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Wakanda Commercial License

BUSINESS & ENTERPRISE SUBSCRIPTION AGREEMENT (July 10, 2013)

WARNING!

You should read carefully all the terms and conditions of the Agreement, as defined below, between 4D SAS, whose registered office is at 60, rue d’Alsace, 92110 Clichy La Garenne, France, (hereinafter referred to as "4D") and yourself (hereinafter referred to as "LICENSEE"); 4D and LICENSEE collectively referred to as the “Parties” and individually a “Party”.

This Agreement defines the terms and conditions of the Subscription related to the Software license and related Software Maintenance as defined below.

By accepting this Agreement, either by clicking a box indicating your acceptance and/or by executing a Subscription Form that refers to this Agreement, LICENSEE agrees to the terms of this Agreement. If LICENSEE is entering into this Agreement on behalf of a company or other legal entity, it represents that it has the authority to bind such entity to this Agreement, in which case the word “LICENSEE” shall refer to such entity. If LICENSEE does not have such authority, or if LICENSEE does not agree with these terms and conditions, LICENSEE must not accept this Agreement and may not proceed with the downloading, copying, installation or any other use of the Software or any portion thereof.

1. DEFINITIONS

The following words have a specific significance:

“Affiliates” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.

“Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means the English version of this agreement, including its exhibit 1, any amendment thereof, the related Subscription Form(s) and the locally applicable Wakanda Store Terms and Conditions of Sales. In the event and to the extent of any conflict or inconsistency between two or more documents which form part of this Agreement, those documents will be interpreted in the following order of priority: (i) financial conditions as stated in the Subscription Form, (ii) the terms and conditions of this document, (iii) the terms and conditions (with the exception of the financial conditions) of the related Subscription Form(s) and (iv) the locally applicable Wakanda Store Terms and Conditions of Sales.

“Authorized Number of Developers” means the number of authorized Developers as part of the corresponding Subscription Plan or Subscription relating to the concerned Enterprise Feature, for whom LICENSEE has purchased the corresponding licenses, as defined in the Subscription Form.

“Deploy or Deployment” means to distribute or the distribution of the Wakanda Application to End Users.

 “Developer” means a single distinct and named employee acting within the scope of her/his employment with LICENSEE or End User, and/or consultant and/or contractor acting within the scope of the services they provide for LICENSEE or on LICENSEE’s behalf, for whom LICENSEE has purchased a license to use the Software for development, design or administration of a Wakanda Application.

“Documentation” means all the electronic files and, or materials relating to technical specifications, developer’s guides and user’s manuals relating to the Software contained in or on the related Media.

“Environment” means in particular the computer hardware, operating system(s) ("platform(s)") and the software required for use in conjunction with the Software, as indicated on the Media and any evolution thereof which may be required for the use of Updates.

“End User” means the end user of a Wakanda Application, subject to an End User License.

“End User License” means the license agreement relating to a Wakanda Application, between LICENSEE and an End User, which contains terms and conditions at least as restrictive as those defined in exhibit 1.

“Enterprise Features” means the additional features for which LICENSEE under the corresponding Enterprise Subscription Plan may be granted a development or a Deployment license in consideration of the corresponding license Subscription and the payment of the related fees.

“Intellectual Property Rights” means all present and future proprietary rights, licenses, title and interest in any intellectual property rights including (but not limited to) (i) industrial property rights, author’s rights, patents, patents rights, inventions, copyrights, copyrightable rights, database rights and rights in trademarks, trade names, designs, know-how, domain names, trade secrets and confidential information (whether registered or unregistered); (ii) applications for registration and the right to apply for registration for any rights referred to in (i) above; and (iii) any other intellectual property rights or equivalent or similar forms of protection existing anywhere in the world.

“Media” means all methods through which LICENSEE obtained the Software, which include any type of media, and notably the Wakanda's web sites and/or Wakanda's Ftp site.

“Server” means one (1) executable instance of Wakanda Server as part of the concerned Deployment license (Business and/or Enterprise) under the corresponding Subscription Plan as defined in the Subscription Form; given that each Deployment license is limited to one (1) Server per yearly period.

  

“Software” means:

Any or all of the following, as applicable, which is provided in machine-readable executable form, in English, including related Documentation, and any replacement, change, and/or Update thereto:

Development license under section 3

Development Business – the commercial versions of Wakanda Studio, Wakanda Server, and Wakanda Framework

Development Enterprise – the commercial versions of Wakanda Studio Enterprise, Wakanda Server Enterprise, and Wakanda Framework Enterprise

Deployment license under section 4

Deployment Business – the commercial versions of Wakanda Server and Wakanda Framework

Deployment Enterprise – the commercial versions of Wakanda Server Enterprise and Wakanda Framework Enterprise,

“Start Date” means the start date of the Subscription, effective as of the date of LICENSEE’s acceptance of the Agreement; such Agreement being deemed accepted without any reservation upon execution of the Subscription Form.

“Subscription” means the Software license granted under the Agreement and the provision of related Software Maintenance in accordance with the corresponding Subscription Plan and/or Subscription to the Enterprise Feature; given that the validity of the Subscription is subject to 4D’s written acceptance of the corresponding Subscription Form and LICENSEE’s acceptance of this Agreement.

