End User License Agreement
IMPORTANT— READ CAREFULLY BEFORE YOU INSTALL OR USE AVAMARK
This End User License Agreement (“EULA”) is a legal agreement between You (“You” and “Your” includes a person and/or an individual entity) and Avasant, LLC (inclusive of its subsidiaries, affiliates, partners, shareholders, officers, directors and employees) (“AVASANT”) concerning Avasant’s proprietary benchmark software as a service solution offering known as “AvaMark”, inclusive of underlying software, templates, source code, object code, documentation, associated professional services, and other related information (hereinafter the “Software”), which has been licensed pursuant to an order form and/or a subscription sales agreement. For clarity, the Software includes all component parts, the associated media, any printed materials, any updates, and any “online” or electronic documentation, as applicable. As a user, by accessing, installing, copying or otherwise using the Software, You agree to be bound by the terms of this EULA. If You do not agree to the terms of this EULA, AVASANT is unwilling to license or provide you access to AvaMark and the Software. In such event, You may not access, use or copy the Software, and You should promptly contact Avasant for instructions on returning the Software. WRITTEN ASSENT IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS EULA. Acceptance of the terms and conditions of the EULA and paying the applicable fees for the use of the Software and Services are prerequisites to Your right to use such Software and related services. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE EXECUTING THIS AGREEMENT WITH AVASANT, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND ACCEPTED THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT EXECUTE THIS AGREEMENT OR CLICK THE “I ACCEPT” BUTTON AND DO NOT USE THE SOFTWARE AND RELATED SERVICES.
(i)Subject to the payment of all applicable license fees, and the terms and conditions of this EULA, AVASANT hereby grants to You a limited, non-sublicensable, non-exclusive, non-transferable right to access and use the Software and the accompanying documentation, solely for Your individual use and only by the means provided and supported by Avasant.
(ii)Upon receipt of the appropriate Software registration information, AVASANT will provide You an alphanumeric key, username, password or other means to enable You to use the Software pursuant to the terms of this EULA. Documentation shall include, but not be limited to, any printed materials, “online” or electronic data provided by or obtained from AVASANT with regard to this Software (“Documentation”). The Software and Documentation are licensed, not sold.
b.Installation and Use. This Software is licensed for use in a networked environment where the Software installed on such system (the “System”) may be made available for access by other computers, workstations, personal digital assistants, pagers, “smart phones,” or such other electronic device for which the Software was designed (“Client Devices”). You may not make access to the Software available to more than the number of specifically named users, utilizing the networked Client Devices, for which you have obtained a license.
The component parts of the Software may not be installed individually or jointly in full or in part on more than one System. Except as provided herein, the Software may only be used by specifically named users. Except as provided herein, use of software, hardware or services that bypass any Software license restrictions and/or permit non-licensed users to access or utilize the Software (e.g., “multiplexing,” “pooling,” or third party add on software or hardware) expressly does not reduce the number of licenses required (i.e., the required number of licenses would equal the number of named user inputs to the multiplexing or pooling software or hardware “front end”). If the number of users operating Client Devices that can potentially connect to the Software exceeds or has the potential to exceed the number of licenses You have obtained, then You must have a reasonable self-enforcing automatic mechanism in place to ensure that Your use of the Software does not exceed the use limits specified for the license You have obtained.
2.Term. Regardless of the location of the Software, You are responsible for strict compliance with any and all of the terms and conditions of this EULA. This EULA will terminate automatically if You fail to comply with any of the limitations or other requirements described herein, and such termination shall be in addition to and not in lieu of any criminal, civil or other remedies available to AVASANT. When this EULA terminates, You must immediately cease using the Software and destroy all copies of the Software and the Documentation. You may terminate this EULA at any point by destroying all copies of the Software and the Documentation. Furthermore, this EULA will automatically terminate if the corporate master subscription license agreement under which Your company licensed AvaMark terminates.
3.Modification and Discontinuance. The licensed Software, and its associated modules or options, are subject to change, revision, modification or discontinuance without notice and without any obligation to You. Avasant may, at its sole discretion, make bug fixes, updates and/or service packs available. Support and Maintenance services, if applicable and offered, are available at an additional cost to You, as Licensee, under a separate written agreement.
