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flex.bi Enterprise EULA v1.1
This End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single legal entity and its affiliates) whose details are provided to flex.bi upon Purchase (defined below) (“Licensee”) and flex.bi to use the Software. This EULA applies from the date when the Licensee receives the Software from a Reseller or flex.bi (“Purchase”). An amendment or addendum to this EULA may accompany the Software, and any such amendment or addendum shall be considered part of the EULA.
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Effective as of: May 15, 2018
1. Definitions
Accessible Code
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means source code that is unprotected and accessible.
Flex BI
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means Flex BI SIA, Slokas 32-3, Riga, LV-1048, 40203021416
Affiliate
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means another entity controlled by or under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
Authorized User
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means a person who accesses and uses the Software under a User License.
Embedded Software
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means any third party software which may contain Accessible Code, Protected Code or Media licensed by Flex BI from a third party and embedded in the Software.
Fees mean
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all fees and expenses payable by the Licensee to Flex BI in acquiring the Software and as applicable any Maintenance or User Licenses.
Free License
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means a license for which the Fees are waived by Flex BI.
Maintenance
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means the provision by Flex BI to Licensee of Software updates and/or enhancements made generally available to customers from time to time, and online technical support for the sole purpose of addressing technical issues relating to the use of the Software.
Media
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means all images, icons, text files, PDFs, or other static non-code assets contained within the Software.
OEM Distribution
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means a distribution of the Software as either a bundled add-on to, or embedded component of, another application with such application being made available to its users as, but not limited to, an on-premises application, a hosted application, a Software-as-a-Service offering, or a subscription.
Paid License
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means a license for which Fees have not been waived by Flex BI.
Parties
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means either Flex BI or the Licensee or both.
Protected Code
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means any source code that is protected against access by the Licensee and any third party without Flex BI’s prior written permission and is otherwise not accessible under this EULA.
Reseller
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means a third party selling and distributing Flex BI services and/or products which it is authorized by Flex BI to do so.
Software
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means the flex.bi branded software that accompanies this EULA, which may include computer software, Accessible Code, and Protected Code and may include associated media, Media, printed materials, “online” or electronic documentation, Internet-based services, and Embedded Software.
User License
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means a license granted under this EULA to the Licensee to permit an Authorized User to use the Software. The number of User Licenses granted to the Licensee is dependent on the Fees paid by the Licensee.
2. Grant of License
The Software is licensed, not sold. Upon Licensee’s acceptance of this EULA, flex.bi grants the Licensee the non-exclusive and a non-transferable right to use the Software subject to the following conditions:
Upon Licensee’s acceptance of this EULA, Flex BI grants Licensee the non-exclusive right to use the Software subject to the following:
2.1 Paid License
2.1.1 Authorized Users
The licenses granted are subject to the condition that the Licensee must ensure the maximum number of Authorized Users accessing and using the Software concurrently is equal to the number of User Licenses for which the necessary Fees have been paid to the Reseller or Flex BI. The Licensee may purchase additional User Licenses at any time on payment of the appropriate Fees to the Reseller or Flex BI.
Flex BI grants Licensee:
(i) to install and use the Software on one (1) production server that can be accessed by the agreed number of end-users within Your organization (limited or unlimited number of end-users that is specified in the license fee invoice),
(ii) to install and use the Software on one (1) test or staging server that is used to support licensed production server and
(iii) to install and use the Software on up to ten (10) developer workstations that are used to develop extensions and modifications of the Software for a licensed production server.
2.1.2 Backup
The Licensee is permitted to copy the Software for data protection, archiving and backup purposes only and for no other purpose. However, only the strictly necessary number of backup copies may be made.
2.2 Evaluation License
2.2.1 Installation and Use
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flex.bi may in its sole discretion provide evaluation copies of the Software, which may not have full functionality, to a Licensee to assess the Software. Any such evaluation copies will be provided under an Evaluation License that limits the period during which the Licensee may download, install, use and operate the Software (“Evaluation Period”) and limits the number of temporary users. On the expiry of the Evaluation Period, the Software will cease to function and the Licensee must remove and delete all copies of the Software in its possession.
Flex BI grants Licensee
(i) to install and use the Software on one (1) test server strictly for evaluation and review purposes and not for production purposes,
(ii) to install and use the Software on up to three (3) developer workstations strictly for evaluation and review purposes and not for production purposes.
2.3 General License Terms
2.3.1 Scope
Each license granted by
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flex.bi under this EULA is worldwide, non-exclusive and non-transferable
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unless otherwise specified in writing.
2.3.2 Duration
Subject to the terms of this EULA and unless terminated earlier in accordance with this EULA, the term granted hereunder shall be:
(a) for a Paid License – the License Period that is specified in the license fee invoice;
(b) for an Evaluation License – the Evaluation Period.
2.3.3 Permitted Computers
Except as otherwise agreed in writing by Flex BI, the Licensee must only install the Software and make the Software available for use on hardware systems owned, leased or controlled by the Licensee.
