Terms of Use Agreement

This Terms of Use Agreement governs Your use of Our FENOMEN Services. By using the FENOMEN Services, You agree to be bound by this Terms of Use Agreement. If You do not agree to the terms of this Agreement, DO NOT use the FENOMEN Services. We reserve the right to modify this Agreement from time to time without notice and in Our sole discretion at any time by updating this Agreement on the FENOMEN Services web site, and your continued use of the FENOMEN Services after any modifications by Us shall constitute your acceptance of such modifications.

1. Definitions

"We," "Us" or "Our" means FENOMEN SARL

"You" or "Your" means the company or other legal entity for which you are accepting this Agreement and Affiliates of that company or entity, Including Your Licensed Users.

“Licensed User” or “Licensed Users” means individuals who are authorized by You to use the FENOMEN Services, for whom subscriptions to the FENOMEN Services have been acquired pursuant to this Agreement, and who have been supplied user identifications and passwords by You (or by Us at Your request). Licensed Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.

“FENOMEN Services” means the online, web-based services provided by Us and available through the URL http://onlineservices.fenomen.pro or https://onlineservices.fenomen.pro or any new URL we would make available in the future; including any associated media, printed materials and electronic documentation.

“Generated Application” or “Generated Applications” means any application that You created using the FENOMEN Services.

“Runtime Libraries” means the FENOMEN software libraries used by the Generated Applications. The runtime libraries include all the assemblies prefixed by “Pulp” or “Fenomen”, including by not limited to the following: Pulp.Practices,Pulp.Practices.SilverLight, Pulp.Practices.MVPVM, Pulp.Practices.MVPVM.SilverLight, Pulp.Practices.MVPVM.Controls.SilverLight,Pulp.Practices.ORMSupportClasses, Pulp.Practices.ORMSupportClasses.SilverLight, Fenomen.Practices.SharePoint, Fenomen.Practices.SilverLight.Controls The Runtime Libraries also include any extra software library that may be shipped with future versions of the FENOMEN Services.

2. Purpose

2.1 This Agreement is an agreement between You and Us and governs Your use of the FENOMEN Services. The parties agree that the FENOMEN Services are intended solely for professional users, and may not be used by non-professionals or consumers.

2.2 The purpose of the FENOMEN Services is to generate software applications, and You acknowledge that you have been informed that you are responsible for assessing the cost of any specific developments that may be required in addition to the elements provided by Us under this Agreement, as well as any integration costs, either for You or Your own customers.

2.3 By using the FENOMEN Services, You agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, do use the FENOMEN Services.

3. Grant of License

3.1 This Section of the Agreement describes Your general rights to access and use the FENOMEN Services. The license rights described in this Section are subject to all other terms and conditions of this Agreement.

3.2 You may not use the FENOMEN Services other than in compliance with the provisions of this Agreement.

3.3 You shall not (a) make the FENOMEN Services available to anyone other than Your Licensed Users, (b) sell, resell, rent or lease the FENOMEN Services, (c) use the FENOMEN Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the FENOMEN Services to store or transmit malicious code or malware, or to engage in phishing or other fraudulent activity, (e) interfere with or disrupt the integrity or performance of the FENOMEN Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the FENOMEN Services or Our systems or networks.

3.3 The Parties hereby agree that the FENOMEN Services will be used by You for the purposes of creating software applications based on the Generated Applications. The Generated Applications are provided to You in the form of source code. The Generated Applications are free of rights for You, and You may thus distribute and sell them to your own customers.

3.4 The FENOMEN Services include a service to host and execute the Generated Applications. The Parties hereby agree that this hosting and execution service should only be used by You for development and validation purposes. For production use, You agree that You should install the Generated Applications on Your own servers or the servers of Your customers.

3.5 You must include a valid copyright message in your products based on the Generated Applications, in a location viewable by end-users (e.g. “About” box) that will serve to protect Our copyright and other intellectual property rights in the Software.