“Subscription Fee” means the fee payable to 4D for the Subscription, as stated in the Subscription Form, including any readjustment and/or revision in accordance with the terms of the Agreement.

“Subscription Form” means the electronic or paper versions of the locally applicable documents for placing orders hereunder, including addenda thereto that are entered into between 4D or any of 4D’s Affiliates and LICENSEE from time to time. Subscription Forms designates and identifies 4D SAS or any concerned Affiliate and LICENSEE as contracting parties, define the Subscription Plan or the Subscription relating to the concerned Enterprise Feature, the language of the Software, the Authorized Number of Developers per yearly period as part of a development license, and/or one (1) Server per yearly period as part of a Deployment license, and the pricing conditions for the Subscription Term. They shall be deemed incorporated herein by reference. The validity of the Subscription Form is subject to 4D’s prior written approval.

“Subscription Plan” means the type of Subscription for the Subscription Term, in consideration of the corresponding Subscription Fee, i.e. Development Business or Development Enterprise and/or Deployment Business or Deployment Enterprise.

“Subscription Term” means the term of the Subscription, as specified in the applicable Subscription Form - given that Subscription Term is at least one (1) year - or renewed in accordance with the provisions of section 14.1.

“Updates” means the maintenance versions of the Software and/or minor and/or major updates of the Software provided as part of the Software Maintenance.

“Software Maintenance” means the information relating to the availability of Updates and the provision of such Updates, in accordance with the provisions of section 8.

“Wakanda Application(s)” means the application(s) developed with the Software, which use(s) Wakanda Server or Wakanda Server Enterprise, or Wakanda Framework or Wakanda Framework Enterprise depending on the applicable Subscription Plan; given that any Wakanda Application must have substantial different functionalities than the Software. In no event shall a Wakanda Application compete to the Software by notably developing without limitation: a development toolkit or library, an application builder, a web database server, a website builder that are intended for use by software, application, or website developers or designers.

“Wakanda Store Terms and Conditions of Sale”: means the locally applicable terms and conditions that apply to any order made from Wakanda Store by LICENSEE for the purchase of Software licenses.

2. PURPOSE

The purpose of this Agreement is to define the terms and conditions whereby (i) 4D grants LICENSEE, on a non-exclusive basis, the right to use the Software under the concerned Subscription, and (ii) 4D provides LICENSEE with the related Software Maintenance.

LICENSEE’s rights to use the Software are specified in this Agreement and 4D retains all rights not expressly granted to LICENSEE in this Agreement. No other express or implied rights are granted to LICENSEE relating to the Software.

In addition to the rights granted under the Agreement, Development Enterprise allows LICENSEE to subscribe to Enterprise Features; each Enterprise Feature may be subject to a separate Subscription Form, the payment of the corresponding Subscription Fee and to this Agreement, unless otherwise expressly agreed between the Parties.

4D and/or its suppliers continue(s) to be the sole owner(s) of the copy of the Software and all other copies that LICENSEE is authorized to make in accordance with this Agreement.

In no event, this Agreement may be interpreted as an agreement for sale.

3. DEVELOPMENT LICENSE

3.1 Rights granted

3.1 General provisions

Subject to the payment of the Subscription Fee and to the terms and conditions of the Agreement, 4D grants LICENSEE’s Developers a revocable, limited, personal, non-exclusive and non-transferable right to use the executable version of the Software for the sole purpose of designing, developing and testing an unlimited number of Wakanda Applications in accordance with the limits of the Subscription Plan and generally the Subscription Form, throughout the Subscription Term.

LICENSEE may:

install and use the Software in the Environment, for the sole purpose of developing, designing and testing any Wakanda Application in the Environment, in strict compliance with the instructions in the Documentation and the Agreement, provided that the Software is always used within the limits of the Subscription Plan throughout the Subscription Term;

reassign the rights assigned to a Developer under this section 3.1 to another developer, in accordance with the 4D procedure as indicated on the Wakanda Store (http://wakanda.4d.com), and always within the limit of the Subscription Plan, in the single case where a Developer is definitely no longer a Developer;

make copies of the Software in executable code, solely for use by Developers in accordance with the terms of this section 3.1, provided that LICENSEE reproduces all the copyright, trademark and other proprietary notices which appear on or in the Software; such copies being subject to the terms and conditions of the Agreement.

For the avoidance of doubt, a Developer may use Wakanda Studio or Wakanda Studio Enterprise (depending on the applicable Subscription Plan) under the development license.

Except as otherwise stated in the Agreement, LICENSEE shall not:

allow any other user than a Developer to use the Software as part of the development license;

reassign the rights assigned to a Developer under this section 3.1 to another developer, except as in accordance with the 4D procedure as indicated on the Wakanda Store;

reassign the rights under this section 3.1 to any other entity or person;

transfer the license granted under this section 3.1 from one Developer to another, even in the event that the authorized Developer does not use the Software; the development license being per named user (not a floating license);

sublicense, sell, lease, rent, share the use of the Software or otherwise transfer it, or permit any third party to use the Software for time sharing, outsourcing services, application service provider services, platform as a service or application hosting provider services and/or any cloud business. Generally, LICENSEE shall not grant any kind of rights regarding the Software or any portion thereof in any form to any third party without the prior written consent of 4D;

modify, translate, reverse-engineer, decompile, disassemble, partially or completely, the Software, except as otherwise mentioned by the legal measures in force. Nevertheless, LICENSEE shall ask 4D for the information which is necessary to achieve the interoperability of the Software with another program and this, before any decompilation;

remove or alter any Software identification, proprietary notice, trademarks, warnings or disclaimer statements affixed to, incorporated in or otherwise applied in connection with the Software;

use the Software in violation of any Country, Treaty, Federal or State law, regulation or rules, including laws with respect to misuse or improper use of information.