2.3.4 Responsibility for Non-controlled systems
If
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flex.bi permits the Licensee to install the Software or make the Software available for use on hardware systems not owned, leased or controlled by the Licensee (“Non-controlled Systems”), the Licensee will ensure the terms of this EULA are complied with by users of such Non-controlled Systems and the Licensee indemnifies
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flex.bi for all costs, damages and loss
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flex.bi suffers arising from such installation or use of the Software on Non-controlled Systems.
3. Fees
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The Licensee must pay all Fees by their due date notified to Licensee and in the manner directed at the time of Purchase of the Software. Failure to pay Fees by the due date will result in the immediate termination of the licenses granted under this EULA.
4. Embedded Software
4.1 Rights
The Licensee acknowledges the Software contains Embedded Software and that in addition to the obligations of this EULA, additional obligations may apply in relation to any use of Embedded Software by the Licensee which is not in accordance with the use of the Software as permitted under the terms of this EULA. In such circumstances, the Licensee must consult the relevant third party to acquire any necessary licenses and consents in relation to its use of any Embedded Software.
5. Reservation of Rights and Ownership
Flex BI reserves all rights not expressly granted to the Licensee in this EULA. The Software and all copies thereof are protected by copyright and other intellectual property laws and treaties. Flex BI or its relevant third parties own the title, copyright, and all other intellectual property rights in the Software and all subsequent copies of the Software. The Software is licensed, not sold and the Licensee does not acquire any rights of ownership in the Software hereunder.
6. Support and Maintenance
6.1 Additional Software / Services
This EULA applies to updates, supplements, add-on components, or Internet-based services components, of the Software (“Supplementary Software”) that Flex BI may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software unless Flex BI provides other terms along with any Supplementary Software. Flex BI reserves the right to discontinue any Internet-based services provided to the Licensee or made available to the Licensee through the use of the Software.
6.2 Maintenance
Flex BI will provide Maintenance for the period that is specified in the license fee invoice for a Paid Version. Any support services in excess of services generally included by Flex BI in Maintenance may be subject to the payment of additional Fees. If Maintenance is desired beyond the initial maintenance period after the date of Purchase, Licensee must pay an additional fee.
7. Licensee Obligations
7.1 Positive Obligations
Licensee must at all times: (a) ensure that only an Authorized User uses the Software and only in accordance with the terms and conditions of this EULA, (b) ensure that the Software is not used for rental, timesharing, subscription service, hosting or outsourcing.
7.2 Negative Obligations
Licensee must not, whether through negligent act or omission, or without the prior written consent of Flex BI, which may be withheld at Flex BI’s discretion and include certain conditions: (a) decompile; reverse engineer; disassemble; modify; adapt; create derivative works from; or otherwise attempt to derive; any part or whole of the Software; (b) directly or indirectly access or use any Embedded Software independently of the rest of the Software; (c) sell; sublicense; redistribute; reproduce; transmit; circulate; disseminate; translate or reduce to or from any electronic medium or machine readable form the Software or any data/information not owned by the Licensee which is provided to Licensee through the Software to a person who is not an Authorised User; (d) vary or amend the Software (including any Embedded Software; Protected Code or Accessible Code); (e) except as otherwise permitted in this EULA, publish; promote; broadcast; circulate or refer publicly to the Flex BI name; trade name; trademark; service mark or logo; (f) commit any act or omission the likely result of which is that Flex BI’s or any of its third party suppliers’ reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on Flex BI’s interests; (g) distribute the Software via OEM Distribution without entering into a separate OEM Distribution Agreement with Flex BI; or (h) copy or embed elements of the Accessible Code contained in the Software into other software.
7.3 Protection Mechanisms
The Software includes license protection mechanisms that are designed to manage and protect the intellectual property rights of Flex BI and its third-party suppliers. Licensee must not modify or alter those features to try to defeat the Software or use rules that the license protection mechanisms are designed to enforce. Any such attempt by the Licensee will result in the immediate termination of any license granted under this EULA.
8. Notification
8.1 General
If the Licensee discovers it has breached any of its obligations under this EULA and in particular but not limited to the obligations in clause 7, the Licensee must immediately report such breach to Flex BI, in writing.
8.2 Breach of Additional Licences
Where a breach involves the distribution or use of Software outside of the terms of the User License or any Additional User License (including but not limited to the use and distribution of Embedded Software), Flex BI and/or any third party owner of Embedded Software will be entitled (without prejudice to any other right or claim that Flex BI or any third party owner of Embedded Software may have against Licensee) to charge Licensee, in addition to any other Fees payable by Licensee under this EULA, a fee calculated based on the number of prohibited distributions or uses multiplied by the respective list prices that Flex BI and/or any third party owner of Embedded Software charges for the Software or Embedded Software respectively.
