SWOOD License and Subscription Service Agreement
The SWOOD License and Subscription Service Agreement constitutes a legal agreement (hereafter “Agreement”) between you (either an individual or an entity) (hereafter “End User”) and EFICAD SAS, a French company registered under the VAT number FR62950408765, with its principal place of business located at 55 avenue de Melgueil, 34280 La Grande Motte, France (hereafter “EFICAD”) regarding the use of EFICAD’s computer software line dedicated to woodworking and known as SWOOD®, which may include, without limitation, SWOOD Design and SWOOD CAM and other software licensed by EFICAD (hereafter “Software”). The term “Software” also includes any updates or upgrades to the Software that the End User may receive from time to time under a subscription service or other support arrangement. The End User may not download, install, use, or copy the Software on any computer without a license from EFICAD and should carefully read the Agreement PRIOR to opening the media that contains the Software, downloading or installing and using the Software. By downloading, installing or otherwise using the Software, the End User expressly acknowledges and agrees to be bound to the terms of this Agreement. If the End User does not agree to this Agreement, the media containing the Software and the accompanying items (including all written material) must promptly be returned to the place of purchase within thirty (30) days for a refund, or the End user may not download, install or use the Software. EFICAD licenses and the use of the Software are governed by this Agreement. EFICAD remains the sole owner of the Software and does not sell its ownership to the End User.
1. Grant of License
Upon the End User’s acceptance to abide by this Agreement AND payment of the relevant license fee, EFICAD hereby grants a non-exclusive, non-sublicensable, non-transferable, license to use the Software in accordance with this Agreement. If only one license was paid for, only this copy of the Software may be used on any single computer. If the End User changes computer, he must move the license from the old computer to the new/upgraded computer. However, if a network license version (hereafter “SNL”) was paid for, then the End User may have as many copies in use as were paid for and licensed. An SNL version of the Software must be installed to assure that the number of concurrent users of the Software does not exceed the number of licenses paid. The Software is considered “in use” on a computer when it is loaded into the temporary memory (e.g. RAM). Regardless of server location, the End User must always continue to comply with U.S. and U.K. export control laws.
2. Ownership of the Software
3. Other Restrictions on Use
The End User shall not use the Software, other than for normal business purposes and shall not provide to any third party use of or access to the Software. Consequently the End User may not sell, license, sublicense, transfer, assign, lease or rent (including via a timeshare arrangement), modify, make derivative works, analyse for competitive purposes against EFICAD, nor proceed to reverse engineering, decompile, disassemble or otherwise attempt to discover the source code of the Software as it contains trade secrets of EFICAD and its licensors. If the Software is provided for demonstration and evaluation purposes, it may be used by the End User for no longer than thirty (30) days (or such longer period authorised by EFICAD in writing), in order to determine if the End User wants to purchase the Software or not.
4. Subscription Service/Maintenance
The End User shall be entitled to receive maintenance services upon the purchase of a subscription for the Software which has been licensed hereunder by paying a fee. The End User will therefore be entitled to receive for such copy, and for the duration of the subscription for which he has paid: (1) access to the latest updates to the Software; (2) all major upgrades for the Software released during the subscription period; and (3) telephone support services (a) from the Authorised EFICAD Reseller from whom the subscription was purchased, or (b) from EFICAD if the subscription was purchased directly from them. It may be renewed thereafter by paying the appropriate renewal fee and must replace the previous version since no additional license is granted; the End User may install only such number of updates as equal to the number of subscriptions for which he has paid.
In the event of the breach of this Agreement, and if the violation is curable but not cured within fifteen (15) days’ written notice to the End User, any license will be immediately terminated by EFICAD. Consequently, the End User must cease the use of the Software and promptly destroy or return all copies of the Software and Documentation to EFICAD. The provisions of Articles 2, 3, 6, 8, and 9 of this Agreement shall survive any termination of this Agreement.
6. Responsibility for Software Selection and Usage
The End User is responsible for the supervision, management and control of the use of the Software, and output of the Software, including, but not limited to: (1) selection of the Software to achieve the End User’s intended results; (2) determining the appropriate uses of the Software and the output of the Software in the End User’s business; (3) establishing adequate independent procedures for testing the accuracy of the Software and any output; and (4) establishing adequate backup to prevent the loss of data in the event of a Software malfunction.
