DYNTELL BI SOFTWARE
END USER LICENSE AGREEMENT (“EULA”)
BY CHECKING THE ACCEPTANCE BOX OR INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS PUBLISHED ON DYNTELL’S WEBSITE AT WWW.DYNTELLBI.COM (AS MAY BE RELOCATED BY DYNTELL FROM TIME TO TIME). YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU AND LEGALLY BINDING BETWEEN YOU AND DYNTELL, INC. OR THE APPLICABLE DYNTELL AFFILIATE (“DYNTELL”). IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT INSTALL THE SOFTWARE. IF YOU WISH TO USE THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO DO SO. IN THE EVENT YOU ARE REDIRECTED TO DYNTELL’S WEBSITE, YOU AGREE THAT YOUR USE IS SUBJECT TO ANY TERMS OF SERVICE POSTED THEREON.
This End User License Agreement (“Agreement”) is between Dyntell and the customer (individual or entity) that has downloaded or otherwise procured the licensed Software (as defined below) for use as an end user (“you”). This Agreement applies only to Software, Support and Maintenance Services, and Professional Services, as referenced herein.
Affiliate: means each legal entity that is directly or indirectly controlled by you on or after the Effective Date and for so long as such entity remains directly or indirectly controlled by you (where “controlled” means the ownership of, or the power to vote, directly or indirectly, a majority of any class of voting securities of a corporation or limited liability company, or the ownership of any general partnership interest in any general or limited partnership).
Authorized User: means those licensed uniquely identified individuals who are authorized by you to install and/or use the Software regardless of whether those individuals are actively using the Software at any given time. Licenses granted on an Authorized User basis may be reassigned between uniquely identified individuals, but may not be reassigned so frequently as to enable the sharing of a single license among multiple users.
Contractor: means those independent third parties who perform services for you, but solely to the extent they are acting on your behalf.
Customer Data: means data generated by you or your Authorized User and used by or imported into the Software, but excludes data generated by a Client Sublicensee unless such data is combined with your data or is relevant to your provision of services to such Client Sublicensee.
Documentation: means any supporting product help and technical specifications documentation provided by Dyntell with the Software to you.
Effective Date: means the date of your first Ordering Document or the initial Delivery date of the Software (whichever is earlier).
License Term: means the Software license term specified on the applicable Ordering Document or by an Authorized Partner. The License Term may be a fixed term, a limited term for Evaluation Versions, or perpetual.
Ordering Document: means any order on a Dyntell order form which references this Agreement. Each Ordering Document which references this Agreement shall be deemed a part of this Agreement.
Software: means the proprietary Dyntell software product(s) provided in connection with this Agreement in object code form (or as otherwise specified in any related Ordering Document), as more fully described in the Documentation. “Software” shall also include any Support and Maintenance Services releases provided to you under this Agreement. Unless otherwise noted, the Software and Documentation are referred to collectively herein as “Software”.
- Dyntell Software Products.
2.1 Dyntell Software. In order to use the Software under this Agreement, you must activate your copy of the Software with the valid license key(s) or activation code(s) provided to you (“Product Key”) at the time of purchase and/or submit a uniquely identifiable user registration when prompted, in accordance with the scope of use and other terms specified for each type of Software, the Documentation, and as set forth in this Section 2 of this Agreement.
2.2 Dyntell Desktop (“Desktop Software”): If you purchased or received a license to Desktop Software, the total count of Authorized Users enabled to use such Desktop Software must not exceed the number of licenses purchased on the applicable Ordering Document(s) or if there is no Ordering Document, as otherwise designated by Dyntell. For each such license you may install, via the Product Key, one copy of the Desktop Software on one primary computer.
2.3 Dyntell Server (“Server Software”): If you purchased or received a license to Server Software, your license will be subject to to User-Based restrictions.
2.3.1 User-Based Server License: If your Server Software license is designated as User-Based, the total count of Authorized Users enabled to use such Server Software across all Production and Non-Production Environments must not exceed the number of licenses purchased on the applicable Ordering Document(s) or received by you from Dyntell.
