Computhink END-USER SOFTWARE LICENSE Agreement
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE, AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, OBLIGATIONS AND REMEDIES.
1. Contract Formation
- 1.1 Nature of the Document.
- 1.1.1 THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS A BINDING LEGAL AGREEMENT BETWEEN COMPUTHINK INC. (“COMPANY”) AND (I) THE INDIVIDUAL DOWNLOADING, INSTALLING OR USING THE SOFTWARE IN HIS OR HER INDIVIDUAL CAPACITY, AND/OR (II) THE ORGANIZATION FOR WHICH THE SOFTWARE IS DOWNLOADED, INSTALLED OR USED (“LICENSEE”).
- 1.1.2 The Agreement governs the use of the Contentverse® software package and accompanying documents (“Software”) that are provided to Licensee either directly by Company or from its resellers or agents, whether pursuant to a purchase order, contract, invoice or similar documentation (“Purchase Order”).
Additional proprietary notices and license terms and conditions, including open-source terms applicable to portions of the Software provided by third parties are set forth in the “THIRDPARTYTERMS” file as set forth in section 6.4, as updated from time to time. The THIRDPARTYTERMS file is incorporated by reference herein and deemed part of this Agreement.
- 1.2 Non-Negotiability of Terms. COMPANY IS WILLING TO GRANT LICENSEE THE RIGHT TO ACCESS AND USE THE SOFTWARE ONLY UPON THE EXPRESS CONDITION THAT LICENSEE MUST FIRST ACCEPT ALL THE TERMS OF THIS AGREEMENT AND PAY COMPANY OR ITS RESELLERS OR AGENTS, THE FULL LICENSE PRICE AND ALL APPLICABLE FEES (INCLUDING ALL APPLICABLE TAXES).
- 1.3 Acceptance or Rejection of Agreement. BY CLICKING THE “I AGREE” BUTTON AND/OR ACCESSING OR USING THE SOFTWARE, LICENSEE HEREBY ACKNOWLEDGES THAT LICENSEE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT. IF LICENSEE DOES NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, THEN COMPANY DOES NOT AGREE TO GRANT LICENSEE ANY LICENSE HEREUNDER AND LICENSEE SHALL REFRAIN FROM ACCESSING OR OTHERWISE UTILIZING THE SOFTWARE.
- 1.4 Modification of Terms. We reserve the right, at our sole discretion, to modify the Agreement or any portion thereof, at any time. Such modified terms or the modified Agreement will be communicated to you and require your acceptance prior to installation of updates to the Software. NOTWITHSTANDING THE FOREGOING, THE THIRDPARTYTERMS MAY BE MODIFIED AT ANY TIME WITHOUT NOTICE TO YOU. We will indicate at the bottom of the Agreement and the THIRDPARTYTERMS the date they were last revised. It is your responsibility to regularly check the THIRDPARTYTERMS webpage to determine if there have been changes and to review such changes. ANY AND ALL MODIFICATIONS WILL BE EFFECTIVE UPON ACCEPTANCE OR UPON POSTING ON THE THIRDPARTYTERMS WEBPAGE, AS APPLICABLE. BY CONTINUING TO ACCESS OR USE THE SOFTWARE, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THE THEN CURRENT AGREEMENT. IF YOU DO NOT AGREE TO THE UPDATED AGREEMENT, YOU SHOULD IMMEDIATELY DISCONTINUE YOUR ACCESS TO AND USE OF THE SOFTWARE.
- 1.5 Order of Precedence. This Agreement supersedes all prior versions of any other written or oral agreements previously in effect between Company and Licensee. In the event of a conflict between the terms of the Agreement and a Purchase Order, the terms of the Agreement shall govern. In the event of a conflict between the terms set forth in the THIRDPARTYTERMS file and this Agreement, the terms of the THIRDPARTYTERMS file shall prevail with respect to the applicable third-party component of the Software. To the extent that Licensee and Company enter into a separate direct agreement (“Master Agreement”) that governs the use of the Software by Licensee, the terms of any such Master Agreement will govern should there be any conflict between such Master Agreement and this Agreement, but only to the extent that such Master Agreement makes an express reference to this Agreement and to the Software.
- 1.6 Execution Copy. Company reserves the right to require Licensee to sign a non-electronic version of the Agreement.
