End User License Agreement

BY CLICKING ON THE “ACCEPT” BUTTON, YOU (EITHER ON BEHALF OF YOURSELF AS AN INDIVIDUAL OR ON BEHALF OF AN ENTITY AS ITS AUTHORIZED REPRESENTATIVE, IN WHICH CASE THE ENTITY TAKES ON ALL RESPONSIBILITIES AND LIABILITIES AS THE “CLIENT” HEREIN AND HEREBY) AGREE TO ALL OF THE TERMS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”) REGARDING YOUR USE OF THE SOFTWARE. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT DO NOT INSTALL, COPY OR OTHERWISE USE THE SOFTWARE.  THIS AGREEMENT IS HEREBY ENTERED INTO AS OF THE DATE YOU ACCEPT THESE TERMS BY AND BETWEEN CLIENT AND ACTIV CERBERUS HOLDINGS, LLC A REDWOOD COMPANY DOING BUSINESS AS “CERBERUS” (THE “COMPANY”) AND ITS AFFILIATES. CLIENT AND COMPANY ARE HEREINAFTER REFERRED TO AS “PARTIES” AND INDIVIDUALLY REFERRED TO AS THE “PARTY”.

1. Definitions and Interpretation of this Agreement

1.1 In this Agreement all capitalized terms shall have the following meaning, unless the context clearly requires otherwise:

“Affiliate” means in respect of a Party any legal entity that directly or indirectly controls, is controlled by, or is under common control with such Party (“control” meaning the possession of the power to direct or cause the direction of the management and the policies of a legal entity, whether through the ownership of a majority of the outstanding voting rights or by contract or otherwise).

“Agreement” means the terms and conditions of this End User License Agreement, including any and all amendments hereto and any schedules as mentioned herein.

“Client” means the legal entity that has accepted the terms and conditions of this Agreement.

“Commencement Date” means the date on which the Software is made available to the Client.

“Documentation” means Company’s user guides for the Software and any other documents made available by Company relevant to the Software being licensed.

“Effective Date” means the date of Client accepts the terms and conditions of this Agreement.

“Improvements” means any and all modifications, changes, updates, upgrades, alterations, enhancements and derivative works to the Software or Documentation, regardless of by whom such modifications, changes, Updates, Upgrades, alterations, enhancements and derivative works are made.

“Software” means the software solution (in object code form unless stated otherwise) provided by Company under this Agreement.

“Privacy Policy” means a policy which describes the collection, use, and disclosure of personal data provided to Company and is available on https://www.cerberusftp.com/privacypolicy/. Company has the right in its sole discretion to amend the Privacy Policy at any time.

“Source Material” means the complete, human-readable computer programming source code and all related specifications, documentation (including, if applicable and available, any and all flow charts, schematics, statements of principles of operations, and architecture standards), comments, procedural code, scripts, and other materials for the Software, including any Improvements thereto.

“Support Services” means the provision of technical services and Updates and Upgrades as detailed in Section 14 of this Agreement and the Support Guide.

“Support Guide” “means Company’s standard Support Guide available to Client upon request.

“Updates” means minor releases of the Software containing bug fixes or error corrections that Company provides generally to its clients during the term of the agreement and subject to the payment of the relevant fees. Updates are generally indicated by a change in the numeric identifier for the Software in the digit to the right of the first decimal point or a change to the right of the second decimal point (e.g., a change from version x.x.x to x.y.x or from version x.x.x to x.x.y).

“Upgrades” means major releases of the Software containing new enhancements, functionality or features that Company provides generally to its clients during the term of the agreement and subject to the payment of the relevant fees. Upgrades are generally indicated by a change in the numeric identifier for the Software in the digit to the left of the first decimal point (i.e., a change from version x.x.x to y.x.x).

“User” means any individual or automated remote connection authorized to use the Software in accordance with the terms and conditions of this Agreement and that might be authorized to use one or more Company system privileges.

