This Agreement is entered into as of the earliest of the date that Customer accepts the terms and conditions herein, the date set forth on an Order, or the date on which Customer downloads, installs, activates or uses the Software.
a. “Data Hits” identifies the business developer of the sold software
Mapalizer, a sole proprietorship company with registration number
b. “Customer”, “Client”, “User” indicates any person or company who has purchased a software product from Mapalizer.
c. “Documentation” means the written and/or electronic release notes, implementation guides, or other published technical documentation about the applicable SaaS Product that is provided by Data Hits to Customer together with access to the SaaS Product.
d. “License Term” means the term of the access rights granted for the SaaS Product, as identified in the relevant Order, starting when Data Hits delivers to Customer the relevant credentials to access and use the SaaS Product.
e. “Order” means any purchase order, product schedule or ordering document between Customer and authorized reseller or between Customer and Data Hits (if purchasing directly) that identifies the products and/or services licensed or sold and any applicable licensing parameters (e.g.,the number of licenses).
f. “SaaS Product” means the mobile enterprise management services made available by access to and use of software hosted by Data Hits to which Customer has purchased a license under the relevant Order. References in this Agreement to the SaaS Product shall include the Software.
g. “Software” means the object code version of Mapalizer proprietary computer programs made available by Data Hits for download by Customer for use in connection with any SaaS Product, including any Documentation and Updates.
h. “Updates” means any correction, update, upgrade, patch, or other modification or addition made by Data Hits to specific Software.
2. Rights of Access and Use.
a. Access and Use. Subject to the terms and conditions of this Agreement, during the applicable License Term, Data Hits hereby grants to Customer (i) a non-exclusive, non-transferable and non-sublicensable license for Customer to access and use the SaaS Product and to copy, and install the Software, in each case, solely for Customer’s internal use with Customer’s ordinary business operations and in accordance with the applicable Documentation, and (ii) the right to maintain a reasonable number of copies of the Software on its systems for backup and recovery purposes. Customer may provide access to the SaaS Product to its and its Affiliates’ employees, contractors, and other individual users to access and use the SaaS Products on its behalf and for its internal business purposes in compliance with this Agreement, provided Customer is responsible for all such users’ actions that violate the terms of this Agreement, any breach by any such user is a breach by Customer, and no such user is an employee or contractor of a Data Hits Competitor (defined below). Customer agrees that its purchase of the Software is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Data Hits with respect to future functionality or features.
b. Trial License. This Agreement applies to trial copies of the SaaS
Product (“Free Product”), except for the following different or additional
terms: (i) the License Term for Free Product is only a try method, not the
final software; (ii) Free Product is provided “AS IS” without warranty of
any kind, and Data Hits disclaims all warranties, indemnities, and all
other liabilities for Free Product; (iv) The trial software may be tested
visiting the following URL:
c. Conditions of Use. The final software has to be used “as is”, as described through the product website pages www.mapalizer.com , finally, the final user has to use Mapalizer server domains to use Mapalizer final service.
d. Proxy Presence. The final user, using our software both in trial both in final stable version, accepts that we are currently use a proxy to grant him these services through the domain proxy.mapalizer.com.
e. Counting System. Mapalizer software uses a specific counting system for any customer website where it is installed / is working. Going in the details, if any visitor/user visits a specific page of our customers’ website where Mapalizer is installed, the counting system increases by one unit for 10 minutes the total usage count. If the same user, passed the amount of time of 10 minutes, is still visiting the same website where Mapalizer is installed, the counting system increased by another unit. This iterative count goes on each 10 minutes of session.
3. Use Restrictions; Customer Obligations. As a condition of the license granted in Section 2, Customer shall not itself and shall not authorize or permit any third party to: (a) reverse engineer, decompile, decode, decrypt, disassemble, or attempt to derive any source code from the SaaS Product (except and only to the extent any foregoing restriction is prohibited by applicable law); (b) modify, adapt, or create any derivative works based on the SaaS Product; (c) distribute, sell, license, lease, transfer, or otherwise provide any SaaS Product to third parties except as expressly provided in this Agreement; (d) provide the SaaS Product as a service to unaffiliated third parties, including but not limited to on a service bureau, SaaS, or time-sharing basis; (e) unbundle any component of any SaaS Product; or (f) use the Documentation except for supporting Customer’s authorized use of the SaaS Product; or (g) violate the Acceptable Use Policy; or (h) employ or authorize a Data Hits Competitor to use or view the SaaS Product or Documentation, or to provide management, hosting, support or similar services with regard to the SaaS Product without the prior written consent of Data Hits.
; Additional Licenses; Reporting. Customer shall
pay the fees for Data Hits products and/or services as set forth in the
applicable Order. In particular, any order will be processed with the
Stripe payment method (see the Stripe website and its legal documentation
to have more information about this third party resource).
Regarding the payment periods, any user has the chance to choose a monthly or annual plan during the purchasing process which will be guide you step by step in the final product acquisition.
