EntropySoft : End User License Agreement

End User License Agreement

ENTROPYSOFT, SAS

SOFTWARE LICENSE AGREEMENT

EntropySoft SAS is a French corporation having a place of business at 10, rue d'Uzes, 75002 Paris, registered with the Commercial and Corporate Registry of Nanterre under the number 481 141 083 (“EntropySoft”)

NOTICE: BY DOWNLOADING AND INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU (“the Client”) AGREE TO BE BOUND BY THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT ("SLA") AND BY THE SPECIFIC CONDITIONS OF THE ORDER FORM. IF YOU DO NOT AGREE TO THE TERMS OF THIS SLA AND WITH THE SPECIFIC CONDITIONS OF THE ORDER FORM, YOU MAY NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE. "YOU" MEANS THE NATURAL PERSON OR THE ENTITY THAT IS AGREEING TO BE BOUND BY THIS SLA, THEIR EMPLOYEES AND THIRD PARTY CONTRACTORS THAT PROVIDE SERVICES TO YOU. YOU SHALL BE LIABLE FOR ANY FAILURE BY SUCH EMPLOYEES AND THIRD PARTY CONTRACTORS TO COMPLY WITH THE TERMS OF THIS AGREEMENT AND WITH THE SPECIFIC CONDITIONS OF THE ORDER FORM.


SECTION 1 - DEFINITIONS

«Confidential Information» shall mean any information communicated (whether in writing, orally or by any other means, directly or indirectly) by EntropySoft to the Client before or after the Effective Date,  including, without restriction, the information relative to the Software or products, software programs, operations, procedures, plans, know-how, inventions, and proprietary technology of EntropySoft.

«Contract» shall mean this Software Licensing Agreement, including the Order Form.

«Documentation» shall mean the operational description of the Software which is delivered with the Software (Technical Documentation file), including technical prerequisites to the installation and instructions to use the Software.

«Effective Date» shall mean the issuance date of the purchase order. 

«Error» shall mean a material failure of the Software to conform as described in the applicable User Documentation. The failure (a) can be demonstrated in the environment for which the Software was designed and (b) can be reproduced by EntropySoft and (c) causes the Software to operate improperly in the environment for which it was designed, or produces results different from those described in the applicable User Documentation.  Errors resulting from Client's negligence or improper use of the Software, modifications or damage to the Software by Client, and Client's use of the Software on third-party hardware or software not identified and certified to Client as compatible by EntropySoft, are not considered Errors.

«Error Correction» shall mean either a modification or addition that, when made or added to the Software, brings the Software into substantial conformity with its User Documentation or a procedure or routine that, when observed in the regular operation of the Software, avoids the practical adverse effect of such nonconformity.

«License» shall mean the rights to use the Software and receive the related Maintenance services subscribed to by the Client for the Permitted Purpose and within Customer's licensed Capacity limits set forth in the Order Form.

«Maintenance» shall mean the corrective and improvement maintenance services provided by EntropySoft to the Client in accordance with Section 5.

«Minor Functional Improvements» shall mean a Sub-version of the Software regrouping the corrections to a given number of Anomalies, and including specific minor evolutions or improvements to the Software.

«Order Form» means the order form sent to the Client by EntropySoft that includes the description and details of the licensed Software as well as the Permitted Purpose.

«Patch» shall mean the delivery of one or several software components that correct one or several Errors.

«Permitted Purpose» shall mean the use of EntropySoft products to the extent detailed in the Order Form, confirmed by EntropySoft approval and subject to a subscription fee or perpetual license agreement

«Software» shall mean (i) the Software granted under the License to the Client by EntropySoft, exclusively in object code and according to the details appearing in the Order Form, and (ii) the related Documentation.

«Updates» shall mean any bug fixes, patches or other revisions or changes to or modifications of the Software that are made generally available to EntropySoft customers as a part of Support and Maintenance. Updates do not include Upgrades, new features or major improvements in functionality. Updates are designated by a change in the version number to the right of the first decimal point.

«Upgrades» shall mean any new releases of the Software which would typically include some level of new functionality or features. Upgrades are designated by a change in the version number to the left of the first decimal point.
Updates and Upgrades will be provided to the Client via the EntropySoft World Wide Web support site.


SECTION 2 - PURPOSE OF THE CONTRACT

The purpose of the Contract is to define the legal terms and conditions for the Software License or Licenses bought or subscribed to by the Client with EntropySoft, and the respective undertakings and commitments of the Parties, including:

- a limited license for the use of the Software under the terms and conditions set forth in Section 4 and for the Permitted Purpose, as set forth in the Order Form;
- the Maintenance relating to the Software.


SECTION 3 - TERM AND TERMINATION

3.1 Term. This Contract will become effective on the Effective Date and will remain in effect until terminated in accordance with the following paragraph (the "Term").

3.2 Termination. Either party may terminate this Contract immediately if the other party materially defaults under this Contract and fails to cure such default within 45 days after receipt of written notice of such default from the other party. Subject to applicable law, either party may terminate this Contract immediately if the other party files a petition for bankruptcy, makes an assignment for the benefit of the creditors or a receiver is appointed for the other party or its business.

