Effective starting: Septemper 1, 2021
This is the Software License Agreement (the “Agreement”). We, Froxt, (“Froxt“, “we“, or “us“) need you to agree to the Agreement before you download and/or use our enterprise software.
DISCLAIMER: This Software License Agreement refers to Froxt Enterprise, which is the downloadable (on-premises) version of the Service (i.e. hosted on user infrastructure).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE.
THESE TERMS AND CONDITIONS GOVERN YOUR USE OF THE SOFTWARE (AS DEFINED BELOW) UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH YOU FOR THAT PURPOSE. WE’RE ONLY WILLING TO LICENSE THE SOFTWARE TO YOU IF YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY INSTALLING OR USING THE SOFTWARE OR BY CLICKING “I ACCEPT” BELOW, YOU ARE CONFIRMING THAT YOU UNDERSTAND THIS AGREEMENT, AND THAT YOU ACCEPT ALL OF ITS TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU” WILL MEAN THE ENTITY YOU REPRESENT. IF YOU DON’T HAVE SUCH AUTHORITY, OR IF YOU DON’T ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU MAY NOT DOWNLOAD, INSTALL, OR USE IT.
Here are some definitions we use in this Agreement. If you see a capitalized word that isn’t listed here, it will be defined somewhere in the Agreement.
- The “Agreement Effective Date” is the date that you click “I Accept” to the terms and conditions of this Agreement during the installation of the Software.
- “Documentation” means any manuals, documentation and other supporting materials related to the Software that we generally provide to our customers. Documentation is considered part of the Software.
- “Fees” means the fees you’re required to pay us to use the Software during the applicable License Term, as such fees are reflected on the workspace Payment Plan section.
- “License Key” means a string of characters utilized by the Software’s access control mechanism that allows you to use the Software during the License Term.
- “Users” mean the number of User accounts for the Software that you’re authorized to create. The number of Users is specified by choosing the applicable User package in the Billing Portal and can be changed at any time during the monthly billing cycle. Only one User can use a User at a time. Multiple Users aren’t allowed to use the same User.
- “Software” means the object-code source code version of our proprietary enterprise software application. Software includes any applicable Documentation, as well as any Updates to the Software that we provide you or that you can access under this Agreement.
- An “Update” is a Software release that we make generally available to our customers, along with any corresponding changes to Documentation. An Update may be an error correction or bug fix, enhancement, new feature, or new functionality, generally indicated by a change in the digit of the version number.
- A “User” is a single person or machine account that initiates the execution of the Software and/or interacts with or directs the Software in the performance of its functions. The number of Users shouldn’t exceed the number of Users you’ve licensed from us.
- A “Billing Portal” is a password-protected website where you manage your License Key, billing details and invoices.
- License Grant
Subject to your compliance with the terms of this Agreement (including, among other things, paying the Fees you own us), we hereby grant you a non-exclusive, non-transferable, worldwide, royalty-free, limited-term license to install, execute, and use a single production instance of the Software for your internal business purposes during the applicable License Term, in accordance with the Documentation, and only for the number of Users that you’ve paid for. You can make copies of the Software for non-production purposes only, provided that you reproduce all copyright and other proprietary notices that are on the original copy of the Software. Your agents and contractors can use the Software too, so long as they’re using it on your behalf, and provided that you agree to be fully responsible for their behavior under this Agreement. You may NOT reverse engineer, decompile or disassemble the Software, or otherwise attempt to derive the source code for the Software.
We license the Software to you – we don’t sell it. As between us, we own all right, title and interest in and to the Software, and any intellectual property rights associated with it and with our company. We reserve all rights in and to the Software that we don’t expressly grant you in this Agreement. You agree not to, nor permit nor authorize any third party to (i) sublicense, sell, rent, lease, transfer, assign, or distribute the Software to third parties; (ii) host the Software for the benefit of third parties; (iii) disclose or permit any third party to access the Software, except as expressly permitted in Section 2, above; (iv) hack or modify the License Key, or try to avoid or change any license registration process we may implement; (v) modify or create derivative works of the Software, or merge the Software with other software; (vi) disassemble, decompile, bypass any code obfuscation, or otherwise reverse engineer the Software or attempt to derive any of its source code, in whole or in part, except to the extent such activities are expressly permitted by this Agreement, by law, or by applicable license notwithstanding this prohibition; (vii) modify, obscure, or delete any proprietary rights notices included in or on the Software or Documentation; (viii) otherwise use or copy the Software in a manner not expressly permitted by this Agreement; or (ix) use any Software that we license to you beyond its applicable License Term.
