This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or an entity – “You”) and DEMETRIA COLOMBIA S.A.S. (“Demetria”).
The product that is subject to this license is all software distributed by or on behalf of Demetria, including, without limitation, as part of applications and services, cloud services, and developer/researcher kits and SDKs (software development kits) (collectively – the “Software”). This EULA governs all such Software and any upgrades, updates, patches, hotfixes, modules, routines, feature enhancements, and additional versions of the Software that replace or supplement the original Software (“Updates”) and their associated media, printed materials, online or electronic documentation, distributed by or on behalf of Demetria. Updates will be considered Software for all purposes of this EULA. This EULA, in and of itself, does not entitle you to any updates at any time.
Subject to the terms, conditions, and restrictions of this EULA, Demetria hereby grants You a limited, personal, non-exclusive, non-transferable, non-assignable license, without rights to sublicense, to install or have installed, display, and use the Software (in object code only) solely for your own internal purposes on any mobile phone, computer, or other applicable devices or programs [only on as many Devices expressly permitted by Demetria, or on one Device if no other entitlement is specified] (“Device”), and for such period specified in a term license, or perpetually if no term is specified.
You may not, and will not allow a third party to rent, lease, lend, sell, redistribute, sublicense or otherwise transfer or encumber by any means the Software.
You may not copy (except as expressly permitted by this license), reproduce, republish, post or transmit, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing the use of any open source components included with the Software).
You may not use the Software on a service basis or permit other individual/s or entity/is to create links to the Software or “frame” or “mirror” the Software on any other server or wireless or Internet-based device. You may not, and will not allow a third party to use the Software in excess of the number of licenses purchased from or expressly authorized by Demetria.
The Software is licensed, not sold, to You for use only under the terms of this EULA, unless the Software or a product or Service including Software is accompanied by a separate license agreement, in which case the terms of that separate license agreement will govern, subject to Your prior acceptance of that separate license agreement. Demetria reserves all rights not expressly granted to You.
This license is conditioned upon Demetria receiving your timely payment of any fees or other consideration applicable (if any) to the Software and to any hardware that runs or uses the Software. You may not copy the Software except for a reasonable number of copies solely as needed for backup or archival purposes or as otherwise expressly permitted above. You may not modify or remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary notices or markings on or in the Software.
The rights granted herein are limited to Demetria’s intellectual property rights in the Software and do not include any other third party’s intellectual property rights. If the Software was provided to you on removable media (e.g., CD, DVD, or USB drive), you may own the media on which the Software is recorded but Demetria retains ownership of the Software itself and all related intellectual property rights therein. If the package accompanying hardware purchased by You contains storage media, you may use only the media appropriate for your device. You may not use the storage media on another device or network.
You are not granted any rights to any trademarks or service marks of Demetria or any of its licensors or suppliers.
The license is effective until terminated by You or Demetria prior written notice. Your rights under this license will terminate automatically if You fail to comply with any term(s) of this EULA. Upon termination of the license, You shall cease all use of the Software, and destroy all copies, full or partial, of the Software.
In addition, Demetria may terminate any license to Software distributed for free, at any time in its sole discretion. The parties recognize and agree that their obligations under Sections 2, 3, 4, 5, 6, 8,9,10, and 11 of this EULA, as well as obligations for payment, shall survive the cancellation, termination, and/or expiration of this EULA, and/or the licenses granted hereunder to the extent allowable under applicable laws. Demetria will not have any obligation upon the termination of this EULA to refund any portion of any fee.
The software may enable access to Demetria and third-party applications and/or services (“Services”). Use of Services may require that You accept additional terms of service. You agree to use the Software and Services at Your sole risk and that Demetria shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable. Certain Services may display, include, or make available content, data, information, applications, or materials from third parties (“Third Party Materials”). By using the Services and/or Software, You acknowledge and agree that Demetria is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third Party Materials.
Demetria does not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any third-party Services, Third Party Materials, or for any other materials, products, or services of third parties. Demetria does not guarantee the availability, accuracy, completeness, reliability, or timeliness of data displayed by any Services.
You agree that any Services may contain proprietary content, information, and material that is protected by applicable intellectual property and other laws, including but not limited to the copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services.
No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, re-engineer, decompile or create derivative works based on the Services, in any manner, and You shall not exploit the Services in any unauthorized and/or illegal way whatsoever.
Demetria and its licensors and suppliers, if any, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Demetria be liable for the removal of or disabling of access to any such Services.
Demetria may also impose limits on the use of or access to certain Services, in any case, and without notice or liability.
If the Software includes development or research tools (such as scripting tools, APIs (application programming interfaces), cloud APIs, developer applications, or sample code) (“Development Tools”) and unless there is a separate agreement between you and Demetria for the Development Tools, you may use such Development Tools to create new applications for Demetria’s spectrometer and code (within the parameters set forth in this EULA and in the documents governing your specific use of the Development Tools, and within the parameters set forth in the Development Tools themselves) and for no other purpose.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA, THE DEVELOPMENT TOOLS ARE PROVIDED “AS IS” WITHOUT INDEMNITY OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. Demetria bears no liability for any direct, indirect, incidental, punitive, special, or consequential damages resulting from the use (or attempted use) of the Development Tools and has no duty to provide support to You.
