply with the terms and conditions of this EULA, you are licensed to install a copy of the Software on Computer file server(s) within your Internal Network only for use of the Software initiated by an individual from a Computer within the same Internal Network as permitted by this EULA. The total number of users (not the concurrent number of users) able to use the Software on such Computer file servers(s) may not exceed the number permitted by the license ordered by you.
By way of example, the foregoing does not permit you to install or access (either directly or through commands, data or instructions) the Software: (i) from or to a Computer or device not part of your Internal Network, (ii) for enabling web hosted workgroups or services available to the public, (iii) by an individual or entity to use, download, copy or otherwise benefit from the functionality of the Software unless licensed to do so by Serafim, (iv) as a component of a system, workflow or service accessible by more than the number of users permitted by the license ordered by you, or (v) for operations not initiated by an individual user (e.g., automated server processing)
2.4 Restrictions on Secondary Use by Multi-user Licensees.
If the Software was obtained under a Serafim multi-user license program by any licensee, the second copy of the Software must be used solely for the benefit and business of that multi-user licensee.
2.5 Backup Copy.
So long as you comply with the terms and conditions of this EULA, you are licensed to make a reasonable number of backup copies of the Software, provided your backup copies are not installed or used for other than archival purposes.
2.6 Integrity of 3rd Party Content and Software.
Your use of the Software may be affected by digital rights management systems in order to protect the integrity of certain third party Content and the Software. You may not use any Computer or hardware designed to defeat any copy-protection device, should the Content or Software you have licensed utilize such protection. You may not remove or alter any trademark, trade names, product names, logos, copyright notices, legends, symbols, labels, or watermarking in any third party Content or the Software, except to the extent as expressly indicated in the third party Content or Software.
The license granted to you in this EULA is further conditioned upon your compliance with all of the following conditions:
4.1 The Software includes technology to restrict the use to what is permitted under the relevant license (“Community”, “Professional” or “Enterprise”) .
4.2 The Software includes technology designed to prevent unauthorized use and copying. If you do not follow the validation, installation, or license management process described in the applicable documentation, such technology may prevent your use of the Software. You are advised to cease using the illegal version and contact Serafim or one of its authorized Resellers and Distributors to obtain a legally licensed copy.
5.1 Serafim may terminate this EULA if you fail to comply with any of the terms and conditions of this EULA, which includes, but is not limited to, your unauthorized reproduction, copying, distribution, modification, adaptation or the making of a derivative of or display of the Software or any of the Software keys associated with the same. In such event, upon termination you must delete or destroy all copies of the Software and any Software keys associated with the same and all of its component parts and you must provide Serafim in writing your certification as to the same.
5.2 BY PAYING THE LICENSE FEE FOR THE SOFTWARE WITHOUT REQUESTING A REFUND OF SUCH FEE (IN ACCORDANCE WITH SERAFIM’S RETURN AND CANCELLATION POLICIES AND PROCEDURES AND/OR THE APPLICABLE RETURN AND CANCELLATION POLICIES OF SERAFIM’S AUTHORIZED RESELLERS AND DISTRIBUTORS), OR INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, SUCH ACTS INDICATE YOUR ACCEPTANCE OF THIS EULA AND YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA.
6.1 This EULA is for the licensed use and access to the Software and not an agreement for sale. You acknowledge that irrespective of any use of the word “purchase” or “Reseller” or the like hereunder, no ownership rights are being conveyed to you under this EULA or otherwise and you agree that all rights, title, and interests, including, but not limited to, all copyrights, trade secret rights, patent and trademark rights, whether foreign or domestic, in and to the Software (including, but not limited to, any source or object code, images, implementations of algorithms, text, and apps incorporated into the Software), the accompanying printed materials or online documentation, and any copies of the Software, are owned by and shall remain the sole property of Serafim or its suppliers or licensors.
6.2 THE SOFTWARE IS PROTECTED BY U.K. COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. SERAFIM AND/OR ITS SUPPLIERS OR LICENSORS, ARE AND SHALL REMAIN THE OWNERS OF ALL INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE. THE SOFTWARE IS LICENSED TO YOU ON A NON-EXCLUSIVE, NON-ASSIGNABLE, NON-TRANSFERABLE, LIMITED, PERSONAL BASIS, NOT SOLD.
