End User License Agreement
You must read this Product License Agreement (“Agreement”) carefully before completing your order for the Product. This Agreement sets out the terms and conditions on which Sweet Bananas licenses the Product to the Licensee. To complete your order for the Product, you must first scroll down to the end of this Agreement and accept these terms and conditions. You represent and warrant that you have authority to enter into this Agreement with Sweet Bananas on behalf of the Licensee, that you have read the terms and conditions set out herein and that the Licensee agrees to be bound by the terms and conditions. By ordering the Product you, on behalf of the Licensee, agree to be bound by the terms and conditions of this Agreement.
- Authorized Person means a licensed user of the Product for whom the Licensee has paid the License Fee to Sweet Bananas.
- Authorized Use means, the installation of the Product on a physical server located at the Authorized Site, and use of the Product by an Authorized Person at the Authorized Site for the Licensee’s internal business purposes in accordance with the terms of this Agreement.
- Authorized Site means the business premises of the Licensee from time to time.
- Product means each product to which this order relates, as selected by you, and includes any updates to or for the Product provided by Sweet Bananas to the Licensee from time to time.
- License Fee means the total amount paid and payable to Sweet Bananas by the Licensee for the Product from time to time.
- Licensee means the person, company, organization or other entity on whose behalf you are ordering the Product and entering into this Agreement.
- Term has the meaning given in clause 11 and includes any extension of the Term in accordance with clause 11.
- Support Plan means the defined support program that applies to the Product as detailed in the Sweet Bananas Product Support Plan document as amended by Sweet Bananas from time to time.
2. Grant of License
Subject to the terms of this Agreement, Sweet Bananas grants to the Licensee, and the Licensee accepts from Sweet Bananas a non-exclusive, non-transferable, non-sublicensable limited license to use the Product for the Authorized Use.
Licensee may make a limited number of copies of the Product as is strictly necessary for purposes of testing and internal development (“Non-Production Purposes“). For clarity, Licensee’s employees may use the Product for these Non-Production Purposes, and Licensee will be responsible for their compliance with this Agreement on all the same terms as for Authorized Persons, except that these users will not count as Licensee’s Authorized Persons If they are only using the Product for Non Production Purposes, and Licensee will not need to pay additional fees for these users.
3. No Warranty
To the extent permitted by law, and subject to clause 5, the Licensee acknowledges and agrees that: (1) Sweet Bananas gives no guarantee and makes no representation as to the correctness or completeness of the Product; and (2) the Product is provided on an “as is” 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.
4. Exclusion of Liability
To the extent permitted by law, and subject to clause 5, Sweet Bananas will not be liable to any person for any loss, damage, cost, expense or other claim (including, without limitation, consequential damages and loss of profits) in relation to the Product including, without limitation, arising from or relating to: (1) any use or reliance on a Product by the person; (2) any errors in and/or omissions from the Product and/or any information contained in the Product); or (3) any delay, interruption or other failure in the use or operation of the Product.
5. Implied Terms
If any law implies in this Agreement any term, condition or warranty which cannot be excluded or limited, then to the extent permitted by law, the liability of Sweet Bananas for breach of any such term, condition or warranty is limited to: (1) in the case of goods, at Sweet Bananas’s option (A) the re-supply of the goods, or of equivalent goods; or (B) the payment of the cost of having the goods supplied again; and (2) in the case of services, at Sweet Bananas’s option (A) the re-supply of the services; or (B) the payment of the cost of having the services supplied again.
6. Sweet Bananas’s Obligations
Sweet Bananas will provide the Licensee with basic technical support for the Product, as defined in the Support Plan as amended by Sweet Bananas from time to time, during the Term.
7. Licensee’s Obligations
The Licensee must at all times: (A) ensure that it permits only Authorized Persons to use the Product and only for the Authorized Use at the Authorized Site in accordance with the terms and conditions of this Agreement; (B) install all updates and enhancements which Sweet Bananas reasonably determines to be necessary to ensure the Licensee’s continued and effective use of the Product; (C) immediately advise Sweet Bananas in writing if the Licensee becomes aware of any unauthorized use of the Product by any person.
8. Unauthorized Use and Distribution
Where as a result of any deliberate or negligent act or omission by the Licensee, the Product is supplied to or used by any person (other than an Authorized Person) without the prior written consent of Sweet Bananas, Sweet Bananas will immediately have the right (in addition to any other right or claim that Sweet Bananas may have against the Licensee) to retroactively charge the Licensee (in addition to the Licence Fee and any other fees paid or payable by the Licensee under or in relation to this Agreement) a fee equal to the License Fee multiplied by the number of persons to or by whom the Product has been supplied or used without the prior written consent of Sweet Bananas (whether for gain or sale or otherwise).
