TERMS AND CONDITIONS OF SALE
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This Sales Agreement (“Agreement”) is a legal contract between you (“you, “your,“ or “Purchaser”) either individually or on behalf of a legal entity and eAgile, Inc. (“we,” “us,” or “eAgile”) for eAgile’s sale and your purchase of eAgile’s IoT and RFID tags and any related equipment (the “Products”). The business terms applicable to the sale of the Products are contained in Purchaser’s purchase order for the Products that eAgile accepts as evidenced by the issuance of its sales order.
You are bound by this Agreement by either (a) your payment for or acceptance of the Products; or (b) your failure to promptly object to eAgile’s sales order. In no event will the pre-printed provisions of your purchase order or any associated documentation constitute a binding agreement between the parties or serve to modify the provisions of this Agreement, regardless of eAgile’s failure to object to your purchase order or associated documentation.
You and eAgile agree as follows:
1. Price and Payment Terms.
- a. Freight Terms; Quantities. All sales are F.O.B. eAgile’s plant that ships the Products. You are responsible for freight costs. Product prices are those in effect on the shipment date and are subject to change without prior notice. Shipments that vary from the actual quantity ordered will be deemed conforming if the difference does not exceed ten percent. eAgile may also ship a quantity of Products greater than the quantity ordered to compensate for expected non-functioning products present in a roll. You will not be required to pay for these additional Products, but they will not make the shipment non-conforming.
- b. Payment Terms. Payment in U.S. Dollars is due and payable in accordance with the terms provided in eAgile’s invoice. If payment is not received by the due date, then you shall pay eAgile an additional sum equal to 1.5% per month until all unpaid amounts are fully paid. If eAgile determines that your financial condition does not justify continuance of Product manufacturing or shipment on the payment terms specified, eAgile may require that you pay for the Products in advance. You shall pay the attorney’s fees and collection costs that eAgile incurs in collecting any unpaid amounts.
- c. Taxes; Duties. The amount of any federal, state, local, or other taxes applicable to the sale of the Products will be added to the price and paid by you unless you provide eAgile with an acceptable exemption certificate issued by the appropriate taxing authority. If you are a foreign resident, you shall be liable for all customs and other duties related to the sale of the Products, their exportation outside of the U.S., and their importation into your country.
- d. Security Interest. You hereby grant eAgile a security interest in the Products sold until payment of the purchase price and all other amounts due eAgile. You shall promptly sign and deliver any documents as eAgile requests to perfect this security interest.
2. Shipment and Transportation Terms. eAgile reserves the right to specify routing of shipments. eAgile will attempt to ship the Products within the time specified on the sales order, if indicated, and if not, then within a reasonable time. You acknowledge that no claim may be made for shipment delays. Unless otherwise specified in the applicable sales order, freight charges will be prepaid and billed. If you specify a carrier who is not an eAgile approved carrier, the shipment will be made to you Freight Collect.
3. Title and Risk of Loss. Title and risk of loss for Products will pass to you on eAgile’s delivery to the carrier, regardless of the freight terms or payment method of the transportation charges.
4. Transit Damage Claim Procedure.
- a. Inspection. You are solely responsible to inspect the entire shipment of Products as tendered and file a claim with the carrier if any portion is missing or damaged. Your inspection obligations include all non-pressure-sensitive roll inlays, pressure-sensitive inlays, and RFID-enabled labels.
- b. Reporting. If you discover any Product loss or damage on delivery, you must note such loss or damage on the delivery receipt. You must report any concealed Product damage to the carrier within 15 days of receipt. Retaining the entire Product package is necessary until after the carrier issues a concealed damage inspection report.
- c. Claims. Time is of the essence.Prompt inspection of the Products and the prompt filing of the loss and damage claim with all necessary documents will facilitate the carrier’s fast settlement. All claims must be accompanied by the following documents:
- Original paid freight bill.
- Certified copy or original bill of lading.
- Duplicate of invoice covering shipment.
- Duplicate of destination inspection report, if available, or duplicate of delivery receipt noting the shortage or damage.
- The freight bill and bill of lading can be obtained by emailing [email protected]. Retain copies for your files.
- d. Assistance. If you have a problem obtaining the carrier’s payment of a valid freight claim, you may contact us at [email protected] for assistance.
5. Product Modification; Converting. eAgile reserves the right to modify the Products as determined in our sole discretion unless agreed upon in writing before the sale. If eAgile issues guidelines for converting any RFID Products, you must only convert the Products pursuant to those guidelines. eAgile is not responsible for any RFID Product failure caused by the converting process.
6. Purchase Order Cancellation; Product Returns. You shall not cancel a purchase order after it is received by eAgile. All Products are returnable only in accordance with the limited warranty stated in section 7. Before returning any Product, you shall obtain eAgile’s return authorization and shipment instructions.
