End User License Agreement for PuguaSoft Products version 10.06.09

The individual using this software represents and warrants that he or she has authority as given by the Subscriber to enter into this agreement with PuguaSoft LLC that he or she has read the terms and conditions set out herein and that the Subscriber agrees to be bound by the terms and conditions. If the Subscriber does not agree with the terms and conditions the Subscriber must not use or permit the use of the Product.

1. Definitions

The following terms are used in this agreement:

  • Accessible Code means source code contained within the Product that is made accessible to the Licensee under this agreement. For avoidance of doubt, Accessible Code does not include Embedded Software whether protected or unprotected.

  • PuguaSoft LLC means PuguaSoft LLC (Registered in the United States of America) whose Registered Office is situated at 0320 SW Montgomery St. Apt 415, Portland, OR. 97201.

  • Authorized Machine means a single installation of a copy of the Product on a single physical computer, hand-held or mobile device.

  • 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.

  • Authorized 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 Authorized Users, the number of Authorized Server Nodes and/or the number of Authorized Machines, as designated in writing by PuguaSoft LLC.

  • Commencement Date means the date that Subscriber downloads and/or installs the Product.

  • Embedded Software means third party software licensed by PuguaSoft LLC from a Licensor and embedded in the Product.

  • 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.

  • Licensor means the licensor of the Embedded Software.

  • OEM Distribution means distribution of the Product as either a bundled add-on to, or embedded component of, another application with such application being made available to its users as, but not limited to, an on-premise application, a hosted application, a Software-as-a-Service offering or a subscription service for which the distributor of the application receives a license fee or any form of direct or indirect compensation.

  • Product means the PuguaSoft LLC product defined in the Quote/Invoice delivered by PuguaSoft LLC to Licensee, including any Embedded Software delivered by PuguaSoft LLC, including any updates provided under the terms of this agreement in accordance with Clause 6 and 8.2.

  • Protected Code means source code contained within the Product that is protected against access by PuguaSoft LLC and is not accessible under this agreement.

2. License Fee

A one-time fee, where applicable as designated by Product, paid, without deduction or set-off, by Licensee to PuguaSoft LLC 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, PuguaSoft LLC grants to Licensee, and Licensee accepts from PuguaSoft LLC, a perpetual, worldwide, non-exclusive, non-transferable, non-sublicensable License to use the Product.

4. Consumer Rights

Nothing in this License shall affect Statutory Consumer Rights in cases where the Product has been purchased for purposes other than business or professional use.

5. No Warranty

Save as provided in clause 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 PuguaSoft LLC does not warranty that the Product will be error-free, complete, or correct. PuguaSoft LLC provides evaluation copies of the Product so that customers can assess the Product.

Without limitation, PuguaSoft LLC will not be liable to any person for any loss, damage, cost, expense or other claim (including consequential damages and loss of profits) in relation to the Product including, without limitation:

  1. Any use or reliance on a Product by any person (including the form and content of errors in and/or omissions from any information contained in a Product).

  2. Any delay, interruption or other failure in the provision of the Product.

  3. Any change in the form or content of the Product.

  4. Any impact of the Product on other digital products, applications, software or databases

6. PuguaSoft LLC's Obligations

Upon receipt of Licensee Fee from Licensee, PuguaSoft LLC will (a) supply the Licensee with the Product and License Key via electronic download, invoice/receipt, electronic mail, or by fax; and (b) provide Software Maintenance as defined in Section 7, for a period described in the order/invoice (which may be none) from the Commencement Date (the "Initial Maintenance Period").

7. Software Maintenance

Software Maintenance includes PuguaSoft LLC's provisioning to Licensee Product updates and/or enhancements made generally available to customers from time to time, and online technical 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 PuguaSoft LLC personnel or contractors). 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.

