IMPORTANT! READ CAREFULLY! This EULA is a legal agreement between you ("Licensee" or “you”) and CloverDX (formerly known as Javlin) under which CloverDX grants licenses regarding computer software, associated media, printed materials, and online or electronic documentation. We license use of the Software and Documentation to you based on this EULA. We do not sell the Software or Documentation to you. We remain the owners of the Software and Documentation at all times.
PLEASE READ THIS EULA CAREFULLY BEFORE YOU INSTALL, COPY, DOWNLOAD OR USE THE SOFTWARE. BY INSTALLING, COPYING, DOWNLOADING OR USING THE SOFTWARE, YOU, ON BEHALF OF YOURSELF AND/OR THE ORGANIZATION YOU REPRESENT, AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS EULA INCLUDING ALL TERMS AND CONDITIONS INCORPORATED HEREIN BY REFERENCE.
IF YOU DO NOT AGREE WITH THE FOLLOWING TERMS, THEN YOU MUST IMMEDIATELY STOP USING THE SOFTWARE.
1. Definitions and Interpretation
1.1 The definitions set forth above and below, and rules of interpretation in this Section 1 apply in this EULA.
- “Affiliate” means any corporation, firm, partnership or other entity that directly or indirectly controls, or is controlled by, or is under common control with CloverDX or Licensee, as applicable.
- “Authorised Users” means those employees, agents and independent contractors of the Licensee authorised by the Licensee to use the Software and the Documentation, as further described in Schedule 1.
- “CloverDX” means either: (i) for Licensees located in the United Kingdom or in the European Union, or any other jurisdiction other than the United States and its territories and possessions, Javlin Ltd. (Co. reg. no. 08213115) whose registered office is at 10 Lonsdale Gardens, Tunbridge Wells, Kent, England, TN1 1NU; or (ii) for Licensees located in the United States and its territories and possessions, CloverDX Inc., a Virginia corporation having its principal place of business at 1101 Wilson Blvd, 6th Floor, Arlington, VA 22209, United States.
- "Computer" means the Licensee’s computer, server, workstation, device, or virtual machine on which the Software is installed.
- “Confidential Information” has the meaning in Section 8.1.
- “Control” means the ability to direct the affairs of another person, whether by the ownership of shares, contract or otherwise.
- “Disclosing Party” has the meaning in Section 9.2.
- "Documentation" means user manuals, training materials, software descriptions and specifications, technical manuals, supporting materials and other information provided by CloverDX and accompanying the Software, whether distributed in print, electronic, optical disc, or video format.
- “Effective Date” means the date this EULA is electronically accepted, or the date of last signature of the parties if signed in hard copy.
- “Evaluation Output” has the meaning in Section 3.3.
- “Evaluation Period” has the meaning in Section 3.1.
- “Firm Size” means the metric, if any, that may be set forth on the Purchase Order or Quotation to determine the aggregate size of Licensee and the corresponding pricing band of the Software.
- “Support Policy” means CloverDX’s support policy as updated from time-to-time and provided at www.cloverdx.com/legal/support-policy or such other website address as CloverDX may notify Licensee from time-to-time.
- “License Fees” has the meaning in Section 5.1.
- "License Key" means the license file provided by CloverDX to the Licensee containing information associating the Software with the named individual or company registrant, and a set of software keys used to activate the Software.
- “Open-Source Components" means any software component that is subject to any open-source copyright license agreement, obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative (https://opensource.org/osd) or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
- “Purchase Order” means the purchase order, signed by Licensee or, in the case of electronic transmission, sent to CloverDX by Licensee’s authorized representative, indicating the Software to be licensed under this EULA, and including CloverDX product numbers, quantity, unit price, total purchase price, bill-to and administrative addresses, and tax-exempt certifications, if applicable, among other terms. Purchase Orders are not binding unless agreed to in writing by CloverDX.
- “Quotation” means the written price quotation, if any, submitted by CloverDX to Licensee for the Software or Support.
- “Receiving Party” has the meaning in Section 9.2.
- "Software" means the machine readable (object code) version of the CloverDX Designer, CloverDX Server, and/or CloverDX Cluster computer programs ordered under the Purchase Order or Quotation and licensed by CloverDX to Licensee under this EULA, including all Updates.
- “Support” means CloverCARE the basic software maintenance and support services described at https://www.cloverdx.com/data-experience/clovercare-support. Support does not include any professional or technical services that may be provided by CloverDX under separate agreement.
- “Term” means the Software license term in the Purchase Order or Quotation, which shall be a paid-up fixed term license or a subscription-based license.