7. Warranties; Exceptions; Remedy.
- a. Title. eAgile warrants that it has good title to the Products and the right to sell them to Purchaser.
- b. Limited Product Warranty. Subject to the limitations stated below, eAgile warrants that for six months after delivery or such other period as specified in the applicable Product Data Bulletin (the “Warranty Period”), the Products will be in material compliance with eAgile’s specifications stated in the applicable Product Data Bulletin. This limited warranty will only apply if you are not in breach of this Agreement and you have notified eAgile of the Product non-conformity in writing before Warranty Period expiration.
- c. Exceptions. This limited warranty will not apply to (i) your negligence, abuse, misapplication, or misuse of the Products; (ii) any Products that eAgile determines were defective at shipping (such as non-pressure-sensitive roll inlay products) if you were not charged for those Products; or (iii) your use of the Products other than as specified in the applicable Product Data Bulletin. All statements, technical information, and recommendations about the Products are based upon tests believed to be reliable but do not constitute a guarantee or warranty. The Products are sold with the understanding that you have independently determined the suitability of the Products for your business. No salesperson, representative, or agent of eAgile is authorized to give any guarantee, warranty, or make any representation contrary to the above limited Product warranty.
- d. Sole Remedy. Your sole remedy and eAgile’s sole liability for breach of this limited Product warranty is, at eAgile’s discretion, the prompt replacement of the non-conforming Product or the issuance of a Product credit in such amount as eAgile considers reasonable.
8. Disclaimer of Warranties. The express warranties in section 7 are in lieu of all other warranties, express, implied, or statutory, regarding the Products, including any warranties of merchantability and fitness for a particular purpose. You acknowledge that you have not relied on any warranties other than those stated in section 7. eAgile does not warrant that your use or operation of the Products will be compatible or work with Third-Party Products, except as expressly stated in the applicable Product Data Bulletin. “Third-Party Products” means application software or hardware products provided by third-party vendors, including operating system and application software with which the Products interface that may provide functionality essential to their operation.
9. Installation and Support Services Not Included. eAgile will not provide you with any Product installation or support services under this Agreement.
10. Export Restrictions. You acknowledge that the Products may be subject to U.S. export jurisdiction. You shall comply with all applicable international and national laws that apply to the Products, including the U.S. Export Administration Act and associated regulations.
11. Exclusion of Incidental, Consequential, and Certain Other Damages. To the maximum extent permitted by law, eAgile and its suppliers are not liable for any special, incidental, punitive, indirect, or consequential damages, including for any of the following that arise out of or are any related to the use of the Products or any related services, regardless of the liability theory and even if eAgile or any supplier was advised of the possibility of these damages: (a) loss of profits; (b) loss of confidential or other information; (c) business interruption; (d) personal injury or death; (e) loss of privacy; (f) failure to meet any duty, including of good faith or reasonable care; (g) negligence; or (h) any other pecuniary loss.
12. Liability Limitation and Remedies. Notwithstanding any damages that you might incur for any reason (including all damages in contract, tort, or to any third-party), eAgile’s and its suppliers’ entire liability under this Agreement and your exclusive remedy (except for any repair or replacement elected by eAgile) is limited to your actual, direct damages up to the purchase price of the Products responsible for the loss. The foregoing limitations, exclusions, and disclaimers (including sections 7, 8, and 11) apply to the maximum extent permitted by law, even if any remedy fails of its essential purpose.
13. Force Majeure. eAgile is not liable for any loss, damage, delays, changes in shipment schedules or failure to deliver caused by accident, fires, floods, labor disputes or shortages, riots, civil commotion, insurrection, war, terrorism, sabotage (including computer viruses), the elements, embargo, failure of carriers, extended mechanical failure, shortages of utilities, raw materials, equipment or transportation, government action, the effect of any laws, ordinances, rules and regulations, whether valid or invalid, acts of God, or public enemy, prior orders from customers or limitations on eAgile’s or its suppliers’ production or marketing activities or any other causes or contingencies beyond eAgile’s control.
14. Publicity. You hereby grant eAgile the right to publish your name, tradename, and trademark in a press release announcing the parties’ business relationship or in a public list of eAgile’s customers, and eAgile may post the press release or list on its website or elsewhere.
15. Applicable Law. This Agreement is governed by Michigan (U.S.A.) law, without regard to its choice of law principles, as applied to agreements entered into and performed entirely in the State of Michigan. Unless expressly waived by eAgile in writing for the particular instance, the state and federal courts located in Kent County, Michigan, U.S.A., have sole and exclusive jurisdiction and venue for actions related to the subject matter of this Agreement. You consent to the jurisdiction of these courts, and you also agree that the U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement or to any dispute or transaction arising out of this Agreement.
