ver: 05: 2013 B
Resus Digital Ltd End User License Agreement
This Software License Agreement (“Agreement”) is entered into between Resus Digital Ltd which, for purposes of this Agreement, shall be referred to as Resus, and the purchaser, licensee or user (“Licensee”) of Resus Software (as defined below). The terms of this Agreement also apply to any Resus Software Updates, and/or Software Maintenance (as each term is defined below) for the Resus software, unless other terms accompany those items. If so, those terms apply. READ THIS LICENSE CAREFULLY. BY INSTALLING, ACCEPTING THE SOFTWARE INSTALLATION AND/OR USING THE RESUS SOFTWARE, LICENSEE AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
If Licensee does not agree to the terms of this Agreement prior to opening the Resus Software packaging or installing the Resus Software, Licensee shall cease using (or refrain from commencing use of) the Resus Software, and shall, as applicable, uninstall and/or permanently delete the Resus Software, Documentation (and any copies thereof) from the computers or computer system(s) on which the Resus Software has been loaded or stored, and return the Resus Software and Documentation, all media on which it is stored, all product packaging, and proof of payment to Resus pursuant the Resus returns policy. If Licensee does not agree to the terms of this Agreement, and has acquired the Resus Software as part of a pre- configured computer system on which the Resus Software has been installed, Licensee must either promptly cease using the Resus Software, uninstall and/or permanently delete the Resus Software and Documentation (and any copies thereof) from the computer system(s) on which the Resus Software has been preloaded, or return the preconfigured system pursuant to the system vendor’s return policy.
1.1. “Commencement Date” means the installation date of the Resus Software to the Licensee.
1.2. “Documentation” means the user guides, tutorials, printed instructions, reference manuals, and other explanatory materials developed by Resus that accompany or are stored on or in the Resus Software for use in connection with the Resus Software.
1.3. “End User” means, as applicable, Licensee or any person or entity (including, for the avoidance of doubt, any employee or agent of Licensee) that uses the Resus Software.
1.4. “Object Code” means the form of Resus Software wherein computer programs are assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse- assembly, reverse-compiling, or reverse-engineering.
1.5. “Software Maintenance” means the provision of Software Updates.
1.6. “Resus Software” means, as applicable, the Object Code form of, Simply Digital Content Manager, Resus Player, Resus Broadcast Server, or other such other Resus software products or access licenses as may be identified in a purchase order provided to Resus, and shall be deemed to include the Documentation for such Resus Software, the license keys, clip art, fonts and multimedia files included in such Resus Software, their related software options,
software extensions, software upgrades and Software Updates, and Third Party Software integrated into such identified products.
1.7. “Software Updates” means bug fixes, documentation improvements and feature additions, including all major (i.e., numbered) and minor (i.e., point) releases, when and if made available by Resus.
1.8. “Third Party Software” means software, referred to as redistributable code that is licensed to Resus by third party licensors for redistribution with the Resus Software. The redistributable code is the property of Resus’s licensors, and protected under United States and international copyright, trade secret or other proprietary rights laws, and international treaties.
2. GRANT OF LICENSE RIGHTS.
2.1 License. Subject to the terms, restrictions and limitations set forth herein, Resus hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable license to use (and to permit its End Users to use) the Object Code version of the Resus Software, including any Third Party Software included therein or therewith, along with any graphical, textual, pictorial, audio or visual works or materials incorporated into or delivered with the Resus Software, including the Documentation.
This Agreement is effective as of the date at which Licensee accepts the license terms as set forth above, or, date of installation and will continue unless terminated as provided in Sections 7.3 or 8.
2.3. Scope of License and Use
A. Internal Use. Licensee may use the Resus Software and Documentation only for its own internal use and only on one, single-user computer. Licensee may internally transfer the Resus Software to a different, single-user computer (a “Transferred Installation”), provided that the Resus Software and any copies thereof are permanently uninstalled and/or deleted from the computer from which the Resus Software is transferred.
B. Limitations. In connection with the creation, development or management of content files, and/or the planning or scheduling of information using Resus Software (including, but not limited to, media creation and/or management, template message creation, metadata, schedules, layouts, timetables, playlists, or triggers), Licensee may publish or transmit files for playback (i) to one or more properly licensed individual Resus Players; (ii) to an audio visual network of screens showing identical content controlled by a properly licensed individual Resus Player, and (iii) for preview and approval purposes over the web or other means. Notwithstanding the above, Licensee shall not directly or indirectly, use or cause to be used for playback content files, plans, schedules or other information created, developed or managed with Resus Software without also having properly licensed Resus Software for the playback devices involved.
