End User License Agreement for Fundamentals App for Microsoft Dynamics 365 Business Central (EULA)
by Tangicloud Technologies, Inc.
IMPORTANT NOTICE – READ CAREFULLY: Prior to download, installation, copy or use of this extension, please read the below terms of the product application. BY DOWNLOAD, INSTALLATION, COPY OR USE OF THE EXTENSION YOU EXPRESSLY CONSENT AND AGREE TO THESE TERMS AND CONDITIONS. ALL OF THE CLAUSES ARE IMPORTANT, BUT PLEASE PAY SPECIAL ATTENTION TO THE CLAUSES THAT ARE IN BOLD AND ITALIC FONT STYLES AS THESE CLAUSES MAY LIMIT OUR RESPONSIBILITY OR INVOLVE SOME RISK FOR YOU.
YOU AGREE THAT YOUR USE OF THE EXTENSION INDICATES THAT YOU HAVE READ THIS EULA; YOU UNDERSTAND IT AND AGREE TO BE BOUND BY ITS PROVISIONS.
Definitions and interpretation:
In this Agreement, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings –
- “Affiliates” means any legal entity that directly or indirectly owns, is directly or indirectly owned by, or that is directly or indirectly under common ownership with a Party to this Agreement.
- “Agreement or EULA” means this End User License Agreement together with the annexures or addendums hereto, as well as all amendments thereto executed by the Parties.
- “Confidential Information” means any records, data, or information of any nature tangible or intangible, oral or in writing and in any format or medium, which is collected, received, processed, stored or transmitted by the Disclosing Party in any manner connected with this Agreement, or data which by its nature or content is identifiable as confidential and/or proprietary to the Disclosing Party and/or any third party, or which is provided or disclosed in confidence, and which the Disclosing Party or any person acting on his behalf may disclose or provide to the Receiving Party or which may come to the knowledge of the Receiving Party by whatsoever means, but Confidential Information excludes information or data which –
- is lawfully in the public domain at the time of disclosure thereof to the Receiving Party; or subsequently becomes lawfully part of the public domain by publication nor otherwise; or
- becomes available to the Receiving Party from a source (other than the Disclosing Party) which is lawfully entitled to disclose such Confidential Information to the Receiving Party; or
- is disclosed pursuant to a requirement or request by operation of law, regulation of court order; but then only to the extent is disclosed and only in the specific instance and under the specific circumstances in which it is obliged to be disclosed, provided that the onus shall at all times rest on the Receiving Party to establish that such information falls within such exclusions;
- “Destructive Code” means any “viruses”, “Trojan horses”, computer code, malware, instructions, devices or other materials designed to disrupt, disable, harm or otherwise impede in any manner the operation of any device, technology, services, data, storage media, programs, equipment or communications, or otherwise interfere with operations thereof;
- “Disclosing Party” means a Party (including an Affiliate) to the extent that it discloses or has disclosed any Confidential Information to the other Party in terms of this Agreement or in relation to any engagement of the Parties prior to, but relating to this Agreement;
- “documentation” means any explanatory materials, such as user manuals, training materials, product descriptions, regarding the implementation and use of the Nonprofit Essentials Extension that is provided by Tangicloud. Documentation is provided in printed, electronic or online form.
- “Dynamics 365 Business Central” means enterprise resource planning (ERP) software and platforms from Microsoft. The product is part of the Microsoft Dynamics family and is the successor product to Microsoft Dynamics NAV(formerly Navision).
- “end user” means the individual or entity that is licensed or authorized to use the Software under this Agreement.
- “Extension” or “Fundamentals” means the Fundamentals software that extends Dynamics 365 Business Central for the nonprofit and government industries.
- “force majeure” means any event beyond a Party’s reasonable control that, by its nature, could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), acts of God, war, riot, embargoes, acts of civil or military authorities, acts of terrorism or sabotage, shortage of supply or delay in delivery by Tangicloud’s vendors, fire, flood, earthquake, accident, radiation, inability to secure transportation, failure of communications or energy sources, malicious damage, breakdown of plant or machinery, or default of suppliers or sub-contractors.
