End-User License Agreement (EULA) of On The Go!
This End-User License Agreement (“EULA”) is a legal agreement between you and eCIFM Solutions, Inc.
This EULA agreement governs your acquisition and use of our On The Go! software (“Software”) directly from eCIFM Solutions, Inc. or indirectly through a eCIFM Solutions, Inc. authorized reseller or distributor (a “Reseller”).
Please read this EULA agreement carefully before completing the installation process and using the On The Go! software. It provides a license to use the On The Go! software and contains warranty information and liability disclaimers.
If you participate in our beta or a free trial of the On The Go! software, this EULA agreement will also govern that your use. By installing and/or using the On The Go! software, you are confirming your acceptance of the Software and agreeing to become bound by the terms of this EULA agreement.
If you are entering into this EULA agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions. If you do not have such authority or if you do not agree with the terms and conditions of this EULA agreement, do not install or use the Software, and you must not accept this EULA agreement.
This EULA agreement shall apply only to the Software supplied by eCIFM Solutions, Inc. herewith regardless of whether other software is referred to or described herein. The terms also apply to any eCIFM Solutions, Inc. updates, supplements, Internet-based services, and support services for the Software, unless other terms accompany those items on delivery. If so, those terms apply.
This Agreement contains the terms and conditions related to the licensing of software products provided by eCIFM Solutions Inc. (eCIFM). The specific licenses governed by this EULA Agreement will be set forth on one or more schedules. The Schedule A(s) will be incorporated into and will form part of this Agreement. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
a) Affiliate shall be defined as any company, corporation, partnership, joint venture, political subdivision, or other entity in which either party directly or indirectly controls at least fifty percent (50%) of the profits or voting rights or which is controlled by a common parent.
b) Device License shall mean a type of license under which the Licensee is limited to the number of devices which may have the software installed or otherwise using the Product(s) at any one time. Each device which will access the Product(s) shall have a separate software install.
c) Concurrent License or Concurrent User License shall mean a type of license under which the Licensee is limited to the number of user provided under the Concurrent License logged into or otherwise using the Product(s) at any one time. Each user who will access the Product(s) under a Concurrent License will have a unique user ID. There may be many users with unique IDs for a Concurrent License, but only the total number of users licensed under the Concurrent License may be logged into or otherwise use the Product(s) at any one time.
d) Derivative Work shall mean a work that is based upon or incorporates the Product(s), in whole or in part, such as a revision, modification, translation, abridgement, condensation, expansion, compilation, or any other form in which the Product(s) may be recast, communicated, transformed, included, modified or adapted.
e) Documentation shall mean eCIFMs published Product user guides and Product installation guides delivered to Licensee with the Product(s).
f) Maintenance shall have the meaning given to it in Section 5 herein.
g) Marks shall mean eCIFMs federal or international trademark registrations, trademarks, trade dress, trade names, service marks, symbols, slogans, emblems, logos, designs, name, patent notices, copyright notices, other indicia of origin and other proprietary rights notices and markings.
h) Named User License shall mean a type of license under which specific user(s) will access the Product(s). The number of named users will be limited to the number of users set forth in the Named User License.
i) Product(s) shall mean the software programs and applications specifically identified in the applicable Schedule A (including updates thereto and New Releases provided to Licensee as Maintenance pursuant to Section 5 of this Agreement). The Product(s) include executable object code form and may include source code. As a result, the license granted under this Agreement shall apply to the Product(s) in executable object code form only, unless otherwise expressly set forth in a Schedule A.
3. GENERAL GRANT:
a) Subject to the terms and conditions herein including, but not limited to Licensee’s obligation to pay the fees pursuant to Section 7 below, eCIFM hereby grants to Licensee a nonexclusive, nontransferable license to use the Product(s) identified in the Schedule A(s), during the period specified in the applicable Schedule A, in executable object code form only, in the country designated in the Ship To Address section of the applicable Schedule A, solely pursuant to the terms and conditions set forth in this Agreement and the applicable Schedule A. Licensee agrees to use the Product(s) for its internal business purposes only and only in accordance with the terms and conditions set forth in this Agreement. Licensee shall have no right to sublicense, resell, lease, rent, distribute, operate a software service bureau, operate as an outsourcer, use the Product(s) in a time-sharing arrangement, or, except as otherwise set forth in Section 17 herein, transfer such Product(s). Licensee shall have no right to, and agrees not to, modify, alter, disassemble, create Derivative Works of, translate, reverse compile, reverse engineer, decompile, disassemble, reengineer, extract ideas, algorithms or procedures from the whole or any part of the Product(s), create a patent based on the Product(s), any portion thereof or any Derivative Works, attempt to discover or modify in any way the underlying source code of the Product(s) or any portion thereof, create or permit, allow, or assist others to create the source code of the Product(s) or any portion thereof, or in any way allow any individual or entity to access the Product(s) without a valid license from eCIFM for such access. Licensee agrees to abide by the device/user limitations set forth in the applicable Schedule A regardless of whether the Product(s) or any portion thereof (including without limitation the business rules, user interfaces and database schema inherent in the Product(s)) is accessed via a client, direct database, a LAN, a WAN, the Internet or any other application program, interface or medium. Licensee shall not remove, suppress or modify in any way any Marks on or in the Product(s) or Marks that are on any media supplied with the Product(s). Licensee shall incorporate such Marks in any copies made of the Product(s) pursuant to Section 3(c) of this Agreement.
