Contrato internacional de licença para uso de software
com limitação de responsabilidade.
LICENÇA PARA USO DE SOFTWARE
Before reading the articles below, please take good notice of the following
preliminary terms, which terms make use of some of the definitions as specified
in Article 1 below:
Entering into this Agreement: This End User License Agreement constitutes a
valid and binding agreement between .......... Software S.A. and You, as a user,
for the use of the .......... Software. You must enter into this Agreement by
clicking on the ACCEPT button in order to be able to install and use the
.......... Software. You hereby agree and acknowledge that this Agreement covers
all Your use of .......... Software, whether it be from this installation or
from any other terminals where .......... Software has been installed, by You or
by third parties. Furthermore, by installing and (continuously) using the
.......... Software You agree to be bound by the terms of this Agreement and any
new versions hereof.
Electronic Signatures and Agreement(s): You acknowledge and agree that by
clicking on the ACCEPT button or similar buttons or links as may be designated
by .......... to show Your approval of any foregoing texts and/or to download
and install the .......... Software, You are entering into a legally binding
contract. You hereby agree to the use of electronic communication in order to
enter into contracts, place orders and other records and to the electronic
delivery of notices, policies and records of transactions initiated or completed
through the .......... Software. Furthermore, You hereby waive any rights or
requirements under any laws or regulations in any jurisdiction which require an
original (non-electronic) signature or delivery or retention of non-electronic
records, to the extent permitted under applicable mandatory law.
No Emergency Calls: by entering into this Agreement You acknowledge and agree
that the .......... Software does not and does not intend to support or carry
emergency calls. Please also see article 7 below.
Jurisdiction's Restrictions: if You are residing in a jurisdiction which
restricts the use of internet-based applications according to age, or which
restricts the ability to enter into agreements such as this agreement according
to age and You are under such a jurisdiction and under such age limit, You may
not enter into this Agreement and download, install or use the ..........
Software. Furthermore, if You are residing in a jurisdiction where it is
forbidden by law to offer or use software for internet telephony, You may not
enter into this Agreement and You may not download, install or use the
.......... Software. By entering into this Agreement You explicitly state that
You have verified in Your own jurisdiction if Your use of the ..........
Software is allowed.
Article 1 Definitions
In this Agreement the following capitalized definitions are being used, singular
as well as plural.
1.1 Affiliate: any corporation, company or other entity that directly or
indirectly controls, is controlled by, or is under common control with,
........... For the purpose of this definition, the word "control" shall mean
the direct or indirect ownership of more than fifty percent (50%) of the
outstanding voting stock of the corporation, company, or other entity.
1.2 Agreement: this End User License Agreement, as may be renewed, modified and/or
amended from time to time.
1.3 Emergency Services: means services that connect a user to emergency services
personnel or public safety answering points pursuant to applicable local and or
national regulatory requirements.
1.4 Documentation: any online or otherwise enclosed documentation provided by
...........
1.5 Effective Date: the date on which this Agreement is entered into by clicking
on the ACCEPT button as stated above.
1.6 IP Rights: any and all intellectual property rights, including but not
limited to copyrights, trademarks and patents, as well as know how and trade
secrets contained in or relating to the .......... Software, the Documentation,
the .......... Website or the .......... Promotional Materials.
1.7 ..........: refers to the company established under the laws of Luxembourg,
.......... Software S.A., with its address at ... rue ....., L-.... Luxembourg,
Luxembourg, reg.no (...........), VAT no. (.........).
1.8 .......... API: application program interface consisting of the set of
routines utilized by the .......... Software to provide the .......... Software
functionality for a given platform or operating system, .......... API being
included in or linked to the .......... Software.
1.9 .......... Online Material: the .......... banner available for download on
the .......... Website, consisting of a .......... logo and a link to the
.......... Website.
1.10 .......... Promotional Materials: any and all trademarks, names, signs,
logos, banners, .......... Online Material and any other materials, in whatever
form, owned and/or used by .......... for the promotion of its company, its
products and activities.
1.11 .......... Software: the software distributed by .......... for internet
telephony applications, including without limitation the .......... API, UI and
Documentation, as well as any future programming fixes, updates and upgrades
thereof.
1.12 .......... Staff: the officers, directors, employees and agents of
.......... or its Affiliates, or any other persons hired by .......... or its
Affiliates in relation with the execution of this Agreement.
1.13 .......... Website: any and all elements, contents and the 'look and feel'
of the website available - among other ULR's- under the URL www............com,
from which website the .......... Software can be downloaded.