- “Intellectual Property Rights” means any and all rights, title and interest, any knowhow (not in the public domain); invention (whether or not patented); design, goodwill, trade name, trademark (whether or not registered), or any material in which copyright subsists (whether or not registered), and all other identical or similar intellectual property as may exist anywhere in the world and any applications for the registration of such intellectual property;
- “License Fee” means the annual subscription fee paid to use the Fundamentals Extension;
- “Party” or Parties” means you and us together;
- “Personal Data” means any information relating to an identified or identifiable individual or is otherwise defined as ‘Personal Data’ under the General Data Protection Regulation or other applicable data protection laws. To the extent that the definition of ‘Personal Data’ under the applicable data protection laws is broader than the preceding definitions, that broader definition shall apply.
- “Receiving Party” means the Party (and its Affiliates), other than the Disclosing Party, to the extent that it receives or has received disclosure of any of the Confidential Information from the Disclosing Party in terms of this Agreement, or in relation to any engagement of the Parties prior to, but relating to this Agreement;
- “Support Services” means support regarding the Extension if there are any.
- “Term” means the period the Extension is valid for unless terminated or extended by written agreement;
- “You” means the legal entity that has agreed to this Agreement, your Affiliates, and each of your, and your Affiliates’ employees, contractors, agents, and suppliers.
- “Partner” means an authorized Dynamics 365 Business Central reseller who has been approved by Tangicloud to sell, implement and support Fundamentals.
3. Grant of license
Tangicloud grants to You a limited, non-transferable, non-assignable license to download and use Fundamentals for the Term, subject to the terms of this Agreement. We reserve all other rights. The rights granted to You are revocable which means that we can take back such rights.
You may use the Extension in accordance with this license if You:
(i) do not remove any proprietary notice language in any copies of the Extension;
(ii) use the Extension only in accordance with this Agreement and you do not copy, transfer, post or broadcast the Extension in any media;
(iii) make no modifications to any of the content in Extension, including reverse engineering, decomplication or disassemble of the Extension, unless authorized by us in writing;
(iv) do not make any additional representations or warranties relating to the Extension.
(v) may only use the Extension for internal purposes;
(vi) agree not to use the Extension for any resale purposes;
(vii) may not transfer your rights to use the Extension to a third party. Only You are permitted access the Extension and You shall not permit any other persons or other third parties to access the Extension.
(viii) are responsible for maintaining the confidentiality of any ID and password used to access the Extension.
(ix) not to use the App or any Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the App, any Services or any operating system;
(x) not to infringe our Intellectual Property Rights or those of any third party;
(xi) not to transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App;
(xii) not to introduce any Destructive Code into the App;
(xiii) not to use the App in a way that could damage, disable, overburden, impair or compromise our systems, IT Facilities, security or interfere with other users;
4. Fees and costs
As consideration for the license to use the Extension, You shall pay a License Fee according to the Term specified. License Fees are non-refundable.
This Agreement shall commence upon payment of the first year subscription and shall renew automatically unless terminated with 30 days’ notice by the End User.
6. Disclaimer and limitation of liability:
Disclaimer of warranties
As far as the law allows, the Extension is provided to You on an “as is” and “as available” basis” and without any representation or warranty of any kind is given on behalf of Tangicloud or its licensors, whether express or implied, including, but not limited to warranties of performance, merchantability, and fitness for a particular purpose. No warranty is made as to any particular features of the Extension or that the Extension will perform in conjunction with any other software or hardware.
Limitation of liability
As far as the law allows, we will not be responsible to you (and we disclaim all liability) for any loss, liability, injury or damage (whether direct, indirect, incidental, special, punitive or consequential) whatsoever resulting from –
- any economic losses, loss of revenue, loss of profit, loss of opportunity or business as a result of downloading or use of the Extension;
- any loss of goodwill or reputation as a result of downloading or use of the Extension;
- any interruption or cessation of transmission to or from the Extension, or technology used by You or us to download, provide or receive the Extension;
- any defect, fault, malfunction and/or delay in your device, or your IT facilities, hardware and/or software;
- any defect, failure, fault and/or delay in connectivity to the internet;
- any lost data arising out of the installation or use of the Extension;
- the use of the Extension in combination with any other software;
- any unauthorized access to or use of our IT facilities and/or any and all Personal Data stored therein.
whether based on warranty, contract, delict or any other legal theory, and whether or not we have been advised of the possibility of such loss, liability, injury or damages.