- 2.1 Scope. Conditioned upon Licensee’s compliance with the terms and conditions of this Agreement, Company grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable right and license to install the Software on system(s) identified in the Purchase Order and, where Licensee is an organization, for the use of the Software by the number of authorized users set forth in the Purchase Order, and in all such instances, solely for Licensee’s internal business purposes.
- 2.2 Limited Access. Except for authorized users, no other third party may obtain access to the Software without the prior written consent of Company. The terms and conditions of this Agreement shall apply equally to each Licensee’s authorized users, as to the Licensee. Licensee shall advise its authorized users of the terms and conditions of this Agreement and agrees that any violation of the Agreement by any of them shall constitute a violation of this Agreement by Licensee.
- 2.3 Restrictions. Licensee represents, warrants and covenants that Licensee shall not: (i) rent, assign, lease, sell, convey, sublicense, grant a security interest in, otherwise transfer any rights in, distribute, disclose, display, sell, convey, operate as a service bureau, timeshare or otherwise share with, host for, or otherwise use for the benefit of a third party, the Software or any portion thereof, regardless of the method or means of such use or transfer, whether now existing or hereafter devised; (ii) install or operate the Software on any computer or virtual machine not specifically licensed for such installation, whether through physical transfer or a copy, access through a network of any sort, whether directly or indirectly in other Licensee’s locations or elsewhere, or by any other means, in any media or format, in each case now existing or hereafter devised; (iii) reverse compile, reverse engineer, decipher, disassemble, unobfuscate, reformat, or otherwise seek to duplicate the performance characteristics of the Software or attempt to read or make readable the object code or source code or the underlying ideas, algorithms, structure or organization of the Software, in whole or in part; (iv) copy, translate or reformat the Software into any readable or printed form or format; (v) use the Software for commercial purposes, including but not limited to making it available or to benefit third parties in any way, whether now existing or hereafter devised; and (vi) use the Software for any illegal or injurious purposes or in any manner that violates any applicable international, federal, state or local law or regulation, including Intellectual Property laws or other rights of any third party.
- 2.4 Reservation of Rights. Licensee shall not use or exploit the Software in any manner, except as expressly permitted hereunder. All rights not expressly granted to Licensee are reserved by Company. There are no implied licenses to any of the Software or other Intellectual Property of Company hereunder.
3. Proprietary Rights
- 3.1 Company Ownership. The Software consists of original works of authorship originally treated and developed as trade secrets at Company or its providers’ expense. All right, title and interest, including all Intellectual Property in the Software or any part thereof or in any copies thereof created hereunder, in any form or medium whether now known or hereafter devised are and shall remain the sole and exclusive property of Company or its providers, and Licensee is not by reason of this Agreement acquiring any rights therein, other than as expressly provided in this Agreement. “Intellectual Property” means rights in and to patents, trademarks, service marks, trade and service names, copyrights, database rights and design rights (whether or not any of them are registered and including applications for registration of any of them), know-how, moral rights, trade secrets, confidential and proprietary information, all rights or forms of protection of a similar nature or having similar or equivalent effect to any of them which may subsist anywhere in the world now existing or hereafter arising.
- 3.2 Copies. Licensee may make copies of the Software solely for back-up purposes. Licensee may make reasonable number of copies of the documentation accompanying the Software only as necessary for its internal business use of the Software.
- 3.3 Proprietary Notices and Attribution. Licensee shall not delete or alter any of Company or its providers’ proprietary information, copyright, or trademark notices, if any, appearing on the Software or accompanying documentation whether in machine language or human readable form.
- 3.4 Infringement. Licensee shall notify Company of any breach and all infringements or illegal uses of the Company or its providers’ Intellectual Property that come to Licensee’s attention. Company shall have the right, but not the obligation, to prosecute and conduct all proceedings or actions involving Company or its vendors’ Intellectual Property rights and to take any actions that it may deem proper or necessary for the protection of Intellectual Property rights. Upon Company’s request, Licensee shall cooperate fully with Company in connection with any such actions.
- 3.5 Injunctive Relief. The Software and the associated Intellectual Property are of an original and unique character, and therefore losses caused by a violation or threatened violation of this Agreement cannot be adequately compensated by money damages alone. Accordingly, Company may seek an injunctive relief in the event of a violation or threatened violation as well as money damages and such other appropriate relief in law or in equity. However, nothing herein shall be construed as a waiver or prohibition against any other legal or equitable remedies in the event of a breach of a provision of this Agreement.
