Espresso

End User License Agreement

Please read this End-User License Agreement (the “EULA”) carefully prior to downloading, purchasing a License Key were applicable, and using the Trial and/or Full Version of Espresso (the “Software”).

This EULA is a legal agreement between You and Warewolf in connection with the use of the Software. If You accept the terms and conditions in this EULA on behalf of a company or other legal entity, You warrant that You have full legal authority to accept the terms and conditions in this EULA on behalf of such company or legal entity, and to legally bind such company or legal entity.

By installing, copying, or otherwise using the Software, You agree without reservation to be bound by the terms and conditions of this EULA. If You do not agree to any of the terms and conditions of this EULA, do not download, install, purchase a License Key or use the Software.

This EULA may be modified from time to time by Warewolf. Warewolf will notify You of such modifications. Any modifications to this EULA shall only apply upon acceptance by You.

1. Definitions

When used in this EULA, and unless defined elsewhere in this EULA, the following terms shall have the following meanings:

Affiliate: means any person or entity that, at any time during the term of this EULA, directly or indirectly controls, is controlled by, or is under common control with such person or entity, where “control” means ownership of more than fifty percent (50%) of the voting power or share capital (but only as long as such person or entity meets these requirements).

Device: means a Macintosh computer (desktop or laptop) belonging to the User and equipped with MacOS operating system capable of downloading, installing and using the Software.

Documentation: means any and all explanatory materials or files pertaining to the Use of the Software, its features and the system requirements as made available on the website of Warewolf and/or accessible when downloading the Software, as amended from time to time.

Full Version: means a fully functional version of the Software, that is made available to You for a fee.

License Key: means a unique code or activation number provided by Warewolf, which enables You to unlock the Full Version of the Software by entering the code into the Software and to subsequently Use the Software during the applicable license term.

New Version: means the subsequent release of the Software and which includes new features and functionalities when compared to the previous version of the Software. New Versions are provided for a fee and shall be identified in the change of the first item in the version number: V1, V2, V3, (…) Vn.

Patch: means any and modifications brought to a given version of the Software, including corrections, fixes of minor bugs and/or minor enhancements to the Software. Patches are provided for free and shall be identified in the change of the third item in the version number: V1.1.1, V1.1.2, V1.1.3, (…) V1.1.n.

Software: means Warewolf’s Espresso software, in object code format, whether in Trial Version or in Full Version, irrespective of the release, including the License Key, the Documentation that Warewolf may issue in connection therewith, and any and all Updates and Patches existing and included in the Software at the time of its download by You.

Support: means the services offered for free by Warewolf for the support and maintenance of the Software, during the license term.

Third-Party Software Components: means the software made available from third parties under a free or open source software licensing model, included or incorporated in the Software, and that are required to operate the same, as listed on Warewolf’s website.

Trial Version: means a fully functional time-limited version of the Software provided for free, to be used only to review, demonstrate and evaluate the Software.

Territory: means the entire world.

Unlock: means switching from the Trial Version to a Full Version by entering the License Key provided by, and purchased from, Warewolf.

Updates: means any and modifications brought to a given version of the Software, including corrections, fixes of major bugs and/or major enhancements to the Software. Updates are provided for free and shall be identified in the change of the second item in the version number: V1.1, V1.2, V1.3, (…) V1.n.

Upgrade: means a migration from a given version of the Software to a New Version thereof.

Use or Using: means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation.

Warewolf: means Warewolf, a “Société par actions simplifiée”, duly existing and organized under the laws of France and having its registered offices at 47, rue de Versailles, 92410 Ville d’Avray, France, and its Affiliates.

You or User: means one single end-user of the Software, either as a private individual, or as a company or other legal entity that will be the final and ultimate user of the Software.

2. License Grant

2.1 Grant. As long as You comply with the terms and conditions of this EULA, Warewolf grants You a time-limited or perpetual, non-exclusive, non-transferable, non-sub-licensable, right to Use the Software, for your personal purposes and/or your internal business purposes only, in the Territory. The Software shall be Used by You personally.

2.2 Multiple Devices. The Software can be installed on a maximum of five (5) Devices per User, provided however that You do not make a simultaneous Use of the Software on multiple Devices, unless specifically authorized by Warewolf in writing to make such simultaneous use.