D. Third Party Software. The license granted hereunder includes the right of Licensee to use the Third Party Software in Object Code form, solely in connection with the authorized operation and use of the Resus Software in conformance with the terms and conditions of this Agreement. For the avoidance of doubt, Licensee may not decouple, disassemble or otherwise separate the Third Party Software from the Resus Software or use the Third Party Software except in connection with the use and operation of the Resus Software as permitted hereunder.
E. Restrictions. The Resus Software is licensed, not sold. This Agreement only gives you some rights to use the Resus Software. Resus reserves all other rights. Unless and solely to the extent otherwise permitted under applicable law, you may use the Resus Software only as expressly permitted in this Agreement. Except as expressly permitted under applicable law, or as otherwise agreed to in writing by Resus, Licensee shall not, and shall not permit any End User to: (i) work around any technical limitations in the Resus Software; (ii) publish the Resus Software for others to copy; (iii) make copies of the Resus Software; (iv) sell, lease, rent, redistribute, assign, sublicense, or transfer the Resus Software and/or Third Party Software; (v) reproduce, decompile, reverse engineer or disassemble the Resus Software and/or Third Party Software; (vi) offer the use of the Resus Software to third parties as an application service provider, service bureau or remote-hosted service; or (vii) deliver, export, transfer or otherwise distribute the Resus Software acquired hereunder to, or use the Resus Software acquired hereunder in, a country other than the country in which the Resus Software was purchased (including, for the avoidance of doubt, in connection with a Transferred Installation).
3. LICENSE AND OTHER FEES. Licensee agrees to be bound by and pay the annual license fee(s) set forth in the Resus Software price list in effect as of the date of purchase. License fees for Resus Software and maintenance fees for Software Maintenance may be updated and changed at any time.
3.1 Software Maintenance Coverage. Software Maintenance is offered upon separate terms from the Resus Software. Taking up the annual Software Maintenance coverage shall entitle the Licensee to Software Updates if and when made available by Resus. All use of Resus Software provided pursuant to Software Maintenance coverage shall be subject to the terms of this Agreement. Licensee may elect to continue Software Maintenance beyond the Initial
12 month Maintenance Term, subject to availability, upon payment to Resus of the Resus annual maintenance fee in effect at the time of renewal.
3.2 Taxes and Duties. Prices to Licensee do not include taxes, duties, tariffs, handling fees, or other such assessments of any nature. Whenever imposed, such assessments are payable by Licensee. Income or other taxes that are required to be paid or withheld by Licensee or Resus under the laws of jurisdictions, in connection with the license and other fees paid by Licensee hereunder, are the sole obligation of Licensee and shall be exclusive of the license and other fees paid by Licensee.
3.3 Other Services. Licensee acknowledges that any additional services offered by Resus, such as installation, customization or professional services, are not provided under this Agreement, and any such services to be provided by Resus shall be subject to the mutual agreement of the parties, the terms and conditions for which shall be set forth in a separate agreement.
3.4 Transfer of licenses for the Software installation are at the discretion of Resus. In the event that we decide to transfer a license this will be done only once for the individual party irrelevant of the number of licenses held.
3.5 The ownership of digital goods, like software applications and video games, is challenged by “licensed, not sold” EULAs of digital distributors like Steam. In the European Union, the European Court of Justice held that a copyright holder cannot oppose the resale of a digitally sold software, in accordance with the rule of copyright exhaustion on first sale as ownership is transferred, and questions therefore the “licensed, not sold” EULA
4. CONFIDENTIAL INFORMATION, TITLE AND COPYRIGHTS.
4.1 Licensee acknowledges that the Resus Software, Documentation, Software Updates, enhancements, modifications, additions, new releases of or to the Resus Software contain confidential information of, are trade secrets of, and are proprietary to Resus and its licensors and that title to such materials is and shall remain in Resus and its licensors, as the case may be. Licensee shall maintain in strict confidence the Resus confidential information, but, at a minimum, to take those precautions that it utilizes to protect its own confidential information. Licensee shall have no obligation of confidentiality with respect to information that (i) at the time of disclosure is in or becomes available to the public through no breach of this Agreement on the part of the Licensee; (ii) was lawfully in Licensee’s possession prior to receipt from Resus; (iii) is received independently from a third party free to lawfully disclose such confidential information to Licensee and who does not owe an obligation to Resus with respect to confidential information; (iv) Licensee independently develops without the benefit of any confidential information
disclosed hereunder or (v) is required to be disclosed by a government agency; provided that the Licensee will use best efforts to minimize such disclosure and will notify Resus promptly of any such demand, order or judgment in order to permit Resus to seek an appropriate protective order. 4.2 All applicable rights to patents, copyrights, trademarks and trade secrets in the Resus Software and other proprietary materials are and shall remain in Resus. Licensee shall not assert any right, title or interest in the Resus Software or other materials provided to Licensee under this Agreement, except for the limited license rights expressly granted to Licensee hereunder.