b) In the event Licensee contracts with a third party for services directly related to the Product(s), consulting, or outsourcing which would include outsourcing the operation of the Product(s), such third party may have access to the Product(s) licensed herein provided (i) written notice is provided to eCIFM, (ii) such third party may not charge fees related to or profit from the Software, (iii) such third party is not a eCIFM competitor, and (iv) the third party agrees to comply with the licensing terms set forth herein. Licensee acknowledges and agrees that breaches by such third parties shall be deemed to be breaches by Licensee under this Agreement.
c) Licensee will be given one (1) copy of the Product(s) for one active, production installation. Licensee may not make any copies of the Product(s) except that Licensee, subject to any express limitations on the user limitations set forth in the applicable Schedule A, may make one (1) copy solely for archival. Notwithstanding such copies, Licensee acknowledges and agrees that Licensee will have only one active, production installation of the Product(s) at any one time.
d) eCIFM shall provide one electronic copy of the Documentation for each Product at no additional charge. The Documentation may, subject to the provisions of this Agreement, be used and reproduced by Licensee solely for its internal use within Licensees organization in connection with its permitted use of the Product(s). Under no circumstances may Licensee distribute outside of Licensees organization a copy of any Documentation or a portion thereof without prior written authorization from eCIFM. Licensee shall not remove, obliterate or alter any Marks that appear on or in Documentation or that are on any media supplied with the Documentation and shall not affix to the same any other notice or mark. Licensee shall have no right to copy, in whole or in part, any Documentation other than as expressly set forth in this Agreement. Licensee shall reproduce and include all Marks on any permitted copies or partial copies of Documentation it makes. Licensee shall have no right to sublicense, resell, lease, rent, distribute, or, except as otherwise set forth in Section 17 herein, transfer such Documentation. Licensee shall have no right to, and agrees not to, modify, alter, disassemble, create derivative works of, translate, extract ideas, algorithms or procedures from the whole or any part of the Documentation, create a patent based on the information contained in the Documentation, any portion thereof or any derivative works, or in any way allow any individual or entity to access the Documentation without a valid license from eCIFM for such access.
e) All rights not expressly granted in this Agreement are reserved by eCIFM.
a) Each license granted hereunder (if any) grants Licensee only the right to use the specified Product(s) or Documentation under the terms, conditions, and restrictions specified in this Agreement.
b) eCIFM owns all of the intellectual property rights (including without limitation patents, trade secrets, trademarks, service marks, trade names, copyrights and other rights in works of authorship (including rights in computer software), moral and artists rights, design rights, trade or business names, domain names, know-how, and database rights whether any of the foregoing are registered or unregistered and all rights or forms of protection of a similar nature in any country) in and to its software, the Product(s) and the Documentation (collectively, the Intellectual Property Rights). Licensee hereby acknowledges eCIFMs claim that the Product(s), excluding any third party products, have been developed, acquired and maintained by eCIFM on a confidential basis as eCIFMs valuable trade secrets. Licensee agrees to preserve the confidential nature of these trade secrets and Licensee will not permit the use or copying of the Product(s) or Documentation by, or disclose any information relating to the Product(s) or Documentation to, any third party, except as expressly set forth in this Agreement.
c) Licensee does not, and shall not, acquire any other right, title or interest in any Product(s), Documentation, Derivative Works, or any copyrights or other Intellectual Property Rights therein, which shall at all times remain the property of eCIFM, a eCIFM subsidiary or relevant third party.
d) Licensee agrees not to apply or otherwise seek any patent that is based upon, uses or incorporates any part of the Product(s) or assist others in doing the same.
e) The Marks are the exclusive property of eCIFM. Ownership of and all right, title and interest in and to any and all Marks are and shall remain vested solely in eCIFM. Nothing in this Agreement shall grant to Licensee any right, title or interest in or to any of the Marks.
f) Licensee agrees to safeguard all proprietary rights of eCIFM in and to the Product(s) and Documentation and agrees to notify eCIFM promptly of any legal notices, claims, or actions directly or indirectly relating to the Product(s). Licensee further agrees not to enter into or compromise any legal action or other proceeding relating to the Product(s) or Documentation without the prior written consent of eCIFM.
g) Licensee acknowledges that eCIFMs rights in and to the Product(s) and Documentation is unique and that financial remedies will be insufficient to compensate eCIFM for any infringement of such rights. eCIFM shall be entitled to seek injunctive and other equitable relief, without the requirement of posting a bond, to protect, maintain, defend, enforce, and preserve such rights, in addition to any other remedies that may be available.
