End User License Agreement
This End User License Agreement (the “Agreement“) is entered into effective as of the date that you click the “I Accept/Agree” at the end of this Agreement (“Effective Date”) and is a legal agreement between you (either as an individual or as the representative of the legal entity on whose behalf you are acting) (the “Customer“) and TrueFort Inc., a Delaware Corporation with a principal address of 3 W. 18th Street, Weehawken, NJ 07806 (“TrueFort“), governing Customer’s use of the version of TrueFort’s proprietary products and services purchased by Customer, along with any documentation and any patches, fixes and updates to such services provided to Customer by TrueFort from time to time (collectively, the “Products”).
The General Terms of this Agreement (“General Terms”) govern Customer’s access and use of the Products, except to the extent there is a separate signed agreement between Customer and TrueFort governing Customer’s access and use of the Products. To the extent of a conflict between the provisions of the foregoing documents, the order of precedence will be (1) the signed agreement, and (2) this End User License Agreement.
License Grant, Rights and Restrictions
1.1. Subject to the terms and conditions set forth in this Agreement, TrueFort grants Customer a non-exclusive, non-transferable, non-sublicensable, limited right to (i) access the Products and (ii) use the Products only in accordance with the documentation that may be provided to Customer, in electronic format or otherwise, in each case for use only within Customer’s internal business operations.
1.2. Customer will ensure that neither Customer nor any of Customer’s employees, contractors or agents allow any person or entity other than the person entering into this Agreement on Customer’s behalf to have access to Products. Customer shall immediately notify TrueFort upon its knowledge or belief that such Products are or may be being used in violation of this Section 1.2 or is otherwise being used in connection with a breach of this Agreement.
1.3. Customer guarantees the performance of and will be fully responsible for any failure by Customer or its employees, contractors, or agents to comply with, the terms of this Agreement.
1.4. If Customer makes any suggestions, comments, enhancement requests, recommendations or provides any other feedback to TrueFort regarding the Products or any other matter, TrueFort has and will have the right, without any requirement to compensate Customer, to use and to permit others to use any such suggestions, enhancement requests, comments, recommendations or other feedback for any purpose including, but not limited to, incorporating them into the Product, which shall be the property of TrueFort.
Customer will not (a) directly or indirectly copy, display, distribute, or otherwise use the Products in any manner or for any purpose not expressly authorized by this Agreement; (b) download or copy all or any portion of the Products (including without limitation the underlying code) or create derivative works of or otherwise adapt, modify, or translate the Products s; (c) reverse engineer, decompile, translate or disassemble the Products ; (d) alter, remove, obscure, erase, deface, or hide from view any copyright, trademark, or other proprietary rights notice contained in or incorporated into the Product; (e )use, rent, or lend the Products license in connection with a service bureau, time-sharing, ASP or similar arrangement; (f) use the Products in any way that violates any individual’s privacy; (g) modify, incorporate into or with other software or services any part of the Products s; (h) create or disseminate performance information or analysis (including, without limitation, benchmarks) relating to the Products; (i) upload or download any software, data or information except as may be expressly permitted under Section 1.1; (j) use, or permit anyone else to use, the Products in ways that violate laws, infringe or violate the rights of others including, but not limited to third party intellectual property rights, privacy, and publicity rights, or interfere with other users of TrueFort’s services; (j) use or rely on the Products s, including any reports generated by the Products s, in connection with the development by Customer of any programs, writings, or works, or in connection with the production of products or the performance of services for third parties; or (k) introduce in or to the Products any virus or implement a denial of service attack or introduce or implement any other code or routine which results in disruption or damage to the Products, alter, damage or delete any data or retrieve or record information about the Products or its uses. Customer will promptly notify TrueFort of any complaints or objections to Customer’s use of the Products.
1.6. Customer acquires no ownership rights in or title to the Products and will not at any time have physical access to any facility providing the Products. Except for the license rights expressly granted to Customer in Section 1.1, and except as provided in Section 1.7, TrueFort and its licensors (if any) retain all ownership rights in and title to the Products.
