This End-User License Agreement (the “License” or “Agreement”) is between Ellp Ltd. (C 73921), a limited liability company registered in Malta and having its registered address at Orange Point, Floors 2/3, Dun Karm Street, B'Kara By-Pass, Birkirkara BKR9037, Malta, Europe (hereinafter “Ellp”) and the end user (“You”).
If you are a consumer, You may only enter into this Agreement or use the Software if You are at least 18 years of age (or the applicable legal age in your country if it is higher than 18). By clicking the box marked “I agree” or otherwise indicating assent electronically, You consent to be bound by and become a party to this Agreement and You represent that You have the authority to enter into this Agreement for the use of the Ellp Software, hereinafter “Software”. For the purposes of this Agreement, “Software” shall mean the Ellp Software, any Upgrade thereof provided from time to time, related Documentation, and excluding Third-Party Software.
If You do not agree to be bound by all of the terms of this Agreement click the ‘Cancel’ button and do not install the Software. Ellp recommends that You keep a copy of this Agreement for Your records.
Subject to the terms and conditions of this Agreement, Ellp grants You a limited, personal, non-exclusive, non-transferable, non–sub-licensable and revocable license to install solely for Your own private use, the Software and related written materials in either printed text or machine readable version (the “Documentation”) for an indefinite period of time.
The use of the Software in or for any public or private company or government institution is not permitted and the Software is to be used for non-commercial purposes only; non-commercial use implies that neither direct nor indirect profit is made from using the Software.
The Software is distributed as freeware for non-commercial use. You may download and use this Software free of charge. Notwithstanding, Ellp reserves the right to charge fees for future use of or access to the Software. The Software may be used as many times as you like, for as long as you like and may be: copied, backed up, installed/reinstalled on any number of computers.
The Software is licensed as a single product. Its component parts may not be separated.
Unless specifically permitted in terms of this Agreement, You may not (i) copy, reproduce, change, modify, create a derivative work thereof, reverse-compile or reverse-engineer, disassemble, decompile or otherwise attempt to extract the source code or internal data of the Software or any part thereof; (ii) remove or in any way obscure any ownership or trademark notices on the Ellp Software; (iii) sublicense, sell, rent, lease, transfer, assign, display, host, outsource, disclose, distribute or otherwise commercially exploit the Software or related Documentation; (iv) access the Software to build a similar or competitive product or to publish any performance or benchmark test or analyses relating to the Software; (v) circumvent any other mechanism used or deployed by Ellp to protect the Ellp Software against unlicensed use, copying or distribution; (vi) post or otherwise make available, the Ellp Software or any portion thereof, on the Internet or other publicly available forum; (vii) export or re-export the Ellp Software or any underlying information or technology in violation of the export laws of the United States, the European Union or any other applicable laws or regulations; or (vii) make any use of such Ellp Software in any way that violates any applicable law.
The Software cannot be installed on any mobile devices, tablets, Linux®- or Apple®-based operating systems.
Ellp may provide You with Upgrades and/or Content Updates from time to time. For the purposes hereof, “Upgrade” means a new version of the Ellp Software containing technical modifications, updated information, altered functionality, or any other changes that are intended by Ellp to improve or to add to, delete or otherwise modify any aspect of the Ellp Software; and “Content Update” means an update of the content used by the Ellp Software that might need to be updated from time to time. Upgrades and/or Content Updates may be provided by Ellp via online services. The Ellp Software may automatically download and install Upgrades and/or Content Updates from time to time. You agree to receive such updates (and permit Ellp to deliver these to you) as part of your use of the Ellp Software.
You may be granted a Beta Version of the Ellp Software (the “Beta Version”). You acknowledge that the Beta Version is a pre-release version and as such does not represent a final Software from Ellp, may not operate/function in conformity with its Documentation, certain of its features/functionality may be limited or be fully or partially unavailable and is believed to contain defects, including bugs, errors and other problems that could cause system failures and data loss (“Defects”). The Documentation accompanying the Software might also be incomplete. The primary purpose of this Beta Version is to obtain feedback on performance and the identification of any Defects. Consequently, provision of the Beta Version is experimental and shall not create any obligation for Ellp, including the obligation to continue to develop the Software. Your use of it is at Your sole risk and You are responsible for any decisions made and actions taken based on or relating to the Software, irrespective of any recommendations offered by such Software. You are advised to safeguard important data, to use caution and not to expect or rely in any way on the correct functioning or performance of the Software and/or Documentation. Ellp is not bound to provide you with support services for the Beta Version and provides no assurance that any specific Defects in the Software will be corrected.
