REVELATION HELPDESK END USER LICENSE AGREEMENT

NOTICE: BY ENABLING, USING, DOWNLOADING, INSTALLING, COPYING OR OTHERWISE ACCESSING OR UTILIZING THIS SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENCE AGREEMENT (the "AGREEMENT"). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT ENABLE, USE, DOWNLOAD, INSTALL, COPY OR OTHERWISE ACCESS OR UTILIZE IN ANY WAY, THE SOFTWARE. "YOU" MEANS THE LICENSEE AS THAT TERM IS GENERALLY DEFINED BELOW.


1. Definitions

a. "Licensee" means:

  • (i) The natural person or entity that is agreeing to be bound by this Agreement;
  • (ii) Your employees, third party contractors or other parties under your control, that provide services to you or on your behalf;
  • (iii) Any of your customers using the software or any service based upon the software as permitted in this Agreement;
  • (iv) Named Users or other License Support Personnel;
  • whether or not the Software is being utilized by the party described above, or a system under the control of such party.
  • Licensee shall be liable for any failure of any such employees, third party contractors, or customers to comply with the terms of this Agreement.

b. "Licensor" means YELLOWFISH SOFTWARE, LLC, a Delaware limited liability company with head offices at 55 Greens Farms Road, Westport, Connecticut 06880 USA.


c. "Software" means the enterprise-wide incident, problem and change management software and software product developed by Licensor generally referred to herein as "Revelation" or "Revelation helpdesk", including, without limitation Revelation helpdesk core, Revelation helpdesk cloud edition and Revelation Server, collectively referred to herein as "Revelation", and any updates, versions or modifications thereto, as may periodically be provided.


d. "Full Key" generally refers to a software key and means the code or identifier required to access and utilize features of the Software. The "Full Key", as that term is used herein will generally include Annual Keys and Permanent Keys. An annual key is a software key provided to the Licensee upon payment of annual license fees by Licensee to Licensor, for an annually or periodically renewed license for the Software. A permanent key generally applies to a Software key provided to Licensee upon payment of a license fee or fees to Licensor for a lifetime license for the Software.


2. License

a. Authorized Use. Subject to the terms of this Agreement, Licensor grants Licensee a nonexclusive, nontransferable license to use the Software for such purposes set forth in any documentation or online help guide(s) for the particular version of the Software and to the extent permitted by Licensee's payment of applicable license fees. Where the Software has been enabled or acquired pursuant to a quote or payment of a fee (the "License Fee") for the Software and related services, Licensee shall be entitled to have the number of users within Licensee's organization use the Software, as is specified by the License Fee. If Licensee requires more users than the number of licenses specified in or by the License Fee, Licensee shall be required to purchase a further license or licenses of the Software from Licensor. If Licensee has purchased a self-service module, nothing herein shall limit the number of external clients of Licensee who may access the external self-service user interface comprised in the Software. If Licensee is licensing Revelation Server, Licensee may install only one instance of the Software.


b. Restrictions. Licensee may not: (1) copy (other than for back-up or disaster recovery purposes), distribute, rent, lease or sublicense all or any portion of the Software or otherwise make the Software available for unauthorized use; (2) modify or prepare derivative works of the Software; (3) resell the internal log-in functionality of the Software to third parties to enable such third parties to use such internal functionality of the Software; or (4) reverse engineer, decompile or disassemble the Software.


c. Transfer. This Agreement may not be transferred by Licensee without the prior written permission of Licensor.


d. License Fees.

  • (i) Where a License Fee is applicable, the License Fee shall be as set forth in the quote or as by Licensor.
  • (ii) The License Fee and any related costs are due and payable prior to release by Licensor to Licensee of a Full License key.
  • (iii) ALL LICENSE FEES AND RELATED COSTS ARE NON-REFUNDABLE EFFECTIVE UPON RELEASE BY LICENSOR TO LICENSEE OF THE FULL LICENSE KEY.
  • (iv) In the event Licensee fails to pay any required License fee, or the License fee is not received by the due date, Licensor shall have the right to terminate the license to the Software.

e. Limitations on Use. Where the Licensee is licensing Revelation helpdesk core, Licensee remains solely responsible for any and all data and information of Licensee stored in or by the Software. Licensor does not maintain or assume any obligation or responsibility to maintain, retain or otherwise store, or continue to store any such data of Licensee at any time, including upon termination of the License or the Software. Any maintenance, storage or upkeep of such data or information is solely at Licensee's risk.


