MiWorkplace Terms and Conditions Version 2.0 - MAY 7, 2020
These terms of service ("Terms", "Agreement") are an agreement between Remain Inc. if you are located in the USA or Canada, or Remain BV if you are located anywhere else in the world ("Remain", "us", "we" or "our") and you (hereafter, You or Licensee). This Agreement sets forth the general terms and conditions of Licensees use of the "MiWorkplace" software product and documentation (collectively, "the Product").
1. LICENSE Grant
1.1. License. A license may be purchased online at “https://reg.miworkplace.com/buy/”. Subject to the terms and conditions of this Agreement, Remain grants to Licensee a limited, non- exclusive, non-transferable right and license during the license Term (as stated in the
license information page in the product) to: (a) install and/or use the Product “to develop software for the IBM i platform”. (hereinafter the “Purpose”) on one or more computers and supported operating systems (as defined in https://miworkplace.com/index.php?content=download), provided, however, that the total number computers in which the Product is installed does not exceed the total number of Users (as defined in section 6.1 herein) for which the license is procured; (b) copy the Product solely as necessary for backup or archival purposes; and (c) reproduce the Products documentation in connection with Licensee’s use for the Purpose. Except for the express license granted in this Section 1.1, no other licenses are granted by implication or otherwise.
1.2. Restrictions. Licensee will not and will not permit third parties to: (a) modify, adapt, translate, copy, create derivative works from, disassemble, decode, reverse engineer, decompile or otherwise attempt to gain access to the source code, structure or proprietary algorithms of the Product, except as permitted by the inherent capabilities of the Product and except as any such activity is explicitly permitted by law, and then only as necessary for the Purpose; (b) lease, loan, rent, resell, sublicense or distribute the Product to any third party, or use the Product for the benefit of any third party or otherwise use the Product on a service bureau basis; (c) exceed the number of licenses purchased, or (d) modify or delete any copyright or proprietary notices or legends on or in the Product or Product documentation.
2. INTELLECTUAL PROPERTY RIGHTs
2.1. This Agreement does not transfer from Remain to Licensee any Remain or third-party intellectual property, and all right, title, and interest in and to such property will remain (as between the parties) solely within Remain. Remain or its licensors own and retain all right, title and interest in the Product and any and all updates, corrections, bug fixes, enhancements, derivative works or other modifications thereto, including but not limited to all patents, trademarks, copyrights, trade secrets and other intellectual property rights therein.
3. ACCESS TO LICENSED PRODUCT
3.1. When Licensee uses the Product, the Product will occasionally check the license by contacting the license registration server. With this request we send the following encrypted information and store it on the server: inside IP Address, Local Account Name (operating system user name), Time Stamp, Machine ID, Product Version Numbers and Operating System Type. We use this data only for internal purposes and to provide Licensee with a better user experience which are, but not limited to: notify you when a new version is available and warn you when the license is about to expire.
4. LIMITED WARRANTY
4.1. Trial Versions. Any evaluation or trial versions of the Product are provided on an "AS IS", ‘WHERE IS” basis, without warranty of any kind, including without limitation any warranties that evaluation or trial versions are free of defects, merchantable, fit for a particular purpose or non-infringing. The entire risk as to the quality and performance of evaluation or trial versions is borne by Licensee. Should evaluation or trial versions of the Product prove defective in any respect, Licensee assumes the entire cost of any service and repair. This disclaimer of warranty constitutes an essential part of this Agreement. No use of evaluation or trial versions of the Product is authorized hereunder except under this disclaimer.
4.2. Limited Warranty for Product. If a license fee has been paid for the Product, Remain warrants that for a period of ninety (90) days from the date of first delivery (“Warranty Period”), the Product, if operated as directed, will substantially achieve the functionality described in “https://miworkplace.com/docs/”. Remain does not warrant, however, that Licensee’s use of the Product will be uninterrupted or that the operation of the Product will be error-free or that all errors will be corrected. Licensee acknowledges and agrees that Licensee is solely responsible for determining that the Product sufficiently meets Licensee’s requirements. Remain's sole liability and Licensee’s sole and exclusive remedy for any breach of this warranty shall be, in Remain's sole discretion: (a) to replace any defective media or Product; or (b) to advise Licensee how to achieve substantially the same functionality with the Product; or (c) if the above remedies are impracticable, to refund the license fee Licensee paid for the Product. Only if Licensee informs Remain of nonconformity with this warranty during the Warranty Period and provides evidence of the date Licensee purchased a license to the Product, will Remain be obligated to honor this warranty. Remain will use reasonable commercial efforts to repair, replace, advise or, refund pursuant to the foregoing warranty within thirty (30) days of being so notified. If any modifications are made to the Product by Licensee, or if Licensee violates the terms of this Agreement, then this warranty shall immediately terminate.
