End User License Agreement (EULA)
This End User License Agreement is a binding agreement between Prosimo, Inc., a Delaware Corporation (“Prosimo”), and you (“Licensee”), and establishes the terms under which Licensee may access and use the Services and Documentation (as defined below) pursuant to Licensee’s Subscription (defined below), and including, without limitation, terms and conditions relating to the license grant, intellectual property rights, disclaimers, exclusions, limitations of warranty, indemnity, limitations of liability, governing law and dispute resolution. All components collectively are referred to herein as the “Agreement.” LICENSEE ACKNOWLEDGES IT HAS HAD THE OPPORTUNITY TO REVIEW THE AGREEMENT, PRIOR TO ACCEPTANCE OF THIS AGREEMENT. LICENSEE’S ACCEPTANCE OF THIS AGREEMENT IS EVIDENCED BY LICENSEE’S DOWNLOADING, COPYING, INSTALLING OR USING THE PROSIMO SOFTWARE. IF YOU ARE ACTING ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND THE COMPANY. IF YOU DO NOT AGREE TO ALL TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, COPY, INSTALL, OR USE THE SOFTWARE, AND PERMANENTLY DELETE THE SOFTWARE.
- DEFINITIONS
- “Authorized Persons” means trained technical employees and contractors of Licensee, for whom Licensee is responsible and liable, who (a) are using the Software under Licensee’s supervision and pursuant to Licensee’s Subscription, and (b) are subject to a written agreement with Licensee that includes Use and confidentiality restrictions that are at least as protective as those set forth in this Agreement.
- “Authorized Reseller” means a distributor or reseller, including cloud computing platform providers, authorized by Prosimo to resell licenses to the Software through the channel through or in the territory in which Licensee is purchasing.
- “Confidential Information” means all non-public information disclosed in written, oral or visual form by either party to the other. Confidential Information may include, but is not limited to, services, pricing information, computer programs, source code, names and expertise of employees and consultants, know-how, and other technical, business, financial and product development information. “Confidential Information” does not include any information that the receiving party can demonstrate by its written records (1) was rightfully known to it without obligation of confidentiality prior to its disclosure hereunder by the disclosing party; (2) is or becomes publicly known through no wrongful act of the receiving party; (3) has been rightfully received without obligation of confidentiality from a third party authorized to make such a disclosure; or (4) is independently developed by the receiving party without reference to confidential information disclosed hereunder.
- “Documentation” means any administration guides, installation and user guides, and release notes that are provided by Prosimo to Licensee with the Software or otherwise in connection with the Services.
- “Intellectual Property” means any created or developed technology, patentable subject matter, invention, process, form of matter, device, machine, software, source or object code, copyrightable work, document, written work, drawing, graphical work, created work in an electronic medium, symbol, logo, slogan, design, trademark, service mark, trade name, trade dress, trade secret, know-how, proprietary and confidential information, or any other form of creativity which takes form in a tangible medium of expression and is protected and enforceable under any Intellectual Property Rights (defined below) recognized in any jurisdiction throughout the world.
- “Intellectual Property Rights” means all rights of ownership or enforcement in any Intellectual Property now held or hereafter created or acquired by a party, regardless of whether arising under the laws of the United States, under the laws of any other jurisdiction throughout the world, or under any international treaty for (i) all classes or types of patents, including, without limitation, utility models, utility patents and design patents, patent applications and disclosures, and any extensions in any jurisdiction throughout the world; (ii) all copyrights, all ancillary and sub-rights of copyright, and all moral rights in both published and unpublished works, and all corresponding registrations and applications therefor in any jurisdiction throughout the world; (iii) all trademarks and service marks and trade names, and all corresponding registrations and applications therefor in any jurisdiction throughout the world; and (iv) all know-how, trade secrets, and confidential, technical and non-technical information created or acquired by a party.
- “Licensee Data” means information owned by Licensee and provided to Prosimo by Licensee through the Use of the Services by Licensee and its Authorized Users.
- “Open Source Software” means software delivered to Licensee hereunder that is subject to the provisions of any open source license agreement.
- “Order Form” means a form provided by Prosimo through which Licensee may delineate a Subscription Plan or modify an existing Subscription Plan by requesting or discontinuing specific Services.
- “Purchase Agreement” means a separate commercial agreement, if applicable, between Prosimo and the Licensee that contains the terms for the licensing of a specific Subscription Plan at an enterprise level Subscription.