2. Scope of this Agreement. During the Term, Company agrees to grant Client a license to use the Software and/or Support Services subject to the terms and conditions of this Agreement. The Software shall have the features and specifications set forth in the Documentation. Company is obliged to maintain the contractually agreed features and specifications of the software as set forth in the Documentation. In order to fulfill its obligation, Company shall take all reasonable and necessary measures required in accordance with industry standards.

3. Ordering of Software and Support Services

In order to receive the Software, the parties shall enter into an Order Form that will reference the exact Software, Support Services, and the Term (defined below).  The Order Form shall constitute a part of this Agreement. To the extent there is a conflict between this Agreement and the Order Form, the Order Form shall control.   If Client enters into an ordering document with a Company-authorized reseller (a “Reseller”), this Agreement will remain directly between Client and Company, which will include the payment terms as agreed in the Order Form and Section 4 of this Agreement. Payment terms agreed between Client and a Reseller are not binding on Company nor any additional terms or conditions set forth on any ordering document or purchase order between Client and Reseller unless approved by an authorized representative of Company. No Reseller is authorized to modify the terms and conditions of this Agreement.

4. Payment Provisions.

4.1 Fees. The Client shall pay the fees set forth in the Order Form (the “Fees”). Fees and other charges are exclusive VAT. Client shall be responsible for all duties or taxes (except taxes based on Company income). All Fees are exclusive of any taxes. Client agrees to pay any applicable value added, goods and services, sales, use, gross receipts, or other transaction taxes, fees, charges or surcharges, or similar amounts (“Applicable Tax”) that are owed under this Agreement and which Company is permitted to collect from Client under applicable law. Company will exempt Client from paying the Applicable Tax only when Client provides Company with a validly signed tax exemption or equivalent certificate in any jurisdiction where such certificates are available. All payments will be made in cleared funds, without any deduction or set-off and free and clear of and without deduction for or because of any taxes, levies imports, duties, charge, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal, or other authority as required by law.

 4.2 Late Payment. In the event the Fee has not been paid after the due date has expired, the Client shall be in default, without the requirement of sending a default written notice. The unpaid Fee shall be to subject to a late payment charge equal to one and one-half percent (1 ½%) per month starting from the due date until such amount is paid or the maximum amount allowed by applicable law, whichever is higher. If Client fails to pay the amount after a notice of default has been issued, Company shall have the right to refer the debt for collection, in which case Client must pay all legal and additional costs charged by external parties. The foregoing shall be without prejudice of any and all other legal and contractual rights, which shall remain reserved by Company. Company, at its sole discretion, reserves the right to set off any amounts owed and overdue. Client shall not have the right to suspend any payment to Company and to set off any amounts owed.

4.3 Suspension of performance. Company reserves the right to suspend the performance of its obligations as set forth in this Agreement and the applicable Order Form in the event Client is in breach with the performance of the obligations as set forth in this Agreement, including but not limited to the payment obligation, Company shall first give Client thirty (30) days’ written notice of its intention to suspend its performance. If Client fails to remedy such breach within the period, Company shall have the right to suspend Client’s limited right to use the Software and/or the performance of the Support Services immediately.

5. Term and Termination

 5.1 Term. This Agreement starts upon Client’s acceptance of the terms of this Agreement and will continue for an indefinite period until all software subscriptions hereunder have expired or upon termination of this Agreement in accordance with the provisions of this Section 5.  The term of a software subscription shall be as specified on the Order Form (the “Term”).

5.2 Termination

5.2.1. Each Party shall have the right to terminate the Agreement and/or Order Form for cause upon a thirty (30) days prior written notice to the other Party, if Party commits a material breach of this Agreement and/or Order Form which is capable of remedy and such other Party fails to remedy the relevant breach within thirty (30) days of written notice given to it by the terminating Party specifying such breach and requiring the remedy thereof.

