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Cascadeur end-user agreement

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CASCADEUR END-USER LICENCE AGREEMENT
VERSION 2024.0 ​     ​​APRIL​ 202​4​

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING SOFTWARE FROM THIS WEBSITE.  THESE TERMS AND CONDITIONS MAY HAVE CHANGED SINCE YOU LAST READ THEM. YOU SHOULD PRINT OR SAVE A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE. YOU SHOULD ALSO READ ABOUT CERTAIN COMMERCIAL ASPECTS OF YOUR LICENCE AND ABOUT THE SOFTWARE ON OUR WEBSITE.

This licence agreement (Agreement) is a legal agreement between you (Licensee or you) and Nekki Limited, a company organised under the laws of the Republic of Cyprus, with address: Kimonos 43A, Limassol, Cyprus (Licensor, us or we).

This Agreement governs the use of the Cascadeur computer software for physics-based character animation, in machine-readable, object code form only, including error-patches, updates or new versions that replace or supplement that software and which are not distributed with a separate licence (Software).  

We license use of the Software to you on the basis of this Agreement. We do not sell the Software or the intellectual property in it to you. We remain the owners of the Software and those intellectual property rights at all times.  

BY REGISTERING WITH US OR OBTAINING AUTHORISATION TO USE THE SOFTWARE OR PROCEEDING TO DOWNLOAD THE SOFTWARE YOU AGREE TO THE TERMS OF THIS AGREEMENT AND TO BE BOUND BY IT.  THE TERMS OF THIS AGREEMENT INCLUDE, IN PARTICULAR, LIMITATIONS ON LIABILITY IN CLAUSES 6.5, 7.4, 7.6, 7.7, 7.8, 7.10 AND 8. WE MAY CHANGE THIS AGREEMENT IN ACCORDANCE WITH CLAUSE 13.8. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU MUST NOT PROCEED WITH THE DOWNLOAD.  

THE SCOPE OF USE OF THE SOFTWARE PERMITTED TO YOU, THE FUNCTIONS ACCESSIBLE, AND THE SERVICES WE PROVIDE WITH YOUR LICENCE TO USE THAT SOFTWARE, DEPEND ON THE LICENCE SELECTION ("FREE"/"INDIE"/"PRO"/"PRO TRIAL"/"EDUCATIONAL" OR SUCH OTHER SELECTIONS AS DESCRIBED ON OUR WEBSITE FROM TIME TO TIME) (LICENCE TYPE) YOU SELECT, YOUR ELIGIBILITY FOR THAT LICENCE TYPE, AND THE PRICE YOU PAY, AS SET FORTH IN THE LICENCE TYPES PAGE ON OUR WEBSITE. WHERE YOUR LICENCE TYPE PERMITS YOU TO ADD USERS TO YOUR REGISTRATION (EACH INVITEE GRANTED ACCESS TO THE SOFTWARE THROUGH YOUR REGISTRATION, INCLUDING YOU, AN AUTHORISED USER), YOU ALSO AGREE TO PROCURE THAT EACH AUTHORISED USER COMPLIES WITH THIS AGREEMENT. IN THIS AGREEMENT, WE REFER TO A LICENCE TO YOU AND/OR YOUR AUTHORISED USERS AS A SUBSCRIPTION.  

IN ORDER TO BE ABLE TO USE THE SOFTWARE, YOUR COMPUTER MUST MEET THE SYSTEM REQUIREMENTS SHOWN ON OUR WEBSITE, AND YOU MUST FOLLOW THE INSTALLATION INSTRUCTIONS ON OUR WEBSITE. OCCASIONALLY, THE SOFTWARE WILL NOT OPERATE EVEN THOUGH YOUR COMPUTER MEETS THE SYSTEM REQUIREMENTS. IF THIS HAPPENS WHEN YOU DOWNLOAD THE SOFTWARE, YOU WILL HAVE THE TERMINATION AND REFUND RIGHTS SET OUT IN THIS AGREEMENT.

WHEN YOU REGISTER​​ TO USE THE SOFTWARE, YOU AND YOUR AUTHORISED USERS WILL BE ABLE TO DOWNLOAD IT IMMEDIATELY.  YOU ACKNOWLEDGE THAT, ONCE YOU OR ANY SUCH AUTHORISED USER HAVE OR HAS DOWNLOADED THE SOFTWARE, YOU WILL LOSE YOUR RIGHTS TO CANCEL THIS AGREEMENT. BY DOWNLOADING THE SOFTWARE, YOU CONSENT TO LOSING YOUR CANCELLATION RIGHTS SAVE THOSE RIGHTS THAT ARE SPECIFICALLY SET OUT IN THIS AGREEMENT AS SURVIVING CANCELLATION.  YOUR STATUTORY CANCELLATION RIGHTS (AS INDICATED IN CLAUSE 9.2) APPLY ONLY IF YOU ARE CONSUMERS, BEING NATURAL PERSONS WHO ARE NOT USING THE SOFTWARE FOR THE PURPOSES OF THEIR TRADE, BUSINESS, CRAFT OR PROFESSION.

