End User License Agreement For ITWORX Software: LearningCurve
Section 1- Definitions
Agreement: the agreement with respect to ITWorx Software between ITWorx and Client, including but not limited to this EULA.
Authorised User: each one of the users of ITWorx Software according to the Agreement shall be granted a CAL.
ITWORX Software: the corporate & social networking computer programme in object code (including but not limited to any technical documentation and any Maintenance Release and Upgrades) as described in the Documentation. ITWORX Software shall include, but not limited to, “LearningCurve” Application.
CALs: Client Access Licenses, which shall be granted to each Authorised Users in order to access and use ITWorx Software.
Client: the Client licensed to use ITWorx Software for its own internal purposes;
Documentation: the documentation describing the functional specifications of ITWorx Software as provided by ITWorx on its website and/or inserted as Schedule in the Agreement.
ITWORX Software Problem: A problem reported by Client whereby ITWorx Software does not conform materially in accordance with the Documentation.
Maintenance Release: a periodic release of ITWorx Software provided by ITWorx at its sole discretion, which incorporates problem resolutions and which will usually not contain functional enhancements.
ITWorx: ITWorx Egypt SAE, a company duly incorporated in accordance with the Egyptian Law, with corporate domicile in Egypt, at ITWorx Building, Nasr City Free Zone, Area 7A, Block j, Cairo., registered with the Commercial Registry of Cairo Investment Office under the number 333698/2000.
Upgrade: A new version of the Software by ITWorx at its sole discretion, which may contain substantial new features or functional changes to the Software.
Section 2- License Of Use
- Subject to the terms and conditions of the Agreement (including this EULA) and the payment of all applicable license fees, ITWorx grants Client a limited, non-exclusive and non-transferable license to install, operate and use (for internal purposes only) ITWorx Software on its servers, which may be accessed only by the amount of Authorised Users agreed upon in the Agreement.
- Client has no ownership rights in ITWorx Software. ITWorx Software and the Intellectual Property Rights associated therewith are and will remain at all times the sole and exclusive property of ITWorx and its licensors and Client has no right, title or interest in or to ITWorx Software or the Intellectual Property Rights associated therewith, except as expressly set forth in the Agreement.
- Unless agreed otherwise in writing, Client will separately acquire a CAL for each individual Authorized User that accesses or uses ITWorx Software. Each CAL permits only one Authorized User to access or use ITWorx Software. In case Client wishes to increase the number of Authorised Users, it shall notify ITWorx, which undertakes to grant the corresponding CALs to the new Authorised Users as soon as possible after the payment by the Client of the applicable licence fees.
Section 3- Conditions Of Use
- The Client undertakes the following:
- Not to apply techniques of reverse engineering, decodify, decompile or disassemble ITWorx Software, or carry out any other operations aimed to access the source code of ITWorx Software.
- Not to modify, adapt and/or create derivative works based on ITWorx Software or any part thereof and/or carry out any action contrary to the Intellectual Property Rights of ITWorx over ITWorx Software.
- Not to reproduce, assign, transfer, distribute, sub-licence, lease or place ITWorx Software (or the hardware on which ITWorx Software is installed) free of charge or for valuable consideration at the disposal of any third parties (including companies of the Client’s group) or create any charge and/or lien over ITWorx Software.
- Not to make copies of ITWorx Software either directly or by means of any third party, without the prior written consent of ITWorx.
- Not to delete or alter any trademark, trade name, logo, copyright notice, notice of reservation of rights, or limitation or exclusion of liability included in any part of ITWorx Software and/or in the documentation associated with it.
- Not to permit the concurrent use of ITWorx Software to a greater number than the number of Authorised Users (at any time). To this end, ITWorx reserves the right to carry out audits in relation to the use by the Client of ITWorx Software.
- The Client acknowledges and agrees that the Intellectual Property Rights with respect to ITWorx Software and any other non-public information of a technical or commercial nature concerning ITWorx or ITWorx Software disclosed to Client in connection with the Agreement constitute ITWorx’s proprietary information and trade secrets, and Client agrees to hold such information in strict confidence.
- ITWorx may, at any time upon reasonable advance notice, conduct an audit at Client’s premises to ascertain whether Client’s use of ITWorx Software is in compliance with the provisions of the Agreement. Client shall assist ITWorx in the conduct of such audit and shall grant ITWorx access to its premises and computer equipment. In the event that such audit reveals any use of ITWorx Software by Client other than in full compliance with the Agreement, Client shall reimburse ITWorx for all reasonable costs and expenses related to such audit in addition to any other liabilities Client may incur as a result of such non-compliance.
