End User Software License Agreement (‘EULA’).
This EULA is a legally binding agreement between licensee end user (“End User”) and Hystax setting forth the terms and conditions governing the use and operation of Hystax’s proprietary computer software products (the “Software”) and the written technical specifications for the use and operation of the Software (the “Documentation”). Where the sense and context permit, references in this EULA to the Software include the Documentation. By downloading and installing, copying or otherwise using the Software, and/or otherwise accepting this EULA, End User agrees to be bound by the terms and conditions of this EULA. If End User does not agree to or accept the terms of this EULA, End User may not access or use the Software.
1.1 “Fee(s)” means any License, Maintenance, professional services, consulting or other Fees agreed to by the parties as set forth in a Transaction Document.
1.2 “Maintenance” and “Maintenance Policies” have the respective meanings set forth in Section 7.0.
1.3 “Transaction” and “Transaction Document” have the following meanings: “Transaction(s)” is a License transaction pursuant to which End User: i) accepts this EULA as provided above and ii) takes actual or constructive possession of the Software. A Transaction may take place by any lawful means, electronically or in writing, and may be confirmed by a) purchase orders, credit orders, commitment letters, license keys, amendments to this EULA or other similar materials, signed or unsigned, (each a “Transaction Document(s)”), or b) by the conduct of the affected parties. A Transaction may be initiated and implemented by any entity that is directly or indirectly a party to it, including End User, Hystax, or authorized third party distributors, dealers, and/or other resellers of the Software. A Transaction Document may contain usage, business, legal and other terms and conditions agreed to by the parties. The foregoing notwithstanding, each Transaction will require that: i) this EULA be accepted by End User and ii) End User obtains actual or constructive possession of the Software. In the event of a conflict or inconsistency between the terms and conditions of this EULA and those set forth in a Transaction Document, the terms and conditions of the Transaction Document will govern and control.
1.4 “Open Source” means various open source software components licensed under the terms of applicable open source license agreements included in the materials relating to such software. Open Source Software is composed of individual software components, each of which has its own copyright and its own applicable license conditions.
2.0. GRANT OF LICENSE
2.1 License Grant. When the Software is delivered to End User as part of a Transaction, End User will have, subject to the terms and conditions of this EULA, a perpetual, non-transferable, non-exclusive, license (“License”), to use the Software in object code format, solely for End User’s internal business purposes for the management and processing of its own data and not the data of any third party(ies). Hystax Software License is perpetual, unless the Software is delivered to End User as part of a Transaction on a non-perpetual basis for a defined period, in such case, the End User’s right to use such Software will cease on the end date of the defined period.
3.0. ADDITIONAL TERMS
Nothing contained in this EULA is intended to prohibit or restrict the parties from mutually agreeing to enter into separate terms and conditions that i) modify or supplement the terms and conditions (including business and/or financial terms) of this EULA or the License granted to End User pursuant to this EULA; or ii) create or modify the terms a particular Transaction.
4.0. GENERAL RESTRICTIONS ON USE.
In connection with Your use of the Services, You agree not to, nor to allow or facilitate a third party to: (a) copy, modify, or create a derivative work of the Services or Documentation; (b) reverse engineer, reverse assemble, or otherwise attempt to discover any source code of the Services; (c) sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in or access to the Services, or any other Documentation available via the Services without the prior written permission of Hystax; (d) license, sub-license, sell, resell, rent, lease, transfer, distribute, time share, or otherwise make any of it available for access by third-parties, except as may otherwise be expressly stated in a Master Services Agreement or associated Service Schedule; (e) circumvent or manipulate any applicable fee structure, billing process, or fees owed either to us or to our third party providers; (f) use the Services for illegal purposes or for promotion of dangerous activities; (g) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (h) attempt to gain unauthorized access to the Services, other accounts, computer systems, or networks connected to the Services through hacking, password mining, phishing or any other means; (i) upload, post, email, transmit, distribute or otherwise make available any material that contains viruses, computer code, or any other technologies that may harm Hystax or the interests, information, or property of Hystax customers or limit the functionality of any software, hardware or other equipment; (j) use it in excess of contractual usage limits, including as set forth in an associated Service Schedule, or in a manner that circumvents usage limits or technological access control measures; (k) circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Documentation or enforce limitations on use of the Services; (l) remove any proprietary notices from the Services or Documentation; (m) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (n) access or use the Services or Documentation for purposes of competitive analysis of the Services or Documentation, the development, provision, or use of a competing software service or product, or any other purpose that is to Hystax’s detriment or commercial disadvantage; (o) or use the Services and Documentation in any manner other than as permitted by this Agreement.