3.6 The Generated Applications are provided to You as a basis for developing professional software. You agree that you are responsible for any action and validation that must be taken to ensure the safe and reliable use of Generated Applications. You agree that under no circumstances will We be liable for any loss or damages of any kind incurred to You or any third party or customer as a result of the use of Generated Applications or any software based on Generated Applications.

3.7 The Generated Applications use Runtime Libraries. The Runtime Libraries are shipped with the Generated Applications and can be distributed with and only with the Generated Applications, royalty free and in object form.

3.8 We provide You with the Runtime Libraries’ source code. You acknowledge that the Runtime Libraries’ source code is confidential and contains valuable and proprietary trade secrets of Us. You must ensure that all individuals employed by You and all Your Licensed Users agree to expend every effort to insure the confidentiality of the Runtime Libraries’ source code. You agree to assume full responsibility for such individuals’ use, or misuse, of such disclosed source code as if it was your use or misuse. You may view, modify and use the Runtime Libraries’ source code only as authorized below:

3.8.1 The Runtime Libraries’ source code is provided to You and Your Licensed users for the sole purposes of education and enabling You to understand, at a source code level, why the Runtime Libraries operate as they do. You and Your Licensed Users may not use the Runtime Libraries’ source code as a basis of development of derivative works of the Runtime Libraries or other software products (other than as a basis for creating object code versions of the Runtime Libraries for inclusion in the Generated Applications).

3.8.2 Under no circumstances may any portion of the Runtime Libraries’ source code or any modified version of the source code be distributed, disclosed or otherwise made available to any third party.

3.8.3 We DO NOT provide technical support for any source code that has been modified by any party other than Us.

3.8.4 The Runtime Libraries’ source code is provided “as is”, without warranty of any kind

3.8.5 Pursuant to Section 3.8.1, You are not permitted under this Agreement to modify the source code for the Runtime Libraries. However, if You disregard this prohibition and develop any troubleshooting-related modifications of the Runtime Libraries independently, or if You contact Us for assistance with the Runtime Libraries and modify the source code for the Runtime Libraries jointly with Us, such modifications and all rights associated therewith will be the exclusive property of Us, and You agree to and hereby do assign all right, title and interest in and to such modifications to Us

3.9 We provide You with the source code of the Generated Applications which you can freely use as described in section 4.2.

3.10 The Parties hereby agree that You should not make any attempt to create your own services or software that would reuse the software design and architecture of the Generated Applications in the objective of creating a software or service that would be in competition with Us.

3.11 We will constantly improve the FENOMEN Services and improve the design, architecture and code of the Generated Applications, for the benefit of Our customers. We will take into account Your potential requests and suggestions for improvement of the design, architecture and code of the Generated Applications and make Our possible to make You happy and we may integrate Your requests and suggestions to the FENOMEN Services and thus to the Generated Applications. Such modifications and all rights associated therewith will be the exclusive property of Us, and you agree to and hereby do assign all right, title and interest in and to such modifications to Us.

4. Intellectual Property Rights

4.1 Our Intellectual property rights

We and Our suppliers own all of the intellectual property rights in and to the FENOMEN Services, the Runtime Libraries and any upgrades thereof and, more generally, any material or information that may be made available to You under this Agreement, including but not limited to any databases, management tools, platforms, web pages, text, photographs, pictures, icons, sound or videos.

All of this material is confidential information and trade secret of Us, irrespective of whether or not such items are covered by patent or otherwise protected under applicable legislation, by copyright or any industrial or intellectual property rights or otherwise.

Our obligations will not apply to any such claims, actions or final adverse decisions as may be based on:

(i) any software developed by You based on the Generated Applications or Runtime Libraries.
(ii) changes made by You to the Generated Applications or the Runtime Librairies.
(iii) Your distribution of the Generated Applications or Runtime Libraries to any third parties or customers.
(iv) any use of the Generated Applications or Runtime Libraries for Your benefit or the benefit of third parties or customers.

You hereby agree to indemnify and hold Us harmless against any expenses or damages it may incur as a result of such claims or actions.

4.2 Your Intellectual Property Rights

You will be the owner of all of the intellectual property rights related to the Generated Applications or any software application based on the Generated Applications you may create using the FENOMEN Services, with respect of section 3.10.