5. Ownership. Data Hits and its suppliers own and retain all right, title, and (except as expressly licensed in this Agreement) interest in and to the SaaS Product and its derivative works. Customer is not obligated to provide Data Hits with any suggestions or feedback about the products or services (“Feedback”). To the extent Customer does provide Feedback to Data Hits, Customer assigns ownership of such Feedback to Data Hits and Data Hits may use and modify such Feedback without any restriction or payment.
a. Indemnification by Data Hits. Data Hits shall at its cost and expense (i) defend or settle any claim brought against Customer and its directors, officers and employees (“Customer Indemnitee(s)”) by an unaffiliated third party alleging that Customer’s use of the SaaS Product infringes or violates that third party’s intellectual property right(s), and (ii) pay, indemnify and hold Customer Indemnitees harmless from any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim.
b. Remedies. If a claim under Section 7.a occurs or in Data Hits opinion is reasonably likely to occur, Data Hits may at its expense and sole discretion: (i) procure the right to allow Customer to continue using the applicable SaaS Product, (ii) modify or replace the applicable SaaS Product to become non-infringing, or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer’s license to the affected portion of applicable SaaS Product and refund a portion of the pre-paid, unused license fees paid by Customer corresponding to such SaaS Product.
c. Exclusions. Data Hits shall have no obligations under this Section 7 if the claim is based upon or arises out of: (i) any modification to the applicable SaaS Product not made by or at the direction of Data Hits, (ii) any combination or use of the applicable SaaS Product with any third party equipment, products or systems, to the extent that such claim is based on such combination or use, (iii) Customer’s continued use of the allegedly infringing technology after being notified of the infringement claim, (iv) Customer’s failure to use Updates made available by Data Hits, (v) Customer’s failure to use the SaaS Product in accordance with the applicable Documentation, and/or (vi) use of the SaaS Product outside the scope of the license granted under this Agreement. This Section 7 constitutes Customer’s sole and exclusive remedies, and Data Hits’ entire liability, with respect to infringement of third party intellectual property rights.
d. Indemnification by Customer. Customer shall at its cost and expense (i) defend or settle any claim brought against Data Hits and its directors, officers and employees (“Data Hits Indemnitee(s)”) by an unaffiliated third party alleging that the Customer Data infringes or violates a third party’s intellectual property or privacy right(s), and (ii) pay, indemnify and hold Data Hits Indemnitees harmless from any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim. “Customer Data” means any data originated by Customer or Customer Representatives that Customer or Customer Representatives submit to the SaaS Product.
e. Procedures. Each indemnitor’s indemnification obligation is conditioned on the indemnitee: (i) giving the indemnitor prompt written notice of such claim, (ii) permitting the indemnitor to solely control and direct the defense or settlement of such claim, provided the indemnitor shall not settle any claim in a manner that requires the indemnitee to admit liability or pay money without the indemnitee’s prior written consent, and (iii) providing the indemnitor all reasonable assistance in connection with the defense or settlement of such claim, at the indemnitor’s cost and expense.
7. Warranties & Legal Disclaimer.
a. SaaS Product. Data Hits represents and warrants to Customer that the SaaS Product materially conforms to the specifications specified in the relevant Documentation. Customer must notify Data Hits of any warranty deficiencies within thirty (30) days from the provision of the deficient SaaS Product. Customer’s sole and exclusive remedy and the entire liability of Data Hits for Data Hits’ breach of this warranty will be for Data Hits, at its option, to (i) repair such SaaS Product (and/or deliver new applicable Software) or (ii) terminate the applicable License Term and refund any prepaid, unused subscription fees paid to Data Hits for the unused period of any such terminated License Term.
b. Professional Services. Customer may order Data Hits professional services from any authorized reseller or directly from Data Hits. Such professional services shall be subject to the terms and conditions of this Agreement and mutually agreed-upon statement of work (if any). For ninety (90) days following the date of delivery of any professional service by Data Hits to Customer, Mapalizer represents and warrants that such professional services shall be professional, workman-like and performed in a manner conforming to generally accepted industry standards and practices for similar services. Customer’s sole and exclusive remedy and the entire liability of Data Hits for Data Hits’ breach of this warranty will be for Data Hits, at its option, to re-perform the non-conforming services or refund the fees paid for such non-conforming professional services.
Disclaimer . TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THE SAAS PRODUCT AND SERVICES ARE PROVIDED “AS IS,” AND MAPALIZER PROVIDES NO OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND MAPALIZER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN PARTICULAR, WE ARE NOT LIABLE FOR ANY LOSS OF PROFITS, INJURIES, DAMAGES OF ANY SORT AND TYPE, DERIVATED (AND/OR NOT) BY THE USE OF OUR SOFTWARE AND SERVICES.
8. Term, Termination, Refunds. The access rights granted herein with respect to the SaaS Product shall remain effective until the License Term for the relevant SaaS Product expires or the license for the relevant SaaS Product is terminated. This Agreement shall remain effective until the earliest of termination in accordance with this Section 8, or expiration of the applicable License Term. If Data Hits agrees to reinstate a lapsed subscription license, then the terms of this Agreement shall apply. Either party may terminate this Agreement: (a) upon thirty (30) days’ written notice of a material breach by the other party (or three (3) business days in the case of a failure to pay), unless the breach is cured within the notice period, or (b) immediately, if the other party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. In addition, the parties may terminate this Agreement by mutual written consent. All other licenses terminate upon expiration or termination of this Agreement. Finally, we concede refunds for any customer which retains the software not useful/valid for his website/company/activity, if the customer asks for it writing us through the email firstname.lastname@example.org within 14 working days from the date of purchasing.
9. Limitation of Liabilities. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY SHALL BE NOT LIABLE IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR: (a) ANY LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE, OR (b) AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAYABLE TO MAPALIZER FOR THE RELEVANT SAAS PRODUCT, HARDWARE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 11.
Any disposition, legal citation or litigation derived by any potential clause present in this legal document will be processed and will be under the specific jurisdiction of the State of Canada and under the International Copyright jurisdiction.