- “Seat” means a specific Authorized User. Each Seat (or the specific number of Authorized Users) must be accounted for in a Subscription. 1.12 “Services” means any functionally-related Software-as-a-Service application(s) that is/are provided or otherwise made accessible to Licensee and its Authorized Users by Prosimo, at its sole discretion, and, in addition, any other Software, Documentation, and all accompanying services, including support services, provided to Licensee by Prosimo through a Subscription.
- “Software” means any and all software products licensed to Licensee under this Agreement, all as developed by Prosimo and delivered to Licensee hereunder, including Software-as-a-Service applications, on-prem software products (if any), and mobile apps (if any). Software also includes any Updates provided by Prosimo to Licensee. For the avoidance of doubt, the definition of Software shall exclude any Third-Party Software and Open Source Software.
- “Subscription” means the payment terms governing Licensee’s access to the Services and the number of Seats to which access is granted, as delineated in Licensee’s Subscription Plan. For clarity, the Purchase Agreement is an enterprise level Subscription.
- “Subscription Plan” means the details of the Subscription to the Services specifically prepared for Licensee in response to Licensee’s Order Form.
- “Third-Party Software” means certain software Prosimo licenses from third parties (if any) and provides to Licensee with the Software, which may include Open Source Software.
- “Update” means a revision of the Software that Prosimo makes available to customers at no additional cost. The Update includes, if and when applicable and available, bug fix patches, maintenance release, minor release, or new major releases. Updates are limited only to the Software licensed by Licensee as part of Licensee’s Subscription, and specifically exclude new product offerings, features, options or functionality of the Software that Prosimo may choose to license separately, or for an additional fee.
- “Use” means to use, access, install, or activate the Services in any manner.
- LICENSE GRANT AND RESTRICTIONS
- License. Subject to Licensee’s compliance with the terms and conditions of this Agreement (including any additional restrictions on Licensee’s Use of the Services set forth in Licensee’s Subscription Plan, Prosimo grants to Licensee a non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement under Section 13.10 (Assignment), non-sublicensable, limited term license to Use the Services, including, in object code form only, the Software included in Licensee’s Subscription Plan, solely for Licensee’s Use, unless terminated in accordance with Section 4 (Term and Termination) (“License”).
- Evaluation License. This section shall only apply when the Licensee has purchased a Subscription with a Subscription Plan consisting of a license to Use the Services only for an initial evaluation period. The Evaluation License granted herein is valid only for 30 days, starting from date on which Prosimo activates Licensee’s Subscription, and is inextensible unless otherwise explicitly designated by Prosimo in writing (“Evaluation Period”). Under this Evaluation License the Services can only be used for evaluation purposes. Under no circumstances will an Evaluation License be construed to mean that the Licensee is authorized to distribute the Software to any third party for any reason whatsoever. If the Licensee wishes to purchase a Subscription, Licensee may do so, and upon such purchase this Agreement will continue to apply to Licensee’s Use of the Services. If the Licensee does not wish to purchase a Subscription at the end of the Evaluation Period, the Licensee’s rights under this Agreement shall terminate at the end of the Evaluation Period, and Prosimo may delete all Licensee’s data promptly after the close of the Evaluation Period. For clarity, Prosimo has no obligation to retain Customer data following termination of the evaluation Period. For clarity, Licensee understands, acknowledges, and agrees that Prosimo has no obligation to retain Licensee data after the end of the Evaluation Period.
- Free-Tier Offering. The Prosimo MCN Foundation ( Free Tier Offering ) is only available to new Customers. Customer can only benefit from one (1) Tenant Account. To calculate the Customer’s use of Product under any Free Tier Offering, Prosimo will aggregate the usage across all Accounts controlled by Customer. Prosimo Foundation Tier provides discovery capabilities without any limits across any number of cloud accounts, however the connectivity via Prosimo Transit shall not exceed 20% of total discovered VPCs or VNETs at any point in time within a tenant. Prosimo reserves the right to charge the customer the standard rates for use of Product if Prosimo determines that Customer is not eligible for Free Tier Offering or have exceeded the usage restrictions of Free Tier ( using features that are not part of the Free Tier without explicit approval or exceeding the number of connected VPCs or VNET limits ). Prosimo may archive the Product or any portion thereof, if Customer does not use it for a period of time as defined in the Documentation. Customer may request Prosimo to make commercially reasonable efforts to retrieve the archived Product at any time, but no later than twelve (12) months following the Effective Date. Prosimo may terminate and/or modify any Free Tier Offering at any time at its sole discretion. Free Tier Offering will not be eligible to support in accordance with the SLA. All Free Tier Offerings are provided “AS IS” without warranty of any kind
- License Restrictions. Except to the extent permitted under this Agreement, Licensee will not nor will Licensee allow any third party to: (i) copy, modify, adapt, translate or otherwise create derivative works of the Service, any portion of the Software (including its application programming interfaces (“APIs”)) or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the underlying ideas, algorithms, source code of the Software, the APIs, or the structure and organization of the Services; (iii) create Internet hyperlinks to the Services or frame or mirror any part of the Services, including any content contained in the Services, on any other server or device; (iv) rent, lease, sell, assign or otherwise transfer rights in or to the Services, the Software, or Documentation; (v) remove any proprietary notices or labels from the Software or Documentation; (vi) publicly disseminate performance information or analysis (including, without limitation, benchmarks) relating to the Software. Licensee will comply with all applicable laws and regulations in Licensee’s Use of and access to the Software and Documentation.
