THIS END USER LICENSE AGREEMENT (the “Agreement”) sets forth the terms under which BIOSPHERA ILUSTRAÇÕES BIOMÉDICAS LDTA, a Brazilian company, (the “Licensor”, “we”, or “us”), grants to you (the “Licensee”, “you” or “your”) a non-transferable license to use the purchased Software (defined below).
RECITALS
WHEREAS, Licensor makes available for sale certain computer programs on Biosphera3d.com and desires to grant to Licensee a license to use such Software;
WHEREAS, Licensee desires to obtain a license from Licensor in order to use the Software and Licensor is willing to license the Software to Licensee upon the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, Licensee and Licensor hereby agrees as follows:
1. DEFINITIONS
(a) “Intellectual Property” means all patents, copyrights, trademarks, trade secrets and all other proprietary rights other than real property or personal property rights, recognized under applicable law;
(b) “Intellectual Property Rights” means any and all (i) rights associated with works of authorship, including but not limited to, copyrights, (ii) trademark, trade name rights and similar rights, (iii) trade secret rights, (iv) patents and (v) all other intellectual property rights in any jurisdiction throughout the world, provided that Brazil is a signatory of a treaty, in this jurisdiction, that guarantees reciprocity of treatment;
(c) “Modifications” means any Updates, Upgrades and any other modifications of the Software, whether made by Licensor or any authorized third party;
(d) “Updates” means any patches, work-around, bug fixes, error corrections, minor modifications or enhancement and other changes to the Software;
(e) “Upgrades” means any new major release of the Software containing new features, new functions, and/or major changes or enhancements;
(f) “Software” means Licensor’s software program(s) and any third party software programs supplied by Licensor or Biosphera3d.com, and any corresponding documentation, associated media, printed materials and online or electronic documentation. Any Modifications, which Licensee is entitled to receive and that have been provided to Licensee by Licensor, shall also mean “Software” for purposes of this Agreement;
(g) “Site” means Biosphera3d.com and all affiliated websites, including mobile websites and applications, owned and operated by Licensor or Licensor’s affiliates.
2. SOFTWARE LICENSE
(a) The License. Licensor hereby grants to Licensee, for the Term of this Agreement, an exclusive, onerous, non-assignable, revocable, non-exclusive right and license to use the Software (the “License”).
(b) Types of License. Licensor will grant the License to Licensee, according to the dispositions of Section 4 below, in one of the following types:
(i) Individual User: grants the Licensee the right to install the Software in one individual user computer. For example: for use by students, professors, physicians, veterinarians and other professionals; and
(ii) Multi-user: grants the Licensee the right to install the Software in one shared computer, allowing that more than one user can have access to the Software as long as that access is not simultaneous. For example: installation in a single terminal located in libraries, museums or computer labs in educational institutions.
(c) License Rights. Licensee acknowledges and agrees that the Software is licensed, not sold, and that rights to use and access the Software are acquired only under this Agreement. The Software and any Modifications, Updates or Upgrades and all Intellectual Property Rights thereto may be used only in conjunction with and for Licensee’s own authorized use.
(d) Ownership. Licensor owns, and will continue to own, all right, title and interest in and to the Software, including any and all Modifications, Updates or Upgrades and all Intellectual Property Rights thereto. Licensee acknowledges that title to the Software made available to Licensee by Licensor under this Agreement is and will remain the sole property of Licensor. Licensee further acknowledges that it has no proprietary interest in or right to use the Software, except in accordance with the terms of the License granted under this Agreement.
(e) Restrictions.
(i) Except as expressly permitted by this Agreement, Licensee will not (and will not permit third parties to):
1) distribute, sell, rent, or otherwise transfer any rights in the Software;
2) reverse engineer, decrypt, decompile, or disassemble the Software;
3) remove any form of technical protection used by Licensor in connection with the Software, including, but not limited to, any measure provided or made available by Licensor for managing, monitoring or controlling access to the Software;
4) bypass or delete any functionality or technical limitations of the Software that (or that are designed to) prevent or inhibit the unauthorized copying or access to the Software;
5) use screenshots, video captures and other images of the Software unless with Licensor’s express consent, at its own discretion;
6) share Licensee’s License with another person or entity, even among family members;
7) install copies of the Software on more than one computer; and
8) use or share the Software in any manner or for any purpose not authorized or contemplated by this Agreement.
(ii) The License granted in Section 2 (a) does not include any right to sublicense any rights granted to any third party and Licensee will not attempt to sublicense such rights. Licensee is further prohibited from using the Software in any manner, other than as described in this Section 2.
3. EXCLUSIVITY. The rights and obligations of this Agreement are personal rights granted to Licensee only and are based in the right to use the Software. Licensee may not transfer or assign any of the rights or obligations granted under this Agreement to any other person or entity. Licensee may not make available the Software for use by one or more third parties.
4. INSTALLATION, ACCEPTANCE AND COPIES
(a) Installation. The Software may be installed onto no more than one (1) desktop, laptop or notebook computer (Windows or macOS).
(b) Copies. A single copy may be made for backup purposes only. Licensee is prohibited from making any other copies, for archival or otherwise, of the Software.