You agree that if you use the Software in any unauthorized manner, or breach the terms and conditions of this EULA, such use or breach may have a devastating and serious impact on Serafim's continuing ability to compete profitably and would, therefore, result in immediate and irreparable injury, loss, or damage to Serafim. The parties agree that in such event, in addition to Serafim’s right to recover damages for a breach of this EULA, Serafim shall be entitled to obtain a temporary restraining order or a preliminary injunction from a court of competent jurisdiction, without posting of bond or other security or proof of actual damages, to prevent you, your employees, agents, consultants, or independent contractors from engaging in any further mis-use copying, of the Software or the continued breach of the remaining terms and conditions of this EULA .
The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the government is subject to restrictions as applicable. The Manufacturer is: Serafim Ltd, 231 Bangor Road, Holywood, County Down, BT18 0JQ, United Kingdom. You acknowledge and agree as a condition to the license granted under this EULA that the Software may not be downloaded or otherwise exported or re-exported: (i) into (or to the national resident of) any country to which the U.K. has embargoed goods; or (ii) to anyone on the U.K. government's list of specially Designated Nationals. By using the Software, you are agreeing to the foregoing and are representing and warranting that you are not located in or under the control of, a national resident of any such country or on any such list.
Serafim warrants that the Software will substantially conform to the applicable documentation and specifications and will be in good working order for a period of ninety (90) days following the date of purchase. This warranty does not apply if the Software: (i) has been altered, except by Serafim or its authorized representative, (ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Serafim, or (iii) has been subjected to misuse, negligence, or accident.
EXCEPT AS EXPRESSLY SET FORTH IN THE PARAGRAPH ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SERAFIM AND ITS SUPPLIERS, AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
Serafim's and its suppliers' or licensor's entire liability and your exclusive remedy for a breach of the Limited Warranty set forth herein, shall be, at Serafim's option, either: (a) to refund the license paid; or (b) to repair or replace the Software that does not meet Serafim's Limited Warranty and which is returned to Serafim. This Limited Warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside the United Kingdom, neither these remedies nor any product support services offered by Serafim are available without proof of purchase from an authorized international source.
In no event will Serafim be liable for the following, regardless of the theory of liability or whether arising out of the use or inability to use the Software or otherwise, even if Serafim has been advised of the possibility of such damages: (a) indirect, incidental, exemplary, special or consequential damages; (b) loss or corruption of data or interrupted or loss of business; or (c) loss of revenue, profits, goodwill or anticipated sales or savings. All liability of Serafim, its affiliates, officers, directors, employees, agents, suppliers and licensors collectively, to You, whether based in warranty, contract, tort (including negligence), or otherwise, shall not exceed the license fees paid by you for the Software that gave rise to the claim. This limitation of liability for Software is cumulative and not per incident. Nothing in this Agreement limits or excludes any liability that cannot be limited or excluded under applicable law.
12.1 You acknowledge and understand your Content is your sole responsibility including making and keeping back-up copies of your Content and your use and distribution of your Content is at your sole discretion and risk.
You shall be solely responsible for any claims or causes of action that may arise in connection with such use and distribution of your Content. Notwithstanding anything to the contrary herein, Serafim has no responsibility or liability for the deletion or accuracy of your Content or any other Content , the failure to store, transmit or receive transmission of your Content or any other Content (whether or not processed by the Online Service), or the security, privacy, storage, or transmission of other communications originating with or involving use of the Software. Certain features of the Software enable you to specify the level at which the Software may restrict access to your Content. You are solely responsible for applying the appropriate level of access to your Content.
You agree to defend, indemnify and hold Serafim, its affiliates, subsidiaries, officers, directors, employees, consultants, agents, suppliers, licensors, Resellers, and Distributors from any and all third party claims, whether foreign or domestic, and any and all liability, damages and/or costs including, but not limited to, reasonable attorney fees, arising from your use of the Software and your Content and the distribution of the same, your violation of this EULA, or the infringement or violation by you or any other user of the Software, of any agreement of any kind or any intellectual property or other right, including but not limited to, patent, trademark, copyright or trade secret rights of any person due to the publication or distribution of your Content.
Serafim agrees to defend, indemnify and hold you, your affiliates, subsidiaries, officers, directors, employees, consultants, agents and suppliers from any and all third party claims, whether foreign or domestic, and any and all liability, damages and/or costs including, but not limited to, reasonable attorney fees, arising from the infringement or violation by Serafim, of any agreement of any kind or any intellectual property or other right, including but not limited to, patent, trademark, copyright or trade secret rights of any person or entity due to the publication or distribution of the Software.
