Artemis Software EULA

Artemis Software End User License Agreement
Version 1.0, May 2008

The individual installing or using this software represents and warrants that he or she has authority to enter into this agreement with Artemis Software on behalf of the Licensee, that he or she has read the terms and conditions set out herein and that the Licensee accepts and agrees to be bound by this agreement. If the Licensee does not agree with the terms and conditions, the Licensee must not use or permit the use of the Product.
1. Definitions
Artemis Software means Artemis Software Inc., (EIN 75-3085847) of 4251 Madison Ave., Culver City, California, 90232 USA.
Authorized Machine means a single installation of a copy of the Product on a single physical computer. Authorised Server Node means a single installation of a copy of the Product within a J2EE application server on a single physical server, which is either stand alone or within a connected cluster. Authorized Use means the defined number of copies or instances of the Product that may be used by Licensee, and where applicable, limited to the number of Authorised Machines, as designated in the Quote/Invoice issued by Artemis Software. Authorized Users means the number of Authorized Server Nodes and/or the number of Authorized Machines, as designated in the Quote/Invoice issued by Artemis Software. Authorized User means a person or user account who is licensed to use the Product, regardless of whether that person is an employee, contractor, subcontractor, vendor, partner or customer of the Licensee. Commencement Date means the date that Artemis Software processes payment of the License or Maintenance Fees from Licensee. Desktop Version means a version of the Product that works outside the browser, as a standalone application. License means the right to use the Product as defined by Authorized Use. Licensee means the individual or entity (inclusive of subsidiaries) that has licensed the Product under the terms and conditions of this agreement. Plugin Version means a version of the Product that works as a plugin to another web application, such as Artemis Software plugins for Confluence or Artemis Software plugins for JIRA. It does not include Artemis Software Desktop applications. Product means the Artemis Software product defined in the Quote/Invoice delivered by Artemis Software to Licensee, including any documentation and updates provided under the terms of this agreement in accordance with Clause 5. Protected Code means source code contained within the Product that is protected against access by Artemis Software.
2. License Fee
A one-time fee paid by Licensee to Artemis Software, as designated by Product, in consideration for the Authorized Use of the Product. License fee is non- refundable and payable upon acceptance of the terms and conditions set out herein.
3. Grant of License
Subject to the terms of this agreement, including limitations defined by the License, Artemis Software grants to Licensee, and Licensee accepts from Artemis Software, a perpetual, worldwide, non-exclusive, non-transferable, non-sublicensable License to use the Product as defined by Authorized Use.
4. No Warranty
Save as provided in clauses 13 and 14 below, the Product is provided on an "as is" and "as available" basis without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance or merchantability or fitness for a particular purpose, including without limitation that Artemis Software does not warranty that the Product will be error-free, complete, or correct. Artemis Software provides evaluation copies of the Product so that customers can assess the Product.
5. Artemis Software's Obligations
Upon receipt of Licensee Fee from Licensee, Artemis Software will (a) supply the Licensee with the Product via electronic download; and (b) provide Software Maintenance as defined in Section 6.
6. Software Maintenance
6.1. For Plugin Versions
Software Maintenance includes Artemis Software's provisioning to Licensee Product updates and/or enhancements made generally available to customers from time to time, and online technical support (and where applicable, phone support) to one Licensee-designated technical contact for the sole purpose of addressing technical issues relating to the use of the Product (excluding any form of on-site visits by Artemis Software personnel or contractors), for a period of twelve (12) months from the Commencement Date (the "Initial Maintenance Period"). The Initial Maintenance Period may be renewed for additional twelve (12) month periods ("Renewal Period") at the then-current rate for Software Maintenance. Subsequent Renewal Periods commence upon the expiration of the prior Software Maintenance regardless of when it is purchased.