5.0 USE VERIFICATION
Hystax may remotely review Your use of the Services at any time. If Hystax determines that You have exceeded its permitted access and use rights to the Services, Hystax will notify You within seven (7) days thereafter You shall either: (a) disable any unpermitted use, or (b) purchase additional Services commensurate with Your actual use. Hystax reserves the right to charge You for actual usage during the period of unpermitted use.
6.0. OWNERSHIP OF THE SERVICES.
a. Services and Documentation. All right, title, and interest in and to the Services and Documentation, including all intellectual property rights therein, are and will remain with Hystax. For all Third-Party Materials (as defined in Section 14) appearing in the Services, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Materials. You have no right, license, or authorization with respect to the Services, Documentation, or Third-Party Materials except as expressly set forth in this Agreement.
b. Customer Data. Customer Data means any data that You upload to the Services under Your Account or that You otherwise transfer, process, use, or store in connection with Your Account. Hystax acknowledges that, as between Hystax and You, You own all right, title, and interest, including all intellectual property rights, in and to the Customer Data. You hereby grant to Hystax a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Hystax to provide the Services to You.
c. Resultant Data. Resultant Data means data and information related to Your use of the Services that Hystax uses in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. Hystax uses this data, without limitation, to improve the performance of the Services or develop important updates. Hystax never uses it to re-identify You. In furtherance of the foregoing, You hereby unconditionally and irrevocably grant Hystax an assignment of all right, title, and interest in and to the Resultant Data, including all intellectual property rights relating thereto.
a. Payment of Fees. You will pay to Hystax all license fees no later than thirty (30) days after You receive an invoice, unless You have a written agreement with express pricing terms executed by an authorized Hystax representative. Hystax retains the right to change the published pricing at any time with notice to users. All amounts are stated, billed, and collected in US dollars.
b. Taxes. All Fees and other amounts payable by You under this Agreement are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by You hereunder, other than any taxes imposed on Hystax income.
c. Credits. If You believe You’re entitled to a credit on Your Fees for the Services, You must submit a credit request no later than 60 days from the date of the applicable invoice.
d. Hystax Reseller End Users. Notwithstanding the foregoing, if You access Hystax through a Hystax Reseller, your Reseller will establish any terms and conditions for pricing, invoicing, and payment. A Hystax Reseller means an entity authorized by Hystax to resell the Services to You. For the avoidance of doubt, a Hystax Reseller is not an authorized Hystax representative.
8.0. TERM AND TERMINATION
a. Term. This Agreement is effective upon your logging into the Services until it is terminated in accordance with this Section 7.
b. Termination By Hystax. Hystax may terminate this Agreement, effective on written notice to You, if You fail to pay any amount when due hereunder or if You breach any of Your obligations under this Agreement. Hystax may, directly or indirectly, suspend, terminate, or otherwise deny Your or any of your Authorized End Users’, or any other person’s access to or use of all or any part of the Services or Documentation, without incurring any resulting obligation or liability, if: (a) Hystax receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Hystax to do so; (b) Hystax believes, in its good faith and sole discretion, that: (i) You or any of Your Authorized End Users, have failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Documentation; (ii) You or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (c) this Agreement expires or is terminated. This Section 8(b) does not limit any of Hystax’s other rights or remedies, whether at law, in equity, or under this Agreement.
c. Termination By You. If You have a monthly subscription with Hystax, You may terminate Your use of the Services by providing at least 30 days’ written notice of Your intent to terminate. If you have a separate, written agreement with Hystax that specifies termination rights, You may terminate in accordance with the terms of that agreement. If You access Hystax through a Hystax Reseller, your Reseller will establish the terms and conditions, if any, upon which You may terminate Your use of the Services.
d. Effect of Termination. Upon termination of this Agreement, the license granted hereunder shall also terminate, and You shall cease using the Services and Documentation. No expiration or termination shall affect Your obligation to pay all Fees that may have become due before such expiration or termination or entitle You to any refund.