- "Updates" means the new releases, corrections (e.g. bug fixes), enhancements, updates to and upgrades of the Software provided by CloverDX to Licensee under the terms of the CloverDX Support Policy to improve the workings of the software, remove bugs or maintain current software interfaces. CloverDX publishes information about these Updates under terms of the Support Policy.
1.2 Section, schedule and paragraph headings shall not affect the interpretation of this EULA. Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time-to-time, whether before or after the date of this EULA. References to sections and schedules are to the sections and schedules of this EULA.
2. Grant of License
2.1 Certain terms of this EULA depend on the jurisdiction of the Licensee. Licensee understands and agrees that, in addition to the terms and conditions set out in the main body of this EULA, (i) if Licensee is located in the United Kingdom or in the European Union, then the terms and conditions of Schedule 2 shall apply, and (ii) if Licensee is based in any other jurisdiction, including North America, then the terms and conditions of Schedule 3 shall apply.
2.2 Subject to your timely payment of the License Fees and to the terms of this EULA, including the restrictions set forth in Section 4 (Restrictions and Undertakings), CloverDX grants the Licensee a limited, non-exclusive, non-transferable (except in accordance with Section 17.7), non-sub-licensable license during the Term to install and use the Software, in executable code form only, solely for Licensee’s internal business purposes, only on as many Computers, devices or in such configurations and for the number of Authorized Users or Firm Size specified in the Purchase Order or Quotation.
2.3 CloverDX reserves all rights that are not expressly granted to the Licensee under this Section 2 and Section 3.
2.4 Licensee understands and agrees that some features of the Software may not be enabled if they do not fall under the feature set(s) set forth under the Purchase Order or Quotation.
3. Grant of Evaluation License
3.1 CloverDX may allow Licensee to use the Software on a temporary basis for evaluation. If such evaluation is permitted, then subject to the terms of this EULA, including the restrictions set forth in Section 4 (Restrictions and Undertakings), CloverDX grants the Licensee the right to use Software for evaluation purposes without charge for a period of forty-five (45) days from activation or such other period agreed by CloverDX in writing (Evaluation Period).
3.2 Upon expiration of the Evaluation Period, the Software must be removed from the Computer. CloverDX may extend the evaluation period on request and at its discretion.
3.3 Evaluation versions of the Software are not free software. Unless the evaluation version is converted to full commercial license, transformation graphs and descriptions and other output generated by the Software during the Evaluation Period (Evaluation Output) are explicitly not to be used for Licensee’s internal or commercial purposes, and must be destroyed.
3.4 The evaluation license can be converted to a commercial license on the terms set out in this EULA upon payment of the License Fees.
4. Restrictions and Undertakings
4.1 The Software is licensed to Licensee solely in accordance with this EULA. Without limiting the foregoing, any copying or redistribution of the Software is prohibited, including any copying or reproduction of the Software to any other computer or location for further reproduction, or redistribution. Any unauthorized use, copying or distribution of the Software is prohibited by law, and may result in civil and criminal penalties.
4.2 Licensee shall not, directly or indirectly:
4.2.1 reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Software (except as permitted by law);
4.2.2 sublicense, resell, rent, lease, loan, distribute, market, commercialize or otherwise transfer rights or usage to the Software or any modified version or derivative work of the Software;
4.2.3 copy the Software except for a single copy for backup or archival purposes that you may install and use for disaster-recovery purposes but for no other purpose;
4.2.4 remove or alter any copyright, trademark or proprietary notice in the Software;
4.2.5 use the Software for third-party training, commercial time-sharing, service bureau or application services;
4.2.6 publish or make available to any third party any analysis of the results of the operation of the Software, including performance benchmarking results; or
4.2.7 permit the Software or any part of it to be combined with, or become incorporated in, any other software programs.
4.3 Scope of Use
4.3.1 The Software may only be installed and used subject to the following conditions:
(a) The CloverDX Designer Software shall only be licensed to the named individual stated on the Purchase Order or Quotation. Licensee may install and use one copy of the Software on no more than two Computers;
(b) The CloverDX Server Software shall only be installed on one Computer; and
(c) The CloverDX Cluster Software shall only be licensed for installation on a specific number of Computers as defined by the Purchase Order or Quotation.
4.4 Licensee shall:
4.4.1 keep all copies of Software secure and maintain accurate and up-to-date records of the number and locations of all copies of the Software; and
4.4.2 include CloverDX’s copyright notice on all entire and partial copies it makes of the Software on any medium.
5.1 The fees for the license of the Software (License Fees), and provision of Support, if applicable, shall be those specified either (i) in the Purchase Order, or (ii) in the Quotation.
