THIS USER AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND AWARA IT GOVERNING YOUR USE OF ALL SOFTWARE HOSTED BY AWARA IT AND THE SERVICES OUTLINED IN THIS USER AGREEMENT. AWARA IT IS UNWILLING TO LICENSE OR OTHERWISE AUTHORIZE YOUR USE OF THE SOFTWARE LICENSED OR THE OTHER SERVICES PROVIDED HEREIN EXCEPT ON THE TERMS CONTAINED IN THIS USER AGREEMENT. YOUR USE OF THE SOFTWARE SHALL CONSTITUTE AN ACCEPTANCE BY YOU OF THE TERMS OF THIS USER AGREEMENT. IF YOU DO NOT WISH TO AGREE TO THE TERMS OF THE USER AGREEMENT, DISCONTINUE ALL USE OF THE SOFTWARE.
THIS USER AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF AWARA IT’S OBLIGATIONS AND RESPONSIBILITIES TO YOU, AS LICENSEE OF THE SOFTWARE AND USER OF THE AWARA IT SERVICES, AND SUPERSEDES ANY OTHER PROPOSAL, REPRESENTATION, OR OTHER COMMUNICATION BY OR ON BEHALF OF AWARA IT RELATING TO THE SUBJECT.
In the License Agreement a number of terms is used, in singular or plural form, that start with a capital letter and are defined as the words that are written in italic in this article.
1 Organization: The Organization which makes (portions of) the Software available to Licensee (e.g. because the Licensee works at the Organization which bought the license from (a Partner of) Licensor)
2 Material: To the Software linked material in digital form, including, yet not exclusively: texts, questions, images, videos and animations.
3 License Agreement: this agreement between Licensee and Licensor.
4 Licensor: Awara IT LLC, established in St Petersburg, 37, Moyka emb., Russia, or a to this company affiliated venture that makes use of present conditions.
5 Licensee: the natural person who installs the Software and uses the Software and the Material.
6 Software: software made available by the Organization to the Licensee, not being Third Party Software, including documentation.
7 Third Party Software: software of third party suppliers which during the Software installation is installed by Licensee, which software is necessary for using the Software.
- In General. Subject to the terms and conditions of this User Agreement, Awara IT agrees, through a third party vendor, to host the Software and provide certain support services. Use of the Software depends on your compliance with this User Agreement. Subject to the terms and conditions of this User Agreement, the scope of your use of the Software depends on the subscription you purchase.
- Software License. Awara IT hereby grants to you, and you accept, a limited, nonexclusive license to use the Software in object code form only, and the Awara IT Documentation, only as authorized in this Agreement.
- Support Software Licenses.Certain programs contained in the Support Software may be provided with their own license agreements and are licensed under the terms of the agreements provided with them.
- Hosting of the Software. For the term of, and in accordance with the terms and conditions of, this User Agreement, Awara IT will, through third parties, provide facilities, equipment, and programming, collectively making up a host data center (the “Awara IT Services”), as necessary to provide you access to the Software via the Internet. You will be responsible for providing your own Internet access and computer equipment needed to access the Awara IT Services.
Limitation on use of Awara IT Services and Software.