5. SUPPORT AND MAINTENANCE
a) eCIFM has established a support and maintenance program (Maintenance). If and for so long as Licensee is enrolled in and paying for Maintenance, eCIFM shall:
- Supply code corrections to Licensee to correct Product(s) malfunctions in order to bring the Product(s) into conformity with the then-current published specifications as set out in the Documentation for the most current version of the Product(s), unless such malfunctions have been caused by Licensees modifications of the Product(s) or unless Licensees modifications prohibit or hamper such corrections;
- Provide Licensee with telephone and Internet-based support to answer operational questions and to report irregularities within the Product(s). Days and times for such service will depend upon the level of Maintenance contracted for by Licensee as set forth in the applicable Schedule A;
- Supply, so long as commercially practical, updated Product(s) as required to operate under new releases of the operating systems supported by the Product(s); and
- Supply all extensions, enhancements, and other changes that eCIFM deems to be logical improvements or extensions (New Releases) incorporated into the Product(s) that eCIFM elects to generally furnish without additional charge to all licensees enrolled in Maintenance for the particular Product(s). Licensee shall receive one (1) copy of each New Release, at no additional license charge. eCIFM shall provide, via telephone, reasonable assistance to help Licensee install and operate each New Release.
b) eCIFM shall have no support obligations under Maintenance with respect to (i) Product(s) that are modified by or on behalf of Licensee; (ii) malfunctions caused by the use or operation of a Product(s) with any hardware, software, or media not explicitly authorized by this Agreement, the applicable Schedule A, or the Documentation; (iii) versions of the Product(s) that are more than twelve (12) months older than the most recent generally available release of the Product(s); (iv) malfunctions resulting from incorrect use of the Product(s); (v) malfunctions caused by intentional misuse; (vi) malfunctions attributable to the equipment and programs used in conjunction with the Product(s) or to any other reason external to the Product(s); or (vii) if any previous patches or error corrections of the Product(s) have not been implemented by Licensee or the instructions of eCIFM have not been followed.
c) The charge for Maintenance shall be due and payable annually in advance and shall be subject to the requirements set forth in Section 7 herein. At the time of the initial purchase, the Maintenance charge shall be as set forth on the applicable Schedule A. Thereafter, and approximately sixty (60) days prior to the expiration of the then current annual maintenance period (or at such other times as eCIFM generally invoices maintenance for its customers), eCIFM shall invoice Licensee for the then current charge for the next year of Maintenance as set forth in the applicable Schedule A.
d) Licensee may cancel its enrollment in Maintenance by giving notice of such cancellation at least thirty (30) days prior to the anniversary date of Maintenance. Licensee may not cancel Maintenance on only a portion of the full number of licenses owned by Licensee for any given product line. For perpetual licenses to the Product(s), termination of Maintenance will not terminate Licensees rights to continue to use the Product(s) under the provisions of Section 3 herein. Licensee may re-enroll in Maintenance by complying with the terms of eCIFMs then current Maintenance Renewal Policy.
e) eCIFM reserves the right to discontinue Maintenance for a Product(s) if eCIFM generally discontinues such services to all licensees of the applicable Product(s), with twelve (12) months notice to Licensee.
f) eCIFMs obligation to provide Maintenance is dependent on the continued existence of the license to use the Product(s) and, if the license is terminated for any reason, eCIFMs obligations to provide Maintenance will automatically terminate without any compensation to Licensee.
6. PAYMENT AND TAXES
a) Following the execution of the applicable Schedule A, Licensee shall pay to eCIFM the relevant license and Maintenance fees for the full Initial Term (as defined below) as designated in and in accordance with the terms of any Schedule A. Prior to the commencement of any Renewal Term as described below, Licensee shall pay to eCIFM the relevant license and/or Maintenance fees for the full Renewal Term.
b) Late payments shall bear interest on the sum due, from the date due, at the rate of one and one-half percent (1 ½%) per month or the highest rate permitted by law, whichever is less.
c) The rights granted under this Agreement are conditioned upon payment of the applicable fees as set forth in Subsection (a) above. Without prejudice to eCIFMs other rights, if Licensee is delinquent in paying the relevant fee and continues to be delinquent for a period of thirty (30) days after written notification of such delinquency, eCIFM shall be entitled, in its sole discretion, to terminate the license rights granted herein for the applicable Product(s) as provided in Section 9 herein. Furthermore, if Licensee is delinquent in paying any relevant Maintenance fees, eCIFM shall be entitled, in its sole discretion, to suspend the provision of any Maintenance under this Agreement until such time as payment is made. With the notice that Maintenance are being suspended, eCIFM may request payment within thirty (30) days. If payment is not made within the thirty (30) day notice period, eCIFM may terminate Maintenance, in its sole discretion, as well as avail itself of its rights under Section 9 herein, and any other legal remedies. eCIFM shall have no liability to Licensee or its Affiliates for the suspension or termination of any license or the Maintenance in accordance with this Section 8(c).