5.2 The Purchase Order or Quotation shall designate whether the Software will be licensed on a subscription basis or as a paid-up fixed term license. If the Software is licensed on a subscription basis, then the additional payment terms in Schedule 1 shall apply.
5.3 Subject to the payment terms in Schedule 1, the License Fees shall be due by Licensee within thirty (30) days following the date of CloverDX’s invoice, unless the terms of the Purchase Order or Quotation require advanced payment of all or part of the License Fees. Payments shall be made in the currency on the Quotation or Purchase Order.
5.4 If Licensee is delinquent in the payment of any invoice, or is otherwise in material breach of this EULA, CloverDX may, in its discretion, and without prejudice to its other rights, withhold delivery or access to the Software, render the Software unusable, require Licensee to prepay for further Software, and/or withhold the provision of Support, until complete payment has been received.
5.5 All prices are exclusive of any taxes, fees and duties or other similar amounts, however designated, including without limitation value added withholding and sales taxes that are levied or based upon the prices, charges or upon this EULA. Licensee shall pay, in addition to the License Fees, all taxes (excluding taxes based on CloverDX’s net income) however designated, levied or based on the prices, terms or performance of this EULA required to be paid by Licensee under applicable law, including, without limitation, state and local sales and use taxes, duties and privilege and excise taxes, unless Licensee furnishes appropriate evidence of exemption.
6. Delivery; Installation and Acceptance
6.1 The Software will be delivered to Licensee by electronic download (and may require issuance of a License Key), unless otherwise agreed by the parties. Unless otherwise agreed by the parties, Licensee shall be responsible for installation of the Software. The Software will be deemed accepted upon delivery.
6.2 Where Licensee places orders with an Affiliate of CloverDX, then Licensee shall pay invoices issued by such Affiliate directly to them, and the delivery terms agreed with such Affiliate shall apply.
7.1 CloverDX will provide Support for a period of one-year after delivery, unless otherwise specified in the Purchase Order.
7.2 After the expiration of the initial one-year period, Licensee may purchase additional Software support.
7.3 If a new version of the Software is provided as an Update:
7.3.1 Licensee shall not use the previous version of the Software concurrently with the new version, except that Licensee may use the previous version of the Software for transition between versions without charge for sixty (60) calendar days. Upon expiration of the sixty (60) days, the previous version of the Software must be removed.
7.3.2 CloverDX may extend the transition period referred to in clause 7.3.1 on request and at its discretion.
7.3.3 Under no circumstances shall Licensee transfer the previous version of the Software to any other person without also transferring the new version, and only to the extent such transfer is permitted under Section 17.7 (Assignment).
7.4 CloverDX may stop providing Support or Updates at any time upon reasonable notice. This will not affect Licensee’s rights to use the Software as granted under this EULA.
7.5 If Licensee has purchased a license to use the Software for a specified period, then CloverDX reserves the right to discontinue the provision of Support of the Software (or any version of it) at any time.
7.6 CloverDX maintains current versions of the Software and provides a schedule for end of life support for previous versions. Licensee should check the https://support.cloverdx.com/releases/ website or ask CloverDX directly about the status of supported versions.
7.7 CloverDX may subcontract to a third party its obligation to provide Support to Licensee.
8. Intellectual Property
8.1 The Software and the materials are licensed, not sold, to Licensee. CloverDX owns and retains title to the Software and Documentation, including all intellectual property rights on a worldwide basis. Licensee acknowledges that all intellectual property rights in the Software and the goodwill associated therewith are vested in and belong to CloverDX, and that Licensee has no rights in or to the Software or Documentation other than the right to use them under the terms of this EULA.
8.2 During any term of this EULA, Licensee grants to CloverDX a non-transferable, non-exclusive license to reproduce and display Licensee's logos, trademarks, trade names and similar identifying material so CloverDX may refer to Licensee as a user of the Software should CloverDX so desire, (e.g. website, press release, marketing materials).
8.3 As between CloverDX and Licensee, Licensee owns the output that Licensee creates using the Software, excluding any Evaluation Output. Evaluation Output is not to be used for Licensee’s internal or commercial purposes unless the Evaluation License is converted to full commercial license as described in Section 3.4.
9.1 “Confidential Information” means the Software (both object and source code), the accompanying Documentation and all related technical and financial information and any information, technical data or know-how, including, without limitation, that which relates to computer software programs or documentation, specifications, source code, object code, license keys, research, inventions, processes, designs, drawings, engineering, products, services, licensees, markets or finances of the Disclosing Party that (i) has been marked as confidential or proprietary; (ii) is identified as confidential at the time of disclosure either orally or in writing; or (iii) due to its character and nature, a reasonable person under like circumstances would understand to be confidential.
