1.1. "Intellectual Property Rights" shall mean any and all worldwide, whether registered or not (a) patents, patent applications and patent rights; (b) rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions, mask work rights, mask work applications and mask work registrations; (c) rights relating to the protection of trade secrets and confidential information; (d) trademarks, trade names, service marks, logos, trade dress, goodwill and domains ("Trademarks"); (e) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (f) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
1.2. “Solution(s)” shall mean (i) the Equalum proprietary solution listed in Schedule A; (ii) all revisions, corrections, modifications, enhancements, improvements and/or updates and upgrades to the foregoing provided by Equalum or on its behalf, and (iii) all related documentation provided by Equalum or on its behalf and/or placed on Equalum’s website.
2. Grant of Rights.
2.1. Right of Use. Subject to the terms and conditions of this Agreement (including payment of all applicable fees) and for so long as user complies in full with all such terms and conditions, Equalum grants user, and user accepts a limited, non-exclusive, personal, fee-bearing, non-transferable, non-sub licensable right to use the Solutions during the term set forth in Schedule A, solely in object code form, for personal use only by user and solely on the number of servers (including virtual) and with the list of data sources as set forth in Schedule A.
3. Ownership. Notwithstanding any other provision to the contrary, all Confidential Information, Trademarks, Feedback (defined below), the Solutions, and all improvements, enhancements and derivatives thereof and all Intellectual Property Rights thereto ("Equalum IPR") are exclusively owned by Equalum and/or its licensors. This Agreement does not convey to user any right, title or interest in the Equalum IPR, other than the revocable and limited right to use the Solutions as set forth in Section 2 above (provided user paid all applicable fees in full).
4. Confidential Information. The Solutions contain valuable trade secrets of Equalum and Equalum will have access to sensitive User business data, as such any disclosure or unauthorized use of the other party’s Confidential Information will cause irreparable harm and loss to the disclosing party. Both parties hereby undertake to retain in confidence and to require their employees to retain in confidence all information or data of a non-public nature which are transferred to, or discovered by either party regardless of whether or not such information or data is marked as confidential (“Confidential Information”). Without derogating from the foregoing, all information and know-how in respect of the
Solutions shall be deemed as Equalum confidential Information. Each party expressly undertakes to (i) limit dissemination of the Confidential Information solely to its employees who have a need to know and who are bound by obligations and restrictions as to confidentiality and Intellectual Property Rights no less restrictive on said employees and no less protective of Equalum IPR and Confidential Information than the terms hereof; (ii) not disclose the Confidential Information to any third party; and (iii) not use the Confidential Information for any purpose other than as explicitly permitted herein. Confidential Information shall not include information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; or (iv) the receiving Party can demonstrate in its records to have independently developed, without breach of this Agreement and/or any use of the Confidential Information. Notwithstanding the above, Confidential Information may be disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body; provided, however, that the receiving party shall make the best effort to provide prompt written notice of such court order or requirement to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.
5. User Obligations; Limitations on Use; Representations and Warranties. 5.1. User shall not (i) copy, reproduce, sell, license (or sub-license), lease, loan, assign, transfer, or pledge the Solutions or any part thereof, or otherwise permit any third party to do any of the foregoing; (ii) modify, disassemble, decompile, reverse engineer, revise or enhance or create any derivative works or otherwise merge or utilize all or any part of the Solutions with or into any third party materials or components or attempt to access or discover the Solutions' source code; (iii) place the Solutions onto a server so that it is accessible via a public network or use the Solution for Service Bureau purposes; (iv) ship, transfer, or export the Solution or any component thereof or use the Solution in any manner, prohibited by law, including without limitation to, sell, distribute, export or download Solutions: (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon or Syria, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. or Israeli government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (d) otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or Israel or any foreign agency or authority. User agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list; (v) contest Equalum's Intellectual Property Rights to the Equalum IPR; (vi) remove or add any labels, notices or logos to the Solutions, (vii) perform any act or be responsible to any omission that is illegal or in Equalum's discretion jeopardizes, destabilizes, interrupts or encumbers the Solutions and/or has a detrimental impact on Equalum and/or Equalum IPR; (viii) utilize the Solutions including without limitation any related point of presence, servers and network, in any way which will result in the violation or circumvention of any applicable laws or regulations including, without limitation, those enforcing censorship, privacy, government authority restrictions or other; or (ix) cause or permit any third party to do any of the foregoing.
5.2. User is solely responsible for acquiring and maintaining all of the hardware, software and services necessary to access and make use of the Solutions, including without limitation paying all fees and other costs related to internet access, server or cloud account subscription and maintenance and the Data
(as defined below in Section 5.3). User shall use the Solutions in a proper environment as set forth in the Solution documentation and in compliance with the applicable operating instructions and all applicable laws and regulations and for no purpose other than as specifically authorized in the Solution documentation, including without limitation, circumvention of government censorship, laws or regulations.