1.7. The Products may include certain open-source software and other freely available software and material (“Excluded Components”). TrueFort will identify Excluded Components included in the Products upon request for a proper purpose consistent with this Agreement. Notwithstanding anything to the contrary in this Agreement, the Excluded Components are governed by the terms and conditions of the applicable license and/or notice provided by the third-party authors, contributors, and suppliers of the Excluded Components (the “Suppliers”), and TrueFort has no responsibility or liability of any kind related to such Excluded Components. The Suppliers’ licenses and other notices (including instructions for obtaining source code for certain Excluded Components), may be available in the documentation accompanying the Products s. Customer agrees to comply with all such licenses and other notices. Further, and notwithstanding any of the terms of this Agreement or any other agreement Customer may have with TrueFort: (a) the Suppliers provide the Excluded Components WITHOUT WARRANTIES OF ANY KIND AND SUCH SUPPLIERS DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE EXCLUDED COMPONENTS; and (b) in no event are the Suppliers liable for any direct, indirect, incidental, special, exemplary, punitive or consequential damages, including, but not limited to lost data, lost savings and lost profits, with respect to the Excluded Components.
1.9. TrueFort may, but will not be required to, decide in its sole discretion to modify, enhance, or otherwise change the Products. Any and all bug fixes, updates, upgrades, modifications and new releases of the Products (collectively, “Improvements”) provided to Customer by TrueFort will be considered “Products” subject to the provisions of this Agreement; provided that TrueFort may, in its sole discretion, license any Improvements (including but not limited to a new version of Products) on separate, different or additional terms (including for an additional fee).
1.10. TrueFort warrants that during the applicable Term: (i) TrueFort will not materially decrease the overall functionality of the Products; and (ii) the Products will perform materially in accordance with the applicable Documentation. Our sole and exclusive liability, and your sole and exclusive remedy for any breach of these warranties, will be your right to terminate the applicable Product purchased, and we will refund to you any prepaid but unused Fees for the remainder of the Term.
1.11. Neither party will take any action intended to appropriate or perfect rights in the intellectual property of the other, including, without limitation, the filing of patent, trademark, or service mark applications or copyright registrations.
Term and Termination
2.1. This Agreement will commence on the Effective Date and will continue until the earlier of (a) termination pursuant to the terms of this Agreement, or (b) TrueFort and Customer enter into a further agreement that expressly supersedes this Agreement.
2.2. TrueFort may terminate this Agreement upon written notice to Customer if Customer breaches a material provision of this Agreement and fails to cure the breach within thirty (30) days following such notice. Notwithstanding the above, TrueFort may terminate this Agreement immediately after providing written notice to Customer if Customer TrueFort an un-curable provision of this Agreement such as, but not limited to, the provisions regarding reverse engineering, disassembly, de-compilation, or confidentiality.
2.3. Upon termination of this Agreement, (a) Customer will immediately cease all use of the Products s; and (b) TrueFort will (if applicable) delete any confidential information of Customer then on TrueFort’s servers; provided that, if termination occurs for any reason other than Customer’s breach, TrueFort may retain such information subject to TrueFort and Customer agreeing separately on the terms under which TrueFort would retain such information. Termination of this Agreement will not prevent either party from pursuing all available legal remedies that accrued prior to termination, nor will it relieve Customer of any obligation to make payments that accrued prior to termination. The parties’ rights and obligations under Sections 1.2, 1.3, 1.4, 1.5, 1.6, 1.10, 2.3, 3, 5, 6, 7, 8, 9 and 10 of this Agreement will survive termination of this Agreement.
2.5. In addition to TrueFort’s rights to terminate this Agreement, TrueFort may suspend Customer’s right to access the Products at any time if TrueFort determines, in its sole discretion, that Customer’s use of the Products is interrupting or interfering with the normal operation of the Products.
3.1 Customer agrees to pay TrueFort all amounts required to be paid (a) upon placing an electronic order for a license, or (b) under the terms of any signed agreement between Customer and TrueFort governing Customer’s use of the Products. No failure by TrueFort to request any payment or to demand any performance will be deemed a waiver by TrueFort or a waiver of TrueFort’s right to terminate this Agreement in accordance with its terms.
4.1 Customer shall, at its own cost and expense, provide all equipment, operating systems, and software (including Web browser) needed to use and access the Products in accordance with the technical requirements in TrueFort’s documentation. Customer shall also provide, at its own cost and expense, all connections from its computer systems to the Products.