Remember, only one User can use a User at a time. Multiple Users aren’t allowed to use the same User, and only one human being can be associated with a particular User account. If you want to swap out, delete, or suspend a User, you can do that, and then assign a new User to the open User. If you find that you need more Users, just upgrade your plan in the workspace preferences. If and when you add additional Users to your subscription, you’ll pay Fees for those users at the then-current price, prorated for the balance of the applicable License Term. When the time comes to renew your Users for another month-long License Term, we’ll invoice you for all of your Users at once, at the then-current price (we reserve the right to change our prices at any time, but the new prices won’t affect you until it’s time to renew your license for another year). You agree that any orders that you make (or that you authorize us to make on your behalf) for additional Users during the term of this Agreement will be governed by this Agreement.
From time to time, we may have reason to make sure that you’re not using extra Users without paying for them. You agree to cooperate with us to achieve that goal. To help us verify the number of Users you’re actually using, you agree to promptly give us any usage files and reports that your instance of the Software generates, if and when we ask for them. If we determine that you’re using more Users than you’ve paid for, in addition to any other remedies we might have at law or in equity, you agree to pay us the then-current Fees for the additional Users you’re using, starting from the date you began using each User.
Promptly after the applicable Order Date, we’ll make the License Key available for you to download on the Billing Portal. As Updates become available, we’ll make those available for you to download via a button in the workspace preferences or via a CLI command. You’re responsible for maintaining the confidentiality of all of your usernames and passwords, including the ones you use to access the Billing Portal. Take good care of them, because you agree that you’ll be responsible for any activity that takes place using your usernames and passwords (whether you knew about it or not).
All payment information, including the License Key, billing details, payment history, and invoices, is available on the Billing Portal. Upon buying the License Key, you will be asked to provide your credit card or PayPal details. We do NOT store this information on our servers: all payment operations are handled by an external provider (Braintree), including storing, processing, and using your billing details.You agree to pay the Fees to us in full, without deduction or setoff of any kind, in U.S. Dollars, month-to-month, from the moment you have bought the License Key, to the moment the License Key is terminated. Amounts payable under this Agreement are nonrefundable, except as provided in Section 10.1. If we’re not able to charge the credit card or PayPal that you provided, in addition to taking any other action that we see fit, we reserve the right to switch your instance to the read-only state, until you pay the Fees you owe us. You are solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on Froxt’s net income) that are imposed or become due in connection with the subject matter of this Agreement.
- Term and Termination
8.1 Term. This Agreement starts on the Agreement Effective Date and will continue in effect for the License Term (the “Initial Term”), at which time the Software license will be automatically renewed for additional License Term(s) in a monthly cycle unless or until this Agreement is terminated by a party in accordance with Section 8.2.
8.2 Termination for Convenience; Automatic Expiration. You can terminate this Agreement for your convenience at any time by deleting the License Key, which you can do only by contacting us either via email (email@example.com) or live chat. This Agreement will automatically expire without the requirement of notice if, at the end of the Initial Term and each Renewal Term, should you decide not to pay the Fees required to renew your Users for an additional License Term.
8.3 Termination for Breach. We can terminate this Agreement immediately upon notice to you if you breach any part of it, and you fail to cure the breach within thirty (30) days of us notifying you of it. That said, there are certain kinds of breaches that we take much more seriously, and that can really damage us. We, therefore, reserve the right to terminate this Agreement immediately upon written notice to you, but without giving you a cure period, if you breach any of the terms of this Agreement relating to our intellectual property (including your compliance with the license grant and any license restrictions) or our Confidential Information (defined below).