7. Intellectual Property:
All Intellectual Property Rights in and to the Extension or contained in any documents (in electronic form or otherwise) relating to the Extension belong to us and/or our licensors. You do not have any Intellectual Property Rights in the Extension, or in any improvements or variations that may be made to them.
You acknowledge that You will not –
- in any way represent that You have any rights of any nature (including Intellectual Property Rights) in any current and future Intellectual Property Rights belonging to us or any third parties featured on the Extension;
- apply for or obtain registration of our current and future Intellectual Property Rights which may be confusingly similar to the Extension in any country;
- challenge our rights in our current and future Intellectual Property Rights in any country;
- do, or omit to do, or cause to be done any act or thing which would be expected to weaken, damage, be detrimental to or in any way impair or tend to impair our current and future Intellectual Property Rights or the reputation or goodwill associated therewith or with us and/or any third party featured on the Extension, or which would be expected to jeopardize or invalidate any registration of our current and future Intellectual Property Rights;
- use, register or attempt to register as trade names, corporate names, business names, logos, domain names, meta tags, email addresses, server names or search engine markers anything that is identical to, contained in whole or part, or is otherwise confusingly similar to our current and future Intellectual Property Rights in any country;
- establish a hyperlink, frame, metatag, similar reference, whether electronically or otherwise, or any other reference to the Extension without our prior written consent.
You indemnify us against all actions, claims, costs, demands, expenses and other liabilities suffered or incurred by us as a result of any third-party claims initiated and/or instituted against us relating to Your unauthorized use of the Extension or the contents therein or any other Intellectual Property Rights flowing from them.
Nothing contained in this Agreement shall be construed as granting, by implication or otherwise, any license or right to use any of our Intellectual Property Rights without the express permission of Tangicloud or such party that may own the trademark.
Any breach of this clause 5 entitles us, in addition to our other remedies available in law, to take legal action against You without prior written notice and You agree to reimburse the costs associated with such legal action on an attorney and own client scale.
You acknowledge that (a) the Extension and all related documentation and specifications; and (b) the results and feedback from any test or evaluation are all Confidential Information which contains highly confidential, secret and valuable information of Tangicloud and its Affiliates. You agree that You shall not reproduce, sell, transfer, publish, disclose, display or otherwise make available to third parties the Confidential Information or any other proprietary information of Tangicloud and its Affiliates.
Tangicloud may provide You with the Support Services related to the Extension. Any supplemental Extension code provided to You as part of the Support Services shall be considered part of the Extension and subject to the terms and conditions of this EULA. With respect to technical information You provide to Tangicloud as part of the Support Services, Tangicloud may use such information for its business purposes, including for product updates and development.
Tangicloud shall ensure technical support for the most up-to-date version of the Extension. Throughout the term of this Agreement, You shall have the right to use the following services:
- Technical Help: Tangicloud Partners will provide routine technical support in installation and troubleshooting the most up-to-date version of the Extension during normal operating hours as determined in Partner’s discretion.
- Updating: Updating shall include each new version or change of the Extension or individual parts thereof, which Tangicloud shall release on authorized websites. Tangicloud shall make the update reasonably accessible to You. Access to the update may require logging in with a username and a user login password. You shall be obliged to protect the identification against loss, unauthorized access or misuse. Upon discovery of the first misuse of the identification, Tangicloud may make the original identification functionless and issue a new Identification for the End User. You agree to install each new version or changes of the Extension promptly after You have obtained them or no later than at the time to be specified by Tangicloud in the Extension or on the websites of Tangicloud or of its business partners. Tangicloud shall not be held liable for damage occurred by breach of Your obligation to timeously obtain and install a new version of or changes of the Extension and/or installation of the Updating from sources not authorized by Tangicloud.