3.1 Grant of License. Subject to all of the terms and conditions of this Agreement, and except as set forth in Section 6 (Term and Termination), during the applicable License Term, Dyntell grants you a limited, worldwide, non-transferable, non-sublicensable (except as permitted under Section 3.7), non-exclusive license to use the Software for which you have been issued a Product Key by Dyntell or an Authorized Partner, but only in accordance with: (a) the Documentation; (b) the restrictions in Section 2 (Dyntell Software Products), Section 3.9 (License Restrictions) and any restrictions on the applicable Ordering Document; and (c) the number of Authorized Users, on the platforms and configurations or any other restrictions mutually agreed upon by you and an Authorized Partner. You may allow your Contractors and Affiliates to use the Software in accordance with this Agreement, provided you shall be liable for all acts and omissions of your Affiliates and Contractors as if their acts or omissions were your own.
3.2 Archive Copies. You are entitled to make a reasonable number of copies of the Software for archival purposes only.
3.3 Third-Party Code. The Software may contain or be provided with components which are licensed from third parties (“Third Party Code”), including components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). Open Source Software may be identified in the Documentation, or in a list of the Open Source Software provided to you upon your written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
3.4 Electronic Delivery. All Software and Documentation shall be delivered by electronic means unless otherwise specified on the applicable Ordering Document. Software shall be deemed delivered when it is made available for download by you (“Delivery”).
3.5 Evaluation Version (“Evaluation Version” “Trial Version): If you ordered a license to an Evaluation Version, you may install and use one copy of the Evaluation Version Software solely for the purpose of evaluating the Software to determine whether to purchase a non-Evaluation Version copy of the Software. You may not use the Evaluation Version for any other purposes, including but not limited to competitive analysis, commercial, professional, or for-profit purposes. Licenses provided under Dyntell’s student access program constitute Evaluation Versions and the aforementioned prohibition against commercial or professional use does not apply to such licenses. You may only use the Evaluation Version for fourteen (14) days from the date you activate and/or register via the Product Key or otherwise, unless otherwise specified by Dyntell in the Documentation or a separate writing from Dyntell (“Evaluation Period”). Unless you pay the applicable license fee for the Software (and Dyntell issues you a Product Key in exchange), the Evaluation Version Software may become inoperable and, in any event, your right to use the Evaluation Version Software automatically expires at the end of the Evaluation Period. Notwithstanding any other provision of this Agreement, the Evaluation Version Software is provided “AS IS” without warranty or support of any kind, express or implied. Dyntell may terminate your license to the Evaluation Version Software upon written notice at any time for any reason and without liability of any kind. IF YOU SUBSEQUENTLY LICENSE A NON-EVALUATION VERSION OF THE SOFTWARE, YOUR LICENSE TO THE EVALUATION VERSION SOFTWARE SHALL IMMEDIATELY TERMINATE AND YOU EXPRESSLY AGREE THAT, UNLESS YOU HAVE A SEPARATE SIGNED LICENSE AGREEMENT GOVERNING YOUR USE OF THE SOFTWARE, THIS AGREEMENT, AND THE TERMS AND CONDITIONS HEREIN, SHALL GOVERN YOUR USE OF SUCH NON-EVALUATION VERSION.
3.6 License Restrictions. As a condition of your license, you shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or Third Party Code or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software or Third Party Code by any means whatsoever; (b) distribute, sell, sublicense, rent, lease or use the Software, Third Party Code (or any portion thereof) for time sharing, hosting, service provider or like purposes; (c) remove any product identification, proprietary, copyright trademark, service mark, or other notices contained in the Software or Third Party Code. Create a derivative work of any part of the Software or Third Party Code, or incorporate the Software or Third Party Code into or with other software, except to the extent expressly authorized in writing by Dyntell or as permitted by an applicable Open Source Software license, provided, however, that you shall not do anything that will render the Software Open Source Software; (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; (f) utilize any equipment, device, software, or other means designed to circumvent or remove any form of Product Key or copy protection used by Dyntell in connection with the Software, or use the Software together with any authorization code, Product Key, serial number, or other copy protection device not supplied by Dyntell or through an Authorized Partner; (g) use the Software to develop a product which is competitive with any Dyntell product offerings; (h) use unauthorized Product Keys or keycode(s) or distribute or publish keycode(s) except as may be expressly permitted by Dyntell in writing; (i) as applicable to Desktop Server licenses, enable access to the Software for a greater number of Authorized Users than the sum quantity of licenses purchased on the applicable Ordering Document(s); (j) as applicable to Desktop or Server licenses, reassign license rights between Authorized Users so frequently as to enable a single license to be shared between multiple users; (k) assert, nor will you authorize, assist or encourage any third-party to assert, against Dyntell or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Software or Support and Maintenance or Professional Services you have purchased or used hereunder; or (l) use the Software to develop a product that converts any Dyntell file format to an alternative report file format used by any general-purpose report writing, data analysis or report delivery product that is not the property of Dyntell.
Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Dyntell and its licensors have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software, Deliverables, and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, feedback or suggestions). You acknowledge that you are obtaining only a limited license right to the Software, Third Party Code and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
You shall pay all fees associated with the Software licensed and any services purchased hereunder as set forth in the applicable Ordering Document. All payments shall be made in US dollars according to the applicable subscription plan or services noted on the applicable Ordering Document by credit card. Except as expressly set forth in the applicable subscription plan noted on the applicable ordering document, all fees are non-refundable once paid. Unless timely provided with a valid certificate of exemption or other evidence that items are not taxable, Dyntell will invoice you for all applicable taxes including, but not limited to, sales tax, consumption tax and service tax. If any withholding tax is required by applicable law to be paid by you in relation to payments due to Dyntell hereunder, you will provide Dyntell with official receipts and/or certificates from the appropriate taxing authorities to establish that any applicable taxes have been paid.
- Term and Termination.
6.1 Term of License. Unless sooner terminated as provided herein, your license to Software expires at the end of each the subscription plan cycle as indicated on the applicable ordering document. License Terms, including payment obligations, automatically renew according to the subscription plan indicated on the applicable ordering document.
6.2 Term of Agreement. This Agreement commences as soon as your initial payment is processed and automatically renews based on the subscription plan cycle indicated on the applicable ordering document. You may cancel your subscription in accordance with the cancelation terms of the subscription plan indicated on applicable ordering document.
6.3 Cancelation/Termination by You. You may cancel/terminate your subscription according to the terms of the subscription plan indicated on the applicable ordering document. Upon any expiration or termination of this Agreement, you shall cease any and all use of any Software, destroy all copies thereof and so certify to Dyntell in writing, and immediately pay any outstanding fees due hereunder.
6.4 Cancelation/Termination by Us. We may, at any time, terminate your right to use and access the Services or Software if:
(a) you breach any provision of this agreement or the subscription plan (or act in a manner that clearly shows you do not intend to, or are unable to, comply with the Terms);
(b) you fail to make the timely payment of fees for the Services or Software, if any;
(c) you materially breach any provision of the Terms, and (i) the breach cannot be corrected; or (ii) we notify you of the breach and you fail to correct it within 14 days of the notice;
(d) you physically, verbally, or through other means abuse, threaten, bully, or harass us or our personnel (in such circumstances, we may alternatively suspend or restrict your access to the Services or Software);
(e) you have repeatedly made complaints in bad faith or without a reasonable basis, and continue to do so after we have asked you to stop (in such circumstances, we may alternatively suspend or restrict your access to the Services or Software);
(f) we are required to do so by law (for example, where the provision of the Services or Software to you is, or becomes, unlawful);
(g) we elect to discontinue the Services or Software, in whole or in part (such as if it becomes impractical for us to continue offering Services in your region due to change of law); or
(h) Your trial period has ended and you have not paid the fees required for a standard version/license.
6.5 Survival. Upon the expiration or cancelation/termination, some or all of the Services and Software may cease to operate without prior notice.
Sections 3.9 (License Restrictions), 4 (Ownership), 5 (Payment), 6 (Term and Termination), 7.4 (Disclaimer of Warranties), 10.1, 10.2, 10.3 and 10.5 (Limitation of Remedies; Indemnification and Damages), 11 (Confidential Information), 12 (Export Compliance) and 13 (General) shall survive any termination or expiration of this Agreement.