- Beta Features. From time to time, Prosimo may make available Beta Features to Customer on a temporary basis for evaluation purposes. Prosimo does not make any commitment to provide Beta Features in any future versions of the Product. Prosimo may immediately and without notice remove or modify any Beta Features for any reason without liability to Customer. All Beta Features are provided “AS IS” without warranty of any kind
- Responsibility for Use. The Services and Documentation may be Used only by Authorized Users and in conformance with this Agreement. Licensee shall be responsible for the proper Use of the Services and Documentation and is responsible for: (i) managing, supervising, and controlling the its Authorized Users’ Use of the Services and the Licensee Data and results obtained from using the Services; (ii) using the Services within the operating environment specified in the Documentation; and; (iii) establishing and maintaining such recovery and data protection and security procedures as are necessary for Licensee’s Use of the Services and/or as may be specified by Prosimo from time to time. In addition, Licensee shall: (iv) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Licensee Data; (v) use commercially reasonable efforts to prevent unauthorized access to, or Use of, the Service by its Authorized Users and/or by any other employees, consultants, representatives or agents of Licensee, and shall notify Prosimo promptly of any such unauthorized access or Use of the Service and/or the software underlying the Service; and (vi) comply with all applicable laws in accessing and using the Service and undertaking activities in furtherance of this Agreement.
- Behavior of Licensee and its Authorized Users. Licensee hereby understands, acknowledges, and agrees that Licensee and its Authorized Users will not do any of the following: alter, modify, edit, amend, abridge, add to, delete from, adapt, repackage, or change any of the Services in whole or in part; and/or remove any proprietary notices of copyright or trademark ownership, any watermarking, or any other proprietary notices or language referring to Prosimo’s ownership of the Services or Software; and/or copy, reproduce, publish, distribute, or redistribute any of the Software, in whole or in part, to any person who is not authorized to Use the Services pursuant to this Agreement; and/or attempt to sell, resell, lend, lease, license, sublicense, assign, or otherwise transfer or attempt to transfer the Services , any rights granted under this Agreement, or any intellectual property rights owned by Prosimo, to any other person or entity; and/or provide any other person or entity access to the Services by means of Licensee’s username and/or Licensee’s password; and/or attempt to lend, lease, license, sublicense, transfer, assign, sell, or resell Licensee’s username(s) and password(s) to any other person or entity; and/or decompile, disassemble, translate or reverse engineer any portion of the Services or Software, or otherwise discover or duplicate any technology, routines, computer code, algorithms, methods or underlying ideas or designs or user interface techniques included in any portion of the Software; and/or monitor, gather, copy, or distribute any content or data included in the Services by using any robot, rover, “bot,” spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; and/or insert any code or product to manipulate the Services or Software in any way; and/or make or attempt to make any commercial use or exploitation of the Services; and/or circumvent, disable or otherwise interfere with the security features of the Software, or any features that prevent or restrict Use or copying of any portion of the Services; and/or Use the Services to collect or harvest any personally identifiable information (“PII”), including usernames and passwords of others; and/or Use the Services to create multiple accounts under false or fraudulent pretenses; and/or Use the Services to create or transmit unsolicited electronic communications; and/or Use the Services to transmit any harmful code sequence or routines; and/or Use the Services to violate the security of any computer network, to crack passwords or security encryption codes, or to transfer or store illegal material; and/or claim the Services or the Software as Licensee’s property, Licensee’s creation, or Licensee’s work of authorship, in whole or in part; and/or contest or dispute Prosimo’s ownership of the Services and all intellectual property rights in the Services; and/or Use the Services after the termination date of this Agreement; and/or Use the Services, in whole or in part, in any manner not authorized by this Agreement. LICENSEE HEREBY UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT ANY VIOLATION OR SUSPECTED VIOLATION OF THE FOREGOING LICENSE RESTRICTIONS BY LICENSEE OR ONE OF ITS AUTHORIZED USERS MAY CONSTITUTE GROUNDS ON WHICH PROSIMO MAY, IN ITS SOLE DISCRETION, SUSPEND OR TERMINATE LICENSEE’S LICENSE TO USE THE SOFTWARE, IN ADDITION TO ALL OTHER REMEDIES AVAILABLE TO PROSIMO AT LAW OR EQUITY.