AGREED TERMS

 1.   Registering as a licensee

1.1    To use the Software, you must first register via our website at cascadeur.com (Website).  We become bound by this Agreement when we notify you that we have registered you and you can download the Software.  After this and once you download the Software, you must also become an Authorised User, within the Software, linking your registration to your download​​. The first person to register an account with us (Original Authorised User) may add other Authorised Users to their Subscription only where permitted by the Licence Type and by paying the charges applicable to their Licence Type and registering them to their account via our Website. The Original Authorised User will be the administrator of and responsible for the Subscription. Additional Authorised Users associated with a Subscription must be (a) affiliate employees of the Original Authorised User or (b) individuals engaged by the Original Authorised User or (c) the Original Authorised User’s affiliate under a contract for services, where affiliate means an entity under the Original Authorised User’s control or common control, and control means the power, directly or indirectly, to direct the management or operation of an entity, whether through voting rights, contract or otherwise. Any use of the Software without such authorisation is not permitted. We may refuse to register you and to permit you to download the Software for any reason or without a reason.   

1.2    You have represented and confirm that:

(a)    your name, contact details, any company or employer you represent, location, Licence Type eligibility and other details that you provide when registering at our Website are correct;

(b)    you are the age of majority within the province or territory in which you live, to decide to enter into this contract and be bound by your obligations under it, including paying the fees (if relevant to your Licence Type); and

(c)    we have not terminated a licence previously granted to you or any of your Authorised Users due to breach of the licence or failure to pay fees as described in Clauses 9.​5​​     ​(a) to (c) or equivalent provisions of a previous licence agreement.      

If any details you have supplied are materially incorrect, we may end this Licence without notice to you and you must cease your use of the Software, delete it from your computers(s) and confirm that you have done so if we ask.   

1.3    If you have a Subscription for a Pro Licenc​​e, and you do not qualify for an Indie Licence Type under Clause 1.6, none of your Authorised Users are permitted to register for Free or Indie Licence Types, although you may register for Free Licence Type with separate log-in credentials for your personal, non-Commercial Use.  If you qualify for an Indie Licence Type (whether or not you have voluntarily have registered for a Pro Licence Type), your Authorised Users may register for an Indie or a Free Licence Type.  If you have a Free Licence Type, you are not permitted to use the Software in any project involving users of the Software for Commercial Use.

1.4    In this Agreement, Commercial Use means the licensing, publication, making available, communication to the public or any other commercialisation, exploitation or non-private use of any work comprising or incorporating any animation(s) using or made using the Software, or any use of the Software to provide services, in each case for the actual or intended generation of revenue or other compensation or value, save use:

(a)    by a registered charity (but not its commercial arm);

(b)    by an educational establishment for purely educational purposes;

(c)    by posting promotional and reasonably limited (in our discretion) works to Youtube or similar channels which can be accessed free of charge.  

1.5    You may upgrade your Licence Type at any time by changing your registration details and paying the applicable fee.  You may downgrade your licence type at any time but we are not obliged to refund any fees paid in advance.  This does not affect your cancellation rights under this Agreement or under applicable law.

1.6    If you registered for an "Indie" Licence Type, your aggregate gross revenue or funding (from any source of financing) in the twelve months ending on the date when you download the Software, and on each renewal date (yearly or monthly) under Clause 9.3, must be less than US $100,000.00 (one hundred thousand United States dollars) or such other amount as indicated on our Website as a condition of an Indie Licence Type Subscription.  If your aggregate gross revenue or funding has been received in a currency other than US$, they must be converted into US$ on the date of download using that day's Financial Times spot rates.  By gross revenues and funding, we mean (in each case, without deduction for tax, costs or otherwise):

(a)    in the case of a corporate entity other than a charity or non-profit or personal service company, all earnings and funding received by you from any and all sources;

(b)    in the case of a charity or non-profit, your budget and received donations for and from any and all purposes and sources;

(c)    in the case of an individual using the Software for your own purposes and products or creations, all earnings and funding received by you in connection with your use of the Software (for example, selling a game made with the use of the Software, but not giving music lessons).  

If you cease to be eligible for this Licence Type:

(d)    you must inform us immediately; and  

(e)    either buy the appropriate Licence Type or cease using the Software.  

You must also inform us of the amount of your gross revenues and funding in the twelve months preceding our request upon our request from time to time and upon any renewal of your subscription.