5.2.2. Each Party shall have the right to terminate the Agreement and/or Order Form immediately upon written notice to the other Party in the following events:

a) if the other Party has filed a request for a moratorium or its own bankruptcy,
b) if the other Party has been declared bankrupt,
c) if the other Party does not cure a material breach of this Agreement within the notice period as permitted in Section 5.2.1 if and to the extent such cure is reasonably feasible,
d) if the assets of the other Party are subject to attachment of material substance, or
e) any similar event to the events mentioned in this Section 5.2.2. occurs under the law of any other jurisdiction.

5.2.3. All termination notices as referred to in this Section 5.2. must be given in accordance with Section 12.2.

5.3 Effects of Expiry or Termination. Upon termination or expiry of the Term the Client shall forthwith: (i) deactivate any and all license keys and cease using the applicable Software and Documentation; (ii) certify in writing to Company that it has destroyed and/or returned to Company the Software and Documentation and any copies thereof. This requirement applies also to copies of the Software and Documentation in all forms, partial and complete, in and on all types of media and computer memory, and whether or not modified and merged into other materials. Termination of this Agreement shall not have any effect on the Order Form(s) that are in effect on the date of termination. This Agreement shall continue to govern the relation between Parties in relation to such Order Form entered prior to the termination of this Agreement, until the Order Form expires or is terminated separately. Termination of this Agreement shall not limit nor restrict either Party from pursuing any other remedies available to it, including, but not limited to, injunctive relief where appropriate. Termination of this Agreement shall not relieve Client of its obligations to pay all fees and charges which may have accrued prior to such termination. In addition, the Parties’ rights and obligations under Section 4, 5.3, 6, 7, 8, 9, and 12 shall survive the termination of this Agreement.

6. Representations, Warranties and Remedies

6.1 Representations.

Each Party represents that it has validly entered into this Agreement and is duly authorized and has the legal power to enter into and perform this Agreement.

6.2 Warranties and Disclaimers.

6.2.1. During the Term of this Agreement, Company warrants that the Software, unless modified, shall be capable of performing the functions as described in the Documentation.

6.2.2. Company expressly does not and cannot warrant that the Software will meet Client’s requirements or operate in the combinations which may be selected for the use by Client, that the operation of the Software will be uninterrupted or error free, or that all errors will be corrected. Company does not warrant the Software for defects discovered in any Software that have been modified or enhanced without Company’s prior written consent, unless the changes are not substantial, do not involve the defective part or component, do not entail further uses for the Software beyond those directly contemplated, and did not cause or contribute to any defect.

6.2.3. THE WARRANTIES STATED IN SECTION 6.2.1 ARE CLIENT’S SOLE AND EXCLUSIVE WARRANTIES PERTAINING TO THE SOFTWARE AND/OR SUPPORT SERVICES, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS SUPPLIERS HEREBY DISCLAIM ANY AND ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, INFORMATIONAL CONTENT OR ACCURACY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE OR SUPPORT SERVICES AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. A WARRANTY FOR LOSS OF DATA IS NOT IMPLIED.

6.3 Exclusive Remedy. FOR ANY MATERIAL BREACH OF THE WARRANTIES CONTAINED IN SECTION 6.2.1, CLIENT’S SOLE AND EXCLUSIVE REMEDY, IN CONJUNCTION WITH CLIENT’S RIGHT TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 5.2.2, AND COMPANY’S ENTIRE LIABILITY FOR BREACH HEREOF, SHALL BE THE REFUND OF ANY PORTION OF THE FEES UNUSED AND PRE-PAID BY CLIENT FOR EVERY MONTH REMAINING DURING THE THEN APPLICABLE TERM FOLLOWING THE DATE AFTER WHICH CLIENT IS UNABLE TO USE THE SOFTWARE AS WARRANTED.