3.3 Initial Term and Termination. All Licenses granted herein shall become null and void upon the termination of this Contract. Following the termination of this Contract, for whatever reason, Customer shall return to EntropySoft any and all copies of the Licensed Software including any Updates, Upgrades, Documentation, and any other materials relating to the Licensed Software and enhancements thereto. Further, upon termination of this Contract for any reason, both parties shall promptly, and in any event within 30 days following termination, return to the other party all other property and Confidential Information belonging to the other, in all forms partial and complete, in all types of media and computer memory, and whether or not merged with other materials, or to the extent such return is not reasonably practical, will destroy the foregoing and upon request, provide the originating party with a certificate by an officer of the company certifying destruction.

SECTION 4 - LICENSE TERMS

4.1 License Terms. Subject to the payment of the relevant fees, EntropySoft grants to the Client the individual and non-exclusive, non-transferable right to use the Software exclusively for the Permitted Purpose and within Customer's license, as set forth in the Order Form.

4.2. Restrictions. The Client’s rights to the Software are limited to those rights that have been expressly granted to it under Article 4.1 herein. EntropySoft reserves all other rights concerning the Software that have not been expressly granted to the Client under the Contract. Specifically, the Client is prohibited from:

a) Reproducing or copying the Software, with the exception of one (1) backup or archival copy, provided that any copy contains all of the original proprietary notices. This back-up or archival copy may be used only in case the original version was damaged or destroyed,
b) selling, transferring, granting Sub-licenses or distributing in any way whatsoever the Software to third parties,
c) correcting, modifying, adapting or translating the Software,
d) providing the Software to any third parties or making its functions available to such under provision of any  hosting services in the form of shared time access, or under provision of any similar services, and,
e) developing its own activation codes or attempting to bypass or causing the Software activation codes to fail to function.

4.3 Ownership of the Software. The Software and all intellectual property rights to the Software are and shall remain the exclusive property of EntropySoft. The Client shall reproduce the statements relating to EntropySoft’ intellectual property on any copy of the Software, and shall not change or remove or erase any such statement.

4.4 Source code. The Client shall not acquire any right to the source code of the Software. The Client is prohibited from disassembling, decompiling or doing any reverse engineering of the Software, or attempting to access the source code of the Software in any way whatsoever, or allowing any third parties to carry out such procedures.


SECTION 5 - SOFTWARE MAINTENANCE AND SUPPORT

5.1.1 Support and Maintenance Services. Client shall purchase Maintenance and Support from EntropySoft with respect to the Licensed Software. The Annual Maintenance and Support Fee entitles Client to the following maintenance services: (i) notification of and access to Updates released by EntropySoft; and (ii) notification of and access to Upgrades to the then Current Release.
Maintenance and Support does not include new modules released by EntropySoft that include significantly different features and functionality which are packaged and marketed as separate modules.
Under no circumstances will EntropySoft be responsible for supporting or correcting any errors in the Licensed Software resulting from any modifications made by Client, and EntropySoft will not be liable for any loss or damage of any nature directly or indirectly caused by such modifications. Client must install Patches, Service Packs, or HotFixes received from EntropySoft in order to receive Maintenance and Support. If Client terminates Maintenance and Support, EntropySoft shall be under no obligation to resume providing such services to Client under any circumstances.
EntropySoft may, at its sole discretion, cease providing Maintenance and Support for any prior version of the Licensed Software six (6) months after an Upgrade is made available. Either party may terminate Maintenance and Support effective on an anniversary of the Effective Date by providing written notice to the other of its desire to do so at least sixty (60) days prior to such anniversary.

5.1.2 Error Correction/Call Priority
Call priorities are established consistent with the level of urgency or impact on the Client’s business.
- Priority Class A: Concerns a significant defect that leads to either a total loss of functionality or of unsaved data, and for which there is no known workaround.  EntropySoft will begin to work on the problem within 4 hours and will provide either a workaround or a fix for the defect within one (1) days.
- Priority Class B: Concerns a less important defect, such as either a partial loss of functionality, or a loss of already saved data.  EntropySoft will begin to work on the problem within 8 hours and will offer either a workaround or a fix for the defect within six (6) working days.
- Priority Class C:  Concerns a fix that is required for a problem that does not entail either a loss of functionality, or a loss of data.  EntropySoft will contact the customer, within fifteen (15) working days, to confirm whether the defect will be corrected, or not, and of the likely timescale for the fix.  The potential fix will be included either in a patch, or in the next Major or Minor Version of the product.

All response times for Priority B and C are based on EntropySoft’s standard support hours from 9 to 12.30 and from 13.30 to 18.00 Central European Time (Paris, France), on business days Monday to Friday.
If EntropySoft is unable to correct the Error(s) as described above for Priority A and B Errors, within 1 or 6 days from the time of EntropySoft’s initial response as applicable, EntropySoft will provide Reseller with the then-existing diagnosis of the problem and outline EntropySoft’s then existing plan and timetable for resolving the Error. EntropySoft will report its progress in correcting the Error to Reseller in accordance with the table for resolving the Error.  EntropySoft shall use all commercially reasonable efforts to work on such Errors until such Errors are remedied.

