End-User License Agreement
Thank you for choosing Typemock Isolator++by Typemock Ltd. (“Typemock”, “us” or “we”)!
This End User License Agreement (this “Agreement”) is entered into between Typemock and you (and if you are entering into this Agreement in behalf of a legal entity, also between Typemock and that legal entity) (“you”).
BY USING THE TYPEMOCK ISOLATOR++ YOU ACCEPT THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT OR DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY ON BEHALF OF WHICH YOU ARE ACTING, DO NOT USE OR INSTALL THE TYPEMOCK ISOLATOR. IN SUCH CASE, PLEASE PRESS THE “I DO NOT ACCEPT” BUTTON BELOW.
1. Registration; Privacy
Typemock may ask you to register with it in order to use the Typemock Isolator++ and provide certain information. If you are asked to register, you must provide complete and accurate information as may be requested from you as part of the registration process or from time to time. Each user will be required to register separately, even if the user’s organization has purchased an enterprise or a similar license.
2. Personal or Internal Business Use Only
The Typemock Isolator++ is made available to you on a non-exclusive, revocable, non-sublicensable, limited basis, only for your personal or internal business use in compliance with all applicable laws, rules, and regulations. The Typemock isolator++ is licensed, not sold.
3. Prohibited Actions
You may not make commercial use of the Typemock Isolator, including but not limited to selling or distributing the Typemock Isolator++ for payment. Except for distributions for internal business use within your business organization in compliance with this Agreement, you may not distribute or transfer the Typemock Isolator++ or any services or software associated with or derived from it. Each individual user is required to agree to the terms of this Agreement and be bound by it, and by using the Typemock Isolator++ does so.
You may not, and may not allow others to, modify, copy (other than a single copy for back-up purposes), license, sub-license, attempt to disable, limit or circumvent any security or activation or de-activation features, reverse engineer, decrypt, disassemble or otherwise attempt to derive source code, adapt, translate, or create derivative works of, the Typemock Isolator, or to extract portions of Typemock Isolator’s files for use in other applications, unless you obtain Typemock’s prior written consent.
You may not, and may not allow others to, remove, obscure, or alter Typemock’s or any applicable licensor’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Typemock Isolator.
4. License Fees
The Typemock Isolator++ products may be offered for a fee or free of charge, depending on the version you have downloaded and installed and Typemock’s policies from time to time. Licenses with a free trial period will be considered for the purposes hereof as provided free of charge during the duration of the trial.
If you use the Typemock Isolator++ free of charge, Typemock may terminate such use at any time, with or without notice and without any liability. We may choose at any time to commence charging fees for future Typemock Isolator++ versions and any updates and upgrades. In such case, if you will not agree to pay such fees, your rights to use such future versions, updates and upgrades of the Typemock Isolator++ will terminate.
If you have downloaded a version which is licensed for a fee, your use of such Typemock Isolator++ version is limited in duration to the applicable subscription period and conditioned on the full payment of all license fees and compliance with your obligations under this Agreement and applicable law. Payment will be due up-front immediately upon installation of the Typemock Isolator, regardless of whether or not you make any use of such license whatsoever.
Typemock may choose to start charging fees for use of the Typemock Isolator++ on a build server, in which case you may be required to purchase a user code and a unique license for each build server and/or agent.
Typemock’s license fees are exclusive of all taxes, levies, or duties imposed by any authority, and you shall be responsible for payment of all such taxes, levies, or duties, other than taxes based solely on Typemock’s income. You will timely transfer to Typemock the entire license fees due to it, in the currency indicated by Typemock, without any withholdings, deductions or set-offs whatsoever.
5. Support; Community Support
Typemock will not provide any support, maintenance, or other services for users under this Agreement, whether they are paying users or free users. Users who are interested in receiving support may ask to purchase support services against payment of support fees under a separate support agreement. For additional information, please contact us.
Free community forums and support may be available from time to time for the Typemock Isolator++. Use of these forums and support is at your own risk – Typemock is not responsible for use of information posted in the forums. All contents therein are provided “as is”, regardless of the originator. You shall be solely responsible for your conduct and use of the community support and forums.
Any information that you post to public boards can be obtained and used by others. You may not impersonate any other person, and may not post or otherwise make available any irrelevant content or content that is inappropriate, as determined by Typemock is its sole discretion, including content that is (i) libelous, vulgar, obscene, derogatory, pornographic, abusive, harassing, threatening, hateful, or objectionable with respect to race, religion, origin or gender, (ii) private information of others, (iii) spam, advertising or solicitation, (iv) harmful, or (v) in violation of any applicable laws or that infringes intellectual property rights of third parties.
6. Automatic Updates
Typemock Isolator++ may communicate with Typemock’s servers (unless you are using Typemock Isolator++ for internal business use and your settings prevent this communication) to check for available updates to the software, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions (collectively, “Updates”). During this process, Typemock Isolator++ sends Typemock a request for the latest version information. By installing Typemock Isolator++ (unless you are using Typemock Isolator++ for internal business use and your settings prevent this communication), you hereby agree to automatically request and receive Updates from Typemock’s servers. Subscription licenses are required to connect to Typemock servers and live connection is required.