- Disclaimers of Warranties
7.1 Limited Warranty. Dyntell does not warrant that your use of the Software will be uninterrupted or error-free or that any security mechanisms implemented by the Software will not have inherent limitations. For the avoidance of doubt, this warranty applies only to the initial Delivery of Software under an Ordering Document and does not renew or reset, for example, with renewal License Terms or the delivery of Software updates or maintenance releases or Product Keys.
7.2 Exclusions. The above warranty shall not apply: (a) if the Software is used with hardware or software not authorized in the Documentation; (b) if any modifications are made to the Software by you or any third party; (c) to defects in the Software due to accident, abuse or improper use by you; (d) to any Evaluation Version or other Software provided on a no charge or evaluation basis.
7.3 Mutual Warranties. Both parties each hereby warrant to the other that: (a) it has the authority to enter into the Agreement, to grant the rights granted by it under the Agreement, and to perform its obligations under the Agreement; and (b) it will comply with all applicable laws and regulations in effect during the term of the Agreement as they apply to such party’s rights obligations under the Agreement.
7.4 Disclaimer of Warranties. THIS SECTION 7 IS A LIMITED WARRANTY AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE SOFTWARE, INCLUDING WITHOUT LIMITATION THE MAPS AND THE THIRD-PARTY CODE, AND ALL SERVICES ARE PROVIDED “AS IS”. NEITHER DYNTELL NOR ITS LICENSORS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD.
- Support & Maintenance
Subject to the terms and conditions of this Agreement, including payment of any applicable fees, Dyntell shall provide support and maintenance services for the Software for the period set forth in the Ordering Document, pursuant to Dyntell’s then-current Support and Maintenance Policies (“Support and Maintenance Services”). All Support and Maintenance Services renewals will be subject to the terms and conditions of this Agreement including Dyntell’s then-current Support and Maintenance Policies.
- Professional Services
Dyntell shall provide the number of hours of professional consulting or training services (“Professional Services”) purchased in the applicable Ordering Document or online ordering process. The parties acknowledge that the scope of the Professional Services provided hereunder consists solely of either or both of: (a) assistance with Software installation, deployment, and usage; and (b) training in use of the Software. You shall have a license right to use any deliverables (including any documentation, code, Software, training materials or other work product) delivered as part of the Professional Services (“Deliverables”) solely in connection with your licensed use of the Software, subject to all the same terms and conditions as apply to your Software license (including in Section 3.9 (License Restrictions)), and subject to any additional terms and conditions provided with the Deliverables. You may order Professional Services under an Ordering Document or a mutually executed Statement of Work (“SOW”) describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information. You will reimburse Dyntell for reasonable travel and lodging expenses as incurred.
- Limitation of Remedies; Indemnification and Damages
10.1 BUT FOR: (A) EITHER PARTY’S BREACH OF SECTION 11.1 (USE OF CONFIDENTIAL INFORMATION), (B) YOUR BREACH OF SECTION 3.7 (CLIENT SUBLICENSEES), SECTION 3.9 (LICENSE RESTRICTIONS) OR SECTION 12 (EXPORT COMPLIANCE), OR (C) DAMAGES ARISING OUT OF CLIENT SUBLICENSEE’S USE OF THE SOFTWARE, INCLUDING YOUR OBLIGATIONS UNDER SECTION 10.5, NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR COSTS OF COVER), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
10.2 BUT FOR: (A) EITHER PARTY’S BREACH OF SECTION 11.1 (USE OF CONFIDENTIAL INFORMATION), (B) YOUR BREACH OF SECTION 3.7 (CLIENT SUBLICENSEES), SECTION 3.9 (LICENSE RESTRICTIONS), OR SECTION 12 (EXPORT COMPLIANCE), OR (C) DAMAGES ARISING OUT OF CLIENT SUBLICENSEE’S USE OF THE SOFTWARE, INCLUDING YOUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.5, EACH PARTY’S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED (I) FEES PAID OR OWED BY YOU UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE CLAIM, OR (II)
