This software license agreement ("Agreement") is made and entered into this day of (the "Effective Date") by and between the Micronoesis Ltd. ("Licensor") at 73 Park Lane, Croydon, Surrey CRO 1JG, UK, and ("Licensee"), at
By signing this agreement, you agree to the following terms and conditions governing your use of Micronoesis Ltd.’s online and offline services (“zAppDev Technology”). As used in this agreement, the terms "you" or "your" all refer to the person using the service in any way. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and any person to which the entity permits access and use of Micronoesis Ltd.’s services in any way, to these terms and conditions, in which case the terms "you" or "your" shall refer to such entity. References to Micronoesis Ltd carry forward to any company that acquires the rights to zAppDev Technology.
Subject to the terms and conditions of this Micronoesis License Agreement, Micronoesis Ltd ("Micronoesis") will provide a web-based service that allows you to set up an account (a "User Account") to create , change and test applications ("Your Applications") and download the source code through remote access to Micronoesis’ proprietary software (the "zAppDev Technology"). The terms of this Agreement refer to only one User Account for the use of one access point at any one time. LICENSE GRANTS.
1.1 Your Responsibilities and Rights.
1.1.1. You are responsible for all activity occurring under your User Account and will abide by all applicable local, national and foreign laws, treaties and regulations in connection with your use of the zAppDev Technology, including those related to data privacy, international communications and the transmission of technical or personal data. You will: (i) notify Micronoesis immediately of any unauthorized use of any password or user identity or any other known or suspected breach of security; (ii) report to Micronoesis immediately and use reasonable efforts to stop immediately any copying or distribution of zAppDev Technology that is known or suspected by you; and (iii) not impersonate another Micronoesis user or provide false identity information to gain access to or use the zAppDev Technology.
1.1.2. The source code for your Applications and the data that you use to test Your Applications when using the zAppDev Technology per the terms of this Agreement will be considered your personal property. Except as may be required by applicable law or clause 1.3, no party will be permitted to access such personal property. You, not Micronoesis, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or the right to use any of the data, information or material that you incorporate or use to test Your Applications.
1.1.3. We encourage you to at least monthly advise Micronoesis in writing of your view of the advantages and disadvantages of using zAppDev Technology as compared to alternative technologies that you use or have used and will provide Micronoesis after one month with a reference as to the benefits of using the technology.
1.2. Restrictions on Use.
1.2.1. Your license to use the zAppDev Technology to create Your Applications is limited to your use only and cannot be shared with or used by any third party without the written permission of Micronoesis Ltd. You will not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the zAppDev Technology and/or your User Account in any way; (ii) modify or make derivative works based upon the zAppDev Technology; (iii) create Internet "links" to the zAppDev Technology or "frame" or "mirror" any content on any other server or wireless or Internet-based device except as permitted by the zAppDev Technology; or (iv) disassemble, reverse engineer, analyze, decompile, modify, convert or translate the zAppDev Technology or apply any procedure or process to the zAppDev Technology in order to: (a) build a competitive product or service; (b) build a product using similar ideas, features, functions of the zAppDev Technology; or (c) copy any ideas, code, software engineering practices and techniques, features or functions of the zAppDev Technology.
1.2.2. You may use the zAppDev Technology only for your internal business purposes and will not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the zAppDev Technology or the data contained therein; or (v) attempt to gain unauthorized access to the zAppDev Technology or its related systems or networks.
1.3. zAppDev Ownership. This Agreement confers only the right to use the zAppDev Technology, while this Agreement and the specified license(s) are in effect and it does not convey any rights of ownership in or to the zAppDev Technology.
1.4. Micronoesis Access to Your Applications. In the event, upon Micronoesis’ investigation, Micronoesis discovers any significant problem(s) with Your Applications and/or User Account, Micronoesis may take offline Your Application and/or User Account without your prior notice or permission, until the problem is cured to the satisfaction of Micronoesis.
2.2. Micronoesis’ Intellectual Property Rights. All rights, title and interest, including without limitation any copyright, patent, trade secret or other intellectual property right in the zAppDev Technology and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the zAppDev Technology will remain the sole property of Micronoesis . Any services provided to you under this Agreement, including methods, processes, notes, designs, code, documentation, memoranda, and other data or materials that are prepared in the performance of such services hereunder, and all right, title and interest in the foregoing, will belong to Micronoesis only.