16. Entire Agreement; Amendment; Severability. This Agreement states eAgile’s entire liability and your exclusive remedy concerning the Products and supersedes any Product communications or advertising. Except for the business terms of your purchase order for the Products if accepted by eAgile, you acknowledge that this Agreement is a complete statement of the agreement between you and eAgile for the Products, and there are no other prior or contemporaneous understandings, promises, representations, or descriptions concerning the Products. No amendment to or modification of this Agreement is binding unless made in writing and signed by eAgile’s authorized officer. No failure to exercise or delay in exercising any right or any power in this Agreement will operate as a waiver. If any provision of this Agreement is held void, invalid, unenforceable, or illegal, the other provisions will continue in full force and effect, and the invalid, unenforceable, or illegal provision will be amended to achieve as closely as possible the effect of the original term. If there is any conflict or contradiction between this Agreement and your purchase order for the Products accepted by eAgile, this Agreement will control.
17. Confidential Information.
- a. Description of Confidential Information. You acknowledge and agree that the Products, Product Data Bulletins, and all non-public information emanating from the Products and eAgile’s business in any form are eAgile’s valuable trade secrets and its “Confidential Information.” You shall not permit the duplication, use, or disclosure of any Confidential Information to any person (other than your employees, agents or representatives), unless eAgile specifically authorizes that duplication, use, or disclosure in writing before any disclosure. To the extent that eAgile authorizes the duplication of Confidential Information, all such copies will bear the same confidentiality notices, legends, and intellectual property rights’ designations that appear in the original versions, and you shall keep detailed records of the location of all Confidential Information.
- b. Degree of Care. You shall use reasonable diligence, and in no event less than that degree of care that you use for your own confidential information, to prevent the unauthorized disclosure or reproduction of the Confidential Information.
- c. Term. These confidentiality obligations will survive for five years from the date of eAgile’s first disclosure of any Confidential Information to you, except that Confidential Information constituting a trade secret under applicable law will survive for as long as the Confidential Information remains a trade secret under that law.
TERMS AND CONDITIONS OF PURCHASE
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eAgile Inc. Purchase Order is subject to the following:
- The term “Supplier” shall mean the person or entity to whom or which this Purchase Order is directed irrespective of whether the Supplier acts in the capacity of seller, buying agent acting on behalf of Buyer, selling agent acting on behalf of the seller, or any other capacity.
- No conditions, terms or provisions inserted by Supplier in acknowledging and accepting this order shall be effective unless the same are accepted in writing by Buyer. The failure of Supplier to acknowledge this Purchase Order in writing within ten (10) days of the date of receipt thereof, or the commencement of performance required by this offer, shall be conclusive evidence of Supplier’s approval of consent to all terms and conditions of purchase herein contained.
- Term: Invoice not payable until shipment inspected and accepted by Buyer. In the event Buyer makes payment of invoice within the period allowed for the purpose of obtaining cash discount offered, such payment shall not prejudice the right of Buyer to return articles found defective or which fail inspection and receive credit or reimbursement from Supplier.
- Individual invoices showing order number and purchase item number must be issued against this order.
- Buyer reserves right to return all invoices submitted incorrectly, and Purchase Order terms shall be determined as of date latest correct invoice received.
- Shipping container must be labeled or marked to identify contents without opening, and contain packing slip’s listing contents.
- Buyer’s Purchase Order number must appear on all packing slips, delivery tickets, and bills of lading, issued in connection with such order and must be marked “partial” or “complete” for each delivered item.
- Prices: Invoices showing higher cost than printed on the order will be subject to a charge-back for difference. Price changes must be approved by the Buyer in writing. Buyer is to receive the benefits of any price decreases up to the specified date of shipment.
- Advance Manufacture and Shipments: Supplier shall not manufacture in advance of the schedule set forth in this order without Buyer’s written permission.
- Inspection & Audit: All articles furnished under this Purchase Order are subject to inspection and acceptance within 30 days of delivery at Buyer’s plant, not withstanding any payments or other prior inspection. Lots of articles furnished under this Purchase Order which exceed a 1% defect level or the percentage states on the applicable Defect Check List, may be 100% inspected by Buyer at Supplier’s expense. At Buyer’s option, defection articles may be returned at Supplier’s expense (including packaging and shipping) for sorting, correction, replacement or credit as Buyer elects. Supplier agrees that its plant, or such parts thereof as may be engaged in the performance of this order shall be subject to inspection by Buyer and its authorized representative during normal business hours.
