This End User License Agreement (“EULA”) is a legal agreement between you (both the individual installing the Software and any other person or entity on behalf of which such individual is acting) (“you” or the “End User”) and Tagove Limited, a Delaware corporation with its corporate headquarters located at 133 Kearney Street, Suite 401, San Francisco, California 94108-4805 (“Acquire”) and governs your use of Acquire’s proprietary Software (as defined hereinafter), either directly from Acquire or indirectly through a Reseller.
IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS EULA, OR IF YOU DO NOT HAVE THE LEGAL AGE OR AUTHORITY TO ENTER INTO THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE, AND YOU MUST NOT ACCEPT THIS EULA.
1.1 “Authorized Users” means those employees, agents and independent contractors of the End User who are authorized by the End User to use the Software and the Documentation.
1.2 “Confidential Information” shall mean the Software, its source code, the content of the Documentation, any financial, statistical, business, technical, copyright, and confidential or proprietary information relating to the Software or to Acquire’s business, software, products and/or services, which is disclosed by Reseller, Acquire or its affiliates to End User, or which is deduced from the Software or Acquire’s business, software, products and/or services by End User.
1.3 “Delivery Date” means the date on which the Software and/or license keys are delivered or otherwise made available for download by Acquire.
1.4 “Documentation” shall mean all of Acquire’s user manuals, operating instructions and other documents relating to the Software, as generally made available from time to time to End Users.
1.5 “End User” shall mean the licensee acquiring a license to the Software.
1.6 “Initial License Term” shall mean, with respect to a Subscription License, the initial minimum fixed license term as set out in the Order Form during which the Software is licensed to End User, as further described in Section 12.1.
1.7 “License” shall mean the license granted by Acquire to End User in view of using and accessing the Software and the Documentation, as further described in Section 3.
1.8 “License Fees” shall mean the fees due by End User for the License, which are payable to the Reseller (or, when purchased directly from Acquire, to Acquire).
1.9 “License Term” shall mean the Initial License Term and the Subsequent License Term(s) (if any).
1.10 “Maintenance Period” shall mean the term corresponding to the License Term, during which End User is entitled to receive Maintenance and Support Services from Reseller (or from Acquire when the corresponding License was purchased directly from Acquire) pursuant to Section 8.
1.11 “Maintenance and Support Services” means maintenance and technical support services for the Software provided by Reseller (or by Acquire when the corresponding License was purchased directly from Acquire), including periodic distribution of bug fixes and Updates (excluding however, for the avoidance of doubt, Upgrades), all as scheduled by Acquire.
1.12 “Maintenance and Support Fees” means the fees, if any, due by End User in respect of Maintenance and Support Services pursuant to this EULA, which are payable to Reseller (or Acquire, as the case may be).
1.13 “Misuse” shall mean: (i) any use of the Software otherwise than in accordance with this EULA or any other written and explicit instructions provided by Acquire, (ii) (attempted) modification or change of the Software not performed by or on behalf of Acquire; (iii) merging the Software with any software or hardware which is not supplied by or on behalf of Acquire or which is not authorized by Acquire to be so merged by End User; and (iv) negligence, improper installation or operation, accident, or other conditions other than normal use which might cause the Software to fail.
1.14 “Order Form” shall mean Acquire’s or Reseller’s order form, scope of work or other written communication between End User and Acquire pursuant to which End User places an order for Software license(s) concurrently or prior to the effectiveness of this EULA.
1.15 “Reseller” shall mean the individual or company purchasing Software licenses in view of transferring such licenses directly to the End User.
1.16 “Software” shall mean the software specified in the Order Form(s) which is licensed by Acquire to End User under this EULA, including Updates (but excluding Upgrades).
1.17 “Subsequent License Term” shall mean, with respect to a Subscription License, any subsequent term of even duration as the Initial License Term which follows such Initial License Term, during which Acquire licenses the Software to End User, as further described in Section 12.1.
1.18 “Update” means a minor amendment of the Software, which may include minor functionality enhancements, bug fixes or performance or error corrections. The assignment to the category of Update or Upgrade (as defined hereinafter) shall be at the sole discretion of Acquire.
1.19 “Upgrade” means a material amendment of the Software which contains new features and/or major performance improvements, such as new modules. An Upgrade may be licensed and/or priced separately from the previous version of the Software or made available for an additional fee, as determined by Acquire at its sole discretion.
1.20 “Version” means each Software version numerically identified. Parties acknowledge and agree that each Upgrade and/or each Update shall each constitute a new Version of the Product.
1.21 “Virus” means any device, software, code, file or program that may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.22 “Warranty Period” has the meaning in Section 9.1 of this EULA.
