CalCom End User License Agreement (EULA)

CALCOM SOFTWARE SOLUTIONS END USER LICENSE AGREEMENT

This Software License and Services Agreement (“Agreement”) is an agreement between Calcom Software Solutions Ltd. (“Calcom”) and you (both the individual installing the Product and any legal entity on whose behalf such individual is acting (“Customer”).

In consideration of the mutual covenants and promises contained in this Agreement, Calcom and Customer agree as follows:

1. For the purposes of this Agreement the terms “Product”, “Term of License”, shall have the meaning as described in Appendix A to this Agreement.
2. CalCom hereby grants to the Customer, on the terms and conditions hereinafter set forth, a non-exclusive, non-transferable, limited license to use the Product, exclusively for its own internal purposes for the Term of the License. “Product” shall also mean any updates thereof furnished by CalCom to the Customer, any related material, whether in machine readable, printed or other form, including but not limited to instructional and operations manuals. Under no circumstances shall Customer attempt, or permit others to attempt, to de-compile, disassemble or otherwise reverse engineer the Product.
3. The Customer is restricted to the specific corporation, or division thereof, designated as “Customer” at the outset of this Agreement. Customer does not include any affiliate of Customer unless otherwise stated in Appendix A. The license granted hereunder may under no circumstances be transferred, assigned or sub-licensed by Customer.
4. Title to the Product shall at all times remain exclusively with Calcom. Customer acknowledges that the Product, and the original and any copies thereof, in whole or in part, and all copyright, patent, trade secret, trademark and other intellectual property and proprietary rights which now or hereafter may exist therein, are owned by and remain the exclusive valuable property of Calcom and embody substantial creative efforts, ideas and expressions. The Product is protected by copyrights and other intellectual property laws and international treaties.
5. Customer shall include, and shall not alter or remove, any applicable copyright, patent, trade secret, trademark or other proprietary notices on any copies (in whatever form) of the Product and the packaging in which they may be contained.
6. The Product being licensed Customer is confidential and the property of Calcom. As such, Customer will prevent disclosure of any information with regard to such Product to any non-party except as expressly authorized in this Agreement.
7. The license granted hereunder shall expire after the Term of License. Calcom may terminate this Agreement at any time in the event Customer breaches its obligations, and fails to remedy this breach within ten (10) days of written notice. Immediately upon termination of this Agreement, Customer will either destroy or return the Product and all confidential information forthwith to Calcom with a statement certifying that no copies have been retained.
8. The Product may be copied by Customer in machine readable form in whole or in part only for backup or archive purposes and for purposes of installation on authorised workstations, provided that the above copies are made solely for the internal use of Customer. Customer shall not be entitled to produce copies of the Product for purposes of distribution to third parties by sale or other transfer of the ownership or by rental, lease or lending. Modifications of the Product, if needed, shall be performed solely by Calcom in accordance with the terms and in consideration as shall be specifically agreed and signed between the parties. For the removal of doubt, Customer shall not be entitled to perform any modification of the Product either itself or through third parties.
9. Calcom warrants that the Product will, upon delivery and for one (1) year thereafter, substantially conform to the description provided by Calcom in the Product user manual. Customer, acknowledges that Product is of such complexity that it may contain inherent defects and errors and the mere existence thereof shall not constitute a breach of this warranty. Calcom does not warrant, guarantee or make any representations regarding the use of, or the results of the use of the Product, and Customer relies on the Product and results therefore solely at its own risk.
10. As the sole and exclusive remedy for breach of the warranty contained in the preceding paragraph, Calcom will provide error correction to the Product according to the Terms in Appendix A. Calcom’s exclusive warranty and the remedy provided for breach thereof shall not apply to damage or deficiencies resulting from accident, alteration, modification, foreign attachments, misuse, tampering, negligence, improper maintenance, abuse, pursuant to this Agreement.
11. EXCEPT FOR THE EXPRESS WARRANTY STATED IN CLAUSES 9 AND 10 ABOVE, CALCOM AND/OR CALCOM SOFTWARE GRANT NO WARRANTIES WITH RESPECT TO THE PRODUCT, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE STATED EXPRESS WARRANTY, AND THE REMEDY PROVIDED FOR BREACH THEREOF, ARE IN LIEU OF ALL OTHER LIABILITIES OR OBLIGATIONS OF CALCOM (WHETHER SUCH LIABILITIES OR OBLIGATIONS WOULD ARISE UNDER THIS AGREEMENT OR OTHERWISE BY OPERATION OF LAW) FOR ANY DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, INSTALLATION, USE OR PERFORMANCE OF THE PRODUCT.
12. IN NO EVENT SHALL CALCOM BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION TO LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA), EVEN IF CALCOM HAVE BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY DETERMINATION THAT THE EXCLUSIVE REMEDY REFERRED TO IN CLAUSE 10 ABOVE FAILED OF ITS ESSENTIAL PURPOSE.
13. Without limiting the effect of the preceding clause, CalCom’ maximum liability for damages (including but not limited to liability arising out of contract, negligence, misrepresentation, strict liability in tort or warranty of any kind) shall not exceed the license fees actually paid to Calcom during the prior twelve-month period for the license to use the Product. The above limitations do not apply to direct personnel injury or death caused by Calcom gross negligence.
14. Calcom shall under no circumstances be liable to Customer for damages arising out of any claim (including, but not limited to, a claim for personal injury or property damage) made against Customer by any other person or party. Customer shall, at its cost and expense, defend, indemnify and hold Calcom harmless from and against any claim (including, but not limited to, a claim for personal injury or property damage) by any other person or party arising out of or in connection with the use of the Product to perform Customer’s applications.
15. Calcom will defend Customer, at its expense, against any claim that the Product, or the use thereof, constitute an infringement of a currently valid, effective United States patent, copyright or other intellectual property right (“Claim”’). Calcom’s obligations hereunder will only apply if Customer notifies Calcom promptly in writing as to any such claim; gives Calcom the right to control and direct the investigation, preparation, defence, trial and settlement of each such claim; and provides Calcom with information deemed necessary by Calcom in connection with the foregoing. Customer agrees to cooperate fully with Calcom in the defense and/or settlement of each such claim. Calcom agrees to indemnify Customer from and against all costs and expenses including, without limitation, reasonable legal fees and any damages finally awarded by a competent court, resulting from or arising out of a Claim. If Calcom receives notice of an alleged infringement or if the use of Product is prevented based on an alleged infringement, Calcom will have the right, at its option, to obtain for Customer the right to continued use of any such Product; substitute other comparable tool; or replace or modify such Product or its design so that it is no longer infringing.
    Notwithstanding anything to the contrary herein, the foregoing Section 15 states Calcom’s entire liability with respect to any claims of intellectual property infringements, and Customer’s sole and exclusive remedy with respect to any claims of infringement.
16. This Agreement will be governed and construed in accordance with the laws of the state of Israel. The competent courts the state of Israel shall have exclusive jurisdiction over all matters pertaining to this Agreement.
17. No failure or delay on the part of either party in exercising any right or remedy provided in this Agreement shall operate as a waiver thereof.
18. No modification, addition to, or waiver of any of the terms of this Agreement shall be effective unless in writing and signed by an authorized officer of Calcom.
19. If any of the provisions of this Agreement are invalid under any applicable statute or rule of law, they are, to that extent, deemed omitted.