END USER SOFTWARE LICENSE
IMPORTANT – READ CAREFULLY BEFORE CONTINUING: This Licensing Contract for certain AUDACES products is a legal and binding agreement for the use of AUDACES software, between THE CLIENT (individual or corporation, previously accepted by AUDACES, who ordered the software or to whom the software was destinated) and Audaces Automação e Informática Industrial Ltda, a private corporation, registered under CNPJ n.º 85.236.743/0001-18, and located at Rodovia SC 401, Km 01, n.º 867, Bairro João Paulo, CEP 88.030-000, Florianópolis/SC – Brazil.
THE CLIENT agrees to the following terms of this Contract. IF THE CLIENT DO NOT AGREE WITH THE TERMS OF THIS CONTRACT, THE CLIENT MUST, IN THIS THE CASE: a) TO REMOVE THE SOFTWARE, OR b) TO CLICK ON THE “I DO NOT ACCEPT” BUTTON TO NOT INSTALL THE SOFTWARE.
THE CLIENT AGREES THAT: a) upon clicking on the “ACCEPT” button to install, copy or execute any other operation with the Software, or b) THE SIMPLE USE OF THE SOFTWARE CONFIRMS THAT THE CLIENT HAVE READ AND UNDERSTOOD THIS AGREEMENT AND HAVE AGREED TO COMPLY WITH ITS TERMS AND CONDITIONS.
1. LICENSE CONCESSION. The software, documentation and any fonts accompanying this License whether on disk, in read-only memory, on any other media or in any other form (collectively the "AUDACES Software") are licensed, not sold to the CLIENT by AUDACES AUTOM. INF. IND. LTDA ("AUDACES") for use under the terms of this License, and AUDACES reserves all rights not expressly granted to the CLIENT. The rights granted herein are limited to AUDACES' and its licensor's intellectual property rights in the AUDACES Software and do not include any other patents or intellectual property rights. Even for cases in which the CLIENT owns the media on which the AUDACES Software is recorded, AUDACES and/or AUDACES licensors retain ownership of the AUDACES Software itself. The terms of this License will govern any upgrades that replace and/or supplement the original AUDACES Software product, unless such upgrade is accompanied by a separate license. With this License, AUDACES grants the CLIENT the non-exclusive use of the Software and related documentation for indefinite time, in compliance with the payment conditions negotiated and accepted by the CLIENT and according to the following terms:
a) THE CLIENT may: (I) use the Software only in one computer for each acquired license; (II) for use in a Computer Network, THE CLIENT can have as many instances of the Software in simultaneous use on the Computer Network as were specifically purchased; and (III) copy the Software for backup, safety and storage purposes only, as long as: III.1) copying is previously authorized by Audaces; III.2) the copy contains all of the original ownership warnings for the Software; III.3) the copy and the original are not used simultaneously.
b) A usage license is needed for each installed copy of the Software. THE CLIENT cannot, in any circumstances, have a greater number of installed copies of the Software than the number of licenses purchased, subject to penalties established by law, such as copyright, software and other intellectual property and criminal laws.
2. LICENSE RESTRICTIONS. a) THE CLIENT must not: (I) allow other individuals to use the Software, except under the terms of this contract; (II) modify, translate, conduct any reverse engineering, decompilation, disassemble or create
derived works based on the Software or on its specifications; (III) copy the Software or its specifications; (IV) rent, sell, lease, pledge, cede to third parties, or transfer the rights of the Software without the express permission of AUDACES; (V) remove any warning of ownership or labels from the Software or its specifications and Documentation; (VI) allow the access and use of the licensed copy of the Software in a private network by equipment (a PC for example) and access software that permits the multiplication of a single license. THE CLIENT should obtain a specific license for the Software for each additional piece of equipment that accesses and uses the installed and licensed Software; (VII) use remote access technologies, such as Microsoft Window’s resources for Remote Work Area or
END USER SOFTWARE LICENSE NetMeeting to access and use The CLIENT´s licensed Software copy.