1.23 “Workaround” means a suggested set of actions or recommendations intended, when properly implemented, to materially restore the functionality of the Software or to provide equivalent or similar functionality.
Acceptance and Modifications
2.1 Acceptance. By accepting, installing and/or using the Software, you are confirming your acceptance of the Software and agreeing to become bound by the terms of this EULA and acknowledge that it is enforceable as a written contract signed by you.
(a) If you are under the age of 18, you are not permitted to use the Software or provide your personal information to us without the consent of your parent or guardian who must first accept this Agreement and administer the Software on your behalf.
(b) If you are entering into this EULA on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions.
This EULA shall apply only to the Software supplied by Acquire regardless of whether other software is referred to or described herein. The terms also apply to any Updates, supplements, Internet-based services, and support services for the Software.
If you register for a trial of the Software, this EULA will also govern that trial.
2.2 Modifications. Acquire reserves the right, in its sole discretion, to change, modify, add, or remove portions of this EULA on a going forward basis at any time by making such modified EULA available to you on the Acquire website or through the Software, or both. The EULA will be identified as of the most recent date of revision and will be effective immediately upon posting, except as follows: (a) in the event any such modification materially alters your rights hereunder, we will attempt to notify you directly through a message sent to the email address you have provided to Acquire, if any, or a pop-up window or other notification when you access or use the Software, and (b) such materially modified EULA will be effective upon the earlier of your use of the Software with actual knowledge of the changes or thirty days after the changes are made available to you. Your use of the Software after modifications to the EULA become effective constitutes your binding acceptance of such changes. If you do not agree to the Agreement as amended, you will be deemed to withdraw your acceptance of this Agreement, in which case you will need to uninstall and discontinue your use of the Software at that time. If you violate this Agreement, Acquire may terminate your access to and use of the Software.
To the extent reflected in the Order Form and subject to the terms and conditions of this EULA, Acquire hereby grants to End User a limited, personal, non-transferable, revocable, non-exclusive, without the right to sublicense, license to use, install and operate the Software on a subscription basis, solely for the purpose of granting the right to access and use the Software to a certain number of its Authorized Users (the “Subscription License”).
General Licensed Rights
4.1 End User may use, install and operate the Software solely in accordance with terms, conditions, payment requirements, usage limitations and restrictions set forth in (a) this EULA; (b) the Documentation; and (c) the Order Form. In the event of any discrepancy between (i) the provisions set forth in this EULA and (ii) any Order Form, Documentation or written agreement between the End User and Acquire, such Order Form, Documentation or written agreement shall prevail. In the event of any discrepancy between (i) the provisions set forth in this EULA and (ii) any other communication between the End User and the Reseller, this EULA shall prevail.
4.2 The number of Authorized Users for which End User has acquired a License is stipulated in the Order Form. End User shall ensure that the number of Authorized Users shall never exceed the number of licenses to the Software purchased by such End User. End User hereby acknowledges and agrees that any breach or non-compliance with the present provision shall entitle Acquire to terminate this EULA in accordance with the provisions set forth in Section 12.3(ii).
4.3 The License does not include the right to sublicense or transfer the End User’s user rights in the Software or the Documentation to any third party by means of sale, lease, loan, rent, license or otherwise, except as explicitly stipulated in this EULA. Except if otherwise explicitly agreed in writing by Acquire, End User is not entitled to resell or distribute the Software or the Documentation.
4.4 Except for the express License granted to End User pursuant to Section 3 of this EULA, all right, title and interest (including all patent, copyright, trademark, trade secret, and other intellectual property and proprietary rights) in and to the Software and Documentation (including all copies thereof) shall remain exclusively in and with Acquire and/or its licensors, who reserve all rights not expressly granted to End User.
Nothing in this EULA shall limit in any way Acquire’s right to develop, use, license, create derivative works of, or otherwise exploit the Software or the Documentation, or to permit third parties to do so. End User shall reproduce and include all, and shall not remove, alter or obscure, any copyright, trademark and other proprietary notices in and on any copies of the Software and Documentation.
Usage Limitations and Restrictions
5.1 The Software components which are validly licensed by End User and paid for to Reseller (or Acquire, as the case may be) can be installed and used for such amount (number of Authorized Users, capacity, or other parameter(s)) set forth in the Order Form. End User agrees to obtain additional Licenses for the Software before it exceeds, or is likely to exceed, any of the limitations applicable to End User’s License. Each Authorized User shall keep a secure password for his or her use of the Software and the Documentation and each Authorized User shall keep his or her password confidential.