2.3 Copies. You may keep one (1) non-active copy of the Software as downloaded from Warewolf’s website for back-up or disaster recovery purposes only. Simultaneous active copies are subject to the type of license applicable to your Use.

2.4 Trial Version. The Trial Version shall be Used for the sole purpose of trying and evaluating the Software, for a period of fifteen hours (15hrs) of in-app Use (the “Trial Period”). If You do not wish to Unlock the Software at the end of this Trial Period, You undertake to delete the Trial Version from any Devices on which it was installed.

2.5 Upgrades, Updates, and Patches. Upgrades, Updates and Patches to the Software may be made available to You. They shall be licensed under the terms of this EULA, as modified when such Upgrades, Updates, or Patches are made available, as the case may be. Unless provided otherwise herein, nothing in this EULA requires Warewolf to provide Upgrades, Updates, or Patches to You. You undertake to download Updates and Patches, as soon as they are made available.

2.6 No other rights. You shall have no rights in the Software other than those expressly set forth herein. You may not modify, adapt, translate, reverse engineer, decompile or otherwise attempt to derive or modify the source code for the Software, except as permitted under mandatory, non-waivable laws. You may not: (i) prepare derivative works of the Software; (ii) rent, lease, loan, sell or otherwise distribute the Software or any derivative works of the Software; or (iii) grant any third-party access to the Software, or use the Software as a service bureau or as a hosted application service. If You have any doubts about the scope of this license grant, You agree to immediately contact Warewolf to clarify your rights. You agree that Use of the Software beyond the scope of this license grant constitutes a material breach of this EULA and a violation of Warewolf’s intellectual property rights in the Software. Warewolf disclaims any responsibility for ensuring that You are compliant with Your license entitlement or rights under this EULA or any other. Such responsibility rests solely with You. Licensee should not rely on oral, written or email statements by Warewolf’s services or sales professionals regarding Your entitlement or rights.

3. Third Party Software Components

The Software may include Third-Party Software Components. Third-Party Software Components may be provided to You under supplemental terms and conditions or separate license agreements that are different from this EULA or which comes with certain supplemental notices and/or information (the “Supplemental Terms”). Where applicable, You undertake to fully comply with the Supplemental Terms. Moreover, You acknowledge that Third Party Software Components might be subject to regulation by the U.S. Government and its agencies, which prohibit export or diversion of certain technical products and information to certain countries and/or individuals. You warrant that You will comply in all respects with all export and re-export restrictions applicable to the technology and documentation related to Third-Party Software Components. BY CONCLUDING THIS EULA, YOU ARE GIVEN SUFFICIENT NOTICE OF THE POSSIBLE INCORPORATION OF THIRD PARTY SOFTWARE COMPONENTS IN THE SOFTWARE AND THE APPLICABILITY OF SUPPLEMENTAL TERMS, ALL OF WHICH YOU SHALL REVIEW AND AGREE TO, INCLUDING WHERE SUCH SUPPLEMENTAL TERMS ARE ONLY AVAILABLE IN FRENCH OR ENGLISH. BY USING THE SOFTWARE, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO THE SUPPLEMENTAL TERMS. Warewolf disclaims any responsibility for ensuring that You are compliant with the Supplemental Terms. Such responsibility rests solely with You. The warranty, Support and indemnification provisions set forth in this EULA shall not apply to the Third-Party Software Components.

4. Fees

4.1 Trial Version. The Trial Version is provided or can be downloaded for free.

4.2 Full Version, Upgrades, Updates, and Patches. To Unlock and Use the Full Version of the Software, you must pay a fee. Updates and Patches can be downloaded for free. Upgrades may require the payment of additional fees. Any and all fees paid are non-refundable except under the circumstances provided in Section 8 hereof.

5. Termination

5.1 Trial Version. Your license for the Trial Version shall be automatically terminated upon expiration of the Trial Period or upon Activation of the Software, whichever occurs first.

5.2 Full Version. Without prejudice to Your payment obligations, You may terminate your license at any time by uninstalling the Software. Warewolf may terminate Your license in the event that You materially breach the terms of this EULA and You fail to cure such breach within thirty (30) days of receiving notice of such breach.

5.3 Effects of Termination. Upon such termination of this EULA for any reason, You shall promptly: (i) discontinue use of the Software; and (ii) uninstall and destroy all copies of the Software.

