(A) This License Agreement (the "Agreement") is a legal agreement between the ("Licensee") and Ovidoo with its corporate seat in Sassari, Italy, and its registered office Sassari Zona Ind.le Predda Niedda Nord Strada 5, registered with the commercial register of the commercial court seat in Sassari, Via Roma n° 74.
(b) this agreement pertains to licensee’s use of the software, whereas the term "Software" shall mean the ovidoo software and associated documentation provided to licensee by ovidoo, including, but not limited to, one or more of the following object code, dynamic link libraries, statically linked libraries, executables, header files, sample programs, specific parts of the source code as disclosed by ovidoo utility programs, makefiles, project files, scripts and documentation.
(C) The Software is available in free and paid Edition, with different restrictions, rights and obligations, which are also depending on the use case of the license. Unless otherwise stated, terms apply to all editions.
(D) Additional Definitions;
a. “Use”: using, accessing, downloading, installing, providing Content through or otherwise operating the Software.
b. “Licensing Key”: certain code in the Software that permits Ovidoo to track Use of the Software.
c. “End User”: a visitor to a website on which the Software is Used.
d. “Fee”: the amount payable to Ovidoo required for Use of the Software.
e. “Edition”: a particular edition of the Software, including the Free, Start Up, Business and Enterprise Edition.
f. "Distribute": to sell, transfer, assign, make available to any third party, or circulate.
1. License Grant
1.1. The Software is licensed, not sold. Subject to the terms and conditions of this Agreement, Ovidoo grants Licensee a non-exclusive, non-transferable, worldwide, non-assignable license, without rights to sublicense, to use the Software in accordance with this Agreement (the "License").
1.2. Licensee has the right to integrate and use the Software in one (1) Internet domain that has been registered with Ovidoo. Ovidoo provides a license key that is tied to the domain name. If more domains are needed, additional Licenses with license keys have to be requested. The license key is bound to the domain name of the target website. In case of an iframe it’s the domain of the iframe origin. http://localhost for local development purposes is included.
1.3. A License is valid for the major version of the Software. This includes all updates, bugfixes, additional features, etc. of future minor version updates of the Software. New minor versions of the Software can be downloaded in the customer area of the Ovidoo website, if they are available for the license key which was acquired.
1.4. Licensee is not allowed to use the Software in other use cases, domains, etc. than allowed for the acquired Edition of the Software.
1.5. Any integration to the licensee’s website, application, etc. must not remove the copyright notice, company logo, domain restrictions or license key logic from the Software so that the integration only functions if a valid license key has been configured for it and all copyright notices and monitoring functionalities are present as intended.
1.6. All rights not expressly granted by this Agreement are expressly reserved by Ovidoo
2.1. Free Edition
2.1.1. The License of the Free Edition is granted to Licensee for non-commercial purposes only.
2.1.2. This also includes that Licensee may evaluate whether or not Licensee and Ovidoo will enter into a separate license agreement on the license of the Software to Licensee for commercial use by Licensee.
2.1.3. The Free Edition comes together with the Ovidoo logo embedded in the Software. There is also a copyright notice in the context menu of the Software.
2.1.4. The granting of the License for the Free Edition under this Agreement shall be free of charge.
2.1.5. Ovidoo has the right to restrict the number of Free Edition Licenses to one Licensee, in case of extreme cases..
2.2. Paid Edition
2.2.1. The License of a Paid Edition (e.g. Start Up Edition, Business Edition or Enterprise Edition) is granted to License for commercial as well as non-commercial purposes.
3. Protection of Licensed Software
3.1. Except as specifically set forth herein or as otherwise agreed to between Ovidoo and Licensee, Licensee shall not have the right to copy, relicense, sell, lease, transfer, encumber, or assign the Software. Any attempt to take any such actions is void, and will automatically terminate your rights under this License.
3.2. Licensee shall use its best efforts to ensure that no unauthorized copy of the Software shall be made, in whole or in part, in any form. Licensee shall prohibit all users of the Software from modifying, reverse-engineering or disassembling any part of the Software if possible.