5.2 End User expressly acknowledges and agrees that only End User, and not Reseller nor Acquire, is responsible for verifying whether the applicable laws and regulations of the country where End User intends to install and use the Software and Documentation, allows the installation and/or use of the Software and Documentation, and for obtaining all necessary permits, licenses and authorizations required to be able to so install and use the Software and Documentation. End User will at all times comply with any and all applicable laws and regulations, including federal, state, local and international laws (“Applicable Law”) which may apply to the Software and Documentation and the installation and use thereof by End User.
5.3 End User may not make copies of the Software, except that End User is allowed to make a single copy of the Software solely for backup purposes.
5.4 End User will not use the Software or Documentation except as expressly permitted in this EULA. End User will not, and will not permit any third party to: (a) (attempt to) reverse engineer, decompile, disassemble or otherwise reduce the Software to any human perceivable form, or (b) extract or attempt to extract any source code, algorithms, methods, ideas, techniques, workflows or hierarchies from or embodied in the Software or any portion thereof. End User may not modify, adapt, translate, rent, lease, loan or create derivative works based upon, distribute, display or publish (publicly or otherwise), relicense or sublicense the Software, Documentation or any part thereof or use the Software or Documentation for third- party training, commercial time-sharing or service bureau use.
5.5 End User agrees to follow the operation procedures published by Acquire and/or Reseller, as the case may be, including, but not limited to, procedures for routine maintenance of the Software.
5.6 End User shall implement, and is solely responsible for implementing, procedures for the protection of data and other information in the event of errors or malfunctions of the Software or hardware on which the Software is used.
5.7 End User shall properly train its staff in the use and application of the Software and any hardware on which the Software is used or installed.
5.8 End User shall not, and shall ensure that its Authorized Users shall not, access, store, distribute or transmit any Virus, or any material during the course of its use of the Software that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, or harassing; (b) facilitates illegal activity; (c) depicts sexually explicit images or promotes unlawful violence; (d) is discriminatory based on race, gender, color, religious belief, sexual orientation, age, or disability; or € is otherwise illegal or causes damage or injury to any person or property.
6.1 End User expressly acknowledges that operation of the Software requires that End User has or obtains, at End User’s sole cost and expense, appropriate hardware and third-party software and/or application licenses, such as (but not limited to) operating systems. Except as expressly stated in Section 6.2, this EULA does not grant any license in or to any other software than the Software, and End User is responsible for procuring all such necessary third-party software or other hardware or equipment.
6.2 Acquire may integrate directly in the Software certain software supplied by third parties, in which case Acquire shall provide access to such third-party software as part of the licensed Software. End User acknowledges and agrees that such third-party software is subject to various other terms and conditions imposed by the licensors of such third-party software. A list of third-party software licenses, and the applicable terms thereof, shall be provided with the Software. Such third-party software is provided “AS IS”, with no warranties of any kind. Any third-party software sublicense will terminate when this EULA terminates or when the Software is no longer being used by the End User. End User’s use of such third-party software is subject to, and governed by, the specified third-party license terms, except that this Section 6.2 (Third-Party Software) and Section 10 (Limitation of Liability) of this EULA also govern End User’s use of the third-party software. End User acknowledges that all third-party licensors and suppliers in respect of the Software retain all rights, title and interest in their respective software products. End User agrees to comply with such third-party license terms.
7.1 General. End User understands and agrees that, if and to the extent the use of the Software is made available as a result of End User’s business relationship with Reseller, End User shall pay Reseller the License Fees and any other amounts owing for the use of the Software (including, but not limited to, related Maintenance and Support Fees), as the case may be, plus any applicable sales, use, excise, or other taxes, as specified by the Reseller’s terms and conditions of sales. When purchasing the licensed rights directly from Acquire, the End User shall pay the aforementioned fees and amounts directly to Acquire.
All fees payable to Reseller and/or Acquire, as the case may be, are due and payable pursuant to the terms stipulated in the Order Form. Failure to pay the License Fees and/or other amounts owing for the use of the Software (plus any applicable taxes) may result in termination of the License and related Maintenance and Support Services.
7.2 Payments for Subscription Licenses. If licensed under a Subscription License, End User agrees to pay the initial, and, thereafter, the recurring fees for the Subscription License (the “Subscription License Fees”) as described in the original Order Form and based upon the rates and amounts set forth in the original Order Form (subject to adjustment pursuant to Section 7.3).
Maintenance and Support Fees are included in the Subscription License Fees. End User also agrees to pay any other fees or charges listed on an Order Form for additional professional services or other services (collectively, the “Other Fees”) separately and upfront, in addition to the Subscription License Fees.