The Ellp Software is protected by copyright, as well as other intellectual property laws both nationally and under international treaty provisions. Notwithstanding anything else, the Ellp Software is licensed and not sold. This License does not give You any intellectual property rights in the Ellp Software or any Third-Party Software, and does not grant You any license, right or interest in any trade mark, trade name or service mark of Ellp or any other third party. Ellp owns and retains all right, title and interest in and to the Ellp Software, all Copies or portions of the Ellp Software, and any derivative works thereof. Any Third-Party Software or Open Source Software provided with the Software and any trade mark, trade name or service mark therein is the property of their respective owner(s).
You may provide Ellp with feedback, suggestions and comments, regarding the use of the Software, including, but not limited to usability, error, compatibility problems, bug reports or desired features (collectively “Feedback”). You agree and understand that Ellp is not bound to take action based on Feedback which You may provide. However, in the case that Ellp does make use of Your Feedback, You hereby assign to Ellp all rights in such Feedback and agree that Ellp shall have the right to freely use, modify, share, distribute and communicate such Feedback and related information, for any and all commercial and/or non-commercial purposes, without charge and free of any restriction or obligation. You warrant that any such Feedback you elect to communicate to Ellp is not subject to any license or any other third party right. You further acknowledge that You do not have any proprietary rights over the Software or parts thereof which may constitute derivative works following Your Feedback.
A. Ellp takes commercially reasonable efforts to ensure that the Software performs according to the Documentation. However you acknowledge and agree that the Ellp Software is provided to You under this Agreement on an “as is” basis, with all faults, and without warranty or representation of any kind except as expressly stated herein. The Ellp Software is provided as general purpose software and not for Your particular use. You accept that Ellp and its suppliers do not represent or warrant that the Ellp Software will meet Your requirements or be error- or defect-free or that any defects in the operation or functionality of the Ellp Software will be corrected. It is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Specifications meet Your requirements.
B. Ellp makes no representation regarding Third-Party Software which may be accessed through or included with the Software.
C. If, You notify Ellp in writing of any defect or fault in the Software as a result of which it fails to perform substantially in accordance with the Specifications, Ellp will, at its sole option and Your sole remedy, either (a) repair or replace the Software, or (b) terminate this License by notice in writing to You, in each case provided that You provide all the information that may be necessary to assist Ellp in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable Ellp to re-create the defect or fault.
D. Except as expressly stated in this License, and to the maximum extent permitted by law, there are no warranties, conditions, or representations of any kind that are binding on Ellp, whether express or implied, including, but not limited to, implied warranties or conditions of merchantability, fitness for a particular purpose, satisfactory quality, accuracy of data, accessibility, use of reasonable skill and care, or non-infringement of intellectual property rights, which are hereby excluded to the fullest extent permitted by law.
E. Any implied warranties that cannot be excluded are limited to thirty (30) days or to the shortest period permitted by applicable law, whichever is the greater.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCE AND UNDER NO LEGAL THEORY/INSTITUTE, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL ELLP OR ITS SUPPLIERS, BE LIABLE TO YOU OR ANY THIRD-PARTY BENEFICIARY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGE FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF DATA, LOSS OF PRIVACY, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, COMPUTER FAILURE OR MALFUNCTION AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF, OR IN ANY WAY RELATED TO, THE USE OR THE INABILITY TO USE THE ELLP SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE IN CONNECTION WITH ANY ASPECT OF THIS SOFTWARE, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY, AND EVEN IF ELLP OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE THAT THE LIMITATION SET FORTH IN THIS SECTION IS AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES.
Some jurisdictions do not allow the exclusion or limitation of liability, so the above limitations might not apply to You.
You will indemnify and hold Ellp harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to Your use of the Ellp Software. Your obligations under this section shall survive the expiration or termination of this Agreement.