8. Licensee Obligations

The Licensee must at all times:

  1. ensure that only an Authorized Person may use the Product and only for Authorized Use in accordance with the terms and conditions of this agreement;

  2. install all applicable updates and enhancements made available by PuguaSoft LLC;

  3. immediately advise PuguaSoft LLC in writing if the Licensee becomes aware of any unauthorized use or distribution of the Product by any person or entity and, further provide to PuguaSoft LLC all information it has, or can obtain by reasonable and proportionate action, to help identify and locate the person or entity responsible for such unauthorized use;

9. Unauthorized Use and Distribution

Licensee may not, whether through reckless, deliberate or negligent act or act of omission:

  1. distribute or cause the distribution of the Product to any third party other than an Authorized User; or

  2. directly access or use any Embedded Software independently of the Product.

Licensee is required to immediately report in writing its knowledge of any violations of the foregoing to PuguaSoft LLC. Any such violations will entitle PuguaSoft LLC and/or its Licensor to, in addition to any other right or claim that PuguaSoft LLC or Embedded Software Licensor may have against Licensee, charge the Licensee a fee calculated by the number of prohibited distributions or unauthorized uses/accesses multiplied by the respective list prices, as at the date of the distributions or unauthorized uses/accesses, of the Product or the Embedded Software Licensor charges for the Product or Embedded Software respectively. For the avoidance of doubt such liability is in addition to any liability to satisfy any other right or claim that PuguaSoft LLC may have against the Licensee.

10. Investigation of Unauthorized Use and Distribution

If PuguaSoft LLC reasonably suspects that a Product has been supplied distributed to or obtained by any person or party without PuguaSoft LLC's prior written consent, or that Embedded Software and/or Accessible Code and/or Protected Code is being accessed or used independently of the Product, the Licensee, on written request, will provide full evidence, including, but not limited to, a certificate from the company auditor (if the Licensee is incorporated) or a professionally qualified accountant (if the Licensee is not incorporated), following examination of all relevant records and correspondence and documentation, financial and otherwise, of the Licensee and oral inquiry of its managers and owners, that relates in any way to whether or not there has been total compliance with Authorized Use of the Product, Embedded Software, Accessible Code and Protected Code and, if there has not been such total compliance, to provide to PuguaSoft LLC the detail and evidence of the extent of such non-compliance.

11. Licensee's Restrictions

Licensee must not, without the prior written consent of PuguaSoft LLC, which may, in its absolute discretion, be withheld or be subject to conditions:

  1. decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, the Protected Code and Embedded Software;

  2. 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 11.2 is intended to prevent an Authorized Person undertaking Authorized Use);

  3. vary or amend the Authorized Use without PuguaSoft LLC's prior written approval;

  4. publish, promote, broadcast, circulate or refer publicly to the PuguaSoft LLC name, trade name, trademark, service mark or logo, without the prior written consent of PuguaSoft LLC;

  5. commit any act or omission, or permit same by others, the result of which is that PuguaSoft LLC's reputation may be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on PuguaSoft LLC's interests.

For the avoidance of doubt, subject to the terms and conditions contained herein, Licensee is permitted to modify the Accessible Code to develop bug fixes, customizations, or additional features, solely for the purpose of using the Product as defined in, and during the term of, this Agreement.

Under no circumstance may Licensee embed the Accessible Code into another application without prior written consent from PuguaSoft LLC, nor shall Licensee copy elements of the Accessible Code into other applications.

In addition, the Product includes license protection mechanisms that are designed to manage and protect the intellectual property rights of PuguaSoft LLC. Licensee must not modify or alter those features or, by act or default, permit or enable or give opportunity to others to so do.

The Accessible Code and Embedded Software, and all copies, whether in digital or written form, must be destroyed after the termination of this Agreement in a manner that is permanent and in such a way that the data and Code and Software can never be recovered.

12. 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 13.

13. Termination

This agreement may be terminated by either party if the other party commits a material breach.

Either party will have thirty (30) days from notification in writing from the other, or, in the absence of such notification, its knowledge of such breaches, whichever is the earlier, to remedy any material breaches and, in the absence of such remedy after such period, this Agreement may then forthwith be terminated by the other party by notice in writing.

Immediately upon termination, the Licensee guarantees that any Accessible Code in possession, custody or control of Licensee or Authorized Users, will be destroyed and written confirmation of such destruction and of the manner of destruction, including the extent and number of times that any hard drive or other storage media containing the Accessible Code, is wiped as well as identification of the software application and version utilized for that purpose, provided forthwith to PuguaSoft LLC.