9.0. EVALUATION LICENSE
A License designated as an “Evaluation” License in a Transaction Document authorizes End User to use one (1) copy of the Software for a 30 day period for non-production evaluation or demonstration purposes only.
10.0. NOT FOR RESALE LICENSE (NFR)
A License designated as a “Not for Resale License” (NFR) License in a Transaction Document authorizes End User to use one (1) copy of the Software with full functionality for evaluation or demonstration purposes only, and for a defined period of time.
11.0. LIMITED TERM LICENSE
A license designated as a “Limited Term” License in a Transaction Document authorizes End User to use one (1) copy of the Software in production environment at End User’s site for a defined period of time. The defined period for a “Limited Term” License commences immediately upon generation of the license key.
Maintenance and support (“Maintenance”) for the Software will be available in accordance with Hystax’s applicable Maintenance Policies then in effect and shall commence on delivery of the Software. Provided End User is current on Maintenance, End User will receive (a) online support and (b) any Software updates, enhancements and/or improvements that are included or otherwise separately defined under the Maintenance Policies and are not licensed by Hystax at its discretion to its customers for a separate charge. Hystax’s current Maintenance Policies can be found in an agreement between Hystax and End User.
13.0. COPYRIGHT AND OTHER RESTRICTIONS
The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold. The Software contains copyrighted material, trade secrets and other proprietary material of Hystax. All right, title and interest in the Software remains at all times with Hystax. In no event will End User directly or indirectly permit the Software to be decompiled, reverse engineered, or disassembled. End User will not disclose, transfer or otherwise make available the Software, or the results of any benchmark or other tests of the Software, to any third party without the prior written consent of Hystax. End User shall not remove any proprietary notices from the Software. End User may make one copy of the Software solely for backup or archival purposes.
During the term of this Agreement and for a period of one year thereafter, Hystax may, during normal business hours and upon reasonable prior notice to End User, inspect the files, computer processors, equipment and facilities of End User to verify End User’s compliance with this EULA.
15.0. CUSTOMER WARRANTIES.
You warrant and represent that:
a. All information You provide to us as part of Your Account registration is true, accurate, current and complete, and You agree to maintain and promptly update such information to keep it true, accurate, current and complete;
b. Any and all Customer Data supplied by You or otherwise accessed by Hystax through the provision of the Services is the sole and exclusive property of You or that You have secured any and all authorizations and rights to use the Customer Data as applicable;
c. The Customer Data does not breach any relevant laws, regulations, or codes;
d. The Customer Data does not infringe the intellectual property rights of any third party;
e. And to the extent that the Customer Data contains personally identifiable information or Personal Data, You have obtained the necessary consents in order to transfer or permit access to such data in accordance with applicable privacy and data protection laws.
16.0. LIMITED WARRANTY AND LIMITATION OF LIABILITY
Hystax warrants that it has the right and authority to grant the License under this EULA. Hystax will defend or, at its option, settle any action against End User based upon a claim that its use of the Software infringes any patent, copyright or other intellectual property right of a third party, and will indemnify End User against any amounts awarded against End User as a result of the claim, provided Hystax is promptly notified of the assertion of the claim and has control of its defense or settlement. Hystax warrants that the Software, in its unmodified form as initially delivered or made available to End User, will perform substantially in accordance with the Documentation for a warranty period of ninety (90) days from the date the Software is delivered to End User. In the event the Software fails in a material respect to operate in accordance with the Documentation during the warranty period and Hystax is unable to correct the defect, Hystax’s sole and exclusive liability and End User’s sole and exclusive remedy shall be a refund of the License fee, if any, paid by End User for the Software. In the event a reported problem with the Software is End User’s fault, End User agrees to reimburse Hystax for its correction efforts in accordance with its then standard rates. The foregoing limited warranty will not apply if failure of the Software is the result of damage or misuse caused by End User.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED ‘AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY THAT THE SOFTWARE IS FREE OF DEFECTS, MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY HYSTAX OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY HYSTAX DISTRIBUTORS OR RESELLERS, SHALL CREATE ANY WARRANTY IN ADDITION TO, OR IN ANY WAY INCREASE THE SCOPE OF, THE LIMITED WARRANTY.