2.1. USE THE SOFTWARE IN ANY OF THESE PROHIBITED WAYS WILL IMMEDIATELY CANCEL THE CLIENT´S LICENSE TO USE THE SOFTWARE.
b) THE CLIENT agrees that will only use the Software in a manner compatible with all applicable laws, including, but not limited to, the applicable restrictions referring to copyrights and other intellectual property rights.
c) THE CLIENT should not use the Software to attempt - or in conjunction with any other device, program or service - to avoid the technological measures employed to control access to a content file or other work protected by the copyright laws of any jurisdiction.
d) The license use in this agreement does not include any adaptations made to the Software for specific purposes that are not provided for in this document, as well as the provision of parts;
e) The CLIENT agrees that AUDACES and its subsidiaries may collect and use technical and related information, including but not limited to technical information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, software or software environment consistency or abnormalities, product support and other services related to the AUDACES Software and to verify compliance with the terms of this License.
f) The present contract does not encompass support and maintenance services for the Software and for other software, even if developed by AUDACES. Software implementations and/or modifications suggested by the CLIENT will be the object of separate financial settlements that may be included in this contract through attachments. Should it be of the CLIENT's interest, AUDACES can sign a specific contract for Software support and maintenance/updates services.
g) The CUSTOMER agrees that will not use Audaces SUPERA for providing automated marker-making services for third-parties, including but not limited to automated services, as WebService, e-mail or ASP.
3. For EDUCATIONAL SOFTWARE, DISTRIBUTION, AND INSTITUCIONAL LICENSE CONCESSION, the user should comply with the following rules: a) EDUCATIONAL LICENSE: exclusive for educational purposes; made available to students and teachers adequately connected to a regular teaching institution; use in production and commercial purposes is forbidden. b) DISTRIBUTION LICENSE: exclusive for Audaces distributors, instructors, representatives and collaborators; used for demonstration, training and studies; use in production and commercial purposes is forbidden. c) INSTITUCIONAL LICENSE: exclusive for teaching institutions; used for teaching and provision of services.
4. For LICENSE CONCESSION FOR FREE, DEMO, DEMONSTRATION, NON-COMMERCIAL AND BETA SOFTWARE VERSIONS, the following rules apply: a) FREE, DEMO, DEMONSTRATION or NON-COMMERCIAL LICENSE: the Software is offered at no cost for product evaluation; use in production and commercial purposes is forbidden. b) BETA LICENSE: versions that are still being validated. The user is aware that it is not a definite version, susceptible to changes, discontinuity and flaws that may cause damage.
5. CUSTOMER accepts that Audaces use hardware and software solutions as a way to control access to their products. Such solutions are an integral and inseparable part of the licensed Software.
a) When this control is through Audaces Co-processor, it will be understood as an integral and inseparable part of the licensed Software and is indispensable for its use. THE CLIENT should protect its integrity and safekeeping, given that AUDACES is only required to replace it, without additional cost, in cases of defects within the warranty period. Outside this period, THE CLIENT will pay the cost of the Co-processor for replacement, and in both cases the return of the defective Coprocessor is mandatory. AUDACES will not substitute the Co-processor, under any circumstances, in case of loss, simple theft, qualified theft, robbery or any other event or reason that causes the loss of the possession and ownership of the Coprocessor. In these cases, the replacement will only be possible with the acquisition of a new User License.
b) Audaces has the right to put passwords on the software indefinitely as long as the duration of the license of use in order to ensure, to the CLIENT, security against practice of piracy, or cloning, or invasion by hackers, and even for the following discretionary purposes: (I) until full payment of the license, (II) until full payment of the Software Support and Update Services and Software Update Preferences (Audaces Club), when hired, and (III) to ensure that performance of any obligation assumed with Audaces that has as its object the operation of the software (training expenses, travel and lodging Instructor, transfer of license of use, etc.), acquisition of other software, peripherals, hardware and services (Bureau Digitizer, Audaces Co-Processor for replacement, Apparatus DigiFlash, Plotters for printing, inks, cartridges and printheads for printing, freight costs, etc.).
6. TITLE AND OWNERSHIP OF THE SOFTWARE. AUDACES retains software ownership, and only transfers license uses to the CLIENT under responsibilities. License use may be transferred free of charge, but should be specifically agreed upon, being that the same contract clauses in this agreement stand in full force together with the commodatum agreement.
a) The title, property rights and intellectual property rights to the Software belong to AUDACES. The Software is, regardless of the registration or any formality, the exclusive property of AUDACES, which is guaranteed worldwide by the Berne Convention, by authorship and Copyright and Civil and Criminal laws of the signatory countries including the END USER SOFTWARE LICENSE European Union’s (EC Software Directive of May 14, 1991,91/250/EEC published in the Official Journal of the EEC of May 17, 1991, L122/42) and Brazilian laws 9.609/98 and 9.610/98 and the Software and its manuals cannot, in any circumstances, be freely or at cost, copied, modified, sold, ceded, rented, translated, pledged, provisory or permanently, totally or partially, or be the object of reverse engineering or decompilation, or the attempt of doing it, without the express, previous, authorized and proper agreement of AUDACES.
