eServGlobal Software End User License Agreement (“Agreement”)

 
eServGlobal SAS, 244, avenue Pierre Brossolette, 92245 Malakoff Cedex, France, Company registration 324 592 724 R.C.S. Nanterre  (“eServGlobal”) hereby declares that subject to the provisions of the agreement to which this Agreement applies and subject always to the following terms and conditions, the Licensed Materials are licensed to you:

 

1       Intellectual Property Rights

1.1  Licensed Materials

eServGlobal will grant you a revocable, non-exclusive, non-assignable, non-transferable, non-sub-licensable licence to use the application software purchased by you as specified in a purchase order (“Licensed Materials”) in the location indicated in a purchase order for the Licensed Materials, and if not mentioned, then at your registered office (“Territory”) for your internal business purposes only, subject to the limitations set out in this Agreement, which shall also apply to any source code that may be supplied by eServGlobal and its licensors as part of their standard shipment of Licensed Materials.  Use of the Licensed Materials is limited to your legal entity that executed this Agreement.

1.2  eServGlobal Database

If eServGlobal provides you with the eServGlobal Database (“Database”) the terms specified in Annex 1 apply.

1.3  Ownership

We acknowledge and agree that all Intellectual Property Rights in respect of the Licensed Materials vest exclusively in eServGlobal and its licensors and shall in no case pass to you.  All copies of the Licensed Materials will be the property of eServGlobal.

1.4   Right to make Copies

1.4.1             You may make enough copies of the Licensed Materials for your licensed use (including for back-up purposes), and one copy of the Licensed Materials media.

1.4.2             Except as provided in sub-clause 1.4.1, you must not make, nor permit any other person to make, any copy of the Licensed Materials.

1.4.3             You must keep the Licensed Materials within your effective control and must adopt reasonable methods and procedures to prevent the unauthorised copying of the Licensed Materials and to inform your employees and agents that no copies of the Licensed Materials are permitted to be made except in accordance with this Agreement.

1.5  Proprietary Notices

You must ensure that all copies of the Licensed Materials made in accordance with this Agreement bear eServGlobal’s proprietary notice, containing such information and in the form notified by eServGlobal to you in writing.

1.6  No Modification

Subject to any law which cannot be excluded by agreement by the parties, you must not (and must not attempt to) directly or indirectly modify or amend the Licensed Materials; merge all or any part of the Licensed Materials with any other software or item; decompile, disassemble or reverse engineer the whole or any part of the Licensed Materials, including but not limited to the review of data structures or similar materials produced by the Licensed Materials; or cause or permit a third party to do any of those things.

1.7  Use for Business Purposes

You must only use the Licensed Materials for your own internal business purposes and must not directly or indirectly use the Licensed Materials for or on behalf of any other person.

1.8          No Dealing in Licensed Materials

You must not sell, license, encumber in any manner, or loan all or any part of the Licensed Materials to any other person.  You are prohibited from assigning, giving or transferring the Licensed Materials, or an interest in them to another individual or entity.  If the Licensed Materials are used as a security interest, the security holder must not be permitted to use or transfer them.

1.9            Liability

eServGlobal and its licensors disclaim, to the extent permissible by law, any liability for any damages, whether direct, indirect, incidental, special, punitive or consequential, arising from the use of the Licensed Materials.

1.10         Protection of Rights

  • (a) You shall promptly notify eServGlobal in writing, giving information in enough detail, if any of the following matters come to your attention:

(i) any actual, suspected or threatened infringement in relation to the Licensed Materials;

(ii) any claim made or threatened that the Licensed Materials infringe the rights of any third party; or

(iii) any other form of attack, charge or claim to which any of the Licensed Materials are subject.

  • (b) In respect of any of the matters listed in clause 10(a):

(i) eServGlobal shall, at its absolute discretion, decide what action to take, if any;

(ii) eServGlobal shall have exclusive control over and conduct of all claims and proceedings;

(iii) you shall not make any admissions of liability other than to eServGlobal and shall provide eServGlobal with all assistance that it may reasonably require in the conduct of any claims or proceedings; and

(iv) eServGlobal shall bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for its own account.