- No Support: Tangicloud shall not be obliged to provide any support, particularly if a reported error:
- results from any unauthorized interference with the Extension, its source code, or by the use of incorrect parameters or settings of the Extension,
- has occurred by the fault of non-Tangicloud servicing staff,
- has already been resolved by the issuance of the update, which You have failed to install,
- the End User has failed to pay the License Fee, or
- is otherwise provided for in this Agreement.
- Training: No right to the provision of services in connection with training and practice in the use and installation of the Extension shall result from this Agreement.
10. Personal data:
If any Personal Data in Your Data is processed through the use of the Extension by You, (i) You shall at all times remain the data controller of and responsible for such Personal Data for the purposes of the use of the Extension; (ii) Tangicloud and its suppliers are data processors or sub-processors of such Personal Data only for the purposes of provision of the Extension; and (iii) Tangicloud may require that such Personal Data is deleted or otherwise removed from the Extension. In order to innovate and improve its software products, Tangicloud may collect certain usage statistics from the Extension. Such data is examined in the aggregate without containing any of Your Personal Data.
12. Termination and suspension
In addition to any other rights and remedies we may have in terms of this Agreement or in law, we are entitled (but not obliged) to temporarily suspend all or part of the Extension or to suspend or terminate Your right to access and use the Extension where we –
- need to perform maintenance on, upgrades or updates to, the Extension or any of the systems, software, technology or other IT facilities that we use to provide the Extension;
- have reasonable grounds to believe that You are using the Extension recklessly, with gross negligence or with the intention to defraud or for fraudulent purposes;
- have reasonable grounds to believe that You are engaging in any actual or suspected or threatened breach of the License Restrictions;
- become aware of any actual, threatened or suspected unauthorized use of the Extension;
- reasonably suspect that we are exposed to any risk through Your use of the Extension;
- reasonably suspect that You are attempting to compromise or interfere with the Extension;
- reasonably believe that the security of Your devices or the IT facilities used to provide the App may be compromised;
- become aware of any information provided by you that is false, inaccurate, invalid, incomplete or misleading;
- must do so to comply with the law; or
- a court or regulator tells us to do this.
The suspension will continue for so long as we reasonably believe is appropriate.
We will notify You if we suspend part or all of the Extension or Your use of the Extension where it is reasonably practical to do so.
Without limiting our other rights and remedies in terms of this Agreement or in law, if we exercise our suspension rights, we will restore access to and use of the Extension as soon as reasonably practical after we become satisfied that the cause of suspension has been removed, avoided or completely mitigated.
You may deregister from using the Extension at any time. However, termination of this EULA does NOT obligate Tangicloud to issue a refund of your pre-paid software use. However, termination of this EULA does NOT obligate Tangicloud to issue a refund of your pre-paid software use.
We reserve the right at any time, and for any reason, to terminate this Agreement, the operation of the Extension and Your right to use the Extension within 30 (thirty) days without prior written notice unless termination is required by law or it is reasonable to give less than 30 (thirty) days’ notice, considering the reasons why we are taking these actions.
We may immediately terminate this Agreement and Your use of the Extension without notice:
- if You commit a material breach of any of the terms of this Agreement;
- if You breach any of the License Restrictions; where we must do so to comply with law or to avoid breaching another person’s rights; or
- where a court or regulator tells us to do so.
Consequences of termination
On termination for any reason:
- all rights granted to You under this Agreement shall cease;
- You must immediately cease all activities authorized by this Agreement;
- You must immediately delete or remove the Extension from all of Your devices, and immediately destroy all copies of the Extension then in Your possession, custody or control and certify to us that You have done so;
13. Force Majeure:
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We shall both use reasonable efforts to mitigate the effect of a Force Majeure event. If such event continues for more than 90 days, either of us may cancel unperformed services upon written notice. This clause does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay the License Fee.
14. Governing law, disputes:
This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, United States.
You expressly agree that exclusive jurisdiction for any claim or dispute arising from this Agreement or relating in any way to Your use of the Extension resides in the United States and You further agree and expressly consent to the exercise of the personal jurisdiction in courts of competent jurisdiction in the United States in connection with any such dispute or claim.
[LM1]This sounds like we could shut down a paying customer without notice or cause. Can we really do that? And for how long?