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LICENSE
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SOFTWARE EVALUATION LICENSE AGREEMENT
This Software Evaluation License Agreement ("Agreement") is made and entered
into
BY AND BETWEEN:
(1) TON DEV SOLUTIONS LTD , a company incorporated under the laws of British
Virgin Islands, whose registered office is at Ground Floor, Coastal Building
Wickhams Cay II, Road Town, P.O. Box 2136, Carrot Bay VG 1130, British Virgin
Islands ("TON DEV"); and
(2) Any purchaser or user of TON DEV products and services that accepts the
terms of this Agreement ("Licensee").
Each of TON DEV and Licensee being a "Party" and together TON DEV and Licensee
are the "Parties".
WHEREAS, TON DEV has developed the Software which is of significant commercial
value for TON DEV and, therefore, TON DEV now is in the process of the Software
licensing policy formation, including developing of terms and conditions for
paid licenses to the Software use; and
WHEREAS, while TON DEV is in the process of the Software licensing policy
formation, TON DEV has an intention to allow the Licensee to evaluate the
Software for free, so that the Licensee may decide on whether to purchase a
paid license for the Software; and
WHEREAS, the Licensee wishes to evaluate the Software and thereby has agreed
to be licensed to use such intellectual property, pursuant to the terms of
this Agreement,
THE PARTIES HEREBY AGREE as follows:
1. Definitions and Interpretation
1.1. In addition to the definitions contained elsewhere in the text of this
Agreement, the following terms and expressions shall have the following
meaning:
"Damages" means damages, losses, liabilities, costs or expenses of any kind,
whether direct or indirect, consequential, compensatory, incidental, actual,
exemplary, punitive or special and including, without limitation, any loss of
business, revenues, profits, data, use, goodwill or other intangible losses,
including but not limited to attorneys’ fees and litigation costs.
"Disputes" has the meaning set out in Article 11.2.
"Documentation" means any and all written or electronic information provided by
TON DEV to the Licensee that describes or depicts the form, fit or function of
the Software. Documentation is considered part of the Software.
"Evaluation Term" has the meaning set out in Article 2.2.
"Feedback" has the meaning set out in Article 6.1.
"Notices" has the meaning set out in Article 13.1.
"Intellectual Property Rights" means all patent rights, copyright rights, moral
rights, trade secret rights, rights to trademarks and service marks, know-how,
mask works and all other intellectual and industrial property rights, whether
or not registered or perfected, anywhere in the world, and all registrations,
initial applications, renewals, extensions, continuations, divisions or
reissues for any of the foregoing.
"Software" means the object code, open source, docker images, containers or
other versions of TON DEV's software. The Software includes any applicable
Documentation, as well as any updates to the Software that TON DEV may provide
to the Licensee under this Agreement.
1.2. In this Agreement unless the context indicates otherwise or the
contrary is expressly stated:
1.2.1. references to "Articles" are references to articles of this Agreement;
1.2.2. references to "Schedules" are references to schedules of this
Agreement;
1.2.3. references to "this Agreement" are references to this Agreement, all
its Schedules and additional agreements hereto;
1.2.4. references to the singular include references to the plural and vice
versa;
1.2.5. references to the one gender include references to other genders;
1.2.6. a reference to a person includes a reference to any individual, body
corporate (wherever or however incorporated or established), association,
partnership, government, state agency, public authority, joint venture, works
council or other employee representative body in any jurisdiction and whether
or not having a separate legal personality; and
1.2.7. a reference to a person includes a reference to that person's legal
personal representatives, successors, permitted assigns and permitted nominees
in any jurisdiction and whether or not having separate legal personality.
1.3. The headings in this Agreement are inserted for convenience and
reference purposes only and do not affect its interpretation.
1.4. The words "hereof", "herein", "hereunder" and "hereby" and words of
similar import, when used in this Agreement, shall refer to this Agreement as
a whole and not to any particular provision of this Agreement.
1.5. Wherever the word "include", "including", or "in particular" is used in
this Agreement, it shall be deemed to be followed by the words "without limitation".
2. License Grant
2.1. TON DEV hereby grants to the Licensee a worldwide, limited, personal,
non-transferable, non-exclusive, revocable license to install, execute, and use
the Software during the Evaluation Term, in accordance with the Documentation,
solely for the purpose of internal testing and evaluating whether to purchase
a paid license for the Software.