1.14 Terms of Service: means the agreement between .......... Communications
S.A. and You for the use of the VoIP service;
1.15 UI: the user interface of the .......... Software.
1.16 VoIP Service: means the payable services provided under the Terms of
Service
1.17 You: you, the end user of the .......... Software, also used in the form "Your"
where applicable.
Article 2 License and Restrictions
2.1 License. Subject to the terms of this Agreement, .......... hereby grants
You a limited, personal, non-commercial (at home or at work), non-exclusive,
non-sublicensable, non-assignable, free of charge license to download, install
and use the .......... Software on Your computer or PDA, for the sole purpose of
personally using the internet telephony applications provided by .......... and
any other applications that may be explicitly provided by ...........
2.2 No Granting of Rights to Third Parties. You will not sell, assign, rent,
lease, distribute, export, import, act as an intermediary or provider, or
otherwise grant rights to third parties with regard to the .......... Software
or any part thereof.
2.3 No Modifications. You will not undertake, cause, permit or authorize the
modification, creation of derivative works, translation, reverse engineering,
decompiling, disassembling or hacking of the .......... Software or any part
thereof.
2.4 Third Parties. You acknowledge and agree that the .......... Software may be
incorporated into, and may incorporate itself, software and other technology
owned and controlled by third parties. .......... emphasizes that it will only
incorporate such third party software or technology for the purpose of (a)
adding new or additional functionality or (b) improving the technical
performance of the .......... Software. Any such third party software or
technology that is incorporated in the .......... Software falls under the scope
of this Agreement. Any and all other third party software or technology that may
be distributed together with the .......... Software will be subject to you
explicitly accepting a license agreement with that third party. You acknowledge
and agree that you will not enter into a contractual relationship with
.......... or its Affiliates regarding such third party software or technology
and you will look solely to the applicable third party and not to .......... or
its Affiliates to enforce any of your rights.
2.5 New Versions of the .......... Software. .........., in its sole discretion,
reserves the right to add additional features or functions, or to provide
programming fixes, updates and upgrades, to the .......... Software. You
acknowledge and agree that .......... has no obligation to make available to You
any subsequent versions of the .......... Software. You also agree that you may
have to enter into a renewed version of this Agreement, in the event you want to
download, install or use a new version of the .......... Software. Furthermore,
You acknowledge and agree that .........., in its sole discretion, may modify or
discontinue or suspend Your ability to use any version of the ..........
Software, or terminate any license hereunder, at any time, with immediate effect
and without recourse to the courts. .......... also may suspend or terminate any
license hereunder and disable any .......... Software You may already have
accessed or installed without prior notice at any time with immediate effect and
without recourse to the courts. .......... will not accept any liability in
relation to the direct or indirect damages caused by (1) the release and/or the
absence of release of new versions of the .......... Software and (2) by the
suspension or termination of this Agreement by .......... and/or by You.
2.6 Paid Services. This Agreement applies to downloading, installing and using
the .......... Software, free of charge. The use of any paid services which may
be offered by .......... or its Affiliates, is subject to the additional Terms
of Service that are published on the .......... Website.
Article 3 Definitions to License Restrictions and Additional Terms
3.1 Distribution of .......... Software. You are not allowed to distribute the
.......... Software under this Agreement. For the right to distribute You will
have to agree to and meet with the Distribution Terms as published on the
.......... Website.
3.2 Distribution of .......... API. You are not allowed to distribute the
.......... API under this Agreement. For the right to distribute You will have
to agree to and meet with the .......... API Re-Distribution Terms as published
on the .......... Website.
3.3 Use of .......... API. You may make use of and/or modify the .......... API,
subject to license terms in Clause 2.1 and for the sole purpose of enabling Your
application to connect with the .......... Software, provided that:
3.3.1 All such use and/or modification of .......... API is carried out for
legitimate purposes and shall in no way and to no extent adversely affect the
functionality or performance of the .......... Software or services provided by
..........;
3.3.2 You will not remove, overtake, hide or otherwise make the UI inaccessible
for end users;
3.3.3 You will constantly monitor the .......... Website in order to ensure that
You are aware of any changes in the applicable legal documents. In the event You
cannot agree on any changes in any applicable legal document, You will
immediately cease any and all use of the .......... API and, where applicable,
any and all use of the .......... Software; and
3.3.4 You acknowledge and agree that Your use and/or modification of the
.......... API will be at Your own risk and account.
3.4 Any other Exceptions. If You are interested in doing anything else than
permitted under this Agreement or by the Distribution Terms or the ..........
