Updated January 1st, 2021
Definitions
- Brainstorm means “Brainstorm Multimedia, S.L.”
- “Agreement” means this Brainstorm Software License Agreement.
- “Software” means any purchased Brainstorm Software products and associated documentation.
- “Customer” means the customer or user identified in the quotation.
- “Quotation” means the quotation as set out in the Brainstorm Multimedia Purchase Quotation Agreement as submitted to the Customer.
In return for acquiring a license to use the Software the Customer agree as follows:
Section 1. License Grant
Brainstorm grants to the Customer a non-exclusive, non-transferable license to use the Software on the specified computer hardware, (or in the case of a Quotation for Customer evaluation, a temporary non-exclusive, non-transferable license for use during the evaluation period), upon the terms and conditions of this Agreement.
Wherever the term “sale” or “purchase” of the Software is referred to in this Agreement, such reference shall be deemed to include the purchase of an applicable license with respect to the Software and not be deemed to include the actual sale of the intellectual property rights underlying the Software.
The Customer agrees to hold the Software and documentation in confidence and to take reasonable steps to prevent unauthorized copying or disclosure. The Customer agrees not to reverse compile or disassemble the Software and shall not disclose, publish without Brainstorm’s written consent. The Customer shall not remove any copyright or proprietary rights notice included in the Software.
Section 2. Disclaimer of Warranties
The software is provided to customer “as is” and without warranty of any kind, express, implied or otherwise, including without limitation any warranty of merchanbility or fitness for a particular purpose. The entire risk as to the quality and performance of software is with the customer.
The Customer shall be exclusively responsible for the supervision, management and control of its use of the Software, including but not limited to: (a) selection of the Software to achieve the Customer’s intended results; (b) determining the appropriate use and establishing the limitations of the Software in the Customer’s operations; (c) assuring operation of the Software by qualified, trained personnel, in the specified computer environment, including proper machine configuration and operating software; (d) assuring proper operating methods; (e) establishing adequate back-up plans to prevent loss of data, based on alternate procedures in the event of a malfunction of the Software; and (f) implementing sufficient procedures and checkpoints to satisfy its requirements for security and to assure accuracy of input and output.
Section 3. Limitation of Liability
In no event shall Brainstorm or it licensors be liable to the customer for any special, consequential, incidental or indirect damages of any kind (including without limitation loss of data, use, profits or goodwill, property damage or loss of business arising out of or in connection with the performance of the software or Brainstorm’s performance of support or other services or of any other obligations relating to the software), whether or not Brainstorm has been advised of the possibility of such loss.
Section 4. Patents and Copyrights
Brainstorm shall have no liability or obligation to the Customer hereunder for any patent or copyright infringement or claim thereof based upon any of the following:
- A particular use of the Software capabilities.
- The combination of the Software with other products not furnished by Brainstorm.
- Any addition to or modification of the Software made after installation by any person other than Brainstorm.
- Brainstorm furnishing to the Customer any technical service or applications assistance.
- Any software or other technology not claimed to be owned by Brainstorm. Brainstorm shall have no obligation for any costs incurred by the Customer without Brainstorm’s prior written authorization.
The provisions of this section state the sole, exclusive and entire liability of Brainstorm and the sole, exclusive and entire remedy of the Customer, with respect to any claim of patent or copyright infringement or the like with respect to the Software, and any part thereof.
Section 5. Term
This Agreement takes effect on the date on which the Quotation is accepted by the Customer and shall remain in effect unless terminated as provided herein. If the Customer shall fail to perform or be in breach of any of its obligations hereunder, Brainstorm may terminate this Agreement and the license granted hereunder, by giving writte n notice of termination to the Customer effective immediately upon its sending.
Within 5 days after any termination of this Agreement, the Customer shall, at Brainstorm’s election, deliver or destroy all Proprietary Material, including copies thereof, in its possession, custody or control, including information and data relating to the Software stored in any computer software or storage facility which for any reason cannot be delivered to Brainstorm or which may be detected in the future on backup media.
Section 6. Support Services
Brainstorm will provide (or arrange to be provided) to the Customer the Support Services specified in the Quotation. Brainstorm may increase the support charges hereunder for an upcoming one (1) year renewal term, in accordance with Brainstorm’s then published list prices for Support Services, provided Brainstorm gives written notice to Customer not less than thirty (30) days prior to the end of the then-current term. Payments are due and Brainstorm will invoice annually in advance.
Brainstorm does not offer support for software running on non-certified systems. If the Customer has purchased a Support Services Contract, Brainstorm will attempt to answer the Customer’s questions relating to the software application where Brainstorm is able to duplicate the issue on a certified hardware configuration.
For Edison PRO customers, Brainstorm offers a free-of-charge web-based support scheme as standard support, accessible from the Support Site or the Brainstorm Users Blog. Such customers can also contract Brainstorm Customer Support Services for Edison PRO as a separate item, based on the then published list prices and conditions for Support Services.
Section 7. General
This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior oral and written agreements and understandings relating thereto. This agreement shall be governed by and construed in accordance with the Laws of Madrid, Spain.