2.2. The license to use the Software is effective until terminated by
TON DEV's sole discretion ("Evaluation Term"), which may occur without notice
to the Licensee. The license hereunder will terminate automatically if the
Licensee fails to comply with any of the limitations or other requirements
described herein.
2.3. No right is granted to the Licensee, either directly or indirectly, to
commercially exploit or otherwise use the Software for any purpose other than
that expressed herein.
2.4. The license to use the Software during the Evaluation Term granted
herein is personal to the Licensee. In the event that the Licensee is a
division or subsidiary of a larger organization or the affiliate of a smaller
organization, additional licenses for evaluation by the Licensee’s subdivisions
or affiliates must be separately obtained from TON DEV.
3. Permitted Use of Software
3.1. The following rights are granted to the Licensee under this Agreement:
3.1.1. to install, execute and use the Software for internal testing and
evaluating purposes;
3.1.2. to make enhancements, patches, workarounds, bug fixes or other
modifications to the Software, solely for internal testing of the Software. Any
modifications and/or improvements to the Software does not grant any
Intellectual Property Rights to the Licensee; and
3.1.3. to make a reasonable number of copies of the Software as required for
backup and archival purposes only, provided that the Licensee reproduces all
copyright and other proprietary notices that are on the original copy of the
Software.
3.2. Except as expressly provided herein, the Licensee shall not:
3.2.1. sell, sublicense, rent, lend, distribute or otherwise transfer the
Software or any derivative works thereof;
3.2.2. reverse engineer, decompile, disassemble or attempt to derive the
source code, underlying ideas, algorithm or structure of the Software;
3.2.3. modify, translate or otherwise create any derivative works of the
Software;
3.2.4. use components containing in the Software image outside of the
resulting container;
3.2.5. host the Software for the benefit of third parties;
3.2.6. modify, obscure, or delete any proprietary rights notices included in or
on the Software or the Documentation;
3.2.7. use the Software for the purpose of developing competing products or
technologies or assisting a third party in such activities; or
3.2.8. use or copy the Software in a manner not expressly permitted by this
Agreement.
3.3. The Licensee shall take all reasonable precautions to prevent third
parties from using the Software in any way that would constitute a breach of
this Agreement including, without limitation, such precautions as the Licensee
would otherwise take to protect its own proprietary software or hardware or
information.
3.4. The Licensee agrees that the Software may transmit usage data to
TON DEV via the Internet, and the Licensee gives TON DEV permission to use that
data both for TON DEV's internal analytics purposes and to monitor the ways the
Licensee is using the Software.
4. No Fees for License
4.1. TON DEV shall not be entitled to any fees for the Licensee’s use of the
Software under this Agreement. Neither Party shall have any obligation with
respect to any further license of the Software or any other TON DEV’s products
and services.
5. No Obligatory Maintenance Support
5.1. The Software is in pre-release, beta form, and, therefore, the Licensee
acknowledges and agrees that:
5.1.1. the Software may not be fully functional, may contain errors or design
flaws, and may have reduced or different security, privacy, accessibility,
availability, and reliability standards relative to commercially provided
software and documentation;
5.1.2. use of the Software may result in unexpected results, loss of data,
project delays or other unpredictable Damage or loss;
5.1.3. the Software is not a supported product, and accordingly any use of the
Software shall be at Licensee’s own risk; and
5.1.4. each Party shall bear all of its own expenses associated with this
Agreement.
5.2. The Licensee is under no obligation to provide support for the Software
or to provide any patches, maintenance, updates or upgrades under this
Agreement. Unless patches, maintenance, updates or upgrades are provided with
their separate governing terms and conditions, they constitute the Software
licensed to the Licensee under this Agreement.
6. Feedback
6.1. During the term of this Agreement, the Licensee may provide TON DEV
with feedback, comments, or suggestions concerning the Software ("Feedback").
The Licensee acknowledge that TON DEV will own all right, title, and interest
in and to the Feedback, and the Licensee hereby irrevocably transfer and assign
to TON DEV all of Licensee’ rights, title and interest in such Feedback,
including all Intellectual Property Rights therein.
6.2. The Licensee acknowledges that TON DEV may or may not incorporate the
Feedback into the general release version of the Software at TON DEV’ sole
discretion.