4.3 Licensee shall not obscure or remove any copyright or other proprietary notice or legend contained on or included in the Resus Software and shall reproduce all such information on all copies made hereunder. Licensee shall not, directly or indirectly, disclose or distribute any technical information of Resus provided with or in the Resus Software without the prior written consent of Resus, which consent may be withheld at Resus’s sole discretion.
5. LIMITED WARRANTIES.
5.1 Media and Documentation. Resus warrants that if the media or Documentation is in a damaged or physically defective condition at the time the Resus Software is delivered to Licensee, and if such media or Documentation is returned to Resus within thirty (30) days of the effective date of this Agreement, Resus will provide Licensee with a replacement at no charge.
5.2 Software Limited Warranty and Remedy.
A. Provided that Licensee is not in breach of any of its obligations under this Agreement, and in addition to the warranty set forth in Section 5.1, Resus warrants for a period of thirty (30) days from the Commencement Date (“Warranty Period”), that the software will substantially conform to the Documentation provided by Resus with the Resus Software. Licensee’s sole remedy and Resus’s sole obligation under this Agreement for breach of this warranty is, at Resus’s sole option, (i) the remedy of the nonconformity or (ii) the authorization of a refund for the price paid for the media and or Resus Software by Resus. Any request for the above remedies must be made within the Warranty Period and proof of purchase (i.e., copy of the invoice or receipt) is required to be presented to Resus. In the event of a refund, this Agreement will immediately terminate without further notice, and Licensee will have no further rights or license to use Resus Software or Documentation.
B. Any replacement software or media will be warranted for the remainder of the original Warranty Period or for an additional thirty (30) days whichever is longer.
C. This limited warranty is void if nonconformance of the Resus Software results from or is related to the (i) improper installation or operation of the Resus Software by or on behalf of the Licensee, (ii) failure of Licensee’s hardware or non-Resus software, (iii) incompatibility of such hardware and non-Resus software systems with Resus Software, (iv) alteration, modification or unauthorized integration of Resus Software by or on behalf of Licensee, or (v) accident, abuse or misapplication of Resus Software.
D. If the Resus Software is provided as a trial or evaluation version, the grant of the license to use the Software shall be on an “AS IS” basis and subject to the express limitations of the trial. Unless Licensee shall have entered into a separate written license agreement prior to the expiration or termination of the trial period, Licensee agrees to cease all use of the Resus Software provided on a trial or evaluation basis and to return such Resus Software, or to return any license keys and destroy or permanently delete any and all copies of such Resus Software.
5.3 Disclaimer of Warranties. RESUS MAKE NO WARRANTY, REPRESENTATION OR PROMISE EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, RESUS DISCLAIM AND EXCLUDE ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR RESULTS. RESUS AND DO NOT WARRANT THAT THE RESUS SOFTWARE OR DOCUMENTATION WILL SATISFY LICENSEE’S REQUIREMENTS; THAT THE RESUS SOFTWARE AND DOCUMENTATION ARE WITHOUT DEFECT OR ERROR; OR THAT THE OPERATION OF THE RESUS SOFTWARE WILL BE UNINTERRUPTED. TO THE MAXIMUM EXTENT PERMITTED UNDER THE LAW, THE UN CONVENTION FOR THE SALE OF GOODS AND THE UNIFORM COMMERCIAL CODE DO NOT APPLY TO THIS LICENSE AGREEMENT.