2              Intellectual Property Claims Indemnity

2.1.1             Subject to sub-clause 2.1.2, eServGlobal shall indemnify you against all claims, losses, damages, awards, costs and expenses (including reasonable legal fees) arising from a third party claim against you that your use of the Licensed Materials constitutes an infringement of any Intellectual Property Rights in the Territory.

2.1.2             eServGlobal shall not indemnify you to the extent that an infringement, suspected infringement or alleged infringement arises from:

a) your use of the Licensed Materials in a manner or for a purpose not reasonably contemplated or not authorised by eServGlobal; or

b)  your modification or alteration of the Licensed Materials.

3              Warranty

3.1          General

eServGlobal warrants that the Licensed Materials do not, and the use of them in accordance with this Agreement does not, infringe any person’s Intellectual Property Rights.

3.2          Warranty during Warranty Period

During the Warranty Period, eServGlobal warrants that the Licensed Materials will perform substantially as described in the Documentation.

3.3          Defects during Warranty Period

Your sole remedy in respect of any failure of the Licensed Materials to be fully operational, meet and satisfy the specifications, and operate materially in accordance with the relevant documentation (for the avoidance of doubt Defect excludes third party material Defects) notified to eServGlobal during the Warranty Period, is that eServGlobal will use its reasonable endeavours to rectify at its cost any such defect.   eServGlobal will not, however, be liable to rectify any defect in the Licensed Materials if:

3.3.1             you have altered or modified the Licensed Materials without eServGlobal’s authorisation;

3.3.2             the defect is the result of or related to your use of the Licensed Materials other than in the Recommended Operating Environment;

3.3.3             the defect is the result of or related to your failure to comply with any of your obligations under this Agreement;

3.3.4             the defect is the result of or related to your use of the Licensed Materials other than in accordance with the Documentation or eServGlobal’s reasonable recommendations or directions.

3.4          Entire Warranty

The warranty provided in this article is in lieu of any or all other warranties whether oral, written, express, implied or statutory.  No implied or statutory warranties of merchantability or fitness for particular purpose shall apply.

4              Liability

4.1.1             To the maximum extent permitted by law, all implied conditions, warranties and liabilities not expressly stated in this Agreement are negated and excluded.

4.1.2             The liability of a party to the other party for a breach of this Agreement, statutory causes of action, common law or tort (including negligence) in any way arising from this Agreement will be limited to an aggregate of all claims to the amounts paid or payable by you pursuant to this Agreement, however excluded from this cap are:

4.1.2.1   eServGlobal’s liability under clause 2;

4.1.2.2   any direct or indirect lost profit or revenue, exemplary damages, deletion or corruption of electronically or digitally stored information, or without limiting the foregoing, any indirect or consequential loss or damage howsoever described or claimed;

4.1.2.3   any cause of action that is excluded by law, including death, personal injury and fraud.

4.1.3             You will indemnify and keep indemnified eServGlobal, its officers, employees and agents (Indemnified Parties):

4.1.3.1              against all and any demands, claims, actions and proceedings whatsoever and howsoever arising made by any third party against any Indemnified Party in connection with or arising out of your use or misuse of the Licensed Materials, including but not limited to unauthorized dealing in the Licensed Materials;

4.1.3.2              for any loss due to the infringement of eServGlobal’s intellectual property rights;

4.1.4             Where any legislation implies into this Agreement any term, and that legislation voids or prohibits provisions under a contract which exclude or modify the operation of such term, that term is deemed to be included in this Agreement. eServGlobal’s liability for breach of that term will be limited to (where permissible by the relevant legislation) to the replacement of the Licensed Materials or the supply of equivalent goods, or the repair of the Licensed Materials, or the payment of the cost of replacing the Licensed Materials or of acquiring equivalent goods, or the payment of the cost of having the goods repaired, whichever eServGlobal sees fit to provide.