7. Intellectual Property

 7.1 Ownership. Client acknowledges that Company and/or its Affiliates are the sole owner of all intellectual property to the Software as well as the derivative works thereof, and anything developed or delivered by Company under this Agreement. The structure, organization and code of the Software, Documentation and Source Material are the valuable trade secrets and Confidential Information of Company. The Software are protected by copyright, including without limitation by all applicable United States copyright laws, the Dutch Copyright Act (in Dutch: Auteurswet) and/or the German Copyright Act (in German: Urhebergesetz), copyright conventions and international treaty provisions as well as any and all other applicable laws and regulations in the country in which the Software is being used. Client acknowledges that Company retains all right, title and interest in and to all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the Software and Documentation. Client shall not take any actions adversely affecting Company’s intellectual property rights in the Software. Except as expressly stated above, this Agreement does not grant Client any intellectual property rights in the Software and Client hereby agrees to waive any such rights that may be afforded to Client by applicable law. Any notifications of claimed copyright infringement shall be sent to Company per registered mail or by e-mail to legal@redwood.com.

7.2 Third Party Infringement

 7.2.1. Company shall indemnify and hold Client harmless and shall defend or settle any claim, suit or proceeding brought against Client by a third party that is based upon a claim that the content contained in the Software or Documentation infringes a copyright or violates an intellectual property right protected under and by the laws of a state which is party to the WIPO Copyright Treaty (“Claim”), but only to the extent the Claim arises directly out of the use of Software within the scope of this Agreement and is subject to the limitations set forth below, except as otherwise expressly provided.

7.2.2. Client shall notify Company in writing of any Claim within ten (10) business days after Client first receives notice of the Claim. Client shall provide to Company at no cost with such assistance and cooperation as Company may reasonably request from time to time in connection with the defense of the Claim. Company shall have sole control over any Claim (including, without limitation, the selection of counsel and the right to settle on Client’s behalf on any terms Company deems desirable in the sole exercise of its discretion). Client may, at Client’s sole cost, retain separate counsel and participate in the defense or settlement negotiations. Company shall pay actual damages, costs, and legal fees awarded against Client (or payable by Client pursuant to a settlement agreement) in connection with a Claim to the extent such direct damages and costs are not reimbursed to Client by insurance or a third party.

7.2.3. If the Software becomes the subject of a Claim or its use is enjoined, or if in the opinion of Company’s legal counsel the Software is likely to become the subject of a Claim, Company shall attempt to resolve the Claim by using commercially reasonable efforts to modify the Software or obtain a license to continue the using the Software. If in the opinion of Company’s legal counsel the Claim, the injunction or potential Claim cannot be resolved through reasonable modification or licensing, Company, at its own discretion, may terminate this Agreement, and will, upon deactivation of the Software, which Client agrees to perform immediately, refund to Client on a pro rata basis any Fee paid in advance by Client to Company. Any further compensation of the Client is excluded.

7.2.4. Company shall not be liable for any Claim based upon: (a) use of a modified release of the Software or Documentation if such infringement would have been avoided by the use of an unmodified release of the Software or Documentation; and (b) the combination, operation or use of the Software furnished under this Agreement with software, data, or other materials not furnished by Company if such infringement would have been avoided by the use of the Software without such software, data, hardware or other materials. The foregoing constitutes Company’s sole and exclusive liability for third party claims based on intellectual property infringement and the foregoing constitutes Client’s sole remedy for third party claims based on intellectual property infringement.

8. Non-Disclosure; Client Data

8.1 Confidential Information.  Following the execution of this Agreement, the Parties may have access to information that is confidential (“Confidential Information“). Confidential Information shall include (without limitation) the Software and Documentation, Source Material, all know-how, techniques, ideas, principles and concepts which underlie elements of the Software, Documentation and/or Source Material, the terms and the pricing under this Agreement and all information clearly identified as confidential or if based on the nature of the information it may be considered as confidential.

8.2 Exclusions. Confidential Information shall not include information which:

1. is or becomes a part of the public domain through no act or omission of the other Party; or
2. has been in the lawful possession of the other Party prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; or
3. is lawfully disclosed to the other Party by a third party without restriction or disclosure; or
4. is independently developed by the other Party without breach of this Agreement; or
5. is disclosed as required by applicable law.