3.3. All rights not expressly granted by Ovidoo are hereby reserved.
4.1. Except as expressly permitted by this Agreement or by applicable law, Licensee may not (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software; (ii) modify or create derivative works based upon the Software; or (iii) create, develop, license, install, use, or deploy any software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions in the Software. If Licensee wishes to exercise any right to reverse engineer to ensure interoperability in accordance with applicable law, Licensee must first provide Ovidoo with written notice and all reasonably requested information and permit Ovidoo to assess Licensee‘s claim and, at Ovidoo’s sole discretion, to make an offer to provide alternatives that reduce any adverse impact on Televideocom Srl intellectual property rights or other rights.
4.2. The usage of the Software within frames and iframes is for any Edition, except the Enterprise Edition, prohibited.
5. Restrictions on Transfer
5.1. Unless otherwise explicitly agreed to in writing by Ovidoo, Licensee may not assign Licensee's rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer the License granted hereunder.
6.1. To use the Software, Licensee must create a username and password and provide an accurate e-mail address as well as domain where the Software will be used. Users of non-free Editions of the Products must also provide an accurate name and mailing address. Licensees may not: (i) enter, select or use a false name, address or email address, (ii) use a name, address or email owned or controlled by another person with the intent to impersonate that person or (iii) provide an email address subject to any rights of a person other than Licensee without appropriate authorization. Ovidoo reserves the right to refuse registration or cancel any account in its sole discretion. Licensee shall be responsible for maintaining the confidentiality of its password and is fully responsible and liable for all activities that occur on its account. Licensee agrees to (iv) immediately notify Ovidoo of any unauthorized use of Licensee’s username or password or other breach of security, and (v) ensure that Licensee exits from its account at the end of each session.
7. Fees and payments
7.1. Licensee must timely pay all Fees due to Ovidoo. Ovidoo reserves the right to modify the Fees in its sole discretion without notice or justification at any time unless Licensee and the Ovidoo have entered into a separate agreement or order form governing such Fees. Licensee is prohibited from using the Software if the Fees due have not been paid. Periodic (monthly or annual) Fees are billed in advance. All Fees are non-refundable except as otherwise provided in these Terms of Service. Licensee shall be responsible to pay all taxes due in connection with the Fees and Licensee’s use of the Software. In order to use any paid Edition, Licensee must provide Ovidoo with accurate and complete billing information including a valid credit or debit card. Licensee authorizes Ovidoo to charge all Fees incurred to the designated card and acknowledges that periodic (monthly or annual) Fees may be charged automatically and without separate authorization. Current Fees are published at http://www.ovidoo.com/pricing/.
8. Confidential Information
8.1. Each party acknowledges that it may have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, and other information held in confidence by the other party (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should reasonably be considered confidential. Each party agrees that it will not use Confidential Information of the other party in any way for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, these Terms of Service, nor will it disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary) any of the other party’s Confidential Information and it will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. Upon termination or expiration of these Terms of Service for any reason, each party will return to the other party or destroy, at the other party’s request, all Confidential Information of the other
party and all documents or media containing any such Confidential Information and any and all copies or extracts thereof.
9. Disclaimer of Warranties and Limitation of Liability
10.1. THE USE OF THE SOFTWARE IS AT LICENSEE'S SOLE RISK. THE SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. OVIDOO EXPRESSLY DISCLAIMS WITH RESPECT TO THE SOFTWARE ALL WARRANTIES, ENDORSEMENTS, GUARANTEES, CONDITIONS AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE.
10.2. OVIDOO MAKES NO WARRANTY THAT THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR OPERATE UNDER LICENSEE'S SPECIFIC CONDITIONS OF USE. OVIDOO MAKES NO WARRANTY THAT OPERATION OF THE SOFTWARE WILL BE SECURE, ERROR FREE, OR FREE FROM INTERRUPTION. LICENSEE MUST DETERMINE WHETHER THE SOFTWARE SUFFICIENTLY MEETS LICENSEE'S REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. LICENSEE BEARS SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE SOFTWARE TO MEET LICENSEE'S REQUIREMENTS. OVIDOO WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE. UNDER NO CIRCUMSTANCES SHALL OVIDOO, ITS DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS OR AGENTS BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE SOFTWARE, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF OVIDOO OR ANY OTHER PARTY, EVEN IF OVIDOO IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS OVIDOO'S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED.