7. Intellectual Property
Typemock owns all right, title and interest in and to Typemock Isolator++ and its licensors own such rights in software or content provided by them through or in conjunction with the Typemock Isolator, including without limitation all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You do not acquire any rights in and to the Typemock Isolator++ or any service other than the limited, revocable right to use the Typemock Isolator++ in compliance with the terms hereof.
If you have comments on the Typemock Isolator++ or ideas on how to improve it, please provide them through https://www.typemock.com/contact-us/. Please note that by providing us feedback, including any responses in community support forums, you also grant us (and to the extent applicable, our licensors) permission to use and incorporate your feedback into our products and services (or to the extent applicable, our licensors’ software or services) without any compensation or further approval. To the extent that you may acquire by operation of law or equity, any right, title, or interest, including any intellectual property rights, in or to such feedback, or any modifications, or developments related thereto, you hereby assign to Typemock your entire right, title, and interest, including all intellectual property rights, therein and thereto, waive any compensation, and agree to execute any necessary documents as reasonably required and requested by Typemock in connection with the foregoing.
9. Third-Party Software and Open Source
Your possession and use of any such Third Party Software shall be governed by the terms of such third party supplier’s license agreement. It is your obligation to read and accept all such terms and conditions prior to use of the Typemock Isolator++ and the Third-Party Software. The third-party supplier’s license agreement may contain specific obligations such as notices you may need to provide. You should be aware that the in the event of a contradiction between the terms of this Agreement and the terms of such other license agreements, notices or terms and conditions, such other license agreements, notices or terms and conditions shall prevail in respect of the Third-Party Software. Typemock will not have any kind of liability with respect to the Third-Party Software and/or the use thereof.
10. Changes to This Agreement
Typemock may amend this Agreement from time to time in its sole discretion. The amendment comes into effect 15 days after its announcement or on a later date stated in the announcement, unless the amendment is required by applicable law in which case the amendment shall become effective immediately. If you do not agree to such amendment, your sole and exclusive remedy is to terminate this Agreement, and to the extent applicable, all purchase orders relating to it within 14 days of such announcement, in which case termination shall become effective on the date the amendment comes into effect and Typemock will return to you the pro-rated fees (if any) paid in advance for the remaining period of your subscription. Notwithstanding, no such termination right shall exist if the amendment is (a) solely for your benefit, (b) you are offered the option to refuse the amendment, (c) the amendment is required by law, or (d) the amendment does not adversely affect your use of the Typemock Isolator.
11. Term and Termination
This Agreement is effective until terminated. Typemock may terminate this Agreement at any time (i) if you are a non-paying user; and (ii) in case of paying users, if you have breached this Agreement and if the breach is curable, failed to cure the breach within 15 days. In addition, we may suspend use of the Typemock Isolator++ or any of our services while we investigate suspected material breaches of this Agreement or breaches of applicable law, and for as long as any fees are owed to us.
Upon termination for any reason, you will cease using the Typemock Isolator++ and any related documentation or material. Other than the licenses (and warranties, if any) granted to you hereunder which shall expire, the other terms of this Agreement shall survive termination.
If you are a paying user, we will indemnify you and hold you harmless from and against any direct damages and losses, arising out of a third-party claim in which it is found by a competent court that your permitted use of the Typemock Isolator++ infringes upon the registered intellectual property in the United States of that third party. We will not indemnify non-paying users, or for liabilities that arose during free use periods. Our indemnification undertaking is conditioned on you providing us written notice within 10 days of receiving a claim, allowing us to assume the defense, negotiations and all related proceedings, reasonably cooperate and assist us with the defense, and not settling any claim or admitting any liability or wrongdoing without our prior written consent. We will be entitled to settle, compromise or pursue the defense of any such claim at our sole discretion.
Our indemnification undertaking shall not apply to the extent that the infringement claim arises: (i) from the use of the software in a manner for which it was not intended, or (ii) from the use of the software not in compliance with the documentation or instructions provided by Typemock, including the terms of this Agreement, or (iii) where the infringement results from the alteration or modification of the software, or the combination of the software with any software, hardware, system, services or application not provided by Typemock, or removal, alteration or modification of any notices or trademarks.
THE FOREGOING INDEMNIFICATION UNDERTAKING IS IN LIEU OF ANY WARRANTIES OF NON-INFRINGEMENT AND ACTS AS YOUR SOLE REMEDY AND OUR SOLE LIABILITY FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE TYPEMOCK ISOLATOR++ AND/OR THIS AGREEMENT.
You will indemnify and hold us harmless from and against any damages and losses, arising out of or in connection with your (i) breach of this Agreement or applicable law; (ii) posting or otherwise making available any content through the community support; or (iii) use of the Typemock Isolator, except to the extent that we have undertaken to indemnify you for that use.