9.2 The receiving party (“Receiving Party”) may use the Confidential Information of the disclosing party (“Disclosing Party”) solely for the purpose of this EULA and shall not disclose the Confidential Information to any third party, other than to employees, contractors and advisors of the Receiving Party who need to have access to and knowledge of the Confidential Information solely for the purpose authorized above. The Receiving Party shall exercise the same care, but not less than reasonable care, it uses to safeguard its own Confidential Information. Confidential Information disclosed to the Receiving Party by any Affiliate or agent of the Disclosing Party is subject to this EULA.
9.3 The Receiving Party shall have no obligation with respect to information that (i) was rightfully in possession of the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party as established by documentary evidence; (ii) is, or subsequently becomes, legally and publicly available without breach of this EULA; (iii) is rightfully obtained by the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality, provided that such source is not and was not prohibited from disclosing such information to the Receiving Party by a legal, fiduciary or contractual obligation; (iv) is developed by or for the Receiving Party without use of the Confidential Information and such independent development can be shown by documentary evidence; or (v) is disclosed by the Receiving Party pursuant to and in accordance with a valid order issued by a court or government agency, provided that the Receiving Party provides (a) to the extent it may legally do so, prior written notice to the Disclosing Party of such order and (b) the Disclosing Party prior opportunity to oppose or restrict such disclosure.
10. Warranty and Limited Liability
10.1 CloverDX warrants that for a period of sixty (60) days from the initial delivery of the Software to Licensee, the Software, if used by Licensee in accordance with the Documentation, shall operate in material conformity with the Documentation for such Software.
10.2 CloverDX does not warrant that the Software will meet all of Licensee requirements or that the use of the Software will be uninterrupted or error free, or that the Documentation correctly describes the operation of the Software in all material respects.
10.3 If CloverDX is promptly notified in writing within the 60-day warranty period upon discovery of the nonconformity by Licensee and CloverDX's examination of the Software discloses that such nonconformity exists, then CloverDX will, at its sole discretion and as the Licensee’s sole remedy, (i) attempt to correct through reasonable efforts, any reproducible material nonconformity; or (ii) replace the nonconforming Software with Software which conforms to the warranty in Section 10.1.
10.4 In the event CloverDX is unable to cure the breach of warranty described in this Section 10, after attempting the remedies described in 10.3(i) and 10.3(ii) above, Licensee may return the Software and CloverDX shall refund a portion of the License Fees paid by Licensee to CloverDX for the Software.
10.5 The remedies in Section 10.3 and Section 10.4 are available only if the Software has not been (i) altered or modified other than by CloverDX; (ii) subjected to negligence, or computer or electrical malfunctions; or (iii) used, adjusted, or installed other than in accordance with the Documentation and the terms of this EULA. SECTION 10.3 AND SECTION 10.4 SET FORTH LICENSEE’S SOLE REMEDIES AND CLOVERDX’S SOLE LIABILTY AND OBLIGATION FOR BREACH OF ANY WARRANTY FOR THE SOFTWARE PROGRAM.
10.6 CloverDX shall not be liable to Licensee, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising out of or relating to the EULA or the Software for: (i) loss of profits, sales, business or revenue; (ii) business interruption; (iii) loss of anticipated savings; (iv) loss or corruption of data or information; (v) loss of business opportunity, goodwill or reputation; or (vi) any indirect or consequential loss or damage.
10.7 CloverDX’s maximum aggregate liability arising out of or relating to this EULA and Licensee’s installation and use of the Software, whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to the License Fees paid by Licensee hereunder.
10.8 Licensee acknowledges that the Software has not been developed to meet its individual requirements, and that it is Licensee’s responsibility to ensure that the facilities and functions of the Software as described in the Documentation meets its requirements.
10.9 This Software is developed for general use in a variety of information and data management applications. It is not developed or intended for use in any inherently dangerous applications, including applications that may create a risk of personal injury. If you use this Software in dangerous applications, then you shall be responsible to take all fail-safe, backup, redundancy, and other measures to ensure its safe use. CloverDX and its affiliates disclaim any liability for any damages caused by use of the Software in dangerous or high-risk applications.
