STREAM, LLC END USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT (THE “EULA”) CAREFULLY, AS IT SETS OUT THE BASIS UPON WHICH WE LICENSE OUR SOFTWARE FOR USE.
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING THE SOFTWARE OR THE DIGITAL PLATFORM, YOU AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY ACCESS OR USE THIS SOFTWARE OR DIGITAL PLATFORM, AND PROMPTLY RETURN THIS SOFTWARE AND PROOF OF ENTITLEMENT TO STREAM LLC.
- “Charges” means those amounts that the parties have agreed in writing shall be payable by the User to the Licensor with respect to this EULA and that certain Purchase and Sales Agreement;
- “Digital Platform” means the web-based digital signage customer management system upon which the Membership Account is based and through which a majority of the User’s Services are accessed. Licensor provides various set-ups, capabilities, and configurations through the Digital Platform depending on the User’s needs;
- “Effective Date” means the date upon which the User gives the User’s express consent to this EULA and the execution of the Purchase and Sales Agreement by both parties;
- “EULA” means this end user license agreement, including any amendments to this end user license agreement from time to time;
- “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected, including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars;
- “Hardware” means the physical device User purchases from Licensor, which unless otherwise agreed or specified, shall come pre-installed with Licensor’s Software. Parties may also refer to Hardware in the Purchase and Sales Agreement as the Product or Products;
- “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs;
- “Licensor” means Stream, LLC, a Utah limited liability company, having its principal office at 6995 S. Union Park Center, Unit 390, Midvale, Utah 84047;
- “Licensor Indemnity Event” has the meaning given to it in Section 17(A);
- “Maintenance Services” means the application to the Software, or supply to the User and application to the Software, of Updates and Upgrades;
- “Membership Account” means the member’s private account on Licensor’s Digital Platform that User may access to manage content displayed on the Hardware;
- “Minimum Term” means, with respect to this EULA, the period of twelve (12) months beginning on the Effective Date;
- “Presentation” means information and material that User develops and/or imports, creates, stores, and accesses on this Service and/or using the Software and Membership Account;
- “Purchase and Sales Agreement” or “PSA” means the agreement between Licensor and User executed of even date herewith, governing those certain terms of the purchase and sale of the Licensor’s Hardware and Software referenced in this EULA, and incorporated in to the terms of the PSA;
- “Services” include, but are not limited to training videos, tutorials, monthly live trainings, and marketing services that Licensor provides to the User in connection to marketing services provided on Licensor’s hardware through the Digital Platform, under this EULA and the PSA;
- “Software” means Stream’s content management system, which is a software program in object code format (i) licensed from Stream, and (ii) embedded in or pre-loaded on Stream Hardware purchased from Stream, providing User the ability to manage their content displayed on the Hardware;
- “Software Defect” means a defect, error or bug in the Software having a material adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising from: (i) any act or omission of the User or any person authorized by the User to use the Software; (ii) any use of the Software contrary to the Licensor’s instructions by the User or any person authorized by the User to use the Software; (iii) a failure of the User to perform or observe any of its obligations in this EULA; or (iv) an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification;
- “Software Specification” means the specification for the Software provided by Licensor’s technical support representatives;
- “Source Code” means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software;
- “Support Services” means technical support in relation to the use of the Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise;
- “Term” means the term of this EULA, in accordance with Section 7;
- “Update” means a minor version update to the Software;
- “Upgrade” means a major version upgrade of the Software;
- “User” means the person to whom the Licensor grants a right to use the Software under this EULA; and
- “User Indemnity Event” has the meaning given to it in Section 17(C).
- GENERAL USE
- Licensor provides content Services through the Software and Digital Platform. Certain information, documents, products and services provided on and through the Service, including content, trademarks, logos, graphics and images that are not Presentations (together, the “Materials”) are provided to User by Licensor. In addition, Licensor may make certain applications available to User on the Service for use to assist User in developing or managing Presentations. Any such Software is only made available for use under the terms of a limited, non-exclusive license to use the Software for User’s business use if User is an organization or agent of an organization, for the sole purpose of developing or managing Presentations.
