END USER SOFTWARE LICENSE AGREEMENT
PLEASE READ THIS END USER SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE PRODUCT AND DOCUMENTATION TO WHICH THIS AGREEMENT RELATES. BY ACCEPTING THIS AGREEMENT, INCLUDING BY INSTALLING OR USING THE ANVIZENT PRODUCT (“PRODUCT”), YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ACKNOWLEDGE YOUR AUTHORITY TO DO SO ON BEHALF OF YOUR COMPANY (IF APPLICABLE). IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT INSTALL OR USE THE PRODUCT, AND PROMPTLY RETURN ALL COPIES OF THE PRODUCT AND DOCUMENTATION TO YOUR SUPPLIER. IF YOU ACCESSED THE PRODUCT ELECTRONICALLY, CLICK “DISAGREE/DECLINE”. IF ANVIZENT SOFTWARE INCLUDED WITH YOUR PURCHASE OF THIRD PARTY SOFTWARE OR HARDWARE, YOU MUST RETURN THE ENTIRE HARDWARE/SOFTWARE PACKAGE.
1. Grant of License
1.1 “Anvizent” refers to Anvizent, Inc (together with its subsidiaries and affiliates worldwide) and “you” or “Licensee” refers to the individual installing or using the Product, if you are acting as an individual; otherwise, “you” or “Licensee” means the business or other entity for which you are obtaining the Product. Subject to this Agreement, and payment of all applicable license fees, Anvizent grants you a non-exclusive, non-transferable, personal, limited license to use the software for which valid control codes have been issued by Anvizent, identified in: (i) the written or electronic order document, form or invoice provided or accepted by Anvizent (each an “Order”); or (ii) the installation procedure (a “Product”), solely for your internal business purposes. Any Product update, patch, and/or new release (each an “Update”) replaces part or all of a Product or Update previously released and terminates the license to such previously licensed Product or Update to the extent replaced by the Update. Each Update is subject to the terms and conditions of the license agreement accompanying the Update or, if no license agreement accompanies the Update, to the terms and conditions of this Agreement. Anvizent grants you a non-exclusive, non-transferable, limited, personal license (without the right to sublicense) to use the written technical materials and end user instructions, if any, distributed with the Product (the “Documentation”).
1.2 Except for the license rights granted herein, Anvizent and/or its licensors at all times retain all right, title, and interest in the Product and the Documentation. The Product is licensed, not sold, for use only under the terms of this Agreement, and Anvizent reserves all rights not expressly granted to you.
1.3 The term of this license is set forth on the Order, unless otherwise terminated in accordance with this Agreement.
1.4 You agree to pay the Product fees listed in the Order. You also agree to pay any applicable value-added taxes or other applicable taxes, tariffs or withholding taxes which the relevant authorities require you to pay. All fees are exclusive of any such taxes or tariffs unless expressly agreed by Anvizent.
1.5 For Product shipped via electronic delivery, delivery is deemed complete, FOB shipping point, when the Product is made available at the electronic software download (“ESD”) site specified by Anvizent and Anvizent e-mails or otherwise issues you instructions to access and download the Product. For Product you have licensed under a software as a service (“SAAS”) delivery method, delivery is deemed complete when Anvizent or a third party supplier have issued you instructions to access and use the Product.
2. License Restrictions
2.1 Your use of the Product and Documentation is limited to internal use within your organization. The Product and Documentation may not be used by your subsidiaries, affiliates, or any other third parties unless specifically agreed in writing by Anvizent.
2.2 Subscription License: When the Product is licensed to you, you are granted a non-exclusive and non-transferable license to use the Product for a term, the length of which is set forth in the Order (the “Subscription Term”). Unless earlier terminated as provided in this Agreement, the Subscription Term may not be terminated and all subscription fees are non-refundable. The Subscription Term may be renewed periodically at Anvizent’s then current rate or such other term as mutually agreed by us. You may only use the Product through the date for which you have paid all applicable fees. Any rights you may have to use the Product cease immediately when payments are no longer current, and you agree, at such time, to immediately stop all use of the Product, and return all copies of the Product and any Documentation to Anvizent, and Anvizent will have no further obligation to you. As long as applicable fees are current, Anvizent will provide you with updates and upgrades which are generally commercial.
2.3 You agree not to copy, disassemble, reverse engineer, decompile, modify or create derivative works of the Product or the Documentation to the extent that such restriction is not prohibited by applicable mandatory law.