You expressly acknowledge and agree that the use of the Software is at your sole risk and that the entire risk as to the satisfactory quality, performance, accuracy, and effort is with You. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND DEMETRIA HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. DEMETRIA DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT ALL FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE, WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED.
No oral or written information or advice is given by Demetria or its authorized representatives shall create a warranty. Should the Software or Services prove defective, You assume the entire cost of all necessary servicing, repair, or correction.
This disclaimer of warranty may not be valid in some jurisdictions and you may have warranty rights under laws that may not be waived or disclaimed. Any such warranty extends only for thirty (30) days from the date of delivery of the Software (unless local law provides otherwise, in which case such warranty shall apply to the minimum extent permissible).
To the extent not prohibited or restricted by applicable law, in no event shall Demetria, nor anyone on its behalf, be liable for personal injury, or any incidental, special, consequential, or other indirect damages whatsoever, including, without limitation, damages for loss of profits, loss or corruption of data or software, business interruption or any other commercial damages or losses, arising out of or related to Your use or inability to use the Software, however, caused, regardless of any theory of liability (contract, tort or otherwise) and even if Demetria or anyone on its behalf has been advised of the possibility of such damages.
Notwithstanding anything to the contrary set forth in this EULA, In no event shall Demetria’s total liability to you for any and all damages and claims arising out of or in connection with this EULA, the Software and/or any Services (other than as may be required by applicable law) exceed the amount of the lesser of: (i) the total amount received by Demetria for the applicable Software license during the twelve-month period immediately preceding the date on which the relevant claim arose, or (ii) the amount received by Demetria for the specific hardware on which the particular application is connected to. The foregoing limitations will apply even if the above-stated remedy fails of its essential purpose.
Some jurisdictions do not allow the limitation of liability for certain conditions, so this limitation may not apply to You. In the event that applicable law prohibits any limitation on liability herein, the parties agree that such limitation will be automatically modified, but only to the extent required to make the limitation compliant with applicable law.
You acknowledge that the Software is subject to export restrictions of various countries. You agree to comply with all applicable international and national laws that apply to the Software, including all of the applicable export restriction laws and regulations. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear missiles, or chemical or biological weapons.
U.S. Government End-Users Restricted Rights. The Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer
Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States.
The laws of the State of New York USA, excluding its conflicts of law rules, govern this license and your use of the Software. Your use of the Software may also be subject to other local, state, national, or international laws. This EULA shall not be governed by the UN Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
Dispute Resolution. Contact us first. If a dispute arises between us, our goal is to learn about such disputes and address your concerns. You agree that you will notify Demetria about any dispute you have with Demetria regarding these Terms or our Products or Services by contacting Demetria at least ninety (90) days before commencing any legal action under this Agreement.
Binding Arbitration. You and Demetria agree to submit any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to this EULA to binding arbitration rather than by filing any lawsuit in any forum other than set forth in this Section 11. Further, you agree arbitration is final and binding. You also waive your right to any form of appeal, review or recourse to any court or other judicial authority, insofar as such waiver may be validly made. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to your use of the Software.
Arbitration Procedures. You must first present any claim or dispute to us by contacting Demetria to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute cannot be resolved within 90 days after presenting the claim or dispute. Demetria may request arbitration against you at any time after it has notified you of a claim or dispute. The arbitration of any dispute or claim shall be conducted in accordance with the then-current and applicable rules of the American Arbitration Association as modified by this EULA. The place of any arbitration will be New York, New York, USA, and will be conducted in the English language. Claims will be heard by a single arbitrator. The arbitrator may not award relief in excess of or contrary to what this EULA provides, order consolidation or arbitration on a class-wide or representative basis, or award punitive or consequential damages or any other damages aside from the prevailing party’s actual damages, except that the arbitrator may award on individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute.
Any arbitration shall be confidential, and neither you nor Demetria nor the arbitrator may disclose the existence, content, or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
No Class Actions. There shall be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general).
Fees and Expenses. All administrative fees and expenses of arbitration will be divided equally between you and Demetria. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing.
YOU MUST CONTACT DEMETRIA WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE. This arbitration clause shall survive termination of these Terms.
Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the foregoing, Demetria may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
This EULA is the entire agreement between you and Demetria relating to the Software and supersedes all prior written communications, proposals, and representations with respect to the Software or any other subject matter covered by this EULA. If any provision of this EULA is held to be void, invalid, unenforceable, or illegal, the other provisions shall continue in full force and effect.
Demetria reserves the right to amend this EULA, at its sole discretion.
Posting of any amended EULA on Demetria’s web-site shall be deemed to be an amendment/replacement of this EULA.