IMPORTANT: PLEASE READ THIS LICENSE CAREFULLY BEFORE USING THIS SOFTWARE.
Version 01 July 2020
This Embold Technologies Customer Agreement (the “Agreement”) is between you and Embold Technologies GmbH (“Embold Technologies”). Embold Technologies may modify this Agreement from time to time, subject to the terms in Section 23 (Changes to this Agreement) below.
By clicking on the “I agree” (or similar button) that is presented to you at the time of your Order, or by using or accessing Embold Technologies products, you indicate your assent to be bound by this Agreement.
1 Scope of the Agreement
By receiving, opening the file package, and/or using Embold plugins(“Software”) containing this software, you agree that this End User License Agreement(EULA) is a legally binding and valid contract and agree to be bound by it. You agree to abide by the intellectual property laws and all of the terms and conditions of this Agreement.
Unless you have a different license agreement signed by Embold Technologies your use of Embold plugins indicates your acceptance of this license agreement and warranty.
2 Account Registration
You may need to register for an Embold Technologies account in order to place orders or access or receive any Products. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts.
Embold plugins and the license herein granted shall not be copied, shared, distributed, re-sold, offered for re-sale, transferred or sub-licensed in whole or in part except that you may make one copy for archive purposes only.
3.1 Reseller Orders
This Agreement applies whether you purchase our Products directly from Embold Technologies or through Embold Technologies “Experts” or other authorized resellers (each, a “Reseller”). If you purchase through a Reseller, your Scope of Use shall be as stated in the Order placed by Reseller for you, and Reseller is responsible for the accuracy of any such Order. Resellers are not authorized to make any promises or commitments on Embold Technologies’ behalf, and we are not bound by any obligations to you other than what we specify in this Agreement.
4 User Agreement
Each licensed copy of Embold plugins may be used on one single computer location by one user. Use of Embold plugins means that you have loaded, installed, or run Embold plugins on a computer or similar device. If you install Embold plugins onto a multi-user platform, server or network, each and every individual user of Embold plugins must be licensed separately.
You may make one copy of Embold plugins for backup purposes, providing you only have one copy installed on one computer being used by one person. Other users may not use your copy of Embold plugins . The assignment, sublicense, networking, sale, or distribution of copies of Embold plugins are strictly forbidden without the prior written consent of Embold Technologies. It is a violation of this agreement to assign, sell, share, loan, rent, lease, borrow, network or transfer the use of Embold plugins. If any person other than yourself uses Embold plugins registered in your name, regardless of whether it is at the same time or different times, then this agreement is being violated and you are responsible for that violation.
4.2 Use Restrictions
You shall use Embold plugins in compliance with all applicable laws and not for any unlawful purpose. Without limiting the foregoing, use, display or distribution of Embold plugins together with material that is pornographic, racist, vulgar, obscene, defamatory, libelous, abusive, promoting hatred, discriminating or displaying prejudice based on religion, ethnic heritage, race, sexual orientation or age is strictly prohibited.
Except as otherwise expressly permitted in this Agreement, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Plugins to a third party, (b) use the Plugins for the benefit of any third party, (c) incorporate Plugins into a product or service you provide to a third party, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Plugins intended to limit your use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Plugins, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Plugins, or (g) publicly disseminate information regarding the performance of the Plugins.
5 Software Terms
5.1 Your License Rights
Subject to the terms and conditions of this Agreement, Embold Technologies grants you a non-exclusive, non-sub-licensable and non- transferable license to install and / or use the Software during the applicable License Term in accordance with this Agreement and your applicable Scope of Use. Your License Term will end upon any termination of this Agreement.
In any use of the Software, you must include the following attribution to Embold Technologies on all user interfaces in the following format: “Powered by Embold Technologies”, which must in every case include a hyperlink to http://www.Embold Technologies.com, and which must be in the same format as delivered in the Software.
5.3 Third Party Code
The Software includes code and libraries licensed to us by third parties, including open source software.
6 Hosted Services Terms
6.1 Access to Hosted Services
Subject to the terms and conditions of this Agreement, Embold Technologies grants you a non-exclusive right to access and use the Hosted Services during the applicable Subscription Term (as defined below) in accordance with this Agreement and your applicable Scope of Use. If Embold Technologies offers client software (e.g., a desktop or mobile application) for any Hosted Service, you may use such software solely with the Hosted Service, subject to the terms and conditions of this Agreement. You acknowledge that our Hosted Services are on-line, subscription-based products and that we may make changes to the Hosted Services from time to time.
6.2 Subscription Terms and Renewals
Hosted Services are provided on a subscription basis for a set term specified in your Order (“Subscription Term”). Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription through your account. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
You must ensure that all Authorized Users keep their user IDs and passwords for the Hosted Services strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify Embold Technologies of any unauthorized use of which you become aware.
6.4 Your Data
“Your Data” means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through Hosted Services. You will retain all right, title and interest in and to Your Data in the form provided to Embold Technologies. Subject to the terms of this Agreement, you hereby grant to Embold Technologies a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Hosted Service to you and (b) for Hosted Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Hosted Service. Embold Technologies may also access your account or instance in order to respond to your support requests.
Embold Technologies implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Hosted Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
6.6 Storage & Computing Limits
There may be storage land computing limits associated with a particular Hosted Service. These limits are described in the services descriptions on our websites for the particular Hosted Service. Embold Technologies reserves the right to charge for additional storage and computing or overage fees at the rates specified on our website. We may impose new, or may modify existing, storage and computing limits for the Hosted Services at any time in our discretion, with or without notice to you.
