Last updated on October, 1, 2019.
This End User License Agreement (the “Agreement”) is a binding agreement between You (the “Licensee”) and Linear Squared PTE. LTD. (“Linear Squared”), a company incorporated under the laws of Singapore, bearing Company Registration Number 201838886C and having its registered address at 160, Robinson Road, #17-01 Spore Business Federation Ctr, Singapore 068914.
This Agreement applies to:
- DEEP Enterprise Planning Suite Server
- Capacity Squared Server
- Retention Squared Server
Other Linear Squared products and services are covered by other agreements, as specified in the EULA and Terms of Service.
The individual installing or using this software represents that he or she has authority to enter into this Agreement with Linear Squared on behalf of the Licensee, that he or she has read the terms and conditions set out herein and that the Licensee accepts and agrees to be bound by this Agreement. If the Licensee does not agree with the terms and conditions, the Licensee must not use or permit the use of the Product.
Authorized Machine/Server means a single installation of a copy of the Product on a single physical computer/server.
Authorized Use means the defined number of copies or instances of the Product that may be used by the Licensee, and where applicable, limited to the number of Authorized Machines, as designated in the Quote/Receipt/Invoice issued by Linear Squared.
Authorized User means a person or user account who is licensed to use the Product, regardless of whether that person is an employee, contractor, subcontractor, vendor, partner or customer of the Licensee.
Commencement Date means the date on which the Licensee first installs the Product for the first time.
Licence means the right to use the Product as defined by Authorized Use.
Licensee means the individual or entity (inclusive of affiliates and subsidiaries) that has licensed the Product under the terms and conditions of this Agreement.
Maintenance Start Date means the beginning date of the Software Maintenance period, as designated in the Quote/Receipt/Invoice issued by Linear Squared , or the Invoice date if no beginning date is specified.
Product means the Linear Squared product defined in the Quote/Receipt/Invoice delivered by Linear Squared to the Licensee, including any documentation and updates provided under the terms of this Agreement in accordance with Clause 8.
Protected Code means source code contained within the Product that is protected by Linear Squared against access.
2. Set-up Fee
A one-time fee shall be paid by the Licensee to Linear Squared in accordance with the Quote/Receipt/Invoice issued by Linear Squared together with the Product, in consideration for the Authorized Use of the Product. Set-up fee is payable upon acceptance of the terms and conditions set out herein.
3. Licence Fee
A monthly, quarterly or annual recurring fee shall be paid by the Licensee to Linear Squared in accordance with the Quote/Receipt/Invoice issued by Linear Squared together with the Product, in consideration for the continued Authorized Use of the product. The Licence fee is payable upon acceptance of the terms and conditions set out herein.
The Licence shall commence on the Commence Date and shall continue for the duration as specified in the Quote/Receipt/Invoice issued by Linear Squared or until terminated in accordance with any provisions of Clause 15 or any clauses in this Agreement.
Grant of Licence
Subject to the terms of this Agreement, including limitations defined by the License, Linear Squared hereby grants to the Licensee, a non-perpetual, revocable (in accordance with Clause 15 or any clauses in this Agreement), worldwide, non-exclusive, Licence to use the Product as defined by Authorized Use. The Licensee shall not be entitled to assign (except in accordance with Clause 21) or sub-license (except to the Licensee’s related entities) whether in whole or in part.
6. No Warranty by Linear Squared
Except as described in this Agreement and save as provided in Clauses 16, 17 and 19, the Product is provided on an "as is" and "as available" basis. Linear Squared disclaims all warranties of any kind, to the fullest extent possible under the applicable law, either express, implied, statutory or otherwise, including, but not limited to, the implied warranties of title, non-infringement, merchantability, fitness for a particular purpose, lack of viruses, availability, accuracy, quiet enjoyment or non-infringement of third-party rights. Linear Squared provides evaluation copies of the Product so that customers can assess the Product.