Clauses 1, 2, 4 - 6, 8.3, 9 - 11, 14 - 22 shall survive any termination of this agreement.

14. Limitation of Liability

Where any law implies in this agreement any term, condition or warranty and that law avoids or prohibits a provision of this agreement excluding or modifying the application of or liability under

any term, condition or warranty then the liability of PuguaSoft LLC is limited to:

  1. the re-supply of the Product; or

  2. the payment of the cost of having the Product supplied again.


15. Intellectual Property

The Licensee acknowledges that the Product and all intellectual property rights in relation to the Product are the property of PuguaSoft LLC or the Licensors and PuguaSoft LLC is entitled to take whatever action it may decide in order to protect its intellectual property rights in the Product and further the Licensee will take whatever action is reasonable and necessary to protect such rights of PuguaSoft LLC.

16. Publicity Rights

The Licensee grants PuguaSoft LLC the right to include the Licensee as a customer on PuguaSoft LLC's website or other promotional material in relation to the Product.

Licensee can deny PuguaSoft LLC this right by submitting, prior to the issue by PuguaSoft LLC of the invoice for the License Fee, a request in writing to be excluded from all promotional material for the Product, whereupon, after 30 days of such request, and whether or not the Licensee had failed to submit such a request in respect of any prior purchase from PuguaSoft LLC, all references to the Licensee will be removed from all such promotional material.

Should the customer 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 to have PuguaSoft LLC remove the Licensee's name from Product promotional material. Upon receipt of such request, PuguaSoft LLC will remove any reference to the Licensee from such promotional material within 30 days and make no further reference to the Licensee.

17. No assignment or amendment

Licensee may, prior to termination under Clause 13, assign this agreement to succeeding parties in the case of a merger, acquisition or change of control so long as in doing so, PuguaSoft LLC is notified in writing within ninety (90) days of the closure of such transaction.

PuguaSoft LLC may assign its rights and obligation under this agreement at any time, whether before or after termination, without consent of Licensee.

18. Tax

Payments made by the Licensee under this agreement may incur 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 PuguaSoft LLC in law to any authority empowered to collect same, the Licensee must forthwith, in addition to the License fee, pay to PuguaSoft LLC the amount of such taxes or duties. In the event the Licensee is exempt from such taxes or duties and, notwithstanding, payment of such taxes and duties has been made to PuguaSoft LLC, PuguaSoft LLC will , on request in writing from the Licensee, provide the Licensee with all documents necessary to enable the Licensee to obtain a tax or duty refund or credit.

19. Severance

If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions will continue to have full force and effect.

The failure of either party to enforce any of the provisions of this Agreement, or the waiver of any aspect thereof, shall not be construed as a general waiver or relinquishment on its part of any other provision, which shall nevertheless remain in full force and effect.

20. Entire Agreement

This Agreement together with any document expressly referred to in any of its terms, contains the entire Agreement between the parties relating to the subject matter covered and supersedes any previous Agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of this Agreement. Each party confirms that, in agreeing to enter into this Agreement, it has not relied on any representation save insofar as the same has expressly been made a representation in this Agreement.

21. Variation

No addition to, or modification of, any provision of this Agreement shall be binding on the parties unless made by a written instrument and signed by a director of each of the parties or, in the event either party is not an incorporated body, by the majority owner(s) for that party's business.

22. Notice

For any notice that is to be served by either party on the other under this Agreement to be valid and binding it must be in writing and shall be deemed to have been received by the other party at the earlier of service in person on any director of that other party or five (5) days after being sent by prepaid post and addressed to the applicable party.

23. United States Government Restricted Rights

The Software and Documentation are provided with Restricted Rights. Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. S:52.227-19, as applicable.

24. Governing Law and Choice of Forum

This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Oregon, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this EULA shall be resolved in the federal or state courts situated within the Northern District of Oregon. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts.

25. Export Restrictions

You acknowledge that Software is of U. S. origin. Recipient agrees to comply with all applicable international and national laws that apply to the Software, including the U. S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.

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Copyright (C) 2008-2010 PuguaSoft LLC. All rights reserved.

Product Site: www.puguasoft.com