7. Intellectual Property Rights
7.1. The Licensee acknowledges that any and all Intellectual Property Rights
in the Software, including any changes or improvements to Software, is and
shall remain the property of TON DEV. All rights not expressly granted under
this Agreement are reserved.
7.2. No title to the intellectual property in the Software is transferred to
the Licensee by this Agreement.
7.3. The Licensee shall not use the name, trade names or trademarks of
TON DEV or any of its affiliates in any advertising, promotional literature or
any other material, whether in written, electronic or other forms.
8. Open Source Software
8.1. The Software may contain open source components and the use thereof in
the Software may be subject to certain open source licenses. That it is the
Licensee’s responsibility to comply with the terms of all applicable open
source licenses when using the Software.
8.2. TON DEV makes no warranty, express or implied, including related to
title, non-infringement, merchantability and fitness for a particular purpose,
in respect of the use of any open source software.
9. Limitation of Liability
9.1. TON DEV, its affiliates and service providers, and their respective
officers, directors, agents, joint ventures, employees, and representatives
will not be liable for any Damages (even if TON DEV has been advised of the
possibility of such Damages), whether based on contract, tort, negligence,
strict liability, or otherwise, resulting from: (i) the use or the inability to
use the Software; (ii) any open source software incorporated in the Software,
or (ii) any matter relating to this Agreement and the transactions contemplated
herein.
9.2. The license to use the Software hereunder is granted on an "as is",
"as available" and "with all faults" basis and the Licensee accepts the license
exclusively at its own risk without any express or implied representations
and/or warranties of any kind by TON DEV.
9.3. TON DEV shall have no liability for any failure or delay resulting from
any condition beyond its reasonable control, including acts of Nature, labour
disputes or other industrial disturbances, electrical, telecommunications,
hardware, software or other utility failures, software or smart contract bugs
or weaknesses, earthquakes, storms, or other nature-related events, blockages,
embargoes, riots, acts or orders of government, acts of terrorism or war,
technological change, changes in interest rates or other monetary conditions,
and, for the avoidance of doubt, changes to any blockchain-related protocol.
9.4. To the fullest extent permitted by applicable law and without contrary
to the aforesaid, in no event will the aggregate liability of TON DEV, its
affiliates and service providers, and their respective officers, directors,
agents, joint ventures, employees, and representatives, whether in contract,
warranty, tort (including negligence, whether active, passive or imputed), or
other theory, arising out of or relating to this Agreement or the use of or
inability to use the Software, exceed 100 US dollars.
10. General Release
10.1. To the fullest extent permitted by applicable law the Licensee releases
TON DEV, its affiliates and service providers, and their respective officers,
directors, agents, joint ventures, employees, and representatives from
responsibility, liability, claims, demands, and/or Damages of every kind and
nature, known and unknown (including, claims of negligence), arising out of or
related to disputes between TON DEV and the Licensee or any third parties.
The Licensee expressly waives any statute or common law principles that would
otherwise limit the coverage of this release.
11. Governing Law and Dispute Resolution
11.1. This Agreement will be governed by and construed and enforced in
accordance with the laws of England and Wales, without regard to conflict of
law rules or principles (whether of England and Wales or any other
jurisdiction) that would cause the application of the laws of any other
jurisdiction.
11.2. The Parties shall cooperate in good faith to resolve any dispute
arising out of or in connection with this Agreement, including any question
regarding its existence, validity, interpretation, breach or termination, and
any non-contractual obligation or other matters arising out of or in connection
with it ("Disputes"). If the Parties are unable to resolve a Dispute within 45
days upon written Notice (claim) of such Dispute being received by a Party,
such Dispute shall be finally settled in arbitration proceeding as stipulated
in Articles 11.4-11.6.
11.3. Any Dispute is personal to TON DEV and the Licensee, will be resolved
solely through individual arbitration and will not be brought as a class
arbitration, class action, mass action, or any other type of representative
proceeding, including those involving the joinder of claims. There will be no
class arbitration or arbitration in which an individual attempts to resolve a
Dispute as a representative of another individual or group of individuals.
Further, a Dispute cannot be brought as a class or other type of representative
action, whether within or outside of arbitration, or on behalf of any other
individual or group of individuals.