3.1. Representations. Each party represents to the other that it has: (i) the legal power and authority to enter into this Agreement; and (ii) not previously entered into any agreement or understanding which conflicts with any rights or obligations set forth in this Agreement
3.1.1. Your Representations. You represent and warrant that all information provided by you in connection with your registration is accurate and reliable, that you have not falsely identified yourself nor provided any false information to gain access to the zAppDev Technology and that your use of the zAppDev Technology and Your Applications do not directly or indirectly infringe the legal rights of a third party.
3.1.2. Micronoesis Representations. Micronoesis represents that it: (i) has the right to license the zAppDev Technology; and (ii) there is no claim pending or, to Micronoesis’ knowledge, threatened against Micronoesis regarding ownership of the zAppDev Technology or infringement by the zAppDev Technology of any European Union copyright, patent, trade secret or other intellectual property rights of any third party. Your sole remedy for breach of the representation in clause (ii) of this Subsection 3.1.2 will be as specified in Section 4 of this Agreement.
3.2. Disclaimer of Warranty. Micronoesis and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the zAppDev Technology or any content. Micronoesis and its licensors do not represent or warrant that: (i) the use of the zAppDev Technology will be secure, timely, uninterrupted or errorfree or operate in combination with any other hardware, software, system or data; (ii) the zAppDev Technology will meet your requirements or expectations or result in revenues or profits; (iii) any stored data will be accurate or reliable; (iv) the quality of any products, services, information, or other material purchased or obtained by you through the zAppDev Technology will meet your requirements or expectations; (v) errors or defects will be corrected; or (vi) the zAppDev Technology or the server(s) that make the zAppDev Technology available are free of viruses or other harmful components. The zAppDev Technology and all content is provided to you strictly on an "as is" basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third-party rights, are hereby disclaimed to the maximum extent permitted by applicable law by Micronoesis or its licensors.
5.1. Limitations of liability. In no event shall Micronoesis’ liability exceed the amounts actually paid by and/or due from you in the twelve (12) month period immediately preceding the event giving rise to such claim. You expressly understand and agree that Micronoesis and its licensors will not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Micronoesis has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the service; (ii) the cost of procurement of substitute goods and service resulting from any goods, data, information or service purchased or obtained or messages received or transactions entered into through or from the zAppDev Technology; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the zAppDev Technology; or (v) any other matter relating to the zAppDev Technology. You also agree that Micronoesis will not be liable for any (a) interruption of business, (b) access delays or access interruptions to this site or the web site(s) your access through the zAppDev Technology; (c) data non-delivery, mis-delivery, corruption, destruction or other modification; (d) unauthorized access to data entered in, or breach of any security mechanisms utilized in, the zAppDev Technology or in any restricted field therein; or (e) events beyond Micronoesis’ reasonable control.
5.2. Internet delays. Micronoesis’ services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Micronoesis is not responsible for any delays, delivery failures, or other damage resulting from such problems.
6.1. Modifications to the zAppDev Technology. Micronoesis reserves the right at any time and from time to time to modify the zAppDev Technology (or any part thereof). Should Micronoesis choose to permanently discontinue the zAppDev Technology , Micronoesis : (i) will send notification to your User Account via e-mail at least sixty (60) days prior to such discontinuance; and (ii) will post notification of this decision on the Micronoesis web site at least thirty (30) days prior to such discontinuance. In such instance, you will be responsible for retrieving your data from the zAppDev Technology during that sixty (60) day period. You agree that Micronoesis will not be liable to you or to any third party for any modification, suspension or discontinuance of the zAppDev Technology , or for any resulting loss or destruction of Your Applications that you place on the zAppDev Technology. Micronoesis may specify from time to time the version(s) of related products required in order to use the zAppDev Technology (e.g. supported browser versions).
6.2. Modifications to this Agreement. Micronoesis may periodically change the terms of this Agreement. In the event Micronoesis modifies this Agreement, Micronoesis will post it to the Micronoesis web site and promptly thereafter, notify your User Account via e-mail that such posting has been made. Your continued use of any of the zAppDev Technology after such modification will constitute your acceptance of this Agreement with the new modifications. If you do not agree to any of such changes, you may terminate this Agreement and immediately cease all access and use of the zAppDev Technology. You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to this Agreement. In addition, Micronoesis may at any time introduce separate Agreements for users in certain jurisdictions and require users in these jurisdictions to agree to the separate Agreements. Micronoesis may also require such users to agree that termination of the separate Agreements and cessation of all access and use of the zAppDev Technology would be their exclusive remedy if they do not wish to comply with the separate Agreement.