d) All charges referred to in this Agreement are exclusive of taxes. Taxes imposed by government agencies, with the exception of franchise taxes and taxes based upon the net income of eCIFM, whether based upon the Product(s), Licensee’s use, Maintenance or this Agreement (including sales and use taxes), are the additional obligation of Licensee. Should Licensee claim a tax-exempt status, Licensee must provide a copy of the exemption to eCIFM upon the execution of this Agreement.
e) Licensee will reimburse eCIFM for any and all expenses eCIFM may incur, including reasonable attorneys’ fees, in collecting any amounts past due under this Agreement.
a) At eCIFMs own expense, eCIFM (or its authorized representative) shall be entitled to carry out an annual audit of Licensees use of the Product(s) at a mutually agreeable date and time to ensure that the licensing obligations and restrictions are being observed by Licensee. Licensee agrees to provide all reasonable assistance while eCIFM or its authorized representative conducts such an audit. The confidentiality provisions of Section 10 herein shall be observed at all times by eCIFM or its authorized representative. At any time, eCIFM is entitled to conduct electronic auditing of license compliance to ensure that the licensing obligations and restrictions are being observed
b) In the event the audit concludes that Licensee has exceeded the usage limits under the applicable Schedule A or otherwise is in violation of its license, eCIFM shall invoice and Licensee agrees to pay for the additional licenses in accordance with eCIFMs then current published license fees. In addition, if the audit concludes that Licensee has exceeded the usage limits by more than ten percent (10%), Licensee shall reimburse eCIFM for all costs associated with such audit.
c) For any products that are licensed on the basis of site license, server license or any other license beyond those identified in this document, Licensee agrees to pay the charge as shown on Schedule A for those Products.
8. TERM AND TERMINATION
a) Subject to earlier termination as provided in this Agreement, this Agreement shall remain in effect for so long as any Schedule A is in effect. Each Schedule A will be an initial twelve (12) month period or as specified in the Schedule A (the “Initial Term”), and shall be automatically renewed for additional periods of the same duration as the Initial Term (each, a “Renewal Term” and the Initial Term with all Renewal Terms, collectively, the Term), unless either party requests termination at least thirty (30) days prior to the end of the then-current Term or unless earlier terminated pursuant to this Agreement. Notwithstanding the foregoing, eCIFM shall have the right to terminate this Agreement and/or any applicable Schedule A, any Maintenance without further obligation or liability to Licensee if (i) Licensee is delinquent in making payments of any fees due under this Agreement and continues to be delinquent for a period of ten (10) days after written notification of such delinquency; (ii) Licensee commits any other material breach of this Agreement and fails to remedy such breach, to the extent such breach can, by its nature, be remedied, within thirty (30) days after written notice by eCIFM of such breach; or (iii) a petition alleging insolvency is filed by or against Licensee or a receiver is appointed for any part of Licensees business, or its assets are assigned for the benefit of the creditors. Notwithstanding the foregoing, eCIFM shall have the right to terminate this Agreement and/or any applicable Purchase Order without further obligation or liability to Licensee if Licensee commits a breach of Sections 3 or 4 herein and fails to remedy such breach within five (5) days after written notice by eCIFM of such breach.
b) Upon expiration or termination of this Agreement and/or any applicable Schedule A for any reason, the license and all other rights granted to Licensee hereunder and/or thereunder shall immediately cease, and Licensee shall immediately: (i) return the Product(s) to eCIFM together with all copies and reproductions thereof and all copies of Documentation and other materials associated with the Product(s); (ii) purge all copies of the Product(s) or any portion thereof from all CPUs and/or network servers and from any computer storage device or medium on which Licensee has placed or permitted others to place the Product(s); (iii) pay eCIFM all amounts due and payable up to the date of termination; and (iv) give eCIFM a written certification that Licensee has complied with all of its obligations under (i) and (ii) in this Subsection. eCIFMs termination of this Agreement and/or repossession of the Product(s) shall be without prejudice to any other remedies.
c) The provisions of Sections 2, 3, 4, 6(f), 7, 8, 9, 10, 12, 11 (c)-(f) (inclusive), 13, 15, and 17 shall survive expiration or termination of this Agreement.
