End User License Agreement for Nutritics Limited Software
1. License Agreement Confirmation
1.1 THIS END-USER LICENSE AGREEMENT (“Agreement”) IS A CONTRACT between Nutritics Limited (“Nutritics”) and the individual or company, (“Licensee” ) that is installing or using Nutritics software, website or associated documentation (individually and collectively the “Software”).
1.2 INSTALLING, DISTRIBUTING, OR USING THE Software, AND/OR INSTALLING A LICENSE KEY IF APPLICABLE, CONFIRMS LICENSEE’S AGREEMENT TO BE BOUND by all the terms and conditions of this Agreement, unless Licensee and Nutritics have expressly agreed otherwise in writing.
1.3 This Agreement applies to updates, supplements and add-on components of the Software that Nutritics may provide, unless accompanied by separate terms.
2. License Grant
2.1 The features and products that are made available through the Software (including products or features available on a trial basis only) are provided to you by Nutritics Limited, Ireland.
2.2 The Software is licensed, not sold. Nutritics or its supplier(s), as applicable, retain title and all ownership rights, of whatever nature, to the Software. All rights not expressly granted herein are reserved by and to Nutritics or its suppliers, as applicable.
2.3 Licensee may use the Software in accordance with this Agreement solely for Licensee’s internal business use, specifically excluding service-bureau use or use as an outsourcer or other third party use, unless expressly specified otherwise in the applicable service plan for the Service.
2.4 Licensee may not use the Software except in accordance with this Agreement, nor permit or assist others to do so.
2.5 Licensee may not decompile, disassemble, or reverse engineer the Software or any part of it, nor permit or assist others to do so. If applicable law permits Licensee to engage in such activities notwithstanding this Agreement, Licensee will provide Nutritics with advance notice and reasonably detailed information concerning Licensee’s intended activities.
3. Limited Warranties; Exclusive Remedies
3.1 OWNERSHIP / NONINFRINGEMENT WARRANTY. Nutritics warrants to Licensee that
1. Nutritics owns the Software or is otherwise authorized to grant Licensee a license, and
2. neither the Software nor its use in accordance with the documentation, in and of themselves, will infringe any valid copyright or trade secret right, nor so far as Nutritics knows any valid patent right, of any third party. LICENSEE’S EXCLUSIVE REMEDY for any breach of this infringement warranty shall be to invoke the provisions of the Infringement Indemnity section of this Agreement.
3.2 PERFORMANCE WARRANTY. Software licensed under evaluation licenses and other non-purchased licenses is provided AS-IS, WITH ALL FAULTS and with no warranty. For Software licensed in connection with a paid subscription, Nutritics warrants to Licensee, for the duration of the then-current subscription period, that the Software, when used in accordance with the user documentation furnished by Nutritics, will perform, in all material respects, substantially in accordance with such documentation. If for any reason Nutritics does not provide a correction or workaround for any breach of this warranty within a reasonable period of time after License’s report of the breach, not to exceed 30 days without Licensee’s approval, then upon Licensee’s written request, Nutritics will refund the paid subscription fee for the then-current subscription period, pro-rated as of the date of the report of the breach, and Licensee’s subscription and license to use the Software will be terminated. THESE ARE LICENSEE’S EXCLUSIVE REMEDIES for any breach of the Performance Warranty.
3.3 VIRUSES, ETC.: Nutritics will make commercially reasonable efforts to ensure that the Software will not contain any virus, Trojan horse, or worm, or other software designed to permit unauthorized access to, or to erase or otherwise harm, Licensee’s software, hardware, or data. Licensee’s EXCLUSIVE REMEDIES for any breach of this warranty will be for Nutritics
1. to reimburse Licensee for all reasonable resulting “clean-up” damages to the extent that the damages would not have been avoided by prudent precautions such as, for example, regular backups; and
2. at Licensee’s option, to either
1. replace the Software with a warranty-compliant version or
2. cancel the License and refund Licensee’s payment for its then-current subscription to use the Service, pro-rated as of the date License reported the breach.
4. Infringement Indemnity
4.1 If a third party (other than Licensee’s affiliate) claims that the Software or its use infringes the third party’s patent rights, copyright, or trade secret rights, then Nutritics will defend Licensee against the claim, at Nutritics’s expense, and indemnify Licensee against any resulting court costs and damage awards, if any, provided, and on the condition, that Licensee
1. promptly notifies Nutritics in writing of such claim;
2. does not make any admissions in respect of the claim;
3. gives Nutritics sole control of the defense;
4. does not settle the claim without Nutritics’s consent; and
5. assists Nutritics in the defense at Nutritics’s request and expense.