5.1.3 Telephone Support.  EntropySoft will provide the Client with a telephone answering service during normal office hours (Monday till Friday, from 9.00 to 12.30 and from 13.30 to 18.00 (Paris time)) to answer stringent technical problems. Outside the normal office hours, the Client may leave a message either on an EntropySoft telephone answering machine, an EntropySoft fax number or on the EntropySoft Website for a response by EntropySoft during its normal office hours.

5.1.4 Support flow. The Client is entitled to access an online support service located at EntropySoft support site (http://support.entropysoft.net).

5.2 Exclusions from Maintenance. Maintenance Services under these Support and Maintenance Terms do not include, system administration training, operations training, network management setup for the Products, travel and living expenses for installation and training, file conversion costs, optional products and services, directories, consulting services, shipping charges, or the costs of any recommended hardware.

These Support and Maintenance Terms also do not cover support or maintenance services for any failure or defect in the Products caused by any of the following:
(a) the improper use, alteration, or damage of the Products by persons other than EntropySoft employees;
(b) modifications to the Products not made or authorized by EntropySoft;
(c) software other than the Products;
(d) application interfacing between the Products and other software that has not be approved or certified by EntropySoft as being compatible with the Products; and
(e) use of Products with hardware, or third party software that has not been approved and certified by EntropySoft.

5.3. Updates and Upgrades

5.3.1 Updates/Upgrades.  During the duration of the License as indicated in the Order Form, EntropySoft shall provide Client with Updates and Upgrades of the Software for the Client at such time as such updates and upgrades are made generally available by EntropySoft to its customers of the Software.

5.3.2 Update Support Policy.  EntropySoft will support the current and immediately precedent Upgrade.


SECTION 6 - AUDIT

Subject to compliance with a notice period of at least seven (7) days, EntropySoft may carry out one audit on the premises of the Client with the staff of the Client, during business hours, in order to verify that the use of the Software by the Client is in conformity with the terms and conditions of the Contract and in particular with the Order Form.

These audits shall be made at EntropySoft’ expense, except where the results of such audits demonstrate that the Client has not complied with its obligations under the Contract.  In such case, the Client shall reimburse EntropySoft for all costs incurred by EntropySoft during the audit, upon presentation of EntropySoft’ invoice, and without prejudice to any damages and interest that may be claimed by EntropySoft.


SECTION 7 – LIMITED WARRANTY

7.1 Limited Product Warranty. EntropySoft warrants that, for a period of thirty (30) days from the Effective Date, the Software shall substantially operate in conformity with the Documentation. The Client shall present any claim under this Warranty to EntropySoft during this period of thirty (30) days.

7.2 Remedies for Limited Product Warranty. If Client notifies EntropySoft within the Warranty Period that the Licensed Software does not meet the limited warranty, then EntropySoft will, at its option, either (a) return the price paid for the Licensed Software, or (b) repair or replace the Licensed Software. These are Client's only remedies for breach of the limited warranty, unless other remedies are required to be provided under applicable law.

7.3 Exclusions. EntropySoft shall have no obligation or other liability with regard to any error or noncompliance with the above warranty that is caused, in whole or in part by; (a) modifications or alterations to the Licensed Software made by Customer; (b) use of the Licensed Software by Customer other than as permitted herein; (c) the negligence or willful misconduct of Customer; (d) Customer's implementation or installation of the Licensed Software other than in accordance with instructions furnished by EntropySoft; (e) problems with the Customer environment in which the Licensed Software resides; or (f) content supplied by Customer, content owners, end users or other third parties.

7.4 Disclaimer.

EXCEPT AS STATED IN THIS SECTION, (i) THE LICENSED SOFTWARE IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND; (ii) THE ENTIRE RISK AS TO THE RESULT AND PERFORMANCE OF THE LICENSED SOFTWARE IS ASSUMED BY CUSTOMER; AND (iii) ENTROPYSOFT AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE LICENSED SOFTWARE OR THE USE OR OPERATION THEREOF, AND SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. THESE DISCLAIMERS WILL APPLY UNLESS APPLICABLE LAW DOES NOT PERMIT THEM.


SECTION 8 - LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR FOR ANY LOSS OF DATA, LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.  UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID AND PAYABLE TO ENTROPYSOFT PURSUANT TO THIS AGREEMENT DURING THE LAST TWELVE MONTHS, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, THE LIMITATION OF LIABILITY UNDER THIS SECTION 0 DOES NOT APPLY TO LIABILITIES THAT ARISE TO EITHER PARTY AS A RESULT OF ACTIONS THAT INFRINGE INTELLECTUAL PROPERTY OR VIOLATE CONFIDENTIAL INFORMATION RESPONSIBILITIES UNDER THIS AGREEMENT.