9. Investigation of Unauthorized Use and Distribution
Where, after due investigation, Sweet Bananas reasonably suspects that a Product has been supplied to or used by any person (other than an Authorized Person) without Sweet Bananas’s prior written consent, the Licensee must, on Sweet Bananas’s request, provide Sweet Bananas with an unqualified certificate executed by the Licensee’s auditor at the Licensee’s cost specifying the total number and type of users of the Product so that Sweet Bananas may ascertain whether it may exercise its rights under clause 8.
10. Licensee’s Restrictions
Except to the extent that any laws prevent Sweet Bananas restraining the Licensee from doing so, the Licensee must not without the prior written consent of Sweet Bananas (which may be withheld and which may include certain conditions, at Sweet Bananas’s discretion): (A) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, the Product or otherwise attempt to derive, the source code of the Product; (B) sell, 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 (B) is intended to prevent an Authorized Person undertaking Authorized Use at the Authorized Site); (C) use the Product to provide or operate Application Service Provider (ASP), service bureau, marketing, training, outsourcing, or consulting services, or any other commercial service related to the Product; (D) use the Product to develop a product which is competitive with the Product; (E) vary or amend the Authorized Use without Sweet Bananas’s prior written approval; (F) publish, promote, broadcast, circulate or refer publicly to the Sweet Bananas name or logo, without the prior written consent of Sweet Bananas; (G) commit any act or omission the likely result of which is that Sweet Bananas’s reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on Sweet Bananas’s interests; or (H) export the Product outside the country in which the Authorized Site is located. In addition, the Licensee acknowledges that the Product includes license protection mechanisms that are designed to manage and protect the intellectual property rights of Sweet Bananas. Licensee must not modify or alter those features or otherwise attempt to defeat or circumvent the Product use rules that the license protection mechanisms are designed to enforce.
This Agreement commences from the date on which Sweet Bananas provides notice to the Licensee of the license keys for the Product and will continue in full force and effect for the period during which the Licensee continuously pays the License Fee for such Product(s) (“Term”), unless earlier terminated in accordance with clause 12.
This Agreement may be terminated by either party if the other party commits a material breach, which includes, but is not limited to, a breach of any one of clauses 2, 7, 8, 9, 10 or 13.
13. Intellectual Property
All right, title and interest, including intellectual property rights, in relation to the Product (including any trade marks contained in or on the Product) are the property of Sweet Bananas and Sweet Bananas is entitled to take whatever action it may decide in order to protect its rights, title and interest, including intellectual property rights, in relation to the Product. No title, ownership, copyright or intellectual property rights in the Product are transferred by this Agreement to Licensee. The Licensee must not remove or alter any trade mark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Product. All rights not specifically granted in this Agreement, are reserved by Sweet Bananas.
14. Information Collection for Specific Purposes
15. Publicity Rights
The Licensee grants Sweet Bananas the right to identify the Licensee as a customer on Sweet Bananas’s website or other promotional material in relation to the Product. Within thirty (30) days of the Licensee’s written request, Sweet Bananas will remove the Licensee’s name from its website customer list and will make no further reference to the Licensee in any future material promoting Product without the Licensee’s prior consent.
16. No assignment
This Agreement may not be assigned by the Licensee without the prior written consent of Sweet Bananas.
Payments made by the Licensee under this Agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Sweet Bananas, the Licensee must pay to Sweet Bananas the amount of such taxes or duties in addition to the License Fee under this Agreement.
A notice given by a party under or in relation to this Agreement will be deemed as having been given: (A) if sent by e-mail, at the time at which it is sent, unless an electronic message is delivered in response indicating that delivery of the e-mail has failed or has been delayed; (B) if sent by facsimile, upon production of a correct and complete transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient; and (C) if sent by hand, when its delivery is confirmed by a signature on behalf of the recipient;
18. Entire agreement
This Agreement constitutes the entire agreement between the parties in relation to its subject matter. No understanding, arrangement or provision not expressly set out in this Agreement will bind the parties. All correspondence, negotiations and other communications between the parties in relation to the subject matter of this Agreement which precede this Agreement are superseded by and merged in it.
This Agreement may not be varied except in writing signed by a duly authorized representative of each party.
The failure by Sweet Bananas at any time to enforce any of its powers, remedies or rights under this Agreement will not constitute a waiver of such powers, remedies or rights or affect Sweet Bananas’s rights to enforce those powers, remedies or rights at any time.
If any provision of this Agreement is prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
22. Governing Law
This Agreement is governed by the laws of Spain and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Spain.