4.2 At Licensee’s option, Licensee may engage separate counsel, at Licensee’s own non-reimbursable expense, to monitor the defense; if Licensee advises Nutritics that Licensee has done so, Nutritics will instruct Nutritics’s counsel to provide all reasonable cooperation with Licensee’s counsel for that purpose.
4.3 If
1. Nutritics so defends Licensee, but a court of competent jurisdiction nevertheless orders Licensee to stop using the Software as a result of the claim, and Nutritics is unable to have the order stayed or overturned on appeal, or
2. Nutritics settles the claim on terms that require Licensee to cease using the Software, or
3. Nutritics reasonably determines that Licensee should stop using the Software, then Nutritics will, at Nutritics’s option and expense,
1. replace or modify the Software to make it non-infringing while still performing the same or substantially the same functions;
2. procure the right for Licensee to continue using the Software; or
3. if in Nutritics’s judgment neither (A) nor (B) is commercially feasible, direct Licensee to stop using the Software and refund a prorated amount of the Licensee’s paid subscription fee for its then-current license to use the service. Nutritics will not be responsible for any infringing use that Licensee may make of the Software after Nutritics directs Licensee to stop using the Software.
4.4 Nutritics’s obligations under this Infringement Indemnity Section are LICENSEE’S EXCLUSIVE REMEDIES for any alleged or actual infringement by the Software or Licensee’s use of the Software.
5. Disclaimer of Other Warranties
5.1 NUTRITICS DOES NOT WARRANT that the Software will be error free, will meet Licensee’s needs, or will operate without interruption.
5.2 NUTRITICS DOES NOT WARRANT that the Software will perform as documented in cases of hardware malfunction, misuse of the Software, modification of the Software by any party other than Nutritics (the foregoing shall not be construed as granting Licensee the right to make or have made any such modification), use of the Software with other software not described in the documentation, or bugs in other software with which the Software interacts.
5.3 Except to the extent (if any) explicitly stated otherwise in this Agreement, THE Software IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, including but not limited to any application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage.
5.4 On behalf of Nutritics and its suppliers, to the maximum extent permitted by law, NUTRITICS DISCLAIMS ANY AND ALL OTHER WARRANTIES, DUTIES, CONDITIONS, OR REPRESENTATIONS (express or implied, oral or written), with respect to the Software or any part thereof, including without limitation any implied warranties, duties, conditions, or representations of title, non-infringement, quiet enjoyment, merchantability, fitness or suitability for any purpose (whether or not Nutritics or any of its suppliers know, have reason to know, have been advised, or are otherwise in fact aware of any such purpose), absence of viruses, results, workmanlike effort, or implied term of quality, whether alleged to arise by law, by reason of custom or usage in the trade, or by course of dealing.
5.5 NUTRITICS DISCLAIMS, for itself and its suppliers, any warranty, duty, condition, or representation to any person other than Licensee with respect to the Software.
6. Limitation of Remedies
6.1 Each remedy limitation in this Limitation of Remedies section is to be enforced to the maximum extent permitted by law, independently of any other applicable remedy limitation, even if any particular remedy is held to have failed of its essential purpose, and also independently of the warranty-disclaimer provisions of this Agreement. Licensee acknowledges that otherwise Nutritics would not have granted the license on the economic terms associated with such grant.
6.2 To the greatest extent permitted by law, except as set out below, NEITHER NUTRITICS NOR ITS SUBSIDIARIES, PARENT COMPANY, EMPLOYEES, OFFICERS, DIRECTORS OR AFFILIATES, IF ANY, WILL BE LIABLE TO LICENSEE OR ANY PERSON CLAIMING THROUGH LICENSEE IN CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES, arising from or relating to any alleged or actual breach of this Agreement or from the use of, the results of the use of, or the inability to use the Software, including, as examples but not limitations, lost profits or other economic loss, loss of privacy, loss of confidential information, arising from the use of, the results of the use of, or the inability to use the Software.
6.3 Other than in respect of Nutritics’s obligation, where applicable, to defend and indemnify Licensee against third-party infringement claims, , to the greatest extent permitted by law, THE MAXIMUM AGGREGATE LIABILITY of Nutritics and its suppliers, subsidiaries, parent company, or affiliates, if any, to Licensee, or to any person claiming rights through Licensee, in respect of any and all claims arising from or related to this Agreement, in contract, tort, or otherwise, will be the aggregate amount of the applicable license fees (plus the initial maintenance fee, if applicable) paid pursuant to this Agreement by Licensee in respect of the Software.
6.4 Some jurisdictions do not permit limitation or exclusion of remedies under some circumstances, so some or all of the foregoing limitations may not apply to Licensee.