- User agrees to:
- provide true, accurate, current and complete information about User as prompted by the Licensor, and
- maintain and promptly update the Licensor to keep information true, accurate, current and complete. If User provides any information that is untrue, inaccurate, not current or incomplete, or Licensor has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Licensor has the right to suspend or terminate User’s account and refuse any and all current or future use of the Service (or any portion thereof).
- Electronic Communications. By using all or part of this Service, User consents to receiving electronic communications from Licensor and its partners and affiliates. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to Licensor’s Service. These electronic communications are part of User’s relationship with Licensor and User receives them as part of use of the Service. User agrees that any notices, agreements, disclosures or other communications that Licensor sends electronically will satisfy any legal communication requirements, including that such communications be in writing.
- Proprietary Information. User agrees that all drawings, sketches, specifications, operation and maintenance manuals and other technical documents, as well as samples, illustrations and related documents provided by Licensor (the “Proprietary Information”):
- constitutes proprietary information of Licensor;
- may be used by User and its agents or representatives solely in connection with operation of the Hardware; and
- shall only be disclosed to applicable governmental authorities to the extent required for certification or licensure of the Hardware contemplated under this Contract.
- PASSWORD RESTRICTED AREAS OF THE SERVICE
User will need a password to login to the Membership Account and use certain functions and areas within the Service (“Restricted Areas”). As part of registering their Membership Account, User will identify an administrative user name and password. If User is an authorized member of the Restricted Areas, User is responsible for maintaining the confidentiality of User’s password and account, and agrees to notify Licensor if User’s password is lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. User is responsible for activities that occur under User’s account. User agrees to immediately notify Licensor of any unauthorized use of User’s account or any other breach of security in relation to the Membership Account known to User.
- STORAGE LIMIT
User acknowledges that Licensor reserves the right to limit the maximum storage capacity for each User account. Furthermore, Licensor, in its sole discretion, reserves the right to adjust the maximum storage limit of any user account, at any time without prior notice.
- CONTENT MANAGEMENT
- User acknowledges that it is responsible for its own Presentations, and that User has full responsibility for each such Presentation, including its legality, reliability, appropriateness, originality and copyright. If User submits Presentations to Licensor, User grants Licensor a non-exclusive, worldwide, royalty-free license to (in any media now known or not currently known or invented) to use, copy, modify, distribute, display the Presentation and provide access to the Presentation to users that User designates in connection with providing services related to this Service to User. Licensor will not make User’s Presentations available to any third parties, and Licensor agrees to provide access to User’s Presentations only to User and to those certain e-mail addresses User designates as part of the shared distribution list in User’s Membership Account.
- USER RETAINS OWNERSHIP OF ANY COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS APPLICABLE TO ANY PRESENTATIONS USER SUBMITS ON USER’S MEMBERSHIP ACCOUNT. User further agrees to not upload, post or otherwise make available on the Membership Account any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right, and the burden of determining that any material is not protected by any such right is on User. User shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, or any other harm resulting from any Presentation.
- User agrees that in certain Digital Platform set-ups, Licensor may use up to two (2) advertisement spaces on User’s Hardware screen, by providing User with advanced written notice. Advertisements shall display relevant, appropriate, and non-competitive content, and will last for a period of thirty (30) calendar days from the date the Licensor uploads the content to User’s Hardware. Licensor will compensate User for use of the advertisement space thirty (30) calendar days from the date that use of User’s screens ended. Licensor will compensate User monthly, based on the number of impressions, and may either credit User’s monthly statement, or pay out to User’s billing record on file.
This EULA shall become effective upon the Effective Date and shall continue in force for twelve (12) months from the Effective Date, at the end of which this EULA shall renew automatically for an additional twelve (12) month period, unless User gives Licensor thirty (30) days prior written notice of cancellation, and subject to any applicable terms in Section 19 of this EULA.