In no event will Hystax, its affiliates, resellers, or distributors or suppliers be liable for any indirect, special, incidental or consequential damages arising out of the use of or inability to use the Software, including, without limitation, damages for lost profits, loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof.
Except in the event of a sale or transfer by Hystax of all or substantially all of its assets or voting securities, neither party will assign all or any portion of its rights or obligations under this EULA to any third party without the prior written consent of the other party.
a. Modification of Terms. Hystax may change this Agreement from time to time. Any such changes will become effective when posted on www.hystax.com. If You object to any such changes, Your sole recourse will be to cease using the Services. Continued use of the Services following posting of any such changes will indicate Your acknowledgement of such changes and Your agreement to be bound by the revised Agreement, inclusive of such changes.
b. Export Regulation. The Services and Documentation may be subject to US export control laws, including without limitation the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services or Documentation to, or make the Services or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or Documentation available outside the US.
c. Third-Party Web Sites and Content. The Services may contain links to third-party websites or services that Customer may use that are not owned or controlled by Hystax (“Third-Party Materials”). Hystax has no control over and assumes no responsibility for the Third-Party Materials. Accordingly, Hystax makes no warranties regarding such Third-Party Materials and will not be liable for any loss or damage caused by Your use of or reliance on such Third-Party Materials. The inclusion of Third-Party Materials in the Services does not imply any endorsement by Hystax.
d. Electronic Communications. The communications between You and Hystax will be primarily electronic. For contractual purposes, you (a) consent to receive communications from Hystax in an electronic form and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Hystax provides to you electronically have the same effect as if they were provided in writing and signed by Hystax and You in ink. The foregoing does not affect your non-waivable rights.
e. No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement, and this Agreement shall not provide any third person or entity with any remedy, claim, liability, reimbursement, claim of action, or other legal or equitable right.
f. Conflicting Terms. Except as otherwise specifically provided in this Agreement, in the event of a conflict between the terms and conditions of this Agreement and any separate services agreement (“Services Agreement”) executed by You and an authorized Hystax representative, as they apply to the relationship between Hystax and You, the terms and conditions of that separate Services Agreement shall govern. In the event of any conflict between the terms and conditions of this Agreement and the DPA, the terms and conditions of the DPA shall govern.
g. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
h. Survival. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 4, Section 8(c), Section 9, Section 11(b), Section 12, Section 13, and this Section 15.
This End User License Agreement (“Agreement”) sets forth the legal contract between you as an end user of Hystax’s services (“You” and “Your”) and Hystax Inc., along with its subsidiaries and affiliates (“Hystax”) with respect to access to and use of Hystax’s software-as-a-service or self-hosted image, as applicable (the “Services”), and any associated materials or Documentation (“Documentation”) made available through Hystax’s websites, including www.hystax.com, as well as any support provided by Hystax (“Support”).
WE PROVIDE THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY LOGGING INTO THE SERVICES, YOU ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS AND YOU REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT AND (II) IF YOU REPRESENT A COMPANY OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY AND BIND THE ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE WILL NOT AND DO NOT LICENSE THE SERVICES AND DOCUMENTATION TO YOU AND YOU MUST NOT USE THE SERVICES AND DOCUMENTATION.
19.0. GOVERNING LAWS
The Warranty and the End User License shall be governed by the laws of State of California, without regard to conflicts of laws principles. You hereby consent to the exclusive jurisdiction of the state and federal courts in State of California to resolve any disputes arising under this Agreement.
20.0. CUSTOMER IDENTIFICATION
By using Hystax software End User grants Hystax the right to use publicly End User’s name and logo to appropriately identify End User as Hystax’ customer and licensee of the Software.