2.4 You may not sublicense, sell, encumber, outsource, or grant any other rights in the Product and/or the Documentation, or allow the Product or Documentation to be possessed by another party.
2.5 You agree to comply with all export and import laws and restrictions and regulations of any applicable foreign agency or authority, and not to export, re-export or import the Product or any software or technical data thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals and the cost of such approvals shall be borne by you.
2.6 You may not disclose benchmark test results for the Product without the written consent of Anvizent.
2.7 You will be provided with upto hundred (100) megabytes of free cloud storage space for storing your user data pertaining to the Product, and post which you will be charged with the then prevailing prices for the additional cloud storage space.
3. Installation and Use
You may install and/or access and use the Product only in the configuration and for the number of licenses you acquire. Individual licenses may not be shared for use on different computers or servers. Anvizent may control the number and type of licenses and the use of the Product by key codes. If a license key or other security device is provided with the Product, you may not share or transfer the security device to any other third party.
4. Consent to use of data
You agree that Anvizent and its authorized representatives may collect, track and use technical and related information about You and Your use of the Product, which may include Your internet protocol address, hardware identifying information, operating system, application software, peripheral hardware, and Product usage statistics, to assist with the operation and function of the Product, the provision of updates, support, invoicing, by Anvizent or its agents and research and development. Further you also confer upon Anvizent the nonexclusive right to use your trademarks, trade names, service marks, logos and/or similar identifying material as a reference on Anvizent website and/or promotional materials for a limited use for promoting and sale its products/services to prospective clients.
5. Limited Warranty
5.1 Anvizent warrants, for a period of ninety (90) days from the date of the Order (the “Warranty Period”), that the Product will conform in all material respects to the Documentation. As the sole and exclusive remedy for any breach of this warranty, Anvizent will repair or replace the Product if the failure is reported during the Warranty Period. If Anvizent reasonably determines that repair or replacement is not economically or technically feasible, Anvizent may terminate this Agreement and provide you a full refund of the license fee paid for the existing tenure with respect to the Product.
5.2 Where you have licensed and paid for use of the Product on a subscription basis, or if you order and pay for support, support provided will be in accordance with Anvizent’s then current and applicable support policies. Anvizent’s current support policies are listed at www.anvizent.com
5.3 Anvizent does not warrant that the Product will meet your requirements or that operation of the Product will be uninterrupted or error free. It is your responsibility to select the correct product to achieve your intended results and for any results obtained with the Product. Anvizent disclaims all warranties if the Product is not properly set up and configured.
5.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ANVIZENT, IT’S LICENSORS AND THEIR RESPECTIVE SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, RELATING TO THE PRODUCT, OR ANY SERVICES OR UPDATES. ANY UPDATES OR SERVICES ARE DELIVERED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANVIZENT DISCLAIMS ALL IMPLIED WARRANTIES AND REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT WITH RESPECT TO THE PRODUCT, OR ANY SERVICES OR UPDATES. The Product is not fault tolerant and is not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance (including, without limitation, the design, construction, operation or maintenance of any nuclear facility; direct life support machines; weapon systems; or control of aircraft, air traffic, aircraft navigation or aircraft communications), in which the failure of the Product could lead directly or indirectly to death, personal injury or severe physical or environmental damage. Anvizent for itself and on behalf of its licensors and their respective suppliers disclaims any express or implied warranty of fitness of the Product for any such high risk uses. ANVIZENT IS NOT LIABLE FOR DATA LOSS, DAMAGES, LIMITATION OF SERVICE AVAILABILITY INCLUDING ANY DATA SENT BY THE PRODUCT TO EXTERNAL STORAGE FOR THE PURPOSE OF DATA SYNCHRONIZATION AND BACKUP. ENCRYPTING THE DATA BY THE PRODUCT DOES NOT IMPLY ANY LIABILITY OF ANVIZENT REGARDING THE SECURITY OF THAT DATA. YOU EXPRESSLY AGREE THAT THE DATA ACQUIRED, USED, ENCRYPTED, STORED, SYNCHRONIZED OR SENT USING THE PRODUCT CAN ALSO BE STORED ON THIRD PARTY SERVERS LOCATED IN VARIOUS LOCATIONS GLOBALLY. ANVIZENT IN ITS SOLE DISCRETION WILL SELECT TO USE SUCH A THIRD PARTY STORAGE, SERVER OR SERVICE, AND ANVIZENT IS NOT LIABLE FOR THE QUALITY, SECURITY, OR AVAILABILITY OF SUCH A THIRD PARTY SERVICE AND TO NO EXTENT IS ANVIZENT LIABLE TO YOU FOR ANY BREACH OF CONTRACTUAL OR LEGAL OBLIGATIONS BY THE THIRD PARTY NOR FOR DAMAGES, LOSS OF PROFITS, FINANCIAL OR NON-FINANCIAL DAMAGES, OR ANY OTHER KIND OF LOSS WHILE USING THIS PRODUCT. ANVIZENT IS NOT LIABLE FOR THE CONTENT OF ANY DATA ACQUIRED, USED, ENCRYPTED, STORED, SYNCHRONIZED, OR SENT USING THIS PRODUCT OR IN STORAGE.