LICENSEE ensures that all Developers shall be informed of the terms and conditions contained herein and warrants that such Developers agree to be bound by terms at least as restrictive as the development license terms as stated in this section 3.1 prior to any use of the Software. Such undertaking constitutes a prerequisite to any use of the Software by the concerned entity or person. In any event, LICENSEE guarantees the compliance with the terms of the Agreement, in particular this section 3.1 by these third parties (and any concerned employee), and shall be liable for such third party and/or employee’s behavior conflicting with the Agreement.

3.2 Exceptions

Notwithstanding the above, LICENSEE is allowed to modify Wakanda Framework / Wakanda Framework Enterprise for its own internal development purposes exclusively, it being agreed that such development shall be done at its own risk and under its sole responsibility. Except as otherwise stated in this section 3.2, all the provisions of section 3.1 apply to Wakanda Framework / Wakanda Framework Enterprise. In particular, LICENSEE is not allowed to sublicense, sell, lease, rent, share the use of the Wakanda Framework / Wakanda Framework Enterprise or otherwise transfer it.

4. DEPLOYMENT LICENSE

                                                     

During the Subscription Term, LICENSEE may Deploy on a royalty free basis an unlimited number of Wakanda Applications per one (1) Server under the corresponding Subscription Plan throughout a yearly period, and for an unlimited number of End Users, subject to an End User License, provided that such Wakanda Applications use the unchanged Software except with regards to the modified Wakanda Framework / Wakanda Framework Enterprise as defined in section 3.2 and in accordance with the terms and conditions of the Agreement, in particular without violating the restrictions set forth below in section 4 of the Agreement.

LICENSEE acknowledges and agrees that any Deployment of Business Wakanda Applications and/or Enterprise Wakanda Applications entails the purchase of a Development Business license and/or an Development Enterprise license, except if LICENSEE has not developed such Wakanda Applications.

LICENSEE acknowledges and agrees that Wakanda Studio is excluded from the scope of the Deployment license, and thus from the scope of Software definition, for the sole purpose of this section 4.

Under the Deployment license, LICENSEE expressly refrains from deploying the Software separately and/or from using it for any other purpose than deploying the Wakanda Application.

For the avoidance of doubt, the use of the Software for testing purposes is allowed as part of the development license.

Under no circumstances, shall LICENSEE:

use the Software alone or as part of any application other than Wakanda Applications;

use more than one (1) Server per yearly period under each corresponding Subscription Plan;

modify the Software, except for the Wakanda Framework / Wakanda Framework Enterprise;

redistribute the Software other than by including the Software or a portion thereof within Wakanda Applications;

redistribute the Software as part of an open source Deployment of any Wakanda Application;

redistribute Wakanda Studio in any manner;

use the Software for a Wakanda Application that is intended for software or application development purposes, in particular for platform as a service business and/or any cloud business and generally for any competitive offer to the Software;

remove or alter any Software identification, proprietary notice, trademarks, warnings or disclaimer statements affixed to, incorporated in or otherwise applied in connection with the Software; in this context, LICENSEE shall not Deploy Wakanda Applications in anyway that implies that the Software is a proprietary product of LICENSEE or of any other entity than 4D.

LICENSEE agrees to enforce End User Licenses and use all practical means available, both technical and contractual, to control the restricted use of the Software under each End User License entered into with an End User. In this context, it shall ensure that the Software may not be reused alone or by any application other than Wakanda Applications and will inform its customers accordingly.

The Deployment of Wakanda Applications is under LICENSEE’s sole responsibility. In no circumstances, shall 4D be liable for such Deployment and more generally for the commercialization and the licenses relating to Wakanda Applications.

5.  ENTERPRISE FEATURES

The purchase of a Development Enterprise Subscription Plan or a Deployment Enterprise Subscription Plan constitutes a prerequisite to the subscription to the Enterprise Feature license.

Licensee acknowledges and agrees that each Enterprise Feature License may be binded to one (1) Development Enterprise Subscription Plan and one (1) Deployment Enterprise Subscription Plan only.

                                                    

6. DOCUMENTATION RIGHTS

LICENSEE may (i) print the Documentation for use with the Software, (ii) transfer the HTML or PDF files to a server for use on LICENSEE's Intranet, and/or (ii) transfer the Documentation on a hard drive for LICENSEE's use with the Software.

LICENSEE may not (i) distribute the Documentation, (ii) transfer the Documentation in any manner that causes it to be accessed on the Internet, and/or make derivative works of the Documentation.

In any case, it is LICENSEE’s responsibility to make sure that any user of the Software complies with the terms of this Agreement.

