This End-User License Agreement (“EULA” or “User agreement”) is a legal contract between you and NAVERTICA a.s., reg. no.: 25585207, reg. seat: Sumavska 15, 60200 Brno, Czech Republic (“NAVERTICA”) governing your use of all software hosted by NAVERTICA and the services outlined in this User Agreement. NAVERTICA is unwilling to license or otherwise authorize your use of the software licensed or the other services provided herein except on the terms contained in this User Agreement. Your use of the software shall constitute an acceptance by you of the terms of this User Agreement. If you do not wish to agree to the terms of the User Agreement, discontinue all use of the software.
This User Agreement is the complete and exclusive statement of NAVERTICA’s obligations and responsibilities to you, as licensee of the software and user of the NAVERTICA services, and supersedes any other proposal, representation, or other communication by or on behalf of NAVERTICA relating to the subject.
This User Agreement contains disclaimers of warranties (see section 8), exclusive remedies (see section 8), and limitations on liabilities (see section 9), all of which form an essential basis of this User Agreement.
“NAVERTICA Documentation” is the user manuals for NAVERTICA Software.
“NAVERTICA Parties” is NAVERTICA, its affiliates, service providers, licensors, and suppliers.
“NAVERTICA Services” is the configuration of hardware, network, software, and Internet portal that NAVERTICA’s third-party suppliers provide for your use in hosting the Software.
“NAVERTICA Software” is any proprietary software application created by NAVERTICA and hosted by NAVERTICA’s third-party suppliers, including, without limitation, enhancements, upgrades, modifications, new versions, and replacements.
“Support Software” is the configuration of software that NAVERTICA provides for your use of the NAVERTICA Software, including, without limitation, enhancements, upgrades, modifications, new versions, and replacement software.
“Software” is the NAVERTICA Software and the Support Software.
a. In General. Subject to the terms and conditions of this User Agreement, NAVERTICA agrees, through a third party vendor, to host the Software and provide certain support services. Use of the Software depends on your compliance with this User Agreement. Subject to the terms and conditions of this User Agreement, the scope of your use of the Software depends on the subscription you purchase.
b. Software License. NAVERTICA hereby grants to you, and you accept, a limited, nonexclusive license to use the Software in object code form only, and the NAVERTICA Documentation, only as authorized in this User Agreement.
c. Support Software Licenses. Certain programs contained in the Support Software may be provided with their own license agreements and are licensed under the terms of the agreements provided with them.
d. Hosting of the Software. For the term of, and in accordance with the terms and conditions of, this User Agreement, NAVERTICA will, through third parties, provide facilities, equipment, and programming, collectively making up a host data center (the “NAVERTICA Services”), as necessary to provide you access to the Software via the Internet. You will be responsible for providing your own Internet access and computer equipment needed to access the NAVERTICA Services.
e. Limitation on use of NAVERTICA Services and Software. You agree:
i. you are responsible for the evaluation and selection of, as well as for the results obtained from, the NAVERTICA Software;
ii. you are responsible for complying with all rules and regulations relating to the NAVERTICA Services sent to you by email or other electronic means as they may be amended from time to time;
iii. to use the NAVERTICA Services and the Software only for processing your business data and in accordance with the terms and conditions of this User Agreement;
iv. to permit only authorized users, who possess rightfully obtained usernames and passcodes, to use the Software or to view the NAVERTICA Documentation;
v. not to make the Software, the NAVERTICA Documentation, or any username or passcode available to any third party, including, without limitation, in any form by rental, service bureau, hosting, time sharing arrangement, or demonstration of the Software to any third party;
vi. to use your best efforts to cooperate with and assist NAVERTICA in identifying and preventing any unauthorized use, copying, or disclosure of the Software, the NAVERTICA Documentation, or any portion thereof;
vii. not to reverse assemble, reverse compile, or otherwise translate any Software;
viii. not to use the NAVERTICA Services in any way that is unlawful, or which harms a NAVERTICA Party, as determined by NAVERTICA in its sole discretion;
ix. not to interrupt, or attempt to interrupt, the operation of the NAVERTICA Services in any way;
x. not to restrict, in any way, any other authorized user from using the NAVERTICA Services;
xi. not to attempt to breach the security of the NAVERTICA Services or the Software;
xii. not to access, or attempt to access, data belonging to third parties;
xiii. to ensure that anyone who uses the Software (accessed either locally or remotely) does so only for your authorized use and complies with the terms of this User Agreement;
xiv. to notify NAVERTICA, in writing, as soon as is reasonably possible, if you learn of any actual or threatened infringement or piracy of the Software, or if any infringement or piracy claim is made against you by a party other than NAVERTICA in connection with your use of the Software;
xv. to provide accurate, current, and complete information on your legal name, address, email address, phone number, and other information reasonably requested by NAVERTICA, and to keep such information updated; and
xvi. to be responsible for all electronic communications sent by you to NAVERTICA, through NAVERTICA Services or in your account.