- Licensor hereby grants to the User from the date of supply of the Software to the User until the end of the Term, a worldwide, limited, non-transferable, non-exclusive license to:
- install and use a single instance of the Software;
- use single instance of the Software in accordance with the specifications provided by the Licensor; and
- create, store and maintain certain content, subject to the limitations and prohibitions set out and referred to in this Section 8.
- User may not sub-license and must not purport to sub-license any rights granted under Section 8(a) without the prior written consent of the Licensor.
- Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any license granted under this Section 8 shall be subject to the following prohibitions:
- User must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software;
- User must not alter, edit or adapt the Software; and
- User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software.
- User shall be responsible for the security of copies of the Software supplied to the User under this EULA or created from such copies and shall use all reasonable endeavors including all reasonable security measures to ensure that access to such copies is restricted to persons authorized to use them under this EULA.
- SOURCE CODE
Nothing in this EULA shall give to the User or any other person any right to access or use the Source Code or constitute any license of the Source Code.
- Licensor shall provide Maintenance Services to User’s Software during the Term, with reasonable skill and care.
- Licensor shall provide Updates and Upgrades to the Software on a quarterly basis, and shall take all steps necessary to prevent introduction of any Software Defects into the Software.
- Licensor may suspend the provision of the Maintenance Services if any amount due to be paid by User to Licensor under this EULA is overdue, and Licensor has given to User at least fourteen (14) calendar days’ written notice, following the amount becoming overdue, of its intent to suspend the Maintenance Services on this basis.
- TECHNICAL SUPPORT SERVICES
- During the Term of this EULA, Licensor shall provide Support Services to User with reasonable skill and care.
- For technical issues regarding User’s use of Software or Hardware, User can reach the Stream Technical Support Team at email@example.com for any maintenance, use, and support questions.
- The Licensor may suspend the provision of the Support Services if any amount due to be paid by the User to the Licensor under this EULA is overdue, and the Licensor has given to the User at least fourteen (14) calendar days’ written notice, following the amount becoming overdue, of its intent to suspend the Support Services on this basis.
- NO ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the User, or from the User to the Licensor.
- PAYMENT OF CHARGES
All terms for Charges of any Hardware, Software, Services, and any related fees, taxes, and methods of invoicing are referenced in the Purchase and Sales Agreement, and have been incorporated in to this EULA by reference. Please refer to the Purchase and Sales Agreement for details on payment terms and applicable charges.
- PARTY REPRESENTATIONS
- Licensor represents to the User that:
- it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA;
- the Software as provided will conform in all material respects with the Software Specification;
- the Software will be supplied free from Software Defects and will remain free from Software Defects for the term of the EULA and the PSA;
- the Software will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs;
- the Software shall incorporate security features reflecting the requirements of good industry practice;
- the Software, when used by the User in accordance with this EULA, will not breach any laws, statutes or regulations applicable under state or federal law; and
- (vii)the Licensor represents to the User that the Software, when used by the User in accordance with this EULA, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
- User represents to the Licensor that:
- it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA;
- User owns the Presentations posted by User on or through the Service or otherwise has the right to grant the license set forth in this section; and
- the posting of User’s Presentations on or through the Service and any other use of User’s Presentations does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person. User agrees to pay for all royalties, fees, and any other monies owing any person by reason of any Presentations posted by User to or through the Service or created with the use of the Software.
- All of the parties’ representations with respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract.
- LIMITED WARRANTY AND DISCLAIMER
- Limited Warranty. Licensor warrants that for the Term of this Agreement, starting on the date of delivery or installation, whichever is earlier, that when operated in accordance with instructions provided by Licensor, the Software will perform substantially in accordance with Licensor’s specifications (“Limited Warranty”).
- Exclusive Remedy. In case of any breach of the above Limited Warranty, as User’s exclusive remedy and Licensor’s entire obligation and liability Licensor will:
- repair or replace the Software, or
- if such repair or replacement would in Licensor’s opinion be commercially unreasonable, upon Licensor’s receipt of User’s written representation and promise that User has removed all instances of the Software and will not use the Software, refund the price paid by User for the applicable Software.