8.4 Effect of Termination. When this Agreement terminates: (i) the License Term for any Software in your possession will immediately end (ii) you’ll no longer have the right to use the Software, and any licenses we grant you in this Agreement will automatically cease to exist as of the date of termination; (iii) if you owed us any money prior to termination, you’ll need to pay us all that money immediately; (iv) you’ll destroy all copies of the Software in your possession or control, and certify in writing to us that you’ve done so; and (v) each of us will promptly return to the other (or, if the other party requests it, destroy) all Confidential Information belonging to the other. You’ll still be able to access the Software to migrate your data for ninety (90) days after termination of this Agreement, but you won’t be allowed to use the Software on a production basis during that time.
9.1 Support Times. Provided that you’ve paid us the Fees you owe us, we’ll provide you with technical support for the Software twelve (12) hours per day, five (5) days per week, excluding weekends and national U.S. holidays. We currently only offer support via email (write to us at firstname.lastname@example.org) and live-chat. You can contact our support team to help answer your questions on installing and using the Software, identifying and verifying the causes of suspected errors in the Software, and helping you find workarounds for Software malfunctions. Though we’ll do our best to respond to automated support requests, we typically need more information than an automated ticketing system can give us to solve your issue. Whenever possible, please initiate any support requests from a person or machine that our support team can interact with. We like the personal touch.
9.2 Updates. We’ll make Updates available to you via the Update button in the workspace preferences or by running the update command in the terminal.
9.3 Exclusions. We might not be able to correct every problem we find, but we’ll use our reasonable efforts to correct any material, reproducible errors in the Software that you make us aware of. We might ask for your help in reproducing the error for us. Please – don’t do things with our Software that would make it harder for us to help you. We won’t be responsible for supporting you in those circumstances, which include, among other things: (i) someone (other than us) modifying the Software; (ii) changing your operating system or environment in a way that adversely affects the Software or its performance; (iii) using the Software in a manner for which it was not designed, or other than as authorized under this Agreement; or (iv) accident, negligence, or misuse of the Software. We’re only required to support a given major version of the Software for six months from the date of its commercial release, or six months from the commercial release of the next Update, whichever is longer. If you want support for earlier versions of the Software, we’ll try to help you if we can, but you’ll need to pay us for that help at our then-current rates.
- Limited Warranties
10.1 Limited Warranties. We offer you (and only you) the following limited warranties: (i) that the unmodified Software, at the time we make it available to you for download, will not contain or transmit any malware, viruses, or worms (otherwise known as computer code or other technology specifically designed to disrupt, disable, or harm your software, hardware, computer system, or network); (ii) that any support services we perform for you under this Agreement will be performed in a good and workmanlike manner, by appropriately qualified personnel (you just need to let us know about a problem within thirty (30) days of the date the support services were performed); and (iii) that, for ninety (90) days from the date the Software is made available for download, the unmodified Software will substantially conform to its Documentation. We don’t warrant that your use of the Software will be uninterrupted, or that the operation of the Software will be error-free. These warranties won’t apply if you modify the Software, or if you use the Software in any way that isn’t expressly permitted by this Agreement and the Documentation. Our only obligation, and your only remedy, for any breach of these limited warranties will be, at our option and expense, to either (i) repair the Software; (ii) replace the Software; or (iii) terminate this Agreement with respect to the defective Software, and refund the Fees you’ve paid for the defective Software during the then-current License Term once you’ve returned it to us (or destroyed it).
10.2 Disclaimer. THE LIMITED WARRANTIES DESCRIBED ABOVE ARE THE ONLY WARRANTIES WE MAKE WITH RESPECT TO THE SOFTWARE, SERVICES AND OUR TECHNICAL SUPPORT. WE DON’T MAKE ANY OTHER WARRANTIES, AND WE HEREBY SPECIFICALLY DISCLAIM ANY OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU GET FROM US OR ANYWHERE ELSE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
- LIMITATION OF LIABILITY
11.1 Waiver of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER, CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE’VE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 Limitation of Total Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES YOU’VE ACTUALLY PAID US DURING THE MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
11.3 Basis of Bargain. You understand and agree that we’ve set our prices and entered into this Agreement with you in reliance upon the limitations of liability set forth in this Agreement, which allocate risk between us and form the basis of a bargain between the parties.