1.7    If you registered for an Educational Licence Type, you must be enrolled as a student or employed or engaged to teach at a university, college or other educational establishment, and register with that establishment's email address. You must also provide evidence, satisfactory to us, of such enrolment or position, via that email domain. The Subscription for an Educational Licence Type cannot include any users of an Indie Licence Type.

1.8    You may not disclose or share or permit anyone to see or use your password.  You must inform us promptly by contacting our support desk by a method indicated on our Website if you become aware that any other person gains access to or uses your password.  We are not responsible for any misuse of your password or login unless due to our negligence.

1.9    If you register with us and download the Software for use by a company or other corporate entity, you confirm that the company or entity authorises you to enter into this Agreement on its behalf as well as for yourself and agrees to be bound by this Agreement. Even if you are registering on behalf of a company or corporate entity, only the individual named on the registration is permitted to use the Software unless added as an Authorised User as described in Clause 1.1.  Any other individuals employed or engaged by that company or entity will require an additional registration and authorisation although the fees may be paid under one Subscription of the company or entity.  If you register with an email address with a company or other entity domain, you are deemed to by using the Software on that entity's behalf and it must meet the applicable threshold for any Indie Licence Type (if applicable) in the Subscription.  

2    Licence grant and scope

2.1    In consideration of your agreeing to abide by the terms of this Agreement, the Licensor hereby grants to the Licensee a non-exclusive, non-transferable, non-sub-licensable licence to use the Software on a computer only in the country named on your registration form on the terms of this Agreement (Licence).  You agree not to use the Software in any way not expressly permitted by this Agreement.

2.2    The term and scope of your licence and your entitlement to certain services, tools and features, and to error-patches, updates and new versions, depends on your Licence Type and is indicated below and on our Website and registration form from time to time.   

(a)    Licence type:  Cascadeur Free

Regulations:  This Licence Type entitles the Licensee to download and use the latest versions of Cascadeur Free, as well as all error-patches and updates that the Licensor releases for the latest version of Cascadeur Free. The Licensor will not release error-patches or updates for non-current versions of Cascadeur Free. This licence type has no time limit. This licence type prohibits any Commercial Use and does not permit you to have Authorised Users.    

(b)    Licence type:  Indie

Regulations:  While the subscription is active, this Licence Type entitles the Licensee to download and use the latest versions of Cascadeur Indie, as well as all error-patches and updates that the Licensor releases for the respective version. The Subscription for the Indie Licence Type is restricted to three Authorised Users. Commercial Use and your addition of Authorised Users are permitted. Without an active Subscription, for example due to a contractual termination as described in this Agreement or your non-renewal, the Licensee's right to the above services, to download and use ​new​ features, error-patches and updates​, and to add Authorised Users,​ expires on the day after the Subscription period ends, and your Licence Type ​​​​​​is automatically converted to a perpetual licence of the version of the Software last released during your Subscription period.

(c)    Licence type:  Pro

Regulations:  While the subscription is active, this Licence Type entitles the Licensee to download and use the latest versions of Cascadeur Pro, as well as all error-patches and updates that the Licensor releases for the respective version. Commercial Use and your addition of Authorised Users are permitted. We will provide the services indicated on our Website for annual Subscriptions subject to any minimum respective number of Authorised Users shown on our Website. Without an active Subscription, for example due to a contractual termination as described in this Agreement or your non-renewal, the Licensee's right to the above services, to download and use new features, error-patches and updates, and to add Authorised Users, expires on the day after the Subscription period ends.  In addition, for annual Subscriptions only, your Licence Type is automatically converted to a perpetual licence of the version of the Software last released during your Subscription period.

(d)    Licence type:  Cascadeur Pro Trial

Regulations: This Licence Type entitles the Licensee to download and use the latest versions of Cascadeur Pro for the period indicated on our Website, as well as error-patches and updates that the licensor releases for the respective version during that period. This licence type prohibits any Commercial Use. Upon expiry of that period, the Licensee's right to download and use the Software ends, but you may  use the Software under a Free Licence Type.

 (e)   Licence type: Cascadeur Educational

Regulations:  While the subscription is active, this Licence Type entitles the Licensee to download and use the latest versions of Cascadeur Pro, as well as all error-patches and updates that the Licensor releases for the respective version. Without an active subscription, for example due to a contractual termination as described in this Agreement, the Licensee's right to download and use the Software, error-patches and updates expires on the day after the subscription period ends, and your Licence Type is automatically converted into a Free Licence Type, so that you may only use the features of that Licence Type. Commercial Use is not permitted at any time. The only use permitted is for education and training in the use of the Software by a formal educational institution. ​​​​​​

(f)    Authorised Users

Regulations: Authorised Users may use the Software in the same way, and including the same features, and for the same period, as their associated Original Users but may not add any other Authorised Users. We are entitled to terminate permissions for Authorised Users individually to use the Software if they breach this Agreement.