a.Ownership of Software. The Software and Documentation are protected by United States patent, copyright laws and other intellectual property laws, and international treaty provisions. Avasant and its third party licensors, if any, retain all title to and, except as expressly and unambiguously licensed herein, all rights and interest in (a) the Software, including, but not limited to, all copies, versions, customizations, compilations and derivative works thereof (by whomever produced) and all related Documentation; (b) the Avasant trademarks, service marks, trade names, icons and logos; (c) any and all copyright rights, patent rights, trade secret rights and other intellectual property and proprietary rights throughout the world in the foregoing; and (d) all Confidential Information. You acknowledge that Your possession, installation, or use of the Software does not transfer to You any ownership, title, or registrable interest of any kind to the intellectual property in the Software, and that You will not acquire any rights to the Software except as expressly set forth in this EULA. You agree that all backup, archival, or any other type of copies of the Software and Documentation will contain the same proprietary notices that appear on and in the Software and Documentation.
b.Submissions. Should You decide to submit any materials to Avasant via electronic mail, through or to Avasant website(s), or otherwise, whether as feedback, data, questions, comments, ideas, concepts, techniques, suggestions or the like, You agree that such submissions are unrestricted and shall be deemed non-confidential upon submission. You grant to Avasant and its assigns a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, commercialize, display and perform such submissions.
5.Restrictions. You may not rent, lease, sublicense, loan, sell, distribute, market or commercialize any portion of the Software or its components. You may only use the Software for your internal business use only. Except as permitted under your company’s applicable subscription license agreement, You may not permit any parent, affiliate, subsidiary or any other third parties to benefit from the use or functionality of the Software, either directly or via a facility management, timesharing, service bureau or any other arrangement. You may not use the Software as part of a facility management, timesharing, or service bureau arrangement. You may not transfer any or all of the rights granted to You under this EULA. To the maximum extent this restriction is permitted under applicable law, You may not rename files of, modify, translate, localize, decompile, disassemble, decrypt, reverse engineer, attempt to derive source code from, remove any proprietary notices from, or create derivative works based upon the Software, in whole or in part. You may not duplicate or copy any portion of the Software or Documentation, unless otherwise set forth herein. You may not remove any proprietary notices or labels on the Software, including, but not limited to, the AVASANT and product names wherever they may appear. All rights not expressly set forth hereunder are reserved by AVASANT. AVASANT reserves the right to periodically conduct audits upon advance written notice to verify compliance with the terms of this EULA.
a.Submissions. Should You decide to submit any materials to Avasant via electronic mail, through or to Avasant website(s), or otherwise, whether as feedback, data, questions, comments, ideas, concepts, techniques, suggestions or the like, You agree that such submissions are unrestricted and shall be deemed non-confidential upon submission. You grant to Avasant and its assigns a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, commercialize, display and perform such submissions.
i.You, and not Avasant, are entirely responsible for all content that you or your users upload post or otherwise transmit via the Avasant web site. Such content may include, but shall not be limited to, the following: information, data, text, software, music, sound, photographs, graphics, video, messages, trade-names, trademarks, service names and other proprietary marks or other materials that Customer, Customer Affiliates, and employees, contractors and other end-users of each upload, post or otherwise transmit via the Avasant’s web site(s) or AvaMark.
ii.Avasant does not control the content available through the Software, as such, does not guarantee the accuracy, integrity or quality of such content. Avasant reserves the right to take any action it deems appropriate with respect to Customer content posted. Such action is taken at the sole discretion of Avasant and may include, but not be limited to, withdrawal or removal of any Customer content without notice or termination of Your rights of use. Avasant does not make any warranty or representation regarding the accuracy of any content submitted by users or third parties or regarding whether the content infringes third party intellectual property rights or rights of privacy. Avasant will have no liability for any direct or consequential damages with respect to any content You provide through AvaMark.
c.Adult Use Only. Only adults can use AvaMark. By accepting the terms of this EULA, You certify that you are 18 years of age or older. Any offer for any product, service, and/or information made in connection with this web site is void where prohibited.
d.Special Admonitions for International Use. You agree to comply with all local rules regarding online conduct and acceptable content. Specifically, You agree to comply with all applicable laws regarding the transmission of technical data or data containing personally identifiable information exported from the United States or the country in which you reside.
e.Usernames and Passwords. Your username and password are confidential and You may not disclose Your password to or share your username or password with any unauthorized third parties or use Your username or password for any unauthorized purpose. You are responsible for maintaining the confidentiality of Your account information and must immediately notify Avasant of any unauthorized use of Your account or any other breach of security. You will be responsible for all activities that occur under Your password or account. Avasant personnel will never ask you for your password.
f.Links to Third-Party Sites and Third Party Content. Avasant’s web site(s) may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Avasant has no control over such sites and resources, You acknowledge and agree that Avasant is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Avasant shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, or services available on or through any such site or resource.
g.Advertising and Promotions. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Avasant web site(s), or through participation in our mailing lists, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such advertiser. You agree that Avasant shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Avasant web site(s) or through our mailing list(s).