- General Warranty and Indemnification: Supplier expressly warrants that all articles to be delivered under this Purchase Order will be free from defects of material and workmanship and will conform to applicable drawings, specifications, samples or other written descriptions given under this order, whether or not attached hereto, and, to the extent the subject articles are not manufactured pursuant to design originated by Buyer, the same are free of any defect in design. This warranty shall run to Buyer and its successors for the article furnished under this order. In connection with such articles, Supplier shall defend any product liability claim or suit against Buyer or its customers and shall indemnify and save harmless Buyer and its customers’ customers from and against any and all damages, expenses, and judgments which Buyer or its customers may suffer, incur or sustain as a result thereof.
- Subcontracts: Except for articles proprietary to Supplier, no subcontracts hereunder shall be made by Supplier herein with any other party for furnishing any of the completed or substantially completed articles, spare parts, or work herein contracted for, without the prior written consent of Buyer.
- Patent Protection: To the extent the subject articles are not manufactured pursuant to design originated by Buyer, Supplier agrees to indemnify Buyer and its customers for all loss and expense arising from claims (by suit or otherwise) of patent and/or trademark infringements resulting from Buyers or its customer’s use or sale of products supplied by Supplier under this order.
- Engineering Information: Supplier agrees that all drawings, specifications, samples and/or written disclosures forming a part of this order, either by reference or otherwise, are the property of Buyer and are submitted in confidence with the understanding and agreement by Supplier that such drawings, specification, samples, and/or written disclosures so marked shall not be utilized, in whole or in part, by Supplier, either for itself or by it on behalf of any other person, firm, or corporation, without written permission of Buyer.
- Change Control: Seller shall give Buyer reasonable advance written notice of any production change related to the Materials, including but not limited to any change in the manufacturing process, formulation, raw materials or production location. For any change that could affect performance of the Materials, Seller shall complete any reasonable qualification processes of Buyer and address Buyer’s concerns about the change.
- Copyright Ownership: All commissions to create or contribute a specific work described on the Purchase Order (the “Work”) are hereby accepted by Supplier for value received. All material delivered to Buyer or contributed to the Work shall be reproduced and distributed by Buyer. Supplier and Buyer hereby agree that the Work is a “work made for hire” as that term is defined in the Copyright Law of the United States of America and that Buyer is entitled to claim authorship as defined in the Copyright Law and ownership of the copyright. To the extent not otherwise assigned by operation of law, supplier hereby assigns or agrees to assign to Buyer its entire right, title and interest in the Work, including all copyrights.
- Packaging: All items shall be packaged by Supplier in suitable containers for protection to permit safe transportation and handling. No charge shall be made by Supplier for packaging unless provided for on purchase order.
- Toxics in Packaging Reduction Laws: Vendor guarantees that packaging and packaging components manufactured and/or supplied to Buyer, and delivered to Buyer on or after January 1, 1992, do not contain lead, cadmium, mercury, or hexavalent chromium that has been intentionally introduced during manufacturing or distribution of said package or packaging components. Should incidental levels of lead, cadmium, mercury, or hexavalent chromium be present, these levels conform with allowable limits prescribed by applicable federal, state, and local laws, statutes, rules, regulations, and ordinances.
- Assignment: Supplier may not assign this order without prior written consent of Buyer. Claims for monies due or to become due under this order may be assigned by Supplier provided Supplier shall supply Buyer promptly with two copies of any such assignment. Payment to an assignee of any such claim shall be subject to setoff or recoupment for any present or future claims with Buyer may have against supplier. Buyer reserves the right to make direct settlements and/or adjustments in price with Supplier under the terms of this order, notwithstanding any assignment of claims for monies due or to become due hereunder and without notice to the assignee.
- Changes: Buyer may, at any time and from time to time, by Purchase Order Amendment issued to Supplier; (a) make changes in shipping and packaging instructions; (b) increase or decrease the quantity of products ordered; (c) change the drawings or specifications; (d) issue a suspension of work order; (e) make changes in the delivery schedule. If such changes cause an increase or decrease in the amount of work hereunder or in the cost of performance, or in the time required for performance, an equitable adjustment shall be made in the contract price and/or the delivery schedule and the Purchase Order shall be amended in writing accordingly. All articles covered hereunder shall be manufactured in accordance with this purchase order unless a change thereto is subsequently authorized by a written Purchase Order Amendment issued by Buyer.
- Termination: Buyer may terminate work under this Purchase Order in whole or in part at any time by notice to Supplier in writing. Supplier will thereupon immediately stop work on this Purchase Order or the terminated portion thereof and notify subcontractors to do likewise. Except where such termination is caused by a default or delay of Supplier, Supplier shall be entitled to reimbursement for its actual costs incurred up to and including the date of termination, applicable to the termination and in accordance with the recognized accounting practices. Supplier shall be also entitled to a reasonable profit on the work done prior to such termination at a rate not exceeding the rate used in establishing the original purchase price. The total of such claim shall not exceed the cancelled commitment value of this purchase order. Termination claim shall be subject to inspection and Audit provisions of Clause 6 above.