- Fees. Licensee’s access to and Use of the Software is conditioned upon Licensee’s timely payment of agreed fees to keep Licensee’s Subscription current and valid, as provided in Section 7.
- Audit Rights. Licensee acknowledges and agrees that Prosimo may, at its expense, audit Licensee’s Use of the Software. Any such audit shall either be conducted by means of remote access from a Prosimo location or on-site during regular business hours at Licensee’s facilities, and shall not unreasonably interfere with Licensee’s business activities.
- Licensee Data and PII. Prosimo will comply with all applicable laws relating to Licensee PII and will notify Licensee if Prosimo believes that Licensee’s instructions concerning PII violate any applicable laws. Prosimo shall: (i) not use or modify the Licensee Data except as otherwise set forth in this Agreement; (ii) use commercially reasonable efforts consistent with industry standards to maintain the security and integrity of Licensee Data; (iii) process and store Licensee Data for the most recent three (3) month period, with the understanding that License is responsible for archiving and preservation of Licensee Data submitted to the Prosimo under this Agreement. In the event of a security breach involving Licensee Data for which Prosimo is responsible, Prosimo will: (i) promptly notify Licensee; (ii) confer with Licensee in good faith regarding the corrective steps that Prosimo will take and undertake to remedy or mitigate the effects of the Data breach; (iii) update Licensee on developments relating to the Data breach and its correction; and (iv) promptly restore to the last available backup any recoverable Licensee PII lost, damaged or destroyed as a consequence of the Data breach. Prosimo will promptly return to Licensee or, if instructed, securely destroy all Licensee PII upon the termination of this Agreement.
- United States Government Users. The Software licensed under this Agreement is “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms and this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
- SUPPORT
- During the Term (as defined below) and subject to Licensee’s compliance with the terms and conditions of this Agreement, Licensee may submit queries and requests for support using Prosimo’s support alias support@prosimo.io, raise a support ticket via the Prosimo support portal, or call the Prosimo customer service telephone number. Licensee shall be entitled to the support service-level agreement specified in Licensee’s Subscription Plan (determined pursuant to Licensee’s Order Forms that have been accepted by Prosimo) between the Licensee and Prosimo. If there is no Purchase Agreement in place, support level shall default to Evaluation Period Support as specified below. Support is provided only for the current version of the Software (i.e. with all Updates and Upgrades installed), unless otherwise agreed in writing by Prosimo. Prosimo reserves the right to update, upgrade, modify, change, improve, and/or redesign any Software or Services at any time (“Service Upgrades”). Prosimo will not make any Service Upgrades that materially impact the functionality of the Services during the then-current Subscription term. Any and all subsequent Service Upgrades Service shall be governed by these Terms of Service, as may be amended by Prosimo from time to time. Licensee acknowledges and agrees that making a support request may require Prosimo’s support staff to access Licensee’s Authorized User Data logs for the sole purpose of troubleshooting and responding to the issues raised in the support request.
- Evaluation Period Support. Under an Evaluation License, Licensee will have access to the Prosimo support alias, but Prosimo cannot guarantee a service level of any sort. Under an Evaluation License, Prosimo may offer or withhold support in its sole and absolute discretion, service level commitments do not apply, and support is provided on an as-is and as-available basis, with no guarantee of any kind. Prosimo may discontinue Evaluation Period Support at any time in Prosimo’s sole discretion. Prosimo will have no liability for any harm or damage arising out of or in connection with an Evaluation License or with any Evaluation Period Support provided during an Evaluation Period. During any Evaluation Period, Prosimo may make commercially reasonable attempts to contact users in the event of Services disruptions or planned maintenance. Should a higher level of support be needed that what may be provided under an Evaluation License, Licensee has the option to consider entering into a Purchase Agreement with Prosimo for licensing the Services under a Subscription, which Purchase Agreement shall contain provisions regarding ongoing support.
- TERM AND TERMINATION
- Term. The term of this Agreement, except for Starter and Evaluation Licenses, shall commence on the Effective Date and shall, unless terminated earlier in accordance with the provisions of Section 4.2 below, remain in force for the Subscription Period as set forth in the applicable Order Form(s) (the “Term”). The parties may extend the Term of this Agreement beyond the Subscription Period by executing additional Order Form(s) and Licensee’s payment of additional licensing fees. The term of this Agreement for the Starter and Evaluation Licenses will coincide with the term for Starter Edition (as stated in section 2.2) and the term for Evaluation Period (as stated in section 2.3), respectively.