10.10 The Software includes Open-Source Components, a copy of which can be found though www.cloverdx.com/products/open-source. Use of the Open-Source Components by Licensee shall be governed by, and subject to, the terms of the relevant open source license. For non-CloverDX Branded software and documentation delivered in connection with the Software that is separately licensed by a third party, Licensee’s rights and responsibilities regarding such software and documentation and related intellectual property rights shall be governed under the third party’s applicable software license and not by this EULA. If Licensee enters into separate “click-accept” license agreements or third-party license agreements as part of the installation and/or download process, these shall govern the use of such non-CloverDX Branded software or documentation covered by such licenses.
11. Software Infringement Indemnification
11.1 CloverDX shall indemnify, defend and hold Licensee harmless up to the amount of License Fees paid by Licensee, from any and all actions, causes of action, claims, demands, reasonable costs, liabilities, reasonable expenses (including reasonable attorneys’ fees) and damages finally awarded by a court of competent jurisdiction arising from any claim that the Software infringes any copyright of a third party (other than an Affiliate of Licensee); provided, that:
11.1.1 Licensee shall promptly deliver to CloverDX notice in writing of any infringement claim made by a third party, but in no event more than ten (10) business days after the Licensee becomes aware of such claim; and, if known, specify in reasonable detail the nature of the claim and the amount, or an estimate of the amount, of the liability arising therefrom. Licensee shall, at CloverDX's expense, provide to CloverDX as promptly as practicable thereafter information and documentation reasonably requested by CloverDX to support and verify the claim asserted; provided, that CloverDX may restrict or condition any disclosure to preserve privileges of importance in any foreseeable litigation.
11.1.2 CloverDX may assume and retain sole control of the investigation, defense or settlement of any third-party infringement claim made against Licensee or CloverDX with respect to the Software, including the employment of counsel or accountants, at its cost and expense. Licensee may employ counsel separate from counsel employed by CloverDX in any such action and to participate therein, but the fees and expenses of such counsel employed by Licensee shall be at Licensee's expense. CloverDX may determine and adopt (or, in the case of a proposal by Licensee, to approve) a settlement of such matter in its reasonable discretion. CloverDX shall not be liable for any settlement of any claim without its prior written consent, which shall not be unreasonably withheld. Whether or not CloverDX chooses to so investigate or defend such claim, Licensee shall cooperate with CloverDX in the defense thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by CloverDX in connection therewith.
11.1.3 If such a claim arises, or in either party's judgment is likely to arise, Licensee agrees to allow CloverDX, at CloverDX's option, to either: (i) procure the right to permit the continued exercise of the rights and licenses in the Software granted under this EULA; (ii) replace or modify the Software so it becomes non-infringing, while affording substantially equivalent performance; or (iii) terminate the license for the infringing Software and upon return thereof by Licensee, refund a portion of the License Fees paid by Licensee to CloverDX for the Software, but in no event more than the total License Fees paid.
11.1.4 CloverDX shall have no indemnity obligation for claims of any intellectual property infringement arising out of or resulting from (i) any combination, operation or use of the Software, or any components thereof, with any software programs or data not supplied by CloverDX if such infringement would have been avoided by use of the Software alone, (ii) use of the Software in a manner not authorized by this EULA and the Documentation; (iii) modification of the Software by anyone other than CloverDX if the alleged infringement relates to such modification, (iv) Licensee’s continued use of the Software after being notified of the alleged infringement, or (v) software or components not supplied by CloverDX.
12. Information and Personal Data
12.2.1 Provide, manage and administer Licensee’s use of the Software;
12.2.2 Fulfil CloverDX’s contractual obligations under this EULA; and
12.2.3 Liaise with regulators, banks, law enforcement agencies (including the police) and fraud detection parties.
12.3 Licensee agrees that CloverDX may process technical and related information about Licensee’s use of the Software, which may include license number, online/offline license activation, license expiration, internet protocol address, hardware identification, operating system, application software, peripheral hardware, and non-personally identifiable Software usage statistics to facilitate the provisioning of updates, support, invoicing or online services.
12.4 As between CloverDX and Licensee, the Licensee owns the data it inputs into the Software, and has sole responsibility for its legality, reliability, integrity, accuracy and security.
13.1 CloverDX shall have the right, on at least ten (10) days’ prior written notice and not more than once every twelve (12) months, and at a time mutually acceptable to the parties, and in a manner that does not unreasonably disrupt the business of Licensee, to conduct a software audit during Licensee’s normal business hours to verify Licensee’s use of the Software, compliance with this EULA and payments made to CloverDX hereunder. Licensee agrees to immediately remit to CloverDX any shortfall in payment disclosed by such software audit, including any late charges applicable thereto, and CloverDX agrees to immediately remit to Licensee any overage in payment disclosed by such software audit.