7. THIRD PARTIES’ RIGHTS

The Software may include one or more libraries, files or other items intended to help LICENSEE to use the Software. 4D grants LICENSEE the right to use these libraries, files and other items provided LICENSEE complies with the terms of this Agreement and any terms specific to the libraries or files. LICENSEE should refer to the Documentation and the “Copyright Information” included in the Software and at the following URL http://wakanda.org/credits for additional information and terms.

LICENSEE is informed that the Software may give access to a library that allows LICENSEE to code certain information in the Wakanda Applications developed with the Software. LICENSEE agrees that some laws do not allow or limit the use of the algorithms contained in this library and agrees to comply with all applicable laws and regulations related to such use.

8. SOFTWARE MAINTENANCE

4D shall provide Software Maintenance services related to the Software as part of the Subscription Plan or Subscription relating to the concerned Enterprise Feature at no additional charge, and throughout the Subscription Term.

9. WARRANTIES AND DISCLAIMERS

Generally, each Party warrants that it has validly entered into the Agreement and is empowered to do so.

LICENSEE ACKNOWLEDGES AND AGREES THAT THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND THAT 4D MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. 4D MAKES NO  WARRANTY OR REPRESENTATION (EXPRESS OR IMPLIED) OF ANY KIND, AND 4D DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE EXTENT PERMITTED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, 4D DOES NOT WARRANT THAT THE SOFTWARE IS FREE FROM BUGS AND/OR ERRORS AND/OR THAT THE FUNCTIONS INCLUDED IN THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED.

THE ENTIRE RISK AS TO CHOICE AND USE OF THE SOFTWARE AS WELL AS THE RESULTS OBTAINED WITH THE SOFTWARE IS WITH LICENSEE.

Further, it is LICENSEE’s responsibility to take the necessary steps for the protection of its data.

For the avoidance of doubt, LICENSEE agrees that the Software is obtained through download at its own discretion and risk and that LICENSEE is responsible for any damage to its computer system or loss of data that results from the downloading of the Software.

10. LIMITATION OF LIABILITY

LICENSEE ACKNOWLEDGES AND AGREES THAT 4D MAY ONLY BE LIABLE FOR DIRECT DAMAGES, PROVIDED THAT LICENSEE HAS ESTABLISHED A DIRECT CAUSAL LINK BETWEEN THE ALLEGED DAMAGE AND THE EVIDENCE OF A BREACH OF THE AGREEMENT BY 4D.

NEITHER 4D NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE DESIGN, THE PRODUCTION, OR THE DISTRIBUTION OF THE SOFTWARE WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES CAUSED TO LICENSEE, ANY USER OR THIRD PARTY, EVEN IN CASE OF NEGLIGENCE, INCLUDING BUT NOT LIMITED TO, THE INTERRUPTION OF THE GOOD ORDER WORK OF THE SOFTWARE, THE LOSS OF PROFITS, LOSS OF DATA, LOSS OF BRAND IMAGE, INCREASE OF OVERHEADS OR ANY OTHER FINANCIAL LOSS ARISING FROM THE USE OF THE SOFTWARE OR INABILITY TO USE IT EVEN IF 4D HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.

4D shall not be responsible to LICENSEE and/or End User and/or any third party, for the Deployment license and generally the commercialization and the use of any Wakanda Application. LICENSEE shall indemnify 4D from any claim by an End User and any third party related to such Wakanda Application.

IN ANY CASE 4D'S LIABILITY SHALL NOT EXCEED THE SUBSCRIPTION FEE PAID BY LICENSEE AND RECEIVED BY 4D FOR THE CONCERNED SUBSCRIPTION PLAN DURING THE CURRENT YEARLY PERIOD.

LICENSEE acknowledges that (i) the above limitation of liability reflects the allocation of the risks under the Agreement and the economical balance required by the Parties, and that (ii) the Agreement would not have been concluded without such limitation.

It is expressly agreed that any claim for damages against 4D arising in connection with the Agreement will be time-barred twelve (12) months after the event that generated that claim.

11. PROPRIETARY RIGHTS

11.1 LICENSEE acknowledges and agrees that all Intellectual Property Rights in connection with the Software are the exclusive property of 4D. Subject to the limited rights expressly granted under the Agreement, 4D (and/or its licensors) reserve(s) all rights and interests in and to the Software, in particular all related Intellectual Property Rights. No rights are granted to LICENSEE under the Agreement other than those expressly granted by the Agreement.

This Agreement does not include any license or rights on 4D and/or its suppliers’ trademarks or other proprietary rights notices. LICENSEE shall not assert any right, license, or interest in 4D and/or its suppliers’ trademarks or any words or designs that are confusingly similar to such marks.

LICENSEE shall not change the legal notices relating to copyright and other intellectual and industrial property privileges on or in the Software. Any reproduction whether in whole or in part of the Software is only allowed on the absolute condition that it contains all the legal specifications of the Software property.

11.2 4D declares that to its knowledge (i) nothing stands to the signature of this Agreement, (ii) the Software does not constitute an infringement to any pre-existing creation.

11.3 LICENSEE shall promptly notify 4D of any unauthorized use or any infringement of the Software, of which LICENSEE has knowledge. Should 4D decide to institute legal action based on LICENSEE’s notification, LICENSEE shall provide 4D with any assistance that may be reasonably required by 4D.

