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PLEASE READ THIS END-USER LICENSE AGREEMENT (“EULA” OR “AGREEMENT”) CAREFULLY BEFORE DOWNLOADING, ACCESSING, INSTALLING OR USING THE TUKI UC platform AND DOCUMENTATION (“SOFTWARE PRODUCT(S)”).
BY DOWNLOADING, ACCESSING, INSTALLING OR USING TUKI UC platform AND DOCUMENTATION YOU AGREE TO THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT DOWNLOAD, INSTALL, ACCESS OR USE THE SOFTWARE. THIS EULA CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY AND EXCLUSIVE REMEDIES. THE PROVISIONS BELOW FORM THE ESSENTIAL BASIS OF OUR AGREEMENT.
This End-User License Agreement is a legal agreement between (a) CUSTOMER (either an individual or a single entity) and (b) TUKI UC platform (“TUKI UC platform”) that governs your use of any Software Product, installed or made available by TUKI UC platform. The term “Software Product” means TUKI UC platform software and may include associated media, printed materials or electronic documentation.
Subject to the terms and conditions set forth in this Agreement, TUKI UC platform grants CUSTOMER a nonexclusive, nontransferable, non-sublicensable and revocable right and license to install and use an object code version of the Software Product in accordance with the related documentation solely for its own internal business operations. TUKI UC platform reserves all rights in the Software Product not expressly granted to CUSTOMER under this Agreement.
Except in the case of a particular configuration for several servers, this license is intended to be used on a single specified server on which the Software Product is installed. This server, identified at the implementation phase, is registered in TUKI UC platform’s database and only this server may be used to manage the implementation of the Software Product and the database. The CUSTOMER must give prior written notification, receipt of which must be acknowledged by TUKI UC platform, of any change in the server. This license is personal. At any moment there is only one license holder who is also the only holder of the copy of the object code passed on in pursuance of this Agreement and of any subsequent copies made under the conditions set out below.
The CUSTOMER is permitted to make two copies of the Software Product and its documentation as backups, to carry out tests or for archiving purposes. The statement of copyright must be reproduced on each copy and each saved copy in such a way that the CUSTOMER is able to justify its existence in compliance with the provisions of this Agreement.
All copies of the Software Product, in whatever form are the exclusive intellectual property of TUKI UC platform.
The source code of the Software Product shall be deposited within a French escrow agent called l’Agence Pour la Protection des Programmes (APP). The CUSTOMER may have access to the source code in case of amicable or judicial winding-up of TUKI UC platform without resumption of TUKI UC platform’s obligations by a third-party in respect of the use of the Software Product. In this case, the CUSTOMER will have access to the source code solely for the needs set out above, detailed in its claim to the Agence pour la Protection des Programmes. In pursuance of its regulations, the board of arbitration will be called to examine both sides to ascertain the validity of this claim. The APP will only pass on to the CUSTOMER the parts of the Software Product concerned. The CUSTOMER, in temporary possession of the Software Product source codes, will ensure that their use is solely reserved to the needs defined in its claim and will treat the source code as a confidential document.
The Software Product is licensed, not sold, to CUSTOMER by TUKI by Corrent company. TUKI UC platform and its suppliers own all right, title and interest in and to the Software Product and reserve all rights not expressly granted to CUSTOMER in this EULA. CUSTOMER agrees to refrain from any action that would diminish such rights.
To use a Software Product identified as an upgrade, CUSTOMER must first be licensed for the original Software Product identified by TUKI UC platform as eligible for the upgrade. After upgrading, CUSTOMER may no longer use the original Software Product that formed the basis for your upgrade eligibility.
This EULA applies to updates or supplements to the original Software Product provided by TUKI UC platform unless TUKI UC platform provides other terms along with the update or supplement which, in case of conflict with the terms of this EULA, will prevail.