8.3 Use of Confidential Information.  The Parties agree that the Confidential Information disclosed by one Party to the other Party shall be kept strictly confidential for the term of this Agreement and thereafter. Such Confidential Information shall be maintained and protected by the other Party with the same effort used to protect its own Confidential Information and with at least a reasonable degree of care. Except to the extent required to perform and take the benefit of this Agreement, both Parties shall not to duplicate in any manner the other Party’s Confidential Information or to disclose it to any third party or any of their employees not having a need to know and shall do so solely for the express purposes of this Agreement. The Parties further shall not to use the other Party’s Confidential Information for any purpose other than the performance of this Agreement.  In the event, Client or Company discloses any Confidential Information to any Affiliate or contractor in accordance with the foregoing, such disclosure shall be made on a confidential basis. The disclosing party shall ensure that the relevant recipient complies with this Section 8 as if it were directly bound by it. The Parties understand and agree that monetary damages may not be an adequate remedy for breach of the confidentiality obligations set forth in this Section 8 and that the disclosing party will be entitled to seek equitable relief, including injunction and specific performance, for any such breach, without limiting the disclosing party’s right to any other remedies it may have at law.

8.4 Use of Client Data. Upon Client’s signing of the Order Form, Client authorizes and expressively permits the collection, use and disclosure of information collected by Company for the purposes provided for in this Agreement and compliant with the Privacy Policy. Client shall be responsible for client data and entering it into Company’s customer support website. Client shall be solely responsible for the collection and maintenance of all personal data contained in the client data in compliance with applicable data privacy and data protection laws.  Client shall take all reasonable efforts and will be responsible for monitoring that personal data will not be shared with Company by its Users as Company does not require any personal data to perform its obligations under this Agreement.  The Parties shall observe all applicable laws relating to the protection of personal data. If and to the extent Company processes personal data on behalf of Client acting as a processor the Parties will enter into a mutually agreeable data processing agreement.

9. Limitation of Liability

9.1 Limitation of Liability.  EXCEPT FOR PERSONAL INJURY, DAMAGE TO TANGIBLE PROPERTY, AND DAMAGES AS A RESULT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR LIABILITY THAT CANNOT BE LIMITED BY LAW, COMPANY’S ENTIRE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO ANY PROVISION OF THIS AGREEMENT, TORT OR ANY OTHER LEGAL THEORY, SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY CLIENT FOR THE USE OF THE SOFTWARE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT CAUSING THE DAMAGES. THE DISCLAIMERS, AS INCLUDED IN SECTION 6.2.2, AND THE LIMITED LIABILITY ABOVE ARE FUNDAMENTAL TO THIS AGREEMENT BETWEEN COMPANY AND CLIENT.

 9.2 Exclusion of Liability

9.2.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL EITHER PARTY (NOR ITS RESPECTIVE AFFILIATES OR COMPANY’S SUPPLIERS) BE LIABLE FOR: (A) ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS DUE TO BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, LOST SAVINGS OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY CLAIM OR DEMAND MADE BY A THIRD PARTY AGAINST CLIENT.

9.2.2 FOR THE AVOIDANCE OF DOUBT, NEITHER PARTY EXCLUDES NOR LIMITS ITS LIABILITY FOR DAMAGES ARISING UNDER: (A) UNAUTHORIZED USE OF SOFTWARE; (B) UNAUTHORIZED DISCLOSURE OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION; (C) ANY INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY; AND (D) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

10. Force Majeure. Neither party shall be responsible for failure or delay in performance by events beyond their reasonable control, including but not limited to, acts of God, Internet outage, failure of third-party providers, denial of service attacks, malicious conduct, utility failures, power outages, governmental acts terrorism, war, fires, earthquakes and other disasters (each a “Force Majeure”).  Notwithstanding the foregoing, Client shall in any case be liable for its payment obligations in relation to purchased Software and/or Services.

11. Governing Law and Forum. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non- contractual disputes or claims) shall be governed and construed in accordance with the laws of the State of Delaware, United States of America. The Parties specifically exclude application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.  The Parties hereby irrevocably submit to the exclusive jurisdiction of the State and Federal Courts located in the State of Delaware, to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims). Neither Party shall contest the venue for the adjudication of disputes on the basis of inconvenient forum.