4. Reports and Audits
- 4.1 Reporting. Upon Company’s written request, Licensee shall supply usage reports in the format requested by Company certifying the number of installations, downloads and the number and names of authorized users or anyone else having access to the Software and other details reasonably necessary for Company to verify that the restrictions on the access and use of the Software have been observed.
- 4.2 Audit. During the term of this Agreement and for twelve (12) months thereafter, upon request and after reasonable notice, but in no event later than fifteen (15) calendar days, Company or its representatives shall have the right to audit Licensee’s use of the Software either electronically or otherwise. Such audit shall take place not more than once every twelve (12)-month period. In the event under-reporting of usage or underpayment of fees is discovered, Licensee shall bear the cost of the audit and shall promptly repay Company all underpaid fees subject to permissible interest rate and promptly bring its use into compliance with this Agreement. In addition to the foregoing payment rights, Company reserves the right to other remedies whether under this Agreement or at law or in equity.
- 4.3 Confidentiality. Any information related to Licensee, that is obtained through Licensee’s reports or in the course of an audit, shall be maintained in confidence by Company or its auditors, except as necessary to enforce Company’s rights hereunder.
5. Term and Termination
- 5.1 Term. This Agreement commences as of the date hereof and shall continue in effect until terminated.
- 5.2 Termination. Licensee may terminate the Agreement any time by either: (i) notifying Company in writing; or (ii) destroying the Software together with all copies. The Agreement will also terminate immediately upon Licensee’s failure to comply with the terms and conditions hereof. Further, in the event of termination or expiration of an agreement between Company and its provider with respect to all or certain parts of the Software, Licensee’s right to access and use the Software may terminate or expire without advance notice.
- 5.3 Effect of Termination. Upon termination of this Agreement, Licensee shall, unless otherwise instructed by Company: (i) promptly terminate all access to the Software and cease any use thereof; (ii) no later than ninety (90) days following termination, destroy, and remove from its systems, all versions and copies of the Software including backup material, except to the extent Licensee is required to retain such information solely to comply with regulatory record keeping requirements; and (iii) certify to Company, in writing, the accomplishment of the foregoing.
6. Limited Warranty
- 6.1 Limited Warranty. Company warrants that Software will conform in all material respects to the accompanying documentation for thirty-(30) days following initial download or installation (the “Warranty Period”). Specifically excluded from the scope of this warranty are issues affecting the Software due to: (i) electrical work or problems external to the Software; (ii) modifications to the Software other than those performed or authorized in writing by Company; (iii) accident, negligence, or misuse; (iv) operation that is not authorized under this Agreement including operation outside the minimum hardware and software configurations or failure to meet the requirements set forth in the Purchase Order; or (v) functionality of or interoperability issues with third party software applications. During the Warranty Period, Licensee shall notify company of any material non-conformity of the Software to the accompanying documentation. Licensee’s sole and exclusive remedy and Company’s entire liability shall be to use reasonable commercial measures to correct the material non-conformity or to provide a workaround. Any replacement Software will be warranted for the remainder of the original Warranty Period or an additional fourteen (14) days, whichever is longer.
- 6.2 Disclaimers. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, NONE OF COMPANY OR ITS PROVIDERS MAKE ANY REPRESENTATIONS OR WARRANTIES AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE (WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED), WARRANTIES OF TITLE AND NON-INFRINGEMENT, ANY IMPLIED INDEMNIFICATION OBLIGATIONS, OR OTHER WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, WITH RESPECT TO THE SOFTWARE OR ANY COMPONENTS THEREOF OR THE RESULTS OBTAINED FROM THEIR USE, ANY DECISIONS MADE OR ACTIONS TAKEN IN RELIANCE THEREUPON OR AS TO THE PERFORMANCE THEREOF (WHETHER PERFORMED IN WHOLE, PART OR NOT AT ALL). NONE OF COMPANY OR ITS PROVIDERS GUARANTEE THE ADEQUACY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE SOFTWARE OR ANY COMPONENTS THEREOF OR THAT IT WILL BE ERROR FREE OR FREE FROM COMPUTER VIRUSES OR OTHER INFIRMITY OR CORRUPTION. NONE OF COMPANY OR ITS PROVIDERS SHALL BE SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY ERRORS, OMISSIONS OR DELAYS THEREIN. THE SOFTWARE AND ALL COMPONENTS THEREOF ARE PROVIDED ON AN “AS IS” BASIS AND LICENSEE’S USE THEREOF IS AT LICENSEE’S OWN RISK.