- Termination for Cause. Either party may immediately terminate this Agreement and the licenses granted hereunder if the other party (1) becomes insolvent and becomes unwilling or unable to meet its obligations under this Agreement, (2) files a petition in bankruptcy, (3) is subject to the filing of an involuntary petition for bankruptcy which is not rescinded within a period of forty-five (45) days, (4) fails to cure a material breach of any material term or condition of this Agreement within thirty (30) days of receipt of written notice specifying such breach, or (5) materially breaches its obligations of confidentiality hereunder. In addition to the foregoing termination rights, Licensee acknowledges and agrees that Prosimo or its Authorized Reseller may suspend or terminate Licensee’s Subscription and/or Licensee’s access to the Software at any time upon written notice in the event that Licensee violates Sections 2, 6, or 7.
- Effects of Termination. Upon expiration or termination of this Agreement for any reason, (i) any amounts owed to Prosimo under this Agreement will be immediately due and payable; (ii) all licensed rights granted in this Agreement will immediately cease; and (iii) Licensee will promptly discontinue all Use of the Software and Documentation and return to Prosimo any Prosimo Confidential Information in Licensee’s possession or control.
- Survival. The following Sections of this Agreement will remain in effect following the expiration or termination of these General Terms for any reason: 4.3 (Effects of Termination), 4.4 (Survival), 5 (Third Party Software) 5 (Confidentiality), 9 (Ownership), 10.2 (Third-Party Software), 10.3 (Warranty Disclaimer), 11 (Limitations of Liability), (Exceptions to Prosimo Obligation), 12 (Export) and 13 (General).
- SUPPORT
- During the Term (as defined below) and subject to Licensee’s compliance with the terms and conditions of this Agreement, Licensee may submit queries and requests for support using Prosimo’s support alias support@prosimo.io, raise a support ticket via the Prosimo support portal, or call the Prosimo customer service telephone number. Licensee shall be entitled to the support service-level agreement specified in Licensee’s Subscription Plan (determined pursuant to Licensee’s Order Forms that have been accepted by Prosimo) between the Licensee and Prosimo. If there is no Purchase Agreement in place, support level shall default to Evaluation Period Support as specified below. Support is provided only for the current version of the Software (i.e. with all Updates and Upgrades installed), unless otherwise agreed in writing by Prosimo. Prosimo reserves the right to update, upgrade, modify, change, improve, and/or redesign any Software or Services at any time (“Service Upgrades”). Prosimo will not make any Service Upgrades that materially impact the functionality of the Services during the then-current Subscription term. Any and all subsequent Service Upgrades Service shall be governed by these Terms of Service, as may be amended by Prosimo from time to time. Licensee acknowledges and agrees that making a support request may require Prosimo’s support staff to access Licensee’s Authorized User Data logs for the sole purpose of troubleshooting and responding to the issues raised in the support request.
- Evaluation Period Support. Under an Evaluation License, Licensee will have access to the Prosimo support alias, but Prosimo cannot guarantee a service level of any sort. Under an Evaluation License, Prosimo may offer or withhold support in its sole and absolute discretion, service level commitments do not apply, and support is provided on an as-is and as-available basis, with no guarantee of any kind. Prosimo may discontinue Evaluation Period Support at any time in Prosimo’s sole discretion. Prosimo will have no liability for any harm or damage arising out of or in connection with an Evaluation License or with any Evaluation Period Support provided during an Evaluation Period. During any Evaluation Period, Prosimo may make commercially reasonable attempts to contact users in the event of Services disruptions or planned maintenance. Should a higher level of support be needed that what may be provided under an Evaluation License, Licensee has the option to consider entering into a Purchase Agreement with Prosimo for licensing the Services under a Subscription, which Purchase Agreement shall contain provisions regarding ongoing support.
- THIRD PARTY AND OPEN SOURCE SOFTWARE
- Certain Third-Party Software or Open Source Software (Prosimo can provide a list upon request) that may be provided with the Software may be subject to various other terms and conditions imposed by the licensors of such Third-Party Software or Open Source Software. The terms of Licensee’s use of the Third-Party Software or Open Source Software is subject to and governed by the respective Third-Party Software and Open Source licenses, except that this Section 5 (Third-Party Software), Section 10.2 (Third Party Software), 10.3 (Warranty Disclaimer), Section 11 (Limitations of Liability and Indemnification), and Section 13 (General) of this Agreement also govern Licensee’s use of the Third-Party Software. To the extent applicable to Licensee’s use of such Third-Party Software and Open Source, Licensee agrees to comply with the terms and conditions contained in all such Third-Party Software and Open Source licenses.
