AVONTUS® SOFTWARE LICENSE AGREEMENT
Avontus Quantify®, which depending upon the particular components You have agreed to license from Avontus, include one or more of the following: Avontus Quantify Small Business, Avontus Quantify Enterprise, Avontus Quantify Industrial, Avontus Quantify Web, Avontus Quantify Database Tools, Avontus Quantify Excel Importer.
The Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Product is licensed, not sold.
1. Grant Of License. This Section of the License Agreement describes your limited rights to install and use the Product, as well as various restrictions on such rights. The license rights described in this Section are subject to all other terms and conditions of this License Agreement.
1.1 Installation and Use. During the term of this License Agreement, Avontus grants You a limited, non-exclusive, non- sublicensable (except as specifically permitted by Avontus), non-transferable (except as specifically permitted by Avontus), royalty-free license to install and use the Product for internal business purposes and for use with respect to equipment or property owned by You or temporarily rented or hired to You.
1.2 Network Use for Designated Branches. The Product may be accessed by an unlimited number of licensees who have been given access to the Product on an unlimited number of compatible computers or devices. The Product’s functionality, however, is limited to equipment and inventory located specifically at each branch office or laydown yard that has been designated by You or your company.
1.3 Limited Evaluation License. If You have installed and are using the Product, but You or your company have not purchased a commercial version of the Product, your right to continued use of the Product may be limited by time, and the Program’s functionality may be limited to equipment and inventory that is part of a demonstration database provided by Avontus.
1.4 Other Licenses. Your use of content that may be accessed through use of the Product may require additional licenses — please consult the license agreement accompanying such content.
1.5 Reservation of Rights. All rights not expressly granted in this License Agreement are reserved by Avontus.
1.6 Sublicense Rights. You may provide access to the Product and allow your customers to download a version of the Product that will enable such customers to access data. You have input through the Product (“Your Data”), so long as such customers agree to accept a sublicense license agreement that will be provided to such customer upon their initial download of the Product. You shall remain primarily liable for any breaches of such sublicense agreement by your customers.
2 License Restrictions And Limitations.
2.1 Limitations. You may not reverse engineer, decompile, disassemble, modify, or create derivative works of, the Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
2.2 Copy Protection. The Product may include copy protection technology to prevent the unauthorized copying of the Product. It is illegal to make unauthorized copies of the Product or to circumvent any copy protection technology included in the Product.
2.3 Notice of Remote Authentication; Data Storage and Remote Disabling Feature. The Product requires your computers to communicate with computers owned or operated by Avontus, to download a web application interface, to verify authentication codes and to unlock that version of the Product. The process of unlocking the Product will include Avontus receiving from your computer, via electronic means, certain identifying information from that computer (such as operating system version and unique signature information). You hereby consent to the electronic transmission of such identifying information to Avontus, and You agree and consent to the storage of such information on Avontus’ owned or operated computer equipment. You further understand and agree that the Product periodically queries the Avontus authentication server to confirm license compliance, and this process does permit Avontus, in the event of a termination of this License Agreement, to remotely disable the operation of the Product.
2.4 Separation of Component Parts. The Product is licensed as a single product.
2.5 Trademarks. This License Agreement does not grant You any rights in connection with any trademarks or service marks of Avontus Software Corporation or any other entity whose software or content You may access through use of the Product.
2.6 No Rental, Leasing, Commercial Hosting, Transfer Or Sublicensing. Except as specifically permitted by Avontus in writing, You may not rent, lease, lend, transfer, distribute or sublicense the Product, or otherwise provide commercial hosting services for the Product, to any third party. In addition, You may not use the Product to operate a service on behalf of third parties.
2.7 Support Services. So long as You or your company have paid the applicable support fees, You will be entitled to receive support from Avontus. The terms of support are provided pursuant to an agreement that is separate from this License Agreement.
3. Terms Applicable to Subscription License. The following terms of this Section 3 apply only to a Subscription License:
3.1 Hosting Services. Avontus, through its third-party provider Microsoft Corporation, will provide the hosting services (“Hosting Services”) for Your Data. Avontus may update the content, functionality and user interface of the Hosting Services from time to time in its sole discretion and in accordance with this License Agreement. You will be solely responsible for the data entered in the Product.