5.3. User hereby warrants and represents that: (i) it has all the required rights, licenses, permits and authorizations to use all of the data used by it or on its behalf with the Solution and all data sources thereof ("Data"); (ii) the Data (a) does not and will not infringe upon or misappropriate any third party right, including without limitation any Intellectual Property Rights and the right to privacy, (b) complies and shall at all times comply with all applicable laws and regulations.
6. Payments. You shall pay Equalum all applicable fees for the Solution as set forth in Schedule A and in accordance with the payment terms therein. Any amount not paid when due shall bear a late payment charge, until paid, in an amount equal to 1.5% per month or, if lower, the maximum rate allowed by law. In addition, you shall reimburse Equalum for all reasonable costs (including reasonable and actual legal fees and expenses, not to include in-house salary) in collecting unpaid amounts owed under this Agreement. You will be responsible for all applicable sales, use and excise taxes and like charges imposed with respect to the Solution, your use thereof or any services provided by Equalum, except for taxes based on the net income of Equalum. In the event that pursuant to any law or regulation, tax is required to be withheld at source from any payment made to Equalum, user shall, if Equalum does not provide a tax exemption certificate, withhold said tax at the rate set forth in the certificate issued by the appropriate taxing authority and provided to user by Equalum, or in the absence of such certification, at the rate determined by said law or regulation.
7. Feedback. User agrees that any feedback or ideas user provides to Equalum or its distributors regarding any Solutions, their use or any suggested improvements, enhancements or derivatives ("Feedback") thereto will be the exclusive property of Equalum and shall be deemed as Equalum IPR and Confidential Information. User shall not disclose or publish such Feedback or otherwise make any such information publicly available. To the extent all right, title and interest in and to all Intellectual Property Rights in the Feedback are not owned in their entirety by Equalum upon creation, user hereby irrevocably assigns all rights therein to Equalum and waives any and all rights therein including without limitation moral rights and/or rights to receive compensation and/or royalties.
8. U.S. Government Rights. As defined in 48 C.F.R. §2.101, DFAR §252.227-7014(a)(1) and DFAR §252.227-7014(a)(5) or otherwise, all Solutions provided in connection with this Agreement are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the 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.
9. Disclaimer of Warranty.
9.1. THE SOLUTIONS ARE PROVIDED “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EQUALUM DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, SECURITY AND NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOLUTION REMAINS WITH USER. USER SHALL HAVE SOLE RESPONSIBILITY AND LIABILITY TO THE DATA. USER HEREBY ACKNOWLEDGES THAT EQUALUM IS NOT DEEMED A PROCESSOR OF THE DATA AND MERELY PROVIDES USER WITH THE SOLUTION AS A TOOL TO PROCESS THE DATA.
9.2. EQUALUM DOES NOT WARRANT THAT THE SOLUTIONS WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT ERRORS/BUGS ARE REPRODUCIBLE OR THAT ERRORS/BUGS ARE REPAIRABLE AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOLUTIONS IN TERMS OF THEIR CORRECTNESS, USEFULNESS, ACCURACY, RELIABILITY, OR OTHERWISE. USER SHALL BE RESPONSIBLE FOR TAKING ALL PRECAUTIONS USER BELIEVES ARE NECESSARY OR ADVISABLE TO PROTECT USER AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF ANY USE OF OR RELIANCE UPON THE SOLUTIONS AND FOR VERIFYING ANY OUTPUT RESULTING FROM USE OF THE SOLUTIONS. UPTIME AND AVAILABILITY SHALL BE SOLELY USER'S RESPONSIBILITY, EQUALUM DOES NOT HAVE ANY CONTROL OVER THE SERVER ON WHICH THE SOLUTION WILL BE INSTALLED (WHETHER ON CLOUD OR ON PREMISE).
9.3. THE SOLUTIONS ARE NOT DESIGNED FOR USE WITH CRITICAL OR LIFE SAVING INFRASTRUCTURES, SYSTEMS THAT CONTAIN OR PROTECT AGAINST DANGEROUS OR HAZARDOUS MATERIALS OR FORCES, NATIONAL SECURITY PURPOSES OR NUCLEAR, CHEMICAL, OR BIOLOGICAL WEAPONS.