7.3 Price Amendments. Reseller may amend the Subscription License Fees and/or the Other Fees, provided that such revised or amended Fees shall only become applicable after the termination of the then current license or maintenance term (i.e. the revised or amended License Fees shall apply to the Subsequent License Term only). Any additional licenses bought by End User shall be provided at the then current License Fees (as may be amended from time to time).
7.4 Reseller Payments. If and to the extent the use of the Software is made available as a result of End User’s business relationship with Reseller, Acquire acknowledges that End User shall pay all fees under this EULA directly to Reseller and hereby consents to that arrangement.
Maintenance and Support Services
8.1 General. Subject to (i) the payment of the relevant Maintenance and Support Fees by End User, and (ii) the use by such End User of the current Version or immediately previous Version of the Software, the End User shall receive Maintenance and Support Services directly from Acquire.
8.2 Subscription License. Each Subscription License shall include the right to receive Maintenance and Support Services. Maintenance and Support Services may not be separated from the Subscription License and may not be terminated without also terminating the Subscription License.
8.3 Price Amendments. At least fifteen (15) days prior to the expiration of any Maintenance Period, Reseller or Acquire (as the case may be) may provide notice to End User of the amended Maintenance and Support Fees for the upcoming Maintenance Period. Thereafter, with respect to all Authorized Users under license, End User may elect to (i) renew Maintenance and Support Services at the amended fee rates, or (ii) elect not to renew Maintenance and Support Services. If no written notice is provided to Reseller or Acquire, as the case may be, prior to the expiration of any Maintenance Period, there shall be an automatic renewal of Maintenance and Support Services at Reseller’s or Acquire’s revised Maintenance and Support Fees.
8.4 Software Maintenance. Subject to the payment of the relevant Maintenance and Support Fees, Acquire shall provide End User, from time to time, with Updates (including periodic distribution of bug fixes, maintenance releases and minor enhancements) as scheduled by Acquire in its sole discretion. End User may refuse to accept an Update.
The Maintenance and Support Services shall be exclusive of any Upgrades to the Software. In order for End User to receive and use such Upgrade, End User must (i) pay the applicable License Fees for that Upgrade; (ii) to the extent not included in such applicable License Fees, pay the applicable Maintenance and Support Fees for the then current Maintenance Period. Unless explicitly stated otherwise, the terms of this EULA shall apply and the Upgrade shall be deemed Licensed Software upon payment by End User of the applicable License Fees.
8.5 Support Services. Upon each new release (regardless whether such release constitutes an Upgrade or an Update), Acquire shall maintain only the Version of the Product that has been thus revised and the previous Version. End User shall be eligible for such Maintenance and Support Services only if and to the extent (i) End User has duly paid the applicable Maintenance and Support Fees; and (ii) End User is using the current or previous Version of the Software.
8.6 End of Support Notice. End User shall receive an “end of support” notice not later than eight (8) days prior to the effective date at which the Software is updated to as new Version, informing End User that as from such date, the version preceding the then-current Version shall no longer be supported, thus terminating such End User’s right to Support and Maintenance Services. End User shall not be entitled to any refunds of Maintenance and Support Fees.
8.7 Response to Inquiries. Subject to End User’s payment of the applicable Maintenance and Support Fees, (i) End User’s installation support inquiries by telephone will be accepted by Reseller (or Acquire, as the case may be) during normal business hours; and (ii) End User’s technical support email inquiries are accepted at any time and will be answered during normal business hours. Reseller (or Acquire, as the case may be) will attempt to respond to inquiries within the same business day.
9.1 Software Warranty. Acquire warrants that the Software will perform substantially in accordance with the applicable part of the Documentation for a period of the earlier of: (a) one (1) year from the date of delivery of the Software to a Reseller (if applicable); or (b) sixty (60) days following the date on which the Software is delivered to End User or otherwise made available to End User for download (the “Warranty Period”) when maintained and operated in accordance with the License and the Documentation (“Software Warranty”).
THE SOFTWARE WARRANTY WILL NOT APPLY IF ANY FAILURE, ERROR, DEFECT OR MALFUNCTION RESULTS FROM ANY MISUSE OF THE SOFTWARE OR IS OTHERWISE NOT ATTRIBUTABLE TO ACQUIRE. ACQUIRE MAKES NO REPRESENTATION OR WARRANTY (I) THAT THE SOFTWARE WILL MEET END USER’S REQUIREMENTS, (II) THAT ALL ERRORS, DEFECTS, OR MALFUNCTIONS HAVE BEEN OR CAN BE ELIMINATED FROM THE SOFTWARE, (III) THAT THE SOFTWARE IS FREE OF ERRORS, DEFECTS, VIRUSES OR MALFUNCTIONS, OR THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION, OR (IV) THAT THE SOFTWARE WILL OPERATE WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA, AND RESELLER SHALL IN NO EVENT BE RESPONSIBLE FOR LOSSES OF ANY KIND RESULTING FROM THE USE OF THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR BUSINESS EXPENSE, MACHINE DOWNTIME, LOSS OF OR CORRUPTION TO DATA, OR DAMAGES CAUSED TO END USER OR THIRD PARTIES BY ANY DEFICIENCY, DEFECT, ERROR OR MALFUNCTION. THE SOFTWARE WARRANTY APPLIES ONLY TO THE ORIGINAL END USER AND IS NOT TRANSFERABLE TO ANY THIRD PARTY OR ASSIGNEE OF END USER.