7. Licensee’s warranty
The Licensee warrants that it has not relied on any oral representation made by Linear Squared or upon any descriptions, illustrations or specifications contained in any catalogues, publicity material or evaluation copies produced by Linear Squared which are only intended to convey a general idea of the products and services mentioned therein.
8. Linear Squared’s Obligations
Upon receipt of the Setup fee and Licence Fee from the Licensee, Linear Squared shall
(a) deliver the Product to the Licensee
(b) provide product deployment, commissioning and integration service as set out in Clause 9; and
(c) provide Software Maintenance as set out in Clause 10.
9. Product Deployment, Commissioning and Integration Service
Linear Squared shall provide support to the Licensee with regards to the deployment of product, commissioning of the product and necessary integration of product with the Licensee’s other IT systems. The services under this Clause 9 will be provided one-time only and for the limited purpose of allowing the Licensee to use the Product for the intended purpose with supported functionality.
10. Software Maintenance
During the Licence Period, Linear Squared shall provide to the Licensee the following Software Maintenance:
(a) minor-version updates (eg- 3.x but not 4.0 and later) and/or enhancements made generally available to customers from time to time;
(b) technical support via email or phone support to one Licensee-designated technical contact as shall be necessary to resolve technical issues relating to the use of the Product during the Licence Period.
11. Licensee Obligations
During the continuance of this Agreement, the Licensee shall at all times:
(a) ensure that only an Authorized User may use the Product and only for Authorized Use in accordance with the terms and conditions of this Agreement;
(b) notify Linear Squared immediately if the Licensee becomes aware of any unauthorised use or distribution of the whole or any part of the Product or Licence, including the Licence information (Name and key), by any person.
Unauthorized Use or Distribution
he Licensee shall not, whether through a deliberate or negligent act or act of omission, distribute or cause the distribution of the Product to any third party other than an Authorized User.
Investigation of Unauthorized Use and Distribution
If Linear Squared reasonably suspects that the Product has been distributed to or obtained by any person or party without Linear Squared’s prior written consent, Linear Squared reserves the right to reasonably request once per calendar year from the Licensee an unqualified certificate executed by the Licensee’s auditor or authorized representative at the Licensee’s cost for the purpose of verifying compliance with Authorized Use of the Product.
14.1 The Licensee shall not, without the prior written consent of Linear Squared, which may be withheld in Linear Squared’s sole discretion and which may include certain conditions:
(a) enable or permit any person to copy, decompile, reverse engineer, disassemble, analyse, modify, adapt, convert, create derivative works from, or otherwise attempt to derive, the Protected Code;
(b) reproduce the Product whether in whole or in part;
(c) except as expressly provided for under Clauses 5 and 21, sell, sublicense, redistribute, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form or otherwise transfer or make available the Product or any data/information provided to the Licensee through the Product to any person (except that nothing in Clause 10(b) is intended to prevent an Authorized User undertaking Authorized Use);
(d) vary or amend the Authorized Use without Linear Squared’s prior written approval;
(e) except as otherwise permitted in this Agreement, publish, promote, broadcast, circulate, refer publicly to or otherwise utilise the Linear Squared name, trade name, trademark, service mark or logo, or utilise them in an unauthorised manner;
(f) do or omit to do or permit or suffer any act or thing which may in the sole opinion of Linear Squared bring Linear Squared’s business or reputation into disrepute or which may in the sole opinion of Linear Squared damage or conflict with the interests of Linear Squared.
14.2 In addition, the Product includes licence protection mechanisms that are designed to manage and protect the intellectual property rights of Linear Squared. The Licensee must not remove, modify or alter the whole or any part of those features.
15.1 This Agreement will be terminated at end of the Licence Period, unless the Licence Period is otherwise renewed by payment of the relevant Licence Fee.
15.2 The Licensee may terminate this Agreement at any time by destroying all copies of the Product in its possession. Either party hereto may terminate this Agreement if the other party commits a material breach of any term of this Agreement or any condition stated in the Licence Fee and such party does not cure such material breach within thirty (30) days of written notice of such breach. Upon termination, the Licensee shall cease all use of the Product and destroy all copies of the Product in its possession. The Licensee further agrees that any pre-paid fees are non-refundable in the event of any such termination of the Agreement.