5.1 The Products contain certain information that TrueFort considers either proprietary, confidential, or both (collectively, “Confidential Information”). In addition, during the term of this Agreement TrueFort may also disclose to Customer certain other Confidential Information. Customer will hold TrueFort’s Confidential Information in confidence and will use its best efforts to protect it. Customer will use such Confidential Information for the sole purpose of performing its obligations under this Agreement. Customer will not disclose Confidential Information to any person other than, in the case of a Customer that is an entity, employees and independent contractors of Customer who need to know such Confidential Information in order to carry out the terms of this Agreement and who are bound by a written confidentiality agreement with Customer that is no less protective of such Confidential Information than this Agreement. Upon request of TrueFort, Customer will provide TrueFort with reasonable evidence of such written confidentiality agreement. Upon termination of this Agreement, Customer will either return to TrueFort all Confidential Information in its possession (including all copies) or will, at TrueFort’s direction, destroy all Confidential Information (including all copies) and Customer (or in the case of a Customer that is an entity, an officer of Customer) will certify its destruction to TrueFort. The foregoing obligations of confidentiality and non-use will not apply to any Confidential Information that Customer can show, by competent evidence: (a) is publicly known at the time of disclosure or enters the public domain following disclosure through no fault of Customer; or (b) Customer can demonstrate was already in its possession without restriction prior to disclosure under this Agreement. Customer may disclose Confidential Information upon the order of any competent court or government agency, provided that, prior to such disclosure Customer will, unless prohibited by law, inform TrueFort of such order and provide TrueFort with reasonable assistance to prevent or limit such disclosure. Customer agrees that its obligations under this Article are necessary and reasonable in order to protect TrueFort and its business, and that monetary damages would be inadequate to compensate TrueFort for any breach by Customer of such obligations. Accordingly, Customer agrees and acknowledges that any such breach or threatened breach will cause irreparable injury to TrueFort and that, in addition to any other remedies that may be available at law, in equity or otherwise, TrueFort will be entitled to seek injunctive relief against the continued breach or threatened breach of Customer’s obligations under this Section 5 without the necessity of proving actual damages.
Customer Representations and Warranties
Customer represents and warrants to TrueFort that:
6.1. Customer has full personal or corporate power and authority to execute and deliver this Agreement, to consummate the transactions contemplated under this Agreement, and that entering this Agreement violates no contractual right of any third party; and
6.2. This Agreement constitutes the valid and binding agreement of Customer, enforceable against Customer in accordance with its terms.
Disclaimer of Representations and Warranties
7.1. TrueFort warrants that for sixty (60) days after the Effective Date (the “Warranty Period”) that the Products (but expressly excluding any and all Improvements) will perform under normal operation substantially in accordance with TrueFort’s documentation for the Products in place as of the Effective Date when used as specified in that documentation. TrueFort shall have no obligations under this warranty if the nonconformity is not reported to TrueFort during the Warranty Period. Customer’s sole remedy and TrueFort’s sole obligation with respect to any breach of the foregoing warranty is to use commercially reasonable efforts to repair the Products s. If TrueFort is unable to remedy the nonconformities within a reasonable time, Customer may terminate the license and this Agreement (subject to the survival of the provisions set forth in Section 2.3). TrueFort will not be responsible or liable for any failure to meet the foregoing responsibilities or any other responsibilities in this Agreement caused, in whole or in part, by Customer’s systems or any hardware.
7.2. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 7.1, THE PRODUCTS AND ANY MATERIALS PROVIDED BY OR ON BEHALF OF TRUEFORT ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TRUEFORT DISCLAIMS ALL WARRANTIES, ORAL OR WRITTEN, WHETHER EXPRESS OR IMPLIED. NEITHER TRUEFORT NOR ANY OF ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR LICENSORS WARRANTS THAT THE PRODUCTSWILL MEET CUSTOMER’S NEEDS, THAT ALL ERRORS WILL BE CORRECTED OR THAT DATA WILL NOT BE LOST. TRUEFORT AND ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, AND LICENSORS MAKE NO WARRANTY, GUARANTEE OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OF THE PRODUCTS S, OR ANY MATERIALS PROVIDED UNDER THIS AGREEMENT. Without limiting the generality of the foregoing, (a) Customer’s use of the Products is at Customer’s sole risk, (b) Customer is solely responsible for reviewing and evaluating the accuracy and relevance of any information stored on, generated by, or received through the Products s, and (c) TrueFort cannot guarantee and does not guarantee said accuracy.