10.3 The parties agree that the limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10.4 Dyntell Indemnification: Dyntell shall defend you from and against any claim by a third party alleging that the Software when used as authorized under this Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark and shall indemnify and hold you harmless from and against any damages and costs finally awarded against you or agreed in settlement by Dyntell (including reasonable attorneys’ fees) resulting from such claim, provided that Dyntell shall have received from you: (a) prompt written notice of such claim (but in any event notice in sufficient time for Dyntell to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (c) all reasonably necessary cooperation from you. If your use of the Software is (or in Dyntell’s opinion is likely to be) enjoined, if required by settlement or if Dyntell determines such actions are reasonably necessary to avoid material liability, Dyntell may, in its sole discretion: (i) substitute for the Software substantially functionally similar programs and documentation; (ii) procure for you the right to continue using the Software; or if (i) and (ii) are not commercially reasonable, (iii) terminate this Agreement and refund to you any prepaid, unused license fees for the duration of the then-current License Term (or, if your License Term is perpetual, your refund will equal the license fee paid by you as reduced to reflect a five year straight-line depreciation from the applicable license purchase date). The foregoing obligations of Dyntell shall not apply: (1) if the Software is modified by any party other than Dyntell, but solely to the extent the alleged infringement is caused by such modification; (2) if the Software is combined with products or processes not provided or authorized by Dyntell, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Software; (4) to any unsupported release of the Software; (5) to any Third-Party Code contained within the Software; or (6) if you settle or make any admissions with respect to a claim without Dyntell’s prior written consent. THIS SECTION 10 SETS FORTH DYNTELL’S AND ITS LICENSORS’ SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
10.5 Indemnification by You. Subject to this Section 10, you shall defend Dyntell from and against all claims by third parties (including any Client Sublicensees and Contractors) resulting from or relating to: (a) any breach by you of Section 3.7 (Client Sublicensees), or (b) Client Sublicensees’ use of the Software, and shall indemnify and hold Dyntell harmless from and against any damages and costs awarded against Dyntell or agreed in settlement by you (including reasonable attorney’s fees) resulting from such claims, provided that you shall have received from Dyntell: (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation from Dyntell. You may not settle any such claim relating to the Software without Dyntell’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
- Confidential Information
11.1 Use of Confidential Information. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software (including Software), pricing, documentation or technical information provided by Dyntell (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of Dyntell without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not disclose any Confidential Information to anyone other than its affiliates, employees and consultants (“Representatives”) who have a need to know and who agree in writing to keep the information confidential on terms no less restrictive than those contained in this Agreement. Both Dyntell and Company will ensure that their respective Representatives comply with this Agreement and will be responsible for any unauthorized use or disclosure of Confidential Information by such Representatives. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
- Export Compliance
You acknowledge that the Software is subject to United States export control and economic sanctions laws, regulations, and requirements, and to import laws, regulations, and requirements of foreign governments. You agree that (1) all use, exports, and imports related to this Agreement will be in compliance with these laws and regulations and (2) you shall not allow any third party to export, re-export, or transfer any part of Software in violation of these laws and regulations. The foregoing obligations include but are not limited to you or a third party exporting, transferring, or importing the Software to: (a) to any country subject to export control embargo or economic sanctions implemented by any agency of the U.S. or foreign governments; (b) any person or entity on any of the U.S. Government’s Lists of Parties of Concern (https://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern) or applicable international specially-designated parties or economic sanctions programs; (c) to any end-user for any known end-use related to the proliferation of nuclear, chemical or biological weapons or missiles, without first obtaining any export license or other approval that may be required by any U.S. Government agency having jurisdiction with respect to the transaction; or (d) otherwise in violation of any export or import laws, regulations or requirements of any United States or foreign agency or authority.
