TOS Terms of Service
USAGE OF THIS SITE, SERVICES, SOFTWARE, AND DATA CONSTITUTE YOUR ACCEPTANCE OF THE FOLLOWING TERMS
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THIS SITE, SERVICES, SOFTWARE, PRODUCT, DATA AND DOCUMENTATION. ODDITY SOFTWARE. IS ONLY WILLING TO PROVIDE THIS SITE, SERVICES, SOFTWARE, PRODUCT, DATA AND DOCUMENTATION TO YOU UPON THESE TERMS AND CONDITIONS.
GRANT OF LICENSE: ODDITY SOFTWARE grants to you a non-exclusive, non-transferable license (the "License") to operate the computer programs (the "Software") in accordance with the user documentation (the "Documentation") thereto (collectively, the "Product"), identified and included in this installation, solely for your internal use and operations on a single central processing unit ("CPU"). A separate license is required for each CPU which accesses the Software; and only one copy of the Software may be licensed per instance of the Software and/or per machine. This license is restricted to a single CPU and if you wish to use the Software on more than one CPU, you must either erase the Software from the first CPU and hard drive before you install the Software onto a second CPU and hard drive, or otherwise license an additional copy of the Software for each additional CPU which accesses the Software. In addition, evaluation licenses are restricted only to your internal use of Software solely for evaluation purposes and not for any internal deployment and/or utilization. No right is granted to sell, license, sublicense, lease, rent or otherwise transfer the Software or use the Software for third party training, commercial time-sharing, hosting, application service provision or service bureau use, or allow any third party to have access to or use the Software for any reason. The term "Product" includes all Product updates and new versions, if any, you receive from ODDITY SOFTWARE.
OWNERSHIP OF THE PRODUCT: RESTRICTIONS ON USE: ODDITY SOFTWARE (or its licensors) owns and will retain all patent, copyright, trademark, trade secret and other proprietary rights in and to the Product. Your rights are limited to the License and the terms of this Agreement. This is a license agreement and NOT an agreement for sale.
(a) You shall NOT make any copies of all or any part of the "Confidential Information" (meaning the Product, all parts, copies and modifications thereof and any other information, in whatever form, received by you from ODDITY SOFTWARE which is identified as being proprietary or confidential at the time of disclosure or should reasonably be understood to be proprietary; provided, however, such information shall not be deemed Confidential Information if you can clearly establish by written evidence that it (a) is or becomes a part of the public domain through no act or omission of you; or (b) was in your lawful possession prior to the disclosure and had not been obtained by you from ODDITY SOFTWARE; or (c) is lawfully disclosed to you by a third party without restriction on disclosure; or (d) is independently developed by you without the use of any Confidential Information), except that you may copy the Software as necessary to use it as permitted by Section 1 and for archival purposes only.
(b) You shall NOT decompile, disassemble, reverse engineer or otherwise reduce the Software code to a human readable form.
(c) You shall NOT remove from any part of the Confidential Information any notice of proprietary rights or any disclaimer.
(d) Unless otherwise specified in this Agreement, you shall NOT sell, license, sub-license, rent or otherwise transfer the Product or License without the written permission of ODDITY SOFTWARE, except that you may transfer the Product and License, if you transfer to a person who first notifies ODDITY SOFTWARE in writing that said person agrees to all the terms and conditions of this Agreement and you deliver all your copies of the Product and transfer all of your rights hereunder to said person.
(e) You shall NOT modify the Product, merge it with other software or documentation or create derivative works based in whole or in part on the Product.
(f) You shall NOT disclose or permit others to have access to the Confidential Information or any results of benchmark tests, including without limitation by means of timesharing, hosting, application service provision, remote computing services, networking and/or batch processing, unless ODDITY SOFTWARE consents to such disclosure in writing,, and you shall limit any disclosure to your bona fide employees whose access is necessary to effect the purposes of this Agreement. Such employees shall be notified by you that any disclosure under this Agreement is made in confidence and shall be kept in confidence, and shall be subject to a binding agreement with you to protect the confidentiality of Confidential Information. You shall be responsible for any use or disclosure of Confidential Information by any of your employees or agents, and shall protect the disclosed Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized dissemination or publication of the Confidential Information as you use to protect your own confidential information. The provision of this Section 2(f) shall survive termination or expiration of this Agreement for five (5) years thereafter, except that any restrictions on source code will survive indefinitely.