- Exclusion of Warranty. THE ABOVE LIMITED WARRANTY WILL NOT APPLY IF:
- THE SOFTWARE IS NOT USED IN ACCORDANCE WITH THIS AGREEMENT OR THE SPECIFICATIONS PROVIDED BY THE LICENSOR,
- THE SOFTWARE OR ANY PART THEREOF HAS BEEN MODIFIED BY ANY ENTITY OTHER THAN LICENSOR, OR
- A MALFUNCTION IN THE SOFTWARE HAS BEEN CAUSED BY ANY EQUIPMENT OR SOFTWARE NOT SUPPLIED BY LICENSOR.
- Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS” AND LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES, AND LICENSOR DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SYSTEMS INTEGRATION. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE AS TO THE SOFTWARE’S USE OR PERFORMANCE AND DOES NOT WARRANT, REPRESENT, OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE FAIL-SAFE, UNINTERRUPTED, OR FREE FROM ERRORS OR DEFECTS.
- User acknowledges that:
- complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.
- complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be entirely secure.
- the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software.
- User acknowledges that:
- Indemnity. Licensor will indemnify, and, at its election, defend User against claims asserted against User in a suit or action if:
- the claim is for direct patent infringement or direct copyright infringement, or for Licensor’s trade secret misappropriation, and
- the claim is asserted against the Software, alone and not in combination with any other matter (a “Licensor Indemnity Event”).
- Conditions. User must:
- upon becoming aware of an actual or potential Licensor Indemnity Event, notify the Licensor;
- provide to the Licensor all such assistance as may be reasonably requested by the Licensor in relation to the Licensor Indemnity Event;
- allow the Licensor the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Licensor Indemnity Event; and
- not admit liability to any third party in connection with the Licensor Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Licensor Indemnity Event without the prior written consent of the Licensor, and the Licensor’s obligation to indemnify the User under Section 17(A) shall not apply unless the User complies with the requirements of this Section 17(B).
- User shall indemnify and shall keep indemnified the Licensor against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Licensor and arising directly or indirectly as a result of any breach by the User of this EULA (a “User Indemnity Event”).
- Exclusions. Notwithstanding anything else in this Agreement, Licensor has no obligation to indemnify or defend User for claims asserted, in whole or in part, against:
- technology or designs that User gave to Licensor, or
- modifications or programming to Software that were made by anyone other than Licensor.
- Remedies. Licensor may, at its sole discretion and at is expense:
- procure for User the right to continue using the Software;
- replace the Software with a non-infringing Software;
- modify the Software so that it becomes non-infringing; or
- upon your return of the Software to Licensor, and/or removal of the Software from User’s systems, refund the residual value of the purchase price paid by User for the infringing Software.
- Personal Indemnity. The foregoing indemnity is personal to User. User may not transfer or assign to anyone.
- Exclusive Remedy. The indemnity section states Licensor’s entire obligation and User’s exclusive remedy for claims of patent or copyright infringement, or trade secret misappropriation, made in whole or part against the Software.
- Licensor’s Consent. Licensor will not be responsible for any cost, expense, or compromise that User makes or incurs without Licensor’s prior written consent regarding this Section.
- Indemnity. Licensor will indemnify, and, at its election, defend User against claims asserted against User in a suit or action if:
- LIMITATIONS OF REMEDIES AND DAMAGES
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERTO UNDER ANY TORT, NEGLIGENCE, CONTRACT, STRICT LIABILITY OR OTHER THEORY, TO USER OR ANY THIRD PARTY FOR ANY DAMAGES RESULTING FROM USER’S DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIAL ON THE SERVICE OR RELATING TO USER’S PRESENTATIONS ON THE SOFTWARE. IN NO EVENT SHALL LICENSOR BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING.
REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT AND/OR ANY OTHER LEGAL THEORY, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR DIRECT DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS SUBJECT MATTER EXCEED THE AMOUNT OF TOTAL FEES PAID OR PAYABLE BY USER FOR THE SOFTWARE GIVING RISE TO SUCH CLAIM DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
THE LIMITATION OF LIABILITY IN THIS SECTION IS BASED ON THE FACT THAT END USERS USE THEIR COMPUTERS FOR DIFFERENT PURPOSES. THEREFORE, ONLY USER CAN IMPLEMENT BACK-UP PLANS AND SAFEGUARDS APPROPRIATE TO USER’S NEEDS IF AN ERROR IN THE SOFTWARE CAUSES COMPUTER PROBLEMS AND RELATED DATA LOSSES. FOR THESE BUSINESS REASONS, USER AGREES TO THE LIMITATIONS OF LIABILITY IN THIS SECTION.
NOTHING IN THIS EULA WILL: (I) LIMIT OR EXCLUDE ANY LIABILITY FOR FRAUD OR FRAUDULENT MISREPRESENTATION; (II) LIMIT ANY LIABILITIES IN ANY WAY THAT IS NOT PERMITTED UNDER APPLICABLE LAW; OR (III) EXCLUDE ANY LIABILITIES THAT MAY NOT BE EXCLUDED UNDER APPLICABLE LAW, AND, IF A PARTY IS A CONSUMER, THAT PARTY’S STATUTORY RIGHTS WILL NOT BE EXCLUDED OR LIMITED BY THIS EULA, EXCEPT TO THE EXTENT PERMITTED BY LAW.
- SUSPENSION AND TERMINATION
- Licensor may suspend User’s Membership Account at any time and for any length of time for violation of any terms contained in this EULA or the PSA, by providing User no more than five (5) business days written notice.
- Licensor may terminate this EULA immediately by giving written notice to the User if:
- User has breached any warranties, representations, or material terms of the EULA, or the PSA;
- User infringes the intellectual property rights of others;
- breach of any Terms and Conditions contained on the Licensor’s site; or
- any amount due to be paid by the User to the Licensor under this EULA is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and the Licensor has given the User at least thirty (30) days’ written notice, following the failure to pay, of its intention to terminate this EULA in accordance with this Section 19(B).
- User may terminate this EULA at any time by giving Licensor no less than thirty (30) days’ written notice of termination, however, User shall be responsible for payment of any outstanding Charges for the remainder of the Term, as agreed to in the PSA.
- Either party may terminate this EULA immediately by giving written notice of termination to the other party if:
- the other party commits any breach of this EULA, and the breach is not remediable;
- the other party commits a breach of this EULA, and the breach is remediable but the other party fails to remedy the breach within the period of thirty (30) days following the giving of a written notice to the other party requiring the breach to be remedied.
- the other party: (1) is dissolved; (2) ceases to conduct all (or substantially all) of its business; (3) is or becomes unable to pay its debts as they fall due; (4) is or becomes insolvent or is declared insolvent; or (5) convenes a meeting, makes, or proposes to make any arrangement or composition with its creditors;
- an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
- an order is made for the winding up of the other party, or the other party passes a resolution for its winding up, other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under this EULA; or
- if that other party is an individual: (1) that other party dies; (2) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or (3) that other party is the subject of a bankruptcy petition or order.
- EFFECTS OF TERMINATION
A. Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect in accordance with their express terms or otherwise indefinitely: Sections 1, 8(A), 13, 17, 18, 20, and 21.
B. Termination of Licensor’s obligations and duties under this EULA, for any reason specified under Section 19 of this EULA, shall also terminate Licensor’s obligations and duties under the EULA and PSA, as of the date of such termination.
C. Upon termination of this EULA, Licensor will revoke any Software licenses, as well as User’s access privileges to the Membership Account.
D. Except to the extent that this EULA expressly provides otherwise, the termination of this EULA shall not affect the accrued rights of either party.
E. Within thirty (30) days following the termination of this EULA for any reason:
(i) User must pay to the Licensor any Charges with respect to Services provided to the User before the termination of this EULA, and with respect to licenses in effect before the termination of this EULA; and
(ii) Licensor must refund to the User any Charges paid by the User to the Licensor with respect to Services that were to be provided to the User after the termination of this EULA and with respect to licenses that were to be in effect after the termination of this EULA, without prejudice to the parties’ other legal rights.