6. Intellectual Property Ownership and Indemnity
6.1 You agree that Anvizent owns all intellectual property rights in: (a) the Product; and (b) all amendments, enhancements and modifications of the Product, including any created solely by Anvizent or as a result of collaboration with you. You further agree that Anvizent is not bound by any duty of confidentiality with respect to any such amendments, enhancements or modifications.
6.2 Anvizent will defend, indemnify and hold you harmless from all costs and reasonable expenses awarded by a court or agreed to in settlement which directly results from any third party claim that a Product infringes either a valid: (a) Patent; or (b) copyright of a country that is a party to the Agreement for Trade Related Aspects of Intellectual Property Rights (“TRIPS”) but only if you notify Anvizent promptly in writing of such claim and give Anvizent sole control of the defense of any such claim and all negotiations for its settlement or compromise. You agree to reasonably cooperate with Anvizent in the defense, settlement or compromise of any claim. In the event that a final injunction is obtained against your use of the Product, if Anvizent reasonably believes that your use of the Product could be enjoined, or if in Anvizent’s opinion the Product is likely to become the subject of a successful claim of infringement, Anvizent will: (i) obtain the right for you to continue using the Product, (ii) modify or replace the Product so that it becomes non-infringing, or in the event neither of the previous two options are commercially reasonable for Anvizent, (iii) terminate this Agreement and may refund: (a) if you are licensed to use the Product on a subscription basis, any prepaid but unused fees as of the date of termination; or (b) for any other license type, the amount you paid for the Product less an amount for depreciation determined on a straight-line five-year depreciation basis with a commencement date as of the date of the Order for the Product. Anvizent will have no liability for a claim if the claim is based on: (A) your use of the Product more than thirty (30) days after Anvizent has notified you of (i), (ii) or (iii), above or (B) the version of the Product you are using is not the current release version of the Product.
6.3 Anvizent will have no liability under this Section 6 to the extent that any infringement or claim is based upon: (i) the combination, operation or use of the Product with equipment or software not supplied by Anvizent, (ii) your failure to comply with designs, specifications or instructions provided by Anvizent, (iii) your use of the Product in an application or environment for which it was not designed or not contemplated, (iv) installation, configuration and/or modifications made by anyone other than Anvizent, or (v) use of the Product by users not permitted by this Agreement.
6.4 The foregoing indemnification provisions state the entire liability of Anvizent and your sole and exclusive remedy with respect to any infringement or alleged infringement of any intellectual property or proprietary rights.
7. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF ANVIZENT, IF ANY, FOR DAMAGES RELATING TO ANY PRODUCT, UPDATE AND/OR SERVICES IS LIMITED TO THE ACTUAL AMOUNTS YOU PAID FOR THE PRODUCT, UPDATE AND/OR SERVICES. ANVIZENT’S LICENSORS AND THEIR SUPPLIERS HAVE NO LIABILITY TO YOU FOR ANY DAMAGES. IN NO EVENT WILL ANVIZENT, ITS LICENSORS, OR ANY OF THEIR RESPECTIVE SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR CHANGE IN DATA, OR FOR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY COMMERCIAL DAMAGES OR LOSSES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, ANY UPDATE, AND/OR ANY SERVICES, EVEN IF ANVIZENT, ITS LICENSORS AND/OR ANY OF THEIR RESPECTIVE SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. EACH EXCLUSION OR LIMITATION IS INTENDED TO BE A SEPARATE AND SEVERABLE EXCLUSION.