SECTION 9 - FORCE MAJEURE (ACTS OF GOD)

9.1 Definition of Force Majeure. The following are considered events of Force Majeure under the terms of the Contract: any event (i) whose consequences, even if foreseen by EntropySoft, could not have been prevented, and (ii) when EntropySoft has taken all measures normally required of any diligent professional in order to avoid such taking place (« Force Majeure»). Such events of Force Majeure include, but are not limited to, the following: action by the Client, government action, fire, flood, epidemic, quarantine, energy crises, strikes, corporate difficulties, war, and acts of terrorism, riots, accidents or shortages.

9.2 Effects of Force Majeure. EntropySoft cannot be held liable with regard to the Client in the event where the performance of its obligations is delayed, restricted or made impossible due to the occurrence of a case of Force Majeure. In the event where EntropySoft suffers a Force Majeure event, the performance of its obligations shall be suspended. If the case of Force Majeure extends beyond one (1) month, the Parties may in good faith negotiate the termination of the Contract.


SECTION 10 - CONFIDENTIALITY

Except with the prior written consent of EntropySoft, the Client undertakes in its own name and on behalf of its agents, for the duration of the Contract and after its termination, not (i) to use the Confidential Information except for the purposes of the performance of its obligations in conformity with the Contract or (ii) to disclose the Confidential Information to any person other than the salaried employees of the Client.

SECTION 11 - TERMINATION

11.1 Termination.  If either party defaults in the performance of or compliance with any provision contained in this Agreement including, without limitation, the payment terms of Section 5, and such default is not cured within thirty (30) days after receipt of written notice of such breach, then the non-defaulting party may elect immediately to terminate this Agreement upon written notice.  In such event, the non-defaulting party giving notice of termination will do so without liability to the defaulting party, except for any accrued obligations.  For the purposes of this section, the term “default” includes, but is not limited to, the other party’s insolvency, general assignment for the benefit of creditors, filing of a voluntary petition of bankruptcy, suffering or permitting the appointment of a receiver for its business or assets, or becoming subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or liquidating, whether voluntarily or otherwise.

11.2 Effects of Termination. Upon termination of this Agreement, all outstanding payment obligations up to the date of termination shall become immediately due and payable.  Upon termination, except as permitted below, Reseller shall promptly return to EntropySoft all original and Master Copies of the Software at Reseller’s sole expense and shall erase the Software from any and all temporary or permanent storage facilities on its site or within its care or control. If requested, Reseller shall provide EntropySoft with a signed written statement that Reseller has complied with the foregoing.  All rights and licenses granted by EntropySoft herein shall terminate, provided such termination shall not result in the termination of Customer licenses for copies of the Software which already have been purchased by Customers in accordance with the provisions of this Agreement. Notwithstanding the foregoing, Reseller shall have a limited right to distribute the Software solely to fulfill any contractual obligations existing as of the date of termination and to use the Software to provide contractually obligated maintenance and support to Customers and Distributors. Subject to the payment of any amounts due to EntropySoft as provided herein, the foregoing limited license shall survive termination of this Agreement only for so long as is necessary for Reseller to fulfill the previously-referenced contractual obligations.

SECTION 12 – MISCELLANEOUS

12.1 Sale or Transfer. The Client may not sell or transfer the Contract.
Parties may not assign this Agreement without the other party’s prior written consent, not to be unreasonably withheld or delayed; provided, however, that either party may assign this Agreement to any successor by merger, consolidation or sale of all or substantially all of its assets related to this agreement without the consent of the other party so long as the assigning party gives written notice to the non-assigning party of such assignment.  This Agreement will be binding upon the successors and permitted assigns of the parties and the name of a party appearing herein will be deemed to include the names of such party’s successor’s and permitted assigns to the extent necessary to carry out the intent of this Agreement.

12.2 Indivisibility. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid under any applicable statute, rule or law, the parties agree that such invalidity shall not affect the validity of the remaining provisions of this Agreement, and further agree to substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision. 

12.3 Failure to Exercise a Right. Failure to exercise, or delay in exercising, any right or prerogative held by any of the Parties in the context of the Contract shall not be considered as such Party having waived any such right or prerogative for the benefit of the other Party. Any such waiver cannot be effective unless such is stipulated in writing and signed by a legal representative of each of the Parties.

12.4 Notice. All notices under the Contract by one of the Parties to the other Party shall be made in writing and delivered by hand or sent by registered letter or E-mail, with acknowledgement receipt requested, or by express courier outside of France, correctly labeled and sent to the address of the other Party. The notifications (i) delivered by hand shall be considered as having been made at the time of their delivery, (ii) made by registered letter or E-mail with acknowledgement receipt requested shall be considered as having been made at the time of their initial presentation, and (iii) sent by express courier shall be considered as having been made at the time of their delivery. Each Party may change its address by sending notice of such to the other Party.

12.5 Miscellaneous. This License Agreement represents the complete agreement concerning the subject matter hereof and supersedes all prior agreements and representations between the parties. No preprinted terms in any purchase order issued hereunder shall be of any force or effect. This License Agreement may only be amended in a writing executed by both parties. EntropySoft may fulfill its obligations or enjoy the benefits under this License Agreement through any of its Affiliates.