- you are responsible for the evaluation and selection of, as well as for the results obtained from, the Awara IT Software;
- you are responsible for complying with all rules and regulations relating to the Awara IT services sent to you by email or other electronic means as they may be amended from time to time;
- to use the Awara IT services and the Software only for processing your business data and in accordance with the terms and conditions of this User Agreement;
- to permit only authorized users, who possess rightfully obtained usernames and passcodes, to use the Software or to view the Awara IT Documentation;
- not to make the Software, the Awara IT Documentation, or any username or passcode available to any third party, including, without limitation, in any form by rental, service bureau, hosting, time sharing arrangement, or demonstration of the Software to any third party;
- to use your best efforts to cooperate with and assist Awara IT in identifying and preventing any unauthorized use, copying, or disclosure of the Software, the Awara IT Documentation, or any portion thereof;
- not to reverse assemble, reverse compile, or otherwise translate any Software;
- not to use the Awara IT Services in any way that is unlawful, or which harms a Awara IT Party, as determined by Awara IT in its sole discretion;
- not to interrupt, or attempt to interrupt, the operation of the Awara IT Services in any way;
- not to restrict, in any way, any other authorized user from using the Awara IT Services;
- not to attempt to breach the security of the Awara IT Services or the Software;
- not to access, or attempt to access, data belonging to third parties;
- to ensure that anyone who uses the Software (accessed either locally or remotely) does so only for your authorized use and complies with the terms of this User Agreement;
- to notify Awara IT, in writing, as soon as is reasonably possible, if you learn of any actual or threatened infringement or piracy of the Software, or if any infringement or piracy claim is made against you by a party other than Awara IT in connection with your use of the Software;
- to provide accurate, current, and complete information on your legal name, address, email address, phone number, and other information reasonably requested by Awara IT, and to keep such information updated; and
- to be responsible for all electronic communications sent by you to Awara IT
Updates and Upgrades to Software. Awara IT reserves the right to, but shall not be obligated to, provide error corrections, enhancements, upgrades, modifications, and new versions for the Software
Facilities. Except as otherwise expressly stated herein, you are responsible for obtaining, installing, configuring and maintaining all equipment, (including, without limitation, gateways and firewalls), network, software, wiring, power sources, telephone connections, and communications services necessary for inter-connection with Awara IT Services or otherwise for use in conjunction with the Awara IT Services (“Facilities”). You are responsible for ensuring that the Facilities are compatible with Awara IT’s requirements and the Software. Awara IT is not responsible for the availability, capacity, or condition of any Facilities.
Access to Awara IT Services. Awara IT reserves the right to deny access to the Awara IT Services to anyone at any time.
Transmission of Data. You understand that the technical processing and transmission of electronic communications is fundamentally necessary to your use of the Awara IT Services. You expressly consent to Awara IT’s interception and storage of electronic communications, and you acknowledge and understand that your electronic communications will involve transmission over the Internet, and over various networks, only part of which may be owned, operated, or both by Awara IT. You acknowledge and understand that changes to your electronic communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices.
Reservation of Rights.
All rights not expressly granted to you pursuant to this User Agreement are reserved to Awara IT.
To the maximum extent permitted by applicable law, you grant Awara IT the right to monitor the Software, the Awara IT Services, and your use of each, and to disclose such information in the event that Awara IT, in good faith, believes it is necessary for purposes of ensuring your compliance with this User Agreement, and protecting the rights, property, and interests of Awara IT Parties.
The subscription fees paid by you are paid in consideration of the license granted and services provided under this User Agreement. Except as stated in Article 7 and Article 8, Awara IT does not refund subscription fees. By accepting this User Agreement you fully understand that once subscription fee payment is made to Awara IT you will have no recourse for receiving a refund of any part of the fees.
Proprietary Protection of the Software.
You acknowledge that the Awara IT Software and the Awara IT Documentation are proprietary to Awara IT, and the Awara IT Software and the Awara IT Documentation are protected under Russia’s copyright, trade secret, patent, and trademark laws, and international treaties. You further acknowledge and agree that, as between you and Awara IT, Awara IT owns and shall continue to own all right, title, and interest in and to the Awara IT Software and the Awara IT Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This User Agreement does not grant you any ownership interest in or to the Awara IT Software or the Awara IT Documentation, but only a limited right of use that is revocable in accordance with the terms of this User Agreement.
You may not use, display, reproduce, create derivative works of, re-license, sell, or distribute the Software, or any portion thereof, except as otherwise provided in this User Agreement.
You acknowledge that Awara IT does not grant any license or other right to use any of its trademarks, service marks, copyrightable material, or other intellectual property, except as expressly provided in this User Agreement.
You acknowledge that, in the event of your breach of any of the provisions of this Section, Awara IT will not have an adequate remedy at law. Therefore, Awara IT shall be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Awara IT’s right to obtain injunctive relief shall not limit its right to seek further remedies.