- 6.3 Exception. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES; THEREFORE, THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE.
- 6.4 Third Party Components.
- 6.4.1 6.4.1. Without limiting the generality of the foregoing disclaimers, Licensee acknowledges and agrees that certain third-party software may be included for Licensee to load with the Software offering. Such third party components are made available to Licensee subject to and conditioned upon certain restrictions placed by their respective manufacturers, and some of these conditions and restrictions, are set forth in the THIRDPARTYTERMS file posted on https://computhink.com/download/eula-provisions-of-licensors-to-computhink/, as updated from time to time. BY INSTALLING SUCH THIRD-PARTY COMPONENTS, LICENSEE ACKNOWLEDGE THAT SUCH COMPONENTS ARE PROVIDED BY COMPANY ON AN “AS-IS” BASIS FOR LICENSEE’S CONVENIENCE AND THAT SUPPORT AND WARRANTIES, IF ANY, ARE ONLY OFFERED DIRECTLY BY THEIR RESPECTIVE SOFTWARE MANUFACTURERS.
- 6.4.2 Licensee further agrees, to indemnify, hold harmless, and defend Company and its resellers, agents and vendors and its and their respective officers, directors, employees, consultants, agents and service providers, from and against any and all liabilities, losses, damages, costs and expenses (including attorneys’ fees and expenses) arising out of or related to any claims, actions or demands that arise or result from the use of such third party components or from the violation of any additional terms and conditions set forth in the THIRDPARTYTERMS file.
7. Limited remedies
- 7.1 Limitation of Liability. During the Warranty Period, Company or its resellers, agents or vendors’ sole obligation and entire liability under this warranty shall be, at its or their option, to correct or replace materially non-conforming Software or, if in their sole discretion, a correction or replacement is not practicable, to terminate the license and provide to Licensee a refund of the license fees (excluding implementation, installation, training or other professional services).
- 7.2 Disclaimer of Consequential Damages. IN NO EVENT SHALL COMPANY, ITS RESELLERS, AGENTS OR PROVIDERS BE LIABLE HEREUNDER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOST TIME OR GOODWILL, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
- 7.3 Exception. SOME STATES OR COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; THEREFORE, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO LICENSEE.
- 7.4 Cap. IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF COMPANY, ITS RESELLERS, AGENTS OR PROVIDERS FOR ANY AND ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED, IN THE AGGREGATE, THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE LICENSE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM (BUT EXCLUDING IMPLEMENTATION, INSTALLATION, TRAINING OR OTHER PROFESSIONAL SERVICES PAID BY LICENSEE).
- 7.5 Licensee Indemnity. Licensee shall, at its sole cost and expense, defend, hold harmless and indemnify Company, its resellers, agents and vendors and its and their respective officers, directors, employees, consultants, agents and service providers from and against all losses, liabilities, costs, damages and expenses, including but not limited to reasonable legal fees and expenses, incurred or suffered by any of the foregoing Company indemnitees as a result of any claims, actions or demands: (i) of infringement or violation of Intellectual Property arising out of or in connection with unauthorized use of the Software or breach of this Agreement by Licensee or its representatives (including authorized users); (ii) Licensee’s modifications to the Software or part thereof, or combinations thereof with Licensee’s or third party products, services, data, software, documentation or other materials; or (iii) arising out of or in connection with Licensee’s systems, products, services or business.
- 7.6 Actions by Company. If the Software is enjoined for any reason or if Company believes it may be enjoined Company, its resellers, agents or vendors shall have the right, at its or their own expense to take action to: (i) to procure for Licensee the right to continue using the Software or any parts thereof; (ii) to modify the Software or any parts thereof or re-direct the manner in which they are used such that they become non-infringing; (iii) to replace the Software or any parts thereof, as applicable with non-infringing materials, or if none of the foregoing is commercially reasonable, terminate the Agreement and refund on a pro-rata basis of the fees paid by Licensee for the period the Software was not available or usable.
