END USER LICENSEE AGREEMENT
THIS END USER LICENSEE AGREEMENT (“AGREEMENT”) BETWEEN CLIENT (“Client” OR “LICENSEE”) AND TOVUTI LLC, AN IDAHO LIMITED LIABILITY COMPANY (“LICENSOR”), PROVIDES THE TERMS AND CONDITIONS UNDER WHICH LICENSOR WILL LICENSEE TO LICENSEE CERTAIN TOVUTI™ BRAND SOFTWARE.
BY SIGNING, CLIENT ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IT IS IMPORTANT THAT CLIENT READ THIS ENTIRE AGREEMENT BEFORE ACCEPTING. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ORDER, PURCHASE, ACCEPT DELIVERY OF, OR USE THE SOFTWARE.
1.1 Licensee Grant
Solely for the period Licensor is providing software-as-a-service to Licensee or, if applicable, Licensee’s employer or independent contractor, under a Master Subscription Agreement (the “Term”), Licensor grants to Licensee and Licensee accepts from Licensor a non-exclusive, revocable, non-sublicensable and non-transferable Licensee under Licensor’s copyrights (the “Licensee”) in the United States to use the machine-code version of the software together with any related technical specification documentation (the “Documentation”) provided by Licensor (collectively, the “Software”) on a single computer or mobile device, provided that Licensee comply with the terms herein.
Subject only to the Licensee, Licensor shall retain all right, title and interest, including all patent rights, copyrights and trademarks, in and to the Software and all derivative works. Licensee shall indemnify, defend, and hold harmless Licensor harmless from and against any claim made or brought against Licensor by a third-party alleging that Licensee’s use of the Software infringes or misappropriates the intellectual property rights of a third-party or violates applicable law if Licensee’s use of the Software was in breach of the terms of this Agreement.
Except as otherwise expressly permitted herein, Licensee and its principals, agents and employees shall not (and shall not allow any third party) to: (i) decompile, disassemble, or otherwise reverse engineer (except to the extent that applicable law prohibits reverse engineering restrictions) or attempt to reconstruct or discover any source code, underlying ideas, algorithms, workflows, file formats or programming or interoperability interfaces of the Software by any means whatsoever, (ii) remove any product identification, copyright, trademark or other notices, (iii) provide, lease, lend, use for timesharing, service bureau or hosting purposes or otherwise use or allow others to use the Software to or for the benefit of third parties, including, but not limited to, entities with which the Licensee or the principals of the Licensee are affiliated in any way, (iv) modify, or, except to the extent expressly authorized herein, incorporate into or with other software or create a derivative work of any part of the Software, (v) disseminate information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Software from any source, without prior written authorization by Licensor, or (vi) use the output or other information generated by the Software (including, without limitation, output describing the structure of a software program) for any purpose other than use by the Software in accordance with its specifications, or (vii) share the application in a client/server or networked environment.
2. LIMITED WARRANTY
This software is provided by Licensor to Licensee with the understanding it will come with the features and functions as contracted to under the Term. It is understood software as a Service does come with certain potential technical issues as any other such software would come with and as commonly known within the software as a services industry. This includes but not limited to potential technical interruptions, indirect and non-intentional code discrepancy, scheduled interruptions from 3rd party providers and Acts of God. Licensor does not warrant that the Software is error free or that operations of the software will be uninterrupted. Licensor will address any interruptions at the speed of business and within reasonable times as appropriate to the priority of the issues.
Licensee has researched, reviewed and concluded the licensor has presented certain features and functions that do match and are compatible with their specific needs.
3. SUPPORT AND MAINTENANCE
Solely during the Term, and provided Licenseee has paid the applicable support and maintenance fees (if any), Licensor shall provide support and maintenance in accordance with Licensor’s then-current policies. Any patches, updates, etc. provided as part of Software maintenance shall be included within the definition of Software for the purposes of this Agreement to the extent made available by Licensor.
3.2 Limited Training
Based on the level of Service package purchased by Licensee Licensor will provide training to Licensee in accordance with Licensor’s then current training offerings and package pricing and at Licensor’s then current prices at mutually agreed upon times and locations. All training will be supplied via online video chats, phone calls or other forms of online communication unless otherwise mutually agreed to by both parties
This Agreement shall commence on the date it is first accepted by Licensee, and shall continue for the duration of the Agreement.
5. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, AND TO THE EXTENT ALLOWED BY APPLICABLE IDAHO LAW, LICENSOR SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY (i) FOR ANY AMOUNTS IN EXCESS OF THE TOTAL AMOUNT PAID TO LICENSOR BY LICENSEE WITH RESPECT TO THE COPIES OF SOFTWARE THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE MONTH PERIOD PRIOR TO ACCRUAL OF THE CAUSE OF ACTION; (ii) FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR ANY LOST PROFITS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, TECHNOLOGY, SERVICES OR RIGHTS); (iii) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (iv) FOR ANY MATTER BEYOND LICENSOR’S REASONABLE CONTROL.