SECTION 13 - APPLICABLE LAW AND RELEVANT JURISDICTION

The Contract is governed by and interpreted under the laws of the State of California, USA. Any dispute or lawsuit arising in connection with the Contract shall be submitted to the exclusive jurisdiction of the State of California, notwithstanding the multiple natures and number of defendants or any invoking of the Warranty.
Software License Agreement


NOTICE: BY DOWNLOADING AND INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU (“the Client”) AGREE TO BE BOUND BY THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT ("SLA") AND BY THE SPECIFIC CONDITIONS OF THE ORDER FORM. IF YOU DO NOT AGREE TO THE TERMS OF THIS SLA AND WITH THE SPECIFIC CONDITIONS OF THE ORDER FORM, YOU MAY NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE. "YOU" MEANS THE NATURAL PERSON OR THE ENTITY THAT IS AGREEING TO BE BOUND BY THIS SLA, THEIR EMPLOYEES AND THIRD PARTY CONTRACTORS THAT PROVIDE SERVICES TO YOU. YOU SHALL BE LIABLE FOR ANY FAILURE BY SUCH EMPLOYEES AND THIRD PARTY CONTRACTORS TO COMPLY WITH THE TERMS OF THIS AGREEMENT AND WITH THE SPECIFIC CONDITIONS OF THE ORDER FORM.


SECTION 1 - DEFINITIONS

«Confidential Information» shall mean any information communicated (whether in writing, orally or by any other means, directly or indirectly) by EntropySoft to the Client before or after the Effective Date,  including, without restriction, the information relative to the Software or products, software programs, operations, procedures, plans, know-how, inventions, and proprietary technology of EntropySoft.

«Contract» shall mean this Software Licensing Agreement, including the Order Form.

«Documentation» shall mean the operational description of the Software which is delivered with the Software (Technical Documentation file), including technical prerequisites to the installation and instructions to use the Software.

«Effective Date» shall mean the issuance date of the purchase order. 
«Error» shall mean a material failure of the Software to conform as described in the applicable User Documentation. The failure (a) can be demonstrated in the environment for which the Software was designed and (b) can be reproduced by EntropySoft and (c) causes the Software to operate improperly in the environment for which it was designed, or produces results different from those described in the applicable User Documentation.  Errors resulting from Client's negligence or improper use of the Software, modifications or damage to the Software by Client, and Client's use of the Software on third-party hardware or software not identified and certified to Client as compatible by EntropySoft, are not considered Errors.

«Error Correction» shall mean either a modification or addition that, when made or added to the Software, brings the Software into substantial conformity with its User Documentation or a procedure or routine that, when observed in the regular operation of the Software, avoids the practical adverse effect of such nonconformity.

«License» shall mean the rights to use the Software and receive the related Maintenance services subscribed to by the Client for the Permitted Purpose and within Customer's licensed Capacity limits set forth in the Order Form.

«Maintenance» shall mean the corrective and improvement maintenance services provided by EntropySoft to the Client in accordance with Section 5.

«Minor Functional Improvements» shall mean a Sub-version of the Software regrouping the corrections to a given number of Anomalies, and including specific minor evolutions or improvements to the Software.

«Order Form» means the order form sent to the Client by EntropySoft that includes the description and details of the licensed Software as well as the Permitted Purpose.

«Patch» shall mean the delivery of one or several software components that correct one or several Errors.

«Permitted Purpose» shall mean the use of EntropySoft products to the extent detailed in the Order Form, confirmed by EntropySoft approval and subject to a subscription fee or perpetual license agreement

«Software» shall mean (i) the Software granted under the License to the Client by EntropySoft, exclusively in object code and according to the details appearing in the Order Form, and (ii) the related Documentation.

«Updates» shall mean any bug fixes, patches or other revisions or changes to or modifications of the Software that are made generally available to EntropySoft customers as a part of Support and Maintenance. Updates do not include Upgrades, new features or major improvements in functionality. Updates are designated by a change in the version number to the right of the first decimal point.

«Upgrades» shall mean any new releases of the Software which would typically include some level of new functionality or features. Upgrades are designated by a change in the version number to the left of the first decimal point.
Updates and Upgrades will be provided to the Client via the EntropySoft World Wide Web support site.


SECTION 2 - PURPOSE OF THE CONTRACT

The purpose of the Contract is to define the legal terms and conditions for the Software License or Licenses bought or subscribed to by the Client with EntropySoft, and the respective undertakings and commitments of the Parties, including:

- a limited license for the use of the Software under the terms and conditions set forth in Section 4 and for the Permitted Purpose, as set forth in the Order Form;
- the Maintenance relating to the Software.


SECTION 3 - TERM AND TERMINATION

3.1 Term. This Contract will become effective on the Effective Date and will remain in effect until terminated in accordance with the following paragraph (the "Term").

3.2 Termination. Either party may terminate this Contract immediately if the other party materially defaults under this Contract and fails to cure such default within 45 days after receipt of written notice of such default from the other party. Subject to applicable law, either party may terminate this Contract immediately if the other party files a petition for bankruptcy, makes an assignment for the benefit of the creditors or a receiver is appointed for the other party or its business.