If such a claim is made or appears possible, You agree to permit Serafim, at Serafim’s sole discretion, to (A) modify or replace the SOFTWARE, or component or part thereof, to make it non-infringing, or (B) obtain the right for you to continue use. If Serafim determines that neither alternative is reasonably available, Serafim may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to you. If Serafim takes the decision to terminate this Agreement, you will be entitled to a pro rata refund in respect of any fees already paid for the remaining period of the contract.
12.2 Ownership of Content, License, and Restrictions.
12.2.1 Ownership.
Title and intellectual property rights in and to any Content displayed by, reproduced or accessed through the Software, belongs to the respective Content owners. Such Content may be protected by copyright or other intellectual property laws and treaties, and may be subject to terms of use of the third party providing or displaying such Content . This EULA does not grant you any rights to use such Content other than as expressly indicated in the Software, this EULA or any Addendums to the same. The Software may be used to reproduce or record your Content, so long as such use is limited to the reproduction of non-copyrightable Content, Content which you own the intellectual property rights in and to the same, or Content which you are authorized or legally permitted to reproduce, record or display.
12.2.2 Your Representations and Warranties Regarding Your Content.
You represent and warrant that: (a) you are the owner, licensee, or authorized user of all your Content; and (b) you will not upload, record, publish, post, link to, or otherwise transmit or distribute Content that: (i) infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party or Serafim, or any rights of publicity or privacy of any party, whether foreign or domestic; (iii) contains any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, information, or property of another; or (iv) violates any law, statute, ordinance, or regulation (including, without limitation, the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising).
The conditions, restrictions and obligations as contained in this EULA which you have voluntarily agreed to shall survive any expiration, termination or cancellation of this EULA, and shall continue and remain in effect to bind you, and your employees, agents, successors, heirs and assigns to the extent necessary to fulfill their essential purposes.
This EULA and the applicable license order and Addendums set forth the entire Agreement and understanding between the parties as to the subject matter of this EULA and supersedes all prior discussions, representations, and amendments of understandings of every kind and nature between the parties.
This EULA may not be amended, altered, or any of its provisions waived on behalf of either party, except in writing executed by both parties' duly authorized agent.
Except as otherwise expressly provided under this EULA, this EULA and the rights and duties under this EULA may not be assigned by either party without the prior written consent of the other party.
Except to the extent forbidden in this EULA, this EULA shall be binding upon and inure to the benefit of the respective successors and assigns of the parties.
Captions contained in this EULA are inserted for reference and in no way define, limit, extend or describe the scope of the EULA or intent of any provision in the EULA.
If any provision of this EULA becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, this EULA shall continue in full force and effect without said provision; provided, however, that no such severability shall be effective if it materially changes the economic benefit of the EULA to the other party.
You warrant and represent to Serafim this EULA shall be binding upon you, and that the individual agreeing to be bound under the terms and conditions of this EULA is authorized or has been empowered to do so.
The Software licensed under the terms and conditions of this EULA uses or includes third party components, Content, other copyrighted material, and/or open source software which may be subject to certain “open source” or ”free software” licenses (“Open Source Software”). Acknowledgments, licensing terms and additional disclaimers for such components, Content, materials, or Open Source Software are contained in the "online" electronic documentation for the Software, including without limitation, a 3rdParty Licensing.txt file or may otherwise accompany the same, or are contained in any Addendums to this EULA, and your use of such components, Content, other materials, and/or Open Source Software is governed by their respective terms and conditions and nothing in this EULA limits your rights under or grants you rights that supersede the terms and conditions of any such applicable third party terms and conditions for such third party components, Content, materials, and/or Open Source Software.
This EULA is governed by the laws of England. You agree to the exclusive jurisdiction of the Courts of England. This Agreement has been prepared in the English language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. The parties to this Agreement waive personal service of any and all process upon them and consent that all such service of process be made by registered mail and shall be deemed to be completed five (5) business days after the same shall have been deposited in the United Kingdom mail, postage prepaid. You waive any objection based on inconvenient forum and any objection to venue of any action instituted under this EULA by Serafim in any jurisdiction.
IF YOU DO NOT AGREE TO THE FOREGOING TERMS AND CONDITIONS, YOU DO NOT HAVE A RIGHT TO DOWNLOAD, INSTALL, ACCESS OR USE THE LICENSED SOFTWARE.