You should read carefully all the terms and conditions of this agreement (hereinafter referred to as the “Agreement”) between 4D SAS, a French “Société par Actions Simplifiée” (hereinafter referred to as “4D SAS”) and yourself (hereinafter referred to as “LICENSEE”). By pressing on the button “Accept”, you accept all the terms and conditions of Use of the Nightly Builds of the Software as defined hereafter.
You acknowledge having been informed that:
The signing of the Agreement implies that (i) LICENSEE complies with the eligibility criteria defined by 4D SAS and (ii) LICENSEE has the capacity of 4D’s Partner. Consequently, the signing of a partnership agreement with 4D SAS or the local subsidiary of 4D SAS which serves LICENCEE’s country (hereinafter referred to as the “Contract”) and its keeping in force constitute a prerequisite to the signing of the Agreement and to the provision of the Nightly Builds of the Software for which it has duly been granted a license and the corresponding serial number, subject to the methods defined on the website « https://discuss.4d.com/ »;
the Agreement concerns Nightly Builds, which have not been completely tested and/or validated by 4D SAS. Consequently, the use of the Nightly Build is at LICENSEE’s own risks and under its sole responsibility. In the same manner, the signing of the Agreement does not imply any obligation for 4D SAS to release the Nightly Builds and/or its successive builds;
The Nightly Builds are exclusively provided in object code - in machine-readable form – and may be downloaded by LICENSEE by registering its personal and confidential access code on the website « https://discuss.4d.com/ », and subject to the strict respect of all terms and conditions of the Agreement.
The following words have a specific significance:
“4D SAS” means the French “Société par Actions Simplifiée”, registered at the Register of Trade and Companies of Nanterre - France - under N° 318 918 851.
“4D Application” means (a) computer program(s) developed by LICENSEE with the Software, which is the exclusive property of LICENSEE.
“Authorized User(s)” means the LICENSEE’s employees who are authorized to access to the Nightly Builds on the website « https://discuss.4d.com/ ».
“Contract” means the partnership agreement, as being currently applicable, signed between 4D SAS or the local subsidiary of 4D SAS which serves LICENSEE’s country and LICENSEE; LICENSEE having the capacity of 4D’s Partner.
“Documentation” means all the electronic documentation files and/or the documentation contained - if applicable - in or on the related Media containing the Nightly Build.
“Environment” means the computer hardware, operating system and/or the software required for using the Nightly Builds in object code, as specified on the website « https://discuss.4d.com/ ». Authorized User may access to the detailed description of the Environment by registering its personal and confidential access code on the above-mentioned website.
“Media” means the method through which LICENSEE obtains the Nightly Build, which includes the delivery through electronic communication means via the 4D SAS’ website.
“Nightly Builds” This Software is developed using an iterative development methodology. 4D SAS may make available nightly release builds of the Software (“Nightly Builds”). Nightly builds are automatically compiled, incorporating the latest changes and fixes performed each working day. Nightly Builds are not fully tested (only partial automatic tests, but no manual/human performed tests), validated neither commercialized. Nightly Builds may be unstable and although some features may be non-functional.
4D SAS strongly cautions LICENSEE to test Nightly Builds prior to use in a production or commercial environment. Any use of Nightly Builds in a production or commercial environment is entirely at LICENSEE’s own risk. Nightly Builds are not commercial releases of the Software and may not substantially conform to the applicable product documentation. LICENSEE acknowledges and agrees that the Limited Warranty offered in this End User License Agreement related to the Software does not apply to Nightly Builds. AS STATED IN SECTION 4 ALL NIGHTLY BUILDS ARE PROVIDED TO LICENSEE “AS IS” WITHOUT WARRANTY OF ANY KIND. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF NIGHTLY BUILDS IS ASSUMED BY LICENSEE.
“Software” means the Software in its/their commercial version(s) at the date of the release of the Nightly Build, in object code - in machine-readable form - for which LICENSEE has duly been granted a license of use and for which it owns the corresponding serial number.
“Use” means the use of the Nightly Build for the exclusive purposes authorized by the Agreement.
1. INTELLECTUAL PROPERTY
The Nightly Build is an original creation and the exclusive ownership of 4D SAS and/or its licensors.
The Agreement is a license Agreement and NOT an agreement for sale.
4D SAS and/or its licensors continue to be the sole owner(s) of the copy of the Nightly Build provided to LICENSEE and all other copies that LICENSEE is authorized to make in accordance with this Agreement, it being understood that any reproduction of the Nightly Builds, whether whole or partial, implies the reproduction of all the legal property rights notices and that such reproduction remains governed by the Agreement.
The rights of Use allowed to LICENSEE on the Nightly Build are expressly specified in the Agreement and 4D SAS retains all rights not expressly granted to LICENSEE in the Agreement. No other express or implied rights are granted to LICENSEE relating to the Nightly Build.