If End User fails to pay when due any payment required from End User to Reseller or Acquire under this EULA or otherwise, the Software Warranty and the related remedies of End User will automatically become null and void and of no further force or effect. End User must notify Acquire by email or through other contact mechanisms provided by Acquire of any breach of the Software Warranty within the Warranty Period.
9.2 Remedies. Subject to the limitations set forth in the subsequent Section 10 (Limitation of Liability), End User’s exclusive remedy, and Acquire’s entire liability, arising from any breach of the Software Warranty shall be, at Acquire’s option and at no cost to End User, for Acquire to (i) make commercially reasonable efforts to correct or provide a reasonable Workaround for the failure, error, defect or malfunction that caused the breach of the Software Warranty, or (ii) replace the (defective part of the) Software. If any breach of Software Warranty claim by End User falls within any of the exceptions listed above in the first paragraph of the present Section “Warranties”, End User shall upon Acquire’s request pay Acquire for such assistance and services provided by Acquire in respect thereof on a time and material basis at Acquire’s then current professional services rates and related expenses.
9.3 Disclaimer. THE SOFTWARE WARRANTY IS IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ACQUIRE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. USE OF THE SOFTWARE BY END USER IS AT END USER’S SOLE RISK.
Limitation of Liability
10.1 Exclusion of indirect damages. In no event shall Acquire be liable to End User or any third party under any theory of liability for lost profits and/or any other indirect, incidental, consequential, special or punitive damages, however caused, including, without limitation, (i) loss of revenue, business or use; (ii) loss of anticipated savings; (iii) loss of actual or anticipated business and/or goods; (iv) loss of goodwill; (v) loss and/or corruption of data and/or other information, (vi) loss as a result of third party claims; and/or (vii) the cost of procuring replacement goods and/or services. For the avoidance of doubt, the types of loss and/or damage specified in (i) through (vii) shall not constitute direct losses for the purposes of this EULA. The foregoing limitation will apply even if Acquire has been advised of the possibility of such damages or if such damages are foreseeable.
10.2 Cap on Other Damages. Notwithstanding any other provision of this EULA, and to the fullest extent allowed under Applicable Law, Acquire’s aggregate liability of all kinds towards End User for any damages arising from or related to the Software, the Documentation or this EULA, other than as set out under 10.1 above, whether for breach, infringement, in tort, indemnification or otherwise, shall be limited to an aggregate amount equal to either (i) the license fees in respect of the Software only (excluding any taxes) actually received by Reseller or Acquire for End User’s use of the Software during the six (6) month period preceding End User’s initial notice to Acquire of any claim or potential claim hereunder; or (ii) 50,000 USD, whichever amount is lower. The existence of one or more claims under this EULA shall not enlarge the limit.
10.3 Employees and Agents. The limitations and exclusions of liability, as well as indemnity stipulated for Acquire itself in the present EULA are also stipulated for and on behalf of Acquire’s directors, employees, agents and other intermediaries and/or any other person employed by it or delivering services to it within the framework of the EULA.
10.4 Limitation in Time. End User may not bring a claim under this EULA more than twelve (12) months after the cause of action arises.
Intellectual Property Infringement
In the event of a claim that the Software and/or Documentation, or End User’s permitted use thereof under this EULA, infringes a third party’s intellectual property, proprietary or other right, or Acquire’s belief that such claim is likely to arise, Acquire shall have the right, at its sole option and expense: to (a) procure for End User the right to continue using the affected Software and/or Documentation; (b) replace or modify the affected (part of the) Software and/or Documentation so that it does not infringe; or (c) terminate this EULA. If Acquire so terminates this EULA, as End User’s sole remedy and Acquire’s entire liability, Acquire will pay to End User, upon End User’s certified deletion of the affected Software, an amount equal to the License Fees paid hereunder for the License in respect of the affected Software, prorated from the Delivery Date, based on a straight line depreciation, through the date the License is terminated over the original term of the License.