6. Support

6.1 Scope. Support is only available for the current version of the Software. Support does not require the payment of a separate fee and is applicable for the duration of this license. The description, terms, and conditions of Support are detailed in Appendix 1.

6.2 Support warranty. Warewolf warrants that Support shall be performed in a manner consistent with generally accepted industry standards. Warewolf’s entire liability and your exclusive remedy under this Section shall be to have Warewolf use commercially reasonable efforts to cure the breach.

7. Proprietary Rights

7.1 Title. The Software is protected by intellectual property rights and other related rights such as trade secret. You acknowledge that Warewolf retains all right, title, ownership and interest in and to the original, and any copies, of the Software, whether or not incorporated in or integrated with any other software or product, and ownership of all patent, copyright, trademark, trade secret and other intellectual property rights pertaining thereto shall be and remain the sole property of Warewolf. Nothing in this EULA shall be construed as operating a sale or transfer of the rights in the Software. Accordingly, You shall not be an owner of, or have any interest in, the Software, but rather only has the limited license granted in this EULA.

7.2 Proprietary notices. You shall not remove or alter any Warewolf patent, trademark, copyright or other proprietary notice from any part of the Software, and shall reproduce such notices on any copies, in whole or in part, of such materials made by You.

7.3 Third party infringement. Warewolf reserves the sole and exclusive right at its discretion to assert claims against third parties for infringement or misappropriation of its intellectual property rights. However, You will use reasonable efforts to protect Warewolf’s intellectual property rights in the Software and will report promptly to Warewolf any suspected or known infringement of its intellectual property rights.

8. Limited Software Warranty

8.1 Scope. Warewolf warrants that it owns the Software and Documentation and/or is in possession of valid and existing licenses that support the terms of this EULA in connection with the same. Warewolf warrants that for a period of thirty (30) days from the purchase of the License Key for the Full Version (the “Warranty Period”), the Software, if properly used by You in accordance with the Documentation, shall operate in material conformity with its Documentation.

8.2 Remedy. Warewolf’s entire liability, and Your exclusive remedy, under this Section shall be for Warewolf to attempt, through commercially reasonable efforts: (i) to correct any reproducible material non-conformity discovered within the Warranty Period; or (ii) to replace the non-conforming Software. In the event Warewolf is unable to cure the breach of warranty described herein after attempting the remedies described in (i) and (ii) above within thirty (30) days following the expiration of the Warranty Period, You may terminate this EULA in accordance with Section 5, and Warewolf shall refund any fees paid by You for the Software.

8.3 Exclusions. The above remedies are available only if: (i) You promptly notify Warewolf in writing, within the Warranty Period, of the non-conformity; (ii) Warewolf’s examination of the Software confirms the non-conformity exists; and (iii) that the Software, including Third Party Software Component, has not been (a) altered or modified, (b) subjected to abnormal or physical stress, misuse, negligence, or computer or electrical malfunction, (c) used, adjusted, or installed other than in accordance with the instructions set forth in the Documentation, or (d) used in violation of this EULA.

8.4 No other Software warranty. You agree that the Software is being delivered to You “AS IS” and Warewolf makes no warranty as to its use or performance. In particular, Warewolf gives no warranty, express or implied, that: (i) the Software will be of satisfactory quality, suitable for any particular/specific purpose or for any particular/specific use under specified conditions, notwithstanding that such purpose, use or conditions may be known by Warewolf; or (ii) that the Software will operate error free or without interruption or that any errors will be corrected. The entire risk arising out of Use of the Software remains solely with You.

8.5 Disclaimer. THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTIONS 8.1, 8.2, AND 6.2 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SOFTWARE AND SUPPORT. AS PER SECTION 8.4, WAREWOLF EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, WITHIN THE LIMITS PERMITTED BY LAW.

9. Indemnification

9.1 Purpose and scope. (a) Indemnification of the User. Except as excluded in Section 9.3 hereof, Warewolf agrees, at its own expense, to defend or, at its option, to settle, any third party claims, actions, demands, suits, or judgments resulting therefrom, as brought against You (collectively the “Claims”) by third parties, and arising out of or related to the actual infringement of any patent, copyright, trade secret, trademark or other intellectual property right by Your use, in accordance with the rights granted to You under this EULA, of the Software provided by Warewolf, and to indemnify You against all damages and costs, including reasonable legal fees, which may be assessed against or incurred by You as a result of any such Claims. You agree that Warewolf shall be released from the foregoing obligation unless You provide Warewolf with: (i) prompt written notice of any such Claims, or the possibility thereof; (ii) sole control and authority over the defense or settlement of such Claims; and (iii) proper and full information and assistance to settle and/or defend any such Claims.