In this regard, the Parties hereby agree that any software applications developed by You based on the Generated Applications will be independently developed and We are unrelated to any such developments.

You agree that You shall be responsible, in connection with any such developments based on Generated Applications or Runtime Libraries, for ensuring compliance with third-party rights, including in particular publicity rights, intellectual or industrial property rights, including copyrights, patent, design, drawing and model or trademark rights.

You hereby acknowledge and agree that You shall be fully liable for any developments You may create based on Generated Applications and, in this respect, agree to indemnify and hold Us harmless in the event of any adverse decision being ordered against Us based on the infringement or breach of any third-party patent, copyright, trademark or business secrets that may in fact be due to Your developments.

6. Modification to the services and prices

6.1 We reserve the right at any time and from time to time to modify or discontinue temporarily the FENOMEN Services (or any part thereof) with or without notice.

6.2 Prices of the FENOMEN Services are subject to change upon 30 days’ notice from Us. Such notice may be provided at any time by posting the changes to the FENOMEN Services web site.

6.3 We shall not be liable to You or to any third party for any modification, price change, suspension or discontinuance of the FENOMEN Services.

7. Term and Termination

This Agreement and the License granted hereunder shall last as long as You use the FENOMEN Services in compliance with this Agreement. Without prejudice to any other rights, We shall be entitled to terminate this Agreement in case of breach by You of any of the terms hereof.

8. Assignment

You hereby expressly agree not to assign, either for a consideration or free of charge, all or any part of its rights and obligations under this Agreement.

9. Force majeure

We shall not be liable if the performance of any or all of its obligations under this Agreement is prevented due to a force majeure event as defined by case law.

10. Miscellaneous provisions

No waiver of any breach of any provision of this Agreement shall constitute a waiver of any other breach, and no waiver of any provision or any breach thereof shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any clause under this Agreement is held to be invalid under any laws, regulations or by a final and binding decision rendered by a court of competent jurisdiction, this shall in no way affect the validity of the other clauses under this Agreement, which shall remain in full force and effect between the parties. The provisions hereof may not be validly suspended, supplemented or amended other than by way of a written amendment signed by both Parties. All notices permitted or required to be made hereunder shall be deemed valid if sent to the addresses of the parties’ respective registered offices, where they elect to be domiciled.

11. Governing Law and Jurisdiction

This Agreement shall be governed by the laws of France. In the event of any disputes arising out of the interpretation or performance of this Agreement, the Parties shall endeavor to settle the matter out of court prior to any court action. If no agreement can be reached to settle a dispute concerning the interpretation or performance of this Agreement, the competent Courts of Paris shall have exclusive jurisdiction, notwithstanding multiple defendants or impleader, even in case of fast-track emergency proceedings or protective summary proceedings or motions.

12. Claims

Any claims and/or objections by You against Us must be notified by You within one (1) month as from the discovery of the causal event, failing which such claims or actions shall lapse.

13. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FENOMEN SARL OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE FENOMEN SERVICES AND GENERATED APPLICATIONS, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS TERMS OF USE AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF FENOMEN SARL OR ANY SUPPLIER, AND EVEN IF FENOMEN SARL OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14. LIMITATION OF LIABILITY AND REMEDIES.

NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF FENOMEN SARL AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS TERMS OF USE AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING (EXCEPT FOR ANY REMEDY OF REPAIR OR REPLACEMENT ELECTED BY FENOMEN SARL WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES OR EURO 5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

15. ENTIRE AGREEMENT.

This Terms of Use Agreement (including any addendum or amendment to this terms of use Agreement which is included with the FENOMEN Services, Generated Applications and Runtime Libraries) is the entire agreement between You and Us relating to the FENOMEN Services and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the FENOMEN Services and Generated or any other subject matter covered by this Terms of Use Agreement. To the extent the terms of any of Our policies or programs for support services conflict with the terms of this Terms of Use Agreement, the terms of this Terms of Use Agreement shall control.

REVISED: JUNE 2011