6.7 Responsibility for Your Data
You must ensure that your use of Hosted Services and all Your Data is at all times compliant with our Acceptable Use Policy and all applicable local, state, federal and international laws and regulations (“Laws”). You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all Your Data to Embold Technologies and to grant the rights granted to Embold Technologies in this Agreement and (ii) Your Data and its transfer to and use by Embold Technologies as authorized by you under this Agreement do not violate any Laws or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 7.5 (Security), Embold Technologies assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.
6.6.2 Indemnity for Your Data
You will defend, indemnify and hold harmless Embold Technologies from and against any loss, cost, liability or damage, including attorneys’ fees, for which Embold Technologies becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Hosted Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defence, or settlement of such claim; and (iii) all reasonable necessary cooperation of Embold Technologies at your expense.
6.8 Removals and Suspension
Embold Technologies has no obligation to monitor any content uploaded to the Hosted Services. Nonetheless, if we deem such action necessary based on your violation of this Agreement or in response to takedown requests that we receive, we may (1) remove Your Data from the Hosted Services or (2) suspend your access to the Hosted Services. We will generally alert you when we take such action and give you a reasonable opportunity to cure your breach, but if we determine that your actions endanger the operation of the Hosted Service or other users, we may suspend your access immediately without notice. You will continue to be charged for the Hosted Service during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to any Hosted Services as described in this section.
6.9 Deletion at End of Subscription Term
We may remove or delete Your Data within a reasonable period of time after the termination of your Subscription Term.
7 Support and Maintenance
Support and Maintenance for Software includes access to New Releases, if and when available. “New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Plugins that we make generally commercially available.
Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure. Any Embold Technologies Technology and any performance information relating to the Products shall be deemed Confidential Information of Embold Technologies without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
10 Warranty and Disclaimer
10.1 Due Authority
Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
10.2 WARRANTY DISCLAIMER
ALL PRODUCTS ARE PROVIDED “AS IS,” AND EMBOLD TECHNOLOGIES AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. EMBOLD TECHNOLOGIES SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF EMBOLD TECHNOLOGIES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER EMBOLD TECHNOLOGIES NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
11 Limitation of Liability
NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO- CHARGE PRODUCTS SHALL BE [EUR 50]. THIS SECTION 17 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION 11 (RESTRICTIONS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this Section 17 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
13 IP Indemnification by Embold Technologies
We will defend you against any claim brought against you by a third party alleging that a Product, when used as authorized under this Agreement, infringes a United States or European Union patent or registered copyright (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Embold Technologies (including reasonable attorneys’ fees) arising out of a Claim, provided that we have received from you: (a) prompt written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the claim, including providing us a copy of the claim and all relevant evidence in your possession, custody or control; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim. If your use of a Product is (or in our opinion is likely to be) enjoined, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure a license for your continued use of the Product in accordance with this Agreement; (ii) substitute a substantially functionally similar Product; or (iii) terminate your right to continue using the Product and refund, in the case of Software, the license fee paid by you as reduced to reflect a three year straight-line depreciation from the license purchase date, and in the case of a Hosted Service, any prepaid amounts for the terminated portion of the Subscription Term. Embold Technologies’s indemnification obligations above do not apply: (1) if the Product is modified by any party other than Embold Technologies, but solely to the extent the alleged infringement is caused by such modification; (2) if the Product is used in combination with any non-Embold Technologies product, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (3) to unauthorized use of Products; (4) to any Claim arising as a result of (y) Your Data (or circumstances covered by your indemnification obligations in Section 7.7.2 (Indemnity for Your Data)) or (z) any third-party deliverables or components contained with the Products; (5) to any unsupported release of the Software; or (6) if you settle or make any admissions with respect to a claim without Embold Technologies’s prior written consent. THIS SECTION 18 (IP INDEMNIFICATION BY EMBOLD TECHNOLOGIES) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF BOFROST* DIENSTLEISTUNGS GMBH & CO. KGLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY EMBOLD TECHNOLOGIES UNDER THIS AGREEMENT.
14 Publicity Rights
We may identify you as an Embold Technologies customer in our promotional materials. You may request that we stop doing so by submitting an email to firstname.lastname@example.org at any time. Please note that it may take us up to 90 days to process your request.
15 Improving Our Plugins
16 Dispute Resolution
16.1 Dispute Resolution; Arbitration
In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in [Frankfurt am Main, Germany]. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
16.2 Governing Law; Jurisdiction
This Agreement will be governed by and construed in accordance with the applicable laws of Germany. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 22.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of Germany and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Germany, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Embold Technologies may bring a claim for equitable relief in any court with proper jurisdiction.
16.3 Injunctive Relief; Enforcement
Notwithstanding the provisions of Section 22.1 (Dispute Resolution; Arbitration), nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of Bofrost* Dienstleistungs GmbH & Co. KG intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
17 Changes to this Agreement
We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, through your Embold Technologies account, or in the Product itself). If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, Support and Maintenance term, or Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, accepting the updated Agreement is required for you to continue using the No-Charge Products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
18 General Provisions
Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by post to:
Embold Technologies GmbH Local district court: Frankfurt am Main,HRB 98216
VAT No. DE262184959
Tax No. 45/228/04940
Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. This Agreement is the entire agreement between you and Embold Technologies relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give one party the express or implied right, power or authority to create any duty or obligation of the other party.