THIS END USER SOFTWARE LICENSE AND SERVICE AGREEMENT ("Agreement") is made and entered into and effective as of the Effective Date by and between Dynamics Value S.L, having its principal place of business at C/Salamanca 8, Sant Vicenç dels Horts, 08620, Barcelona, Spain, (“Licensor") and the person set out in the Subscription Order (online at https://dynamicsvalue.com) as Customer/Applicant as licensee and end user of the Software and related documentation and support services (“You”), and governs your use of FakeXrmEasy Version 2 or later (the “Software").
By downloading, installing the Software, or otherwise accessing or using the Software and/or any media that contains the Software, you are consenting to be bound by this Agreement. You will be required to indicate your agreement to these terms and conditions to download the Software and register with Dynamics Value in order to obtain the Credential/s necessary to access and use the Software.
If You accept this Agreement on behalf of a company or other legal entity, You warrant that You have full legal authority to accept the terms and conditions of this Agreement on behalf of such company or other legal entity, and to legally bind such company or other legal entity. In that event, “You” and “your” refer herein to that entity.
Hereinafter, Licensor and You jointly referred to as “Parties” and each as a “Party” -
“Software” means (a) all of the contents of the files, or other media (including electronic media with which this Agreement is provided or such contents as are hosted by Licensor) or its distributors, resellers, OEM/MSP partners, or other Licensor’s authorised business partners, including but not limited to Licensor or third party computer programs and/or information FakeXrmEasy (version 2 or later); and (b) upgrades, modified or subsequent versions, and updates including any virus or vulnerability updates and other computer programs, if any, licensed to you by Licensor as part of the support service subscription.
“Documentation” means explanatory materials in printed or electronic form (online or media-based) related to the Software.
“Effective Date” means date when on which the Software is downloaded by You and copied to a computer within your premises/the Product Activation Key is delivered to You by Licensor.
“Credentials” means the unique data provided to You on acceptance by Licensor of your Subscription Order and, as the case may be, receipt of your payment of the License and Services Fee, for the purpose of activating the Software and your access to the Support Services.
“License and Service Fee” shall mean the amount and corresponding validity period stipulated in Exhibit A for the grant of the license to use the Software and Documentation and request the Support Services.
“Subscription Order” means the special conditions applicable, together with the provisions of this Agreement, to the licensed download, installation and use of the Software, with specific information regarding your professional and commercial details as a licensee of the Software, as well as the particular details agreed between Licensor and You for each Software licensing engagement. It will be understood that You accept the Subscription Order when You have completed the information in the subscription form by sending it to the Licensor through the electronic means provided by Licensor for such purposes.
“Support Services” means technical support for Software according to the scope agreed between the Parties from time to time or, if the absence thereof, under Licensor’s policies set forth in the Agreement or other then-current policies established and published by Licensor.
2. LICENSE GRANTS AND RESTRICTIONS
2.1. License Grant
Subject to Your compliance of the terms set out herein, Licensor grants to You a non-exclusive, non-transferable, revocable, non-sublicensable, world-wide, and limited subscription license to access, download, install, use, copy, make available distribute as part of your own product and use the unmodified Software in object code form only;
The Software may only be used for the Term (as set out below) by You, or persons in your organisation, and only by the number of persons that your current subscription covers (“Authorized User/s”).
2.2. Use Restrictions
Any Use of the Software is subject to the following limitations:
(i) General. You may only use the Software as expressly authorised in this Agreement and your Licensor Subscription Order;
(ii) Subscription fee / Credential. Your right to use the Software is preconditioned upon payment in advance of subscription fees, in accordance with Section 4. You may only use the programs contained in the Software for which You have received your Credentials from Licensor.
(iii) Operating environment. You agree to obtain, install, operate, and maintain the hardware, software, and general operating environment required for the proper use and operation of the Software (excluding the Software itself), including, but not limited to, all hardware, software, and networks; telecommunications lines, equipment, and service; power lines, outlets, sources, and conditioners; and environmental conditioning equipment (collectively, the “Operating Environment”). The Operating Environment shall comply with Software specifications provided by Licensor or must be certified by Licensor as meeting its specifications prior to implementation of the Software in this Operating Environment. You shall in the future acquire all such additional hardware, software, and equipment as may be requested by Licensor to support additional products or services ordered from Licensor, as necessary to keep its technology reasonably current and competitive, or as required to support any Update.
(iv) No rental / no commercial hosting. You may not use the Software other than for the purposes set out herein and You may not sublicense, distribute, or communicate publicly the Software or Documentation (including without limitation by way of rental, lease, or loan) or provide to third parties other than members of Your corporate group (remotely or otherwise) any hosting, storage or similar services using or based on the Software and Documentation without the specific prior written permission of Licensor.