We may, however, end your licence, including any perpetual licence, early as provided in Clauses 7.2, 9.5 and 9.6.

2.3    You are not entitled to use the Software, our services in any ways not expressly permitted by this Agreement. You may not use the Software beyond any limits applicable to your Licence Type.

2.4    You may:

(a)    download, install and use the Software only on up to three units (as described on the Website)​​​​, but may not use the Software on more than one computer at the same time;

(b)    make one copy (or as many copies as permitted by applicable law) of the Software for back-up purposes; and

(c)    use any error patches, updates and future versions of the Software that we provide as maintenance services under Clause 4.1, subject to this Clause 2, but you should first check if your computer meets the system requirements for the update.

2.5    We may update or require you to update the Software to reflect changes in the operating system for which it is designed or for other reasons, provided that we shall use reasonable      endeavours to ensure that the Software materially retains the functions of the version being updated.

3    Restrictions

Except as expressly set out in this Licence or as permitted by any local law applicable to your use of the Software, you undertake:

(a)    not to copy the Software, except where such copying is necessary for the purpose of back-up or operational security;

(b)    not to rent, lease, sub-license, loan, translate, merge, adapt, vary, alter or modify, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;

(c)    not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things, except to the extent that such actions cannot be prohibited under applicable law (such as, in the European Union, Directive 2009/24/EC on the legal protection of computer programs) because they are necessary to decompile the Software to obtain the information necessary to create an independent program that can be operated with the Software or with another program, and provided that you have first asked us for such information and we have refused to provide it, and the information obtained by you during such activities:

    (i)    is used only for the purpose of achieving interoperability with another computer program;

    (ii)    is not disclosed or communicated without the Licensor's prior written consent to any third party to whom it is not necessary to disclose or communicate it in order to achieve interoperability with another computer program; and

    (iii)    is not used to create any software that is substantially similar in its expression to the Software;

(d)    to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;

(e)    not to remove our copyright notice on all entire and partial copies of the Software in any form;

(f)    not to provide, distribute, publish, disclose, network or make available, the Software in any form, in whole or in part, to any person without prior written consent from us;

(g)    not to use the Software via any communications network or by means of remote access;

(h)    not to attempt to circumvent any security measures designed to control access to the Software; and

(i)    to comply with all applicable technology control or export laws and regulations.

4    Maintenance and support

4.1    We will provide you with maintenance services in accordance with your Licence Type.  Maintenance services comprise, where covered by your Licence Type and provided under Clause 2.2:

    (a)    the making available for download supplementary updates or error patches of the Software from time to time at our discretion but taking into account error reports received from users;   

    (b)    the making available for download of new versions (being a version which contains significant differences from the previous versions) of the Software as we may develop and provide from time to time.  We are not bound to make new versions available including at any particular time intervals.

4.2    Where included in your Licence Type and subject to Clause 2.2, we will provide you with support services.  Support services may comprise one-to-one technical support via chat or email, dedicated support through video-calls, access to our Software forum, input on the priority of feature developments for new versions of the Software, and a dedicated success manager.  Support services are as described on our Website.

4.3    As regards those support services requiring us to respond to queries, we will endeavour to respond within a reasonable time of receiving your query.  You must provide us with all reasonable information about any technical concerns to help us understand the issue.

4.4    The Licensor has no obligation to provide support related to any versions of the Software other than the current version from time to time and the immediately preceding version to which you are entitled under Clause 2.2.

5    Fees

5.1    You shall pay the fees applicable to your Licence Type and payment plan, in the amounts and currency and at the times displayed on our Website at the time of your registration or renewal (as applicable). You shall pay the fees using the mechanism indicated on our Website from time to time – either direct to us or by making a payment to the third party indicated on our Website.

5.2    We may change the fees for any Licence Type at any time by giving you at least 30 days' notice in accordance with Clause 10.  We will also post changes to our standard fees on our Website.  If you have an annual payment plan, the change will not have effect until your subscription is renewed at the end of the payment year.  If you have a monthly payment plan, the change will have effect in 30 days or such later date as stated in our notice to you.      

5.3    You have certain refund and cancellation rights under Clauses 7.2, 9.2, 9.3(b) and 9.​6​​     ​.  

6    Intellectual property rights

6.1    You acknowledge that all intellectual property rights in the Software throughout the world belong to us, that rights in the Software are licensed (not sold) to you, and that you have no intellectual property rights in, or to, the Software other than the right to use the Software in accordance with the terms of this Agreement. In no circumstances does accepting this Agreement transfer to you any claim to the intellectual property rights held by us. We reserve and shall retain our entire right, title, and interest in and to the Software, and any and all copyrights, patents, trademarks, trade secrets and all intellectual property rights arising out of or relating to the Software, subject to the license expressly granted to you in this Agreement. You shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. These obligations survive termination of this Agreement.