(b) Indemnification of Warewolf. You will, at your expense, defend and indemnify or at your option settle any claim or action brought against Warewolf or its officers, directors, agents and employees including for any related damages and costs, including reasonable legal fees, which may be assessed against or incurred by Warewolf and its officers, directors, agents and employees arising out of or relating to: (i) Your acts, omissions or misrepresentations in connection with your activities under this EULA; and (ii) Your infringement of any patent, copyright, trade secret, trademark or other intellectual property right of third parties, including the Third Party Software Components, and/or the Supplemental Terms, (except to the extent that such infringement claim is based only on the Software contained therein).

9.2 Right to Substitute. Without limiting Section 9.1(a) above, if a final injunction is, or Warewolf believes in its sole discretion is likely to be, entered prohibiting the use of the Software or services by You as contemplated herein, Warewolf will, at its sole option and expense, either: (i) procure You the right to use the infringing Software as provided herein; (ii) replace the infringing Software with non-infringing, functionally equivalent products; (iii) suitably modify the infringing Software so that it is not infringing; or (iv), if (i), (ii) or (iii) above is not obtainable on commercially reasonable terms, refund any and all sums received under this EULA.

9.3 Exceptions. Notwithstanding the provisions of Sections 9.1(a) and 9.2 above, Warewolf assumes no liability for Claims arising from: (i) the combination of the Software with other products not provided by Warewolf where the infringement claim arises out of such combination; (ii) any modifications to the Software unless such modification was made by Warewolf; (iii) the Use of the Software if the infringement would have been avoided had the Software been used in accordance with the Documentation; (iv) Your negligence or intentional misconduct; or (v) the alleged infringement of third party intellectual property exclusively by or due to Third Party Software Components only.

9.4 Limitation. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF WAREWOLF, AND THE EXCLUSIVE REMEDY OF THE USER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE OR ANY SUPPORT SERVICES PROVIDED BY WAREWOLF. THE FOREGOING INDEMNITY SHALL NOT APPLY TO THE EXTENT ANY INFRINGEMENT COULD HAVE BEEN AVOIDED BY USE OF THEN-CURRENT SOFTWARE RELEASE.

10. Limitation of Liability

10.1 Limitation. EXCEPT FOR CLAIMS UNDER SECTIONS 2.6, 9.1, AND 11 HEREOF, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF THIS EULA OR THE TERMINATION OF THIS EULA EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU TO WAREWOLF HEREUNDER.

10.2 Exclusion of Indirect Loss. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING IN ANY WAY OUT OF THIS EULA UNDER ANY CAUSE OF ACTION, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. Confidentiality

You hereto acknowledge that by reason of your relationship with Warewolf hereunder You will have access to certain proprietary information and materials concerning Warewolf that are confidential and of substantial value to Warewolf, such as trade secrets, intellectual property, etc., and which value would be impaired if such information were disclosed to third-parties (“Confidential Information”). You agree that You will not use in any way, for Your own benefit or the benefit of any third-party, any Confidential Information except as authorized under this EULA and will protect the confidentiality of such information with the same degree of care which You use to protect Your own confidential information, but in no event with less than reasonable care. Such use and non-disclosure obligations shall not apply to information which (i) was already rightfully known to the party prior to disclosure by the other party, (ii) is in or has entered the public domain through no breach of this EULA or other wrongful act, (iii) has been rightfully received from a third-party not under obligation of confidentiality, (iv) has been approved for release by written authorization, (v) was independently developed by You, or (vi) is required to be disclosed by law.