15.3 Linear Squared reserves the right to discontinue the Product at any time. In the event of discontinuance, Linear Squared will announce an End-Of-Life date on the Linear Squared website. The End-Of-Life date will be at least 12 months after the announcement date. Linear Squared will honor the terms of this Agreement until the End-Of-Life date. In the event of discontinuance, should the Licensee’s Licence period and/or Software Maintenance period exceed the End-Of-Life date, Linear Squared will offer a refund for any unused maintenance time. At the End-Of-Life date, this Agreement will terminate.
Clauses 1, 6, 12 – 14, 16 – 30 shall survive any termination of this Agreement.
16. Infringement Indemnification
16.1 Linear Squared will defend, indemnify and otherwise hold the Licensee and its directors, officers, employees, agents, subsidiaries, affiliates and other partners (collectively, "Licensee Indemnitees") harmless, at Linear Squared’s sole cost and expense, any action brought against any Licensee Indemnitee based upon the claim that the Product, if used within the scope of the Licence granted under this Agreement, infringes, violates, or misappropriates a patent, trademark, copyright, trade secret, or other intellectual property or proprietary right (the "IP Claim"); provided, however, that: (i) the Licensee shall notify Linear Squared immediately in writing of any such IP Claim; (ii) the Licensee shall not enter into any settlement or compromise on any IP Claim without Linear Squared’s prior written consent; (iii) Linear Squared shall have the right at its sole discretion to take such action as it deems appropriate in connection with the IP Claim, as well as the right to control any settlement, litigation or arbitration or other proceedings arising therefrom, so long as there is no detriment or liability to the Licensee; and (iv) the Licensee shall provide Linear Squared with reasonable information and assistance, at Linear Squared’s request and sole cost and expense, necessary to settle, defend, indemnify or hold harmless such IP Claim. Linear Squared agrees to pay all damages and costs incurred by the Licensee attributable to such IP Claim. The foregoing states the sole liability of Linear Squared and the exclusive remedy of the Licensee for any infringement of intellectual property rights by the Product or any other items provided by Linear Squared hereunder.
16.2 If the Product becomes, or in the sole opinion of Linear Squared may become, the subject of a claim of infringement of any third party right, Linear Squared may, at its option and in its sole discretion promptly: (i) procure for the Licensee the right to use the Product free of any liability; (ii) replace or modify the Product to render it non- infringing; or (iii) refund any Licence Fees related to this Product paid by the Licensee.
16.3 Exclusions from Defense Obligation. Linear Squared will have no duty to defend any IP Claim to the extent such IP Claim is based on: (i) use of a superseded release of the Product, if such infringement would have been avoided by the use of a current release of the Product and Linear Squared timely notified the Licensee of the availability of the non-infringing Product at no additional cost; (ii) the combination, operation, or use of the Product with programs or data not furnished by Linear Squared or at Linear Squared’s direction, or with hardware or operating system software other than the hardware platform and operating system with which the Product is designed to function, if such infringement would have been avoided by the use of the Product without such programs, data, hardware or operating systems; (iii) modification or attempted modification of the Product by anyone except Linear Squared or at Linear Squared’s direction, or use or distributions of such modifications; or (iv) the Licensee’s use of the Product in a manner that results in defamation, violates the privacy rights of individuals, transmits material in violation of any applicable law, rule, regulation, or uses any proprietary thirty party content without legally binding consent of such third party.