9. CONFIDENTIAL INFORMATION
a) If either party receives from the other party information which is either marked as being confidential or which due to the nature of such information and the circumstances under which it was disclosed, ought reasonably to be treated as confidential information of the disclosing party (Confidential Information), the receiving party agrees to protect such information by exercising the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. Without limiting the generality of the foregoing, (a) Confidential Information of a party shall include all nonpublic information and such partys financial, marketing, research and development, organizational, technical, merger or acquisition, and other information, information relating to released or unreleased software or hardware products of such party, the marketing or promotion of such partys products, such partys business policies or practices, and information received from third parties that such party is obligated to treat as confidential, and (b) Confidential Information of eCIFM shall also include the internal components of the Product(s) (this includes, but is not limited to, all source code components, and the like, which when compiled, linked and otherwise manipulated, create the run-time/executable image of any Product(s)), the Documentation and any and all information relating to current, future, or proposed business services or products, technical data or know-how, including any research, products, services, developments, inventions, processes, methods, techniques, designs, specifications, systems architecture, distribution, engineering, marketing plans/strategies, business plans, financial, merchandising and/or sales information, price lists, pricing information, customer lists and customer information. Confidential Information also includes the purpose and the existence of this Agreement and the Schedule A(s).
b) The disclosing partys Confidential Information will remain the property of the disclosing party and the receiving party will not be deemed by virtue of this Agreement or any access to the disclosing partys Confidential Information to have acquired any right, title or interest in or to any such Confidential Information. The receiving party shall, and shall cause its employees, contractors and other agents to, strictly maintain the confidentiality of the disclosing partys Confidential Information and not disclose, disseminate or otherwise give such Confidential Information to any other person, firm, organization or third party, except for an employee, contractor or agent of the receiving party who has a reasonable need to obtain access thereto in connection with the performance of the receiving partys obligations under this Agreement. Without limiting the generality of the foregoing, the receiving party shall take appropriate action with each of its employees, contractors and other agents having access to the Confidential Information sufficient to enable the receiving party to comply with the terms of this Agreement. The receiving party agrees not to copy, disclose or use, at any time, any of the disclosing partys Confidential Information, except as expressly permitted under this Agreement. The receiving party acknowledges that unauthorized copying, disclosure or use of the disclosing partys Confidential Information will cause irreparable injury to the disclosing party and that the disclosing party shall be entitled, among other actions, to injunctive relief to prevent such activities, without the requirement of posting a bond, in addition to any other remedies that may be available to the disclosing party. Confidential Information disclosed to the receiving party by any Affiliate and/or agent of the disclosing party is covered by this Agreement.
c) The foregoing obligations set forth in paragraphs (a) and (b) of this Section shall not apply to any information that (i) is or becomes available to members of the public other than by breach of this Agreement or other duty by the receiving party; (ii) the receiving party can demonstrate by its files or written records is in the rightful possession of the receiving party without an obligation of confidentiality; (iii) is required to be disclosed by operation of law; provided, however, that prior to any such disclosure under this Subsection (iii), the receiving party shall provide the disclosing party with prompt notice of such disclosure and shall reasonably cooperate with the disclosing party so that the disclosing party may seek, at its expense, an appropriate protective order or waiver of compliance with the terms of the applicable law requiring disclosure; or (iv) the receiving party can demonstrate by its files or written records is independently developed by an employee of the receiving party who neither used nor had access to Confidential Information of the disclosing party.
10. LIMITED WARRANTY
a) eCIFM represents and warrants to Licensee that eCIFM has sufficient rights in and to the Product(s) to grant Licensee the license granted under this Agreement.
b) eCIFM warrants that, during the applicable Term of the applicable Schedule A (the Warranty Period), the Product(s) as delivered to Licensee under this Agreement will substantially conform to the Documentation (the Warranty). In the event the Product(s) fails to perform as stated in this Warranty, and upon written notice to eCIFM within the Warranty Period, eCIFM shall either, at its election: (i) use commercially reasonable efforts to repair the Product(s), at eCIFMs facilities, to comply with the Warranty; or (ii) replace the Product(s) to comply with the Warranty. If, in eCIFMs sole discretion, eCIFM is unable to correct the defect within the Warranty period, or if in eCIFMs opinion either option (i) or (ii) is not commercially practicable for eCIFM, eCIFM may terminate this Agreement, the license and/or applicable Schedule A by notice to Licensee and shall refund Licensee a prorated portion the applicable license fees and the prorated portion of the Maintenance fees, if any. This Warranty is contingent upon proper use of the Product(s) in the operating environment specified in the Schedule A. Notwithstanding whether any remedy fails of its essential purpose, the forgoing states Licensees sole and exclusive remedy and eCIFMs entire liability under the Warranty in this Subsection.
c) eCIFM and its third party suppliers do not warrant that the functions contained in the Product(s) will meet the requirements of Licensee or that the operation of the Product(s) will be error free. The Warranty does not cover any copy of the Product(s) that has been altered in any way by Licensee or any third party, their employees or agents. eCIFM and its third party suppliers are not responsible for problems that occur as a result of the use of the Product(s) in conjunction with other software or hardware that is incompatible with the operating system for which the Products(s) is being acquired or as a result of Licensees failure to maintain any equipment or operating system on or with which the Product(s) is installed.