7.1. Term. the Term of this Agreement will be effective upon signing and thereafter will continue until terminated as specified below. . The following Sections shall survive the termination and/or expiration of this Agreement: Sections 4 (Indemnification), 5 (Limitations of Liability), 7 (Termination), 8 (Confidential Information) and 10 (General Terms).
8.1.a. Micronoesis Confidential Information. The term "Micronoesis Confidential Information" will include any business, operational or technical information provided to you by Micronoesis hereunder that is marked or otherwise identified as confidential or proprietary, or that you know or should know is confidential or proprietary. You acknowledge that Micronoesis Confidential Information contains valuable and confidential information that is proprietary to Micronoesis and constitutes trade secrets and unpublished copyrighted material of Micronoesis.
8.2. Exclusions. Confidential Information will not include any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by employees of the receiving party without use or reference to the Confidential Information of the other party; (iii) is disclosed to the receiving party by a third party that, to the receiving party's knowledge, was not bound by a confidentiality obligation to the other party; or (iv) is demanded by a lawful order from any court or any body empowered to issue such an order. Each party agrees to notify the other promptly of the receipt of any such order, and to provide the other with a copy of such order and a reasonable opportunity to seek protective measures for the information demanded.
8.3. Privacy and Security. By providing Micronoesis Your email address You consent to our using the email address to send You Service-related notices, including any notices required by law, changes to features of the Service and special offers. Micronoesis’ implementation, development and operations teams shall have the right to access and use Your account information, and Customer Data for the purpose of delivery of the Service, respond to service or technical problems, on Your request, or to provide Professional Services. Micronoesis shall be entitled to change the account, access and identification codes assigned.
If you choose to invite others to Micronoesis’ Platform account or project within your organization, we will ask you for the other user’s email address. We will automatically send him/her an email inviting him/her to visit the Micronoesis site to create their account and join your project. Micronoesis stores this information for the sole purpose of sending this one-time email and tracking the success of our referral program.
Neither Agreements nor (the rights delivered from) this End User Software License Agreement may be transferred or assigned by You without the prior written approval of Micronoesis. Subject to the provisions of the Software Development Agreement signed between the parties, the obligations arising from this End User Software License Agreement and/or Agreements may be assigned by Micronoesis without notice to You and without Your consent to a legal entity either owned or directly controlled by Micronoesis or by the proprietor of the I.P rights of the ZappDev technology. Any transfer or assignment in violation of this section shall be null and void. Any actual or proposed change in control of You that results or would result in a direct competitor of Micronoesis directly or indirectly owning or controlling 50% or more of You shall entitle Micronoesis to terminate the Agreement or (any rights delivered from) this End User Software License Agreement for cause immediately upon written notice.
10.1. Local Laws
Micronoesis and its licensors make no representation that the zAppDev Technology is appropriate or available for use outside the European Union. If you use the zAppDev Technology from outside the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Your Application contrary to United States, Swiss or European Union (including European Union Member States) law is prohibited.
10.2. Notices. Micronoesis may give notice by means of a general notice on the zAppDev Technology website, electronic mail to your email address on record in your User Account information, or by written communication sent by first class mail or pre-paid post to your address on record in your User Account information. Such notice will be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Micronoesis at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail to Micronoesis’ addresses on its website.
10.3. Assignment. This Agreement may not be assigned by you without the prior written approval of Micronoesis but may be assigned without your consent by Micronoesis to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section will be void.
10.4. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the United Kingdom without regard to any contrary conflicts of law principles. All legal actions arising under this Agreement will be initiated and maintained in the courts in London, United Kingdom. Both parties hereby irrevocably consent to such jurisdiction and venue.
10.5. Lawyers' Fees and Costs. The prevailing party in any legal action or arbitration relating to this Agreement will be entitled to recover its lawyers' fees and litigation costs and expenses incurred in connection with such action or arbitration as part of the same proceeding.
10.6. Severability. In the event that any provision of this Agreement is found invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this Agreement will remain in full force and effect.
10.7. Entire Agreement; Amendments. This Agreement constitutes the complete agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous discussions, representations, and proposals, written or oral, with respect to the subject matters discussed herein No modification of this Agreement will be effective unless contained in writing and signed by an authorized representative of each party. Notwithstanding applicable law, electronic communications will not be deemed signed writings.
10.8. Waiver. The failure of a party to prosecute its rights with respect to a breach hereunder will not constitute a waiver of the right to enforce its rights with respect to the same or any other breach.