- CONFIDENTIALITY
- “Confidential Information” means any and all information related to Prosimo’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including, without limitation, software, source code and specifications, trade secrets, development plans, content, technical information, business forecasts and strategies, and information regarding personnel, customers and suppliers. Without limiting the foregoing, the Software and Documentation are the “Confidential Information” of Prosimo. Licensee agrees (i) to hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party by using the same degree of care, but no less than a reasonable degree of care, as the receiving party uses to protect its own Confidential Information of a like nature against unauthorized dissemination and use, (ii) not to disclose such Confidential Information to any third parties, except as described herein and (iii) not to use any Confidential Information except for the purposes of this Agreement. With the advance written permission of Prosimo, Licensee may disclose Prosimo’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect Prosimo’s Confidential Information hereunder. The restrictions set forth in this section will not apply to any Confidential Information that Licensee can demonstrate by a preponderance of evidence (a) was known to it prior to its disclosure; (b) is or becomes publicly known through no wrongful act of Licensee; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is, by clear and convincing evidence in the possession of Licensee, independently developed by Licensee without reference to Prosimo’s Confidential Information. The parties agree that a breach of this section may cause Prosimo irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, Prosimo shall be entitled to seek injunctive relief for any threatened or actual unauthorized disclosure. Licensee acknowledges and agrees that the Software is Confidential Information of Prosimo. Licensee further acknowledges and agrees that Prosimo may identify Licensee in its customer lists in online and print marketing materials.
- FEES
- Fees for Enterprise License shall be set forth in separate Order Form(s) attached to a Purchase Agreement, between the Licensee and Prosimo. Payment shall be due net thirty (30) days from the date of each Subscription invoice. Payment is due and owing to Prosimo regardless of whether Licensee bills and/or receives payment from Licensee’s clients. Licensee’s activation of a Subscription account constitutes Licensee’s representation and warranty that Licensee can pay for the Subscription in accordance with its terms. Disputes regarding invoiced amounts must be communicated to Prosimo within thirty (30) days of issuance date, and any invoice item which is not disputed within thirty (30) days shall be deemed to have been accepted. All amounts not paid when due under this Agreement will accrue interest daily at a rate of 1.5% per month or the rate permissible under California law, whichever is lower, until the balance is paid in full. Licensee acknowledges and agrees that Prosimo shall have the right to outsource invoice processing and issuance to a third-party service provider contracted to Prosimo. Subscription fees are exclusive of taxes. Licensee will pay all taxes and other government-imposed fees or assessments arising out of or related to Licensee’s Use of the Software.
- If Licensee has obtained the Software through an Authorized Reseller, fees for licensing shall be invoiced directly by the Authorized Reseller.
- If no Purchase Agreement exists, during the term of this Agreement, Prosimo shall license the Services under an Evaluation License only and no other Subscription Plan for the Services “at no charge” to Licensee.
- AGGREGATION OF ANONYMOUS DATA
- Licensee acknowledges and agrees that Prosimo may collect, accumulate, and aggregate certain usage statistics and data in order to analyze usage of the Software, make improvements, and potentially develop new products. Prosimo may use aggregated anonymized data for any purpose that Prosimo, at its own discretion, may consider appropriate.
- OWNERSHIP
- As between Prosimo and Licensee, all right, title and interest in the Services, the Software, the Documentation and any other Prosimo materials furnished or made available hereunder, all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Licensee regarding the Software and Documentation, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Prosimo or Prosimo’s licensors and providers, as applicable. Licensee hereby does and will irrevocably assign to Prosimo all evaluations, ideas, feedback and suggestions made by Licensee to Prosimo regarding the Software and Documentation (collectively, “Feedback”) and all Intellectual Property Rights in and to the Feedback. Except as expressly provided herein, no other licenses of any kind are granted hereunder, whether by implication, estoppel, or otherwise, and all rights not explicitly licensed herein are reserved to Prosimo.
- LIMITED WARRANTY AND DISCLAIMERS
- Limited Warranty. Prosimo warrants (i) that it will provide the Services in a manner consistent with general industry standards reasonably applicable to providing the Services; (ii) that the Services will be provided and will perform materially in accordance with the Documentation under normal Use and circumstances; and (iii) that it owns or otherwise has sufficient rights in the Services to grant to Licensee the License to Use the Service granted herein. Licensee’s exclusive remedy for a breach of this Section 10.1 is that Prosimo shall, at its option, use commercially reasonable efforts to correct or replace the Software, or refund all or a portion of the fees paid by Licensee pursuant to the Purchase Agreement. Prosimo, in its sole discretion, may revise this limited warranty from time to time.