11.4 4D shall defend and/or settle, at its own costs, pursuant to any claim brought against LICENSEE alleging that the Software provided under the terms of this Agreement infringes any Intellectual Property Rights, provided that LICENSEE:

- promptly notifies 4D in writing of any such claim, and

- promptly tenders the control of the defense and settlement of any such claim to 4D, and

- shall cooperate with 4D in defending or settling such claim.

If a claim or a potential claim for infringement is to be brought against LICENSEE, or if in the opinion of 4D the Software may become the subject of any claim for infringement, then 4D shall, at its option and expense, either (i) replace the Software with reasonably equivalent software or (ii), if this is not practicable, refund the Subscription Fee paid with regards to the Subscription and terminate the concerned Subscription.

4D shall pay damages finally awarded pursuant to any claim brought against LICENSEE alleging that the Software infringes any Intellectual Property Rights, including reasonable LICENSEE’s defense costs (notably lawyer’s fees), it being agreed that 4D’s entire liability with respect to any claim regarding the intellectual property rights of any third party relating to the Software, shall not exceed, in any case, the amount defined in section 10.

4D shall have no liability for:

the use of other than the then-current release of the Software,
the modification of the Software by LICENSEE or any third party,
the use of the Software other than as set forth in its Documentation and permitted herein,
the use of the Software with another hardware, another operating system and/or another software that those which constitute the Environment.

This section 11 states 4D’s entire obligation with respect to any claim regarding the infringement of intellectual property rights or of another property right of any third party.

12. FINANCIAL CONDITIONS

12.1 Subscription Fee

LICENSEE pays in advance to 4D the Subscription Fee in accordance with the Subscription Form, given that the contractual period begins on the Start Date. The Agreement is considered as a firm order of the Subscription Plan or the Subscription for the Subscription Term and the corresponding amounts are fully due whatever the use made (or not) of the Software by LICENSEE.

LICENSEE’s payment obligations are non-cancellable and fees paid are non-refundable.

12.2 Taxes

LICENSEE shall pay or reimburse all local taxes (value added taxes or any withholding taxes), duties, excise taxes and assessments arising in connection with the Subscription under the Agreement or provide 4D with an exemption certificate upon 4D’s request. If such exemption certificate is challenged or held invalid by any taxing authority then LICENSEE agrees to pay all resulting expenses (including reasonable attorney’s fees and costs), fines and penalties provided that 4D provides prompt written notice of such dispute.

12.3 Subscription Fee revision

4D reserves the right to adjust its Subscription Fees at any time after the first twelve (12) months of a Subscription and after any Subscription Term within the limit of an eight percent (8%) fixed yearly increase.

12.4 Adjustment

12.4.1 Upgrade Subscription

LICENSEE may upgrade the Subscription Plan at any time. In such a case, the corresponding adjustment shall be issued immediately, and, if the adjustment is not made on the annual renewal date, as applicable, then the Subscription Fee for the initial partial Subscription annual period will be calculated pro rata temporis until the end of this yearly period of the upgraded Subscription Plan. Subscription Fees for subsequent periods will be calculated and invoiced at the rate indicated on the Subscription Form at the time of upgrade Subscription, and for the Subscription Term as defined in the Subscription Form, or renewal period thereof.

12.4.2 Downgrade Subscription

LICENSEE may downgrade the Subscription Plan subject to a thirty (30) days written notice. In such a case, the adjustment shall be made in accordance with the applicable rates at the effective date of the downgrade Subscription; it being understood that such an adjustment shall be taken into account in the calculation of the amount of the applicable Subscription Fee for the following yearly period under the Agreement. Under no circumstances, shall such downgrade Subscription be taken into account during a current contractual period.

13. CONFIDENTIALITY AND NON-DISCLOSURE

LICENSEE shall consider as strictly confidential any data, information or knowledge, whatever their form or nature, and on whatever media, disclosed to it by 4D in performing the Agreement (hereinafter referred to as the “Confidential Information”), and agrees that it shall not give or disclose any Confidential Information to any third party.

LICENSEE may disclose Confidential Information only to those persons allowed to receive such Confidential Information for the exclusive purpose of performing the Agreement and who agree to be bound by the provisions of the Agreement. LICENSEE undertakes to make such abovementioned persons sign a non-disclosure agreement containing the same level of obligation as the provisions of this section 13.

Confidential Information does not include information, documents and/or tools which:

was part of the public domain at the time of their disclosure or become part of the public domain without any breach to the provisions of this section 13;
result from internal knowledge of LICENSEE without any breach to its obligation of confidentiality, or has been obtained through a third party, not bound by an obligation of confidentiality;
is required to be disclosed by a judicial or administrative Court order which binds LICENSEE.

The obligation of non-disclosure shall remain in force five (5) years after the termination of this Agreement, given that for all confidential information relating to 4D’s intellectual property rights, this obligation shall remain valid during the term of their legal protection.

LICENSEE expressly agrees that 4D has the right to publicly announce the 4D/LICENSEE relationship and to use its trademark and logo as a business reference.