TERM AND TERMINATION: The term of this Agreement and the License will continue until you return all copies of the Product to ODDITY SOFTWARE or this Agreement is terminated. ODDITY SOFTWARE may terminate this Agreement by written notice to you specifying your failure or default in the performance of any provisions of this Agreement and you fail to cure said failure or default to the satisfaction of ODDITY SOFTWARE within ten (10) days after such notice. Within five (5) days after termination of this Agreement, you will return all copies of the Product to ODDITY SOFTWARE or destroy all copies of the Product, and have an appropriate authorized representative certify in writing the return or destruction of all copies of the Product. You will reimburse ODDITY SOFTWARE for all reasonable costs incurred by ODDITY SOFTWARE (including attorneys' fees) in collecting past due amounts hereunder. Any non-remedial breach shall entitle ODDITY SOFTWARE to terminate this Agreement and all Licenses hereunder immediately upon written notice to you. This remedy shall not be an exclusive remedy and shall be in addition to any other remedies which ODDITY SOFTWARE may have under this Agreement or otherwise.
PAYMENT: All shipments to you hereunder, if any, shall be F.O.B. ODDITY SOFTWARE's facility. All costs for shipping and insurance shall be paid by you and risk of loss shall pass to you upon delivery to the carrier. All fees for Product licenses and Technical Support shall be due and payable by you on the date of this agreement. You shall pay to ODDITY SOFTWARE interest of one percent (1%) compounded monthly or the maximum legal rate in effect, whichever is less, on any amount not paid when due. The fees for Product licenses and or custom work purchased by you shall be non-refundable and non-cancellable. All prices and fees are exclusive of all sales, use or all other taxes, however designated or levied against the sale, licensing, delivery or use of the Product or any service. Any such tax ODDITY SOFTWARE may be required to collect or pay shall be paid by you to ODDITY SOFTWARE. If you are required by law to make any deduction or to withhold from any sum payable to ODDITY SOFTWARE by you hereunder, then the sum payable by you upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after all deduction and withholding, ODDITY SOFTWARE receives and retains, free from liability for any deduction or withholding, a net amount equal to the amount ODDITY SOFTWARE would have received and retained in the absence of required deduction or withholding. In addition to the price of any on-site services, if any, made available by ODDITY SOFTWARE, in its sole discretion, and ordered by you, you shall reimburse ODDITY SOFTWARE for reasonable food, lodging, and travel expenses incurred by ODDITY SOFTWARE's employees in conjunction with any such services ordered by you. If such services are performed at ODDITY SOFTWARE's premises, similar expenses incurred by your employees shall be borne solely by you.
LICENSEE'S RESPONSIBILITIES FOR SELECTION AND USE: You are responsible for the supervision, management and control of the use of the Product, and output of the Product, including, but not limited to: (1) selection of the Product to achieve your intended results; (2) the installation of the Product; (3) determining the appropriate uses of the Product in your business; (4) establishing adequate independent procedures for testing the accuracy of the Product; and (5) establishing adequate backup to prevent the loss of data in the event of a Product malfunction.
EXCLUSION OF WARRANTY: You recognizes that the Product may have defects or deficiencies which cannot or will not be corrected by ODDITY SOFTWARE. ODDITY SOFTWARE IS DELIVERING THE PRODUCT TO YOU "AS IS," AND ODDITY SOFTWARE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTY OF NON-INFRINGEMENT.