4.3. Licensee understands and agrees that any material and/or data downloaded or otherwise obtained through the use of Product is done at Licensees own discretion and risk and that Licensee will be solely responsible for any damage to Licensees computer system or loss of data that results from the download of such material and/or data. No advice or information, whether oral or written, obtained by you from us or through the Product shall create any warranty not expressly made herein.
4.4. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, REMAIN EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
5. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL REMAIN, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A): ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, REVENUE, SALES, GOODWILL, USE OR CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY, NEGLIGENCE OR OTHERWISE, EVEN IF REMAIN HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF REMAIN AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO AN AMOUNT GREATER OF ONE EURO OR ANY AMOUNTS ACTUALLY PAID BY LICENSEE TO REMAIN FOR THE ONE (1) MONTH PERIOD PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
6. Fees
6.1. Calculation of License Fees. The Product is licensed for the number of users a license has been paid for. This number is selected by Licensee and shall equal the named / unique end-users that will use the Product during the applicable license Term (each a “User”). The license Fee shall be based on the amount of Users times the Product license fee for the selected term applicable at the time of first purchase of the Product or any renewal term (hereinafter the “Charges”). Current license fees are published on “https://reg.miworkplace.com/buy/”
6.2. Fees. Charges shall be due immediately upon conclusion of the paid license and any renewal Term thereof and will be paid automatically. Except as may be otherwise expressly set forth herein, all Charges are non-cancellable and non-refundable. Remain may impose service charges not exceeding one and one-half percent (1.5%) per month, or such lesser amounts as may be permitted under applicable law, on past undisputed due Charges.
6.3. Audit. Licensee will keep records of each copy of the Product, its location and usage, and will make such records available for inspection by Remain upon ten (10) days written notice. Not more than once per calendar year, at Remain’s expense and upon ten (10) days written notice, Remain shall have the right to audit Licensee’s use of the to ensure compliance with the terms of this Agreement. In the event that Remain discovers that Licensee is using the Product in a manner inconsistent with this Agreement, and/or beyond the scope of the Purpose or in excess of the number of Users licensed, then, in addition to Remain’s other rights under law , Licensee shall reimburse Remain for the costs of the audit and promptly remit any underpayment(s) at the then current Remain standard prices.
7. Term and Termination
7.1. Term. The license for the use of the Product will start on the purchase date (as stated in the license information page in the product). The purchase date is obtained when the Licensee submits the Buy button on the Remain website and pursuant to which (including this Agreement) the license is purchased. The license will automatically renew for successive terms equal to the term for which the license was originally purchased, unless Licensee has canceled the subscription via the license information form in the product at least fifteen (15) days prior to the Expiration Date as stated in the license information page in the product. The Licensee will receive an email notification from Remain acknowledging the cancelation. If a confirmation is not received contact Remain via email at “sales@remainsoftware.com”.
7.2. Termination. Either party may terminate this Agreement: (a) upon written notice via e-mail to “sales@remainsoftware.com” in the event the other party materially breaches the terms and conditions of this Agreement and such breach remains uncured for a period of fifteen (15) days following written notice thereof; or (b) at any time upon written notice in the event the other party makes a general assignment for the benefit of its creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to or initiates a proceeding under any bankruptcy or insolvency law or has wound up or liquidated its business.
8. Miscellaneous
8.1. Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or part of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
8.2. Dispute resolution. The formation, interpretation, and performance of this Agreement and any disputes arising out of it shall be governed by the laws of the Netherlands. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the courts located in Amsterdam, Netherlands, and Licensee hereby submits to the exclusive jurisdiction of such courts.
8.3. Assignment. Licensee may not assign, resell, sub-license or otherwise transfer or delegate any of your rights or obligations hereunder, in whole or in part, without our prior written consent of Remain. Remain is free to assign any of its rights or obligations hereunder, in whole or in part, to any third party as part of the sale of all or substantially all of its assets or stock or as part of a merger.