Term and Termination
12.1 Term. The term of this EULA shall commence on the Delivery Date, and will remain effective during the Initial License Term and Subsequent License Term, it being understood that a Subscription License shall be automatically renewed at the end of the Initial License Term or each Subsequent License Term, each time for a Subsequent License Term, unless explicitly terminated in accordance with the provisions of this Section 12.
12.2 Termination upon Notice. A Subscription License can be terminated at the end of the relevant Initial License Term or at any time during a Subsequent License Term upon giving a two (2) months prior written notice by registered mail to Acquire (or, if terminated by Acquire, to the relevant End User), starting on the first day of the month following the date of delivery of such termination notice.
12.3 Termination for Cause. Without prejudice to either party’s other rights accorded to it by this EULA (including but not limited to the termination rights under Section 2.2) or by law, either party can terminate this EULA with immediate effect by written notice to the other party, if any of the following events occur: (i) the other party breaches this EULA and fails to cure such breach within thirty (30) days of the receipt of written notice of such breach from the non-breaching party; (ii) the other party breaches this EULA, and such breach is not curable (a breach of the License terms by End User shall be deemed a breach which is not curable); (iii) the other party makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, becomes subject to any proceedings under any bankruptcy or insolvency law (whether domestic or foreign), has wound up or liquidated, voluntarily or otherwise; (iv) the other party becomes insolvent or ceases or threatens to cease to carry on its business in the normal course; (v) the other party suffers or permits the appointment of a receiver for its business or assets; or (vi) any other event analogous to those listed under (iii) through (v) occurs in the jurisdiction applicable to the party affected. The affected party shall promptly notify the other party in the event of the occurrence of any of the foregoing instances as per (iii) through (v). Termination by either Party pursuant to this Section 12.3 shall not entitle the other Party to any refund of any prepaid License Fees or Other Fees.
12.4 Effect of Termination. If the term of this EULA expires or is terminated for any reason whatsoever, the License shall automatically terminate as set forth above and End User shall: (i) immediately cease using the Software and the Documentation; (ii) have an End User senior officer certify to Reseller within thirty (30) days after the effective date of termination that End User has permanently deleted, destroyed, or, at Acquire’s option, has returned to Acquire the Documentation and all copies thereof. Neither party shall be liable to the other for damages of any kind solely as a result of terminating this EULA in accordance with this Section 12. Either party’s termination of this Agreement shall be without prejudice to any other right or remedy that it may have at law or in equity, and shall not relieve either party of breaches occurring prior to the effective date of such termination.
13.1 During the term of this EULA and for a period of three (3) years from the expiration or termination thereof, End User shall maintain accurate records of its use of the Software sufficient to demonstrate its compliance with the terms of this EULA and all Order Forms.
13.2 Upon ten (10) days’ notice to End User, Acquire and/or Reseller shall have the right to (or to have a third party) inspect and audit such End User’s records and its systems to confirm End User’s compliance with the provisions of this EULA. End User agrees to fully cooperate with any such inspection and audit and shall provide all access to such records and its systems as reasonable required for Acquire and/or Reseller to confirm End User’s compliance with the terms hereof.
13.3 In the event that the audit reveals unauthorized use of the Software, or use beyond the scope of the usage limitations and restrictions applicable to the Software, then, without prejudice to Acquire’s other rights (including termination of the License), End User shall promptly pay the relevant License Fees. End User agrees that all unlicensed use of the Software shall be presumed to have started on the first day on which the Software was made available to End User (through key download, delivery or otherwise), unless End User proves otherwise to the satisfaction of Acquire.
If the audit determines that End User underpaid the License Fees by more than five percent (5%), End User shall pay Acquire’s reasonable costs and expenses for the audit (including transportation, travel, and if applicable the cost of the third party auditor).
13.4 This Section 13 shall survive the termination of this EULA for any reason, and shall stay effective until three (3) years after the termination of this EULA.
14.1 End User agrees to keep the Confidential Information of Acquire confidential and not to disclose it to third parties, unless expressly otherwise agreed by a duly authorized representative of Acquire. End User shall be entitled to disclose Acquire’s Confidential Information only to those of its personnel, consultants and agents that have a reasonable need to know such Confidential Information for the purposes of this EULA, and provided the End User instructs its personnel, consultants and agents to keep such information confidential by using the same care and discretion that it uses for its own Confidential Information and in no event, less than a reasonable degree of care.