8. Audit Rights
Anvizent may install and use automated license tracking, management and/or enforcement solutions with the Products, which you may not disrupt or alter. You agree to maintain books and records in connection with this Agreement and your use of the Product and any Updates and/or services provided by Anvizent. Such books and records shall include at a minimum the number of licenses you purchased and the number you are using. At its expense and with reasonable written notice, Anvizent or a third party appointed by Anvizent may audit the books, records, and if necessary, the systems on which the Product or any Update is installed for the sole purpose of ensuring compliance with the terms of this Agreement. Anvizent will have the right to conduct follow-up audits as necessary. All audits shall be conducted during regular business hours at your offices and will not unreasonably interfere with your activities. Anvizent will treat all such records and books as confidential information. If any audit reveals that you have underpaid license or support fees, you agree to pay for the underpaid fees based on Anvizent list prices in effect at the time the audit is completed. If the underpaid fees are in excess of five percent (5%) of the fees you have previously paid, then you agree to pay Anvizent’s reasonable costs of conducting the audit and enforcement of this Agreement.
9.1 Anvizent may terminate this Agreement by written notice if you default in the performance of this Agreement and fail to cure the default to the reasonable satisfaction of Anvizent within fifteen (15) days after such notice. This remedy shall not be exclusive and shall be in addition to any other remedies which Anvizent may have under this Agreement or otherwise.
9.2 Any attempt to transfer or assign this Agreement or the licenses granted hereunder in violation this Agreement or as a result of bankruptcy, insolvency, or liquidation or due to an assignment of your assets for the benefit of creditors will be void and this Agreement and the licenses granted under this Agreement shall automatically terminate without further notice.
9.3 Within ten (10) days of the date of expiration or termination of this Agreement, you agree to destroy all copies of the Product, Updates and Documentation and, if requested by Anvizent, certify in writing that you have done so.
10. Third Party Terms and Restrictions
The Product may contain or be accompanied by certain third-party components that are subject to additional restrictions. These components, if any, are identified in, and subject to, special license terms and conditions set forth in the Documentation, the “[readme].txt” file, the [notices.txt] file, or another electronic file accompanying the Product (“Special Notices”). The Special Notices include important licensing and warranty information and disclaimers. In the event of conflict between the Special Notices and the other portions of this Agreement, the Special Notices will take precedence (but solely with respect to the third party component(s) to which the Special Notice relates).
Anvizent implements security procedures to help protect your data from security attacks. However, you understand that use of this Product necessarily involves transmission of your data over networks that are not owned, operated or controlled by Anvizent, and we are not responsible for any of your data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
12.1 This agreement, including any exhibits, license addendum(s) and order documents, constitutes the complete agreement between you and Anvizent with respect to the Product and supersedes any other agreement, proposal, communication or advertising, oral or written, signed or unsigned. To the extent there are any terms and conditions contained in any purchase order or other documentation you supply, such terms and conditions are deemed stricken and the terms and conditions of this Agreement shall govern.
12.2 You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. Anvizent may assign this Agreement to any entity at its sole discretion.
12.3 This Agreement has been drawn up in English at the express wish of the Parties. Any translation of this Agreement is done for local requirements and, in the event of a dispute between the English and any non-English version, the English version of this Agreement shall govern.
12.4 You agree that this Agreement, and any claim, dispute, action, cause of action, issue, or request for relief relating to this Agreement, will be governed by the substantive laws of the State of Georgia, United States, without regard to its or any other jurisdiction’s laws governing conflicts of law. Any action or proceeding relating to this Agreement shall be brought exclusively in a court of competent jurisdiction located in Cobb County, Georgia or the U.S. District Court for the Northern District of Georgia and each party irrevocably submits to the jurisdiction and venue of any such court, except that Anvizent may seek injunctive relief in any court having jurisdiction to protect its intellectual property or confidential information.
12.5 Failure or delay on the part of either party to exercise any right, power, privilege or remedy hereunder will not constitute a waiver thereof. A waiver of default shall not operate as a waiver of any other default or of the same type of default on future occasions.
12.6 The Parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods.
12.7 Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
12.8 If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the Parties' original intent, and the remaining portions remain in full force and effect. This Agreement may not be modified or amended except in a writing executed by both you and Anvizent.
12.9 A waiver by either Party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.