6.2    You acknowledge that you have no right to have access to the source code of the Software other than as expressly provided in this Agreement.

6.3    Subject to Clause 6.1, as between us, you retain ownership of the intellectual property rights in the characters, animations, scenes or other content you create or import when using the Software. You are responsible and assume full liability for the direct and/or indirect consequences of any of the content you create.

6.4    You agree to notify us promptly in accordance with Clause 10 upon becoming aware of any claim by any third party that your use of the Software infringes that third party's intellectual property rights.  We shall have the right, but not the obligation, to control the defence and any settlement negotiations related to the third party's claim. You agree to make no admission in relation to the claim without our prior written consent, and subject to our reimbursing your reasonable costs, to give us reasonable information and cooperation in relation to the claim.  

6.5    If we receive or anticipate any claim that your use of the Software, as permitted by this Agreement, infringes upon any intellectual property rights of any third party, we shall use reasonable efforts to modify or replace the Software to render it non-infringing, or to obtain the requisite licence, but if we consider those remedies not to be commercially reasonable, we may ask you to stop using the Software whereupon we will refund you any fees you have paid to us in advance pro rata to the unused subscription period covered by the fees to a maximum of 12 months.  The foregoing is your sole remedy in relation to third party intellectual property rights infringement claims.  

7    Warranty

7.1    You may tell us about defects or faults in the Software using the channels described on our      Website.

7.2    In the case of Licence Types where fees are payable, we warrant that, for 90 days after we permit your download of the Software (Warranty Period):

    (a)    the Software will, when properly used on a computer with an operating system and otherwise conforming to the specification for which it was designed, as described on our Website, perform substantially in accordance with the functions described on our Website; and

    (b)    the Software will be suitable for its use of creating character animation.

    If, within the Warranty Period, you notify us in writing of any defect or fault in the Software as a result of which it fails to perform substantially in accordance with the description on our Website, we will, as a sole remedy and provided you supply reasonable details of the defect or fault and we can reproduce it, use reasonable endeavours to make an error correction patch or update available to you and, if we have not been able to provide an error patch or update, you may end this Agreement and your licence by giving use notice in accordance with Clause 10, and we will refund any licence fees you have pro rata to the unexpired subscription period covered by those fees to a maximum of 12 months.  You must then immediately erase the Software from your computer.  After the expiry of the Warranty Period, your rights in respect of non-conformity with the statements in Clauses 7.2(a) and (b) will be the provision of error patches and maintenance as described in Clause 2 and 4.  

7.3    The above warranty does not apply if the defect or fault in the Software results from:

    (a)    your having altered or modified the Software;

    (b)    your having used the Software in breach of the terms of this Agreement.

7.4    You acknowledge that you had the opportunity to register to use and download the Software under a free of charge Licence Type before electing for a paid Licence Type and to examine the Software for defects in quality.  Accordingly, you accept that the Software may contain defects which were or should have been apparent on your examination and that by registering to use the paid Licence Type you agree to accept defects apparent from the Free or Cascadeur Pro Licence Type (as applicable).

7.5    In the case of Licence Types where fees are payable, we agree to use reasonable endeavours to make our Website accessible and available on a 24/7 basis so that you can access the Software.  We will provide maintenance and support services 9am to 5pm Cyprus time or such time as displayed on our Website. Our Website will not be accessible or available during routine or emergency maintenance or if our telecommunications' or hosting suppliers' systems or services do not enable this.

7.6    In the case of Licence Types where no fees are payable, you agree that you will use the Software at your own risk, and we give no warranty that the Software will be free from defects or faults.   

7.7    YOU ACKNOWLEDGE THAT THE SOFTWARE HAS NOT BEEN DEVELOPED TO MEET YOUR INDIVIDUAL REQUIREMENTS, AND THAT IT IS THEREFORE YOUR RESPONSIBILITY TO ENSURE THAT THE FACILITIES AND FUNCTIONS OF THE SOFTWARE MEET YOUR REQUIREMENTS.

7.8    Although we give the warranty in Clause 7.2, YOU ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED "AS IS", IS NOT 100% ERROR FREE, AND WILL NOT OPERATE UNINTERRUPTEDLY, AND THAT NOT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN BE FOUND IN ORDER TO BE CORRECTED.    

7.9    We warrant that we will perform the maintenance and support services under this Agreement with reasonable skill and care.