14.2 The obligations set forth in this Section 14 shall not apply to any information which: (i) is published or otherwise becomes available to the general public through no fault of End User; (ii) has been validly obtained by End User from a third party not being bound by any confidentiality or similar secrecy obligation; (iii) was in End User’s possession without proprietary restrictions prior to the date of disclosure by Acquire and/or Reseller to End User; (iv) was developed by End User without reference to the Confidential Information; or (v) is required to be disclosed pursuant to Applicable Law, to the extent of such requirement only and provided that End User shall, if feasible, give to Reseller and/or Acquire prior notice of such proposed disclosure and a reasonable opportunity to contest such disclosure.
14.3 This Section 14 shall survive the termination of this EULA for any reason, and shall stay effective until three (3) years after the termination of this EULA.
Privacy and Data Collection
15.1 The End User shall own all right, title and interest in and to all of the End User Data. As used herein, “End User Data” means the data processed by Acquire on the End User’s behalf to facilitate the End User’s (including its Authorized Users) use of the Software.
15.2 In the event of any loss or damage to End User Data, to the extent required to be stored by Acquire in connection with End User’s use of the Software, the End User’s sole and exclusive remedy against Acquire shall be for Acquire to use commercially reasonable efforts to restore the lost or damaged End User Data. Acquire shall not be responsible for any loss, destruction, alteration or disclosure of End User Data caused by any third party. If any loss or damage to End User Data is caused by the End User or any of its employees, agents or contractors then Acquire may charge the End User for the reasonable costs of restoring the End User Data, such costs to be agreed between Acquire and the End User in advance.
15.3 Both parties will comply with all applicable data protection and privacy laws.
15.4 The parties acknowledge that Acquire may be required to process End User Data comprising personal data, personal information, or personally identifiable information in connection with End User’s use of the Software.
15.5 End User will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Acquire for the duration and purposes of the End User’s use of the Software so that Acquire may lawfully use, process and transfer the personal data on the End User’s behalf as required.
15.6 Acquire shall, in relation to any End User Personal Data processed in connection with the performance by Acquire of its obligations herein:
(a) process End User Data comprising personal data, personal information, or personally identifiable information only to the extent necessary for the purposes specified herein or in any other agreement entered into by Acquire and End User and in accordance with the End User’s documented instructions, unless otherwise required to do so by applicable law, in which case Acquire shall notify End User of the applicable legal requirement, unless the applicable law prohibits Acquire from providing the information on important grounds of public interest;
(b) ensure any individuals processing such data are bound by confidentiality requirements;
(c) where required to do so by applicable data protection and privacy laws, assist the End User, at the End User’s cost, in ensuring compliance with its obligations under such laws with respect to security of processing, breach notifications, data protection impact assessments, and consultations with supervisory authorities or regulators, taking into account the nature of the processing and the information available to Acquire;
(d) notify the End User without undue delay upon becoming aware of a data breach affecting such data;
(e) at the choice of the End User, delete or return any such data to the End User on expiration or termination of this EULA unless applicable law requires Acquire to continue storing such data;
(f) immediately inform the End User if, in the opinion of Acquire, an instruction from the End User infringes any applicable data protection or privacy law;
(g) where required to do so by applicable data protection or privacy laws, not engage any subprocessors to process End User personal data without the End User’s prior authorization;
(h) where required to do so by applicable data protection or privacy laws, make available to the End User, at the End Users expense, information necessary to demonstrate compliance with applicable such laws and allow for and contribute to audits conducted by the End User no more than annually.
16.1 The End User shall defend, indemnify and hold harmless Acquire against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the End User’s use of the Software and/or Documentation, provided that:
(a) the End User is given prompt notice of any such claim;
(b) Acquire provides reasonable cooperation to the End User in the defense and settlement of such claim, at the End User’s expense; and
(c) the End User is given sole authority to defend or settle the claim.
16.2 Acquire shall defend the End User, its officers, directors and employees against any claim that the Software or the Documentation infringes any United States patent, copyright, trade mark or right of confidentiality, and shall indemnify the End User for any amounts awarded against the End User in judgment or settlement of such claims, provided that:
(a) Acquire is given prompt notice of any such claim;
(b) the End User provides reasonable cooperation to Acquire in the defense and settlement of such claim, at Acquire’s expense; and
(c) Acquire is given sole authority to defend or settle the claim.
16.3 In the defense or settlement of any claim, Acquire may procure the right for the End User to continue using the Software or the Documentation, replace or modify the Software or the Documentation so that they become non-infringing or, if such remedies are not reasonably available, terminate this EULA on two (2) Business Days’ notice to the End User without any additional liability or obligation to pay liquidated damages or other additional costs to the End User.
16.4 In no event shall Acquire, its employees, agents and sub-contractors be liable to the End User to the extent that the alleged infringement is based on:
(a) a modification of the Software or Documentation by anyone other than Acquire; or
(b) the End User’s use of the Software or Documentation in a manner contrary to the instructions given to the End User by Acquire; or
(c) the End User’s use of the Software or Documentation after notice of the alleged or actual infringement from Acquire or any appropriate authority.