13.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Dyntell may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Dyntell’s assets or voting securities. You may not assign or transfer this Agreement, in whole or in part, without Dyntell’s written consent except that you may assign your rights and obligations under this Agreement, in whole but not in part, without Dyntell’s written consent in connection with any merger, consolidation, sale of all or substantially all of your assets, or any other similar transaction provided that: (a) the assignee is not a direct competitor of Dyntell; (b) you provide prompt written notice of such assignment to Dyntell; (c) the assignee is capable of fully performing your obligations under this Agreement; and (d) the assignee agrees to be bound by the terms and conditions of this Agreement. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
13.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
13.3 Governing Law; Jurisdiction and Venue. Excluding conflict of laws rules, this Agreement shall be governed by and construed under the laws of the State of Maryland, U.S. Nothing in this section shall restrict Dyntell’s right to bring an action (including for example a motion for injunctive relief) against you in the jurisdiction where your place of business is located. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement.
13.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
13.5 Notices and Reports. Any notice or report hereunder shall be in writing or in electronic format. If to Dyntell by mail, such notice or report shall be sent to Dyntell at 1621 N. 34th Street, Seattle, WA 98103 to the attention of “Legal Department”. If to Dyntell by email, such notice or report shall be sent to: [email protected]. If to you, such notice or report shall be sent to the email address you provided upon placing your order. Any notices and reports sent by email shall be effective upon receipt of the same.
13.6 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form, including any electronic invoicing portals, vendor registration processes, or forms related to individuals being on your premises for Professional Services, employed by you will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
13.7 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Notwithstanding the foregoing, if you have entered into a separate written license agreement signed by Dyntell for use of the Software, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions in this Agreement.
13.8 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
13.9 Audit Rights. Upon Dyntell’s written request, your authorized representative shall certify in a signed writing that your use of the Software is in full compliance with the terms of this Agreement (including any Core and user limitations) and provide a current list of Authorized Users for Desktop, Prep and User-Based Server licenses. With reasonable prior notice, Dyntell may audit your use of the Software and compliance with this Agreement, software monitoring system and records, provided such audit is during regular business hours. If such inspections or audits disclose that you have installed, accessed or permitted access to or use of the Software in a manner that is not permitted under this Agreement, then Dyntell may terminate this Agreement pursuant to Section 6 and you are liable for the reasonable costs of the audit in addition to any other fees, damages and penalties Dyntell may be entitled to under this Agreement and applicable law.
13.10 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
13.11 Government End-Users. The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.
13.12 Authorized Partner. If you received the Software under an agreement (“Partner Agreement”) with an authorized Dyntell reseller, partner or OEM (“Authorized Partner”) then, notwithstanding anything to the contrary in this Agreement: (a) your use of the Software is subject to any additional terms in the Partner Agreement, including any limitations on use of the Software in conjunction with third-party applications; and (b) you agree to pay the Authorized Partner the fees agreed in the Partner Agreement and you have no direct payment obligations to Dyntell for that purchase under Section 5 above. If your warranty and support terms stated in your Partner Agreement are different than what is stated in Section 7 or 8 herein, then Dyntell has no warranty or support obligations to you under this Agreement (although the disclaimers of warranties in Section 7.4 still apply to you). If your warranty and support terms passed on in your Partner Agreement are as stated herein, then Section 7 and 8 shall apply to you as written. Notwithstanding anything in this Agreement to the contrary, (i) the Partner Agreement may not modify any of the remaining terms of this Agreement and (ii) the Partner Agreement is between you and the Authorized Partner and is not binding on Dyntell. Dyntell may terminate this Agreement (including your right to use the Software) in the event Dyntell fails to receive payment for your use of the Software from the Authorized Partner or if you breach any term of this Agreement.
13.13 Third-Party Beneficiary. Dyntell Software, Inc., its affiliates and its licensors may be third party beneficiaries of this Agreement. No other third party, including without limitation your Client Sublicensees or Contractors under Section 3.7, is intended to be a beneficiary of this Agreement entitled to enforce its terms directly.
13.14 Dyntell’s Customer List. Customer agrees that Dyntell may disclose Customer as a customer of Dyntell and use Customer’s name and logo on Dyntell’s web site and in Dyntell’s promotional materials.
13.15 Language. Regardless of any language into which this Agreement may be translated, the official, controlling and governing version of this Agreement shall be exclusively the English language version.