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SDL SOFTWARE AS A SERVICE –Enterprise Translation Server for AWS Marketplace.

DO NOT USE THE ENCLOSED SOFTWARE SERVICE UNTIL YOU (“CLIENT”) READ THIS DOCUMENT CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND SDL PLC FOR AND ON BEHALF OF ITS AFFILIATES ("SDL"). BY TYPING IN YOUR SOFTWARE ENCRYPTION CODE OR OTHERWISE ACTIVATING, ACCEPTING, ACCESSING OR USING THE SOFTWARE SERVICE AND DOCUMENTATION (COLLECTIVELY, THE "SOFTWARE") PROVIDED TO YOU BY SDL IN RESPONSE TO AN REQUEST ON THE AWS MARKETPLACE PORTAL, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT., IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS, OR USE THE SOFTWARE SERVICE.

1. Definitions

1.1. “Affiliates” means an entity controlled by either party. The word “control” shall, in the context of a corporation, mean direct beneficial ownership of at least fifty per cent (50%) of the shares entitled to vote for members of the Board of Directors of such corporation, and, in the context of any other business entity, shall mean the right to exercise similar management and control such entity.
1.2. “Authorized Users” means employees of the Client, who are authorized to use the Service.
1.3. “Content” means any information or material that is provided to SDL in connection with Client’s use of the Service, including but not limited to, files, pages, data, works such as video clips, audio clips, metatags or images.
1.4. “Documentation” means the manuals and other technical and functional documentation provided by SDL to Client for use with the Service.
1.5. “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any country which is a party to the Berne Convention.
1.6. “Subscription Fee” means the fee for the Service which will be billed to you by AWS.
1.7. “Service” means SDL Enterprise Translation Server which is made available to you via the AWS Market Place portal.
1.8. “Term” the duration of hours of the Service utilised by you on a monthly basis.

2. Use of Services and Content

2.1 Copy and Use Terms. 

a. Service Entitlement. The access and use of the Service is conditional upon acceptance of these terms and the terms of the AWS website.

b. Term. The right to receive the Service is effective for the time period for which you utilise such Services ("Term") in a given month, unless this Agreement is terminated otherwise in accordance with the terms provided hereunder.

c. Restrictions. Subject to the terms and conditions of this Agreement, SDL grants to Client a non-exclusive, non-transferable, non-sublicensable, limited license to use the Service, limited to the terms set forth herein, and only for Client’s internal use. You may not, nor allow any third party to: (i) decompile, disassemble or reverse engineer the Service or any Software that may be provided thereunder, except to the extent expressly permitted by law and subject to the prior written approval of SDL; (ii) remove, modify, obscure and/or otherwise deface any product identification or proprietary rights notices of the Service, Software or Documentation; (iii) transfer, lease, resell for profit, distribute, lend or otherwise grant any rights in the Service or any Software in any form to any other party in whole or in part that may be provided thereunder, including without limitation, processing services to other parties for commercial or for timesharing , rental, sharing arrangements or for service bureau purposes; (iv) modify or create derivative works of the Service or any Software in whole or in part that may be provided thereunder; or (v) otherwise use, copy, adapt or distribute the Service or any Software that may be provided thereunder except as expressly provided herein. You shall not transmit any Content that you have reason to believe is infringing, obscene, threatening, libellous or otherwise unlawful or tortuous, including material harmful to children or violates third-party privacy rights, and you shall indemnify and defend SDL from and against any breach of the foregoing restriction.

2.2 Subscriptions. Services are purchased as subscriptions and shall be available to Client in accordance with the terms herein.

2.3 Client’s rights in the Service will be limited to those expressly granted in this Agreement. SDL reserves all rights and licenses in and to the Service not expressly granted to Client under this Agreement.

2.4 Client’s License Grant. During the Term, Client grants to SDL and its Affiliates non-exclusive, worldwide, royalty-free license to use, copy, transmit, sublicense, store and display the Content solely and exclusively to the extent necessary for SDL to provide the Services to Client and to enforce its rights under this Agreement.

2.5 Ownership. (a) Client retains ownership and Intellectual Property Rights in and to the Content. (b) SDL or its licensors retain all ownership and Intellectual Property Rights to the Services.

3. Support

4. Payment

Fees. All Subscription Fees will be billed and collected by AWS on behalf of SDL and will be payable in accordance with the terms and conditions related to the use of the Service by AWS and accepted by you. The Subscription Fees will include the use of the Service and the hosting fee by AWS. You will be billed on the number of hours you use the Service.

5. Limited Service and Warranty Disclaimer

5.1 Limited Warranty. SSDL warrants that, for a period of 30 days from the initial use/access of the Service that the Service will substantially conform in accordance with Documentation. The foregoing warranty shall not apply if the Service has not been properly used at all times in accordance with the Documentation.