d) eCIFM makes no representation or warranty and accepts no obligation in relation to any third party software agreed to be supplied by eCIFM to Licensee pursuant to this Agreement. All warranties, terms, conditions, undertakings and representations of any kind, express or implied, statutory or otherwise, relating to such third party software including, without limitation, as to the condition, quality, performance, satisfactory quality or fitness for the purpose of the third party software or any part thereof, are hereby expressly excluded to the fullest extent permitted by law.
e) Only the President or CEO of eCIFM may make modifications to the Warranty or make additional warranties binding on eCIFM, and such modification or additional warranties must be in writing and signed by the President or CEO. Accordingly, additional statements, such as, but not limited to, those made in marketing presentations, sales presentations, or responses to RFPs or RFIs, oral or written, do not constitute warranties by eCIFM and should not be relied upon as such.
f) THE WARRANTY SET FORTH IN THIS SECTION 11 IS THE SOLE AND EXCLUSIVE WARRANTY PROVIDED BY eCIFM UNDER OR IN CONNECTION WITH THIS AGREEMENT AND IS IN LIEU OF ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY PROVIDED HEREIN, eCIFM MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, REGARDING THIS AGREEMENT, THE PRODUCT(S), THE SERVICES OR OTHERWISE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW eCIFM SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND WHATSOVER INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES (i) OF MERCHANTABILITY, (ii) OF FITNESS FOR A PARTICULAR PURPOSE, (iii) OF NON-INFRINGEMENT, (iv) OF TITLE, OR (v) ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE.
11. LIMITATION OF LIABILITY
IN NO EVENT SHALL eCIFM BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND OR AMOUNT (INCLUDING WITHOUT LIMITATION LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITY, LOST COMPUTER TIME, BUSINESS INTERRUPTION, DAMAGE OR LOSS OF DATA) EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE, AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY (INCLUDING TORT, NEGLIGENCE, BREACH OF CONTRACT OR STRICT LIABILITY), ARISING OUT OF, IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY PRODUCT(S), SERVICES OR BENEFITS LICENSED OR PROVIDED HEREUNDER. eCIFMS MAXIMUM LIABILITY TO LICENSEE FOR DAMAGES RESULTING FROM OR RELATING TO PRODUCT(S) SHALL BE LIMITED TO DIRECT MONEY DAMAGES ONLY AND SHALL NOT EXCEED THE AMOUNT PAID BY LICENSEE UNDER THE APPLICABLE SCHEDULE A FOR SUCH PRODUCT(S). eCIFMS MAXIMUM LIABILITY TO LICENSEE FOR DAMAGES RESULTING FROM OR RELATING TO MAINTENANCE SHALL BE LIMITED TO DIRECT MONEY DAMAGES ONLY AND SHALL NOT EXCEED THE AMOUNT PAID BY LICENSEE UNDER THE APPLICABLE SCHEDULE DURING THE PREVIOUS TWELVE (12) MONTH PERIOD FOR SUCH MAINTENANCE. LICENSEE SHALL BE SOLELY RESPONSIBLE FOR DECIDING WHETHER OR NOT THE PRODUCTS OR SERVICES ARE SUITABLE FOR THEIR PURPOSES OR FOR LICENSEES SUBCONTRACTORS LICENSEE SHALL BE SOLELY RESPONSIBLE FOR THE CONSEQUENCES OF ANY USE OF THE PRODUCTS OR SERVICES. eCIFM SHALL HAVE NO LIABILITY FOR ANY LOSS OR DAMAGE SUFFERED BY LICENSEE AS A RESULT OF LICENSEES DECISION TO OBTAIN AND USE PRODUCTS OR SERVICES PURSUANT TO THIS AGREEMENT. eCIFM SHALL HAVE NO LIABILITY FOR ANY LOSS OR DAMAGE SUFFERED BY LICENSEE BASED ON THE RELIANCE BY LICENSEE ON ANY RESULTS OR DATA OBTAINED FROM THE USE OF THE PRODUCT(S). THIS AGREEMENT SHALL NOT BE DEEMED OR CONSTRUED TO CREATE ANY ENFORCEABLE RIGHT IN ANY THIRD PERSON, FIRM, CORPORATION, OR OTHER ENTITY.
12. INDEMNIFICATION FOR INFRINGEMENT
a) eCIFM shall indemnify Licensee against any losses, costs, expenses, liabilities or damages finally awarded (without right of appeal) against Licensee resulting from any third-party infringement claim, demand, suit or action against Licensee for any actual or alleged infringement or violation of any United States patent, copyright or trade secret attributable to Licensees use of any licensed Product(s) consistent with this Agreement (Infringement Claim). eCIFM shall have sole control of the defense or settlement of any Infringement Claim. Notwithstanding anything to the contrary contained herein, eCIFM shall have no obligation whatsoever under this Section to the extent that an Infringement Claim is based on any modifications, disassembly or reverse engineering of the Product(s) by or on behalf of Licensee (other than modifications by eCIFM), any claim, demand, suit, or action arising out of the unauthorized combination, operation or use of the Product(s) by Licensee, or any use of the Product(s) by Licensee in violation of this Agreement. eCIFM shall have no liability for any Infringement Claim based on Licensees refusal to use a modified or replacement Product(s) supplied or offered to be supplied by eCIFM.