f. Updates and Upgrades to Software. NAVERTICA reserves the right to, but shall not be obligated to, provide error corrections, enhancements, upgrades, modifications, and new versions for the Software.
g. Facilities. Except as otherwise expressly stated herein, you are responsible for obtaining, installing, configuring and maintaining all equipment, (including, without limitation, gateways and firewalls), network, software, wiring, power sources, telephone connections, and communications services necessary for inter-connection with NAVERTICA Services or otherwise for use in conjunction with the NAVERTICA Services (“Facilities”). You are responsible for ensuring that the Facilities are compatible with NAVERTICA’s requirements and the Software. NAVERTICA is not responsible for the availability, capacity, or condition of any Facilities.
h. Access to NAVERTICA Services. NAVERTICA reserves the right to deny access to the NAVERTICA Services to anyone at any time.
i. Transmission of Data. You understand that the technical processing and transmission of electronic communications is fundamentally necessary to your use of the NAVERTICA Services. You expressly consent to NAVERTICA’s interception and storage of electronic communications, and you acknowledge and understand that your electronic communications will involve transmission over the Internet, and over various networks, only part of which may be owned, operated, or both by NAVERTICA. You acknowledge and understand that changes to your electronic communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices.
All rights not expressly granted to you pursuant to this User Agreement are reserved to NAVERTICA.
To the maximum extent permitted by applicable law, you grant NAVERTICA the right to monitor the Software, the NAVERTICA Services, and your use of each, and to disclose such information in the event that NAVERTICA, in good faith, believes it is necessary for purposes of ensuring your compliance with this User Agreement, and protecting the rights, property, and interests of NAVERTICA Parties.
The subscription fees paid by you are paid in consideration of the license granted and services provided under this User Agreement. Except as stated in Article 7 and Article 8, NAVERTICA does not refund subscription fees. By accepting this User Agreement you fully understand that once subscription fee payment is made to NAVERTICA you will have no recourse for receiving a refund of any part of the fees.
You acknowledge that the NAVERTICA Software and the NAVERTICA Documentation are proprietary to NAVERTICA, and the NAVERTICA Software and the NAVERTICA Documentation are protected under Czech Republic copyright, trade secret, patent, and trademark laws, and international treaties. You further acknowledge and agree that, as between you and NAVERTICA, NAVERTICA owns and shall continue to own all right, title, and interest in and to the NAVERTICA Software and the NAVERTICA Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This User Agreement does not grant you any ownership interest in or to the NAVERTICA Software or the NAVERTICA Documentation, but only a limited right of use that is revocable in accordance with the terms of this User Agreement.
You may not
a. use, display, create derivative works of, or distribute the Software, or any portion thereof,
b. edit, alter, modify, adapt, translate or otherwise change the whole or any part of the Software,
c. permit the whole or any part of the Software to be combined with or become incorporated in any other software,
d. decompile, disassemble or reverse engineer the Software or attempt to do any such things,
e. reproduce, copy, distribute, re-license, resell or otherwise use the Software for any commercial purpose,
f. allow any third party to use the Software on behalf of or for the benefit of any third party,
g. use the Software in any way which breaches any applicable local, national or international law use the Software for any purpose that NAVERTICA considers is a breach of this User Agreement,
except as otherwise provided in this User Agreement.
You acknowledge that NAVERTICA does not grant any license or other right to use any of its trademarks, service marks, copyrightable material, or other intellectual property, except as expressly provided in this User Agreement.