8. Export Restrictions.
Licensee agrees and acknowledges that the Software and any technical data, provided by Company under this Agreement are subject to United States laws and regulations, and if rightfully obtained outside the United States may be subject to export or import regulations in other countries. Such laws and regulations may restrict or prohibit re-sales or other transfers to certain countries, to certain parties or for certain intended uses. Licensee represents, warrants and covenants that no Software or technical information provided hereunder will be exported, transferred, or disclosed contrary to applicable laws and regulations, including without limitation, regulations of the U.S. Department of Commerce or the U.S. Department of the Treasury. Licensee further represents and warrants that it is not located in any restricted country or on any list of restricted parties and that it will not use the Software for any purposes prohibited by United States law or any other applicable laws. Licensee shall indemnify and hold the Company its resellers, agents and vendors and its and their respective officers, directors, employees, consultants, agents and service providers harmless from and against all losses, liabilities, costs, damages and expenses, including but not limited to reasonable legal fees and expenses arising from, or relating to, any breach under this section.
- 9.1 Assignment. Licensee shall not assign, novate or otherwise transfer this Agreement nor any rights granted hereunder whether voluntarily or by operation of law or through change of control, including by way of sale of stock, assets, merger or consolidation or otherwise without the prior written consent of Company, which consent shall not be unreasonably withheld. Any action contrary to this provision shall be null and void and of no legal effect. Subject to the foregoing, this Agreement shall be binding upon the parties and their respective legal successors and permitted assigns.
- 9.2 Amendment. This Agreement may only be modified or amended in a writing, which makes express reference to this Agreement and signed by a duly authorized representative of each party. No other act, communication, representation, document, usage custom or practice shall be deemed to modify or amend this Agreement.
- 9.3 No Waiver. No failure or delay on the part of neither party in the exercise of any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.
- 9.4 Severability. In the event that any court having competent jurisdiction over the interpretation of this Agreement shall finally determine that one or more of the provisions contained in this Agreement shall be unenforceable in any respect, then such provision shall be deemed limited and restricted to the extent that such court shall deem it to be enforceable, and, as so limited or restricted, shall remain in full force and effect. In the event that any such provision or provisions shall be deemed wholly unenforceable, such provision shall be deemed deleted from this Agreement, and the remaining provisions shall remain in full force and effect. Any such judicial interpretation requiring limitation or deletion of a provision shall be valid only in the jurisdiction in which such interpretation is made.
- 9.5 Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving effect to its principles or rules of conflict of laws to the extent such principles or rules are not mandatorily applicable by statute and would require or permit the application of the laws of another jurisdiction, as to all matters, including but not limited to matters of validity, construction, effect, performance and remedies. In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. Further, UCITA whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified shall not apply to this Agreement and is hereby disclaimed.
- 9.6 Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The Parties hereto hereby consent to personal jurisdiction and venue of such arbitration proceedings exclusively in DuPage County, Illinois. Any arbitration award shall include an award of reasonable legal fees and costs to the prevailing party.
- 9.7 Restricted Government Rights. The Software is provided with RESTRICTED GOVERNMENT RIGHTS. If Licensee is a branch or agency of the United States Government, the following applies: All components of the Software have been created and developed at private expense and provided with “limited rights” as set forth in this Agreement. Any software, data or documentation provided hereunder is comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in the applicable civilian and military Federal acquisition regulations and any supplements thereto. All United States Government end users acquire the Software with only those rights explicitly set forth in this Agreement including without limitation with respect to use, duplication or disclosure.
- 9.8 Survival. Rights and obligations under this Agreement, which by their nature should survive will remain in effect after termination or expiration of this Agreement. No termination of this Agreement will relieve either party from liability arising from any breach of this Agreement occurring on or prior to the date of termination.
- 9.9 Headings. Section headings in this Agreement are for convenience only and shall not affect the interpretation of any provision of this Agreement.
- 9.10 Licensee Questions. Should you have any questions concerning this Agreement, or if you desire to contact Company for any reason, including with respect to warranty or refund related issues please write, email, fax or call Computhink Inc., 151 East 22nd Street, Lombard, Illinois, 60148 USA. Telephone: 630-705-9050; fax: 630-705-9065; e-mail firstname.lastname@example.org.