API Re-Distribution Terms, You will have to obtain ..........'s previous written
consent and explicitly agree upon any further (commercial) terms.
3.5 .......... Promotional Materials. Nothing in this Agreement will give you
any right to use the .......... Promotional Materials.
Article 4 Permission to Utilize
4.1 Permission to utilize Your computer. In order to receive the benefits
provided by the .......... Software, You hereby grant permission for the
.......... Software to utilize the processor and bandwidth of Your computer for
the limited purpose of facilitating the communication between ..........
Software users.
4.2 Protection of Your computer (resources). You understand that the ..........
Software will use its commercially reasonable efforts to protect the privacy and
integrity of Your computer resources and Your communication, however, You
acknowledge and agree that .......... cannot give any warranties in this respect.
Article 5 Confidentiality and Privacy
5.1 ..........'s Confidential Information. You agree to take all reasonable
steps at all times to protect and maintain any confidential information
regarding .........., its Affiliates, the .......... Staff, the ..........
Software and the IP Rights, strictly confidential.
5.2 Your Confidential Information and Your Privacy. .......... is committed to
respecting Your privacy and the confidentiality of Your personal data. The "Privacy
Policy" that is published on the .......... Website applies to the use of Your
personal data, the traffic data as well as the content contained in Your
communication(s).
Article 6 IP Rights and Translations
6.1 Exclusive Ownership. You acknowledge and agree that any and all IP Rights to
or arising from the .......... Software are and shall remain the exclusive
property of .......... and/or its licensors. Nothing in this Agreement intends
to transfer any such IP Rights to, or to vest any such IP Rights in, You. You
are only entitled to the limited use of the IP Rights granted to You in this
Agreement. You will not take any action to jeopardize, limit or interfere with
the IP Rights. You acknowledge and agree that any unauthorized use of the IP
Rights is a violation of this Agreement as well as a violation of intellectual
property laws, including without limitation copyright laws and trademark laws.
6.2 With the exception of IP Rights of .......... and/or its licensors in
.......... Software (including the .......... API), You retain the intellectual
property rights You may have in the applications, materials, products or
processes You create which are based on or utilize the .......... API. You
hereby release and covenant not to sue .......... or its Affiliates, or any of
their licensees, assigns or successors, for any and all damages, liabilities,
causes of action, judgments or claims (a) pertaining to any intellectual
property You develop that is based on, uses, or relates to the .......... API;
and (b) which otherwise may arise in connection with Your use of, reliance on,
or reference to the .......... API. As between You and .........., ..........
and its licensors retain the IP Rights in and to the .......... Software (including
the .......... API) and any derivative works thereto created by or for
.......... or its licensors.
6.3 No Removal of Notices. You agree that You will not remove, obscure, make
illegible or alter any notices or indications of the IP Rights and/or
..........'s rights and ownership thereof, whether such notice or indications
are affixed on, contained in or otherwise connected to such materials.
6.4 Translations. You acknowledge and agree that the intellectual property
rights regarding any translations made by You of any information on or
accessible through the .......... Website or as otherwise requested of You by
.......... at any time prior to or subsequent of the Effective Date will be and
remain the sole and exclusive property of .......... without any compensation to
You. Insofar as necessary, this Agreement serves as a deed of assignment of all
of Your right, title and interest in and to such translations to ..........,
notwithstanding Your obligation to cooperate with .......... in order to
finalize any other deed upon ..........'s first request. You hereby irrevocably
waive to the extent permitted by law any moral rights relating to Your
translations. You furthermore represent and warrant that (a) You are authorized
to assign Your rights as stated above and (b) Your translations are correct and
accurate and (c) the translations do not infringe upon any third parties' rights,
including but not limited to intellectual property rights.
Article 7 Communication and Your Use of the .......... Software
7.1 Communication. Installing .......... Software enables You to communicate
with other .......... Software users.
7.2 No Warranties. .......... cannot guarantee that You will always be able to
communicate with other .......... Software users, nor can .......... guarantee
that You can communicate without disruptions, delays or other
communication-related flaws. .......... will not be liable for any such
disruptions, delays or other omissions in any communication experienced when
using .......... Software.
7.3 No Control. You acknowledge and understand that .......... does not control,
or have any knowledge of, the content of any communication(s) spread by the use
of the .......... Software. The content of the communication is entirely the
responsibility of the person from whom such content originated. You, therefore,
may be exposed to content that is offensive, indecent or otherwise objectionable.
.......... will not be liable for any type of communication spread by means of
the .......... Software.