7. Limited Warranty
EFICAD warrants: (1) that the Software will be free of defects in materials and will perform substantially in accordance with the Documentation within a thirty (30) day period upon receipt by the End User; (2) that any pertaining services provided from time to time will be carried out in a workmanlike manner in accordance with professional standard practices. However, EFICAD does not warrant that the End User’s: (1) use of the Software will be uninterrupted; (2) expected requirements will be met regarding the Software or service, or (3) operation of the Software will be error free. Under such circumstances, the End User’s sole remedy and EFICAD’s entire liability under this warranty shall be to make all reasonable efforts to repair or replace the nonconforming Software and related media or re-perform the service. If such efforts fail, the End User shall (1) return the nonconforming Software as well as an appropriate proof of purchase and payment to EFICAD or EFICAD’s reseller for a refund of the amount paid or (2) benefit from such other remedy provided by EFICAD as may be required by law. EFICAD’s sole and limited warranty shall cover any replacement Software for the period remaining of the original warranty covering the original Software. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, EFICAD MAKES NO REPRESENTATIONS OR WARRANTIES AND EXPLICITLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, WRITTEN, ORAL OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OTHERWISE ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. No EFICAD dealer, agent, or employee is authorised to make any modifications, extensions, or additions to this warranty. EFICAD’s limited warranty is null and void, and the End User expressly assumes all liability and risks, if failure of the Software results from any use which is inconsistent with its design or any guidance provided in the Documentation, such as: (1) accident, modification, misapplication, corruption, misuse, abuse or neglect; (2) acts or omissions by someone other than EFICAD; (3) combination with products, material or software other than provided by EFICAD or incompatible with the Software; or (4) failure by the End User to incorporate and use all updates provided by EFICAD.
8. LIMITATIONS ON LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE MAXIMUM LIABILITY OF EFICAD AND ITS LICENSORS WHETHER IN CONTRACT, TORT OR OTHERWISE IN RELATION TO OR IN CONNECTION WITH THE SOFTWARE, AND ANY SERVICE SUPPLIED FROM TIME TO TIME, SHALL NOT EXCEED THE LICENSE FEE PAID BY THE END USER FOR THE SOFTWARE OR FOR THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LOCAL LAW, IN NO EVENT SHALL EFICAD OR ITS LICENSORS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF GOODWILL OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION AND ANY SERVICE SUPPLIED FROM TIME TO TIME, EVEN IF EFICAD OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE END USER ACKNOWLEDGES THAT THE USE OF THE SOFTWARE EXCLUDES NUCLEAR FACILITIES ACTIVITIES, AIRCRAFT NAVIGATION, COMMUNICATION SYSTEMS, OR AIR TRAFFIC CONTROL, IN WHICH CASE THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
9. Export Rules
The Software and Documentation, including all software and technical data are subject to United-States or United Kingdom export controls laws and may be subject to import or export controls in other countries. The End User agrees to strictly comply with all applicable import and export regulations, and specifically agrees to not disclose or directly or indirectly export, or re-export the Software or the Documentation or any part thereof, i.e., move the Software or the Documentation from the country in which it was first licensed, without the appropriate United States or foreign government licenses and written approval of EFICAD and its licensors. Pursuant to the United-States or United Kingdom export laws, the End User represents and warrants that he is not a citizen of, or located within, an embargoed or otherwise restricted nation (including without limitation, Cuba, Iran, Libya, North Korea, Sudan and Syria) and that he is therefore allowed to receive and use the Software. Failure to comply with this Agreement will forfeit all such rights to use the Software.
10. General Provisions
This Agreement constitutes the entire and exclusive agreement between the End User’s and EFICAD relating to the Software and subscription service, and supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter between the End User and EFICAD; provided, however, that this Agreement shall not supersede the terms of any signed agreement between the End User and EFICAD relating to the Software and subscription service. This Agreement, its subject matter and its formation, are governed by the laws of France . No choice of law rules of any jurisdiction will apply. Any disputes arising out of or related to this Agreement shall be settled by the competent Courts of Montpellier, France, which will have exclusive jurisdiction, and which will expressly exclude the United Nations Convention on Contracts for the International Sale of Goods. The English language version of this Agreement shall be the authorised text for all purposes, despite translations or interpretations of this Agreement into any other languages. If any provision of this Agreement should be held ineffective, unenforceable, or illegal under certain circumstances for any reason, the remaining provisions of this Agreement shall not be affected under other circumstances and the remaining provision hereof under all circumstances, and such provision shall be reformed to and only to the extent necessary to make it effective, enforceable, and legal under such circumstances.