License Agreement for Axiorema VisualDrive Server

IMPORTANT! READ CAREFULLY: THIS IS A LEGAL AGREEMENT. BY DOWNLOADING, INSTALLING, COPYING, SAVING ON YOUR COMPUTER, OR OTHERWISE USING THIS SOFTWARE, YOU (LICENSEE, AS DEFINED BELOW) ARE BECOMING A PARTY TO THIS AGREEMENT AND YOU ARE CONSENTING TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD NOT DOWNLOAD, INSTALL AND USE THE SOFTWARE.

1. PARTIES

(a) "Licensor" means VisualSVN Software Ltd, which operates the website https://www.axiorema.com and uses Axiorema™ as a trademark for its software products and services.

(b) "Licensee" means the individual or legal entity that installs or uses the Software in any form.For legal entities, "Licensee" includes any entity which controls, is controlled by, or is under common control with Licensee. For purposes of this definition, "control" means (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares or beneficial ownership of such entity.

2. DEFINITIONS

(a) "Authorized User" means (i) if Licensee is an individual, solely Licensee; (ii) if Licensee is a legal entity, any employee, independent contractor and other temporary worker authorized by Licensee to use the Software while performing duties within the scope of their employment or assignment.

(b) "Software" means software program known as Axiorema VisualDrive Server in binary form, including its documentation, any third party software programs that are owned and licensed by parties other than Licensor and that either integrated with or made part of VisualDrive Server (collectively, "Third Party Software").

(c) "Software Instance" means a single installation of the Software on a physical or virtual machine.

(d) "Scope of Use" means the extent of authorized use of the Software (e.g., number of Authorized Users, number of Software Instances or other billable units) as specified in the applicable order or license key details.

3. OWNERSHIP

(a) The Software is the property of Licensor or its suppliers. The Software is licensed, not sold. Title and copyrights to the Software, in whole and in part and all copies thereof, and all modifications, enhancements, derivatives and other alterations of the Software regardless of who made any modifications, if any, are, and will remain, the sole and exclusive property of Licensor and its suppliers.

(b) The Software is protected by applicable copyright law and international treaty provisions. Further, the structure, organization, and code embodied in the Software are the valuable and confidential trade secrets of Licensor and its suppliers and are protected by intellectual property laws and treaties. Licensee agrees to comply with the applicable copyright laws and all other applicable laws including, but not limited to, European Union and United States export control laws.

4. GRANT OF LICENSE

Subject to the terms, conditions, and limitations set forth in this Agreement, Licensor hereby grants to Licensee a limited, non-exclusive, non-transferable license to use the Software as follows:

(a) Licensee may:

(i) install and use the Software on multiple computers, operating systems and accounts, within the limits of the Scope of Use;

(ii) make general commercial use of the Software;

(iii) make one back-up copy of the Software solely for archival purposes;

(iv) as an exception, if available under the applicable license type, run additional non-production instances of the Software with the same license key solely intended to test software updates and configuration changes without presenting risk to a production environment;

(b) Licensee may not:

(i) sell, redistribute (except as set forth in Paragraph 5 herein), encumber, give, lend, rent, lease, sublicense, or otherwise transfer the Software, or any portions of the Software, to anyone without the prior written consent of Licensor;

(ii) reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Software, or create derivative works from the Software;

(iii) run an instance of the Software if it does not have a valid license installed;

(iv) subject to the aforementioned exception related to non-production test instances, the Licensee may not run multiple instances of Software with the same license key, even if some of these instances are used for data replication, failover recovery or load balancing;

5. THIRD PARTY SOFTWARE LICENSE

Third Party Software is licensed to Licensee in accordance with a separate license agreement(s) included with the Software, and subject to any restrictions set forth herein. Licensee agrees to abide by the terms and conditions of the Third Party Software license agreements. Licensor will have no responsibility with respect to any Third Party Software, and Licensee will look solely to the licensor(s) of the Third Party Software for any remedy. Licensor claims no right in the Third Party Software, and the same is owned exclusively by the licensor(s) of the Third Party Software. LICENSOR PROVIDES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH RESPECT TO ANY THIRD PARTY SOFTWARE.

6. UPGRADES

Upgrades to new versions of the Software are optional and may be provided by Licensor either for free or at an additional charge pursuant to the upgrade terms set forth by Licensor or in a separate agreement between Licensee and Licensor (if applicable). Upon upgrading to a new version of the Software, Authorized User must cease using the previous version, and also ensure that it is not used by anybody else.

7. PATENT AND COPYRIGHT INDEMNITY

(a) Licensor will defend and indemnify Licensee for all costs and damages finally awarded (including reasonable attorneys fees) arising from a claim made by an unaffiliated third party that Software furnished and used within the scope of this Agreement infringes a United States or European Union patent or a registered copyright provided that: (i) Licensee notify Licensor in writing within 30 days of the claim (provided that the failure to provide such notice shall not relieve the Licensor of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure); (ii) Licensor has sole control of the defense and all related settlement negotiations, and (iii) Licensee provide Licensor with the assistance, information, and authority necessary to perform the above. Licensee may participate in the defense of such claim with counsel of Licensee's choice and at Licensee's sole expense.