b) In the event that an injunction or order is issued by a court of competent jurisdiction against Licensees use of any Product(s) resulting from an Infringement Claim to which eCIFMs indemnification obligations apply, or if in eCIFMs opinion any Product(s) is likely to become the subject of a claim of infringement of a copyright, trade secret, or other proprietary right of a third party, eCIFM shall have the right in its sole discretion and expense to pursue any of the following: (i) to procure for Licensees benefit the right to continue using the Product(s); or (ii) to replace or modify the Product(s) so that it becomes non-infringing unless any such modification or replacement would adversely affect the specifications for the Product(s) or its use by Licensee. If eCIFM determines in its sole discretion that either option (i) or (ii) is not commercially practical, eCIFM may terminate the license for the affected Product(s) by written notice to Licensee and refund a portion of the license fees paid for the affected Product(s). The refund will be the portion of the license fee paid remaining on a sixty (60) month, straight line amortization from the day the Product(s) was first licensed to Licensee. This Subsection states Licensees exclusive remedy and eCIFMs entire liability for infringement indemnity.
c) eCIFMs obligations of indemnification set forth above are (1) conditioned on: (i) Licensee having provided prompt written notice of the Infringement Claim to eCIFM sufficient for eCIFM to file a timely response; (ii) Licensee acknowledging in writing that eCIFM has the sole right to conduct and control the defense and settlement of any such Infringement Claim at its discretion; (iii) Licensee providing assistance, at eCIFMs expense, in connection with such Infringement Claim as reasonably requested by eCIFM; (iv) Licensee making no admissions in respect of such Infringement Claim without eCIFMs prior written consent; and (v) Licensees compliance with all reasonable instructions relating to the Infringement Claim given by eCIFM; and (2) only applicable to third party Infringement Claims brought in the country designated in the Ship To address on the applicable Schedule A.
d) Conversely, if a claim is brought by a third party alleging that the manner of Licensees use of the Product(s) violates the business process intellectual property of the third party, Licensee will indemnify eCIFM on the same basis as set forth in this Section.
13. THIRD PARTY PRODUCTS AND SERVICES
a) If any of the Product(s) set forth on the applicable Schedule A consist of third party software products that will be embedded with eCIFMs Product(s) listed thereon, Licensee understands and agrees that such third party software products are offered to Licensee on a reseller basis with such third party supplier. The direct relationship shall be between Licensee and eCIFM under this Agreement and the applicable Schedule A; provided, however, that Licensee hereby agrees that the protective and restrictive covenants set forth herein and the applicable Schedule A, as to such third party products apply equally for the benefit of eCIFM and the applicable third party supplier.
b) All third party software products supplied to Licensee under a Schedule A hereto are licensed to Licensee under the terms (including but not limited to the restrictions on use, warranty, and support) of the original manufacturers license agreement which is supplied with such third party software and Licensee shall comply with such terms and conditions at all times.
14. EXPORT RESTRICTIONS
Licensee agrees not to export or re-export, or permit exportation or re-exportation of the Product(s), outside of the country in which Licensee first receives the Product(s) from eCIFM without first obtaining eCIFMs prior written consent and (i) in each instance obtaining any required written permission to do so from the United States Office of Export Administration and other appropriate governmental agencies and (ii) complying fully and strictly with all requirements of any general license issued by the United States Office of Export Administration and any other appropriate governmental agencies exempting the exportation or re-exportation from the requirement for that permission. Licensee shall comply with all applicable laws, regulations and orders of the United States, including but not limited to the U.S. Export Administration Regulations.
15. DELAY AND FORCE MAJEURE
Neither party shall be liable for any delay or failure in performing any of its obligations under this Agreement (except in the case of non-payment by Licensee of any fees or charges pursuant to this Agreement), if such delay or failure is caused by circumstances outside the reasonable control of the party concerned (including without limitation any delay caused by any act or default of the other party).
a) Licensees rights in and to use the Product(s) pursuant to this Agreement are personal to Licensee and may not be assigned, sub-licensed, leased, sold, offered for sale, charged a fee for usage by a third party, or otherwise transferred by Licensee without the prior written approval of eCIFM.
b) Notwithstanding Subsection (a) of this Section, either party may assign its rights, duties and obligations pursuant to this Agreement to any entity (i) which is an Affiliate of such party, (ii) into which it may be merged or reorganized or (iii) to which all or substantially all of its capital stock or assets may be sold or assigned, so long as the assignee agrees in writing to be bound by the terms of this Agreement.