By Awara IT. Awara IT will, at its expense, indemnify and hold you harmless against any claims made by an unaffiliated third party that the Awara IT Software infringes its patent, copyright, or trademark, or misappropriates its trade secret; provided (i) you notify Awara IT, in writing, not later than 20 days after you receive notice of the claim, (ii) you give Awara IT sole control of the defense and any settlement negotiations, and (iii) you cooperate with Awara IT in defending against or settling the claim. Awara IT’s obligation of indemnification will not apply to the extent that the claim is based on (i) your use of the Awara IT Software after Awara IT notifies you to discontinue use due to such a claim; (ii) your combining the Awara IT Software with non-Awara IT product, data, or business process, including third party add-ons or programs; (iii) damages attributable to the value of the use of a non-Awara IT product, data, or business process; (iv) your altering or modifying the Awara IT Software, including any modifications by third parties; or (v) your use of the Awara IT Software in violation of this Agreement. You will reimburse us for any costs or damages that result from these actions.
If Awara IT receives information concerning an infringement or misappropriation claim related to the Awara IT Software, Awara IT may, at its expense and without obligation to do so, either (i) procure for you the right to continue to run the Awara IT Software or (ii) modify the Awara IT Software or replace it with a functional equivalent to make it non-infringing, in which case you will stop using the allegedly infringing Awara IT Software immediately. If, as a result of an infringement or misappropriation claim, your use of the Software is enjoined by a court of competent jurisdiction, Awara IT will, at its option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the amount paid and terminate the license granted in this Agreement. This Section 7.a. constitutes your exclusive remedy for third party infringement and trade-secret misappropriation claims.
By You. You hereby agree to indemnify, defend, and hold harmless Awara IT from and against any and all claims, proceedings, damages, liability, and costs (including reasonable attorney’s fees) incurred by Awara IT in connection with any claim arising out of (i) any breach or alleged breach of any of your obligations set forth in this User Agreement, and (ii) your use of the Software, or the use by any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this User Agreement, regardless of the type or nature of the claim. You shall cooperate as fully as reasonably required in the defense of any claim. Awara IT reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of Awara IT.
Limited Warranties; Disclaimer of Warranties.
Awara IT Software Limited Warranty; Exclusive Remedy. Awara IT warrants to you that the performance and functionality of the Awara IT Software, in all material respects, meet the specifications set forth in the Awara IT Documentation for the Awara IT Software licensed by you. Awara IT does not warrant that the Awara IT Software will be error-free. Your sole and exclusive remedy for Awara IT Consulting’s breach of this limited warranty shall be that Awara IT shall use commercially reasonable efforts to modify the Awara IT Software to meet the performance and functionality specifications, in all material respects, described in the Awara IT Documentation, and if Awara IT is unable to restore such performance and functionality, you shall be entitled to terminate this User Agreement and shall be entitled to receive a pro-rata refund of the subscription fees paid for under this User Agreement for your use of the Software and Awara IT Services for the terminated portion of the term. Awara IT shall have no obligation with respect to a warranty claim unless notified of such claim within 60 days of the first instance of any material performance or functionality issue. Any notice required to be sent pursuant to this Section 8 must be provided electronically to Awara IT at email@example.com
No Virus Warranty. Awara IT warrants that the Awara IT Software and Awara IT Services shall be free of viruses, Trojan horses, worms, spyware, or other malicious code or components.
Warranty of Title. Awara IT warrants to you that Awara IT is the owner of the Software or otherwise has the right to grant to you the license to use the Software as set forth in this User Agreement without violating any proprietary rights of any third parties.