12.1 Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means any business or technical information that either one of us discloses to the other, in writing, orally, or by any other means, and including things like computer programs, code, algorithms, data, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, and product development plans, names and expertise of employees and consultants, and customer lists. For the purposes of this Agreement, except as expressly set forth in Section 15.2 below, the source code of our Software will be deemed to be Froxt’s Confidential Information, regardless of whether it is marked as such.
12.2 Restrictions on Use and Disclosure. Neither of us will use the other party’s Confidential Information, except as permitted under this Agreement. Each of us agrees to maintain in confidence and protect the other party’s Confidential Information using at least the same degree of care as we use for its own information of a similar nature but in all events at least a reasonable degree of care. Each of us agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other’s Confidential Information, including, without limitation, disclosing Confidential Information only to its employees, independent contractors, consultants, and legal and financial advisors (collectively, “Representatives”) (i) with a need to know such information, (ii) who are parties to appropriate agreements sufficient to comply with this Section 12, and (iii) who are informed of the nondisclosure obligations imposed by this Section 12. Each of us will be responsible for all acts and omissions of our Representatives. The foregoing obligations won’t restrict either of us from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable them to contest such order or requirement. The restrictions set forth in this Section 12 will survive the termination or expiration of this Agreement.
12.3 Exclusions. The restrictions set forth in Section 12.2 will not apply with respect to any Confidential Information that: (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party who has a right to disclose it; (iii) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; or (iv) the receiving party independently develops without access to or use of the other party’s Confidential Information.
- Governing Law and Jurisdiction
This Agreement will be governed by and interpreted in accordance with the laws of the European Union, without giving effect to any principles of conflict of laws. Any legal action or proceeding arising under, related to or connected with this Agreement shall be submitted for resolution by Common Court of Law at the location of Froxt LLC. principal office and the parties irrevocably consent to the personal jurisdiction and venue there.
14.1 Assignment. You aren’t allowed to assign or transfer any of your rights or obligations in this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent, and any attempt by you to do so without our consent will be null and void. We can assign this Agreement in its entirety, upon notice to you but without the requirement to obtain consent, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our business or assets.
14.2 Availability of Source Code. The Software includes and is distributed with certain open-source components whose licenses require us to make the source code for those components available. The source code for such components will be provided upon request.
14.3 Severability. In the event that any provision of this Agreement is deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court will modify or reform this Agreement to give as much effect as possible to that provision. Any provision that can’t be modified or reformed in this way will be deemed deleted, and the remaining provisions of this Agreement will continue in full force and effect.
14.4 Notices. Any notice, request, demand or other communication required or permitted under this Agreement should be in writing (e-mail counts), should reference this Agreement, and will be deemed to be properly given: (i) upon receipt, if delivered personally; (ii) upon confirmation of receipt by the intended recipient, if by e-mail; (iii) five (5) business days after it is sent by registered or certified mail, with written confirmation of receipt; or (iv) three (3) business days after deposit with an internationally recognized express courier, with written confirmation of receipt. Notices should be sent to the address(es) set forth on the invoice unless we notify each other that those addresses have changed.
14.5 Waiver. A party’s obligations under this Agreement can only be waived in a writing signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.6 Force Majeure. We will be excused from performing under this Agreement to the extent that we’re unable to perform due to extraordinary causes beyond our reasonable control. That might include things like acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failure, and power failures.
14.7 Independent Contractors. We’re each independent contractors with respect to the subject matter of this Agreement. Nothing contained in this Agreement will be deemed or construed in any manner whatsoever to create a partnership, joint venture, employment, agency, fiduciary, or other similar relationship between us, and neither of us can bind the other contractually.
14.8 Amendments; Entire Agreement. No modification, change, or amendment of this Agreement will be binding upon the parties unless we both agree to the change in a writing signed by each of our authorized representatives. This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter, and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the parties with respect to its subject matter.
14.9 No Publicity Without Your Permission. We may identify you as a customer to current and prospective clients. We won’t use your name or logo in any advertising or marketing materials without your permission, though; and if we ask for your permission, you always have the right to say no.