7.Warranty and Disclaimer.
a.Limited Warranty. To the extent that Avasant provides a localized or custom installation of the Software ore related services, AVASANT warrants that for thirty (30) days from the date of original purchase the media on which the Software is contained will be free from defects in materials and workmanship. Avasant’s sole and entire liability and Your exclusive remedy shall be replacement of the defective media. This limited warranty is void if the defect has resulted from accident, abuse, or misapplication. Any replacement media will be warranted for the remainder of the original warranty period. This remedy is not available to the extent it is prohibited under United States export control laws and regulations.
c.Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN, THE SOFTWARE (AND ACCOMPANYING DOCUMENTATION) IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING PROVISIONS, YOU ASSUME SOLE RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND SOLE RESPONSIBILITY FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, AVASANT MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, VIRUS FREE, OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL SATISFY YOUR SPECIFIC REQUIREMENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AVASANT DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES, OF LACK OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, AND LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE SOFTWARE AND ASSOCIATED DOCUMENTATION. THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE. THE ENTIRE RISK OF THE QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE, IF ANY, REMAINS SOLELY WITH YOU. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
d.Indemnification. You agree to defend, indemnify and hold harmless AVASANT and its directors, officers, employees, affiliates, sub-licensees, and agents from and against all claims, defense costs (including reasonable expert and attorneys' fees), judgments and other expenses arising out of or on account of any negligent act, omission, or willful misconduct by You or on Your behalf in (i) the installation or use of the Software, (ii) any content you upload or otherwise make available through the Software, or (ii) your compliance or failure to comply with this EULA.
e.Data. YOU ACKNOWLEDGE THAT ANY DATA ENTRY, CONVERSION OR STORAGE IS SUBJECT TO THE LIKELIHOOD OF HUMAN AND MACHINE ERRORS, MALICIOUS MANIPULATION, OMISSIONS, DELAYS, AND LOSSES, INCLUDING, BUT NOT LIMITED TO, INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA THAT MAY RESULT IN LOSS OR DAMAGE TO YOU AND/OR YOUR PROPERTY, AND/OR YOUR DETRIMENTAL RELIANCE ON MALICIOUSLY MANIPULATED DATA. AVASANT SHALL NOT BE LIABLE FOR ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES. YOU ARE RESPONSIBLE FOR ADOPTING REASONABLE MEASURES TO LIMIT THE IMPACT OF SUCH PROBLEMS, INCLUDING BACKING UP DATA, ADOPTING PROCEDURES TO ENSURE THE ACCURACY OF INPUT DATA, EXAMINING AND CONFIRMING RESULTS PRIOR TO USE, ADOPTING PROCEDURES TO IDENTIFY AND CORRECT ERRORS AND OMISSIONS, REPLACING LOST OR DAMAGED MEDIA, AND RECONSTRUCTING DATA.YOU ARE ALSO RESPONSIBLE FOR COMPLYING WITH ALL LOCAL, STATE, AND FEDERAL LAWS PERTAINING TO THE USE AND DISCLOSURE OF ANY DATA.
8.Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL AVASANT BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, FOR PERSONAL INJURY, LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING A DUTY OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE (WHETHER ACTIVE OR PASSIVE), AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OR INABILITY TO USE THE SOFTWARE, ANY CLAIMS RELATING TO THE USE OF CONTENT AVAILABLE THROUGH THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE, AND GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY BY AVASANT, AND EVEN IF AVASANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL AVASANT BE LIABLE FOR ANY DAMAGES IN EXCESS OF ANY AMOUNTS COLLECTED FROM YOU OVER THE PREVIOUS THREE (3) MONTH PERIOD. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.Entire Agreement. This EULA expressly supersedes and completely replaces any and all prior end user license agreements. AVASANT shall not be bound by or liable to You for any pre-existing or contemporaneous written or oral representations or warranties, made by anyone, with respect to the Software.
10.Dispute Resolution. Any dispute relating to or arising under this EULA or the use of the Software or its accompanying documentation shall be resolved by arbitration before a single arbitrator in Los Angeles County, California pursuant to the rules of the American Arbitration Association. The arbitrator shall be an attorney experienced with software and technology disputes. The decision of the arbitrator shall be final and may be enforced by any court of competent jurisdiction. Notwithstanding the foregoing, nothing in this EULA will prevent Avasant from applying to any court of competent jurisdiction for an injunction. You further agree to waive any objections to personal jurisdiction, and agree to service of process and exclusive venue in the Federal District Court for Southern California or the California Superior Court of Los Angeles County, California.