Disclaimer. EXCEPT AS PROVIDED IN THIS SECTION, AWARA IT DISCLAIMS, TO THE EXTENT AUTHORIZED BY LAW, ANY AND ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (i) WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WORKMANLIKE EFFORT; (ii) WARRANTIES ARISING THROUGH COURSE OF DEALINGS OR USAGE OF TRADE; AND (iii) WARRANTIES THAT THE SOFTWARE WILL BE ERROR-FREE. WITHOUT LIMITING THE FOREGOING, AWARA IT EXPRESSLY DISCLAIMS ANY WARRANTY ARISING FROM ADVICE OR INFORMATION PROVIDED BY AWARA IT OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SOFTWARE. THIS DISCLAIMER APPLIES TO ANY EXPENSES, DAMAGES OR INJURY, REGARDLESS OF THE CAUSE, WHETHER FOR BREACH OF CONTRACT, STRICT LIABILITY, TORTUOUS BEHAVIOR, NEGLIGENCE, OR FOR ANY OTHER CAUSE OF ACTION.
Third Party Hosting of Software and Data. THIRD-PARTY SUPPLIERS PROVIDING HOSTING FOR THE SOFTWARE, STORAGE OF YOUR DATA AND OTHER AWARA IT SERVICES ARE INDEPENDENT CONTRACTORS AND NOT AGENTS OR EMPLOYEES OF AWARA IT. AWARA IT IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY SUCH SUPPLIERS OR FOR ANY DAMAGES OR EXPENSES RESULTING THREFROM.
Limitation on Liability; Cumulative Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR SIMILAR LOSSES), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION ON LIABILITY SET FORTH IN THIS SECTION 9 IS INDEPENDENT OF YOUR EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY IS DEEMED UNENFORCEABLE.
AWARA IT CUMULATIVE LIABILITY TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS User Agreement, INCLUDING WITHOUT LIMITATION AWARA IT CONSULTING’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS, SHALL BE LIMITED TO THE AMOUNT OF subscription FEES PAID TO AWARA IT BY YOU UNDER THIS User Agreement, BUT IN NO EVENT shall SUCH LIABILITY EXCEED $10,000 IN THE AGGREGATE FOR ALL OCCURANCES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, AND OTHER TORTS.
All limitations on liability, damages, and claims are intended to apply without regard to whether other provisions of this User Agreement have been breached or have proven ineffective.
No third party is authorized by Awara IT to make any representation or warranty to you regarding the Awara IT Services or the Software.
You agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Awara IT Services and the Software, or this User Agreement, must be filed within one year after such claim or cause of action arose or be forever barred.
Term and Termination.
This User Agreement is effective upon your acceptance of this User Agreement, or upon your accessing and using the Software or the Awara IT Services, even if you have not expressly accepted this User Agreement. This User Agreement shall continue in effect until terminated. Without prejudice to any other rights, this User Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described in this User Agreement. If you fail to pay the applicable subscription fees, Awara IT shall have the right to restrict, suspend, or terminate your access to the Awara IT Services and the Software in whole or in part, without notice and without liability. You may terminate this User Agreement at any time by providing written notice of your decision to terminate the User Agreement to Awara IT. Awara IT may terminate this Agreement if you breach any term of the Agreement by giving you written notice of your breach and Awara IT decision to terminate the User Agreement. If this User Agreement is terminated, Awara IT reserves the right to refuse to provide access to the Awara IT Services and the Software to you in the future. Once access to the Awara IT Services and the Software has been denied as a result of termination of this User Agreement, Awara IT reserves the right to impose a charge for access to the Awara IT Services and the Software.
Amendment to User Agreement.
Awara IT reserves the right, in its sole discretion, to amend this User Agreement from time to time. If there is a conflict between this User Agreement and the most current version of Awara IT User Agreement, posted at www.awara-it.com, the latter will prevail. Your continued use of the Awara IT Services and the Software following any amendment to this User Agreement shall be conclusively deemed an acceptance of all such amendments.
This License Agreement shall be interpreted and construed according to, and governed by Russian Law. Disputes or controversy arising out of, or relating to this License Agreement shall be brought before the district court where the Licensor is established.
Unless differently provided, certain obligations, which because of their nature are intended to last after termination of the License Agreement, remain to be effective after its termination. The termination of the License Agreement explicitly does not dismiss Licensee of the provisions concerning liability, intellectual property, governing rights and forum choice.
With regard to Third Party Software the supplier’s (license) conditions of their software applies.