14. SUBSCRIPTION TERM, TERMINATION, EFFECTS AT THE END OF THE AGREEMENT

14.1 Subscription Term

Unless terminated early in accordance with section 14.2, the Subscription starts on the Start Date and is granted for the Subscription Term or one (1) year for any Enterprise Feature license, given that the subscription to any Enterprise Feature license shall automatically expire upon the termination of the corresponding Subscription Plan, for any reason whatsoever.

Forty (40) days prior the anniversary date of the Subscription Term, 4D may provide LICENSEE with the new applicable Subscription terms and conditions for the following contractual period, including the applicable terms relating the Enterprise Feature license(s) for the remaining period if any. After the initial Subscription Term, the Agreement shall be automatically renewed for successive identical Subscription Term periods in accordance with such new terms and conditions, including those relating to the Enterprise Feature license(s) for its remaining period if any, or - in the absence of new applicable Subscription terms and conditions provided by 4D - with application of the adjustment formula defined in section 12.3 (for an identical scope), unless either Party provides written notice of non-renewal no less than thirty (30) days prior to expiration of the then-current Subscription Term in case of a yearly Subscription.

14.2 Termination

Each Party may terminate the Agreement immediately by sending a written notice to the other Party - by registered letter with acknowledgment of receipt - when such Party is in material breach of any term, condition, or provision of this Agreement and breach is not cured within ten (10) days after such notice.

However, 4D may also terminate immediately the Agreement by sending a written notice to LICENSEE - by registered letter with acknowledgment of receipt - in the event that (i) LICENSEE breaches sections 3 or 4 of the Agreement and/or that (ii) LICENSEE has not paid any invoiced Subscription Fee related to the Agreement.

The Development and Deployment Enterprise Subscription Plans being a prerequisite to the subscription to any corresponding Enterprise Feature license (development or deployment), such license shall automatically terminate upon the end of the Enterprise Subscription for any reason whatsoever.

14.3 Termination effects

In addition to the terms stated in section 14.1, the expiration or the termination of any Subscription Plan for any reason whatsoever entails that LICENSEE ceases any development or Deployment of any Wakanda Applications.

LICENSEE acknowledges and agrees that (i) the continuation of the existing deployed licenses at the expiration or termination of the Agreement for any reason whatsoever, (ii) the Deployment of Wakanda Applications outside the scope of the Agreement and/or generally (iii) the appropriate Subscription entails a Deployment with Wakanda Framework Community Edition or Wakanda Server Community Edition, under the applicable open source license.

The termination of the Agreement does not prevent 4D from claiming for any further damages.

LICENSEE agrees that the Subscription Fee paid under any Subscription is not refundable and that the expiration or termination of the corresponding Subscription for any reason whatsoever shall not relieve LICENSEE from paying any amount due at the date of the termination pursuant to this Agreement.

Upon termination of the Agreement for any reason, such termination shall relieve 4D from any of its obligations related to the Agreement, notably the Software Maintenance, given that LICENSEE shall stop using the Software, destroy or return the Software and the Documentation and any copy made whether in whole or in part, and return the product number to 4D.

LICENSEE shall certify by means of a written document duly signed by a legal representative that the provisions of the present section 14.3 have been fulfilled within a time limit of five (5) days from the date of termination.

In addition, sections 9, 10, 11, 13, 15, and 16 shall survive any termination for any reason whatsoever for the term necessary to give them full force.

15. AUDIT

LICENSEE permits 4D to perform either itself or by any representative any audit or control in order to verify that LICENSEE complies with all provisions of this Agreement, it being agreed that LICENSEE shall provide any information requested by 4D regarding the Agreement execution, without any delay and by writing.

If the audit reveals a non-compliance with the terms and conditions of the Agreement and/or a discrepancy with the information given by LICENSEE, LICENSEE shall pay all 4D’s reasonable costs relating to the audit and this, without prejudice to other rights and 4D’s recourse.

This provision shall remain in force two (2) years after the termination of the Agreement for any reason whatsoever.

16. MISCELLANEOUS PROVISIONS

It is LICENSEE's responsibility to comply with any applicable French, European or International export control laws and regulations. LICENSEE shall not directly or indirectly transfer the Software to any country to which such transfer would be prohibited by any applicable export control laws or would be subject to an export license or any administrative authorization, without having firstly obtained such license or authorization. Further, LICENSEE warrants that LICENSEE is not a national or a resident of a country to which exporting the Software is not allowed by virtue of any Export laws or regulations.

In compliance with the French law n°78-17 of January 6, 1978, as amended by the law n°2004-801 of August 6, 2004, LICENSEE is entitled to a right of access, modification and suppression of all personal data which concerns LICENSEE. To do so, LICENSEE may contact 4D at info@4d.com.

More generally, the Parties shall comply with any applicable law and regulation, in particular related to any personal data protection.

Unless otherwise provided in the Agreement, the files, data, messages and digitized records stored in the Parties’ data processing systems shall be admitted as proof of the facts and communications between the Parties, provided that the transmitting Party may be identified and that such materials are established and stored under conditions which permit to warrant their integrity. Notwithstanding the above provisions, all notices pertaining to the Agreement shall be in writing and either personally delivered or sent via postage prepaid certified mail which can be tracked, addressed to the other Party. All notices shall be effective upon delivery to the notice address.