- Termination for Default: Buyer may terminate this Purchase Order, or any part thereof, by written or telegraphic notice of default to Supplier signed by Buyer under any of the following circumstances:
- If Supplier refuses or fails to make deliveries or perform the services within the time specified or extensions thereof agreed to in writing by Buyer.
- If Supplier fails to comply with any of the other provisions of this Purchase Order, or so fails to make progress as to endanger performance of this Purchase Order in accordance with its terms, and does not cure any such failure within a period of ten (10) days (or such longer period as Buyer may authorize by written notice signed by Buyer) after receipt of notice from Buyer specifying such failure.
- If Supplier becomes insolvent or is subject to proceedings under any law relating to bankruptcy, insolvency, or the relief of debtors. In the event of such termination, Buyer shall be free to purchase similar supplies elsewhere or secure the manufacture and delivery of such supplies by contract or otherwise, and Supplier shall be liable to Buyer for any excess cost when the default of Supplier is due to causes beyond its control, i.e., Acts of God, strikes, National Emergency, etc., provided further, Supplier shall not be excused from liability unless Supplier has notified Buyer in writing of the existence of such cause within ten (10) days from the beginning thereof.
- Law Governing: This Purchase Order shall be governed by the laws of the State of Michigan and the parties agree and consent to the jurisdiction of the courts located in Grand Rapids, Michigan to resolve any dispute arising out of this transaction.
- Any waiver of strict compliance with the terms hereof by Buyer shall not constitute a waiver of Buyer’s right to insist upon strict compliance with terms of this order hereafter.
- Taxes: Buyer shall not be liable for any federal, state, or local taxes unless separately stated on the Purchase Order.
- Safety Requirements: All machinery and equipment must meet the safety standards of the Federal Occupational Safety and Health Act of 1970 (Public Law No. 91-596) and the applicable state safety statutes.
- With regard to the articles supplied under this Purchase Order, Supplier acknowledges and agrees to comply with Buyer’s policies and requirements for supplier and their subcontractors as set forth on Buyer’s web site, located at eagile.com and which Buyer may amend from time to time. Supplier shall be required to furnish a certificate that the articles listed on this purchase order were produced in compliance with all applicable requirements of Section 6, 7, and 12 of the Fair Labor Standards Act of 1938 as amended, and of the regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof. In the event that any articles listed on this Purchase Order are in a misbranded package within the meaning of the Federal Hazardous Substances Act, the Federal Food, Drug and Cosmetic Act, the Federal Insecticide, Fungicide and Rodenticide Act of 1970, or any other federal, state or municipal law, ordinance or regulation, the Supplier agrees to pay all costs of relabeling and such other costs as are necessary so that the article will fully comply with the applicable federal, state or municipal laws or regulations. Supplier agrees to furnish buyer an analysis of the contents and/or characteristic of the product sold pursuant to this Purchase Order.
- Supplier hereby agrees that the products which are the subject of this agreement, which bear labels approved by Buyer, and which are identified by one or more of Buyer’s trade name and trademarks shall be sold only to Buyer and shall not be sold to any other person, firm, or corporation, including any distributor of Buyer’s products. All packages or containers in which the product sold hereunder is packaged must be marked clearly with the Buyer part number shown on the first page of this order.
- Supplier shall not, under any circumstances, divulge or release Buyer’s name as being a customer of Supplier to any person, association, corporation, or government agency without prior written authority from Buyer.
- In the event any ingredient and/or materials used by Supplier in the manufacture or fabrication of Buyer’s products are declared by any governmental agency to be unsafe or unfit for the use contemplated, Supplier shall notify Buyer, and Supplier shall immediately cease and desist from the further use of such ingredients or materials, and Buyer shall be released from any further obligations hereunder. Supplier shall furnish to Buyer copies of all documents issued by such governmental agency imposing any requirement or restriction upon Supplier together with responses by Supplier showing compliance or non-compliance. Supplier shall resume production of products for Buyer only after written notice to Buyer and substitute materials of like quality have been approved by such governmental agency and Buyer has approved in writing the resumption of production by Supplier.
- Insurance: If Supplier performs labor or services within the plant or on premises of Buyer, Worker’s Compensation plus Liability Insurance Certification must be submitted to and approved by Buyer before such labor or service begins.
- CUSTOMS EXPORT/IMPORT REQUIREMENTS
- Supplier shall supply, upon request and without delay, all information and documentation deemed necessary by Buyer and/or Customs authorities to comply with Customs, Export and Import requirements of the country(s) of export and country(s) or importation of the goods.