12. Other Provisions

12.1. Entire Agreement. This Agreement and any referenced documents or other amendments contains the entire agreement and understanding of the Parties with respect to the subject matter hereof, and supersedes all prior written and oral understandings of the Parties with respect to the subject matter hereof. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and explicitly signed by both Parties. This Agreement will prevail over any general terms and conditions of any purchase order or any other similar ordering document issued by Client, which will have no force and effect, even if Company accepts or does not otherwise reject the purchase order. The singular shall include the plural and vice versa, each gender shall include the other gender.  The headings of this Agreement are for ease of reference only and shall not affect the interpretation or construction of the Agreement. 

12.2 Communications. Any notice or written communication as set forth by this Agreement shall be in writing and shall have been properly given by either Party to the other if sent by email, certified or registered mail, or by overnight courier to the address shown in the Order Form and the registered address for Client, or such other address as the Parties may designate by notice given in the manner set forth above. Such notice shall be deemed received within five (5) business days if sent by registered mail. Notice may be deemed by email when acknowledged by the addressee by return email or otherwise in writing.  For the avoidance of doubt a computer generated automated ‘Out of Office” response or such similar response does not constitute a return email for purposes of this Section. For the avoidance of doubt, electronic signatures that comply with applicable law are deemed original signatures.

12.3 Severability.  If, for any reason, any provision of this Agreement is held invalid or otherwise unenforceable, such invalidity or unenforceability shall not affect the remainder of this Agreement, and this Agreement shall continue in full force and effect to the fullest extent allowed by law.

12.4 No waiver. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or any subsequent default or breach.

12.5 Export. Client agrees to comply fully with all relevant and applicable export laws and regulations (“Export Laws”) to assure that the Software nor any direct product thereof are: (1) exported, directly or indirectly, in violation of Export Laws; or (2) are intended to be used for any purposes prohibited by such   Export Laws, including, without limitation, nuclear, chemical or biological weapons proliferation.

12.6 Transfer and Assignment.  The rights granted to Client in this Agreement are personal to Client and may not be assigned, pledged or transferred to a third party in whole or in part, by operation of law or otherwise, without the previous written consent of Company.

12.7 Relationship Between the Parties.  Company shall be an independent contractor and neither Company not any of its employees or agents shall be an employee, agent, partner or joint employee of Client.  Company assumes sole responsibility for the withholding and payment of all appropriate federal, state and local taxes and for complying with all federal, state and local employment laws including workers’ compensation, unemployment insurance and wage and hour laws.

13. Software

13.1 Limited Usage Rights

13.1.1. During the Term, Company grants Client a non-exclusive, non-assignable and/or non-transferable, non-sub-licensable, limited right and license to use the Software solely for Client’s own internal business purposes including the right to:

1. load, run, store, transmit and execute the Software and install the Software;
2. copy the Software for archival or back-up purposes only. All archival or back-up copies of the Software are subject to the provisions of this Agreement and all Company, or its licensor’s titles, trademarks, copyrights and restricted rights notices shall be reproduced on such copies; and
3. combine the Software with other software products, provided that the Software or any portions thereof included in such derivative software products both: (i) remain the property of or vest in Company or its licensor; and (ii) are and remain subject to the provisions of this Agreement.

13.1.2. Company shall agree to permit and allow third party contractors and/or service providers of Client to access to the Software during the Term of this Agreement solely to the extent reasonably required to provide services to Client for Client’s internal business purposes only. In such an event, Client shall be responsible and liable for any and all use by such third-party contractors and/or service providers.