(b) Licensor will have no liability for any claim of infringement based on (i) code contained within the Software which was not created by Licensor; (ii) use of a superseded or altered release of the Software, except for such alteration(s) or modification(s) which have been made by Licensor or under Licensor's direction, if such infringement would have been avoided by the use of a current, unaltered release of the Software that Licensor provides to Licensee; (iii) the combination, operation, or use of any Software furnished under this Agreement with programs or data not furnished by Licensor if such infringement would have been avoided by the use of the Software without such programs or data; or (iv) continued use of the Software after notice of an infringement claim.

(c) In the event the Software is held or believed by Licensor to infringe, or Licensee's use of the Software is enjoined, Licensor will have the option, at its expense, to (i) modify the Software to cause it to become non-infringing; (ii) obtain for Licensee a license to continue using the Software; (iii) substitute the Software with other Software reasonably suitable to Licensee, or (iv) if none of the foregoing remedies are commercially feasible, terminate the license for the infringing Software and refund any license fees paid for the Software, prorated over the paid license term or, in the case of a perpetual license, over three-year term from the commencement date of the license.

(d) This Section states Licensor's entire liability and Licensee's sole and exclusive remedy for any claim of patent or copyright infringement.

8. LIMITED WARRANTY

(a) If Licensee has paid a license fee for the Software, then for a period of thirty (30) days from the date of receipt of the Software, Licensor warrants the Software against any defects resulting from the electronic transmission process, and that any Software media supplied by Licensor will be free from defects in materials and workmanship ("Limited Warranty").

(b) Licensor's, and its suppliers' and resellers', entire liability and Licensee's exclusive remedy will be, at Licensor's option, either (i) return of the price paid, or (ii) repair or replacement of the Software that does not meet Licensor' Limited Warranty. This Limited Warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. Any replacement Software will be warranted for an additional thirty (30) days. These remedies are available only with proof of purchase from an authorized source.

(c) EXCEPT FOR THE FOREGOING LIMITED WARRANTY, THE SOFTWARE IS PROVIDED TO LICENSEE "AS IS" AND WITHOUT WARRANTIES. LICENSOR MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR, AND ITS SUPPLIERS AND RESELLERS, DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.

9. DISCLAIMER OF DAMAGES

(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE UNDER ANY THEORY (INCLUDING INDEMNIFICATION OBLIGATIONS) FOR ANY DAMAGES SUFFERED BY LICENSEE OR ANY USER OF THE SOFTWARE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR SIMILAR DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

(b) IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT, INCLUDING INDEMNIFICATION OBLIGATIONS, WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE SOFTWARE. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE OR SHOULD BE APPLIED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

10. U.S. GOVERNMENT RESTRICTED RIGHTS

The Software has been developed entirely at private expense and is provided as "Commercial Computer Software" or "restricted computer software". Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 CFR 52.227-19, and successor thereof, as applicable.

11. TERMINATION

(a) If Licensee fails to comply with the terms and conditions of this Agreement, this Agreement and Licensee's right and license to use the Software will terminate immediately. Upon termination, Licensee must uninstall and cease using the Software.

(b) Termination is without prejudice to any other rights or remedies Licensor may have. The provisions of this Agreement which by their nature should survive termination (including but not limited to Sections on Ownership, Disclaimer of Damages, and Governing Law) shall remain in effect.

(c) Licensee may terminate this Agreement at any time by uninstalling and ceasing use of the Software.

12. MARKETING

Licensee consents to be identified as a customer of Licensor and that Licensor may refer to Licensee by name, trade name and trademark, if applicable, and may briefly describe Licensee's business in Licensor's marketing materials, on Licensor's web site, in public or legal documents. Licensee hereby grants Licensor a worldwide, non-exclusive, royalty-free license to use Licensee's name and any of Licensee's trade names and trademarks solely pursuant to this marketing section, unless and until Licensee notifies Licensor in writing at sales@axiorema.com that it withholds such consent and Licensor confirms receipt of such notice.

13. GENERAL

(a) Licensor reserves the right at any time to cease the support of the Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.

(b) This Agreement, including the Third Party Software license agreements, constitutes the entire agreement between the parties concerning Licensee's use of the Software, and supersedes any and all prior or contemporaneous oral or written representations, communications, or advertising with respect to the Software. With the prior consent of the Licensee, this Agreement can be amended by a formal email from the sales@axiorema.com address. No other documents such as purchase order or any handwritten or typewritten text which purports to modify or supplement the printed text of this Agreement or any schedule will add to or vary the terms of this Agreement unless signed by both Licensee and Licensor.

(c) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach. The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement will be enforceable notwithstanding said expiration or termination.

(d) This Agreement will be governed by the laws of the Republic of Cyprus, without reference to conflict of laws principles. Any disputes arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of the competent courts of the Republic of Cyprus, unless otherwise required by applicable laws. The rights are granted worldwide. This Agreement is the entire agreement between us and supersedes any other communications or advertising with respect to the Software and accompanying documentation.

(e) Titles are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement. If any provision of this Agreement is held invalid or unenforceable, such provision shall be enforced to the maximum extent permitted by law, and the remainder of this Agreement will continue in full force and effect. Either Licensor or Licensee may assign this Agreement in the case of a merger or sale of substantially all of its respective assets to another entity. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and assigns.

For exceptions or modifications to this Agreement, please contact VisualSVN Software Ltd. by email at sales@axiorema.com