7.10    We exclude all express or implied conditions, warranties, terms, representations and statements, including but not limited to whether for fitness for purpose, satisfactory quality, merchantability or otherwise, whether implied by statute, common law, course of dealing, usage of the trade or otherwise, save where expressly set out in this Agreement.

7.11    If you are dealing with us as a consumer, the warranties in this Clause 7 are in addition to your legal rights under applicable law in relation to Software that is faulty.  This includes, if your Licence Type is for fees, that the Software is of satisfactory quality and fit for the purpose of character animation.

7.12    This Software may contain “Open Source” materials and you must comply with the applicable open source licence terms. The Open Source software and the applicable licence are listed within the Software. We make no warranties with respect to Open Source materials contained herein. In the event of a conflict between the terms of this Agreement and the applicable open source license terms, such open source license terms shall control.

 

8    LIMITATIONS ON OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU

8.1    WE DO NOT EXCLUDE OR LIMIT IN ANY WAY OUR LIABILITY TO YOU WHERE IT WOULD BE UNLAWFUL TO DO SO. THE LAWS OF SOME JURISDICTIONS, INCLUDING THE PROVINCE OF QUEBEC IN CANADA, MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, LOSSES, OR LIABILITY SO SOME OF THE EXCLUSIONS AND LIMITATIONS BELOW MAY NOT APPLY. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors when acting in the course of their duties to us under this Agreement or for fraud or fraudulent misrepresentation. IN SUCH CASE, EXCLUSIONS AND LIMITATIONS WILL APPLY TO THE GREATEST EXTENT CONSISTENT WITH APPLICABLE LAW.  FOR GREATER CLARITY, NOTHING IN CLAUSES 8.2 OR 8.3 LIMITS OR EXCLUDES THE FOREGOING LIABILITIES.

8.2    WHERE NO FEES are payable under your Licence Type:

    (a)    EXCEPT FOR DAMAGE TO YOUR PROPERTY, AND FOR ANY DAMAGES MENTIONED IN CLAUSE 8.1, WE WILL HAVE NO LIABILITY TO YOU WHATSOEVER.  WITHOUT PREJUDICE TO THIS GENERAL EXCLUSION, WE SPECIFICALLY EXCLUDE LIABILITY FOR (I) ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY AND LOSS OF SAVINGS, AND (II) ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOSS OR DAMAGE OR LOSS YOU SUFFER AS AN INDIRECT RESULT OF OUR FAILURE TO COMPLY WITH THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT.   

    (b)    LIMITED LIABILITY FOR DAMAGE TO YOUR PROPERTY. IF THE SOFTWARE DAMAGES A DEVICE OR DIGITAL CONTENT BELONGING TO YOU AS A RESULT OF OUR FAILURE TO USE REASONABLE SKILL AND CARE, WE WILL EITHER REPAIR THE DAMAGE OR PAY YOU COMPENSATION.  HOWEVER, WE WILL NOT BE LIABLE FOR DAMAGE THAT YOU COULD HAVE AVOIDED BY FOLLOWING OUR ADVICE TO APPLY AN UPDATE OFFERED TO YOU FREE OF CHARGE OR FOR DAMAGE THAT WAS CAUSED BY YOU FAILING TO CORRECTLY FOLLOW INSTALLATION INSTRUCTIONS OR TO HAVE IN PLACE THE MINIMUM SYSTEM REQUIREMENTS ADVISED BY US.

    (c)    EXCEPT FOR OUR LIABILITY UNDER CLAUSE 8.1, OUR MAXIMUM LIABILITY TO YOU UNDER OR IN CONNECTION WITH THIS AGREEMENT IN ANY CALENDAR YEAR IS €100 (ONE HUNDRED EUROS).

8.3    WHERE FEES ARE PAYABLE UNDER YOUR LICENCE TYPE:

    (a)    WE WILL NOT HAVE ANY LIABILITY TO YOU FOR ANY LOSS OR DAMAGE YOU SUFFER AS AN INDIRECT RESULT OF OUR FAILURE TO COMPLY WITH THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. LOSS OR DAMAGE IS INDIRECT, UNLESS IT IS REASONABLY OBVIOUS IT WOULD HAPPEN.   

    (b)    EXCEPT FOR OUR LIABILITY UNDER CLAUSE 8.1, WE WILL HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY, LOSS OF REPUTATION OR LOSS OF SAVINGS, IN EACH CASE, WHETHER DIRECT OR INDIRECT.

    (c)    LIMITED LIABILITY FOR DAMAGE TO YOUR PROPERTY. IF THE SOFTWARE DAMAGES A DEVICE OR DIGITAL CONTENT BELONGING TO YOU AS A RESULT OF OUR BREACH OF THIS AGREEMENT, WE WILL EITHER REPAIR THE DAMAGE OR PAY YOU COMPENSATION.  HOWEVER, WE WILL NOT BE LIABLE FOR DAMAGE THAT YOU COULD HAVE AVOIDED BY FOLLOWING OUR ADVICE TO APPLY AN UPDATE OFFERED TO YOU FREE OF CHARGE OR FOR DAMAGE THAT WAS CAUSED BY YOU FAILING TO CORRECTLY FOLLOW INSTALLATION INSTRUCTIONS OR TO HAVE IN PLACE THE MINIMUM SYSTEM REQUIREMENTS ADVISED BY US.

    (d)    EXCEPT FOR OUR LIABILITY UNDER CLAUSE 8.1, OUR MAXIMUM LIABILITY TO YOU UNDER OR IN CONNECTION WITH THIS AGREEMENT IN ANY CALENDAR YEAR IS THE GREATER OF (I) THE AMOUNT OF THE FEES PAID AND/OR PAYABLE BY YOU (DISREGARDING THE CLAIM) IN THAT CALENDAR YEAR, AND (II)   €1 000 (ONE THOUSAND EUROS). THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.

8.4    YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LICENSOR AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

8.5    Force majeure:  We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by events, acts, non-happening or accident outside our reasonable control including (without limitation) strikes, lock-outs or other industrial action (except of our own workforce or general across workforces); civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic or other natural disaster; impossibility of the use of or unavailability of public or private telecommunications networks; and the acts, decrees, legislation, regulations or restrictions of any government.  Our obligations to perform this Agreement are deemed to be suspended for the period that the force majeure continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the force majeure to a close or to find a solution by which our obligations under this Agreement may be performed despite it. If a force majeure event stopping us from providing the Software continues for more than a week, and you are a consumer, we will refund you the licence fees you have paid pro rata to the subscription period when the Software was unavailable to the maximum of 12 months.  

9    Term, Cancellation and Termination

9.1    This Agreement shall start on the date when you first register to use the Software and will continue until and unless cancelled or terminated as provided in this Agreement.   

9.2    IF YOU ARE A CONSUMER as defined in the preamble to this Agreement (but not otherwise), you may cancel this Agreement without having any reason from the date we register you and allow you to download the Software until the earlier of:

    (a)    the time when you actually download the Software; and

    (b)    ​​​​​the 14th day after we register you and allow you to download the Software.

In order to end this Agreement, please let us know using one of the methods described in Clause 10.  If you cancel this Agreement under this Clause 9.2, we will refund you any fees that you have paid us.  Your licence will be cancelled immediately and you must not download the Software.

9.3    Where fees are payable under your Licence Type:

    (a)    ​​If you have an annual payment plan, then this Agreement will automatically renew​ for another year​ on the expiry of the initial year (and on the expiry of any renewal years), ​​​​​if you have paid ​the applicable licence fees ​for the annual renewal ​as may be changed in accordance with Clause 5.2.  ​

    (b)    ​​​If you have a monthly payment plan, then this Agreement will renew from month to month ​if you have paid the applicable licence fees for the month's renewal as may be changed in accordance with Clause 5.2​.

    (c)    The Licensor may terminate this Agreement at any time on 30 days' notice to the Licensee if it decides to cease providing or maintaining the Software.  In this case, we will refund you the fees you have paid pro rata to the unexpired subscription period to which such fees apply.  

    (d)    The termination notices must be given using one of the methods described in Clause 10.

    (e)    If this Agreement is terminated under this Clause 9.3, your licence to use the version of the Software already downloaded by you will continue only as described in Clause 2.​2​.  You may receive error-patches and updates, only as permitted in Clause 2.​2​ , and we will cease to be liable to you.

9.4    Where fees are not payable under your Licence Type, either party may terminate this Agreement by giving the other party at least one day's notice, in accordance with Clause 10.  If this Agreement is terminated under this Clause 9.4, your licence to use the version of the Software already downloaded by you will continue as described in Clause 2.​2​​​, and, to the extent we had liability to you, this will cease.

9.5    ​​L​icensor’s rights to terminate for breach.  We may terminate this Agreement immediately if you:

    (a)    commit a material or persistent breach of this Agreement which (if remediable) you fail to remedy within 14 days after the service of written notice requiring you to do so;

    (b)    commit a material or persistent breach of this Agreement which is not remediable;

    (c)    fail to pay the fees under this Agreement when due.

    We will give you written notice of the termination to you in accordance with Clause 10, unless we reasonably consider it urgent to end your use of our Software without notice in order to protect our intellectual property. We may also claim compensation from you where you have failed to pay or have otherwise committed a breach of this Agreement.  If we terminate this Agreement under this Clause 9.​     ​​5​, your licence to use the Software and receive any services from us will end immediately.  You must immediately delete the Software from all your computer(s) and confirm that you have done so if we ask.  

9.6    Licensee’s rights to terminate for breach.  You may terminate this Agreement immediately by written notice to us in accordance with Clause 10:

    (a)    if we commit a material or persistent breach of this Agreement which (if remediable) we fail to remedy within 14 days after the service of written notice requiring us to do so;

    (b)    if we commit a material or persistent breach of this Agreement which is not remediable;

    (c)    as described in Clause 7.2.

    If you terminate this Agreement under this Clause 9.​6​​, your licence to use the Software and receive any services from us will end immediately.  You must immediately delete the Software from all your computer(s) and confirm that you have done so if we ask.  We will refund your fees paid in advance pro rata to the unexpired subscription period covered by the fees.  We will also pay the refund mentioned in Clause 7.2, if that applies.

10    Communications between us

10.1    If you wish to contact us in writing, or if any provision in this Agreement requires you to give us notice in writing, you can send this to us by email or by pre-paid post to the address at the beginning of this document and/or info@cascadeur.com.  We will confirm receipt of this by contacting you in writing, normally by email.

10.2    If we have to contact you or give you notice in writing, we will do so by email or by pre-paid post to the address you provide or confirm to us or through a notice within the Software.

11    How we may use your personal information

11.1    Under data protection legislation, we are required to provide you with certain information about who we are, how we process your personal data and for what purposes and your rights in relation to your personal data and how to exercise them.  This information is provided in our privacy notice on our Website and it is important that you read that information. Our collection and use of your personal data in connection with the Software and services is governed by this privacy notice. As part of providing you the Software, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of our services, which you may not be able to opt-out from receiving.

12    Confidentiality

12.1    The Licensee shall, during the term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of the Licence) nor without the prior written consent of the Licensor disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including technical information, algorithms which are not explained on our Website, trade secrets and information of commercial value) which may become known to it from the Licensor and which relates to the Licensor or any of its affiliates, unless that information is public knowledge or already known to the Licensee at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of the Licensee from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.   

13    Other important terms

13.1    We may transfer our rights and obligations under this Agreement to another person or organisation.  We will tell you in accordance with Clause 10 if this happens and we will ensure that the transfer will not affect your rights under this Agreement.

13.2    You may not transfer your rights or your obligations under this Agreement (including the Licence) to any other person unless we first agree in writing at our discretion, where such consent shall not be unreasonably withheld. We reserve the ability to require any person to which you transfer a Licence to pay Fees.

13.3    This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

13.4    Each of the provisions of this Agreement operates separately.  If any court or relevant authority decides that any of them are unlawful, the remaining provisions will remain in full force and effect.

13.5    If we do not insist immediately that you do anything you are required to do under this Agreement, or if we delay in taking steps against you in respect of your breach of this Agreement, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. In addition, no waiver granted in any instance shall constitute a waiver in any other instance.

13.6    This Agreement and any document expressly referred to in it represents the entire agreement between us in relation to the licensing of the Software and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.

13.7    We each acknowledge that, in entering into this Agreement, neither of us has relied on any representation, undertaking or promise given by the other prior to entering into this Agreement except as expressly stated in this Agreement.  Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Agreement (unless such untrue statement was made fraudulently) and the other party's only remedy shall be for breach of contract as provided in this Agreement.  The foregoing does not affect your rights as a consumer.

13.8    The provisions of this Agreement may be changed only:

    (a)    by written agreement between the parties;

    (b)    by the Licensor giving at least three months' notice to the Licensee unless the change is not materially adverse to the Licensee. If the Licensee does not agree to the change, it may terminate this Agreement in accordance with Clause 10 and obtain a refund of fees paid in advance pro rata to any unused subscription period covered by those fees.  You may then continue to use the version of the Software you have then downloaded, in accordance with Clause 2.2, but will cease to be entitled to any updates, error corrections or patches and to maintenance and support and our liability to you will cease. Such notice may be given by posting the changed Agreement on our Website and informing you by email of the posting of the changed Agreement.

13.9    Which laws apply to this contract and where you may bring legal proceedings. In case of a dispute arising in connection with the interpretation or implementation of this Agreement, or any breach, termination or invalidity of this agreement by, between and amongst any or all of the parties, attempt to first resolve such dispute in an amicable manner and through discussions. In the event that the dispute that arose may or cannot be resolved in an amicable manner within fifteen (15) days after the date of attempt to resolve the dispute, then any or all Parties to the dispute may refer the dispute to the courts of Cyprus. If you live outside the Republic of Cyprus, you must bring proceedings in the Cyprus courts unless the law of the country where you live requires that you have the right to bring proceedings in the country where you live.

13.10    This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Cyprus. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded and does not apply to this Agreement.

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