5.2 Sole Remedy. As Client’s sole and exclusive remedy and SDL’s entire liability for any breach of the warranty set forth in Section 5.1, SDL will, at its option: (a) promptly correct any Service that fails to meet this warranty or (b) provide Client with a reasonable procedure to circumvent the nonconformity;

5.3 Disclaimer. SSDL does not warrant that the Service will meet Client’s requirements, that the operation of the Service will be error-free, timely or uninterrupted or that all Service errors will be corrected. EXCEPT AS PROVIDED IN SECTION 5.1, THE SERVICE PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND SDL MAKES NO WARRANTY OF ANY KIND WITH REGARD TO THE SERVICE OTHER THAN THAT THE SERVICE WILL CONTINUE TO MEET THE DOCUMENTATION. SDL DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. No advice or information, whether oral or written, obtained from SDL or elsewhere will create any warranty not expressly stated in this Agreement.

6. Confidentiality

6.1 “Confidential Information” means (a) the Service and Content; (b) any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents and equipment) that is either marked “confidential” or “proprietary” or would reasonably be assumed to be confidential based on its content or the context surrounding its disclosure; and (c) the specific terms and pricing set forth in this Agreement.

6.2 Exclusions. Confidential Information does not include information that: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.

6.3 Disclosure Restrictions. Each party will not disclose such Confidential Information to any third party except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein and each party will remain directly liable and responsible to the other party and its licensors for any violation by a party or its subcontractors hereunder. Each party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but in no event less than the efforts that such party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors. In addition, each party may disclose the terms and conditions of this Agreement: (a) as required under applicable securities regulations; and (b) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such party.

7. Limitation of Liability

7.1 SDL does not exclude or limit liability for: (a) death or personal injury caused by its negligence; or (b) any fraudulent misrepresentation on the part of SDL; or (c) any other liability that cannot be excluded by law.

7.2 Neither party shall be liable to the other for any indirect, special, exemplary, incidental or consequential damage, whether based on contract, tort, strict liability or any other legal theory, howsoever caused and whether such loss or damage was foreseeable, known, foreseen, or the party was advised of the possibility of such damage. SDL’s total cumulative liability shall not exceed fifty dollars ($50).

8. General

8.1 Assignment. Client will have no right to assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without SDL’s prior written consent (not to be unreasonably withheld). Any attempt to assign this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's successors and permitted assigns.

8.2 Governing Law. This Agreement will be governed by and construed in accordance with the laws of England and Wales, excluding that body of laws known as conflicts of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the English Courts and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.

8.3 Nonexclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

8.4 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

8.5 Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

8.6 Rights of Third Parties. Except where expressly provided to the contrary, this Agreement is not intended to be for the benefit of, and shall not be enforceable by any person who is not named at the date of this Agreement as a party to it or any person who claims rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise, and neither party can declare itself a trustee for the benefit of a third party.

8.7 Force Majeure. Neither of the parties shall be obliged to meet any obligations, including any guarantee obligation agreed between the parties, if it is prevented from doing so as a result of force majeure. Force majeure shall include but not limited to: (i) government measures, (ii) electricity failure, (iii) faults affecting the internet, computer network or telecommunication facilities, (iv) war, (v) terrorism, (vi) riot, (vii) acts of God, and (vii) governmental action. If a situation of force majeure lasts for longer than forty-five days, either of the parties shall be entitled to terminate the agreement in writing.

8.8 Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

8.9 Export Control. Client agrees to comply fully with all applicable export laws and regulations of the United States and other jurisdictions to ensure that neither the Service, nor any direct product thereof are exported or re exported in violation of such laws, or used for any purposes prohibited by such laws.

8.10 Government Rights. If the Service is acquired by or on behalf of the United States government, any use, duplication or disclosure of the Service is subject to restrictions set forth in FAR 52.227 19 and DFAR 227.7200, 227.7202 (1-4), as applicable. The Service is "commercial computer software" and is licensed with only "Restricted Rights".

8.11 Entire Agreement. This Agreement, including any schedules hereto, constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. Any terms and conditions contained in any purchase order that are inconsistent with or in addition to the terms and conditions of this Agreement will be deemed stricken from such purchase order, unless expressly agreed to in writing by SDL.

8.12 Free or Open Source Software. The Service may include programs or code that are licensed under an Open Source Software ("OSS") license model. OSS programs and code are subject to the terms, conditions and obligations of the applicable OSS license, and are SPECIFICALLY EXCLUDED FROM ALL WARRANTY OBLIGATIONS DESCRIBED ELSEWHERE IN THIS AGREEMENT.