2. RIGHTS GRANTED
The license of Use is granted to LICENSEE free of charges, in its capacity of 4D’s Partner. This License is limited, personal, non-assignable or otherwise transferable, and non-exclusive.
The Authorized User of LICENSEE must identify itself in order to access to the Nightly Build. The identification is realized by the entry via a computer keyboard of a personal access code allowed to each Authorized User. Such access code cannot be transferred or shared. The entire risk as to the use of the access code is with LICENSEE.
The scope of the rights granted on the Nightly Builds is the same that the rights defined in the related license of use of the Software, as included under electronic form into the version of the corresponding Software.
In addition, LICENSEE is allowed to deploy at its own risks and under its sole responsibility its 4D Application(s) which include the Nightly Builds provided that (i) the concerned customers have duly been granted a license for the corresponding software and the corresponding serial number and (ii) the provision of such Nightly Builds is subject to license terms and conditions which are at least as restrictive as those contained in the Agreement.
3. LICENSEE’S OBLIGATIONS
3.1. LICENSEE commits itself to respect the terms and conditions of Use of the Nightly Build, as defined in the license of use of the corresponding Software.
3.2. LICENSEE shall deploy its 4D Applications which include a Nightly Build through contracts that shall contain provisions at least as restrictive as those contained in the Agreement.
3.3. In consideration of the rights granted under the Agreement, LICENSEE endeavors to provide promptly 4D SAS with reports relating to all errors and bugs of the Nightly Build and any improvements that LICENSEE may recommend regarding the Nightly Build; it being understood that such recommendation does not imply for 4D SAS (i) any obligations to take into account or implement such recommendation, (ii) any financial obligations.
LICENSEE acknowledges and agrees to assign to 4D SAS the property of the reports and suggestions described in the above provision as counterpart to the rights granted by 4D SAS under the Agreement.
4. EXCLUSION OF WARRANTY
The Nightly Build is provided “as is”, without any express or implied warranty.
4D SAS does not provide any warranty concerning the use, the functionalities and the performances of the Nightly Builds. 4D SAS does not certify neither that the Nightly Build is free from errors and/or bugs. More specifically, 4D SAS does not warrant that the functions of the Nightly Build will meet LICENSEE’s requirements or that the operations realized with the Nightly Builds will be uninterrupted. The entire risk regarding (i) the choice of the Nightly Builds and/or (ii) the results obtained with the Nightly Builds is with LICENSEE. Moreover, LICENSEE should back up its system and take other measures to prevent any loss of files or data
Further, 4D SAS does not warrant that it will market the Nightly Build in the version subject to the Agreement or in a modified version.
LICENSEE specifically acknowledges and agrees that, under the Agreement, 4D SAS has no obligation regarding support and/or maintenance services of the Nightly Build.
5. DISCLAIMER AND LIMITATION OF LIABILITY
LICENSEE acknowledges and agrees that any installation and use of the Nightly Build is at its own risks and under its sole responsibility.
In particular, LICENSEE is responsible for:
- the installation of the Nightly Build;
- the correct use of the Nightly Build access codes by the Authorized Users;
- more generally for the use of the Nightly Build;
- the adequate protection of its files and data.
Consequently, in no event, should 4D SAS be liable for any damage to LICENSEE’s computer system or loss of files or data which may result from the downloading and/or using of the Nightly Build.
Neither 4D SAS nor anyone else who has been involved in the design and/or the production of the Nightly Build will be liable for any incidental, consequential, direct or indirect damages caused to LICENSEE or to any third party, including the Authorized User. This covers in particular the interruption of the good order work of the Nightly Build, the loss of profits, loss of data or any other financial loss arising in connection with the use of the Nightly Build, even if 4D SAS has been notified of the possibility of such damages.
Further, 4D SAS does not control, nor approves or accepts any responsibility with regard to the download of the Nightly Build through websites or online services proposed by third parties.
The foregoing does not affect or prejudice LICENSEE’s statutory rights.
The structure, the organization, the specifications and the performances of the Nightly Build and the fttp access link to the Nightly Builds constitute trade secrets and/or confidential information of 4D SAS and/or its licensors. LICENSEE shall not disclose such trade secrets and/or such confidential information.
The obligation of non-disclosure shall remain in force five (5) years after the expiration or termination of this Agreement for any reason whatsoever.
7. TERM AND TERMINATION
7.1. As long as the Contract is and remain fully applicable between the parties, the license of Use is effective as of the downloading of Nightly Build and remains valid until the release of the next minor version, except in case of termination before its scheduled end, according to the terms of the Agreement.