11.4. Any Dispute shall be referred to and finally resolved by arbitration
under the Rules of the London Court of International Arbitration in force on
the date on which the arbitration is commenced, which Rules are deemed to be
incorporated by reference into this Article.
11.5. The tribunal shall consist of one arbitrator nominated by the London
Court of International Arbitration.
The seat of the arbitration shall be London, the United Kingdom. The language
of the arbitration shall be English.
Any award of the tribunal shall be final and binding from the day it is made.
11.6. The Parties agree to keep confidential all matters relating to the
arbitration, including related arbitration proceedings, to the greatest extent
practicable.
12. Term and Termination
12.1. The term of this Agreement will commence on the Effective Date and will
remain in effect until terminated.
12.2. The license granted hereunder will terminate on expiration of the
Evaluation Term.
12.3. Either Party may terminate this Agreement without cause upon 10
business days’ prior written notice. TON DEV may terminate this Agreement
without prior notice if the Licensee breaches this Agreement.
12.4. At termination of this Agreement, the Licensee shall cease all use of
the Software and destroy all copies, full or partial of the Software.
13. Notices
13.1. All notices, requests, claims, demands and other communications
concerning this Agreement ("Notices") that a Party hereto provides to the other
Party:
13.1.1. shall be in English; and
13.1.2. must be directed in accordance with the information on a contact person
and the email addresses, as stated in Schedule 2; and
13.1.3. shall be in writing and shall be sent by email to that Party's email
address.
13.2. Electronic delivery of the Notices via email will constitute good and
effective delivery when sent, regardless of whether a Party actually or timely
receive or access the Notices.
13.3. A Party must keep its e-mail address current with the other Party and
must notify the other Party immediately of any change in its e-mail address.
14. Confidential Information
14.1. Each Party undertakes to the other Party that it shall (and shall
procure that each person which is under its reasonable control) keep
confidential the terms of this Agreement and not make or permit any person to
make, any public announcement, communication or circular concerning the terms
or subject matter of this Agreement, or any ancillary matter, without the prior
written consent of the other Party, except as expressly permitted by this
Article 14.
14.2. Nothing in this Article 14 prevents disclosure of any information:
14.2.1. if such disclosure is required by law or any governmental or regulatory
authority, any securities exchange, or any court or other authority of
competent jurisdiction;
14.2.2. by any of the Parties to the extent that the information is in or comes
into the public domain other than as a result of a breach of any undertaking or
duty of confidentiality by that Party; and
14.2.3. by any of the Parties to that Party's professional advisors and
auditors, if such disclosure is reasonably necessary to advise on this
Agreement and the transaction contemplated by it as a whole, but before any
disclosure to any such person the relevant Party shall procure that it is made
aware of the terms of this Article 14 and shall procure that each such person
adheres to those terms as if it were bound by the provisions of this Article 14.
15. Miscellaneous
15.1. Entire Agreement. This Agreement constitutes the entire agreement
between the Parties relating to granting of the license hereunder. This
Agreement supersedes all prior or contemporaneous representations,
understandings, agreements, or communications between the Parties, whether
written or verbal, regarding the subject matter of this Agreement.
15.2. Severability. Should any provision of this Agreement, or any provision
incorporated into this Agreement in the future, be or become illegal, invalid
or unenforceable under the laws of any jurisdiction, the legality, validity or
enforceability in that jurisdiction of the other provisions of this Agreement
shall not be affected thereby and the affected provision shall be replaced by
the provision that would to the maximum extent resemble the deleted one.
15.3. Assignment. The Licensee shall not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of TON DEV.
TON DEV is entitled to assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of the Licensee.
15.4. No Waiver of Rights. Parties’ failure to exercise or enforce any right
or provision of this Agreement will not constitute a waiver of such right or
provision.
15.5. Third Party Rights. Except as otherwise provided herein, this Agreement
is intended solely for the benefit of TON DEV and the Licensee and is not
intended to confer third-party beneficiary rights upon any other person or
entity.
15.6. Variation. No amendment or variation of this Agreement shall be valid
or effective unless made in writing and signed by or on behalf of the Parties
or by their authorised representatives.
15.7. E-signing. This Agreement takes effect when you click an “Accept”
button or check box presented with these terms or, pass a YES statement to the
terms of this Agreement programmatically through the script or otherwise, or,
if earlier, when you use any of the Service Offerings (the “Effective Date”).