- Client shall always furnish ITWorx in a timely manner with all data or information which is useful and necessary to execute the Agreement properly and provide full cooperation. If Client utilizes its own employees in cooperating in the execution of the Agreement, these employees shall possess the necessary know-how, experience, abilities and characteristics. The Client represents and warrants to ITWorx that servers and software used for the installation of ITWorx Software meet all required technical specifications to enable the correct functioning of ITWorx Software.
Section 4- Delivery Of ITWorx Software
- After the payment of all applicable fees, if any, ITWorx shall deliver ITWorx Software to Client on the agreed type and format of data carriers and is not obliged to install ITWorx Software at the Client’s servers. ITWorx will provide Client one (1) copy of the relevant Documentation.
Section 5- Maintenance
- If Client enters into a Maintenance & Support agreement, and under the condition that the Maintenance & Support fees have been paid, ITWorx undertakes to:
- Provide Client the Maintenance Releases and/or Upgrades that ITWorx launches onto the market. The use by Client of the Maintenance Release and Upgrades shall be governed by the terms set out in the Agreement. ITWorx shall no longer be required to fix any errors in the old version or release three months after a Maintenance Release or Upgrade becomes available.
- Use its best effort to repair ITWorx Software Problems in ITWorx Software in accordance with the conditions inserted in the Maintenance & Support agreement. ITWorx shall always be entitled to install temporary solutions, program bypasses or problem-avoiding restrictions in ITWorx Software.
Section 6- Intellectual Property Rights
- All Intellectual Property Rights to ITWorx Software, the Documentation and any other materials developed by ITWorx and/or provided to the Client under the Agreement (such as analyses and designs), as well as preparatory materials in that regard shall be held solely by ITWorx or its licensors. The Client shall only acquire the rights of use expressly granted in the Agreement and by law. Any other or more extensive right of the Client shall be excluded.
- Client will not be entitled to use the trademarks, brand names, logos, trade names, designs or know-how, or any other distinctive sign of ITWorx, without its prior written consent.
- ITWorx shall be allowed to take technical measures to protect ITWorx Software or with a view to agreed restrictions in the duration of the right to use the software. Client shall not be allowed to remove or evade such a technical measure. If security measures result in the Client being unable to make a back-up copy of ITWorx Software, Client may send a request for a back-up copy to ITWorx. ITWorx, in its sole discretion, may decide to provide Client a back-up copy. A back-up copy may only be installed after involuntary loss of possession or damage. A back-up copy must have the same labels and copyright designations as are present on the original version.
- Subject to the other provisions of this Agreement, Client shall only be entitled to correct errors in ITWorx Software if (i) that is necessary for the intended use of ITWorx Software and (ii) ITWorx has informed Client that it will not fix the error itself. Client shall be obliged to notify ITWorx of the errors, prior to the correction. Within two weeks after the notification, ITWorx will decide, at its own discretion, that (i) it will correct the errors in accordance with the provisions of the Maintenance & Support Agreement or (ii) Client will be entitled to correct the errors in ITWorx Software itself.
Section 7- Limited Warranty And Limitation Of Liabilities
- ITWorx Software will be provided ‘as is’ without any warranty, whether express or implicit. ITWorx (amongst others) does not warrant that the functions contained in ITWorx Software meet Client’s needs, that ITWorx Software functions without interruption or without ITWORX Software Problems or defects or that ITWorx Software Problems or defects of ITWorx Software will be corrected.
- In no event will ITWorx be liable for any damages (direct or indirect, including but not limited to, loss of earnings, interruption of business activities or loss of information) resulting from or related to:
- The downloading, installing, use, improper use or the impossibility of use of ITWorx Software;
- Defects or errors of any class of ITWorx Software; and/or
- Any act or omission by ITWorx either if the claim is based upon this Agreement or tort.
- Without prejudice to the previous paragraphs, in any event the total liability of ITWorx for any reason will not exceed the license fees paid by the Client in the year that the damage occurs.
- Client represents and warrants that it is authorized to enter into the Agreement and complies with its terms. Furthermore, Client represents and warrants that it will at any and all times meet with its obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of ITWorx Software. Client agrees to indemnify, defend and hold ITWorx, its affiliates and its staff harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by said parties, in connection with or arising out of its (a) violation or breach of any term of the Agreement or any applicable law, regulation, policy or guideline, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) use or misuse of ITWorx Software, or (d) the content spread by means of ITWorx Software.
Section 8- Infringement Of Intellectual Property Rights
- ITWorx shall indemnify Client against any and all direct damages and reasonable and verifiable costs imposed on Client by a court of competent jurisdiction or any settlement sum approved by ITWorx in respect of any third-party action or claim alleging that ITWorx Software infringes the intellectual property rights of such third party, provided that:
- Client provides ITWorx with prompt written notice of any such action or claim;
- Client will permit ITWorx to assume and control the defence and settlement of any such action or claim;
- Client will not prejudice the defines of the action or claim nor will the Client make any admission as to liability nor compromise or agree to any settlement of any such action or claim without the prior written consent of ITWorx; and
- Client will provide ITWorx with such assistance, documents, authority and information as it may reasonably require in relation to the action or claim and defence or settlement thereof.