14. Term and Termination
14.1 For Licensee’s purchasing a subscription-based license, the term of this EULA commences on the Effective Date and continues in effect for the period specified in the Purchase Order (the “Term”), unless earlier terminated as provided in this EULA.
14.2 For Licenses purchasing a perpetual license, the Term of this EULA commences on the Effective Date and continues until terminated as provided in this EULA.
14.3 Either party may terminate this EULA immediately upon written notice to the other party if the other party: (i) is in default of any obligation hereunder, which default is incapable of being cured, or which, being capable of being cured, has not been cured within thirty (30) days after receipt of written notice of such default; or (ii) becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, or has been liquidated, voluntarily or otherwise.
14.4 If this EULA is terminated by either party under this Section 14 prior to the expiration of the Term, then CloverDX may invoice Licensee for the License Fees that, but for early termination, would have been payable for the remaining duration of the Term (if any), which shall be payable by Licensee within 30 days.
14.5 Upon termination of this EULA:
14.5.1 no refunds are due to Licensee from CloverDX for prepaid License Fees (if any);
14.5.2 all rights granted to Licensee shall end and Licensee shall immediately stop all activities authorised by this EULA;
14.5.3 Licensee must immediately pay CloverDX any sums that accrued prior to termination;
14.5.4 Licensee must immediately delete or remove the Software from all computer equipment in Licensee’s possession, custody or control, and at CloverDX’s direction either return to CloverDX or destroy all copies of the Software, License Key, Confidential Information and documentation then in Licensee's possession, custody or control. Licensee shall, within thirty (30) days after the date of such termination, furnish CloverDX with a certification of compliance for these obligations; and
14.5.5 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the EULA that existed at or before the date of termination, shall not be affected or prejudiced.
14.6 The software may include functionality that will render it non-operational upon expiration of the Term.
15. Software Export Controls
15.1 Licensee shall comply with all applicable technology control or export laws and regulations. Licensee accepts any additional delays caused by the export licensing process and delays to comply with conditions of the individual export license.
15.2 Licensee shall not itself, or permit any other person to, export, re-export or release, directly or indirectly the Software, Documentation or other technical data to any country, jurisdiction, or person to which the export, re-export, or release thereof is prohibited by applicable law, including the U.S. Export Administration Regulations and the regulations of other jurisdictions (e.g. the European Union). Without limiting the foregoing, you agree that: (i) you are not acting on behalf of any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States, the European Union or other applicable government body has prohibited export transactions (e.g. Iran, North Korea, Sudan.); (ii) you are not acting on behalf of any person or entity listed on a relevant list of persons to whom export is prohibited (e.g. the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, the U.S. Commerce Department Denied Persons List or Entity List); and (iii) you will not use the Software for any purpose prohibited by law.
16. Compliance with Laws
16.1 Each party shall comply with all federal, state, local and foreign laws, rules and regulations applicable to its performance under this EULA, and represents that, to its knowledge, no money or other consideration of any kind paid or payable under this EULA or by separate agreement has been used for any unlawful purposes.
16.2 Licensee shall comply and shall notify end users of their obligations to comply, with Licensee’s obligations under this EULA. Licensee shall promptly notify CloverDX of any failure by any end user to comply with a required obligation under this EULA.
17.1 Entire Agreement
17.1.1 This EULA and any Purchase Order or Quotation entered into in connection with this EULA, constitute the entire agreement of the parties regarding the subject matter hereof and supersedes all prior agreements, both oral and written, representations, statements, negotiations and undertakings, regarding the subject matter hereof, which such agreements, representations, statements, negotiations and undertakings are merged herein. No amendment or modification of this EULA or any provision or attachment of this EULA shall be effective unless it is in writing and signed by both parties. Each party acknowledges that in entering into this EULA it does not rely on, and shall have no remedies regarding, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set forth in this EULA.
17.1.2 If there is an inconsistency between any of the provisions in this EULA and the Purchase Order or Quotation, the provisions in this EULA shall prevail except where CloverDX expressly agrees otherwise in the Purchase Order or Quotation. No terms or conditions in a Licensee purchase order or in any other Licensee order documentation (other than a Purchase Order or Quotation signed by the parties) shall be incorporated into or form any part of this EULA, and all such terms and conditions shall be null and void.
17.2 Survival. Any provision of this EULA that expressly or by implication should come into effect or continue in force on or after termination or expiry of this EULA shall remain in full force and effect.
17.3.1 All notices required or permitted under this EULA will be in writing and will be deemed given one (1) day after deposit with a commercial express courier specifying next day delivery (or three (3) days for international courier), with written verification of receipt. All communications will be sent to the addresses on the first page of this EULA or such other address as designated by a party under this Section 17.3.1 or, absent such an address from Licensee, to the address on the Purchase Order or Quotation, if any.