16.4 To the extent a claim is excluded from Linear Squared’s defence obligation under Clause 16.1 above and is based upon the claim that any modifications to the Product or combination of the Product with products, not provided by Linear Squared or at Linear Squared’s direction, infringes or violates any third party rights, or arises from or related to any of the Licensor’s breach of any terms and conditions of this Agreement, the Licensee will defend, indemnify and otherwise hold Linear Squared and its directors, officers, employees, agents, subsidiaries, affiliates and other partners (collectively, "Linear Squared Indemnitees") harmless or settle, at its expense, any action brought against any Linear Squared Indemnitee provided, however, that: (i) Linear Squared shall notify the Licensee promptly in writing of any such claim; (ii) Linear Squared shall not enter into any settlement or compromise any such claim without the Licensee’s prior written consent; (iii) the Licensee shall have control of any such settlement, litigation or arbitration or other proceedings arising therefrom, so long as there is no detriment or liability to Linear Squared; and (iv) Linear Squared shall provide the Licensee with information and assistance, at the Licensee’s request and expense, necessary to settle or defend such a claim. The Licensee agrees to pay all damages and costs finally awarded against Linear Squared attributable to such claim. Linear Squared may at its sole discretion elect to assume control of the defense and settlement of any such claim with counsel(s) of its choosing.
16.5 Notwithstanding Clause 16.1 above, Linear Squared assumes no liability hereunder for, and shall have no obligation to defend the Licensee or to pay costs, damages or legal expenses for, any claim based upon any modifications to any of the Product not approved by Linear Squared or at Linear Squared’s direction or combination of any of the Product with products not approved by Linear Squared or at Linear Squared’s direction.
17. Limitation of Liability
17.1 Excluding Linear Squared’s indemnification obligations described in Clause 16 hereof, in no event shall either party, its officers, directors, employees, co-branders, affiliates, subsidiaries or other partner be liable to any third-party for any special, punitive, incidental, indirect or consequential damages or losses of any kind, or any damages or losses whatsoever, including those resulting from loss of use, data or profits, whether or not foreseeable or if either party has been advised of the possibility of such damages or losses, whether in contract, tort, including negligence under statute or otherwise, or any other claim arising out of or in connection with, including without limitation: (a) any use or reliance on a Product by the third-party (including the form and content of errors in and/or omissions from any information contained in a Product); (b) any delay, interruption or other failure in the provision of the Product; or (c) any change in the form or content of the Product. Excluding Linear Squared indemnification obligations described in Clause 16 hereof, in no event will either party’s liability under any claims arising out of this Agreement exceed the fees paid by the Licensee under this Agreement.
17.2 Except for each party's indemnification obligations or breach of Clauses 2, 3, 12, or 14, neither party will be liable for lost profits or for special, indirect, incidental or consequential damages, regardless of the form of action, even if such party is advised of or aware of the possibility of such damages. The foregoing liability limitations shall apply to the maximum extent allowed by applicable law. To the extent the foregoing liability limitations or the warranty disclaimers of Clause 6 are not allowed by applicable law, then the liability of Linear Squared, and the remedy of the Licensee, shall be limited to the prompt: (a) re-supply of any defective Product; or (b) refund of any Licence Fees paid by the Licensee for such defective Product.
18. Ownership / Intellectual Property
18.1 This Agreement only confers a licence to use the Product and does not confer any rights of ownership or title in or to the Product. The Licensee acknowledges that the Product contain proprietary content that is protected by applicable intellectual property and other laws, including but not limited to copyright, trademark, patent, trade secret and confidential information (the “Proprietary Content”). The trademarks, logos and service marks, whether or not registered, (collectively, the “Marks”) displayed on the Product are the property of Linear Squared or other third parties. The Proprietary Content, Marks and all intellectual property rights in relation to the Product are the property of Linear Squared and Linear Squared is entitled to take whatever action it may decide in order to protect its intellectual property rights.
18.2 Linear Squared does not claim intellectual property rights over plans, schedules, forecast and other information created with the Product.
19. Open Source Code
19.1 With respect to open source software, Linear Squared hereby represents and warrants: (a) that the Licensee’s use thereof does not create, or purport to create, obligations on the Licensee to grant licenses or usage rights to the general public to any source or object code, whether such code is embedded in the Product or any other software provided under this Agreement or used in conjunction therewith; (b) that in no event shall the Licensee be liable for any damages whatsoever, whether direct or indirect, and whether experienced by Linear Squared or a third party, which are related to a loss of Linear Squared or any third party resulting from such use of Open Source Software hereunder; and (c) to, and hereby does, waive any claims it may have against the Licensee in relation to The Licensee’s use of such open source software.