6.2. For Desktop Versions
If Licensee has purchased a Plugin Version of the Product, support for the Desktop Version will be provided with the terms specified in section 6.1. Otherwise Software Maintenance includes Artemis Software's provisioning to Licensee Product updates and/or enhancements made generally available to customers from time to time, and online technical support via online forums only (no email, instant messenger or phone support) to one Licensee-designated technical contact for the sole purpose of addressing technical issues relating to the use of the Product, for a period of twelve (12) months from the Commencement Date (the "Initial Maintenance Period"). No additional support will be provided after the Initial Maintenance Period.
7. Licensee Obligations
The Licensee must at all times: (a) ensure that only an Authorized User may use the Product and only for Authorized Use in accordance with the terms and conditions of this agreement; (b) install all updates and enhancements provided by Artemis Software; and (c) immediately advise Artemis Software, including in writing, if the Licensee becomes aware of any unauthorized use or distribution of the Product by any person.
8. Unauthorized Use or Distribution
Licensee may not, whether through deliberate or negligent act or act of omission, distribute or cause the distribution of the Product to any third party other than an Authorized User.
9. Investigation of Unauthorized Use and Distribution
If Artemis Software reasonably suspects that the Product has been distributed to or obtained by any person or party without Artemis Software's prior written consent, Artemis Software has the right to request from the Licensee an unqualified certificate executed by the Licensee's auditor at the Licensee's cost for the purpose of verifying compliance with Authorized Use of the Product.
10. Licensee's Restrictions
Licensee will not, without the prior written consent of Artemis Software, which may be withheld in Artemis Software's sole discretion and which may include certain conditions: (a) decompile, reverse engineer, disassemble, analyze, modify, adapt, convert, create derivative works from, or otherwise attempt to derive, the Protected Code; (b) sell, sublicense, redistribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form the Product or any data/information provided to the Licensee through the Product to a person (except that nothing in this paragraph (b) is intended to prevent an Authorized Person undertaking Authorized Use); (c) vary or amend the Authorized Use without Artemis Software's prior written approval; (d) publish, promote, broadcast, circulate or refer publicly to the Artemis Software name, trade name, trademark, service mark or logo (e) commit any act or omission the likely result of which is that Artemis Software's 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 Artemis Software's interests. In addition, the Product includes license protection mechanisms that are designed to manage and protect the intellectual property rights of Artemis Software. Licensee must not modify or alter those features to try to defeat the Product use rules that the license protection mechanisms are designed to enforce.
11. Term
The term of this agreement begins on the Commencement Date and will continue in full force and effect until terminated in accordance with Clause 12.
12. Termination
You may terminate it at any time by destroying all copies of the Product in your possession. Either party may terminate this agreement if the other party commits a material breach. Either party will have thirty (30) days to remedy any material breaches after written notice of such breach. You agree upon termination of this License to destroy all copies of the Product in your possession. Clauses 1, 2, 4, 8 - 10, 14 - 16, 18 - 25 shall survive any termination of this agreement.
13. Infringement Indemnification
(a) Artemis Software will defend or settle, at its expense, any action brought against Licensee based upon the claim that the Product, if used within the scope of the License granted under this agreement, directly infringe a registered United States, European Union or Commonwealth patent or copyright ("IP Claim"); provided, however, that: Licensee shall notify Artemis Software promptly in writing of any such claim; (ii) Licensee shall not enter into any settlement or compromise any claim without Artemis Software's prior written consent; (iii) Artemis Software shall have sole control of any such action and settlement negotiations; and (iv) Licensee shall provide Artemis Software with information and assistance, at Artemis Software's request and expense, necessary to settle or defend such claim. Artemis Software agrees to pay all damages and costs finally awarded against Licensee attributable to such claim. The foregoing states the sole liability of Artemis Software and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Product or any other items provided by Artemis Software hereunder.
(b) If the Product becomes, or in the opinion of Artemis Software may become, the subject of a claim of infringement of any third party right, Artemis Software may, at its option and in its discretion: procure for Licensee the right to use the Product free of any liability; (ii) replace or modify the Product to make it non-infringing; or (iii) refund any License Fees related to this Product paid by Licensee.