CUSTOMER agrees that only up to that number of individuals (“End Users”) for whom it has purchased the requisite licenses in accordance with this Agreement and the applicable order, may access and use the Software. CUSTOMER hereby agrees it is liable for the actions of all End Users and is responsible for ensuring each End User complies with the terms and conditions set forth in this Agreement. Except as expressly permitted by this EULA, CUSTOMER may not:
(i) translate, modify the Software Product nor allow a third party to do so;
(ii) render or attempt to render inoperative any security measure integrated in the Software Product;
(iii) lease, loan, resell, sublicense, or otherwise distribute a Software Product;
(iv) use a Software Product to provide or operate Application Service Provider (ASP), service bureau, marketing, training, outsourcing services, or consulting services or any other commercial service related to the Software Products;
(v) use a Software Product to develop a product which is competitive with any of the Software Products;
(vi) permit third-party access to, or use of, the Software Products, except as expressly permitted herein;
(vii) attempt to create, derive, obtain the source code of the Software Product, or create a source code equivalent of or derivative of the Software Product, or cause or permit any third party to do so;
Upon Editor’s approval CUSTOMER is authorized to delegate the administration of the Software Product to a third party.
CUSTOMER shall notify TUKI company if CUSTOMER becomes aware of any unauthorized third-party access to, or use of, a Software Product.
All intellectual property rights in the Software Product and user documentation are owned by TUKI UC platform or its suppliers and are protected by law, including but not limited to the Republic of France copyright, trade secret, and trademark law, as well as other applicable laws and international treaty provisions. The structure, organization, and code of the Software Product are valuable trade secrets and confidential information of
TUKI UC platform and its suppliers. CUSTOMER shall not remove any product identification, copyright notices or proprietary restrictions from the Software Product.
The Software Product may be provided with open source software. CUSTOMER’s use of such open source software must be in compliance with the terms of the applicable open source license. Except as otherwise set forth in the applicable open source license(s), the open source software provided with the Services is provided “as is” and without representation or warranty of any kind. TUKI UC platform will not indemnify the CUSTOMER against any claim that open source software infringes a third party’s intellectual property right nor will TUKI UC platform be liable for any damages arising out of your use of the open source software.
The Software Product may also include components licensed from third parties (“Third Party Materials”). CUSTOMER agrees: (a) to use the Third-Party Materials solely with the Software Product and in the form provided by TUKI UC platform; and (b) not to modify or attempt to gain direct access to the Third-Party Materials. CUSTOMER acknowledges and agrees that the owner(s) of the Third-Party Materials retain all ownership and intellectual property rights therein.
CUSTOMER may not reverse engineer, decompile, disassemble or create derivative works of the Software Product, except and only to the extent that the right to do so is mandated under applicable law. Nothing contained herein shall be construed, expressly or implicitly, as transferring any right, license or title to CUSTOMER other than those explicitly granted under this EULA. Unauthorized copying of the Software Product or failure to comply with the above restrictions will result in automatic termination of this Agreement and will constitute immediate, irreparable harm to TUKI UC platform for which monetary damages may be an inadequate remedy, in which case injunctive relief will be an appropriate remedy for such breach.
This EULA is effective unless terminated.
Without prejudice to the foregoing, the license shall be terminable by TUKI UC platform on written notice if: (a) the continued use or possession of the Software Product by CUSTOMER infringes TUKI UC platform’s or a third party’s rights; or (b) CUSTOMER commits a material or persistent breach of this EULA which CUSTOMER fails to remedy (if remediable) within 10 days of written notice from TUKI UC platform.
Without limiting its other rights or remedies, TUKI UC platform may terminate this EULA with immediate effect on notice to the CUSTOMER if false or misleading information is provided in respect of the End Users. Upon termination of this EULA for any reason: (a) all rights granted to the CUSTOMER under this EULA shall cease; (b) the CUSTOMER must cease all activities authorized by this EULA; (c) CUSTOMER must immediately pay to TUKI UC platform any sums due to TUKI UC platform under this EULA; (d) the CUSTOMER must immediately delete or remove the Software Product from all computer equipment in the CUSTOMER’s possession, and at TUKI UC platform’s option, immediately destroy or return to TUKI UC platform all copies of the Software Product and any TUKI UC platform materials and documentation and , in the case of destruction, certify to TUKI UC platform that the CUSTOMER has done so; (e) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of this EULA which existed at or before the date of termination or expiry. Clauses that expressly or by implication have effect after termination shall continue in full force and effect.