3.2 Hosting Service Access. In order to use the Product, You must have or obtain access to the internet. You agree that Avontus is not providing You with access to the internet in order to use the Product and that You are solely responsible for obtaining and maintaining such internet access and for providing all equipment necessary to obtain and maintain such internet access. Avontus does not and cannot control the flow of data to or from any network, designated hosting facility and/or other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Your connections to the internet (or portions thereof). Accordingly, Avontus disclaims any and all liability resulting from or related to such events.
3.3 Hosting Service Level. Downtime for access to Your Data shall not exceed 1% of the time in each (90) day period during the term of this License Agreement. For the purposes of this License Agreement, “Downtime” shall mean any interruption in the provision of Hosting Services for Your Data, but excluding (1) scheduled maintenance, (2) interruptions in respect of which You have received at least twenty-four (24) hour notice, and (3) any unavailability caused by circumstances beyond Avontus’ or Microsoft Corporation’s reasonable control, including without limitation, acts of force majeure, catastrophic failure of the internet or power supply, computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, virus attacks or hackers, software or power systems not within Avontus’ or Microsoft Corporation’s possession or reasonable control or any unavailability caused by Your use of the Product other than in accordance with this License Agreement. If the service level described in this Section 3.3 is not met by Avontus for any 90-day period as described above, Avontus may in its reasonable discretion provide You with a one-month extension of its subscription at no additional charge. This Section 3.3 states Avontus’ sole and exclusive remedy for failure to meet the service levels described above.
3.4 Hosting Capacity and Upload/Download Limitations. Unless otherwise agreed with Avontus, You are limited to maximum data storage of Your Data and maximum upload and download rates of Your Data per the terms of your pricing structure. If such limits are exceeded, additional charges may apply. Prices for capacity and upload and download rates are subject to change at any time and without notice.
3.5 Your Data. You represent and warrant to Avontus that You have sufficient rights in Your Data to authorize Avontus to process, distribute and display Your Data as contemplated by this License Agreement and the functionality of the Product, and that Your Data does not infringe the rights of any third party. As between the parties, You shall retain all right, title and interest (including any and all intellectual property rights) in and to Your Data. Subject to the terms of this License Agreement, You hereby grant to Avontus and its third party suppliers a non-exclusive, worldwide, royalty-free right to use, copy store, transmit, modify, create derivative works of and display Your Data solely to the extent necessary for You to use Your Data in connection with the Product. Upon request by You made to email@example.com with confirmed return receipt within 30 days after the effective date of termination of this License Agreement, Avontus will make available to You for download a file of Your Data. After such 30-day period, Avontus shall have no obligation to maintain or provide Your Data and shall thereafter, unless legally prohibited, delete Your Data in Avontus’ systems or otherwise in Avontus’ possession or under Avontus’ control. Avontus shall treat Your Data as confidential (and use it only in connection with performing Avontus’s obligations under this License Agreement), and shall treat Your Data with the same degree of care with which it treats its own confidential information but in any event with no less than a reasonable degree of care. Avontus shall ensure that its use of Your Data is at all times compliant with Avontus’s privacy policies and all applicable laws, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data. Avontus shall not disclose Your Data to any third party without Your prior written consent and shall only disclose Your Data to those employees or agents who need to know such information in order to perform Avontus’s obligations under this License Agreement, each of whom shall be advised of their obligations with respect to Your Data. This confidentiality provision shall survive any termination of this License Agreement. Notwithstanding the foregoing, Avontus shall have the right to use anonymized, aggregated data derived from Your Data for its internal business purposes.
4. Term and Termination. If You have a Purchased License, then the license and rights granted to You under this License Agreement shall remain in effect indefinitely. If You have a Subscription License, then the license and rights granted to You under this License Agreement shall remain in effect for so long as You keep your subscription to the Product current with Avontus. If a periodic payment from You is owing to Avontus, and You have not otherwise provided Avontus with authority to charge a valid payment method, You may receive notification from Avontus that payment is owing and if payment is not made in a timely manner, Your access to the Product may be discontinued or terminated. Notwithstanding the foregoing, and without prejudice to any other rights, Avontus may terminate this License Agreement if You fail to comply with the terms and conditions of this License Agreement and any additional quote and/or invoice terms and conditions. Upon any such termination of this License Agreement, You must destroy all copies of the Product and all of its component parts. Sections 7 through 13 shall survive termination of this License Agreement.