12. Personal Data

In this EULA, the terms “personal data” shall have the meaning given to the same in the General Data Protection Regulation (EU) 2016/679 (the “GDRP”). In order to Use the Software, You will provide certain personal data, and notably Your first and last names and contact details. Warewolf undertakes to process Your personal data in accordance with the applicable law and in particular with the GDRP. Warewolf will process Your personal data for the sole purposes of supplying and operating the Software, adapting the Software to Your needs and enhancing it, and for safety purposes. Warewolf undertakes not to use or transmit Your personal data to third parties. However, You acknowledge that payment for the Software is processed through a third-party application or entity. You explicitly authorize Warewolf to subcontract the processing of Your personal data for this purpose, provided that: (i) Warewolf provides You with details on the subcontractor upon request; (ii) Warewolf requires the subcontractor to protect Your personal data with the same standard which is no less strict that the requirements set by the applicable law; and (iii) Warewolf remains fully liable to You for the acts, errors and omissions of any such subcontractor. Pursuant to applicable laws, Warewolf shall retain Your personal data for the time necessary to achieve the specific purposes for which they were collected. You are given the possibility to withdraw Your consent for the processing of Your personal data at any time, to access, modify and delete Your personal data. You are also given a right to limit the processing of Your personal data, a right to data portability, and a right to object to the use of Your personal data. You can exercise those rights at any time by sending Warewolf a message at the following address: pete@espressoapp.com. You may also elect to file a complaint with the CNIL, the French Data Protection Authority, regarding the collecting and processing of Your personal data.

13. General Provisions

13.1 No assignment. You may not assign this EULA or any portion of its duties hereunder to any third party.

13.2 No waiver. No waiver by either party of any term or condition of this EULA or any breach thereof, in any one or more instances, shall be deemed or construed to be a waiver of such term or condition or any subsequent breach thereof.

13.3 Severability. If any court of competent jurisdiction finds any provision of this EULA to be unenforceable or invalid, then the provision shall be ineffective to the extent of the finding, without affecting the enforceability or validity of this EULA’s remaining provisions.

13.4 Governing law, Jurisdiction, and Venue. This EULA will be formed, governed by and interpreted in accordance with the substantive laws of France, without reference to conflicts of law and without regard to the 1980 United Nations Convention on Contracts for the International Sale of Goods. The competent courts under the appellate jurisdiction of the Court of Appeal of Paris, France, shall have exclusive jurisdiction to adjudicate any dispute arising out of this EULA.

13.5 Audit. Upon reasonable notice to You, You agree to permit Warewolf or its designated third-party to conduct an audit of Your Devices and/or submit certain questions to You to ensure that You are in compliance with the terms of this EULA. Such audit shall be conducted at Warewolf’s costs, unless the audit reveals that You have been in breach of this EULA.

13.6 Notices. Unless provided otherwise in this herein, any required notices hereunder shall be given in writing at the email address of each party as made available at the time of the download of the Software, and shall be deemed served when delivered or, if delivery is not accomplished by reason or some fault of the addressee, when sent.

Appendix 1. Support Policy

1. Types of Anomalies

An “Anomaly” means generally, any and all malfunctions or non-conformities of the Software notably with the Documentation, and which, though the Software being used in accordance and in compliance with the Documentation: (i) prevents the Software from running properly; or (ii) causes the Software to produce an incorrect result or a processing error.

A “Major Anomaly” means an Anomaly which prevents the Software from performing or achieving a fundamental functionality as provided in the Documentation, and for which there is no work-around.

A “Minor Anomaly” means any other Anomaly which does not prevent the use of the Software.

2. Case Submission Procedure

As soon as you detect an Anomaly, You should contact Warewolf by email at pete@espressoapp.com.

The case submission shall include the following information:

3. Case Closure Policy

Case closure shall give rise to an email from Warewolf to You. Any of the following constitute possible reasons for case closure: (i) You decide to close the case; (ii) Warewolf is waiting for a response from You and the case has been outstanding with no activity for three (3) business days without a response from You; (iii) the problem has been identified as not related to the Software; (iv) a workaround was provided and You are satisfied with the resolution; or (v) the reported problem is a duplicate of an existing case.

4. Exclusions

Warewolf shall not provide Support and close the case should any of the following occur: (i) You fail to provide all necessary and adequate information to Warewolf so as to ensure the proper performance of Warewolf’s obligations; (ii) You do not use the Software in accordance with the Documentation and in compliance with this EULA; (iii) You fail to follow the case submission procedure; (iv) in case of an event of force majeure, as this term is understood under French law.

Updated June 1, 2018