- Third-Party Software. Except as expressly set forth in this Agreement, Third-Party Software (including any Open Source Software) are provided on an “as-is” basis at the sole risk of Licensee. Notwithstanding any language to the contrary in this Agreement, Prosimo makes no express or implied warranties of any kind with respect to Third-Party Software provided to Licensee and shall not be liable for any damages regarding the use or operation of the Third-Party Software furnished under this Agreement. Any and all express or implied warranties, if any, arising from the license of Third-Party Software shall be those warranties running from the third party manufacturer or licensor to Licensee.
- Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, PROSIMO AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SOFTWARE OR TO PROSIMO’S MAINTENANCE, PROFESSIONAL OR OTHER SERVICES. PROSIMO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. PROSIMO AND ITS SUPPLIERS AND LICENSORS DO NOT WARRANT OR REPRESENT THAT THE SOFTWARE WILL BE FREE FROM BUGS,THAT ITS USE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL FULFILL LICENSEE’S EXPECTATIONS AND NEEDS. THIS DISCLAIMER SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. EXCEPT AS STATED ABOVE, PROSIMO AND ITS SUPPLIERS PROVIDE THE SOFTWARE ON AN “AS IS” BASIS. PROSIMO PROVIDES NO WARRANTIES WITH RESPECT TO THIRD PARTY SOFTWARE AND OPEN SOURCE SOFTWARE.
- LIMITATIONS OF LIABILITY AND INDEMNIFICATION
- EXCLUSION OF CERTAIN DAMAGES. EXCEPT FOR BREACHES OF SECTION 6 (CONFIDENTIALITY) OR SECTION 9 (OWNERSHIP), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR RELIANCE DAMAGES, INCLUDING ANY LOST DATA, LOSS OF USE AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, THE SOFTWARE OR DOCUMENTATION, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF, OR COULD REASONABLY HAVE PREVENTED, SUCH DAMAGES.
- LIMITATION OF DAMAGES. PROSIMO’s TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SOFTWARE, DOCUMENTATION, OR SERVICES PROVIDED BY PROSIMO, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY LICENSEE FOR THE SOFTWARE, DOCUMENTATION OR SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS FOLLOWING THE EFFECTIVE DATE. LICENSEE AGREES THAT PROSIMO’S SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT. IN THE CASE OF PROSIMO’S INDEMNIFICATION OBLIGATIONS, PROSIMO’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE SUM OF THE LICENSE FEES PAID OR PAYABLE BY LICENSEE FOR THE SOFTWARE, DOCUMENTATION OR SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS FOLLOWING THE EFFECTIVE DATE OF LICENSEE’S SUBSCRIPTION.
- Licensee’s Indemnification Obligation. Licensee shall indemnify and hold harmless Prosimo, its officers, directors, employees, agents, representatives, and licensors from, and, at Licensee’s expense, shall defend Prosimo against, any loss, damage or expense (including reasonable and directly related legal costs) that Prosimo incurs or becomes liable for as a result of any breach by Licensee, by any of its Authorized Users, or by its agents, representatives, or others for whom Licensee is responsible, of any of the terms of this Agreement; any negligent, reckless or willful act or omission by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible; any failure by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible to comply with applicable laws in performing under this Agreement; any misuse by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible of the Software or of the Documentation; or, any claim made against Prosimo by any third party for which Prosimo is not liable under this Agreement, and which arises as a consequence of Use of the Software by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible. Licensee shall reimburse Prosimo for its expenses under this Section as they are incurred. Prosimo shall have the right, at its own expense, to participate in the defense of any claim, action or proceeding against which it is indemnified hereunder. Licensee, in the defense of any such claim, action, or proceeding arising under this Section shall not, except with the written consent of Prosimo obtained in advance, enter into any settlement which adversely affects Prosimo’s rights or which does not include, as an unconditional term, a release granted to Prosimo of all liabilities in respect of such claim, action or proceeding.