(c) Exclusions from Defense Obligation. Artemis Software will have no duty to defend any IP Claim to the extent such IP Claim is based on: (a) use of a superseded release of the Product, if such infringement would have been avoided by the use of a current release of the Product and Artemis Software timely notified Licensee of the availability of the non-infringing Product at no additional cost; (b) the combination, operation, or use of the Product with programs or data not furnished by Artemis Software or with hardware or operating system software other than the hardware platform and operating system with which the Product is designed to function, if such infringement would have been avoided by the use of the Product without such programs, data, hardware or operating systems; (c) modification or attempted modification of the Product by anyone except Artemis Software or use or distributions of such modifications; or (d) Licensee's use of the Product in a manner that results in defamation, violates the privacy rights of individuals, transmits material in violation of any applicable law, rule, regulation, or uses any proprietary thirty party content without legally binding consent of such third party.
(d) To the extent an IP Claim is excluded from Artemis Software's defense obligation, is based upon the claim that any modifications to the Product or combination of the Product with products infringes or violates any third party right or is based on a breach of this Agreement by Licensee, Licensee will defend or settle, at its expense, any action brought against Artemis Software provided, however, that: Artemis Software shall notify Licensee promptly in writing of any such claim; (ii) Artemis Software shall not enter into any settlement or compromise any such claim without Licensee's prior written consent; (iii) Licensee shall have sole control of any such action and settlement negotiations; and (iv) Artemis Software shall provide Licensee with information and assistance, at Licensee's request and expense, necessary to settle or defend such claim. Licensee agrees to pay all damages and costs finally awarded against Artemis Software attributable to such claim. Artemis Software may elect to assume control of the defense and settlement of any such claim with counsel of its choosing; provided however, that if Licensee will not have breached its defense and settlement obligations hereunder, Licensee will have no obligation to pay the costs and expenses of such Artemis Software-controlled defense or settlement.
(e) Notwithstanding Subsection (a) above, Artemis Software assumes no liability hereunder for, and shall have no obligation to defend Licensee or to pay costs, damages or attorney's fees for, any claim based upon any modifications to any of the Product not approved by Artemis Software or combination of any of the Product with products not approved by Artemis Software.
14. Limitation of Liability
Without limitation, Artemis Software will not be liable to any person for any loss, damage, cost, expense or other claim (including consequential, directly, indirect, special, punitive or other damages and loss of data or profits) in relation to the Product including, without limitation: (a) any use or reliance on a Product by the person (including the form and content of errors in and/or omissions from any information contained in a Product); (b) any delay, interruption or other failure in the provision of the Product; or (c) any change in the form or content of the Product. In no event will Artemis Software's liability under any claims arising out of this agreement exceed the fees paid by licensee under this agreement. Except for each party's indemnification obligations or breach of Clauses 2, 8 or 10, neither party will be liable for lost profits or for special, indirect, incidental or consequential damages, regardless of the form of action, even if such party is advised of the possibility of such damages. The foregoing liability limitations shall apply to the maximum extent allowed by applicable law. To the extent the foregoing liability limitations or the warranty disclaimers of Clause 4 are not allowed by applicable law, then the liability of Artemis Software, and the remedy of - Licensee, shall be limited to: the re-supply of any defective Product; or (ii) the
refund of any license fees paid by Licensee for such defective Product.
15. Ownership / Intellectual Property
This Agreement only confers the right to use the Product and does not convey any rights of ownership in or to the Product. The Licensee acknowledges that the Product and all intellectual property rights in relation to the Product are the property of Artemis Software and Artemis Software is entitled to take whatever action it may decide in order to protect its intellectual property rights in the Product.
16. Open Source Code
With respect to open source software, Artemis Software agrees: (a) that the Licensee's use thereof does not create, or purport to create, obligations on the Licensee to grant licenses or usage rights to the general public to any source or object code, whether such code is embedded in the Product or any other software provided under this Agreement or used in conjunction therewith; (b) that in no event shall the Licensee be liable for any damages whatsoever, whether direct or indirect, and whether experienced by Artemis Software or a third party, which are related to a loss of Artemis Software or any third party resulting from such use of Open Source Software hereunder; and (c) to, and hereby does, waive any claims it may have against The Licensee in relation to The Licensee's use of such open source software.