5. Intellectual Property Rights. All title and intellectual property rights in and to the Product (including but not limited to any images, stencils, templates, shapes, SmartShapes®symbols, photographs, animations, video, audio, music, text, and “applets” incorporated into the Product), the accompanying printed materials, and any copies of the Product are owned by Avontus or its suppliers. All title and intellectual property rights in and to the content that is not contained in the Product, but that may be accessed through use of the Product, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. This License Agreement grants you no rights to use such content. Your use of such content may require additional licenses — please consult the license agreement accompanying such content.
6. U.S. Government License Rights. Any Product 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. Any Product 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 (October 1988), as applicable.
7. Export Restrictions. You acknowledge that the Product is of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Product, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. You agree to defend, indemnify and hold Avontus and its officers, employees and affiliates harmless from and against any claims or losses (including, without limitation, for attorney’s fees) arising from or related to your breach of this Section 7. This indemnity obligation shall continue in perpetuity in the event this License Agreement terminates for any reason.
8. Applicable Law.
(a) Alternative 1 – If You have paid for a Purchased License or for a Subscription License and such payment was made to Avontus Software Corporation in California, United States, then this Section 8(a) shall apply. These terms and conditions are governed by the laws of the State of California. In the event of any dispute or claim arising out of or in connection with these terms and conditions or any associated matter or formation (including non-contractual disputes or claims), such litigation will be commenced and maintained in the courts located in San Francisco, California. The parties expressly submit themselves to the exclusive jurisdiction of such courts.
(b) Alternative 2 – If You have paid for a Purchased License or for a Subscription License and such payment was made to Avontus Software Ltd in England, then this Section 8(b) shall apply. These terms and conditions are governed by the laws of the England. In the event of any dispute or claim arising out of or in connection with these terms and conditions or any associated matter or formation (including non-contractual disputes or claims), such litigation will be commenced and maintained in the courts of England. The parties expressly submit themselves to the exclusive jurisdiction of such courts.
9. Limited Warranty. Avontus warrants that, for a period of thirty (30) days after You install the Product, the Product shall perform substantially according to any documentation provided with the Product; provided, however, that in no event shall this limited warranty extend longer than FIFTEEN (15) days after your OR YOUR COMPANY’S purchase of the Product. In the event of any breach of this limited warranty, Avontus shall refund the purchase price for the Product, in which case this License Agreement, and your rights to use the Product, immediately shall terminate. Upon such termination, You must destroy all copies of the Product and all of its component parts. This refund provision represents your sole and exclusive remedy for any breach of this limited warranty.
10. Disclaimer of Warranties. The limited warranty that appears in Section 9 above is the only express warranty made to You with regard to the Product, and is provided in lieu of any other warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence. Avontus further disclaims any warranty that any data THAT MAY BE UPLOADED to our servers or any third party servers through use of the product will be preserved or maintained without any loss. Also, there is no warranty or condition of title, quiet enjoyment, quiet possession, correspondence to description or non- infringement with regard to the Product.
11. Exclusion Of Incidental, Consequential And Certain Other Damages. To the maximum extent permitted by applicable law, in no event shall Avontus or its suppliers or You be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the Product, the provision of or failure to provide Support Services, or otherwise under or in connection with any provision of this License Agreement, even in the event of the fault, tort (including negligence), strict liability, breach of contract or breach of warranty of Avontus or any supplier, and even if any party has been advised of the possibility of such damages.
12. Limitation Of Liability And Remedies. YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS SECTION, WHICH YOU SHOULD READ CAREFULLY.