b) Under no circumstances will the Software or system under this agreement be sold. It is licensed for use in compliance with the Brazilian legislation. Software property cannot be transferred to anyone without the previous, express, specific and authorized consent of AUDACES. If the CLIENT intends to use the system in a different location from the one previously established, he should sign an addendum to this License. The Software's media demonstration and tutorial also belong to AUDACES and are protected by property rights. The same rules of this contract are applied to the coprocessor that runs the AUDACES software.
7. WARRANTY AND RESPONSIBILITIES. LIMITED WARRANTY. AUDACES guarantees that for 6 (six) months from the date of acquisition of the Software, if operated correctly, it will function as its specified functions. AUDACES does not guarantee, however, that the use of the Software will be uninterrupted or that its operation will occur without errors, or in a safe way. AUDACES also guarantees that the media that contains the Software, if supplied by AUDACES, will be free of material and manufacturing defects, and will remain so for ninety (90) days from the purchase date of the Software. In case the Software does not operate as described, AUDACES will do its best endeavours to correct the problem. However, AUDACES’ responsibility is limited only to the replacement of the copy of the Software for another one that operates according to specifications and/or documentation, and the problems encountered must be, immediately, detailed and described in writing. AUDACES reserves the right to discontinue AUDACES software versions as from 12 (twelve) months after each version's release, through a simple communication on AUDACES' official website or an e-mail to the CLIENT. AUDACES also reserves the right to completely discontinue the software as from 12 (twelve) months after releasing its last version. The CLIENT is presently aware of both cases.
a) NO OTHER GUARANTEE: AUDACES DENIES, UNTIL THE MAXIMUM EXTENSION PERMITTED BY APPLICABLE LAW - except that which it is unlawful to exclude - ALL OTHER GUARANTEES EXPRESSED OR IMPLICIT INCLUDING, BUT NOT LIMITED TO, IMPLICIT GUARANTEES OF SALE AND ADAPTATION TO A CERTAIN PURPOSE, IN RELATION TO THE SOFTWARE, TO THE WRITTEN MATERIAL THAT ACCOMPANIES IT AND TO ANY OTHER HARDWARE SUPPLIED. If THE CLIENT makes any modification to the Software, if the media is subject to accidental damages or to improper use, or if THE CLIENT violates the terms of this Contract, this warranty will be immediately cancelled. This warranty does not apply to software used together with hardware or software different from the non-modified version of hardware and software with which the Software was designed to be used, as described in its specifications.
b) The only responsibility of AUDACES in regard to the violation of this warranty should be, under the exclusive criteria of AUDACES: (I) to substitute the defective media; (II) to inform how to effectively obtain Software functionality described in the Documentation through a different procedure than that defined in the Documentation; the duly modified, corrected or replaced Software and Documentation will be covered by this limited warranty during the remaining tie of the Software's original warranty period or for thirty (30) days after the day in which AUDACES sends the modified or replaced Software, or to inform how to operate the Software in order to obtain the functionality described in the Documentation - whichever is applicable. AUDACES is only liable to the terms of this warranty if the CLIENT communicates the Software problem during the applicable warranty period and provide proof of the Software's date of purchase.
c) AUDACES guarantees the perfect functioning of the Software under this agreement, as long as operated in the software environment indicated by AUDACES and in perfect conditions, the hardware platform is suitable, the network system and electrical installations are adequate and problem-free and according to AUDACES' minimum requirements. Unsuitable hardware is any hardware made by an unknown or illegal manufacturer, or assembled in clandestine locations, produced through contraband or any other means that do not provide the express and valid manufacturer warranty in its whole or in parts;
d) It is commonly understood – and this understanding is accepted by the parties of this contract - that software, by its nature, will always contain errors and that manufacturers and suppliers of software products should not be subject to the same product liability and consumer protection regimes that apply to other products. Notwithstanding, should be at the exclusive criteria of AUDACES: (I) to replace defective media; (II) inform THE CLIENT about how to effectively operate the Software by means of a procedure different than that defined in its specifications; or (III) if the solutions above are not able to be put into practice, to return the license fees paid for the Software, if it is the case. The modified, corrected or replaced Software will be covered by this limited warranty during the remaining period of the original Software warranty, or for thirty (30) days after the date on which AUDACES sends the repaired or substituted Software, or informs how to operate the Software in a manner as to make it function as described in its specifications, whichever is applicable. AUDACES will only be required to comply with the terms of this warranty if THE CLIENT informs about the problem with the Software during the period of the applicable warranty. END USER SOFTWARE LICENSE
e) The warranties set out in this clause exclude problems, errors, damage or losses caused by decisions based on any information supplied by the Software, as well as defects or errors caused by negligence, imprudence or incompetence or not of the CLIENT's representatives, employees or hired third parties in the use of the licensed Software, as well as problems caused by "chance occurrences" or "force majeure" encompassed in the Brazilian Civil Code.