6. RIGHT TO AUDIT
On Licensor’s written request Licensee shall furnish Licensor with a signed certification certifying that the Software is being used pursuant to the terms of this Agreement including any copy and user limitations. Licensor may audit the Software in use by Licensee. With prior reasonable notice, Licensor may perform a physical audit of the Software in use by Licensee and, if applicable, the number of authorized users associated with such use, provided that such audit is during regular business hours. In the event the audit reveals a material discrepancy, Licensee shall pay Licensor the then current fees for the number of Licensees and/or authorized users reflected in the discrepancy and maintenance for any unauthorized use of the software.
7. ACCEPTANCE OF TERMS AND CONDITIONS
Licensee agrees that the terms and conditions provided in this Agreement are binding on Licensee, and Licensee shall comply fully with such terms and conditions.
8. GENERAL PROVISIONS
8.1 Cumulative Remedies
The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless as expressly provided in this Agreement.
8.2 Governing Law
This Agreement shall be governed in all respects by the Provision of Law as defined in the Master Subscription Agreement (MSA)
All notices under this Agreement shall be in writing and deemed to have been effectively given and received: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of such facsimile is promptly sent by another means specified in this Section 8.3; or (iii) when delivered if delivered personally or sent by express courier service. Unless otherwise specified by the receiving party, all notices shall be addressed as follows:
If to Licensee: As set forth in purchasing information provided to Licensor in the final Agreement
If to Licensor: TOVUTI, LLC
775 S. River shore Drive Ln suite 200
Eagle, Idaho 83616
8.4 Export Restrictions
Licensee understands and acknowledges that certain technology Licensed hereunder may be subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries or persons. Licensee warrants that it will comply in all respects with the export restrictions applicable to any materials or technology provided hereunder and will otherwise comply with the Export Administration Regulations or other United States laws and regulations in effect from time to time. Without limiting the foregoing, (i) Licensee represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Licensee agrees to not permit any person to access or use the Software in violation of any U.S. export embargo, prohibition or restriction.
Licensee shall not assign or otherwise transfer any of its rights, obligations or Licensees hereunder without the prior written consent of Licensor, including any assignment by operation of law as a result of the merger or acquisition of Licensee, and only upon the original Licensee’s fully divesting itself, himself or herself of all possession of the Software and all media and copies thereof. Subject to the foregoing, the provisions of this Agreement shall apply to and bind the successors and permitted assigns of the parties.
8.6 Independent Contractor
The relationship created by this Agreement is one of independent contractors, and not partners, franchisees or joint venturers. No employees, consultants, contractors or agents of one party are employees, consultants, contractors or agents of the other party, nor do they have any authority to bind the other party by contract or otherwise to any obligation, except as expressly set forth herein. Neither party will represent to the contrary, either expressly, implicitly or otherwise.
8.7 Third Party Beneficiaries
Licensee acknowledges and agrees that there are no third party beneficiaries of this Agreement.
If any covenant set forth in this Agreement is determined by any court to be unenforceable by reason of its extending for too great a period of time or by reason of its being too extensive in any other respect, such covenant shall be interpreted to extend only for the longest period of time and to otherwise have the broadest application as shall be enforceable. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, which shall continue in full force and effect.
8.9 Waiver of Rights
The failure of either party to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any rights, and the obligations of the party with respect to such future performance shall continue in full force and effect.
8.10 Entire Agreement; Conflict
This Agreement, together with all exhibits or addenda hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions of the parties. In the event of any conflict between the terms and conditions of this Agreement and the applicable Master Subscription Agreement, the terms and conditions of the Master Subscription Agreement shall prevail.
8.11 Force Majeure
Either party shall be excused from any delay or failure in performance hereunder, except the payment of amounts due by Licensee, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, floods, lightning, labor disputes and strikes, other labor or industrial disturbances, riots, war, acts of the public enemy, insurrections, embargoes, blockages, regulations or orders of any government, agency or subdivision thereof, shortages of materials, rationing, utility or communication failures, casualty, novelty of product manufacture or other unanticipated product development problems, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay; provided that such party shall give notice of such force majeure event to the other party as soon as reasonably possible.
8.12 Legal Expenses
To the extent allowed by applicable law, Licensee shall pay on demand all of Licensor’s reasonable attorneys’ fees and other costs incurred by Licensor to collect any amounts due and payable under this Agreement in any action arising out of or related to this Agreement, if the defendant is determined by a court of competent jurisdiction to have prevailed regarding the action, then the defendant shall be entitled to an award of its reasonable attorneys’ fees and costs of defending the action.
8.13 Government End-Users
The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 2.212, as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software by the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.