(a) Alternative 1 – If Section 8(a) applies, then this Section 12(a) shall also apply. Except with respect to indemnification obligations set forth in Sections 7 and 14 and breaches of Section 2.1 and 2.5, notwithstanding any damages that You or Avontus might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Avontus and any of its suppliers or You for any claims arising from or related to your use of, or inability to use, the Product, or the provision of, or failure to provide any services, and your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by You for the Product. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
(b) Alternative 2 – If Section 8(b) applies, then this Section 12(b) shall also apply. Except with respect to indemnification obligations set forth in Sections 7 and 14 and breaches of Section 2.1 and 2.5, nothing in this License Agreement shall limit or exclude Avontus’s liability for: (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; (ii) fraud or fraudulent misrepresentation; (iii) breach of the terms implied by section 2 of the Supply of Products and Services Act 1982 (title and quiet possession); (iv) breach of the terms implied by section 12 of the Sale of Products Act 1979 (title and quiet possession); or (v) defective products under the Consumer Protection Act 1987. Subject to the foregoing terms set out in this Section 12, Avontus shall under no circumstances whatever be liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this License Agreement; and Avontus’s total liability to You in respect of all other losses arising under or in connection with this License Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount actually paid by You for the Product. The terms implied by sections 13 to 15 of the Sale of Products Act 1979 and the terms implied by sections 3 to 5 of the Supply of Products and Services Act 1982 are, to the fullest extent permitted by law, excluded from this License Agreement.
13. Data Protection. If You are located in the United Kingdom or the European Union, then this Section 13 shall also apply. The following definitions apply: (i) the terms “data controller”, “data processor”, “data subject” and “processing” bear the respective meanings given them in the Data Protection Act 1998 (the “Act”), and “data protection principles” means the eight data protection principles set out in Schedule 1 to that Act; (ii) data includes Personal Data; (iii) “Licensee Personal Data” and “Supplier Personal Data” mean any Personal Data provided by or on behalf of You or Avontus, respectively. Avontus shall: (a) only carry out processing of any Licensee Personal Data on Your instructions; (b) implement appropriate technical and organizational measures to protect any Licensee Personal Data against unauthorized or unlawful processing and accidental loss or damage; and (c) only transfer Licensee Personal Data to countries outside the European Economic Area that ensure an adequate level of protection for the rights of the data subject. Avontus shall promptly and fully notify You in writing of any notices in connection with the processing of any Licensee Personal Data, including subject access requests, and provide such information and assistance as You may reasonably require. You acknowledge that Avontus will be acting as a data processor, rather than as a data controller, in respect of all such data processing activities which Avontus carries out under this License Agreement. Except as expressly provided otherwise, this License Agreement does not transfer ownership of, or create any licenses (implied or otherwise), in any intellectual property rights in any (non-personal) data.
14. Indemnity; Waiver of Subrogation. The Product is provided to assist users in the management of inventory and equipment. However, neither Avontus nor its suppliers guarantees the accuracy or adequacy of any OUTPUTS produced by or through the Product, EITHER DIRECTLY OR INDIRECTLY THROUGH OTHER AVONTUS PRODUCTS. Subject to the indemnification obligations of Avontus described below and compliance by Avontus of the terms of this License Agreement, You agree to defend, indemnify and hold Avontus and its officers, employees and affiliates harmless from and against any claims or losses (including, without limitation, for attorney’s fees) arising from or related to any third party claims related to your use of the Product. Avontus agrees to indemnify, defend and hold harmless You from any suits, claims legal expenses, and the settlement amounts resulting from any third party claim asserting patent infringement arising from your purchase or use of the Product. You and Avontus each waive all rights against each other and any of their subcontractors, sub-subcontractors, agents and employees for damages or other causes of loss, whether or not such damages or other causes of loss are covered by insurance. A waiver of subrogation shall be effective as to a person or entity even though that person or entity that would otherwise have a duty of indemnification, contractual or otherwise, did not pay an insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged.
15. General. Avontus may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under this License Agreement and may subcontract or delegate in any manner any or all of its obligations under this License Agreement to any third party. You shall not, without the prior written consent of Avontus or otherwise specifically permitted by this License Agreement, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under this License Agreement. If any provision or part-provision of this License Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this section shall not affect the validity and enforceability of the rest of this License Agreement. If any provision or part-provision of this License Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision. A waiver of any right under this License Agreement or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under this License Agreement or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. Nothing in this License Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, You or Avontus in any way. A person who is not a party to this License Agreement shall not have any rights to enforce its terms. Except as set out in this License Agreement, no variation of this License Agreement, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by Avontus. This License Agreement is the entire agreement between You and Avontus relating to the Product and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Product or any other subject matter covered by this License Agreement. To the extent the terms of any Avontus policies or programs for support services conflict with the terms of this License Agreement, the terms of this License Agreement shall control.