9. Investigation of Unauthorized Use and Distribution
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Immediately upon termination of a license granted under this EULA, the Licensee must at its own cost (a) cease permitting access to and procure that all Authorised Users immediately cease all use of the Software; (b) remove all copies of the Software from its computer systems or any Uncontrolled Systems; and (c) provide Flex BI with written certification that it has destroyed all copies of the Software including but not limited to all Accessible Code in its possession, custody or control.
12. Indemnification
12.1 Indemnification by
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flex.bi
Subject to Clause 14,
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flex.bi will indemnify and hold harmless the Licensee against all costs, expenses, losses and claims made against the Licensee as a result of any infringement of a third-party’s intellectual property rights arising from the Licensee’s or its Authorized User’s use of the Software. If the Software becomes, or in the opinion of Flex BI may become, the subject of a claim of infringement of any third party’s intellectual property rights, Flex BI may, at its option and in its discretion: (a) procure for Licensee the right to use the Software free of any liability; (b) replace or modify the Software to make it non-infringing; or (c) refund any license Fees related to this Software paid by Licensee. The foregoing states the sole liability of Flex BI and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Software or any other items provided by Flex BI under this EULA.
12.2 Indemnification by Licensee
The Licensee will indemnify and hold harmless
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flex.bi against all costs, expenses, losses, and claims made against
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flex.bi as a result of any infringement of a third party’s intellectual property rights arising from the Licensee’s or its Authorized User’s unauthorized use of the Software under this EULA.
12.3 Indemnification Procedure
The party seeking indemnification must notify promptly the party providing indemnification of the claim, give the party providing indemnification sole control of the defense and related settlement negotiations, and the party seeking indemnification must provide the party providing indemnification with reasonable assistance and information, but no cost or expense shall be incurred for the account of the party seeking indemnification without its prior written consent.
12.4 Third Party Products
Licensee acknowledges and agrees that if Licensee breaches this EULA and Flex BI or any third party owner of Embedded Software suffers any loss, damage, cost or expense directly or indirectly in connection with the breach, Flex BI or the relevant third party owner of the Embedded Software may bring an action directly against Licensee. ##13. Exclusion of Warranties To the maximum extent permitted by applicable law in the jurisdiction in which the Software or any Supplementary Software is supplied or Maintenance is provided, Flex BI and its third-party suppliers provide the Software and any Maintenance AS IS AND WITH ALL FAULTS, and except otherwise expressly contained in the EULA, hereby disclaim all other warranties and conditions, whether express, implied or statutory.
13. Exclusion of Warranties
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14. Limitation of Liability
14.1 Non-excludable Warranties
The Licensee may have remedies against Flex BI imposed by law or statute which can not be excluded by Flex BI and its third-party suppliers. To the extent the Licensee has such legal remedies against Flex BI or its third party suppliers then to the fullest extent permitted by law Flex BI and its third-party suppliers’ liability is limited (a) at Flex BI’s option, to: (i) in the case of the Software: 1) repairing or replacing the Software; or 2) the cost of such repair or replacement; and (ii) in the case of Maintenance services; 1) resupply of the Maintenance services; or 2) the cost of having the Maintenance services supplied again; or (b) if the limitation set out in 14.1(a) is not applicable then to an amount of the liability up to a maximum of the sum of the multiple of three times the amount actually paid by the Licensee for the Software.
14.2 Limitation of Liability for other Losses
Subject to Clause 14.1, notwithstanding any damages Licensee might incur for any reason whatsoever to the maximum extent permitted by applicable law the entire liability of Flex BI and any of its third party suppliers under any provision of this EULA and Licensee’s exclusive remedy hereunder shall be limited to an amount of the liability up to a maximum of the sum of the multiple of three times the amount actually paid by the Licensee for the Software.
14.3 Consequential Loss
Notwithstanding anything else in this section 14, to the maximum extent permitted by applicable law, in no event shall Flex BI or its third party suppliers be liable for any loss of income; loss of business profits or contracts; business interruption; loss of the use of money or anticipated savings; loss of information; loss of opportunity, goodwill or reputation; loss of, damage to or corruption of data; special; incidental; punitive; indirect; or consequential damages whatsoever arising out of or in any way related to the use of or inability to use the Software; the provision of or failure to provide Maintenance or other services; information; software; and related content through the Software or otherwise arising out of the use of the Software; or otherwise under or in connection with any provision of this EULA, even in the event of the fault; tort (including negligence); misrepresentation; strict liability; breach of contract; or breach of warranty of Flex BI or any third party supplier, (including any such liability for the acts or omissions of its employees, agents and subcontractors); and even if Flex BI or any third party supplier has been advised of the possibility of such damages.
14.4 Flex BI shall have no liability to the Licensee where faults arise from:
(a) the possession, use, development, modification or maintenance of the Software (or any part thereof) by the Licensee other than in accordance with this license, if the infringement would have been otherwise avoided; or
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Clauses 1, 4, 5, 7, 9, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 24, 25, 26 and 27 shall survive any termination of this EULA.
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