13. Limited Warranty for Paying Users
If you have purchased a license to the Typemock Isolator, Typemock warrants to you that the encoding of the software of the Typemock Isolator++ will be free from material defects in workmanship and that the Typemock Isolator++ shall materially conform to its user manual, as it exists on the date of delivery, for a period of 180 days from the date of purchase (or for the duration of the subscription period, if shorter than 180 days). Defects that you cause or that are caused by events beyond Typemock’s reasonable control are not covered. For the avoidance of doubt, no warranties are made to non-paying users (including during trial or free-use periods) or for Typemock Isolator++ versions offered free of charge.
If we have breached the foregoing warranty, our entire liability and your exclusive remedy shall be, at Typemock’s option, to either (i) return the price paid for the purchase of the license of the non-complying product, depreciated on a 36-month basis, resulting in the termination of this Agreement; or (ii) receive a repair or replacement of the non-complying product.
EXCEPT FOR THE FOREGOING LIMITED WARRANTY IN THIS SECTION MADE TO PAYING USERS, THE TYPEMOCK ISOLATOR++ AND ANY THIRD PARTY SOFTWARE AND CONTENT MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH TYPEMOCK ISOLATOR++ ARE PROVIDED “AS IS”, WITH NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
No oral or written information or advice by Typemock will create a warranty.
Some jurisdictions do not allow the exclusion of implied warranties or other limitations, so some of the above exclusions may not apply to you. You may also have other rights that vary from jurisdiction to jurisdiction.
14. Limitation of Liability; Statute of Limitations
TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT WILL TYPEMOCK BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, LOSS OF OR CORRUPTION OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, UNDER ANY LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT WILL OUR AGGREGATE LIABILITY TOWARDS YOU EXCEED THE FEES ACTUALLY RECEIVED BY US DURING 12-MONTH PERIOD PRIOR TO THE DATE THE LIABILITY AROSE, FOR THE PARTICULAR PRODUCT UNDER WHICH THE LIABILITY AROSE. IF YOU USED THE TYPEMOCK ISOLATOR++ FREE OF CHARGE WHEN OUR LIABILITY AROSE, OUR AGGREGATE LIABILITY WILL BE LIMITED TO US$50.
YOU ACKNOWLEDGE THAT TYPEMOCK’s PRODUCTS AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE FAILURE, DELAY, OR ERROR PROVIDED BY TYPEMOCKS’ SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.
ANY CLAIM AGAINST US MUST BE FILED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE.
The Typemock Isolator and underlying and related source code, inventions, algorithms, know-how, and ideas are Typemock’s proprietary and confidential information. Except as expressly and unambiguously allowed herein, you will hold in confidence for an indefinite period and not use or disclose to any party any such confidential information, using at least reasonable care, except for your employees and contractors on a need to know basis who are bound in writing to abide by this Agreement.
16. Law and Venue; Remedies
This Agreement will be governed by and construed in accordance with the laws of the State of Israel, without giving effect to the conflict of law provisions, whether of Israel or any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
You hereby waive any claims of inconvenient forum and irrevocably and unconditionally consent that all action, suit or proceeding arising out of, relating to or in connection with this Agreement shall be exclusively submitted to and settled by the courts located in the city of Tel Aviv-Yafo, Israel, subject to Typemock’s right to seek injunction, specific performance or other equitable relief in any jurisdiction in which a breach of this Agreement has occurred.
You agree that your breach of this Agreement may cause Typemock severe damages which are impossible to calculate or for which monetary remedy alone would not be sufficient. Typemock may enforce this Agreement by injunction, specific performance or other equitable relief, without bond and without prejudice to any other rights and remedies that it may have for the breach of this Agreement.
17. Miscellaneous Provisions
You represent that you are not a national of or located in (or controlled by any person which is a national of or located in), and will not directly or indirectly distribute the Typemock Isolator++ or any related documentation to, Iran, Iraq, Syria, Lebanon, Libya, North Korea or Cuba, or any other country against which Israel, the European Union or the United States has introduced sanctions as in effect from time to time. You also represent that you are not listed on the U.S Treasury Department list of Specially Designated Nationals, or the U.S. Commerce Department’s Table of Deny Orders.
If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable or invalid, the remainder of this Agreement will continue in full force and effect. In such case, the unenforceable or invalid provision shall be replaced by a provision coming closest to expressing the previous provision’s original intent while being enforceable and valid.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Notices hereunder will be delivered in writing.
Neither this Agreement nor any rights, licenses or obligations hereunder, may be assigned by you without our prior written approval; any prohibited purported assignment shall be void.
Any waiver of any provision of this Agreement will be effective only if in writing and signed by Typemock, and/or to the extent applicable, the affected third party who makes it’s software and/or content available in conjunction with or through the Typemock Isolator. No failure or delay on our part in the exercise of any right hereunder shall impair such right.