f) AUDACES does not take responsibility for damages caused to the Software by computer "viruses", power outages, air conditioning, radioactive elements, pollutants or similar substances, cloning or invasion by hackers, etc.;
g) AUDACES does not guarantee the performance of licensed software with third-party software, especially with devices that compete with resources necessary to Audaces software, for example, some kinds of antivirus, bank keys and software, among others.
h) The CLIENT takes full responsibility for the issuance itself and definition of the types of fiscal documents to be issued by the Software, other fiscal problems related to the legality, integrity and quality of data and information in the issued fiscal documents, and the conformity of documents to federal, state and municipal legislation;
i) The system operator is responsible for the safety of files related to the Software. The poor use of operational work techniques as well as inappropriate operations, safety copies (backups), use of defective media and others that can cause flawed results are of the CLIENT'S exclusive responsibility;
j) All Software source codes are exclusive property of AUDACES, and copies or any type of use or treatment without the prior and express authorization of AUDACES is prohibited.
k) The CLIENT assumes the obligation of giving full conditions for the functioning of the Software, as well as provide the operator with enough knowledge for operating it and appropriate equipment (UPS for network or for each machine individually). If asked to do so by AUDACES, the CLIENT will install internet access on the equipment for telemaintenance according to the required standard and specifications;
l) AUDACES reserves the right to at any moment verify the perfect use and the serial number of the Software in possession of the CLIENT and compare it to its controls;
m) AUDACES reserves the right to take back the Software under this contract in cases in which the CLIENT does not comply with his responsibilities, without prejudice to the other sanctions provided for in the law and/or in this document;
n) If the equipment that runs the Software under this contract is confiscated, repossessed, seized, vested, or simply threatened by any legal measure, both typical or atypical, that removes it from the possession and use of the CLIENT, the CLIENT is the under the obligation of removing the Software so that the equipment is moved without it;
o) Any other copy besides the authorized RESERVE COPY (backup) of the Software under this contract will be considered an unauthorized copy, and its mere existence will be seen as a violation to property rights, and the CLIENT will be liable to the penalties provided in this agreement and legislation in force;
p) AUDACES or third party names, brands and logotypes on packages, manuals and Software under this contract cannot be adulterated or modified, nor can they be sold, licensed, donated, rented, transferred or transmitted through payment or free of charge, unless with prior consent from AUDACES;
q) AUDACES is expressly authorized to advertise, at any time and without providing any type of remuneration, through homepages, websites and any other means, that the CLIENT is an AUDACES client and uses its products;
r) The CLIENT is under the obligation of immediately notifying AUDACES when there are indications or suspicion of the existence of unauthorized copies of the licensed Software, giving information and assistance to AUDACES in its attempt to recover the verified loss;
s) Only during the warranty period, that is, 06 (six) months from the date of purchase of license, will AUDACES give free support to the CLIENT, answering questions during system implantation and processing. After this date, technical support and assistance to the client will be charged according to services under contract, and under conditions negotiated separately for individual services or through contract signature of AUDACES CLUB. AUDACES technical assistance or support can be given through writing, by e-mail, by phone or at the AUDACES or CLIENT's office. When assistance is given at the CLIENT's headquarters, a fee for transportation, food and lodging will be charged according to rates established, even during the warranty period. AUDACES does not take responsibility for meeting deadlines and completing customization or repair stages if there is not full cooperation from the CLIENT in providing the necessary information, personnel, physical space, operational environment, and other requirements. The CLIENT understands and agrees that untimely requests for modifying previously set standards delay the development of defined stages and can harm both parts of this agreement, through no fault of AUDACES.
t) The CLIENT that purchases a license for any Audaces software agrees with the installation of the automatic updater.
u) The CLIENT is aware that the Software may contain optional features , sold separately.
v) The CLIENT is aware that the Software may contain features available only for AUDACES CLUB customers.