LICENSEE shall not assign, contribute, or transfer - whether in whole or in part, free of charge or against payment, for any reason and under any form whatsoever - any of its rights and obligations under the Agreement, without the prior written consent of 4D.

4D may assign, contribute or transfer its rights and obligations under the Agreement to any third party. In case of assignment or transfer of the Agreement pursuant to the conditions defined in this section, the assignee or the successor will be automatically bound by the Agreement.

4D may subcontract its contractual obligations in whole or in part, it being agreed that 4D shall remain solely responsible for the execution of the contractual obligations as stated in the Agreement.

This Agreement constitutes the entire agreement between 4D and LICENSEE relating to the Software and supersedes any prior purchase order, communications, advertising or representations concerning the Software.

No change or modification to this Agreement will be valid unless a written amendment signed by LICENSEE and an authorized officer of 4D.

If any provision of this Agreement is held to be unenforceable upon a definite legal or reglementary provision or a statutory or judicial determination, the remainder of this Agreement shall continue in full force and effect.

The waiver by 4D of one breach or default hereunder does not constitute the waiver of any subsequent breach or default.

A printed version of this Agreement under electronic form and any warning notice delivered under electronic form by 4D shall be accepted in the course of any legal proceedings regarding the execution of this Agreement.

The relationship between 4D and LICENSEE is that of LICENSOR/LICENSEE. In all matters relating to the present Agreement, LICENSEE will act as an independent party.

This Agreement will be governed by French law and any dispute, controversy or claim arising out of or related to this Agreement shall be settled by adjudication before the Commercial Court of Nanterre, France, including in case of summary proceeding, plurality of defendants or action on a warranty.

Except as otherwise stated in this document or expressly agreed between the Parties, the English language version of this document and its exhibit one (1) shall be the version which defines the relationship between the Parties. English will be the official language used in all communication between them.

LICENSEE ACKNOWLEDGES TO HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT PRINTED ABOVE.

Should LICENSEE have any questions concerning this Agreement or wish to request any information from 4D, please contact 4D or the local 4D subsidiary by connecting to the following web page: www.4d.com/company.international.html

* U.S. GOVERNMENT RESTRICTED RIGHTS:

Wakanda Framework/Wakanda Framework Enterprise, Wakanda Server/Wakanda Server Enterprise, Wakanda Studio/Wakanda Studio Enterprise and documentation are commercial in nature. The Software and Documentation are "Commercial Items", as that term is defined in 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are defined in 48 C.F.R. §252.227-7014(a)(5) and 48 C.F.R. §252.227-7014(a)(1), and used in 48 C.F.R. §12.212 and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. §12.212, 48 C.F.R. §252.227-7015, 48 C.F.R. §227.7202 through 227.7202-4, 48 C.F.R. §52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable, 4D's computer software and computer software documentation are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this Agreement.

Publisher is 4D located at 60, rue d’Alsace, 92110 Clichy, France.

Wakanda is a registered trademark of 4D. All other trade names and trademarks are trademarks or registered trademarks of their respective holders.

EXHIBIT 1

END USER LICENSE

MINIMUM TERMS RELATING TO THE SOFTWARE

I. Definitions

“Environment” means in particular the computer hardware, operating system(s) ("platform(s)") and the software required for use in conjunction with the Software, as indicated on the media and any evolution thereof which may be required for the use of Software updates.

“Intellectual Property Rights” means all present and future proprietary rights, licenses, title and interest in any intellectual property rights including (but not limited to) (i) author’s rights, patents, patents rights, inventions, copyrights, copyrightable rights, database rights and rights in trademarks, trade names, designs, know-how, domain names, trade secrets and confidential information (whether registered or unregistered); (ii) applications for registration and the right to apply for registration for any rights referred to in (i) above; and (iii) any other intellectual property rights or equivalent or similar forms of protection existing anywhere in the world.

“Software” means any or all of the following, as applicable, which is provided in machine-readable executable form, in English, including related Documentation, and any replacement, change, and/or Update thereto:

Deployment license

Deployment Business – the commercial versions of Wakanda Server and Wakanda Framework;

Deployment Enterprise – the commercial versions of Wakanda Server Enterprise and Wakanda Framework Enterprise. 

“Wakanda Application(s)” means the application(s) developed with the Software, which use(s) Wakanda Server or Wakanda Server Enterprise, or Wakanda Framework, or Wakanda Framework Enterprise; given that any Wakanda Application must have substantial different functionalities than the Software. In no event shall a Wakanda Application shall compete to the Software by notably developing without limitation: a development toolkit or library, an application builder, a web database server, a website builder that are intended for use by software, application, or website developers or designers.

II. Characteristics of the End User License

Non-exclusive End User License

The End User License is granted on a non-exclusive basis.

Personal End User License

The End User License is personal to the End User and is for internal purpose exclusively. The End User may not assign, share or otherwise transfer the End User License.

Limitation to the Environment and to the language as indicated on the media

The End User License is granted by LICENSEE for the Environment for which the End User License is granted and for the language indicated on the media, exclusively.

Limitations to the rights granted to the End User under the End User License; End User License term

The End User License is strictly limited to the rights expressly granted in the End User License and granted for the term of license relating to each concerned Wakanda Application.