3. Intellectual Property

The Software is licensed (not sold) to Licensee. Licensee acknowledges and agrees that Licensor owns or has a license for all intellectual property rights, including all copyright, trade secret, patent and other proprietary rights, in the Software. Except as otherwise set forth herein, Licensor does not by this Agreement grant to Licensee any right, title or ownership interest in and to the Software or in any related patents, trademarks, copyrights or trade secret rights. Licensee receives no right, title or ownership interest in the Software by way of this Agreement.


4. Limited Warranties

a. Where Licensee is licensing Revelation helpdesk cloud edition or Revelation Server, and Licensee is current with any License Fees due for such License, Licensor hereby agrees to provide Licensee, such fixes to the Software as may become available. This shall be Licensee's exclusive remedy for the Software failing to operate in accordance with Licensor's documentation for the Software.


b. Licensee acknowledges that the software is provided "as is" without warranty of any kind, except as provided above either express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purposes, or non-infringement. No warranty is made that utilization and operation of the software shall be error-free or virus-free. Licensor makes no warranty as to the performance or results Licensee may obtain by using the Software. The entire risk as to the results and performance of the software is assumed by Licensee.


5. Limitation of Liability

a. In no event shall Licensor be liable for any damages in excess of the license fees actually paid to Licensor hereunder, whether in contract or in tort (including negligence) including but not limited to direct, consequential, special, exemplary, incidental and indirect damages arising out of or in connection with this Agreement or the use of or inability to use the Software.


b. If Licensee is licensing Revelation Server, Licensee agrees that it shall have the sole, responsibility to protect its data used in connection with the Software.


c. Licensor will not be liable for any loss or damage caused by delay in furnishing replacement Software or any other performance under this Agreement.


d. In no event will Licensor be liable for any loss or damages caused by or related to third-party software, including but not limited to "plug-ins", used by Licensee in connection with the Software, unless otherwise expressly agreed by Licensor in writing.


e. Licensee acknowledges that the Software comprises computer network-based services, operating in part over the Internet, which may be subject to outages and delay occurrences. Licensor will not be liable in any manner for any interruptions, outages, or other delay occurrences relating to the software or the results thereof.


f. In no event will Licensor's liability include any special, incidental or consequential damages, or damages of any kind resulting from loss of use, data, or profits, and on any theory of liability, even if Licensor has knowledge of the potential loss or damage.


g. Licensor's entire liability and Licensee's exclusive remedies for Licensor's liability of any kind (including liability for negligence) for the Software covered by this Agreement and all other performance or nonperformance by Licensor under or related to this Agreement are limited to the remedies specified by this Agreement.


h. Some states do not allow the exclusion of implied warranties, so some of the above exclusions may not apply to Licensee. This Agreement gives Licensee specific legal rights, and Licensee may also have other rights, which may vary from state to state.


6. Activation and Notifications

a. During activation of the license, the Software will send information about the Software to Licensor. This information includes the version being installed. Licensor does not use this information to identify or contact Licensee. By using the Software, Licensor agrees to transmission of this data.


b. During the use of the product, software may send information regarding system errors and/or customizations made by Licensee to Licensor.


c. Sharing of published reports with social community by Licensee may be turned off at Licensee's discretion.


d. Licensor, may, at its sole discretion, discontinue the supply and/or hosting of Revelation helpdesk core at any time. Licensor shall use its best effort to notify Licensee thirty (30) days prior to such discontinuance.


e. Licensor may, at its sole discretion, modify the Software at any time and without notice to Licensee.


7. Term and Termination

a. This Agreement is effective for the term of the license(s), unless otherwise terminated pursuant to the terms hereof. The elements of this Agreement shall remain in effect even after termination of this Agreement.


b. This Agreement will automatically terminate without notice if Licensee fails to comply with any term or condition of this License. Any obligation by Licensee to pay any fees for the Software accrued prior to the date of termination shall survive the termination of this Agreement.


c. Immediately upon termination of this Agreement for any reason, Licensee shall destroy and/or erase all copies of the Software in Licensee's possession or control, together with all documentation. In addition, Licensee must remove the Software and all copies thereof, including all backup copies from any server, computer or other media on which it is installed, stored or archived. If requested by Licensor, Licensee shall provide Licensor with written certification that Licensee has complied with these requirements to Licensor's satisfaction.


d. If using Revelation helpdesk cloud edition or Revelation Server, Licensee's data stored in the database associated with the Software shall at all times remain the sole property of Licensee.


e. If using Revelation helpdesk core, any data stored in the database associated with the Software by Licensee shall be deemed to be controlled by Licensor. Licensee shall only be entitled to the return or export of any of its data stored in the database associated with the Software upon payment to Licensor of a service fee for such return of exporting.