6. LIMITATION OF LIABILITY.
6.1 IN NO EVENT SHALL RESUS BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS). REGARDLESS OF WHETHER RESUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, RESUS’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS LICENSE OR THE RESUS SOFTWARE AND DOCUMENTATION IS LIMITED TO THE AMOUNT ACTUALLY PAID FOR THE LICENSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
7.1 Resus’s Obligation. Subject to the Licensee indemnification set forth at Section 7.2 and the restrictions and limitations set forth herein, Resus shall indemnify and hold harmless Licensee, its officers, directors and employees from and against any costs or demands awarded against Licensee by a court of competent jurisdiction pursuant to a final judgment as a result of a claim or action by a third party against Licensee that the Resus Software or Documentation infringes a registered copyright, trademark, valid patent or other intellectual property right of a third party in the United Kingdom, North America, European Economic Area or Japan. The foregoing indemnity is conditioned on Licensee (i) promptly notifying Resus of such claim; (ii) permitting Resus to control the response thereto and the defense thereof, including any agreement relating to the settlement thereof, and (iii) assisting and cooperating with Resus, at Resus’s expense, in the defense or settlement thereof. Licensee may participate, at its own expense, in such defense directly or through counsel of its choice on a monitoring, non-controlling basis. Resus shall obtain Licensee’s prior written consent to any compromise or settlement of any claim which would require an admission of liability on the part of Licensee or which would subject Licensee to any injunction or other equitable relief. Notwithstanding the foregoing, in no event shall Resus or its licensors be liable to indemnify, defend, settle or hold Licensee harmless from and against any or all claims which allege infringement of intellectual property that reads upon or is infringed by a generally recognized audio, video, technology or patent standard, including without limitation MPEG-1, MPEG-2, MPEG-4, JPEG, DV, Flash, VC-1, AAC, AC-3, DVCPRO or AVS (each including all profiles, options, parts or levels);
7.2 Resus shall have no obligation under Section 7.1, and otherwise will have no liability for, any claim of infringement caused or alleged to be caused by: (i) the use or combination of the Resus Software with non-Resus software, hardware, data, or content, including but not limited to software, hardware, data, or content of Licensee; (ii) infringement that would have been avoided without the use or combination of the Resus Software with other non-Resus software, hardware, content, or data; (iii) the presence of any alteration or modification of the Resus Software by Licensee or any third party acting on Licensee’s behalf; or (iv) the Licensee’s continuing the allegedly infringing activity after being notified thereof or after being informed and provided with modifications that would have avoided the alleged infringement.
7.3 In the event that a claim of infringement of a valid United Kingdom, North American, European Economic Area or Japanese software patent or copyright is made against Resus or Licensee or if Resus reasonably believes that such a claim will be made, Resus, at its option and in lieu of indemnification, may (a) procure for Licensee the right to use the Resus Software without patent or copyright infringement; (b) modify the Resus Software to make it non-infringing; (c) replace the Resus Software with substantially equivalent software that is non-infringing; or (d) direct Licensee to cease use of the Resus Software, and refund to Licensee a percentage of the aggregate fees received for such Resus Software that are the subject of such a claim, based on a three (3) year straight line depreciation
7.4 The foregoing Sections 7.1-7.3 set forth the exclusive remedy and entire liability and obligation of Resus with respect to third party claims against Licensee alleging intellectual property infringement or misappropriation.
7.5 Licensee Obligation. Except for the infringement claims set forth in Section 7.1, Licensee shall indemnify, defend and hold Resus, its directors, officers, agents and employees harmless from any claims, demands, or causes of action whatsoever by a third party against Resus arising as a result of Licensee’s use or operation of the Resus Software. For the avoidance of doubt, and without limiting the scope of the immediately preceding sentence, Licensee shall indemnify, defend and hold Resus, its directors, officers, agents and employees harmless from any third party claims, demands, or causes of action whatsoever arising from or related to the display, broadcast, reproduction, performance or other use or distribution of audio, visual, graphical and textual information developed by or on behalf of Licensee and not included in the Resus Software.
8.1 By Licensee. Licensee may terminate this Agreement at any time without notice to Resus. The license fee is not refundable and Resus will have no obligation to refund any amounts paid by Licensee under this Agreement upon its termination (except for any right of refund as set forth in Sections 5 and 7.3).
8.2 Resus. Resus may terminate this Agreement and all licenses granted hereunder upon thirty (30) days prior written notice if Licensee fails to comply with any of the terms and conditions of this Agreement or any Schedule to this Agreement, and such noncompliance is not cured within such thirty (30) day period.
8.3 Return of Software. Upon any termination of this Agreement, Licensee must cease all use of the Resus Software, and return to Resus all copies of the Resus Software, including license keys, together with the Documentation, or shall return all license keys and certify to Resus’s reasonable satisfaction the destruction or permanent deletion of all copies of the Resus Software and Documentation from its computer systems.
8.4 Abuse of software or circumnavigation of licenses by any party will result in software deactivation. Deactivation will be either at the System for which it is installed, via remote access or via direct connection to the booth.
9.1 Audit Rights. Resus shall have the right reasonably to audit the deployment and use of the Resus Software by Licensee, including without limitation Licensee’s conformance with the provisions of Section 3 herein. Licensee agrees to cooperate with Resus’s reasonable request for access to Licensee’s computer systems to ensure Licensee’s adherence with the license terms hereunder.