You acknowledge that, in the event of your breach of any of the provisions of this Section, NAVERTICA will not have an adequate remedy at law. Therefore, NAVERTICA shall be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. NAVERTICA’s right to obtain injunctive relief shall not limit its right to seek further remedies.
a. By NAVERTICA. NAVERTICA will, at its expense, indemnify and hold you harmless against any claims made by an unaffiliated third party that the NAVERTICA Software infringes its patent, copyright, or trademark, or misappropriates its trade secret; provided (i) you notify NAVERTICA, in writing, not later than 20 days after you receive notice of the claim, (ii) you give NAVERTICA sole control of the defense and any settlement negotiations, and (iii) you cooperate with NAVERTICA in defending against or settling the claim. NAVERTICA’s obligation of indemnification will not apply to the extent that the claim is based on (i) your use of the NAVERTICA Software after NAVERTICA notifies you to discontinue use due to such a claim; (ii) your combining the NAVERTICA Software with non-NAVERTICA product, data, or business process, including third party add-ons or programs; (iii) damages attributable to the value of the use of a non-NAVERTICA product, data, or business process; (iv) your altering or modifying the NAVERTICA Software, including any modifications by third parties; or (v) your use of the NAVERTICA Software in violation of this Agreement. You will reimburse us for any costs or damages that result from these actions.
If NAVERTICA receives information concerning an infringement or misappropriation claim related to the NAVERTICA Software, NAVERTICA may, at its expense and without obligation to do so, either (i) procure for you the right to continue to run the NAVERTICA Software or (ii) modify the NAVERTICA Software or replace it with a functional equivalent to make it non-infringing, in which case you will stop using the allegedly infringing NAVERTICA Software immediately. If, as a result of an infringement or misappropriation claim, your use of the Software is enjoined by a court of competent jurisdiction, NAVERTICA will, at its option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the amount paid and terminate the license granted in this Agreement. This Section 7.a. constitutes your exclusive remedy for third party infringement and trade-secret misappropriation claims.
b. By You. You hereby agree to indemnify, defend, and hold harmless NAVERTICA from and against any and all claims, proceedings, damages, liability, and costs (including reasonable attorney’s fees) incurred by NAVERTICA in connection with any claim arising out of (i) any breach or alleged breach of any of your obligations set forth in this User Agreement, and (ii) your use of the Software, or the use by any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this User Agreement, regardless of the type or nature of the claim. You shall cooperate as fully as reasonably required in the defense of any claim. NAVERTICA reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of NAVERTICA.
a. NAVERTICA Software Limited Warranty; Exclusive Remedy. NAVERTICA warrants to you that the performance and functionality of the NAVERTICA Software, in all material respects, meet the specifications set forth in the NAVERTICA Documentation for the NAVERTICA Software licensed by you. NAVERTICA does not warrant that the NAVERTICA Software will be error-free. Your sole and exclusive remedy for NAVERTICA’s breach of this limited warranty shall be that NAVERTICA shall use commercially reasonable efforts to modify the NAVERTICA Software to meet the performance and functionality specifications, in all material respects, described in the NAVERTICA Documentation, and if NAVERTICA is unable to restore such performance and functionality, you shall be entitled to terminate this User Agreement and shall be entitled to receive a pro-rata refund of the subscription fees paid for under this User Agreement for your use of the Software and NAVERTICA Services for the terminated portion of the term. NAVERTICA shall have no obligation with respect to a warranty claim unless notified of such claim within 60 days of the first instance of any material performance or functionality issue. Any notice required to be sent pursuant to this Section 8 must be provided electronically to NAVERTICA at firstname.lastname@example.org .
b. No Virus Warranty. NAVERTICA warrants that the NAVERTICA Software and NAVERTICA Services shall be free of viruses, Trojan horses, worms, spyware, or other malicious code or components.
c. Warranty of Title. NAVERTICA warrants to you that NAVERTICA is the owner of the Software or otherwise has the right to grant to you the license to use the Software as set forth in this User Agreement without violating any proprietary rights of any third parties.
d. Disclaimer. Except as provided in this section, NAVERTICA disclaims, to the extent authorized by law, any and all warranties, whether statutory, express or implied, including, without limitation, (i) warranties of merchantability, fitness for a particular purpose, or workmanlike effort; (ii) warranties arising through course of dealings or usage of trade; and (iii) warranties that the software will be error-free. Without limiting the foregoing, NAVERTICA expressly disclaims any warranty arising from advice or information provided by NAVERTICA or that the software will meet your requirements. You assume responsibility for selecting the software to achieve your intended results, and for the results obtained from your use of the software. You shall bear the entire risk as to the quality and the performance of the software. This disclaimer applies to any expenses, damages or injury, regardless of the cause, whether for breach of contract, strict liability, tortuous behavior, negligence, or for any other cause of action.
e. Third Party Hosting of Software and Data. Third-party suppliers providing hosting for the software, storage of your data and other NAVERTICA services are independent contractors and not agents or employees of NAVERTICA. NAVERTICA is not liable for the acts, errors, omissions, representations, warranties, breaches or negligence of any such suppliers or for any damages or expenses resulting there from.