- Within ten (10) Business Days following the termination of this EULA, the User must:
- return to the Licensor or dispose of as the Licensor may instruct all media in its possession or control containing the Software; and
- irrevocably delete from all computer systems in its possession or control all copies of the Software.
- GENERAL PROVISIONS
A. Waiver. Any waiver by either party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions shall neither be considered a waiver nor deprive that party of any right thereafter to insist upon strict adherence to that term or any other term of this Agreement. Any waiver must be in writing and signed by the party to be charged therewith.
B. Severability. If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted.
C. Modification. No revision or modification of this Agreement shall be effective unless in writing and executed by authorized representatives of both parties.
D. Assignment or Transfer. Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this EULA.
E. No Third-Party Rights. This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.
F. Governing Law. This EULA shall be governed, construed, and enforced in accordance with the laws of the State of Utah, without regard to its conflict of laws rules.
G Compliance with Laws. The parties shall comply with any and all applicable laws, rules and regulations of the governmental authorities concerned.
H. Dispute Resolution. Any claim arising out of or relating to this Agreement or its subject matter or any right or obligation created by this EULA, irrespective of the legal theory or claims underlying such dispute (including tort or statutory claims) (the “Dispute”) shall be resolved in accordance with this Sub-Section 21(H) in the County of Salt Lake, State of Utah. The party asserting the Dispute will give prompt notice to the other party describing the Dispute in reasonable detail (“Dispute Notice”). Each party agrees not to commence court proceedings against the other party relating to a Dispute, except that the provisions of this Section will not prevent a party from commencing court proceedings seeking injunctive relief for Disputes related to the infringement of intellectual property rights in the State of Utah, County Salt Lake. Promptly after receipt of the Dispute Notice, the parties will negotiate in good faith to resolve the Dispute. If the Dispute has not been resolved within forty (40) calendar days after receipt of the Dispute Notice, then either party, by notice to the other party, may refer the Dispute for exclusive, binding and final resolution by arbitration conducted by the American Arbitration Association in accordance with its Commercial Arbitration Rules and the Utah Uniform Arbitration Act, and any applicable laws of the State of Utah. The arbitration will be conducted by a single arbitrator, with at least five (5) years’ experience in arbitrating commercial and technology-related legal disputes, selected jointly by the parties, or selected by the American Arbitration Association if the parties fail to agree on an arbitrator within a reasonable period. There will be no discovery of documents under the arbitration procedure. A party may enter judgment on the award rendered by the arbitrators in any court having jurisdiction.
I. Attorney’s Fees. In any suit or proceeding relating to this Agreement, the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and shall survive expiration or termination and shall not be merged into any such judgment.
J. Statutory Interpretation. In this EULA, a reference to a statute or statutory provision includes a reference to: (i) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and (ii) any subordinate legislation made under that statute or statutory provision.
K. Headings. The Section headings do not affect the interpretation of this EULA.
L. Interpretation. In this EULA, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
M. Counterparts. Provided that all parties hereto execute a copy of this Agreement, this Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Executed copies of this Agreement may be delivered by facsimile transmission or other comparable means. This Agreement shall be deemed fully executed and entered into on the date of execution by the last signatory required hereby.
N. Notice. Any notices required or permitted shall be given to the appropriate party at the address specified above, or at such other address as the party shall specify in writing, and shall be effective upon actual receipt by either party.
O. Failure to Exercise Right. A party’s failure to exercise or delay in exercising any right, power or privilege under this Agreement shall not operate as a waiver; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.
P. Interchangeable Use of Terms. As used in the Purchase and Sales Agreement, and as it relates to this EULA, the term Licensor shall mean Seller, and the term User shall mean Buyer.
Q. Entire Agreement. This EULA, together with the PSA and all exhibits, shall constitute the entire agreement between the parties in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the parties with respect to that subject matter.BACK