16.5 This Section 16 states the End User’s sole and exclusive rights and remedies, and Acquire’s (including Acquire’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark or right of confidentiality.
17.1 Export and Government Restrictions. End User may not export or re-export the Software in violation of any applicable laws or regulations including but not limited to those of the United States of America. In addition, if the Software is identified as export controlled items under the export laws of the United States of America, End User represents and warrants that he/she is not a citizen, or otherwise located within, an embargoed nation and that he/she is not otherwise prohibited under applicable export laws from receiving the Software. Moreover, End User represents and warrants that he/she will comply with any specific restrictions and regulations that might be applicable to all contracts or agreements (including but not limited to the reproduction of the “restricted rights” proprietary notices and/or legends) concluded with the United States government or its agents and representatives. All rights to use the Software are granted on the condition that those rights are forfeited if End User fails to comply with the terms of this EULA.
17.2 Assignment. This EULA may not be assigned, delegated or otherwise transferred by End User, by merger, acquisition, change of control, operation of law or otherwise, without the express prior written authorization from Acquire, which may withhold consent in its sole discretion. Any attempt by End User to assign, delegate or otherwise transfer this EULA in violation of the foregoing restrictions shall be a breach and Acquire shall have the right, in addition to any other remedy available at law or in equity, to terminate this EULA at any time subsequent to such breach. Acquire may assign and/or transfer this EULA in whole or in part to its successors or to any third party or entity acquiring all or substantially all of Acquire’s assets.
17.3 Severability. If any part of this EULA is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable then such part will be severed from the remainder of this EULA, which will continue to be valid and enforceable to the fullest extent permitted by Applicable Law. The invalid or unenforceable part or provision shall be replaced with a provision which accomplishes, to the extent possible, the original business purpose of such part or provision in a valid and enforceable manner.
17.4 Representations. Each party represents and warrants to the other that it has full authority to enter into this EULA, that the execution and/or performance of this EULA does not and will not violate or interfere with any other agreement by which such warranting party is bound; and that the warranting party will not enter into any agreement whose execution/performance would violate or interfere with this EULA.
17.5 Survival. The rights and obligations under this EULA which by their nature should survive, including but not limited to all rights and obligations in Sections 10, 4, 13, 14, 16 and 17 of this EULA will remain in effect after any termination or expiration hereof.
17.6 References. End User agrees that Acquire may use End User’s name and logo in press releases, product brochures, financial reports and other promotional materials in any media indicating that End User makes use of the Acquire Software.
17.7 Notices. Except as otherwise provided herein, all notices, consents, requests, instructions, approvals and other communications made, required, or permitted under this EULA will be given at the addresses set forth in the Order Form, by (i) personal service, deemed effective on the reported delivery date; (ii) recognized international or overnight courier, deemed effective on reported delivery date; or (iii) email transmission against receipt confirmation, deemed effective on delivery date confirmation.
17.8 Entire Agreement. This EULA constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.
17.9 Governing Law; Venue; Waiver of Jury Trial. The EULA Agreement shall be enforced, governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law, and without regard to the United Nations Convention on the International Sale of Goods. The sole jurisdiction and venue for actions related to this EULA shall be a federal or state court located in California. EACH OF THE PARTIES TO THIS EULA WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY DISPUTE OF ANY NATURE WHATSOEVER THAT MAY ARISE BETWEEN THEM, INCLUDING, BUT NOT LIMITED TO, THOSE DISPUTES RELATING TO, OR INVOLVING IN ANY WAY, THE TRANSACTIONS BETWEEN THE PARTIES, THE CONSTRUCTION, PERFORMANCE OR BREACH OF THIS EULA OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, THE PROVISIONS OF ANY FEDERAL, STATE OR LOCAL LAW, REGULATION OR ORDINANCE NOTWITHSTANDING. By agreeing to this EULA, End User acknowledges and agrees that he/she/it has had an opportunity to consult with legal counsel and that he/she/it knowingly and voluntarily waives any right to a trial by jury of any dispute pertaining to or relating in any way to the transactions contemplated by this EULA, the provisions of any federal, state or local law, regulation or ordinance notwithstanding.
17.10 Force Majeure. Acquire shall have no liability to the End User under this EULA if it is prevented from or delayed in performing its obligations herein, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, epidemics, pandemics, infectious disease outbreaks, lock-outs or other industrial disputes (whether involving the workforce of Acquire or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil unrest, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the End User is notified of such an event and its expected duration.