The Software may contain or be provided with components subject to the terms and conditions of ‘open source’ software licenses (‘Open Source Software’). To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software. Any Open Source Software is provided “AS IS” and without any warranty of any kind.
The term of this License is for an indefinite period except for the Beta Version of the Software for which the default term shall be for so long as Ellp makes such Beta Version available to You. The License shall automatically terminate if You fail to comply with any of its terms at any one time without prejudice to the rights of Ellp to compensation for damages in terms of the applicable law. Immediately upon such termination, any license granted hereunder shall terminate and You shall immediately cease using Ellp and destroy all copies of the Ellp Software in Your possession. The terms of this Agreement which are intended to survive expiration or termination shall remain in effect.
Ellp may provide You with support services related to the Ellp Software. Any obligation Ellp may have to support the Ellp Software ends upon the termination of this License. You may contact our support team on firstname.lastname@example.org.
If Upgrades are granted, such Upgrades may be accompanied by a new License and may be conditional on acceptance of such License.
Any rights not expressly granted under this License are being reserved.
This License is the entire agreement between You and Ellp with respect to this subject matter and supersedes any and all prior or contemporaneous oral or written agreements, representations, negotiations, any additional terms or other similar communication between the parties.
If any part of this Agreement is found to be void, unenforceable or invalid, that part will be deemed stricken and will not affect the validity of the other License provisions.
Failure by either party to enforce any provision of this License will not be deemed a waiver of future enforcement of that or any other provision.
Ellp may transfer its rights and obligations under this License to another organisation, but this will not affect Your rights or Ellp’s obligations under this License. You may only transfer Your rights or Your obligations under this License to another person if Ellp agrees in writing.
A person who is not a party to this Agreement shall not have any rights to enforce any term of this Agreement.
This Agreement will be governed by and construed under the Laws of Malta, Europe excluding any conflict of rules of law.
IF YOU ARE A UNITED STATES CITIZEN, YOU AGREE TO ARBITRATE DISPUTES WITH ELLP AS FOLLOWS:
A. Purpose. If You have a Dispute (as defined below) with Ellp that cannot be resolved through an informal dispute resolution with Ellp, You or Ellp may elect to arbitrate that Dispute in accordance with the terms of this Arbitration Provision rather than litigate the Dispute in court. Arbitration means You will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury.
B. Definitions. The term “Dispute” means any dispute, claim, or controversy between You and Ellp regarding any aspect of Your relationship with Ellp, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional or non-intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision. “Dispute” is to be given the broadest possible meaning that will be enforced. As used in this Arbitration Provision, “Ellp” means Ellp and its parents, subsidiaries and affiliated companies and each of their respective officers, directors, employees and agents.
C. Right to Opt Out. IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY ELLP IN WRITING WITHIN 30 DAYS OF THE DATE OF YOUR SOFTWARE ORDER BY EMAILING US ON email@example.com OR BY MAIL TO ELLP AT ORANGE POINT, FLOORS 2/3, DUN KARM STREET, B'KARA BY-PASS, BIRKIRKARA BKR9037, MALTA (EUROPE), ATTN: LEGAL DEPARTMENT. YOUR WRITTEN NOTIFICATION TO ELLP MUST INCLUDE YOUR NAME, ADDRESS AND ELLP ORDER NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH ELLP THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH ELLP OR THE DELIVERY OF SOFTWARE OR SERVICES TO YOU BY ELLP .
D. Initiation of Arbitration Proceeding/Selection of Arbitrator. If You or Ellp elect to resolve Your Dispute through arbitration pursuant to this Arbitration Provision, the party initiating the arbitration proceeding may open a case with the American Arbitration Association - Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043, 877-495-4185, www.adr.org under the Commercial Arbitration Rules of the AAA.
E. Arbitration Procedures:
1. Because the Licence/Software provided to You by Ellp concern interstate and/or international commerce, the Federal Arbitration Act (“FAA”), not state arbitration law, shall govern the arbitrability of all Disputes. However, applicable federal law or the law of the state where You receive the Software from Ellp may apply to and govern the substance of any Disputes if for any reason the Choice of Law Provision of this Agreement does not apply. No state statute pertaining to arbitration shall be applicable under this Arbitration Provision. If there is a conflict between this Arbitration Provision and the rules of the arbitration organization chosen, this Arbitration Provision shall govern. If AAA will not enforce this Arbitration Provision as written, it cannot serve as the arbitration organization to resolve Your dispute with Ellp. If this situation arises, the parties shall agree on a substitute arbitration organization. If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will enforce this Arbitration Provision as written. If there is a conflict between this Arbitration Provision and the rest of the Agreement with Ellp , this Arbitration Provision shall govern.