7.2. The end of the Contract for any reason whatsoever shall entail the immediate termination of the Agreement.
7.3 Any of the parties may terminate this Agreement, at any time and at its sole discretion, upon written notice.
7.4. If LICENSEE fails to comply with any provision of this Agreement, the expiration or termination of the Agreement does not prevent 4D SAS from claiming any further damages.
7.5. At the end of the Agreement for any reason whatsoever, LICENSEE shall stop using the Nightly Build and destroy or return it, and any copy made, whether partial or whole, to 4D SAS. Upon 4D SAS’s request, LICENSEE shall certify by means of a written document duly signed by a legal representative that the provisions of the present article have been respected within a limit time of five (5) days from the date of expiration or termination.
LICENSEE permits 4D SAS to perform either itself or by any representative any audit or control in order to check that LICENSEE complies with all provisions of this Agreement, in particular those relating to terms and conditions of use of the Software.
If such audit reveals non-conformities with the provisions of the Agreement, LICENSEE shall pay all reasonable costs relating to the audit and this, without prejudice to the other remedies of 4D SAS.
This provision will survive for two (2) years following the date of termination of the Agreement for any reason whatsoever.
9. PERSONAL DATA
In compliance with the law N°78-17 of January 6, 1978, as amended by the law N°2004-801 of August 6, 2004, LICENSEE is entitled to a right of access, modification and suppression of all personal data which concerns LICENSEE. To do so, LICENSEE may contact 4D SAS – Administrative and Financial Department – 60, rue d’Alsace, 92110 Clichy, France or by mail on the following electronic address: info@4D.fr.
10. MISCELLANEOUS PROVISIONS
10.1. The Agreement is concluded between independent parties. None of its provisions may be interpreted so as to confer to any Party the right or authorization to act on behalf of the other party, or as constituting any joint venture between the Parties.
10.2. LICENSEE is not allowed to assign or otherwise transfer its rights and obligations pursuant to the Agreement, without the prior written consent of 4D SAS.
10.3. It is LICENSEE’s responsibility to comply with any applicable French, European or International export control laws and regulations. LICENSEE shall not directly or indirectly transfer the Nightly Build to any country to which such transfer would be prohibited by any applicable export control laws or would be subject to an export license or any administrative authorization, without having first obtained such license or authorization. Further, LICENSEE warrants that LICENSEE is not a national or a resident of a country to which exporting the Nightly Buildis not allowed by virtue of any Export laws or regulations.
10.4. This Agreement constitutes the entire agreement between the parties on the day of its acceptance by LICENSEE. It shall supersede any prior written or oral provisions relating to the same matter. 4D SAS may modify the terms of this Agreement from time to time by posting changes to this Agreement on the website « https://discuss.4d.com/ ».
10.5. If any provision of this Agreement is held to be unlawful, invalid or unenforceable, whether in its whole or partially, the concerned provision will be amended for the purpose of being rendered lawful, valid and enforceable. The remainder of the Agreement shall continue in full force and effect, unless the object of the Agreement is concerned.
10.6. The failure by either Party to claim a breach of the Agreement shall not be, or be considered to be, a waiver regarding such failure or any other failure. To be enforceable, the waiver shall be made by written instrument (this written instrument does not consist in a form or in general terms and conditions) signed by the authorized representatives of LICENSEE or of 4D SAS. The waiver shall be solely valid for the situation for which the waiver was made by written instrument, and an occasional waiver does not constitute a durable waiver.
10.7. A printed version of the Agreement under electronic form and any notice delivered under electronic form by 4D SAS shall be accepted in the course of any legal proceedings regarding the execution of the Agreement.
10.8. The Agreement shall be governed by the laws of France. Any dispute, controversy or claim arising out of or relating to the Agreement or to the breach, termination or invalidity thereof, shall be subject to the exclusive jurisdiction of the Commercial Court of Nanterre (Tribunal de Commerce de Nanterre) France, including in case of summary proceeding, plurality of defendants or action on a warranty.
10.9. The original of the Agreement has been written in English and each party waives any right it may have to have the Agreement written in another language. The parties represent that they have the ability to read and write in English, and have read and understood the Agreement. If the Agreement is translated into a language other than English, the English version and interpretation shall govern and prevail.
LICENSEE ACKNOWLEDGES TO HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT.
Should LICENSEE wish to request any information, please contact 4D SAS 33 (0)1 40 87 92 00 (e-mail: email@example.com) or the local subsidiary of 4D SAS serving LICENSEE’s country.
- Notice to United States Government end-users:
Use, duplication or disclosure by the US Government is subject to restrictions stated in paragraph © (1) (ii) of the Rights in Technical Data and Computer Software clause at 252.227-7013.
All 4D SAS product names are registered trademarks of 4D SAS. All other trade names and trademarks are trademarks or registered trademarks of their respective holders.