CUSTOMER agrees that TUKI UC platform and its affiliates or suppliers may use technical information CUSTOMER provides in relation to support services related to the Software Product. TUKI UC platform and its suppliers agree not to use this information in a form that personally identifies any natural persons, except to the extent necessary to provide such services. In such case, personal data will be processed as follow.
9.1 Under this article, the following capitalized terms, whether in the singular or the plural, shall have the meaning assigned below:
“Applicable Data Protection Regulation” refers to (i) the EU Directive 95/46 on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (EU Data Protection Directive);
(ii) European Regulation 2016/679 relating to the processing of Personal Data (GDPR); and (iii) any regulation law or enactment relating to the processing of Personal Data applicable during the term of the Agreement.
“Data Controller” means the CUSTOMER which determines the purposes and means of the processing of Personal Data.
“Data Processor” means TUKI UC platform acting on behalf of a Data Controller.
“Personal Data” refers to any information relating to a Data Subject.
“Data Subject” means an identifiable natural person, who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Personal Data Breach” refers to a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
“Transfer of Personal Data” means the processing, material transfer or distant access to Personal Data by, from, or to third-party entities established out of the European Economic Area (EEA).
9.2 In order to perform the Agreement, the TUKI UC platform may be required to process Personal Data concerning the CUSTOMER, the customers of the CUSTOMER or employees of the CUSTOMER or customers of the CUSTOMER. TUKI UC platform and CUSTOMER shall comply with the Applicable Data Protection Regulation that may apply to the performance of the Agreement.
The CUSTOMER shall act as a Data Controller.
TUKI UC platform, acting as a Data Processor, shall:
– Process Personal Data on behalf of the CUSTOMER to the extent, and in such a manner as is necessary for the purposes of the Agreement;
– Process the Personal Data only on documented instructions from the Controller, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Union or Member State law to which the Processor is subject. In such a case, the Processor shall inform the Controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
– Ensure that persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
– Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk;
– Refrain from engaging another processor without prior specific or general written authorization of the Controller. When engaging another processor, TUKI UC platform shall ensure that the same data protection obligations as set out in this Agreement shall be imposed on that other processor by way of a contract or other legal act, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the Applicable Data Protection Regulation, it being understood that where that other Processor fails to fulfil its data protection obligations, TUKI UC platform shall remain fully liable to the Controller for the performance of that other processor’s obligations;
– Taking into account the nature of the processing, assists the Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising the Data Subject’s rights;
– Assist the Controller in ensuring compliance with its obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing and the information available to the Processor;
– At the choice of the Controller, delete or return all the Personal Data to the Controller after the end of the provision of services relating to processing, and delete existing copies unless Union or Member State law requires storage of the Personal Data;
– Make available to the Controller all information necessary to demonstrate compliance with the obligations laid down in this article.
TUKI UC platform warrants the CUSTOMER that the Software Product will comply with the features outlined in its documentation.
TUKI UC platform does NOT warrant that the functions contained in the Software Product will meet your requirements or that the operation of the Software Product will be uninterrupted or error-free. Computer software is inherently subject to bugs and potential incompatibility with other computer software and hardware. CUSTOMER should not use the Software Product for any applications in which failure could cause any significant damage or injury to persons or tangible or intangible property.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TUKI UC platform AND ITS SUPPLIERS PROVIDE THE SOFTWARE PRODUCT “AS IS” AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NONINFRINGEMENT, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND OF LACK OF VIRUSES ALL WITH REGARD TO THE SOFTWARE PRODUCT. NO ORAL
OR WRITTEN INFORMATION OR ADVICE GIVEN BY TUKI UC platform OR A TUKI UC platform AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. IN NO EVENT DOES TUKI UC platform PROVIDE ANY WARRANTY OR REPRESENTATIONS WITH
RESPECT TO ANY THIRD-PARTY HARDWARE OR SOFTWARE WITH WHICH THE TUKI UC platform PRODUCT IS DESIGNED TO BE USED, AND TUKI UC platform DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY FAILURES THEREOF.