2. A single arbitrator will resolve the Dispute. The Arbitrator shall also have the sole authority to determine whether a Dispute is subject to arbitration in accordance with this Arbitration Provision. You should know that participating in arbitration may result in limited discovery depending on the rules of the arbitration organization that is chosen to resolve the Dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.
3. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for purposes of enforcement.
4. If an award granted by the arbitrator exceeds $25,000, either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization. The arbitration organization will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which exists under the FAA.
1. YOU MUST CONTACT US 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.
2. ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER ELLP CUSTOMERS, OR OTHER PERSONS SIMILARLY SITUATED.
G. Location of Arbitration. The arbitration will take place at a location convenient to You in the area where You downloaded the Ellp Software.
H. Payment of Arbitration Fees and Costs. ELLP WILL ADVANCE ALL ARBITRATION FILING FEES AND ARBITRATOR’S COSTS AND EXPENSES UPON YOUR WRITTEN REQUEST GIVEN PRIOR TO THE COMMENCEMENT OF THE ARBITRATION. YOU ARE RESPONSIBLE FOR ALL ADDITIONAL COSTS THAT YOU INCUR IN THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO, FEES FOR ATTORNEYS OR EXPERT WITNESSES. IF THE ARBITRATION PROCEEDING IS DECIDED IN ELLP’S FAVOR, YOU SHALL REIMBURSE ELLP FOR THE FEES AND COSTS ADVANCED TO YOU ONLY UP TO THE EXTENT AWARDABLE IN A JUDICIAL PROCEEDING. IF THE ARBITRATION PROCEEDING IS DETERMINED IN YOUR FAVOR, YOU WILL NOT BE REQUIRED TO REIMBURSE ELLP FOR ANY OF THE FEES AND COSTS ADVANCED BY ELLP . IF A PARTY ELECTS TO APPEAL AN AWARD TO A THREE-ARBITRATOR PANEL, THE PREVAILING PARTY IN THE APPEAL SHALL BE ENTITLED TO RECOVER ALL REASONABLE ATTORNEYS’ FEES AND COSTS INCURRED IN THAT APPEAL. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ARBITRATION PROVISION, ELLP WILL PAY ALL FEES AND COSTS THAT IT IS REQUIRED BY LAW TO PAY.
I. Severability. If any clause within this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision, and the remainder of this Arbitration Provision will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable, and the dispute will be decided by a court. In the event this entire Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Arbitration Provision, You and Ellp have each agreed to waive, to the fullest extent allowed by law, any trial by jury.
J. Exclusions from Arbitration. YOU AND ELLP AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION: (1) ANY CLAIM FILED BY YOU OR BY ELLP THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER CUSTOMER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS; (2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS; AND (3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF SOFTWARE OR SERVICE.
K. Continuation. This Arbitration Provision shall survive the termination of Your Agreement and/or any service(s) with ELLP.
All disputes arising out of or in relation to this Agreement that (a) do not include a United States citizen as party or (b) involve any claim that is not subject to the arbitration provisions of Section 18 for any reason, including, but not limited to, Your timely notice opting out of Arbitration in accordance with Section 20(C) above, shall be submitted to the exclusive jurisdiction of the Courts of Malta, provided however, that Ellp retains the right, at its option, to pursue any litigation arising from Your use of the Ellp Software in Your national Courts if You are not a citizen of Malta.
Ellp will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Agreement that is caused by any act or event beyond Ellp’s reasonable control (an ‘Event Outside Our Control’). If an Event Outside Our Control takes place that affects the performance of Ellp’s obligations under this Agreement: (a) Ellp’s obligations under this Agreement will be suspended and the time for performance of its obligations will be extended for the duration of the Event Outside Our Control; and (b) Ellp will use its reasonable endeavours to find a solution by which its obligations under this Agreement may be performed despite the Event Outside Our Control.V.12.10.2016