- Supplier shall be solely responsible for complying with U.S. Country(s) of Origin Marking requirements of the applicable country(s) of importation.
- Supplier hereby transfers to Buyer all transferable customs duty and import tax drawback or refund rights, if any, relating to the goods (including rights developed by substitution and rights which may be acquired from Supplier’s suppliers). Supplier shall inform Buyer of the existence of any such drawback or refund rights and, upon Buyer’s request, shall supply Buyer with such documents and information as may be required to obtain such drawbacks or refunds.
END USER LICENSE AGREEMENT
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This End User License Agreement (“EULA”) is a legal contract between you (either individually or on behalf of a legal entity) and eAgile, Inc. (“Licensor”) for the Licensor’s IoT and RFID software that accompanies this EULA, which may also include associated media, printed materials, and “online” or electronic documentation (collectively the “Software”). The Software also includes all related documentation, updates, and upgrades that replace or supplement the Software and are not distributed with a separate license.
You are bound by this EULA either by your (a) use of the Software in a beneficial or production capacity after installation at your facility; or (b) assent to Licensor’s proposal for Software-related services that references this EULA and includes the Software license fees and payment terms. “Beneficial use” means that you are using the Software to derive economic benefit or advantage even though the Software is not being used in a production capacity.
Capitalized terms have the meanings stated in the section in which they first appear in this EULA.
1. License Grant. Licensor grants you the following rights on the condition that you comply with this EULA:
- a. Grant. To the extent permitted by your payment of applicable license fees, Licensor hereby grants you a non-exclusive, non-transferable license, without rights to sublicense, to use the object code of the Software solely for your internal business purposes and for the purpose for which the Software was designed as stated in the applicable Software documentation. You shall use the Software and the documentation only for permitted uses of the Software as stated in this EULA.
- b. Use. You shall use, access, display, and run one copy of the Software on a single computer, such as a workstation, terminal, or other device (“Workstation Computer”). The Software must not be used by more than one processor at any one time on any single Workstation Computer.
- c. Copies. You must use only one copy of the Software on a single computer at any given time. You shall not make a copy of the Software available on a network where it could be used by multiple users at the same time. You shall not make the Software available over a network where it could be downloaded by multiple users. You may make a single copy of the Software for back-up purposes, provided such copy is not installed or used on any computer.
2. Reservation of Rights and Ownership. The Software is licensed, and not sold, to you for use only under the terms of this EULA. The Software is protected by patent, copyright, and other intellectual property laws and treaties. Licensor or its suppliers own all Intellectual Property Rights in the Software. “Intellectual Property Rights” means all (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all their associated goodwill; (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases; (d) trade secrets, know-how, and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law, regulations, or rules in any jurisdiction throughout the world.
3. Limitations on Reverse Engineering, Decompilation, and Disassembly. You shall not reverse engineer, decompile, or disassemble the Software by any means, or alter, modify, enhance, or create a derivative work of the Software. You shall not remove, alter, or obscure any product identification, patent, copyright, or other intellectual property notices in the software.
4. No Rental or Hosting. You shall not rent, lease, lend, or provide hosting services with the Software for third parties. You shall not use the Software to provide commercial services to third parties.
5. Consent to Data Use; Feedback.
- a. Collection of Technical Information. You agree that Licensor and its affiliates may collect and use technical information gathered or as part of the product support services provided to you, if any, related to the Software. Licensor may use this information to improve its products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.
- b. Feedback. You hereby waive all Intellectual Property Rights that you may have in the Feedback and assign to Licensor all Intellectual Property Rights in the Feedback. You shall promptly execute all additional agreements as requested by Licensor to give effect to these Feedback waiver and assignment provisions. “Feedback” means all suggestions, comments, and other feedback, in any form or format, that you provide to Licensor related to the Software or any Licensor-provided services, including Software customization, improvement, enhancement, or modification.
6. Transfer. During the Term, you may move the Software to a different Workstation Computer; such transfer may require you to contact Licensor to effectuate such transfer. After the transfer, you must completely remove the Software from the former Workstation Computer. You shall not sublicense, rent, or lease your rights in the Software or authorize any portion of the Software to be copied except as expressly permitted in this EULA.
7. Term; Termination. This EULA is effective commencing on the Software installation date (“Software Installation Date”) and ending one year after that date unless consecutive renewal terms are agreed before the EULA expires. This one-year period and any consecutive renewal period is referred to as the “Term.” You acknowledge that the Software contains a digital rights management component that will automatically prevent your use of or access to the Software upon expiration of the Term. In addition to EULA termination by expiration, this EULA will terminate immediately and automatically if you fail to comply with any of the terms and conditions of this EULA. Immediately on termination, you must cease all use of the Software, destroy all copies of the Software in your possession or control, and, on Licensor’s request, certify that destruction. Licensor’s termination of this EULA will not limit Licensor’s other rights or remedies at law or in equity.