7.4 No Emergency Services. You expressly agree and understand that the
.......... Software is not intended to support or carry emergency calls to any
type of hospital, law enforcement agency, medical care unit or any other kind of
Emergency Service. .........., its Affiliates or .......... Staff are in no way
liable for such emergency calls.
7.4.1 Alternative Arrangements. By agreeing to this Agreement You understand
that additional arrangements must be made to access Emergency Services. To
access Emergency Services, You acknowledge and accept Your responsibility to
purchase, separately from .......... Software, traditional wireless or wireline
telephone service that offers access to Emergency Services.
7.4.2 No Compulsion to Offer Emergency Services. You recognize and agree that
.......... is not required to offer Emergency Services pursuant to any
applicable local and or national rules, regulation or law. You further recognize
that .......... is not a replacement for Your primary telephone service.
7.5 Lawful purposes. You acknowledge and agree to use the .......... Software
solely for lawful purposes. In this respect You may not, without limitation (a)
intercept or monitor, damage or modify any communication which is not intended
for You, (b) use any type of spider, virus, worm, trojan-horse, time bomb or any
other codes or instructions that are designed to distort, delete, damage or
disassemble the .......... Software or the communication, or (c) send any
unsolicited commercial communication not permitted by applicable law.
Article 8 Term and (Consequences of) Termination
8.1 Term. This Agreement will be effective as of the Effective Date and will
remain effective until terminated by either .......... or You as set forth
below.
8.2 Termination by ........... .......... may terminate this Agreement with
immediate effect at any time, with or without cause and without recourse to
courts, by providing notice to You and/or by preventing Your access to the
.......... Software, as set forth in Article 2.5 above.
8.3 Termination by You. You may terminate this Agreement with immediate effect
at any time, with or without cause and without recourse to the courts, provided
that You will meet with the conditions as set forth in Article 8.4 below.
8.4 Consequences of Termination. Upon termination of this Agreement, You (a)
acknowledge and agree that all licenses and rights to use the ..........
Software shall terminate, and (b) will cease any and all use of the ..........
Software, and (c) will remove the .......... Software from all hard drives,
networks and other storage media and destroy all copies of the ..........
Software in Your possession or under Your control.
8.5 No liability. .......... will not be liable in relation to any damage caused
by the termination of this Agreement.
Article 9 Your Representations and Warranties; Indemnification of ..........
9.1 Representations. You represent and warrant that You are authorized to enter
into this Agreement and comply with its terms. Furthermore, You represent and
warrant that You will at any and all times meet with Your obligations hereunder,
as well as any and all laws, regulations and policies that may apply to the use
of the .......... Software.
9.2 Indemnification. You agree to indemnify, defend and hold .........., its
Affiliates and the .......... Staff harmless from and against any and all
liability and costs, including reasonable attorneys' fees incurred by said
parties, in connection with or arising out of Your (a) violation or breach of
any term of this Agreement or any applicable law, regulation, policy or
guideline, whether or not referenced herein, or (b) violation of any rights of
any third party, or (c) use or misuse of the .......... Software, or (d) use
and/or modification of the .......... API or (e) communication spread by means
of the .......... Software.
9.3 U.S. Withholding Tax. United States-based end users and/or customers only:
.......... and all affiliated non-U.S. .......... entities (including, but not
limited to, .......... Software S.A., .......... Technologies, S.A., and
.......... Communications S.A.) intend to fully comply with all applicable U.S.
federal tax rules and regulations as provided by the Internal Revenue Code of
1986 (the "Code") and the Treasury Regulations promulgated thereunder.
.........., Inc. (..........'s U.S.-based affiliate) has been appointed to
assist all U.S.-based end users and/or customers in complying with any and all
U.S. tax obligations arising as a result of Your use of the .......... Software,
VoIP Service and/or .......... API. You hereby agree to appoint .........., Inc.
as Your withholding agent for purposes of the withholding provisions of Chapter
3 of the Code, section 3406 and other withholding provisions of the Code, and
the reporting provisions of Chapter 6 of the Code. Your agreement does not
modify in any way Your defenses provided under U.S. tax law to avoid tax for any
payments made to ..........'s non-US entities. If You would like any information
with respect to Your rights and obligations concerning any and all potential
U.S. federal income tax liability and/or reporting responsibilities or if You
wish to receive additional information (including applicable Forms W-8BEN
("Certificate of Foreign Status of Beneficial Owner for United States
Withholding"), You may contact .......... at taxation@...........net.