Notwithstanding any damages that CUSTOMER might incur, the entire liability of TUKI UC platform and any of its suppliers under any provision of this EULA and your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by CUSTOMER for TUKI UC platform Product during twelve (12) months preceding the event giving rise to the claim. To the maximum extent permitted by applicable law, in no event shall TUKI UC platform or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, for loss of data or other information, for business interruption, for personal injury, for loss of privacy arising out of or in any way related to the use of or inability to use the Software Product, or otherwise in connection with any provision of this EULA), even if TUKI UC platform or any supplier has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.
TUKI UC platform undertakes to defend the CUSTOMER against any claim from a third party and to compensate it for any costs and/or damages and interest incurred on the basis of a final court decision if: (1) it concerns the violation of an intellectual property right; (2) it concerns the Software Product in the form provided to the CUSTOMER; (3) the CUSTOMER immediately notifies TUKI UC platform in writing, entrusting TUKI UC platform with the exclusive defense and negotiations with a view to a settlement or compromise solution with the third party and (4) the CUSTOMER provides TUKI UC platform with all assistance required to contest the claim.
If the claim made by a third party regarding the violation of property rights is successful, the CUSTOMER accepts that TUKI UC platform may, at its own cost, (i) modify or replace the Software Product or parts of the Software Product in question, depending on which solution is more beneficial, or (ii) obtain for the CUSTOMER the right to continue to use the Software Product. If neither of these options is reasonably acceptable in the opinion of TUKI UC platform, the CUSTOMER should, at the request of TUKI UC platform, return the Software Product to TUKI UC platform, which will refund the cost of the license.
The obligations above set out the entire obligations from TUKI UC platform to the CUSTOMER regarding such claim and do not apply to any legal proceedings based on the violation or alleged violation of any patent or copyright resulting from the combined use of the Software Product and its documentation in full or in part with any elements not provided by TUKI UC platform.
CUSTOMER shall comply with all applicable export laws and regulations (“Export Laws”) to ensure that the Software Product is not (1) exported, directly or indirectly, in violation of Export Laws, or (2) used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
TUKI UC platform may audit your software usage for anti-piracy purposes, to verify a valid registration, and to assess your use of the Software Product. In case such audit cannot be carried out due to the CUSTOMER’s security policy, the CUSTOMER shall produce a screenshot of the page showing the CUSTOMER’s use of the Software Product.
These audits may take place once a year and will be financed by TUKI UC platform unless they reveal failure by the CUSTOMER to carry out the obligations outlined in this Agreement. In this case, as well as the immediate payment of the licenses owed, the CUSTOMER will be required to refund the TUKI UC platform the entirety of the justified costs incurred by the performance of these audits, TUKI UC platform reserving the option to invoke the provisions relating to the failure to fulfil a major contractual obligation.
Neither party may assign or transfer this Agreement without the prior written permission of the other party. Such consent, which may not be retained without a valid reason, may depend on the prior execution of a given obligation or on the provision of legitimate guarantees.
This EULA is governed by the laws of the Republic of France exclusive of conflict of law provisions and CUSTOMER attorn to the jurisdiction of the courts of Paris with respect to any proceedings arising from this EULA.
This EULA (including any addendum or amendment to this EULA which is included with TUKI UC platform Software Product) is the entire agreement between CUSTOMER and TUKI UC platform relating to the Software Product and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software Product or any other subject matter covered by this EULA. To the extent the terms of any TUKI UC platform policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall prevail. If any provision of this EULA is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of the EULA will remain in force and effect.