8. Additional Software or Services. This EULA applies to Software updates, supplements, and add-on components that Licensor may provide to you during the Term, unless Licensor provides other license terms along with the update, supplement, or add-on component.
9. Installation, Implementation, and Support Services Not Included. Licensor will not provide you with any Software installation, implementation, and support services under this EULA. Instead, these services will be provided to you under a separate agreement based on your acceptance of Licensor’s proposal for these services. This EULA does not give you any rights to any updates or upgrades to the Software or to any extensions or enhancements to the Software developed by Licensor at any time in the future. Any supplemental software code or related materials that Licensor provides to you as part of any installation, implementation, or support services are part of the Software and are subject to this EULA.
10. Export Restrictions. You acknowledge that the Software is subject to U.S. export jurisdiction. You shall comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Act and associated regulations, as well as end-user, end-use, and destination restrictions issued by the U.S. and other governments.
- a. Title. Licensor warrants that it owns or has the right to license the Software.
- b. Limited Software Warranty; Conditions; Remedy Subject to the limitations stated below, Licensor warrants that for 30 days after the Software Installation Date (the “Warranty Period”) the Software shall substantially conform in all material respects to the specifications stated in the accompanying documentation, when installed, operated, and used as recommended in the documentation and in accordance with this EULA. This limited warranty will only apply if you are not in breach of this EULA and you have notified Licensor of the Software non-conformity in writing before Warranty Period expiration and will not apply to your (i) negligence, abuse, misapplication, or misuse of the Software; (ii) use of the Software other than as specified in the documentation or expressly authorized by Licensor in writing. Your remedy for Licensor’s breach of this limited warranty is for Licensor to repair the Software or replace the Software with functionally equivalent Software that conforms to the documentation. This section states your sole remedy and Licensor’s entire liability for breach of this limited Software warranty.
12. Disclaimer of Warranties. The express warranties in section 11 are in lieu of all other warranties, express, implied, or statutory, regarding the Software and its documentation, including any warranties of merchantability and fitness for a particular purpose. You acknowledge that you have not relied on any warranties other than those stated in section 11. Licensor does not warrant that: (a) your use or operation of the Software will be uninterrupted or error-free; or (b) that the Software will meet your business needs; or (c) the Software will be compatible or work with Third-Party Products (except as expressly stated in the documentation). “Third-Party Products” means application software and hardware products provided by third-party vendors, including operating system and application software with which the Software interfaces that may provide functionality essential to the Software operation.
13. Intellectual Property Infringement Claims.
- a. Indemnification Against Liability for Infringement. Licensor shall indemnify you against all liabilities, claims, and legal costs (including reasonable attorney fees) paid to or for the benefit of a third party arising from any third-party claim or suit alleging that the Software infringes: (i) any U.S. copyright; (ii) the trade secret or U.S. trademark rights of any third party; or (iii) any U.S. patent existing on the date the Software in question is delivered to you. You shall promptly notify Licensor in writing of a third-party claim. Licensor shall have sole control over the defense and settlement of the claim, but you may participate in the defense of the claim and employ counsel at your own expense to assist in the handling of the claim, and Licensor must obtain your written approval before entering into any settlement of the claim or ceasing to defend against the claim if that settlement or cessation would cause injunctive or other equitable relief to be imposed against you.
- b. Limitations on Indemnification. Licensor shall have no liability for, and shall not indemnify you against, any infringement claim resulting from your: (i) modification of any Software; (ii) combination of any Software with hardware, software, or other intellectual property provided by anyone other than Licensor; (iii) use of a superseded or altered release of some or all of the Software or any modification thereof furnished under this EULA, including your failure to use corrections, fixes, or enhancements made available by Licensor; or (iv) use of any Software in any manner not expressly contemplated by this EULA.
- c. Repair or Replacement of Infringing Software. In the event of a third-party infringement claim, Licensor shall, at its sole election and expense: (i) procure for you the right to continue to use the Software under this EULA; (ii) replace or modify the Software to make it non-infringing while still complying with this EULA; or (iii) if none of the above options is reasonably available, refund the license fees attributable to the infringing portion of the Software, minus depreciation based on a three-year useful life.
- d. Applicability to Third-Party Products. Licensor makes no representations or warranties and provides no indemnification or replacement covenants of any kind with respect to Third-Party Products. Licensor’s sole responsibility for Third-Party Products is to pass through any intellectual property warranties, indemnification, and replacement provisions that Licensor receives from the vendors or suppliers of the Third-Party Products that Licensor can pass on.