10. Limitation of Liability. NEITHER EQUALUM, USER NOR ANY OF THEIR AFFILIATES, LICENSORS, SUPPLIERS, REPRESENTATIVES OR DISTRIBUTORS OR THEIR SHAREHOLDERS, MANAGERS, DIRECTORS, OFFICERS, AFFILIATES AND EMPLOYEES ("AFFILIATE") BE LIABLE TO THE OTHER PARY OR ANY THIRD PARTY, UNDER ANY LEGAL THEORY WHETHER CONTRACT, TORT OR OTHERWISE, FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS OF DATA INCLUDING ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOLUTION OR OTHER PECUNIARY LOSS) ARISING OUT OF THE SOLUTIONS AND/OR SERVICES PROVIDED HEREUNDER AND/OR THE USE OF OR INABILITY TO USE THE SOLUTIONS OR ANY PART THEREOF EVEN IF EQUALUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT DESPITE THE AFOREMENTIONED LIMITATION OF LIABILITY ANY COMPETENT AUTHORITY WILL FIND EQUALUM OR ANY EQUALUM AFFILIATE LIABLE, EQUALUM'S AND/OR EQUALUM AFFILIATE'S AGGREGATE LIABILITY SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AGGREGATE FEES PAID BY YOU TO EQUALUM FOR THE RIGHT TO USE THE SOLUTION DURING THE SIX (6) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR (i) BREACH OF CONFIDENTIALITY (SECTION 4 - CONFIDENTIAL INFORMATION); (II) MISAPPROPRIATION OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS; OR (III) A PARTY’A INDEMNIFICATION OBLIGATION UNDER SECTION 12.
11. Term and Termination.
11.2. Equalum may terminate this Agreement following no less than thirty (30) days prior written notice to you: (i) upon your failure to comply with any of your obligations hereunder; (ii) if user attempts to transfer or assign any of its rights, liabilities or obligations under this Agreement contrary to the provisions of this Agreement; (iii) failure by user to pay any of the applicable fees; or (iv) violation of any of the limitations set forth in Section 5.1 above; provided, however, this Agreement will not be terminated if the you have cured or are diligently pursuing a cure. Upon termination or expiration of this Agreement: (i) user shall immediately pay Equalum all fees and payments, regardless of the due date of payment, and (ii) the right granted to you in this Agreement shall expire and you shall cease use of the Solutions and immediately return to Equalum all Confidential Information and Equalum IPR in any media and shall erase all copies of the Solutions. Notwithstanding the termination or expiration of this Agreement, Sections 1, 3-7, 9-10, , 12 and 13 shall survive and remain in effect in perpetuity.
12. Indemnification. Mutual Indemnification. Each Party shall defend, indemnify, and hold harmless the other Party, the other Party’s members and each of their respective parents, affiliates, officers, directors, employees, attorneys, and agents (collectively, the “Indemnified Parties”) from and against any and all Losses incurred by such Indemnified Parties and arising from any third-party claim, action, or proceeding (each, a “Claim”) to the extent alleging, arising from, or relating to: (i) the Party’s breach of its representations and warranties hereunder.
12.1 Indemnification Procedure. The indemnification obligations above are contingent on the Indemnified Party: (i) promptly notifying the indemnifying Party in writing of any Claim; provided, however, that the Indemnified Party’s failure to provide such prompt notice will not release the indemnifying Party from its indemnification obligations, except to the extent the indemnifying Party is materially prejudiced thereby; (ii) allowing the indemnifying Party the right to have sole control of the investigation, defense, and settlement of the Claim (provided that Equalum shall at all times have a right to have sole control proceedings in that may affect Equalum IPR); and (iii) providing the indemnifying Party, at the indemnifying Party’s expense, with any reasonable assistance needed to defend or settle the Claim. The indemnifying Party may settle a Claim or consent to the entry of judgment with respect to a Claim without the Indemnified Party’s prior written consent provided that the judgment or settlement does not impose any unreimbursed monetary or continuing non-monetary obligation on the Indemnified Party, does not include any admission of liability or responsibility, and includes an unconditional release of the Indemnified Parties (and in the event of user as the indemnifying party, does not have any effect on Equalum's IPR). Otherwise, the Claim may not be settled without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed. The Indemnified Party shall have the option, at its expense, to participate in the defense or settlement of the Claim with counsel of its own choosing.
13. Governing Law & Jurisdiction. This Agreement is governed by the laws of the State of California, US without regard to conflict of laws provisions thereof. The competent federal and state courts of California, US shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement and both parties hereby irrevocably submit to the exclusive jurisdiction of those courts.
Notwithstanding the foregoing, Equalum may seek any equitable relief (including an injunctive relief) in any jurisdiction worldwide. The United Nations Convention for the International Sale of Goods is expressly excluded from this Agreement.
14. General. (i) The Agreement and its Schedules are the entire agreement between you and Equalum in respect of the subject matter herein and this Agreement shall not be modified except as provided herein; (ii) Equalum may assign this Agreement, in whole or in part, in its sole discretion. You may not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement to any third party without the prior written consent of Equalum. Any unauthorized assignment will be void and of no force or effect; (iii) unless otherwise expressly provided, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than you and Equalum, its affiliates and successors or assignees any rights, remedies or other benefits under or by reason of the Agreement; (iv) no failure or delay on the part of Equalum or its distributor hereto in exercising any right, power or remedy shall operate as a waiver thereof, any waiver granted by Equalum and/or a distributor hereunder must be explicit and in writing and shall be valid only in the specific instance in which given.
User and Equalum certify by their undersigned authorized representatives that they have read this Agreement, have the full corporate right, power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby and agree to be bound by its terms and conditions.