(v) Copies. You may not copy the Software (except as required to run the Software and for reasonable backup purposes);
(vi) No transformation or reverse engineering. You may not transform or create derivative works of the Software or Documentation or any part of the same and, except as permitted by applicable law, may not decompile, disassemble, or reverse compile, assemble, or engineer the Software or any part of it, or otherwise attempt to derive the Software source code.
(vii) Third parties. You may not authorize any third parties to and must ensure that third parties not to do any of the above.
(ix) Licensor’s Trademarks and Corporate Name. This Licence does not grant permission to use the trade names, trademarks, service marks, or corporate names of Licensor, except as required for reasonable and customary use in describing the origin of the Software and Documentation and reproducing the proprietary notices.
(x) Control mechanisms and Proprietary notice/s. You may not remove or modify any proprietary notices, labels, marks, security, or access control mechanism on or in any copy of the Software.
(xi) Notwithstanding anything to the contrary in this Agreement, you may allow a third party to use the Software or Documentation for your own internal business purposes only, provided that such party is subject to the license terms and restrictions on use of the Software or Documentation and the confidentiality provisions set forth in this Agreement. You shall be responsible for the acts or omissions of such party as if such acts or omissions were committed by You.
This license includes receipt and/or use of Updates released into production during the Term. After updating, You may no longer use the original product that formed the basis for your update eligibility, and You must use the updated Software in accordance with the terms of this Agreement. However, You will not be entitled to receive any Updates for any installed Software in circumstances where You have not complied with Licensor`s license restrictions set out in Clause 2.2, above.
2.4. Third party products
Some third party (including open source) components included in the Software may be subject to other terms and conditions, which are typically found in a “Read Me” file or “About” file in the Software. The license terms of this third-party software are not modified by this License. Any provisions herein which differ from the terms of those licenses are offered by Licensor alone and not by any other party. You may obtain the source code of this third-party software by writing to Licensor at its registered address or the email address set out below. This offer is valid for three years from the Effective Date. Licensor may charge You the bare cost of sending the source code to You.
2.5. Audit Rights
At Licensor’s written request, You will furnish Licensor with a certification signed by an officer of your company verifying that the Software is being used in accordance with the terms and conditions of this Agreement and the applicable Subscription Orders. You grant Licensor or its auditors the right, on 15 days’ notice, to examine Your information systems, books, records, and accounts to verify compliance with the provisions hereof, providing access to the facilities, space to work and collaborating in everything necessary for its correct development of the audit. Any such audit will be conducted during regular business hours at your facilities, will not unreasonably interfere with your business activities and will be in compliance with your reasonable security procedures. In the event such audit discloses that the number of Authorized User/s exceed from establish on the Subscription Order, Licensor will invoice You and You shall promptly pay to Licensor the underpaid License and Service fees for the additional user required (based on Licensor’s price list in effect at the time the audit is completed). If the active users exceed, of 1 extra user to the Authorized Users in the corresponding Subscription Order, then You will also pay Licensor`s reasonable costs of conducting the audit.
Licensor may terminate this license for failure to pay the required license fee. You agree that Licensor shall not be responsible for any of your costs incurred in cooperating with the audit.
3. TERM AND TERMINATION
The initial term will commence from the date of acceptance of the Licensor Subscription Order, and depends on the category of License subscription that You have set forth in the Subscription Order. You may subscribe for as many License subscriptions of the Software as You set forth in the Subscription Order, with a choice of annual or monthly License subscriptions for each Authorized User.
The Term of each contracted License subscription, unless otherwise stipulated in the Subscription Order, shall automatically renew for equal term periods to those initially contracted if notice of termination is not provided to Licensor by You within two months prior to the expiration of each renewal period in effect. On renewal, the License and Service fee shall be at Licensor`s regular list price for the Software as published from time to time by Licensor. If You decide not to renew your subscription License and later elect to renew it, Licensor reserves the right to charge You its License and Service fees for the period of the lapse.
If you increase the number of Authorized Users covered by your subscription, You start a new subscription period. The subscription fees attributable to your remaining subscription period before the increase will be credited on the next withdrawal or invoice.
If you decrease the number of Authorized Users covered by your subscription, your change will take effect at the beginning of the next subscription period.
3.3. Cancelation or Termination
You may cancel your subscription at any time. Licensor may terminate this Agreement immediately if You violate any of the conditions in Section 2.2 (“Restrictions”) and 11 (“Confidentiality”) or otherwise materially breach this Agreement. Should Licensor decide to cease operations, it may terminate this Agreement. In such case, at least on months’ notice will be given and you will not be entitled to a refund for any remaining subscription period.