5              Termination

5.1          Termination of Licence

eServGlobal may, by notice in writing to you, suspend or terminate this Agreement, without prejudice to any right of action or remedy which has accrued, or which may accrue in its favour, where you:

  • fail to observe any confidentiality or security requirement provided for under this Agreement or any other agreement between us;
  • assign or purport to assign your rights otherwise than in accordance with this Agreement;
  • cease or threaten to cease to carry on business in the normal manner;
  • enter into, or threaten or propose to enter into, or are in jeopardy of becoming subject to receivership or any other form of insolvency administration (whether voluntary or not and whether formal or informal); or any provision of this Agreement is severed by operation of law
  • breach of this Agreement
  • regulation that applies that results in eServGlobal or its assignor that prevents us from providing this further use/sale (only to the extent to comply with the regulation).

5.2          Effect of Termination

If eServGlobal terminates this licence due to any breach of the provisions of this Agreement, upon such termination:

5.2.1             the licence in respect of the Licensed Materials will terminate; and

5.2.2             you shall cease to use such Licensed Materials and shall return them to eServGlobal or, if not capable of return, permanently erase them from your system.

6              Confidentiality

6.1            Non-Disclosure

We each must:

6.1.1             keep confidential all Confidential Information; and

6.1.2             not disclose any Confidential Information to any person, except:

6.1.2.1    as required by law or the rules of any stock exchange on which the securities of the recipient are listed, provided that the recipient discloses only such of the Confidential Information required to satisfy the law or those rules and gives the disclosing party reasonable prior notice of the disclosure;

6.1.2.2    with the prior written consent of the other party;

6.1.2.3    to its Affiliates, employees, contractors and agents to whom disclosure is necessary for the purposes of this Agreement and who have first undertaken to keep the Confidential Information confidential and not to use it except for the purposes of this Agreement.

Information will not be considered as Confidential Information if:

  • the information was in a Party’s lawful possession prior to the term of this Agreement; or
  • the information is or becomes publicly known through no wrongful act of a Party; or
  • the information is independently developed by a Party; or

6.2          Use

You and eServGlobal will not use or permit the use of any Confidential Information except for the purposes of and in accordance with this Agreement.

6.3          Equitable Relief

You and eServGlobal acknowledge that a Party will be entitled to equitable relief against the other party (in addition to any other rights available under this Agreement or at law) if the other party breaches the obligations contained in this clause 6.

7                Assignment

eServGlobal may assign, novate or otherwise dispose of the licence granted herein at its discretion. You may assign, novate or otherwise dispose of the licence granted herein only with the prior written consent of eServGlobal.

8                Governing Law

This Agreement is governed by and will be construed in accordance with the laws of England.

9                Jurisdiction

The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of England.

10  Definitions

10.1         Affiliate

means any corporation or other entity which either directly or indirectly Controls or is Controlled by or under common Control of a party to this Agreement.

10.2         Confidential Information

means any and all information disclosed by eServGlobal whether verbally, electronically, visually, or in a written or other tangible form that is either identified as confidential or proprietary or should reasonably be understood to be confidential or proprietary.  Confidential Information includes, but is not limited to, trade secrets, patented or copyrighted information, software, user interfaces, software documentation and/or specifications, formulas, data, inventions, algorithms, techniques, processes, marketing plans, strategies, business models, forecasts, training materials, third party confidential information, any business terms or agreements related to a business purpose of eServGlobal and its customer lists.

10.3         Control

means:

(a)       the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or

(b)       direct or indirect ownership of more than fifty (50) per cent of the nominal value of the issued equity share capital, or

(c)       direct or indirect ownership of more than fifty (50) per cent of the shares entitling the holders to vote for the election of directors or persons performing similar functions;

and ‘Controlled’ and ‘Controls’ will be similarly construed.

10.4         Defect

means any failure of the Licensed Materials to be fully operational, meet and satisfy the Specifications, and/or operate materially in accordance with the Documentation.

10.5         Documentation

means the user manuals and user instructions provided by eServGlobal relating to the Licensed Materials, and includes any descriptive information pertaining to any modification to or new Upgrades or Updates of the Licensed Materials which eServGlobal may provide from time to time.

10.6         Intellectual Property Rights

means patents, utility models, rights to inventions, copyright, moral rights and neighbouring and related rights, trademarks and service marks, trade names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including without limitation know-how, trade secrets and inventions (whether patentable or not)), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or may exist in the future in any part of the world.

10.7          Provisional Acceptance

means the milestone achieved when the agreed acceptance criteria have been met during the customer testing period.