- Prosimo’s Indemnification Obligation. Prosimo shall indemnify, defend and hold Licensee harmless against any claim or action brought by a third party against Licensee to the extent based upon any claim that the Software infringes the intellectual property rights of such third party. Licensee shall promptly notify Prosimo in writing of any such claim, give Prosimo full authority and control of the settlement and defense of the claim, and fully cooperate with Prosimo in the defense of such claim. Prosimo shall have no obligation to Licensee under this Agreement for any claim that arises from: (a) any modification to the Software made by anyone other than Prosimo; (b) any Use by Licensee of the Software other than as specified in this Agreement or in the Documentation (including on any hardware configuration other than the Equipment); or (c) Licensee’s Use of prior versions of the Software after an update has been provided by Prosimo to Licensee. If a third-party claim for infringement arises, or in Prosimo’s reasonable opinion is likely to arise, Prosimo may at its own expense obtain for Licensee the right to continue using the Software, may modify the Software to make it non-infringing, or may substitute other software and hardware of similar capability and functionality. If none of the foregoing options are reasonably available to Prosimo, Prosimo may terminate this Agreement and refund to Licensee the fees paid, less the fees for Licensee’s Use of the Software prior to such termination. THIS SECTION STATES THE ENTIRE INDEMNIFICATION OBLIGATION OF PROSIMO AND LICENSEE’S EXCLUSIVE REMEDIES WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR PROPRIETARY RIGHTS VIOLATIONS BROUGHT AGAINST LICENSEE AND FOR WHICH LICENSEE MAY SEEK INDEMNIFICATION.
- THIRD PARTY SOFTWARE. NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY IN THIS AGREEMENT, PROSIMO SHALL NOT BE LIABLE FOR ANY DAMAGES REGARDING THE USE OR OPERATION OF ANY THIRD-PARTY SOFTWARE FURNISHED UNDER THIS AGREEMENT.
- LIMITATION OF ACTIONS. IN NO EVENT MAY LICENSEE BRING ANY CAUSE OF ACTION RELATED TO THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO THE LIABILITY.
- EXPORT
- The Software, Documentation and related technical data may be subject to U.S. export control laws, including without limitation the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee shall comply with all such regulations and agrees to obtain all necessary licenses to export, re-export, or import the Software, Documentation and related technical data.
- GENERAL
- No Agency. Prosimo and Licensee each acknowledge and agree that the relationship established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (1) give either party the power to direct or control the day-to-day activities of the other; (2) deem the parties to be acting as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking; or (3) permit either party or any of either party’s officers, directors, employees, agents or representatives to create or assume any obligation on behalf of or for the account of the other party for any purpose whatsoever.
- Compliance with Laws. Each party agrees to comply with all applicable laws, regulations, and ordinances relating to their performance hereunder. Without limiting the foregoing, Licensee warrants and covenants that it will comply with all then current laws and regulations of the United States and other jurisdictions relating or applicable to Licensee’s Use of the Software and Documentation including, without limitation, those concerning Intellectual Property Rights, invasion of privacy, defamation, and the import and export of Software and Documentation.
- Force Majeure. Except for the duty to pay money, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, riots, fires, flood, storm, explosions, acts of God, war, governmental action, earthquakes, or any other cause which is beyond the reasonable control of such party.
- Governing Law; Venue and Jurisdiction. This Agreement shall be interpreted according to the laws of the State of California without regard to or application of choice-of-law rules or principles. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Santa Clara County, California and the parties hereby consent to the personal jurisdiction and venue therein.
- Injunctive Relief. The parties agree that monetary damages would not be an adequate remedy for the breach of certain provisions of this Agreement, including, without limitation, all provisions concerning infringement, confidentiality and nondisclosure, or limitation on permitted Use of the Software or Documentation. The parties further agree that, in the event of such breach, injunctive relief would be necessary to prevent irreparable injury. Accordingly, either party shall have the right to seek injunctive relief or similar equitable remedies to enforce such party‘s rights under the pertinent provisions of this Agreement, without limiting its right to pursue any other legal remedies available to it.
- Entire Agreement and Waiver. This Agreement and any exhibits hereto shall constitute the entire agreement and contains all terms and conditions between Prosimo and Licensee with respect to the subject matter hereof and all prior agreements, representations, and statement with respect to such subject matter are superseded hereby. This Agreement may be changed only by written agreement signed by both Prosimo and Licensee. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches; and the waiver of any breach shall not act as a waiver of subsequent breaches.
- Severability. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of this Agreement will remain in full force and effect. The parties further agree that in the event such provision is an essential part of this Agreement, they will begin negotiations for a suitable replacement provision.
- Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the respective parties hereto, their respective successors and permitted assigns.
- Assignment. Licensee may not assign this Agreement, in whole or in part, without the advance written permission of Prosimo and any attempt to do so shall be a material default of this Agreement and shall be void. Prosimo may assign its rights and benefits and delegate its duties and obligations under this Agreement freely and at any time.