Upon any expiration or termination of this Agreement, the rights and licenses granted hereunder will automatically terminate, You will not be provided any refund, in whole or in part, and You agree to immediately cease using the Software and to return or destroy all copies of the Software in your possession or control, providing a certificated confirmation of the same to Licensor.
Terms that by their nature are intended to continue to apply shall survive termination. Particularly, but not limited, Sections 3, 4, 7, 8, 9, 10, and 11.5 shall survive termination of this Agreement for any cause.
4. FEES, PAYMENT AND TAXES
You agree to pay Licensor the Subscription and Renewal Fees in accordance with your Subscription Order. Any failure to pay the Subscription and/or Renewal Fees in accordance will result in automatic revocation and termination of this Agreement and all rights and licenses granted hereunder. All License Fees are non-refundable once paid.
Payment of Subscription Fees shall be made in advance of taking the Software into use. Payment of any amount owed by You to Licensor pursuant to this Agreement shall be paid within thirty (30) days following invoice from Licensor In the event any overdue amount owed by You is not paid following ten (10) days written notice from Licensor, then in addition to any other amount due, Licensor may impose and You shall pay a late payment charge at the rate of one and a half percent (1.5%) per month on any overdue amount.
Subscription fees will be charged automatically upon subscription renewal.
The current Subscription Fees are described in the price list (https://dynamicsvalue.com/pricing), or else reach out to us at firstname.lastname@example.org. Licensor may change the Subscription and/or Renewal Fees in accordance with the procedure set out in Section 6 (“Changes and Acceptance”). Any change in the Subscription Fees will take effect at the start of a new period.
Payments are processed by a third party. Your payment is therefore subject to the current terms and conditions of that third party.
You shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, national, state, or otherwise, however designated, which are levied or imposed by reason of transactions contemplated by this Agreement, except those which arise as a result of income, including withholding taxes or similar deductions applicable to Licensor. Without limiting the foregoing, You shall promptly pay to Licensor an amount equal to any such tax items actually paid, or required to be collected or paid by Licensor.
5. SUPPORT AND MAINTENANCE
5.1. General Support
During the Term, and subject to payment and subsequent renewal of the Subscription and/or Renewal Fees, Licensor shall provide to You general support for the current major version of the unmodified Software (or the prior major version of the Software for one year after the release of the then-current major version of the Software, except any version prior to major version 2) as follows:
(i) A request for support related to a material, reproducible vulnerability or other defect in the Software may be made by You via our GitHub issue tracker at: https://github.com/DynamicsValue/fake-xrm-easy (“Request”); and
(ii) Licensor will use best efforts to resolve all reasonable Requests but makes no guarantee that all Requests can be finally resolved.
5.2. Excluded Services
Licensor shall not provide support for:
5.3. Additional Customized Services
Licensor will not provide You with any individual or customized support services under this Agreement. A support contract may be purchased separately from Licensor for individual or customized support services with varying higher service levels than those provided herein.
6. CHANGES AND ACCEPTANCE
Licensor may make changes to this Agreement and the subscription price list. Licensor will provide You with a notice on our website or by email in reasonable time before the changes enter into force.
Your continued use of the Software after the changes have entered into force will constitute acceptance of the changes. If You do not wish to accept the changes, You may terminate your subscription using the subscription dashboard on our website, effective on the date the changes have been announced to enter into force.
7. INTELLECTUAL PROPERTY AND PROTECTION OF SOFTWARE
You acknowledge that all rights in the Software and Documentation in any form provided by Licensor are the sole property of Licensor and/or its suppliers/licensors. You shall not have any right, title, or interest to any such Software or Documentation or copies thereof except as provided in this Agreement, and further shall secure and protect all Software and Documentation in a manner consistent with maintenance of Licensor`s proprietary rights therein.
If You provide Licensor with any comments, bug reports, feedback, enhancements, or modifications proposed or suggested by You for the Software (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary You may include in any accompanying communication), and Licensor shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into future releases of the Software. You hereby grant Licensor a perpetual, irrevocable, transferable, sublicensable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose, including to make and sell any products and services.
7.3. Proprietary Notices
You agree to respect and not to remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on any of the Software and Documentation or output or graphical interface generated by the Software, and to reproduce and include same on each authorised copy of the Software and Documentation.
8. LIMITED WARRANTY AND LIMITATIONS OF LIABILITY
8.1. IPR Warranty
Licensor warrants that the copyright in the Software is owned by it or licensed to it and that it has the power and authority to grant this Licence.