Restrictions of Use:

The End User may not:

use the unchanged Software for another purpose than for running the concerned Wakanda Application;

sublicense, sell, lease, rent, share the use of the Software or otherwise transfer it, or permit any third party to use the Software for time sharing, outsourcing services, application service provider services, platform as a service or application hosting provider services and/or any cloud business. Generally, the End User shall not grant any kind of rights regarding the Software or any portion thereof in any form to any third party;

directly or indirectly modify, translate, reverse-engineer, decompile or disassemble, partially or completely, the Software, or authorize third parties to do so, except as otherwise mentioned by the legal measures in force. Nevertheless, the End User shall ask LICENSEE, which shall obtain the prior approval of 4D, for the information which is necessary to achieve the interoperability of the Software with another program and this, before any decompilation;

copy the Software, except one (1) copy of the Software in the executable form, provided that the End User reproduces all the copyright, trademark, and other proprietary notices which appear on or in the Software, such copy being subject to the terms and conditions of the End User License; and generally

remove or alter any Software identification, proprietary notice, trademarks, warnings or disclaimer statements affixed to, incorporated in or otherwise applied in connection with the Software; in this context, the End User shall not deploy the Wakanda Applications in anyway that implies that the Software is a proprietary product of the End User or of any other entity than 4D.

The End User acknowledges and agrees that the End User License does not include any support and/or maintenance services relating to the Software; such services being subject to a separate agreement.

Third Parties’ Products:

The Software may include one or more third parties’ libraries, files or other items intended to help the End User to use the Software.

The End User is granted the right to use these libraries, files and other items, provided the End User complies with the provisions of this agreement and any terms specific to the libraries or files which may be included in the documentation and/or the “Credits” included in the Software.

III. Intellectual Property Rights

The End User acknowledges and agrees that all Intellectual Property Rights in connection with the Software are the exclusive property of 4D. Subject to the limited rights expressly granted under the End User License, 4D (and/or its licensors) reserve(s) all rights and interests in and to the Software, in particular all related Intellectual Property Rights.

No rights are granted to the End User other than those expressly granted by the End User License.

The End User License does not include any license or rights on 4D and/or its suppliers’ trademarks or other proprietary rights notices.

The End User shall not change the legal notices relating to copyright and other intellectual and industrial property privileges on or in the Software. Any reproduction whether in whole or in part of the Software is only allowed on the absolute condition that it contains all the legal specifications of the Software property.

IV. WARRANTY, LIABILITY AND DISCLAIMERS

THE END USER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND THAT 4D MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. 4D MAKES NO WARRANTY OR REPRESENTATION (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE) OF

ANY KIND, AND 4D DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE EXTENT PERMITTED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, 4D DOES NOT WARRANT THAT THE SOFTWARE IS FREE FROM BUGS AND/OR ERRORS AND/OR THAT THE FUNCTIONS INCLUDED IN THE SOFTWARE WILL MEET THE END USER’S REQUIREMENTS OR THAT THE OPERATION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED.

THE ENTIRE RISK AS TO CHOICE AND USE OF THE SOFTWARE AS WELL AS THE RESULTS OBTAINED WITH THE SOFTWARE IS WITH THE END USER.

Further, it is the End User’s responsibility to take the necessary steps for the protection of its data.

4D IS NOT RESPONSIBLE TO THE END USER AND/OR ANY THIRD PARTY, FOR THE COMMERCIALIZATION AND THE USE OF ANY WAKANDA APPLICATION; SUCH COMMERCIALIZATION BEING UNDER THE END USER’S SOLE RESPONSIBILITY.

SUBJECT TO ANY APPLICABLE LEGAL PROVISION, IN NO EVENT SHALL 4D BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND WITHOUT LIMITATION, LOST DATA, LOST PROFITS OR OTHER ECONOMIC LOSS ARISING IN CONNECTION WITH THE END USER'S USE OF OR INABILITY TO USE THE SOFTWARE.

This limitation of liability shall apply regardless of the form of action, whether in contract or tort. This disclaimer shall apply whether or not 4D or its licensors have been informed of the possibility of such damages.

V. Confidentiality, non-disclosure

The structure and the organization of the Software are trade secrets of 4D and/or its licensors that the End User shall not disclose. The confidentiality obligation set forth in this section shall remain in effect for five (5) years after the End User License terminates for any reason whatsoever.

VI. Termination; expiration/termination effects

The End User is aware that 4D may terminate without prior notice the End User License relating to the Software, in case of breach by the End User of any of its obligations under such license agreement and/or termination of the Subscription agreement between 4D and LICENSEE.

Upon termination of the End User License for any reason whatsoever, the End User shall immediately (i) stop using the Software, (ii) destroy or return the Software and the Documentation and any copy made whether in whole or in part, and return the product number to 4D; being agreed that the obligations that are described as surviving after the termination of the End User License shall remain in effect.

VII. Third beneficiary

As the publisher of the Software, 4D is considered as a third beneficiary to the agreement. In this context, 4D is entitled to enforce these minimum terms between LICENSEE and the End User.

VIII. Compliance with law

The End User shall comply with any applicable law and regulation, in particular related to any personal data protection.