- Notwithstanding Section 8.1, ITWorx shall have no liability to Client for any infringement of third party intellectual property rights that:
- arises out of any unauthorized use, reproduction, or distribution of ITWorx Software;
- arises out of any modification or alteration of ITWorx Software by anyone other than ITWorx;
- arises out of the use of ITWorx Software in combination with any other software or equipment not approved in writing by ITWorx; or
- Would have been avoided by use of the then-current Maintenance Release or Upgrade of the Software or if the Client had followed ITWorx’s reasonable written instructions.
- If ITWorx Software infringes the intellectual property rights of a third party and such infringement disrupts the Client’s use of such ITWORX Software, ITWorx shall, at its own expense and option, elect to either:
- Procure the right for the Client to continue using ITWorx Software in accordance with the provisions of this EULA;
- Make such alterations, modifications or adjustments to ITWorx Software so that the infringing (part of the) software becomes non-infringing without incurring a material diminution in performance or function;
- Replace ITWorx Software with a non-infringing substantially similar substitute; or
- If neither (a), (b) nor (c) can be achieved after the exercise of commercially reasonable efforts, terminate the Agreement and refund to the Client the amounts paid by the Client to ITWorx as license fees with respect to the affected ITWORX Software, less an amount equal to depreciation of such license fees calculated on a three-year straight-line basis from the date of license.
- This Section states ITWorx’s entire liability, and the Client’s sole remedies, for any infringement or alleged infringement of third-party intellectual property rights in relation to ITWorx Software.
Section 9- Confidentiality And Data Protection
- Client warrants that all of the information received by it which is known to be or should be known to be confidential in nature shall remain secret and shall not be disclosed, unless a legal obligation mandates disclosure of that information. Information with a confidential nature includes, but is not limited to, information with respect to the object and source code, other technical information, errors, defects, methods and procedures necessary for the use of ITWorx Software, commercial information and the content of the Agreement. Client shall only use the information for the purpose for which it has been provided. Information shall in any event be considered confidential if it is designated by ITWorx as such. The duty of confidentiality shall not apply to information which is already in the public domain at the time of disclosure.
- Client will give notice of the commitments deriving from this article to all employees that have access to any confidential information from ITWorx, demanding full compliance with the obligation inserted in this Section. Client will notify ITWorx of any unauthorised use of the confidential information that it has had knowledge of by any means.
- In the event that parties’ process personal data, parties will process such data of a personal nature in a confidential manner, appropriately complying at all times with the applicable provisions concerning the protection of personal data.
Section 10- Term And Termination
- Notwithstanding the term agreed upon in the Agreement, ITWorx shall be entitled to terminate the Agreement at any time without liability to the Client if the Client:
- commits a breach of any of the terms of the Agreement (and if such breach is remediable) fails to remedy that breach within fifteen (15) days of the Client being notified in writing of the breach.
- Applies for a moratorium of payments, is declared bankrupt or otherwise ceases to meet its (financial) obligations;
- Suspends or discontinues its business activities.
- Upon termination of the Agreement, ITWorx will cancel the Client’s access to ITWorx Software and the Client will destroy any documentation associated with it, as soon as possible and under no circumstances any later than one (1) week after the termination of the Agreement. On request from ITWorx, Client will confirm in writing that it has complied with its obligations under this Section.
- The termination of this Agreement shall not relieve Client of its obligations to pay all fees that have accrued or otherwise are owed by Client under the Agreement. The stipulations in Section 6, 7, 8 and 9 survive the termination of this Agreement and will therefore remain in full force and effect.
Section 11- Miscellaneous
- If any provision of the Agreement is held to be null and void, invalid or unenforceable, it shall not invalidate any of the remaining provisions of the Agreement. Parties shall use all reasonable efforts to replace it with a valid and enforceable substitute provision which carries out, as closely as possible, the intentions of the parties under the Agreement.
- The Agreement constitutes the full agreement between the parties with respect to the utilisation of ITWorx Software and it replaces any prior agreements concerning the subject hereof. The Agreement can only be modified by means of a written agreement signed by the Parties.
- The Agreement is intuitu personae in relation to the Client and as such Client will not be able to assign its rights and obligations under it, except with the prior written consent of ITWorx. ITWorx shall be entitled to assign or otherwise transfer its rights and obligations under the Agreement without requiring the consent of Client.
Section 12- Governing Law
- The Agreement will be governed and interpreted in accordance with Egyptian laws.
- Expressly waiving their own places of venue or competence, the parties agree that all disagreements, disputes, arguments or claims related to the Agreement, will be settled before the Courts of Cairo.