(c) Acceptance. In the event that Licensee falls to notify the Licensor of any difficulties or problems with the Software within thirty (30) days after the date of purchase of the License, Licensee shall be deemed to have accepted the Software. Prior to acceptance of such Software, Licensor shall have the right to repair or replace the Software at its discretion. Upon acceptance of such Software, Licensor shall be under no obligation to repair or replace such Software.
5. LICENSING FEES. In consideration of the License granted to Licensee hereunder, Licensee will pay Licensor a license fee for the Software as advertised on the Site (the “License Fee”) upon purchasing the License. Due to the distinct types of License, the License will have different fees.
6. USER SUPPORT
(a) Licensee will be entitled to one (1) year of email support, at no additional cost, from the date of purchase of the License. Licensor will maintain availability from 9am-5pm UTC-3:00 Monday through Friday and will endeavor to respond to all emails within forty-eight (48) hours of receipt; and
(b) Licensee will be entitled to any improvements, Modifications, Updates or Upgrades made by Licensor to the Software for one (1) year from the date of purchase of the License.
7. REPRESENTATIONS BY LICENSOR. Licensor represents that:
(a) the Software will not infringe on the Intellectual Property Rights of any third party;
(b) Licensor has good, marketable and unencumbered title to the Software;
(c) the performance of this Agreement and Licensee’s use of the Software will not require any additional license to use the Intellectual Property of a third party;
(d) Licensor will comply with all applicable laws, orders, codes and regulations in the performance of this Agreement; and
(e) no claims, actions or proceedings are pending or, to the knowledge of Licensor, are threatened against or affecting Licensor that may, if adversely determined, reasonably be expected to have a material adverse effect on Licensor’s ability to perform its obligations under this Agreement or on Licensee’s ability to use the Software.
8. WARRANTY DISCLAIMER. The Software is intended to be a supplemental educational resource and should NOT be used as the only source of educational information, nor should the Software be used as medical advice or for medical diagnoses of any kind.
THE SOFTWARE IS PROVIDED BY LICENSOR “AS IS”. Licensor does not warrant that use of the Software will be uninterrupted or error-free. Licensee accepts that software in general is prone to bugs and flaws within an acceptable level as determined in the industry. LICENSOR DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILTY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, OR WILL BE ERROR FREE.
9. LIMITATION OF LIABILITY. IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE FOR ANY CONSEQUENSIAL DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OF, OR THE INABILITY TO USE, THE SOFTWARE (EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY).
10. TERM AND TERMINATION.
(a) The term of this Agreement shall take effect upon the date of purchase of the License and will continue into perpetuity, unless terminated into accordance with the terms of this Agreement (the “Term”);
(b) Either party, upon written notice to the other party, may terminate this Agreement;
(c) Failure to comply with any of the terms under Section 2 will be considered a material breach of this Agreement and shall give Licensor the right to immediately terminate this Agreement and Licensee’s License; and
(d) Upon the termination of this Agreement, all rights and licenses granted to Licensee under this Agreements shall terminate and immediately revert to Licensor and Licensee shall discontinue all use of the Software. Upon termination of this Agreement, Licensor may require that Licensee transmit to Licensor, at no cost, al material(s) relating to the Software.
11. GENERAL
(a) Modifications or Amendments. This Agreement may be amended or any term may be waived only with the previous, express and written consent of Licensor or upon written notice by Licensor to Licensee. Licensee continued use of the Software after any modification or amendment to This Agreement shall constitute acceptance of such modification or amendment;
(b) Notices. Any notice required by the terms of this Agreement may be delivered electronically, over the Internet or otherwise (with the request for assurance of recipient in a manner typical with request to communications of that type). Any notice given in writing shall be deemed effective when sent by regular mail, postage prepaid, return receipt requested. Any notice given electronically shall be deemed effective on the date of transmission. Notices to Licensor should be sent to: support@biosphera3d.com;
(c) Act of God and Force Majeure. Licensor shall not deemed to be in breach of this Agreement for any delay or failure in performance caused by reasons out of Licensor’s reasonable control, including acts of God or a public enemy; natural calamities; failure of a third party to perform; changes in the laws or regulations; actions of any civil, military or regulatory authority; power outage or other disruptions of communication methods or any other cause which would be out of the reasonable control of Licensor;
(d) Agreement Binding On Successors. This Agreement shall be binding on and shall inure to the benefit of the parties hereto and their successors;
(e) Assignability. The license granted hereunder is personal and may not be assigned by any act of Licensee or by any operation of law without the previous, express and written consent of Licensor. Licensor may assign this Agreement and its rights hereunder upon written notice to Licensee;
(f) No Partnership or Joint Venture. Neither This Agreement, nor any course of conduct between the parties hereunder, shall constitute or create a partnership, principal-agent relationship or employer-employee relationship between the parties;
(g) Severability. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall remain in full force, as long as the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable;
(h) Jurisdiction and Governing Law. The parties to this Agreement submit to the jurisdiction of the courts of São Paulo, Brazil for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement. This Agreement will be enforced or construed according to the laws of Brazil;
(i) Counterparts. This Agreement may be executed in multiple counterparts. Each executed counterpart shall ne considered an original, and taken together, shall constitute one and the same document;
(j) Electronic Execution. This Agreement may be executed by electronic signature, which will be effective for all purposes; and
(k) Entire Agreement. This Agreement expresses the entire understanding and agreement between the parties and supersedes all prior oral or written agreements between the parties.