3.3 Initial Term and Termination. All Licenses granted herein shall become null and void upon the termination of this Contract. Following the termination of this Contract, for whatever reason, Customer shall return to EntropySoft any and all copies of the Licensed Software including any Updates, Upgrades, Documentation, and any other materials relating to the Licensed Software and enhancements thereto. Further, upon termination of this Contract for any reason, both parties shall promptly, and in any event within 30 days following termination, return to the other party all other property and Confidential Information belonging to the other, in all forms partial and complete, in all types of media and computer memory, and whether or not merged with other materials, or to the extent such return is not reasonably practical, will destroy the foregoing and upon request, provide the originating party with a certificate by an officer of the company certifying destruction.

SECTION 4 - LICENSE TERMS
4.1 License Terms. Subject to the payment of the relevant fees, EntropySoft grants to the Client the individual and non-exclusive, non-transferable right to use the Software exclusively for the Permitted Purpose and within Customer's license, as set forth in the Order Form.

4.2. Restrictions. The Client’s rights to the Software are limited to those rights that have been expressly granted to it under Article 4.1 herein. EntropySoft reserves all other rights concerning the Software that have not been expressly granted to the Client under the Contract. Specifically, the Client is prohibited from:

a) Reproducing or copying the Software, with the exception of one (1) backup or archival copy, provided that any copy contains all of the original proprietary notices. This back-up or archival copy may be used only in case the original version was damaged or destroyed,
b) selling, transferring, granting Sub-licenses or distributing in any way whatsoever the Software to third parties,
c) correcting, modifying, adapting or translating the Software,
d) providing the Software to any third parties or making its functions available to such under provision of any  hosting services in the form of shared time access, or under provision of any similar services, and,
e) developing its own activation codes or attempting to bypass or causing the Software activation codes to fail to function.

4.3 Ownership of the Software. The Software and all intellectual property rights to the Software are and shall remain the exclusive property of EntropySoft. The Client shall reproduce the statements relating to EntropySoft’ intellectual property on any copy of the Software, and shall not change or remove or erase any such statement.

4.4 Source code. The Client shall not acquire any right to the source code of the Software. The Client is prohibited from disassembling, decompiling or doing any reverse engineering of the Software, or attempting to access the source code of the Software in any way whatsoever, or allowing any third parties to carry out such procedures.


SECTION 5 - SOFTWARE MAINTENANCE AND SUPPORT
5.1.1 Support and Maintenance Services. Client shall purchase Maintenance and Support from EntropySoft with respect to the Licensed Software. The Annual Maintenance and Support Fee entitles Client to the following maintenance services: (i) notification of and access to Updates released by EntropySoft; and (ii) notification of and access to Upgrades to the then Current Release.
Maintenance and Support does not include new modules released by EntropySoft that include significantly different features and functionality which are packaged and marketed as separate modules.
Under no circumstances will EntropySoft be responsible for supporting or correcting any errors in the Licensed Software resulting from any modifications made by Client, and EntropySoft will not be liable for any loss or damage of any nature directly or indirectly caused by such modifications. Client must install Patches, Service Packs, or HotFixes received from EntropySoft in order to receive Maintenance and Support. If Client terminates Maintenance and Support, EntropySoft shall be under no obligation to resume providing such services to Client under any circumstances.
EntropySoft may, at its sole discretion, cease providing Maintenance and Support for any prior version of the Licensed Software six (6) months after an Upgrade is made available. Either party may terminate Maintenance and Support effective on an anniversary of the Effective Date by providing written notice to the other of its desire to do so at least sixty (60) days prior to such anniversary.

5.1.2 Error Correction/Call Priority
Call priorities are established consistent with the level of urgency or impact on the Client’s business.
- Priority Class A: Concerns a significant defect that leads to either a total loss of functionality or of unsaved data, and for which there is no known workaround.  EntropySoft will begin to work on the problem within 4 hours and will provide either a workaround or a fix for the defect within one (1) days.
- Priority Class B: Concerns a less important defect, such as either a partial loss of functionality, or a loss of already saved data.  EntropySoft will begin to work on the problem within 8 hours and will offer either a workaround or a fix for the defect within six (6) working days.
- Priority Class C:  Concerns a fix that is required for a problem that does not entail either a loss of functionality, or a loss of data.  EntropySoft will contact the customer, within fifteen (15) working days, to confirm whether the defect will be corrected, or not, and of the likely timescale for the fix.  The potential fix will be included either in a patch, or in the next Major or Minor Version of the product.

All response times for Priority B and C are based on EntropySoft’s standard support hours from 9 to 12.30 and from 13.30 to 18.00 Central European Time (Paris, France), on business days Monday to Friday.
If EntropySoft is unable to correct the Error(s) as described above for Priority A and B Errors, within 1 or 6 days from the time of EntropySoft’s initial response as applicable, EntropySoft will provide Reseller with the then-existing diagnosis of the problem and outline EntropySoft’s then existing plan and timetable for resolving the Error. EntropySoft will report its progress in correcting the Error to Reseller in accordance with the table for resolving the Error.  EntropySoft shall use all commercially reasonable efforts to work on such Errors until such Errors are remedied.