8.2. Warranty disclaimer
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
THE SOFTWARE IS PROVIDED ON A “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE SOFTWARE IS FREE OF DEFECTS, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. LICENSOR DOES NOT WARRANT TO RECTIFY THE SOFTWARE SHOULD IT PROVE DEFECTIVE IN ANY RESPECT, NOR WILL LICENSOR INDEMNIFY THE COSTS OF ANY CORRECTION PERFORMED BY YOU OR BY A THIRD PARTY.
This disclaimer of warranty is an essential part of the Licence and a condition for the grant of any rights to the Work.
8.3. Limitation of liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL BASIS, WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM EITHER PARTY’S NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME STATES DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES; THEREFORE, THIS LIMITATION OR EXCLUSION OF LIABILITY MAY NOT BE APPLICABLE TO YOU.
IN ADDITION, JUST IN CASE SOME JURISDICTION DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES AND THE PRECEDING LIMITATION DO NOT APPLY, IN NO EVENT WILL EITHER PARTY’S LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY DAMAGES, LOSSES AND CAUSES OF ACTIONS, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), EXCEED THE ACTUAL SUBSCRIPTION FEES PAID BY YOU FOR THE PRIOR 12 MONTHS WHICH GAVE RISE TO SUCH DAMAGES, LOSSES AND CAUSES OF ACTIONS PRIOR TO THE DATE THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION AROSE.
9. PERSONAL DATA
In accordance with the General Data Protection Regulation 679/2016, it is necessary to process the personal data of the persons mentioned in this agreement, being the identification data (name, surname, email) of both the signatories of the Parties, as well as the technical or commercial contact persons, necessary for the execution of the Agreement. Such Personal Data will not be shared with any third party, where appropriate, however, may be shared with our resellers and distributors if applicable with whom we have formalize the corresponding agreement, and also may be processed by platforms of external service providers under contractual clauses that provide adequate guarantees for data processing, even if they are outside the European Economic Area. The personal data of the aforementioned persons will be kept until the termination of this agreement and then, blocked, for the period prescribed by law for legal or administrative reasons. Licensor and You declares that the data of these persons are correct and up to date and undertake to inform these persons of the provisions of this clause. In the event that Licensor or You access to personal data under the responsibility of the other Party, Licensor and You shall sign an Agreement on Data Processing. Licensor and You shall inform the aforementioned persons of the possibility of exercising their rights of access, rectification, cancellation and opposition, limitation and restriction of processing in the terms established by current legislation, by sending an e-mail to the following addresses:
Licensor: Address set out in Subscription Order.
Licensee: Address set out in Subscription Order.
If they wish, with respect to Licensor, they may file a complaint with the Spanish Data Protection Agency but please contact us first.
The Parties agree to hold each other’s proprietary information to which they may have access in confidence, including without limitation all non-public information regarding each party’s business, technologies, information which relates to research, development, trade secrets, know-how, inventions, technical data, software, source codes, object codes, and any manufacture, engineering, marketing, merchandising and selling, business or strategic information, methods, and all intellectual and industrial property rights, (“Confidential Information”). Each party agrees not to use the other’s Confidential Information for any purpose other than the implementation of this Agreement and exercise of the rights granted hereunder, and, except as required by administrative authority or law, not to make each other’s Confidential Information available in any form to any third party.
The obligations of the recipient of Confidential Information which is comprised of trade secrets shall remain in effect for as long as such information shall remain a trade secret and at least shall remain in effect from the time of disclosure until five (5) years after the expiration or termination of this Agreement.
These confidentiality provisions shall not apply to information that is part of the public domain or otherwise generally available to the public or You from independent sources, or which You are required by administrative or judicial order to disclose.
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized delivery service, to the addresses in the Subscription Order.
11.2 Entire Agreement
This Agreement represents the complete agreement concerning your use of and subscription to the Software. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind.
Licensor may assign its rights and obligations under this Agreement.
You may assign your rights and obligations under this Agreement only to a subsidiary or affiliate, or in connection with any sale or transfer of all or substantially all your business or assets, and only provided that the assignee assumes all your obligations.
Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Software. You agree that to the extent such export control laws govern your use of the Software (including technical data) and any services provided under this Agreement, you will comply with all such export laws and regulations. In particular, You agree that neither the Software nor any direct product thereof will be exported, directly, or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.
11.5 Governing law and jurisdiction
This Agreement shall be construed and enforced in accordance with the laws of Spain and all conflicts in relation hereto shall be submitted to the exclusive jurisdiction of the courts of Barcelona, to the exclusion of any other forum to which the parties may be entitled.
11.6 Authority to enter into agreement
Each party to this Agreement represents and warrants that it has the authority to enter into this Agreement. The individuals signing the Agreement have the authority to act as agents of their respective organizations. Each party acknowledges that they have read this Agreement and will abide by it.