17.3.2 Notwithstanding the foregoing, notices regarding changes in pricing, Software license terms, policies or programs may be made by CloverDX by posting on www.cloverdx.com or by e-mail.
17.4 Variation. No variation of this EULA shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17.5 Waiver. No failure or delay by either party to exercise any right or remedy provided under this EULA or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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.
17.6 Severability. If any provision (or part of a provision) of this EULA is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17.7.1 This EULA is personal to the Licensee. This EULA shall be binding upon and shall inure to the benefit of Licensee and CloverDX and each party's successors, subject to the other provisions of this Section 17.7.
17.7.2 CloverDX may assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this EULA.
17.7.3 The Licensee shall not assign, transfer (including by operation of law, such as a change of Control of Licensee), mortgage, charge, subcontract, or deal in any other manner with any of its rights and obligations under this EULA, or purport to do any of the same, without the prior written consent of the CloverDX.
17.7.4 This license is granted to Licensee only and as such does not permit Licensee to sell, lend, assign, lease or transfer in any other way any copy of the Software.
17.7.5 Any transfer in violation of this Section 17.7 is not permitted and shall be null and void, and shall be deemed a material breach of this EULA.
17.8 No Partnership. This EULA creates no agency, partnership, joint venture, or franchise relationship. No employee of either party shall be or become, or shall be deemed to be or become, an employee of the other party by the existence or implementation of this EULA. Each party is an independent contractor. Neither party shall assume or create any obligation of any nature on behalf of the other party or bind the other party.
17.9 Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquakes, industry-wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance. Notwithstanding the foregoing, if a force majeure event under this Section 17.9 impairs or prevents either party’s performance under this EULA for a period over thirty (30) days, the other party may terminate this EULA by written notice.
Part 1: Adjustments to user numbers
1. If the Software is licensed to Licensee based upon the number of Authorised Users or the Firm Size, the Licensee shall provide to CloverDX an annual update of Authorised Users or Firm Size by the next renewal date.
2. CloverDX reserves the right to charge additional fees arising from any increase in the number of Authorised Users or Firm Size over the prior Term’s Authorised Users count or Firm Size.
3. If a change of Control of Licensee occurs, provided that CloverDX has agreed to the transfer of this EULA under Section 7.3, CloverDX may adjust fees and Authorised Users count or Firm Size to reflect the size of the new entity.
Part 2: Authorised Users
1. In relation to the Authorised Users, Licensee undertakes that:
1.1 the maximum number of users who can benefit from the Software, Support and the Documentation shall not exceed the number of Authorised Users;
1.2 it is responsible for the security and proper use of all passwords (including frequently changing passwords) and shall take all necessary steps to ensure that passwords are kept confidential by each Authorised User and are only used for their use of the Software; and
1.3 it shall maintain a written, up to date list of Authorised Users and provide such list to CloverDX within 5 Business Days of CloverDX's written request at any time or times.
Part 3: Subscription Fees
1. The Licensee shall pay each invoice received from CloverDX within 30 days after the date of such invoice unless the terms of the Purchase Order or Quotation require advanced payment of all or part of the License Fees. The Licensee shall on the Effective Date provide to CloverDX valid, up-to-date and complete credit card/debit card details and any other relevant contact and billing details.
2. If the Licensee provides its credit card or debit card details to CloverDX, the Licensee authorises CloverDX to bill such credit card: (i) on the Effective Date of the initial term; and (ii) on each renewal date.
3. CloverDX shall be entitled to increase the License Fees at the start of each renewal period upon 60 days’ prior notice to the Licensee and the payment terms of this EULA shall be deemed to have been amended so.
Schedule 2 UK/EU terms
Section 2 – Grant of License
1. Effective upon the payment of the License Fees, and subject to the terms of this EULA, including the restrictions in Section 4 (Restrictions and Undertakings), CloverDX grants the Licensee:
- the right to make one copy of the Software for back-up purposes only; an
- the right to use any Documentation to support the licensed use under Section 2 and make copies of the Documentation as are reasonably necessary for Licensee’s lawful use of the Software.
Section 4 – Restrictions and Undertakings
2. Licensee shall not, directly or indirectly attempt to, or permit anyone else to, reverse engineer, decompile, or disassemble any encrypted or encoded portion of the Software or modify or create any derivative works based on the Software, except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988 or similar applicable laws) such actions cannot be prohibited because they are essential to achieve interoperability of the Software with another software program, and provided that the information obtained by you during such activities:
- is used only to achieve inter-operability of the Software with another software program;
- is not unnecessarily disclosed or communicated without CloverDX’s prior written consent to any third party; and
- is not used to create any software substantially similar to the Software.