10.1. Ovidoo retains all right, title, and interest in and to the Software and all related intellectual property rights. Ovidoo retains all rights not expressly granted to Licensee in this Agreement.
11. Technical Support
11.1. Ovidoo has no obligation under this agreement to provide maintenance, support or training. These services may be provided to Licensee by Ovidoo subject to the terms and conditions of a separate written agreement.
12.1. This Agreement shall become effective on the earliest date the Software is downloaded or used by the Licensee, and shall remain effective until terminated pursuant to this Section.
12.2. These Terms of Service are subject to termination by Ovidoo immediately if (a) Licensee fails to timely pay a Fee or provide a valid credit or debit card for such payment, (b) Licensee violates any term of these Terms of Service, (c) Ovidoo has a reasonable basis to believe that Licensee is not abiding by the spirit of these Terms of Service, (d) Licensee becomes insolvent, declares bankruptcy or a receiver or trustee is appointed for Licensee, (e) Ovidoo has a reasonable basis to believe that Licensee is impairing the Ovidoo’s business, or (f) Licensee is or becomes engaged in a business that is directly or indirectly competitive with the Ovidoo’s business. Ovidoo may also terminate this License for convenience on thirty (30) days notice. In the event of any termination by Ovidoo pursuant to (a) – (g) above, Ovidoo is under no obligation to provide a refund for the Fees received from Licensee or apply such fees to future services.
12.3. Either party may terminate this Agreement with immediate effect by written notice, if the other party is in breach of this Agreement.
12.4. In the event of any termination of this Agreement, Licensee must remove and destroy all copies of the Software, including all backup copies, all computers and terminals Licensee owns, possesses or controls and on which the Software is installed. Upon request by Ovidoo, Licensee shall confirm compliance with Licensee's obligation to remove and destroy all copies of the Software pursuant to this Section 13.4. without undue delay in writing.
12.5. Sections 4 (Export Controls), 5 (Disclaimer of Warranties and Limitation of Liability), 6 (Title), 9 (Governing Law, Jurisdiction) and 10 (Concluding Terms) of this Agreement shall survive termination of this Agreement for any reason.
12.6. The Non-Disclosure Agreement shall remain in force irrespective of any termination of this Agreement.
13. Governing Law, Jurisdiction
13.1. This Agreement shall be governed by and interpreted in accordance with the laws of the Republic of Italy without giving effect to its rules on conflict of laws and the UN Sales Convention.
13.2. The Commercial Court competent for Sassari, Italy, shall have exclusive jurisdiction to hear and determine any suit action or proceedings and to settle any disputes which may arise out of or in connection with this Agreement.
14. Concluding Terms
14.1. This Agreement may not be modified or amended except by written notice, which is signed by authorized representatives of each of the parties.
14.2. The parties recognize that money damages may not be an adequate remedy for any breach of any obligation hereunder by Licensee involving Ovidoo’s intellectual property or use of the Software beyond the scope of the License granted by this Agreement. The parties therefore agree that in addition to any other remedies available hereunder, by law or otherwise, Ovidoo and any third party from whom Ovidoo has licensed software or technology may be entitled to seek injunctive relief against any such continued breach by Licensee of such obligations.
14.3. Any written notice from one party to the other required by this Agreement shall be deemed made on the date of mailing if sent by certified mail or overnight courier and addressed to the address specified below. Written notice sent by any other means shall be deemed made on the date it is received by the party to whom it is directed. Notice sent by facsimile or by electronic mail shall not be deemed “written notice” as contemplated by this Agreement.
14.4. If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws. The parties to the contract will work in a spirit of partnership to find an arrangement that approximates as nearly as possible the inoperative terms.