In no event shall either party be liable to the other or any other party for any indirect, incidental, consequential, special, exemplary, or punitive damages (including damages for business profits, business interruption, loss of business information, or similar losses), even if advised of the possibility of such damages. This limitation on liability set forth in this section 9 is independent of your exclusive remedy and survives in the event such remedy is deemed unenforceable.
NAVERTICA’s cumulative liability to you or any party related to you for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this User Agreement, including without limitation NAVERTICA’s intellectual property indemnification obligations, shall be limited to the amount of subscription fees paid to NAVERTICA by you under this user agreement, but in no event shall such liability exceed $10,000 in the aggregate for all occurrences. This limitation applies to all causes of action or claims, including, without limitation, breach of contract, negligence, strict liability, and other torts.
All limitations on liability, damages, and claims are intended to apply without regard to whether other provisions of this User Agreement have been breached or have proven ineffective.
No third party is authorized by NAVERTICA to make any representation or warranty to you regarding the NAVERTICA Services or the Software.
You agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the NAVERTICA Services and the Software, or this User Agreement, must be filed within one year after such claim or cause of action arose or be forever barred.
This User Agreement is effective upon your acceptance of this User Agreement, or upon your accessing and using the Software or the NAVERTICA Services, even if you have not expressly accepted this User Agreement. This User Agreement shall continue in effect until terminated. Without prejudice to any other rights, this User Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described in this User Agreement. If you fail to pay the applicable subscription fees, NAVERTICA shall have the right to restrict, suspend, or terminate your access to the NAVERTICA Services and the Software in whole or in part, without notice and without liability. You may terminate this User Agreement at any time by providing written notice of your decision to terminate the User Agreement to NAVERTICA. NAVERTICA may terminate this Agreement if you breach any term of the Agreement by giving you written notice of your breach and NAVERTICA’s decision to terminate the User Agreement. If this User Agreement is terminated, NAVERTICA reserves the right to refuse to provide access to the NAVERTICA Services and the Software to you in the future. Once access to the NAVERTICA Services and the Software has been denied as a result of termination of this User Agreement, NAVERTICA reserves the right to impose a charge for access to the NAVERTICA Services and the Software.
NAVERTICA reserves the right, in its sole discretion, to amend this User Agreement from time to time. If there is a conflict between this User Agreement and the most current version of NAVERTICA’s User Agreement, posted at www.navertica.com , the latter will prevail. If you do not accept amendments made to this User Agreement, then this User Agreement will be immediately terminated pursuant to Section 11. Your continued use of the NAVERTICA Services and the Software following any amendment to this User Agreement shall be conclusively deemed an acceptance of all such amendments.
This Agreement shall be governed by and interpreted in accordance with the laws of the Czech Republic. Any claim or dispute arising in connection with this User Agreement shall be resolved in the courts situated in Brno, Czech Republic, and you hereby consent to the jurisdiction and venue of those courts and waive any objections to the jurisdiction or venue of those courts.
If any term or provision of this User Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions of this User Agreement or the validity or enforceability of the offending term or provision in any other situation.
Sections 2i, 2j, 6, 7, 8, 9, 10, and 13 of this User Agreement shall survive the termination of this User Agreement, regardless of the cause for termination, and shall remain valid and binding indefinitely.
The headings contained in this User Agreement are for reference purposes only and shall not affect the meaning or interpretation of this User Agreement.
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. You may not assign, transfer, or sublicense your rights to this User Agreement.
You agree that NAVERTICA may provide notices and other communications to you solely by means of e-mail or other electronic transmission.
Unless you provide NAVERTICA with written notice to the contrary, you give NAVERTICA the right to use your name in print, on-line, and in other multimedia advertising and marketing materials for the purpose of disclosing that you are a customer of NAVERTICA.
This User Agreement constitutes the entire agreement between you and NAVERTICA with respect to the NAVERTICA Services and the Software, and supersedes all prior agreements between you and NAVERTICA.
You shall, in addition to the fees required under this User Agreement, pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of the transaction contemplated under this User Agreement, excluding income taxes on the net profits of NAVERTICA. You shall reimburse NAVERTICA for the amount of any such taxes or duties paid or incurred directly by NAVERTICA as a result of this transaction.
The NAVERTICA Software and the NAVERTICA Documentation are provided with Restricted Rights.