13.1.3. Client acquires only the right to use the Software, Documentation and does not acquire any rights of ownership, or any other implied rights whatsoever. No rights other than those expressly set forth herein shall pass to Client. All rights, title and interests in or to the Software and the Documentation and the intellectual property rights therein, including, but not limited to: (a) any and all Improvements thereto, and (b) any and all copyrights, trademarks, patents, patent rights and proprietary marks, names and logos thereto shall at all times remain the exclusive property of or vest on creation in Company or its licensor. Client agrees to execute all such documents as may become reasonably necessary for the purpose of vesting or assigning any intellectual property rights in the Improvements to Company or its nominee. Client shall not knowingly do anything to impair the proprietary rights of Company or the applicable third-party owners thereof.

13.1.4. Client shall not seek to acquire or register any rights in the proprietary marks, copyrights or information of Company. Client shall notify Company immediately if it discovers Improvements of the Software and/of the Documentation.

13.2 Installation and Documentation.  Installation of the Software will be done by Client. Some installations require connection to the internet in order to properly perform the installation. Client is responsible for obtaining internet connectivity and Company will not be responsible for unsuccessful installations due to failure of internet connectivity by Client. Except as otherwise agreed to in writing, Company assumes no responsibility under this Agreement for converting Client’s data files for use with the Software. Company shall make available to Client with the installation of each Software the Documentation for each such Software. Copying of such Documentation and/or other reference materials is not permitted unless Company consents in writing to such copying.

13.3 Client Restrictions

13.3.1 Client shall not electronically distribute, timeshare, operate a service bureau or subscription service, operate as a software as a service regardless of whether offered as a stand-alone service or a cloud-based service, use for third party training services or distribute or market the Software by interactive cable or remote processing services or otherwise.

13.3.2. To the maximum extent permitted by law, Client shall not attempt, or permit or encourage others to attempt, to copy (except as permitted in 13.1.1.b. above), dump, trace, translate, modify, alter, adapt, change, disassemble, decipher or decompile, nor create or attempt to create, by reverse engineering or otherwise, decrypt or discover the source code from the object code of the Software or use the Software to create a derivative work. Client shall have no right to use any code made available by Company other than that for which a license has been acquired. Client is granted a non‑exclusive license to use the Documentation in support of the authorized use of the Software. Client may not use the Software for purposes of benchmarking, collecting and publishing performance data or analysis, or any other competitive purposes.

14. Support and Maintenance Services

14.1 Support Services

14.1.1. Support Services are part of the subscription supplied under this Agreement and shall be provided to Client in accordance with this Section 14 and the Support Guide. Company has the right in its sole discretion to amend the Support Guide at any time upon publication via Company customer support portal, provided that Company will not materially reduce the level of support offered in connection with the Software during the Term of this Agreement. During the Term of this Agreement, Company shall use all reasonable efforts to provide identification and resolution of bugs or errors reported by Client in the then supported releases of the Software. Client agrees to cooperate with Company in its delivery of Support Services by providing to Company troubleshooting assistance according to Company’s reasonable request and detailed instructions.

14.1.2. The following matters shall not be covered by Support Services:

(i) any problem resulting from the misuse, improper use, alteration, or damage of the Software by Client;
(ii) any problem caused by modifications in any version of the Software not made or authorized by Company;
(iii) any problem resulting from software or programming other than the Software;
(iv) any problem resulting from the equipment or hardware of Client used with the Software;
(v) any problem resulting from the combination of the Software with such other programming or equipment of Client to the extent such combination has not been approved in writing by Company;
(vi) recovery of data that has been lost or corrupted;
(vii) in case of Updates and Upgrades, errors in any version of the Software other than the most recent Update made available by Company, provided that Company will continue to support superseded Updates and Upgrades for a reasonable period, not to exceed twelve (12) months, sufficient for Client to implement the newest Update or Upgrade.

14.1.5. In case Client wishes Company to assist with the above uncovered matters, Company may at its discretion decide to assist Client provided that Company shall be entitled to charge Client for such assistance.

14.2 Support & Maintenance for prior Updates and Upgrades

Client shall be entitled to continue to receive support and maintenance for prior Updates and Upgrades to the Software for a period of up to twelve (12) months from the date of general availability of such Update or Upgrade.