Section 10 – Warranty and Limited Liability
3. This EULA sets out the full extent of CloverDX’s obligations and liabilities regarding the supply of the Software, Support and Documentation. Except as expressly stated in this EULA, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Any condition, warranty, representation or other term concerning the supply of the Software, Support and/or Documentation that might otherwise be implied into, or incorporated in, this EULA, whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
4. Nothing in this EULA shall limit CloverDX’s liability for: (i) death or personal injury resulting from CloverDX’s negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability that cannot be excluded or limited by English or other applicable law. The liability cap in Section 7 does not apply to this Section.
Section 17 – General
5. Governing Law and Forum.
- This EULA and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this EULA or its subject matter or formation (including non-contractual disputes or claims).
6. This EULA confers no rights on any person or party (other than the parties to this EULA and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Schedule 3 Non-UK/Non-EU Terms
Section 4 – Restrictions and Undertakings
1. Licensee shall not, directly or indirectly attempt to, or permit anyone else to, reverse engineer, decompile, or disassemble any portion of the Software or modify or create any derivative works based on the Software.
Section 5 - Fees
2. Any sum not paid by Licensee when due shall bear interest from the due date until paid at a rate of the lesser of (i) ten percent per annum, or (ii) the maximum rate permitted by law.
Section 10 – Warranty and Limited Liability
3. Disclaimer: THE EXPRESS LIMITED WARRANTIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SOFTWARE PROGRAM, AND CLOVERDX EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE NONINFRINGEMENT, TITLE, SATISFACTORY QUALITY, ACCURACY, OR SYSTEM INTEGRATION, OR (B) ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY. TO THE EXTENT AN IMPLIED WARRANTY OR CONDITION CANNOT BE DISCLAIMED, SUCH WARRANTY OR CONDITION IS LIMITED IN DURATION TO THE APPLICABLE EXPRESS WARRANTY PERIOD.
Section – 17 General
4. Governing Law and Forum.
- The validity, construction and performance of this EULA shall be governed by the laws of the Commonwealth of Virginia, U.S.A. (excluding conflicts of law principles). Except as provided for in Section 4(b), Licensee and CloverDX agree that any dispute arising out of this EULA shall be instituted in the United States District Court for the Eastern District of Virginia, Alexandria Division, or the courts of the Commonwealth of Virginia located in Fairfax County, Virginia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. If any legal action is undertaken to enforce the terms of this EULA, the prevailing party shall be entitled to reasonable attorney's fees and costs in addition to any other relief to which that party may be entitled.
- In the event Licensee is located outside of the United States or its territories and possessions, then the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) by one or more arbitrators appointed in accordance with such rules. For any ICC arbitration, the place of the arbitration shall be London, UK, or another commercial center reasonably chosen by the arbitration panel to ensure that the award resulting from the arbitration shall be of an international character and enforceable under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The arbitration shall be conducted in the English language. The arbitration panel shall be empowered to grant whatever relief would be available in court, including without limitation preliminary relief, injunctive relief and specific performance. Any award of the arbitration panel shall be final and binding immediately when rendered, and judgment on the award may be entered in any court of competent jurisdiction. Neither party shall be entitled to join, consolidate, or include any claims belonging to or alleged or arising from, by, or on behalf of any third party to an arbitration brought hereunder, or arbitrate any claim as a class action, class representative, class member, or in a private attorney general capacity. The individual (non-class) nature of this dispute resolution provision goes to the essence of the parties' dispute resolution agreement, and if found unenforceable, the entire arbitration and dispute resolution provision shall be void. Notwithstanding the foregoing, this clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
- This EULA specifically excludes the United Nations Convention on Contracts for the International Sale of Goods and any legislation implementing such Convention, if otherwise applicable. The parties agree that the provisions of the Uniform Computer Information Transactions Act (“UCITA”), as it may have been or hereafter may be in effect in any jurisdiction, shall not apply to this EULA, and the parties waive all rights they may have under any laws(s) adopting UCITA in any form.
5. U.S. Government End Users. The Software licensed under this EULA is "commercial computer software" as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires the Software and Documentation subject to the terms of this EULA as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires the Software and Documentation subject to the terms of this EULA as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors. Contractor CloverDX, Inc., 1101 Wilson Blvd, 6th Floor, Arlington, VA 22209, United States.
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EULA version 3.2.1 | Date: 30 August 2021