5.1.3 Telephone Support.  EntropySoft will provide the Client with a telephone answering service during normal office hours (Monday till Friday, from 9.00 to 12.30 and from 13.30 to 18.00 (Paris time)) to answer stringent technical problems. Outside the normal office hours, the Client may leave a message either on an EntropySoft telephone answering machine, an EntropySoft fax number or on the EntropySoft Website for a response by EntropySoft during its normal office hours.

5.1.4 Support flow. The Client is entitled to access an online support service located at EntropySoft support site (http://support.entropysoft.net).

5.2 Exclusions from Maintenance. Maintenance Services under these Support and Maintenance Terms do not include, system administration training, operations training, network management setup for the Products, travel and living expenses for installation and training, file conversion costs, optional products and services, directories, consulting services, shipping charges, or the costs of any recommended hardware.

These Support and Maintenance Terms also do not cover support or maintenance services for any failure or defect in the Products caused by any of the following:
(a) the improper use, alteration, or damage of the Products by persons other than EntropySoft employees;
(b) modifications to the Products not made or authorized by EntropySoft;
(c) software other than the Products;
(d) application interfacing between the Products and other software that has not be approved or certified by EntropySoft as being compatible with the Products; and
(e) use of Products with hardware, or third party software that has not been approved and certified by EntropySoft.

5.3. Updates and Upgrades

5.3.1 Updates/Upgrades.  During the duration of the License as indicated in the Order Form, EntropySoft shall provide Client with Updates and Upgrades of the Software for the Client at such time as such updates and upgrades are made generally available by EntropySoft to its customers of the Software.

5.3.2 Update Support Policy.  EntropySoft will support the current and immediately precedent Upgrade.


SECTION 6 - AUDIT

Subject to compliance with a notice period of at least seven (7) days, EntropySoft may carry out one audit on the premises of the Client with the staff of the Client, during business hours, in order to verify that the use of the Software by the Client is in conformity with the terms and conditions of the Contract and in particular with the Order Form.

These audits shall be made at EntropySoft’ expense, except where the results of such audits demonstrate that the Client has not complied with its obligations under the Contract.  In such case, the Client shall reimburse EntropySoft for all costs incurred by EntropySoft during the audit, upon presentation of EntropySoft’ invoice, and without prejudice to any damages and interest that may be claimed by EntropySoft.


SECTION 7 – LIMITED WARRANTY
7.1 Limited Product Warranty. EntropySoft warrants that, for a period of thirty (30) days from the Effective Date, the Software shall substantially operate in conformity with the Documentation. The Client shall present any claim under this Warranty to EntropySoft during this period of thirty (30) days.

7.2 Remedies for Limited Product Warranty. If Client notifies EntropySoft within the Warranty Period that the Licensed Software does not meet the limited warranty, then EntropySoft will, at its option, either (a) return the price paid for the Licensed Software, or (b) repair or replace the Licensed Software. These are Client's only remedies for breach of the limited warranty, unless other remedies are required to be provided under applicable law.

7.3 Exclusions. EntropySoft shall have no obligation or other liability with regard to any error or noncompliance with the above warranty that is caused, in whole or in part by; (a) modifications or alterations to the Licensed Software made by Customer; (b) use of the Licensed Software by Customer other than as permitted herein; (c) the negligence or willful misconduct of Customer; (d) Customer's implementation or installation of the Licensed Software other than in accordance with instructions furnished by EntropySoft; (e) problems with the Customer environment in which the Licensed Software resides; or (f) content supplied by Customer, content owners, end users or other third parties.

7.4 Disclaimer.

EXCEPT AS STATED IN THIS SECTION, (i) THE LICENSED SOFTWARE IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND; (ii) THE ENTIRE RISK AS TO THE RESULT AND PERFORMANCE OF THE LICENSED SOFTWARE IS ASSUMED BY CUSTOMER; AND (iii) ENTROPYSOFT AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE LICENSED SOFTWARE OR THE USE OR OPERATION THEREOF, AND SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. THESE DISCLAIMERS WILL APPLY UNLESS APPLICABLE LAW DOES NOT PERMIT THEM.


SECTION 8 - LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR FOR ANY LOSS OF DATA, LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.  UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID AND PAYABLE TO ENTROPYSOFT PURSUANT TO THIS AGREEMENT DURING THE LAST TWELVE MONTHS, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, THE LIMITATION OF LIABILITY UNDER THIS SECTION 0 DOES NOT APPLY TO LIABILITIES THAT ARISE TO EITHER PARTY AS A RESULT OF ACTIONS THAT INFRINGE INTELLECTUAL PROPERTY OR VIOLATE CONFIDENTIAL INFORMATION RESPONSIBILITIES UNDER THIS AGREEMENT.


SECTION 9 - FORCE MAJEURE (ACTS OF GOD)

9.1 Definition of Force Majeure. The following are considered events of Force Majeure under the terms of the Contract: any event (i) whose consequences, even if foreseen by EntropySoft, could not have been prevented, and (ii) when EntropySoft has taken all measures normally required of any diligent professional in order to avoid such taking place (« Force Majeure»). Such events of Force Majeure include, but are not limited to, the following: action by the Client, government action, fire, flood, epidemic, quarantine, energy crises, strikes, corporate difficulties, war, and acts of terrorism, riots, accidents or shortages.