8. INDEMNIFICATION. This Software is meant to be used exclusively with the appropriately licensed media, content and content creation tools. THE CLIENT agrees to defend and indemnify AUDACES, its executives, directors and employees against any loss, damage, fines and expenses (including legal fees and other costs) stemming from or related to any complaint that THE CLIENT have viewed, or in violation of any law, or in violation of any term of this Software License Contract. AUDACES shall hold harmless and defend THE CLIENT against suits based on any claim that the Product infringes any patent issued as of the date of this Agreement, or any copyright or trade secret, provided that THE CLIENT gives AUDACES prompt written notice of such suits and permits AUDACES to control the defense and settlement thereof.
9. DURATION, TERMINATION AND PENALTIES. This is an open-ended agreement. Termination should follow the terms and conditions provided in this Clause: a) This agreement will be automatically terminated at any moment, regardless judicial or extrajudicial formalities, under the following: a.1) CLIENT's noncompliance with responsibilities; a.2) If the CLIENT files for bankruptcy, judicial or extrajudicial reorganization, voluntary bankruptcy or declared bankruptcy; b) Written communication from AUDACES, without prior notice, as long as the warranty period is taken into account; c) Initiative of the CLIENT, with 30-day prior notice; d) Written agreement from both parts, at any time, without prior notice;
9.1. If the license was granted through payment in installments, termination is only possible through full payment of the agreed value, regardless termination date. If the agreement is terminated, the client is bound to the full payment of the license with interest, fine and other legal and contract penalties, including search and seizure.
9.2. Contract termination is not permitted if the product is under bank operation guarantees.
10. TERMINATION BY AUDACES DUE TO CLIENT NONCOMPLIANCE. This License will be automatically cancelled without prior notice if the CLIENT breaches any provision of these terms. In this case, the CLIENT must pay the full value of the license. The CLIENT should immediately stop using the Software and return it to AUDACES within five (5) days, together with all the provided documentation and material, being charged a fine of 50% (fifty percent) of the current market value of the software license, as well as other legal and contractual penalties, including search and seizure, legal fees, burden of loss and costs of judicial proceedings.
11. MISCELLANEOUS. a) This contract cannot be transferred without AUDACES’ written agreement. In case THE CLIENT is an entity that forms a partnership with another entity or is purchased by another entity during the period of this contract, THE CLIENT should supply a written notice of this merger or acquisition before the date in which any public announcement is made. If AUDACES does not approve the transfer of this Contract to the new or acquired entity arising from the merger or acquisition, it can terminate this Contract within thirty (30) days through a written notice. The two parties will agree to comply with the Agreement until this termination is made effective.
b) This Contract will constitute the complete and exclusive contract between the parties. The terms and conditions of this Contract cannot be changed, except in a written document properly signed by THE CLIENT and by AUDACES, or AUDACES distributor previously and formally identified. This contract will not be regulated by the United Nations Contracts Convention for the International Sale of Goods, the application of which is, by this contract, expressly excluded.
d) Audaces reserves the right to update and modify these terms and conditions at any time without prior notice.
12. JURISDICTION AND APPLICABLE LAW. a) The parties elect the Central Court of Florianópolis, Santa Catarina, Brazil, to resolve any doubts, conflicts or litigation that may, direct or indirectly, arise out of this Contract, for which there is no possibility of amicably solution between the parties, expressly renouncing any other court, no matter how privileged it may be. END USER SOFTWARE LICENSE
13. ARBITRATION. In the event of any dispute or difference arising out of or related to this Contract, the parties shall use their best endeavors to settle such disputes or differences. If the parties do not reach such solution within a period of thirty (30) days following notice of the dispute or difference, then either party may refer the dispute or difference for final settlement by arbitration in accordance with the rules of international law of arbitration in effect on the date of this Agreement. The arbitration shall be conducted by three (3) arbitrators: one selected by AUDACES, one selected by THE CLIENT and the third selected by the two só chosen. The arbitration shall take place according to the Rules of Mediation of the WIPO-World Intellectual Property Organization (Arbitration and Mediation Center).
THE ORIGINAL AND IDENTICAL VERSION OF THIS CONTRACT CAN BE FOUND AT CARTÓRIO DE REGISTRO DE TÍTULOS E DOCUMENTOS, at Rua Vidal Ramos, 53 SL 106, Centro, CEP 88010-320, FLORIANÓPOLIS, SC.