Limits of Liability
8.1. THE CUMULATIVE AGGREGATE LIABILITY OF TRUEFORT TO CUSTOMER RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE FEES, IF ANY, PAID TO TRUEFORT FOR THE PRODUCTSIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. IN NO EVENT WILL TRUEFORT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING ANY DAMAGES FOR LOSS OF DATA, LOSS OF PROFITS, LOSS OF USE, OR INTERRUPTION OF BUSINESS) ARISING OUT OF THIS AGREEMENT, EVEN IF TRUEFORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AN AGREED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS HELD UNENFORCEABLE FOR ANY OTHER REASON.
8.2. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION 8 WILL APPLY TO ALL CAUSES OF ACTION, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE, MISREPRESENTATION AND OTHER TORTS, AND LIABILITY BASED UPON THE PROVISIONS OF ANY PART OF THIS AGREEMENT AND ANY FEDERAL, STATE OR LOCAL LAW OR ORDINANCE. THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL TERMS OF THIS AGREEMENT, AND THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THEIR INCLUSION.
Any notice required or permitted to be given under this Agreement will be in writing and deemed received by the party to whom it is addressed: (a) immediately, if delivered electronically, return receipt acknowledged; (b) one (1) business day after dispatch by nationally recognized overnight courier; or (c) five (5) business days after dispatch by certified U.S. mail, postage prepaid and return receipt requested. All notices will be sent to Customer at the email address entered in the registration form. Notices to TrueFort will be sent to:
3 W. 18th Street
Weehawken, NJ 07806
10.1. Neither party will be liable to the other party for any delay or failure to perform its obligations under this Agreement due to causes beyond its reasonable control. Performance times will be considered extended for a period of time equivalent to the time lost because of such delay.
10.2. Customer may not assign or otherwise transfer its rights, duties, or obligations under this Agreement to any other person, corporation, or other entity without the express prior written approval of TrueFort. Any purported assignment or transfer that does not conform to the provisions hereof will be void.
10.3. This Agreement will be governed by the laws of the state of Delaware, without regard to any conflicts-of-law principle that would require or permit the application of the substantive law of any other jurisdiction. Sole and exclusive jurisdiction and venue over any action, suit or proceeding arising out of or relating to this Agreement in any manner will lie in the United States District Court for the District of Delaware, Wilmington County. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Customer agrees to use the Products for the use identified in this Agreement and only for proper business purposes in accordance with all applicable federal, state, and local laws and regulations, including, without limitation, all laws and regulations respecting data privacy, international communications, foreign corrupt practices, the transfer of intellectual property, and the export and import of data and Products and agrees to indemnify and hold harmless TrueFort for any violation thereof.
10.4. If any provision of this Agreement is or becomes illegal, unenforceable, or invalid (in whole or in part, for any reason), the remainder of this Agreement will remain in full force and effect without being impaired or invalidated in any way.
10.5. The article and section titles and headings in this Agreement are intended solely for convenience of reference and are not intended to explain, modify, or place any construction or limitation upon any provision of this Agreement.
10.6. No representations or statements of any kind made by either party that are not expressly stated in this Agreement or in any written amendment to this Agreement will be binding on such party. This Agreement constitutes the complete and exclusive statement of the agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous proposals, oral or written, and all other communications between the parties relating to such subject matter.
10.7. Nothing in this Agreement is intended to, or will, create any third-party beneficiaries, whether intended or incidental, and neither party will make any representations to the contrary.
10.8. Neither party will be deemed to have waived any term, condition, or other provision hereof or to have consented to any breach hereof by the other party unless such waiver or consent is in writing and executed by a duly authorized representative of such party. No consent by either party to, or waiver by either party of, a breach by the other party, whether such consent or waiver is express or implied, will constitute a consent to, waiver of or excuse for any different or subsequent breach.
10.9. Nothing in this Agreement will be construed to make the parties partners, joint venturers, representatives, or agents of each other, and neither party will represent to any third party that the parties have any such relationship. The parties under this Agreement are acting in performance of this Agreement as independent contractors engaged in the operation of their respective businesses. A party’s employees, agents, or representatives are not employees or agents of the other party and are not entitled to any benefits offered by the other party, including, without limitation, wages, stock options, or profit sharing. Neither party will be responsible for payment of workers’ compensation, disability benefits, or unemployment insurance, or for withholding or paying employment-related taxes, for or with respect to the other party or its employees.
10.10. This Agreement is in the English language only, which language will be controlling in all respects, and all versions of this Agreement in any other language will be for accommodation only and will not be binding on the parties to this Agreement. All communications and notices made or given pursuant to this Agreement, and all documentation and support to be provided, unless otherwise noted, will be in the English language.