9.2 Effects of Force Majeure. EntropySoft cannot be held liable with regard to the Client in the event where the performance of its obligations is delayed, restricted or made impossible due to the occurrence of a case of Force Majeure. In the event where EntropySoft suffers a Force Majeure event, the performance of its obligations shall be suspended. If the case of Force Majeure extends beyond one (1) month, the Parties may in good faith negotiate the termination of the Contract.


SECTION 10 - CONFIDENTIALITY

Except with the prior written consent of EntropySoft, the Client undertakes in its own name and on behalf of its agents, for the duration of the Contract and after its termination, not (i) to use the Confidential Information except for the purposes of the performance of its obligations in conformity with the Contract or (ii) to disclose the Confidential Information to any person other than the salaried employees of the Client.
SECTION 11 - TERMINATION

11.1 Termination.  If either party defaults in the performance of or compliance with any provision contained in this Agreement including, without limitation, the payment terms of Section 5, and such default is not cured within thirty (30) days after receipt of written notice of such breach, then the non-defaulting party may elect immediately to terminate this Agreement upon written notice.  In such event, the non-defaulting party giving notice of termination will do so without liability to the defaulting party, except for any accrued obligations.  For the purposes of this section, the term “default” includes, but is not limited to, the other party’s insolvency, general assignment for the benefit of creditors, filing of a voluntary petition of bankruptcy, suffering or permitting the appointment of a receiver for its business or assets, or becoming subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or liquidating, whether voluntarily or otherwise.
11.2 Effects of Termination. Upon termination of this Agreement, all outstanding payment obligations up to the date of termination shall become immediately due and payable.  Upon termination, except as permitted below, Reseller shall promptly return to EntropySoft all original and Master Copies of the Software at Reseller’s sole expense and shall erase the Software from any and all temporary or permanent storage facilities on its site or within its care or control. If requested, Reseller shall provide EntropySoft with a signed written statement that Reseller has complied with the foregoing.  All rights and licenses granted by EntropySoft herein shall terminate, provided such termination shall not result in the termination of Customer licenses for copies of the Software which already have been purchased by Customers in accordance with the provisions of this Agreement. Notwithstanding the foregoing, Reseller shall have a limited right to distribute the Software solely to fulfill any contractual obligations existing as of the date of termination and to use the Software to provide contractually obligated maintenance and support to Customers and Distributors. Subject to the payment of any amounts due to EntropySoft as provided herein, the foregoing limited license shall survive termination of this Agreement only for so long as is necessary for Reseller to fulfill the previously-referenced contractual obligations.

SECTION 12 – MISCELLANEOUS
12.1 Sale or Transfer. The Client may not sell or transfer the Contract.
Parties may not assign this Agreement without the other party’s prior written consent, not to be unreasonably withheld or delayed; provided, however, that either party may assign this Agreement to any successor by merger, consolidation or sale of all or substantially all of its assets related to this agreement without the consent of the other party so long as the assigning party gives written notice to the non-assigning party of such assignment.  This Agreement will be binding upon the successors and permitted assigns of the parties and the name of a party appearing herein will be deemed to include the names of such party’s successor’s and permitted assigns to the extent necessary to carry out the intent of this Agreement.

12.2 Indivisibility. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid under any applicable statute, rule or law, the parties agree that such invalidity shall not affect the validity of the remaining provisions of this Agreement, and further agree to substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision. 

12.3 Failure to Exercise a Right. Failure to exercise, or delay in exercising, any right or prerogative held by any of the Parties in the context of the Contract shall not be considered as such Party having waived any such right or prerogative for the benefit of the other Party. Any such waiver cannot be effective unless such is stipulated in writing and signed by a legal representative of each of the Parties.

12.4 Notice. All notices under the Contract by one of the Parties to the other Party shall be made in writing and delivered by hand or sent by registered letter or E-mail, with acknowledgement receipt requested, or by express courier outside of France, correctly labeled and sent to the address of the other Party. The notifications (i) delivered by hand shall be considered as having been made at the time of their delivery, (ii) made by registered letter or E-mail with acknowledgement receipt requested shall be considered as having been made at the time of their initial presentation, and (iii) sent by express courier shall be considered as having been made at the time of their delivery. Each Party may change its address by sending notice of such to the other Party.

12.5 Miscellaneous. This License Agreement represents the complete agreement concerning the subject matter hereof and supersedes all prior agreements and representations between the parties. No preprinted terms in any purchase order issued hereunder shall be of any force or effect. This License Agreement may only be amended in a writing executed by both parties. EntropySoft may fulfill its obligations or enjoy the benefits under this License Agreement through any of its Affiliates.

SECTION 13 - APPLICABLE LAW AND RELEVANT JURISDICTION

The Contract is governed by and interpreted under the laws of the State of California, USA. Any dispute or lawsuit arising in connection with the Contract shall be submitted to the exclusive jurisdiction of the State of California, notwithstanding the multiple natures and number of defendants or any invoking of the Warranty.