17. Publicity Rights
(a) The Licensee grants Artemis Software the right to include the Licensee as a customer
in Product promotional material.
(b) Licensee can deny Artemis Software this right by submitting a written request via email to peldi@Artemis Software.com, requesting to be excluded from Product promotional material. Confirmation of such denial (via reply email) must be received prior to purchasing for this exclusion to be effective.
(c) Should the Licensee come to be or already be included in Product promotional material, as a result of any prior purchases where the Licensee did not request exclusion from Product promotional material, the Licensee can at any point in time, submit a written request via email to peldi@Artemis Software.com to have Artemis Software remove the Licensee's name from Product promotional material. Upon receipt of such request, Artemis Software will remove any reference to the Licensee from such promotional material within 30 days and make no further reference to the Licensee.
18. No Assignment or Amendment
Licensee may not amend this Agreement without prior written consent of Artemis Software. Licensee may assign this agreement to succeeding parties in the case of a merger, acquisition or change of control so long as in doing so, Artemis Software is notified in writing within ninety (90) days of the closure of such transaction. If Licensee merges into or with a direct competitor of Artemis Software, as determined in Artemis Software's sole discretion, then this Agreement will automatically terminate as of the effective date of such merger. Artemis Software may assign its rights and obligation under this agreement without consent of Licensee.
19. Tax
Payments made by the Licensee under this agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is made or received. To the extent that any such taxes or duties are payable by Artemis Software, the Licensee must pay to Artemis Software the amount of such taxes or duties in addition to the license fee under this agreement unless Licensee is exempt from paying such taxes or duties at the time such taxes or duties are levied or assessed. Artemis Software will provide the Licensee with documents requested by Licensee necessary to enable the Licensee to obtain a tax or duty refund or credit.
20. Governing Law
This agreement is governed by the laws of the State of California, USA and the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the
courts in Los Angeles, California, USA.
21. Attorneys Fees
The prevailing party in any legal action or arbitration relating to this Agreement will be entitled to recover its attorneys' fees and litigation costs and expenses incurred in connection with such action or arbitration as part of the same proceeding.
22. Counterparts/Faxed Signatures
This Agreement may be executed in any number of counterparts, each of which will be an original and all of which will constitute together one and the same document. Signatures transmitted by telecopier will be deemed originals.
23. No Waiver
The failure of Artemis Software to prosecute its rights with respect to a breach hereunder will not constitute a waiver of the right to enforce its rights with respect to the same or any other breach.
24. Notices
Artemis Software may give notice by means of a general notice on the Artemis Software website, electronic mail to your e-mail address on record with Artemis Software, or by written communication sent by first class mail or pre-paid post to your address on record. Such notice will be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Artemis Software at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Artemis Software's addresses on its website.
25. Confidentiality
Each party agrees to maintain the other party's "Confidential Information" in strictest confidence and to only use it in carrying out its rights and obligations under this Agreement. Nothing in this Agreement will be construed to convey any title or ownership rights to a party's Confidential Information. Neither party will sublicense, rent, assign, transfer or disclose the other party's Confidential Information to any third party and will not reproduce, perform, display, prepare derivative works of, or distribute such Confidential Information except as expressly permitted in this Agreement. Each party will make commercially reasonable efforts to prevent the theft of the other party's Confidential Information and/or the disclosure, copying, reproduction, performance, display, distribution and preparation of derivative works of such Confidential Information except as expressly authorized herein. "Confidential Information" will include any business, operational or technical information provided to either party by the other party that is marked or otherwise identified as confidential or proprietary, or
that the receiving party knows or should know is confidential or proprietary.
You agree that the Product will not be shipped, transferred or exported into any
country or used in any manner prohibited by the United States Export
Administration Act or any other export laws, restrictions or regulations.