- e. Except as otherwise provided, sections 13(a) through 13(d) state Licensor’s and its third-party suppliers’ entire liability and your exclusive remedy for claims of intellectual property rights infringement.
14. Exclusion of Incidental, Consequential, and Certain Other Damages. To the maximum extent permitted by law, Licensor and its suppliers are not liable for any special, incidental, punitive, indirect, or consequential damages, including for any of the following that arise out of or are any related to the use of the Software or any related services, regardless of the liability theory and even if Licensor or any supplier was advised of the possibility of these damages: (a) loss of profits; (b) loss of confidential or other information; (c) business interruption; (d) personal injury or death; (e) loss of privacy; (f) failure to meet any duty, including of good faith or reasonable care; (g) negligence; or (h) any other pecuniary loss.
15. Liability Limitation and Remedies. Notwithstanding any damages that you might incur for any reason (including all damages in contract, tort, or to any third-party), Licensor’s and its suppliers’ entire liability under this EULA and your exclusive remedy (except for any repair or replacement elected by Licensor) is limited to your actual, direct damages up to the amount that you paid for the Software. The foregoing limitations, exclusions, and disclaimers (including sections 12, 13, 14, and 15) apply to the maximum extent permitted by law, even if any remedy fails of its essential purpose.
16. U.S. Government License Rights. All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described elsewhere herein. All Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227 -14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
17. Publicity. You hereby grant Licensor the right to publish your name, tradename, and trademark in a press release announcing the parties’ business relationship or in a public list of Licensor’s customers, and Licensor may post the press release or list on its website or elsewhere.
18. Applicable Law. This EULA is governed by Michigan (U.S.A.) law, without regard to its choice of law principles, as applied to agreements entered into and performed entirely in the State of Michigan. Unless expressly waived by Licensor in writing for the particular instance, the state and federal courts located in Kent County, Michigan, U.S.A., have sole and exclusive jurisdiction and venue for actions related to the subject matter of this EULA. You consent to the jurisdiction of these courts, and you also agree that the U.N. Convention on Contracts for the International Sale of Goods will not apply to this EULA or to any dispute or transaction arising out of this EULA.
19. Entire Agreement; Amendment; Severability. This EULA states Licensor’s entire liability and your exclusive remedy with respect to the Software and supersedes any communications or advertising. In no event will the pre-printed provisions of any purchase order or any associated documentation used by you constitute a binding agreement between the parties or serve to modify the provisions of this EULA, regardless of Licensor’s failure to object to that purchase order or associated documentation. You acknowledge that this EULA is a complete statement of the agreement between you and Licensor for the Software, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions concerning the Software. No amendment to or modification of this EULA is binding unless made in writing and signed by Licensor’s authorized officer. No failure to exercise or delay in exercising any right or any power in this EULA will operate as a waiver. If any provision of this EULA is held void, invalid, unenforceable, or illegal, the other provisions will continue in full force and effect, and the invalid, unenforceable, or illegal provision will be amended to achieve as closely as possible the effect of the original term. If there is any conflict or contradiction between this EULA and any accepted service proposal or service agreement between the parties, this EULA will control.
20. Injunctive Relief. You agree that a breach of this EULA adversely affecting Licensor’s proprietary rights in the Software will cause irreparable injury to Licensor for which monetary damages will not be an adequate remedy, so Licensor will be entitled to equitable relief in any court in addition to any remedies that Licensor may have under this EULA.
21. Confidential Information. You acknowledge and agree that the Software and all non-public information emanating from the Software and Licensor’s business in any form are valuable trade secrets of Licensor and its “Confidential Information.” You shall not, during or after the Term of this EULA, permit the duplication, use, or disclosure of any Confidential Information to any person (other than your employees, agents or representatives), unless Licensor specifically authorizes that duplication, use, or disclosure in writing before any disclosure. To the extent that eAgile authorizes the duplication of Confidential Information, all such copies will bear the same confidentiality notices, legends, and Intellectual Property Rights’ designations that appear in the original versions, and you shall keep detailed records of the location of all Confidential Information.
You shall use reasonable diligence, and in no event less than that degree of care that you use for your own confidential information, to prevent the unauthorized disclosure or reproduction of the Confidential Information.
22. Survival. Expiration or earlier termination of this EULA for any reason will not release either party from any liabilities or obligations stated in this EULA that (a) the parties have expressly agreed will survive; or (b) remain to be performed or by their nature would be intended to be applicable following expiration or earlier termination. Specifically regarding section 21 (Confidential Information), the confidentiality obligations will survive the expiration or earlier termination of this EULA for a period of five years from the date of expiration or termination, except Confidential Information that constitutes a trade secret under applicable law will survive for as long as the Confidential Information remains a trade secret under that law.