9.2 Purchase in Canada. If Licensee acquired this software in Canada, Licensee agrees to the following: The parties hereto have expressly required that the present Agreement and any exhibits hereto be drawn up in the English language. / Les parties aux présentes ont expressément exigé que la présente convention et ses Annexes soient rédigées en langue anglaise.
9.3 Notices. Any notice required or permitted to be given by Licensee hereunder shall be in writing and shall be deemed to have been duly given (i) upon hand delivery, (ii) on the third day following delivery to the postal service as certified mail, return receipt requested and postage prepaid, or (iii) on the first day following delivery to a recognized overnight courier service, fee prepaid and return receipt or other confirmation of delivery requested. Any such notice shall be delivered or sent to Resus at the address as set forth below, or to such other address as Resus may designate from time to time. Resus Digital ltd, Unit 2, The Maltings, Navigation Drive, Brierley Hill, West Midlands. DY5 1UT
9.4 Governing Law.
A. United Kingdom. If you acquired the Resus Software in the United Kingdom, UK law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles.
B. Sales Outside the United Kingdom. If you acquired the Resus Software in any other country outside the United Kingdom, the laws of the country of purchase applies to you, regardless of such country’s conflicts of law provisions.
9.5 Legal Effect. This Agreement describes certain legal rights. You may have other rights under the laws of your country or state. You may also have rights with respect to the party from whom you acquired the Resus Software. This Agreement does not change your rights under the laws of your country or state if the laws of your country or state do not permit it to do so.
9.6 Assignment. Neither party may assign any rights, duties, obligations or privileges under this Agreement without the prior written consent of the other party. A change of control or ownership shall not be deemed to be an assignment under this Section so long as the new owner has expressly assumed in writing all of the duties and obligations of the assignor and further provided, that Licensee shall remain liable and responsible to Resus (and its licensors) for the performance and observance of all such duties and obligations.
9.7 Severability. Should any part or provision of this Agreement be held unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining parts or provisions shall not be affected by such holding.
9.8 Limitation on Effect of Waiver. Failure on the part of Resus to exercise, or Resus’s delay in exercising, any of Resus’s rights hereunder shall not be construed as a waiver or waiver of other breaches of this Agreement. Any single or partial exercise by a party of any right shall not preclude any other or future exercise thereof or the exercise of any other right in the Agreement. 9.9 Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the transactions contemplated and supersedes any prior agreements or understandings among the parties with respect to the subject matter hereof. This Agreement may be amended only by a writing that refers to this Agreement and is signed by both parties.
9.10 Export Law Assurances. Licensee acknowledges that the Resus Software included herewith is subject to restrictions and controls imposed under the UK Export Laws. Licensee must comply with all domestic and international export laws and regulations that apply to
the software. These laws include restrictions on destinations, end users and end use. Licensee hereby expressly agrees to defend, hold harmless and indemnify Resus, its directors, officers, and employees, from any claim, suit or dispute alleging that Licensee has exported the Resus Software in violation of any domestic or international export laws.
9.11 Construction. The headings in this Agreement are for convenience of the parties only. They do not constitute a portion of this Agreement and shall not be used in interpreting the construction of this Agreement.
9.12 Third Party Beneficiary. Licensee hereby agrees that the licensors of Third Party Software shall be considered third party beneficiaries of this Agreement and shall be entitled to bring a direct action against Licensee in the event of breach of any applicable provisions of this Agreement, pursuant to the terms and conditions of this Agreement.
9.13 Force Majeure. Neither party shall be in default if failure to perform any obligation hereunder is caused solely by unforeseen supervening conditions beyond that party’s reasonable control, which could not have been prevented by the non-performing party’s reasonable precautions, commercially accepted processes or substitute services, including acts of God, civil disturbances, strikes and labor disputes.
9.14 Negation of Agency and Similar Relationships. Nothing contained in this Agreement shall be deemed to create an agency, joint venture or partnership relationship.
Because our products are digital software, delivered instantly once payment is received, and are available as try before you buy, our customers can test the products before buying them and determine that:
- It is the correct software to help them with their tasks
- It runs correctly on their computer and is compatible with their operating system
- It runs correctly on their equipment such as Cameras, Printers, Webcams
For these reasons we offer no refunds as a matter of policy, however a 30 day, 100% money back guarantee exceptions are made under the following circumstances:
- The software appears to be not as described
- The customer is experiencing a problem or bug with the software that cannot be solved by our developers in less than 30 days
In these cases, we’ll issue a full refund of your purchase 30 days after your purchase
Refunds will not be honoured on license names that were provided incorrectly during purchasing. License information can be changed at time of renewing.
Refund payments can take upto 14 days.