Article 10 Disclaimer of Warranties
10.1 No warranties. The .......... Software is provided "as is", with no
warranties whatsoever; .......... does not, either expressed, implied or
statutory, make any warranties, claims or representations with respect to the
.......... Software, including, without limitation, warranties of quality,
performance, non-infringement, merchantability, or fitness for use or a
particular purpose. .......... further does not represent or warrant that the
.......... Software will always be available, accessible, uninterrupted, timely,
secure, accurate, complete and error-free or will operate without packet loss,
nor does .......... warrant any connection to or transmission from the internet,
or any quality of calls made through the .......... Software.
10.2 Specific Disclaimer of Liability for Emergency Services. .......... does
not provide Emergency Services in conjunction with the .......... Software.
Neither .......... nor its officers or employees may be held liable for any
claim, damage, or loss, and You hereby waive any and all such claims or causes
of action, arising from or relating to the use of .......... Software to contact
Emergency Services personnel. You shall defend, indemnify, and hold harmless
.........., its officers, directors, employees, affiliates and agents and any
other service provider who furnishes services to You in connection with the
.......... Software, from any and all claims, losses, damages, fines, penalties,
costs and expenses (including, without limitation, attorneys fees) by, or on
behalf of, You or any third party relating to the absence, failure or outage of
.......... Software provided hereunder, including specifically any claims
arising out of the failure of .......... to offer Emergency Services.
10.3 Your own Risk. You acknowledge and agree that the entire risk arising out
of the use or performance of the .......... Software remains with You, to the
maximum extent permitted by law.
10.4 Jurisdiction's Limitations. As some jurisdictions do not allow some of the
exclusions or limitations as set forth above, some of these exclusions or
limitations may not apply to You.
Article 11 Limitation of Liability
11.1 No Liability. The .......... Software is being provided to You free of
charge. Accordingly, You acknowledge and agree that .........., its Affiliates
and the .......... Staff will have no liability in connection with or arising
from Your use of the .......... Software, as set forth below.
11.2 Limitation of Liability. In no event shall .........., its Affiliates or
the .......... Staff be liable, whether in contract, warranty, tort (including
negligence), product liability or any other form of liability, for any indirect,
incidental, special or consequential damages (including without limitation any
loss of data, interruption, computer failure or pecuniary loss) arising out of
the use or inability to use the .......... Software, even if .........., its
Affiliates or the .......... Staff have been advised of the possibility of such
damages.
11.3 Remedy. Your only right or remedy with respect to any problems or
dissatisfaction with the .......... Software is to deinstall and cease use of
such .......... Software.
11.4 Jurisdiction's Limitations. As some jurisdictions do not allow some of the
exclusions or limitations as set forth above, some of these exclusions or
limitations may not apply to You.
Article 12 General Provisions
12.1 New versions of the Agreement. .......... reserves the right to modify this
Agreement at any time by providing such revised Agreement to You or by
publishing the revised Agreement on the .......... Website. Your continued use
of the .......... Software shall constitute Your acceptance to be bound by the
terms and conditions of the revised Agreement.
12.2 Entire Agreement. The terms and conditions of this Agreement constitute the
entire agreement between You and .......... with respect to the subject matter
hereof and will supersede and replace all prior understandings and agreements,
in whatever form, regarding the subject matter.
12.3 Partial Invalidity. Should any term or provision hereof be deemed invalid,
void or enforceable either in its entirety or in a particular application, the
remainder of this Agreement shall nonetheless remain in full force and effect.
12.4 No waiver. The failure of .......... at any time or times to require
performance of any provisions hereof shall in no manner affect its right at a
later time to enforce the same unless the same is explicitly waived in writing
and signed by ...........
12.5 No Assignment by You. You are not allowed to assign this Agreement or any
rights hereunder.
12.6Assignment by ........... .......... is allowed to at its sole discretion
assign this Agreement or any rights hereunder to any Affiliate, without giving
prior notice.
12.7 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of Luxembourg without giving effect to the conflict of
laws or provisions of Luxembourg or Your actual state or country of residence.
12.8 Competent Court. Any legal proceedings arising out of or relating to this
Agreement will be subject to the exclusive jurisdiction of the courts of the
district of Luxembourg.
12.9 Language. The original English version of this Agreement may have been
translated into other languages. In the event of inconsistency or discrepancy
between the English version and any other language version of this Agreement,
the English language version shall prevail.
[Local], [dia] de [mês] de [ano].
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TESTEMUNHAS(1)
CPF:
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TESTEMUNHAS(2)
CPF: