End-user license agreement – Free trial of Pluma automated testing tool

This Trial License Agreement (“Agreement”) is entered into between Witekio Holding, 14 rue Rhin et Danube, 69009 LYON FRANCE (“Licensor”) and You (“Licensee”). Witekio and Licensee may be referred to herein collectively as “Parties” and individually as “Party”. WHEREAS, Witekio has developed software and related technology, and Licensee desires to license a Trial version of Pluma Automated Testing tool; WHEREAS, Witekio is willing to license to Licensee such Trial version according to the terms and conditions below; and Licensee’s license rights under this Agreement are strictly limited to the Pluma restricted Trial License(s) authorized by Licensor (the “Trial Product(s)”). Licensee’s use of Trial Products may not exceed the usage requested in its trial request: limited test execution duration. All Trial Products are protected by copyright laws and international copyright treaties, and other intellectual property laws and reaties. Trial Products are licensed, not sold. NOW THEREFORE, in consideration of the mutual promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  1. DEFINITIONS
    1.1 “Intellectual Property Rights” means all present and future intellectual property rights (whether registered or not) including, without limitation, patents, registered design, design rights, copyrights, trade secrets, service marks, trade dress, trade names, trademarks, domain names and all other
    proprietary rights, and all goodwill arising with respect thereto, and any applications for any of the foregoing, in all countries in the world.
    1.2 “Trial Licensed Software” means, collectively, the trial version of the software product.
    1.3 “Trial product” refers to a restricted version of the software product, made available solely for the purpose of user testing and evaluation prior to any potential purchase. The trial product is designed to provide users with a glimpse of the features and functionalities of the full software product but is subject to limitations outlined in this agreement.
    1.4 “Open Source License” means any license that requires (a) Witekio to permit reverse-engineering of the Licensed Software or other software incorporated into, derived from, or distributed with such Licensed Software; or (b) the Licensed Software or other software incorporated into, derived from, or distributed with such Licensed Software be (i) distributed in source code form; (ii) licensed for the purpose of making derivative works; (iii) distributed at no charge; or (iv) distributed or used in a matter contrary to the terms of this Agreement. Open Source Licenses include, but are not limited to: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (b) The Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the Sun Community Source License (SCSL); (f) the Sun Industry Standards Source License (SISSL); (g) the Apache Server license; (h) QT Free Edition License; (i) IBM Public License; (j) BitKeeper; and (k) the Common Public License.
  2. LICENSE
    2.1 Trials Licenses granted to Licensee are non-exclusive, non-transferable, time-limited licenses to use the Trial Products for evaluation and trial purposes only (“Trial License”).
    2.2 Trial Licenses enter into effect upon Licensee’s receipt of a download link for the Trial Products from Licensor
    2.3 Licensee must indicate in what trial environment the Trial Products shall be evaluated in order to allow Licensor to confirm the authorized trial use. Trial Licenses may not be shared or used concurrently on different devices.
    2.4 Trial Licenses do not permit Licensee: (a) to grant any sublicense for all or part of the Trials Products;(b) to use the Trial Products in conjunction with any other software, data or equipment in such a manner as would cause the resulting product to infringe upon any Intellectual Property Rights of Licensor or third parties; (c) to copy the Trial Products, except for trial purposes and provided that each such copy of the Trial Products is submitted to the terms of this Agreement; (d) to transfer, assign, rent, lease, distribute or otherwise dispose of the Trial Products on a temporary or permanent basis; (e) to make the Trial Products available to remote users;
    2.5 Licensee agrees: (a) not to remove from the Trial Products any copyright notices or any other intellectual property notices; (b) not to remove from Trial Products any references to Licensor and (c) to immediately notify Licensor if he becomes aware of any actual or potential claims by a third party arising in respect of the Trial Products; (d) not to use the Trial Products in breach or contravention of any law.
  1. ADDITIONAL RIGHT AND LIMITATION
    3.1 Licensee agrees not to reverse engineer, decompile or disassemble the Trial Products.
    3.2 This Agreement does not grant Licensee any rights in connection with any copyright, patent, trademark or trade secret of Licensor, except for what is specifically provided herein.
    3.3 Licensee may not use the Trial Products to create a product that in reality competes with the Trial Products, meaning that Licensee cannot build any products around or based upon Pluma in such a way that they are reasonably to be considered as competing with Pluma.
  2. OWNERSHIP
    4.1 Ownership. Licensee acknowledges and agrees that Witekio is the sole and exclusive owner of the Licensed Software, deliverables, related documentation and all Intellectual Property Rights therein. Witekio retains the absolute right at all times to use, copy, modify, sell, lease, license, sublicense, distribute, transfer or otherwise dispose of the Licensed Software and all modifications thereto made by Witekio. Licensee shall not infringe upon any rights of Witekio or others in the Licensed Software, any other deliverables or any related documentation. Licensee shall acquire no right, title or interest in the Licensed Software other than any rights expressly granted in this Agreement.
  3. LIMITED WARRANTIES
    5.1 Limited warranties. THE TRIAL PRODUCTS ARE PROVIDED “AS IS”. LICENSOR DOES NOT PROVIDE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE TRIAL PRODUCTS, INCLUDING BUT NOT LIMITED TO WARRANTIES WITH REGARD TO FITNESS FOR A PARTICULAR USE OR PURPOSE, MERCHANTABILITY, NON INFRINGEMENT, NOR THAT THE TRIAL PRODUCTS WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, AND LICENSOR HEREBY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES.
    5.2 Third Party Materials; Open Source Software. ALL THIRD PARTY MATERIALS AND OPEN SOURCE SOFTWARE ARE PROVIDED “AS-IS” WITH NO WARRANTY. LICENSEE SHALL BE RESPONSIBLE FOR COMPLIANCE WITH ANY APPLICABLE THIRD PARTY OR OPEN SOURCE LICENSE.
  4. COMPLIANCE
    6.1 Laws and Regulations. Each Party shall comply with all applicable laws, rules and regulations, including, but not limited to anticorruption laws such as U.S. Foreign Corrupt Practices Act, UK Bribery Act and local implementation legislation of the OECD Anti-bribery Convention.
    6.2 Export.
    6.2.1 Unless prior authorization is obtained from the U.S. Department of Commerce, or any other applicable regulatory agency, neither Party shall export, re-export, or release, directly or indirectly, any technology, software, or software source code (as defined in Part 772 of the Export Administration Regulations of the U.S. Department of Commerce (“EAR”)), or export, directly or indirectly, any direct product of such technology, software, or software source code (as defined in Part 734 of the EAR), to any destination or country to which the export, re-export or release of the technology, software, software source code, or direct product is prohibited by the EAR. Without limitation to the foregoing, neither Party shall use or transfer technology, software, software source code, or direct products thereof in relation to nuclear, biological or chemical weapons, or missiles or equipment capable of delivering such weapons.
    6.2.2 Each Party shall obtain any necessary export license or other documentation prior to the exportation or re-exportation of any product, technical data, software or software source code acquired under this Agreement or any direct product of such technical data, software or software source code. Accordingly, neither Party shall sell, export, re-export, transfer, divert or otherwise dispose of any such product, technical data, software or software source code directly or indirectly to any person, firm, entity, country or countries prohibited by U.S. or applicable non-U.S. laws. Each Party shall secure, at its own expense, such licenses and export and import documents as are necessary for it to fulfill its obligations under this Agreement.
    6.2.3 Any export classification made by either Party shall be for such Party’s internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such product, technical data, software or software source code or whether an export license or other documentation is required for the exportation of such product, technical data, software or software source code.
    6.3 Data Protection. Licensee shall collect, process, store, and transfer all personal data provided by Witekio under this Agreement in strict accordance with applicable law including, but not limited to, the California Consumer Privacy Act of 2018 and related regulations (“CCPA”) and EU data protection principles and requirements. Licensee shall use and store personal data solely for the purpose of facilitating communication and collaboration and for licensing the Licensed Software from Witekio under this Agreement and for no other purposes. Licensee shall implement and maintain security procedures and practices appropriate to the nature of the personal data it collects, processes, stores, or transfers consistent with industry best practices. If personal data of EU residents is being transferred to countries outside the EU / EEA, Licensee shall ensure by appropriate means that such personal data continues to be handled and processed in accordance with the data protection principles of purpose limitation and necessity; data accuracy, data quality and proportionality; data security and confidentiality. Rights of data subjects (access, rectification, deletion, and objection) must be ensured. In addition, Licensee shall reasonably assist Witekio to promptly comply with inquiries it receives under applicable data protection laws. In the event Licensee discovers or is notified of a data breach involving personal data provided by Witekio, Licensee shall notify Witekio of the data breach as soon as practicable, but no later than twenty-four (24) hours after Licensee became aware of the data beach. Licensee shall take all actions necessary to contain the data breach and provide Witekio with all reasonably necessary information on the data breach and remedial actions. As required by the CCPA, Licensee certifies its understanding of the obligations and restrictions in this Section and its compliance with such obligations and restrictions.
  1. CONFIDENTIAL INFORMATION
    7.1 In the course of this Agreement, a Party may receive, gain access to, or otherwise become exposed to certain information, including, but not limited to, trade secrets, customer information, business and/or technical information with respect to operations, business plans, products, services and intellectual property of the other Party (“Confidential Information”). Confidential Information includes information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information shall also include the knowledge that either Party may be discussing or considering a transaction, sale or a purchase with the other Party and the terms of this Agreement. The Licensed Software, technical information and data provided by Witekio shall constitute Witekio Confidential Information.
    7.2 Confidential Information does not include information that: (a) is known to the receiving party prior to receipt from the disclosing party, other than from a source having an obligation of confidentiality to the disclosing party; (b) becomes known (independently of disclosure by the disclosing party) by the receiving party other than from a source having an obligation of confidentiality to the disclosing party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party.
    7.3 The receiving party shall: (a) hold Confidential Information received from the other party in confidence; (b) use the same degree of care to prevent disclosure of the other party’s Confidential Information as it employs with respect to its own confidential information of like importance, but in no case less than reasonable care; (c) not disclose the other party’s Confidential Information to a third party, except as provided below; and (iv) use such Confidential Information only for the purposes of this Agreement. The receiving party may disclose Confidential Information received from the other party: (i) pursuant to the order of a court or other governmental agency, provided that it gives the disclosing party reasonable notice prior to such disclosure; (ii) to the receiving party’s employees, consultants and contractors on a need-to-know basis for the purposes of this Agreement and in each case, subject to an appropriate written agreement on terms no less restrictive than those herein. The receiving party’s obligation to protect Confidential Information that is a trade secret shall be perpetual or for as long as such information remains a trade secret under applicable law.
    7.4 The confidentiality obligations of each Party shall remain in effect for a period of two (2) years following the date of termination or expiration of this Agreement.
    7.5 In addition to any other rights it may have, either Party may seek injunctive or other equitable relief to restrain any breach or threatened breach or to otherwise specifically enforce the provisions of this Section of this Agreement in any court with jurisdiction over the Party against which relief is sought. Each Party acknowledges that money damages alone would be inadequate to compensate either Party for a breach of this Section.
  2. LIMITATION OF LIABILITY
    8.1 DAMAGES. IN ANY ACTION ARISING OUT OF, IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WITEKIO SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES; OR FOR LOSS OF PROFITS, REVENUES, SALES, DATA, BUSINESS, GOODWILL OR USE; EVEN IF WITEKIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT. IN NO EVENT SHALL WITEKIO’S LIABILITY ARISING OUT OF, IN CONNECTION WITH OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY LICENSEE TO WITEKIO UNDER THIS AGREEMENT. NO ACTION MAY BE BROUGHT AGAINST WITEKIO MORE THAN ONE (1) YEAR AFTER THE DATE OF DELIVERY UNDER THE APPLICABLE PURCHASE ORDER.
    8.2 PROHIBITED USES. THE LICENSED SOFWARE IS NOT DESIGNED, AUTHORIZED OR WARRANTED TO BE SUITABLE FOR USE IN MEDICAL, MILITARY, AIRCRAFT, SPACE OR LIFE SUPPORT EQUIPMENT NOR IN APPLICATIONS WHERE FAILURE OR MALFUNCTION OF THE LICENSED SOFTWARE CAN REASONABLY BE EXPECTED TO RESULT IN A PERSONAL INJURY, DEATH OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE. INCLUSION OR USE OF
    LICENSED SOFTWARE IN SUCH EQUIPMENT OR APPLICATIONS, WITHOUT PRIOR AUTHORIZATION IN WRITING BY WITEKIO, IS NOT PERMITTED AND DONE AT LICENSEE’S OWN RISK. LICENSEE AGREES TO FULLY INDEMNIFY, DEFEND AND HOLD HARMLESS WITEKIO FOR ANY DAMAGES RESULTING FROM SUCH INCLUSION OR USE.
  3. GENERAL PROVISION
    9.1 Entire Understanding; Amendments. This Agreement and any Attachments hereto constitute the entire understanding of the Parties with respect to its subject matter and supersedes all prior or contemporaneous written and oral agreements with respect to its subject matter. Except as provided expressly herein, this Agreement shall not be modified, amended, or in any way altered except in writing executed by a duly authorized representative of each Party.
    9.2 Non-Waiver. No waiver of any provision of this Agreement, or of any rights or obligations of any Party hereunder, will be effective unless in writing and signed by the Party waiving compliance. No waiver of, breach of, or default under, any provision of this Agreement will be deemed a waiver of any other provision, or of any subsequent breach or default of the same provision of this Agreement.
    9.3 Assignment. Neither Party may assign this Agreement, or its rights or obligations hereunder, in whole nor in part, without the prior written consent of the other Party, which will not be unreasonably withheld.
    9.4 Independent Contractors. The Parties are and intend to be independent contractors. Neither Party may bind the other to any agreement with a third party nor incur any obligation or liability on behalf of the other Party without the other Party’s written consent. No form of employer-employee, franchisor, franchisee, principal-agent, joint venture, partnership, or similar relationship between the Parties is intended or created by this Agreement.
    9.5 Headings. The headings used in this Agreement are for convenience of reference only and shall not be deemed a part of this Agreement.
    9.6 Governing Law, Venue, Jurisdiction and Waiver of Jury Trial. This Agreement shall be governed, construed, and enforced in accordance with the laws of the country where Witekio or the Witekio Affiliate that accepted Licensee’s order (“Governing Country”) is located without reference to the conflict of laws principles. If the Governing Country is the United States of America, the laws of the State of Arizona shall apply. The courts of the Governing Country shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement. Each Party consents to the exercise by any such court of personal jurisdiction over them and each Party waives any objection it might otherwise have to venue, personal jurisdiction, inconvenience of forum, and any similar or related doctrine. Each Party hereby waives to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any litigation directly or indirectly arising out of, under or in connection with this Agreement. THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT.
    9.7 Attorneys’ Fees. If any action or proceeding relating to this Agreement or the enforcement of any provision of this Agreement is brought by a Party against the other Party, the prevailing Party shall be entitled to recover reasonable attorneys’ fees and costs from the other Party (in addition to any other relief to which the prevailing Party may be entitled).
    9.8 Notices. All notices given by either Party to the other under this Agreement shall be in English; addressed to the other Party using the contact details below; and delivered in person, or by post, facsimile or email. All notices shall be effective upon receipt.

 

Witekio Holdin
14 rue Rhin et Danube
69009 LYON FRANCE

Attention: Samir Bounab

A notice shall be deemed received by a Party: (a) when it is delivered to the recipient’s street address above, if delivered in person or by post; (b) when it is transmitted to the recipient’s fax number above, if sent by facsimile; or (c) when it is sent to the recipient’s email address and not rejected by the recipient’s email system, if sent by email. Notwithstanding the foregoing, if a notice is delivered or sent on a day which is not a business day in the state of the recipient’s office location, the notice shall be deemed to be received on the next business day.

9.9 Enforceability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be invalid, illegal or unenforceable, the Parties will enter into good faith negotiations to modify such provision consistent with the original intent of the Parties so that it becomes legal and enforceable. The validity, legality and enforceability of the remaining provisions shall not be affected or impaired by such adjudication and shall be enforced to the maximum extent permitted by applicable law. If any remedy set forth in this Agreement is determined to have failed of its essential purpose, then all other provisions of this Agreement, including limitation of liability and exclusion of damages, shall remain in full force and effect.
9.10 Force Majeure. Witekio will not be in breach of the Agreement and will not be liable for failure to fulfill its obligations under this Agreement, if any such failure or delay is due to or arising out of any legal theory of force majeure, an act of nature, act or omission of Licensee, act of a governmental authority, including laws, regulations, orders or decrees, operational disruptions, man-made or natural disaster, epidemic, pandemic, shortage of labor, energy, fuel, materials or products, strike, labor action, criminal act, war, terrorism, civil unrest, delay in delivery or transportation, inability to obtain labor, materials or
products through regular sources, communication or power failures, Act of God, or any cause beyond its reasonable control.
9.11 No Third Party Beneficiaries. Nothing in this Agreement is intended to, nor shall, create any right enforceable by any third party or person not a Party to this Agreement.

THE EMBEDDED KIT (by WITEKIO) I Version 1.2 – 05.2023