19.2 All open source software included in Linear Squared Product is listed on Exhibit A attached to this Agreement.
20. Publicity Rights
20.1 The Licensee grants Linear Squared the right to include the Licensee as a customer in Product promotional material.
20.2 The Licensee can deny Linear Squared this right by submitting a written request via email to firstname.lastname@example.org, requesting to be excluded from Product promotional material. Confirmation of such denial (via reply email) must be received prior to purchasing for this exclusion to be effective.
20.3 Should the Licensee come to be or already be included in Product promotional material, as a result of any prior purchases where the Licensee did not request exclusion from Product promotional material, the Licensee can at any point in time, submit a written request via email to email@example.com to have Linear Squared remove the Licensee's name from Product promotional material. Upon receipt of such request, Linear Squared will remove any reference to the Licensee from such promotional material within thirty (30) days and make no further reference to the Licensee.
21. No Assignment or Amendment
21.1 No variation, alteration or modification of any of the terms of this Agreement shall be of any effect unless evidenced in writing signed by or on behalf of each of the Parties hereto by a duly authorised representative.
21.2 The Licensee may assign this Agreement to succeeding parties in the case of a merger, acquisition, corporate reorganisation, or sale of all or substantially all of the Licensee’s assets, on the condition that Linear Squared is notified in writing via email to firstname.lastname@example.org within ninety (90) days of the conclusion of such transaction. If the whole or part of the Licensee merges into or with or is otherwise acquired by a direct competitor of Linear Squared, as determined by Linear Squared in its sole discretion, then this Agreement will automatically terminate as of the effective date of such transaction. Linear Squared may assign its rights and obligation under this Agreement in their entirety without the consent of the Licensee.
Payments made by the Licensee under this Agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is made or received. To the extent that any such taxes or duties are payable by Linear Squared, the Licensee must pay to Linear Squared the amount of such taxes or duties in addition to the Licence Fee under this Agreement unless the Licensee is exempt from paying such taxes or duties at the time such taxes or duties are levied or assessed. Linear Squared will provide the Licensee with documents requested by the Licensee necessary to enable the Licensee to obtain a tax or duty refund or credit.
23. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Republic of Singapore, regardless of conflict of law provisions, and the parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the Courts of the Republic of Singapore. The parties specifically disclaim the application of the U.N. Convention on Contracts for the International Sale of Goods in whole.
24. Attorney’s Fees
The prevailing party in any legal action relating to this Agreement will be entitled to recover its attorneys’ fees and litigation costs and expenses incurred in connection with such action.
25. Counterparts/Faxed Signatures
This Agreement may be executed in any number of counterparts, each of which will be an original and all of which will constitute together one and the same document.
The headings to the clauses of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
27. Entire Agreement
In the event that any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or indications of the same are received by either of the parties from any relevant competent authority then the parties shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality or at the discretion of Linear Squared it may be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
29. No Waiver
No forbearance, delay or indulgence by either party to enforce or exercise any provision of the Terms of Service or related right shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach.
30.1 Linear Squared may give notice by means of a general notice on the Linear Squared website, electronic mail to your e-mail address on record with Linear Squared, or by written communication sent by prepaid recorded delivery, registered post or courier to your address on record. Such notice will be deemed effective if sent by post or courier at the expiration of forty-eight (48) hours after the same was posted or sent whether or not received, or if by email, twelve (12) hours after dispatch to email address on record with Linear Squared. You may give notice to Linear Squared at any time by any of the following: letter delivered by a nationally recognized overnight delivery service, prepaid recorded delivery, registered post or courier to Linear Squared’s addresses on its website.
30.2 The Licensee agrees that the Product will not be shipped, transferred or exported into any country or used in any manner prohibited by Singapore export laws, restrictions or regulations.