11.Severability. If any provision of this EULA is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby.
12.Export Controls. You acknowledge that the Software may be subject to export controls imposed by U.S. laws and regulations. During the term of this EULA, You agree to comply with the U.S. Foreign Corrupt Practices Act and with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or foreign agency or authority, and not to knowingly export, re-export, download, or allow the export, re-export or downloading of the Software or Documentation and any underlying information or technology in violation of any such restrictions, laws or regulations. EXPORT OF THE SOFTWARE MAY BE SUBJECT TO COMPLIANCE WITH THE RULES AND REGULATIONS PROMULGATED FROM TIME TO TIME BY THE BUREAU OF EXPORT ADMINISTRATION, UNITED STATES DEPARTMENT OF COMMERCE, WHICH RESTRICT THE EXPORT AND RE-EXPORT OF CERTAIN PRODUCTS AND TECHNICAL DATA. YOU ACKNOWLEDGE AND AGREE THAT IF THE EXPORT OF THE SOFTWARE IS CONTROLLED UNDER SUCH RULES AND REGULATIONS, THEN YOU SHALL NOT CAUSE THE SOFTWARE TO BE EXPORTED OR RE-EXPORTED, DIRECTLY OR INDIRECTLY, (A) WITHOUT ALL EXPORT OR RE-EXPORT LICENSES AND UNITED STATES OR OTHER GOVERNMENTAL APPROVALS REQUIRED BY ANY APPLICABLE LAWS, OR (B) IN VIOLATION OF ANY APPLICABLE PROHIBITION AGAINST THE EXPORT OR RE-EXPORT OF ANY PART OF THE SOFTWARE. SOME COUNTRIES HAVE RESTRICTIONS ON THE USE OF ENCRYPTION WITHIN THEIR BORDERS, OR THE IMPORT OR EXPORT OF ENCRYPTION EVEN IF FOR ONLY TEMPORARY PERSONAL OR BUSINESS USE. YOU ACKNOWLEDGE THAT THE IMPLEMENTATION AND ENFORCEMENT OF THESE LAWS IS NOT ALWAYS CONSISTENT AS TO SPECIFIC COUNTRIES. YOU ACKNOWLEDGE THAT IT IS YOUR ULTIMATE RESPONSIBILITY TO COMPLY WITH ANY AND ALL GOVERNMENT EXPORT AND OTHER APPLICABLE LAWS AND THAT AVASANT HAS NO FURTHER RESPONSIBILITY AFTER THE INITIAL LICENSE TO YOU WITHIN THE ORIGINAL COUNTRY OF LICENSE.
13.Confidentiality. You agree that the Software, including, but not limited to, all source and object code components, screen shots and displays, graphical user interfaces, algorithms, formulae, data structures, scripts, application programming interfaces and protocols, and the Documentation (collectively the “Confidential Information”) are protected intellectual property of AVASANT and are owned by AVASANT or, where applicable, its third-party licensors. You agree to retain all Confidential Information in strict confidence at least with the same amount of diligence that You exercise in preserving the secrecy of Your most-valuable information, but in no event less than reasonable diligence. You agree to: (i) only disclose Confidential Information to Your employees and agents to the extent required to use the Software under the terms of this EULA and not to disclose or disseminate the Confidential Information to any third party without the prior written consent of AVASANT, (ii) use the Confidential Information solely for Your benefit as provided for herein and not to allow any third party to benefit from the Confidential Information, and (iii) bind Your employees and agents, by terms no less restrictive than those set forth herein, to maintain the confidentiality of such Confidential Information, and not use or disclose such information except as permitted under this EULA. Notwithstanding the disclosure of any Confidential Information for any reason, such Confidential Information shall continue to be owned by AVASANT or its licensors.
14.Miscellaneous. This EULA is exclusively governed by the laws of the United States and the State of California, without reference to conflicts of law principles. The application of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) is expressly excluded. This EULA sets forth all of Your rights and is the entire agreement between the parties. This EULA supersedes any other communications with respect to the Software and/or Documentation. This EULA may not be modified except by a written addendum issued by a duly authorized representative of AVASANT. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by a duly authorized representative of AVASANT. You hereby acknowledge a breach of this EULA would cause irreparable harm and significant injury to AVASANT that may be difficult to ascertain and that a remedy at law would be inadequate. You agree that AVASANT shall have the right to seek and obtain immediate injunctive relief to enforce the obligations under this EULA in addition to any other rights and remedies it may have. If any provision of this EULA is held invalid, the remainder of this EULA shall continue in full force and effect. The controlling language of this EULA is English. If You have received a translation into another language, it has been provided for Your convenience only.