10.1     Recommended Operating Environment

means the equipment specifications, operating systems and software configuration requirements specified by eServGlobal in a supply contract and its relevant project documentation as the environment in which the Licensed Materials will operate.

10.1     Specifications

means the business, technical, functional, non-functional, operational, performance and other requirements in respect of the Licensed Materials as specified in, referred to in, or agreed in accordance with a relevant supply contract, including any mutually agreed modifications to the Licensed Materials.

10.2       Update

means a Maintenance Release, Patch or Emergency Fix (as these terms are defined in the Support Services Description) in respect of any Licensed Materials.

10.3       Upgrade

means a new version of any Licensed Materials, which contains new features or major architectural changes to the Licensed Materials.

10.4       Warranty Period

means 90 days commencing at Provisional Acceptance (including any deemed acceptance) of the Licensed Materials.

10.1       We

means both eServGlobal and you.  “Us” shall have a similar meaning.

 

Annex 1

The Database is subject to the following terms, which are in addition to and prevail over any conflicting terms included in this Agreement.

  1. Your use of the programs is limited to the legal entity that executed the end user license
  2. Your use of the Database is restricted to the scope of the application package and to your internal business operations. You permit your agents or contractors (including, without limitation, outsourcers) to use the Licensed Materials on your behalf for your internal business operations as described above, subject to the terms of this Agreement. You may allow your customers and suppliers to use the Licensed Materials to interact with you subject to this Agreement. You are responsible for your agent’s, contractor’s, outsourcer’s, customer’s and supplier’s use of the Licensed Materials and their compliance with this Agreement.
  3. Oracle or its licensor retains all ownership and intellectual property rights to the Database.
  4. You are prohibited from (a) transferring the Database except for temporary transfer in the event of computer malfunction if the Database is embedded in a physical device and (b) assigning, giving, or transferring the Database and/or any related services ordered or an interest in them to another individual or entity (in the event you grant a security interest in the programs and/or any services, the secured party has no right to use or transfer the Database and/or any services).
  5. You are prohibited from (a) using the Database for rental, timesharing, subscription service, hosting, or outsourcing; (b) removing or modifying any program markings or any notice of Oracle’s or its licensors’ proprietary rights; and (c) making the programs available in any manner to any third party for use in the third party’s business operations.
  6. This Agreement does not confer on you any ownership rights to the Database.
  7. You are prohibited from reverse engineering (unless required by law for interoperability), disassembling or decompiling the Database (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by the Database) and duplicating the Database except for enough copies for your licensed use and one copy of each Database
  8. To the extent permitted by applicable law, Oracle’s shall not be liable for (a) any damages, whether direct, indirect, incidental, special, punitive or consequential, and (b) any loss of profits, revenue, data or data use, arising from the use of the
  9. Upon termination of this Agreement, you will discontinue use of and destroy or return to eServGlobal all copies of the Database and associated
  10. You are prohibited from publishing any results of benchmark tests run on the Database.
  11. You must comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to assure that neither the Database, nor any direct product thereof, are exported, directly or indirectly, in violation of applicable
  12. The programs are subject to a restricted license and can only be used in conjunction with the Licensed Materials and you are not permitted to modify the Database.
  13. You permit eServGlobal to audit your use of the Database and agree to provide reasonable assistance and access to information during such audit and permit eServGlobal to report the audit results to Oracle or to assign its right to audit your use of the Database to Oracle. Where Oracle audits your use of the Database, it shall not be responsible for any of your costs incurred in cooperating with the audit.
  14. Oracle is a third-party beneficiary of this Agreement.
  15. The Uniform Computer Information Transactions Act does not apply to this Agreement.
  16. The Database may include source code that Oracle may provide as part of its standard shipment, which source code shall be governed by the terms of this Agreement.
  17. Third party technology that may be appropriate or necessary for use with some Oracle programs is specified in the Licensed Materials package documentation or as otherwise notified by eServGlobal and such third party technology is licensed to you only for use with the Licensed Materials under the terms of the third party license agreement specified in the Licensed Materials documentation or as otherwise notified by eServGlobal and not under the terms of this Agreement.
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