f. Licensee agrees that, in the event of termination pursuant to Subparagraph (b) of this Paragraph 7, Licensor shall not be liable to refund to Licensee any fees paid or owed by Licensee pursuant to this Agreement.


g. Licensor reserves the right, at their sole discretion, to change, modify or otherwise alter these terms and conditions at any time. Such modifications shall become effective immediately upon the acceptance thereof. If Licensee does not agree to the revised terms and conditions, Licensee's sole recourse is to immediately stop all use of the Software. Licensee's continued use of the Software following the modifications will constitute acceptance of the revised terms and conditions.


h. In the event Licensee fails to pay any required License fee, or the License fee is not received by the due date, Licensor shall have the right to terminate the license to the Software. Licensor shall not be required and shall have no obligation to maintain any of Licensee's data in the event of termination of the License.


8. Installation and Maintenance

a. If Licensee is licensing Revelation Server, Licensee is responsible for installation of the Software, except to the extent that Licensee has purchased installation set-up assistance and/or training from Licensor.


b. Standard support and maintenance services are only included as part of the License Fee or such other a fee set forth by the Licensor and paid by the Licensee to the Licensor. Any extraordinary assistance, as determined by the Licensor, will be charged at an hourly rate. Licensee will be notified prior to any work if additional support fees are required.


9. Hosting

Hosting services, for Revelation helpdesk core and Revelation helpdesk cloud edition, if any, shall be provided in accordance with Licensor's standard terms, conditions and fees for hosting software, as set from time to time.


10. Confidentiality

a. Licensee agrees to keep confidential and use Licensee's best efforts to prevent and protect the contents of the Software from unauthorized disclosure or use.


b. Each party acknowledges that in its performance of its duties hereunder, the other party may communicate to it (or its representative) certain confidential and proprietary information of such party (the "Confidential Information"), including but not limited to information concerning each party's respective clients, contractual relationships, marketing and pricing. The receiving party agrees to hold the Confidential Information disclosed to it within its own organization and to only disclose it to such extent and to such persons as are necessary for the receiving party to perform its obligations under this License, and the receiving party shall not, without the prior specified written consent of the disclosing party or as expressly authorized herein, publish, communicate or disclose any part of the disclosing party's Confidential Information to any third party.


c. This Section shall impose no obligations on either party with respect to any Confidential Information which: (i) is in the public domain at the time disclosed by the disclosing party, (ii) enters the public domain after disclosure to the receiving party other than by a breach of the receiving party's obligations hereunder, (iii) is shown by documentary evidence to have been known by the receiving party prior to its receipt from the disclosing party or developed independently without reference to Confidential Information, or (iv) is required to be disclosed by law or a court of competent jurisdiction, PROVIDED THAT, if possible, the disclosing party shall provide the non-disclosing party notice of such required disclosure sufficiently in advance of the intended disclosure to permit the non-disclosing party to take action to prevent such disclosure if the non-disclosing party so deems necessary. Each party will take steps as are consistent with its protection of its own confidential and proprietary information (but in no event exercise less than reasonable care) to insure that the provisions of this Section are not violated by its employees, agents or representatives.


11. Miscellaneous

a. This Agreement shall be governed by and construed in accordance with the laws of the United States of America, State of Connecticut without regard to choice of law principles. Each party hereby submits to the non-exclusive jurisdiction of the Courts, Federal and State, located in the State of Connecticut, with venue in Fairfield County, with respect to any dispute arising hereunder.


b. This Agreement shall be binding upon and inure to the benefit of the successors, representative, administrators and permitted assigns of the parties hereto.


c. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements between the parties regarding the subject matter.


d. No waiver by any party hereto of any breach of any term or provision of this Agreement shall constitute a waiver of or assent to any succeeding breach of the same or any other term or provision of the Agreement.


e. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the Agreement and the remainder of this Agreement shall be interpreted so as best to reasonably affect the intent of the parties hereto. Notwithstanding the foregoing, if any provision of this Agreement shall be held to be unenforceable because of the duration or scope thereof, the parties agree that the court or authority making such determination shall have the power to reduce the duration or scope of such provision such that the provision shall be enforceable as modified by such court or authority.


12. SUPPORT AND SUBSCRIPTION SERVICES NOT INCLUDED

Licensor will not provide any support services under this Agreement unless specifically contracted for. If Licensee has purchased support and subscription services with the Software, these services are provided to Licensee under such terms and conditions and by accepting the terms of this Agreement, Licensee is accepting those Support terms and conditions. Any access to supplemental software or related materials that Licensor provides to Licensee as part of any support and subscription services are to be considered part of the Software and are subject to the terms and conditions of this Agreement.

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