c) The parties agree that any and all controversies, claims, or disputes with anyone, arising out of, relating to, or resulting from this Agreement shall be subject to binding arbitration under the Arbitration provisions set forth in California Code of Civil Procedure (the “CCP) and pursuant to California law. The Federal Arbitration Act shall continue to apply with full force and effect notwithstanding the application of procedural rules set forth in the CCP. The parties hereby waive any right to a trial by jury, including any statutory claims under local, state, or federal law. The parties agree that any arbitration will be administered by Judicial Arbitration & Mediation Services, Inc. (JAMS). The parties agree that the arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication and motions to dismiss and demurrers. The parties agree that the arbitrator shall issue a written decision on the merits and that the arbitrator shall have the power to award any remedies available under applicable law. The parties agree that the decree or award rendered by the arbitrator may be entered as a final and binding judgment in any court having jurisdiction thereof. The parties agree that the arbitrator shall administer and conduct any arbitration in accordance with California law, and that the arbitrator shall apply substantive and procedural California law to any dispute or claim, without reference to rules of conflict of law. To the extent that the JAMS Rules conflict with California law, California law shall take precedence. The parties further agree that any arbitration under this Agreement shall be conducted in San Francisco, California. Except as provided by this Agreement, arbitration shall be the sole, exclusive, and final remedy for any dispute between Consultant and the Company. Accordingly, except as provided for by this Agreement, neither party will be permitted to pursue court action regarding claims that are subject to arbitration.
d) Notwithstanding anything in this Section 17 to the contrary, the parties agree that any party may also petition the court for temporary restraining orders, injunctions or other similar pre-judgment remedies, as well as enforcement of orders or judgments, may be sought from any court in San Francisco, CA at any time.
e) The party prevailing in any action or proceeding between the parties arising under or related to this Agreement or the subject matter hereof shall be entitled to recover its reasonable attorneys fees and expenses in addition to costs of suit and such other recovery and relief as may be authorized by law.
f) All notices, demands or consents required or permitted hereunder shall be in writing and shall be deemed effective when received if (i) sent by overnight mail such as Federal Express, or UPS, (ii) sent by certified mail, return receipt requested, or (iii) sent by facsimile transmission provided the sender can evidence proof of fax transmission and provided sender also sends the original notice by first class mail within twenty-four (24) hours after sending such fax transmission. All notices shall be sent to the receiving partys address as set forth on the first page of this Agreement or to such other address that a party designates by providing written notice to the other party in accordance with the provisions of this Section 17(e). In the case of notices to eCIFM, copies of all such notices shall also be sent to eCIFMs General Counsel at the address set forth on the first page of this Agreement.
g) Should any provision of this Agreement be judicially determined to be invalid, ineffective, illegal, void, voidable or unenforceable in any respect under present or future laws, then the provisions shall be reformed by the court to be as close to the intent of such provision as is enforceable and the remainder of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
h) No failure or delay on the part of either party in the exercise of any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.
i) The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
j) Licensee agrees that eCIFM may use Licensee, its name and logo, as a reference site, which may include phone references and visits to Licensees site. Such references shall be scheduled at mutually agreeable dates and times. Licensee further agrees that eCIFM may use Licensee as a success story for publication, and include Licensees name and logo on any customer reference list that eCIFM may provide to potential licensees of eCIFMs products, as well as its customer lists and references contained on eCIFMs Web Site and other marketing and advertising material. Licensee further agrees that eCIFM may issue a press release after the parties execution of this Agreement announcing this Agreement and the relationship between Licensee and eCIFM.
k) It is the intention of the parties that eCIFM shall be an independent contractor and not an employee, agent, joint venture, or partner of Licensee. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Licensee and either eCIFM or any employee or agent of eCIFM with respect to the services or licenses provided herein.
17. ENTIRE AGREEMENT AND AMENDMENTS
This Agreement shall consist of the terms and conditions set out in the main body of this Agreement together with those provisions set out in the Schedule A(s), Technical Services Schedule(s), and Addenda relating to this Agreement and signed by the parties to this Agreement. This Agreement shall constitute the entire, integrated agreement and understanding between the parties and supersedes all prior agreements, representations and understandings between the parties, whether written or oral. In the event there is a conflict between the terms and conditions in a specific Schedule A or Technical Services Schedule, and the terms and conditions in this Agreement, the terms and conditions in the Schedule A or Technical Services Schedule shall. This Agreement may not be modified or varied in any way except where such amendment or variation is in writing and signed by both parties. The terms and conditions of any side letter (unless signed by the President or CEO of eCIFM), email, Licensees purchase order or other document submitted by Licensee SHALL NOT APPLY TO THE SUBJECT MATTER OF THIS AGREEMENT, NOR SHALL THEY BE OF ANY FORCE OR EFFECT OR GOVERN OR AMEND IN ANY WAY THE TERMS OF THIS AGREEMENT. eCIFMs failure to object to provisions contained in any purchase order or other communication shall not be construed as a waiver of this Section.