LIMITATIONS OF LIABILITY AND REMEDIES: THE LIABILITY OF ODDITY SOFTWARE AND ITS LICENSORS IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT OR ANY MATERIALS OR SERVICES FURNISHED HEREUNDER SHALL NOT EXCEED THE LICENSE FEE YOU PAID FOR the applicable copy of the Product and/or particular service that gave rise to any claim. IN NO EVENT SHALL ODDITY SOFTWARE OR ITS LICENSORS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, TORT (INCLUDING NEGLIGENCE) OR CONSEQUENTIAL DAMAGES (INCLUDING ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE PRODUCT OR ANY MATERIALS OR SERVICES FURNISHED HEREUNDER OR FROM ODDITY SOFTWARE's PERFORMANCE OF SERVICES, EVEN IF ODDITY SOFTWARE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. You are explicitly prohibited from utilizing the Product for any unlawful purposes, including without limitation in violation of any anti-spam laws whether local, state or federal regulations or policy or executive orders. You hereby agree that ODDITY SOFTWARE shall not be liable for any claims or damages arising from such use and you hereby agree to indemnify ODDITY SOFTWARE from any and all costs, expenses (including attorneys' fees), damages and liabilities incurred by ODDITY SOFTWARE relating to any such use by you.
U.S. GOVERNMENT RESTRICTED RIGHTS: If you are an agency or contractor of the United States Government, you acknowledge and agree that (i) the Product was developed entirely at private expense, (ii) the Product in all respects is proprietary data belonging solely to Oddity Software. or its licensors, (iii) the Product is not in the public domain, and (iv) the Product is "Commercial Computer Software" as defined in sub-paragraph (a)(1) of DFAR Section 252.227-7014.
GENERAL PROVISIONS: This Agreement represents the entire agreement between you and ODDITY SOFTWARE with respect to the Product and subject matter hereof, and supersedes all prior proposals, representations and agreements, whether written or oral, with respect thereto. It is expressly agreed that any terms and conditions of a purchase order and/or any other document issued by you in relation towards the order of the Product and supported licenses shall be superseded by the terms and conditions of this Agreement. This Agreement may be amended or modified only by a written agreement executed by you and ODDITY SOFTWARE. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provisions of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. All notices under this Agreement shall be in writing, and in the case of ODDITY SOFTWARE, delivered to the attention of the President at the address set forth below. Neither party shall be liable for any reasonable delays in the performance of any of its obligations, with the exception of payment obligations, hereunder due to war, acts of God or other causes beyond its reasonable control. Neither party may assign this Agreement or any of its rights hereunder without the prior written consent of the other party, except that ODDITY SOFTWARE may assign this Agreement as part of a corporate reorganization or to a successor to that part of ODDITY SOFTWARE's business related to licensing the Product or a purchaser of substantially all the assets of ODDITY SOFTWARE related to the Product. The failure of ODDITY SOFTWARE at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce such provision. The parties agree that they are independent contractors and that this Agreement and the relations between ODDITY SOFTWARE and you hereby established do not constitute a partnership, joint venture, agency or contract of employment between them, or any other similar relationship. You may not export or re-export the Product without the appropriate United States and foreign government licenses. Your covenants and agreements in Section 2 hereof are of a special and unique character, and you acknowledge that money damages alone will not reasonably or adequately compensate ODDITY SOFTWARE for any breach of such covenants and agreements. Therefore, you and ODDITY SOFTWARE expressly agree that in the event of the breach or threatened breach of any such covenants or agreements, in addition to other rights or remedies which ODDITY SOFTWARE may have, at law, in equity, or otherwise, ODDITY SOFTWARE shall be entitled to injunctive or other equitable relief compelling specific performance of, and other compliance with, the terms of such Section. The terms of this Agreement shall be construed in accordance with the substantive laws of The Commonwealth of Missouri, USA without regard to its principles of conflict of law or the U.N. Convention on Contracts for the International Sale of Goods. The provisions of Sections 2, 3, 4, 6, 7, 8 and 9shall survive the expiration or earlier termination of this Agreement for any reason.
I agree, and will not hold ODDITY SOFTWARE responsible for any damages that may occur from any custom work or software as stated above.