END USER LICENSE AND SERVICES AGREEMENT
READ THE FOLLOWING LICENCE AGREEMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE. BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT ACCEPT, THEN DO NOT USE THE SOFTWARE AND CONTACT YOUR RESELLER.
This End User License and Services Agreement ( “EULA”) is between Upstream Works Software Ltd. (“UWS“), with offices at 7777 Weston Road Unit 1000 Woodbridge Ontario Canada L4L0G9 and “You” the company who has elected to license the Product (“End User”) and duly agreed to the terms of this EULA by delivering to UWS or its resellers (“Reseller”) an Order to license the Product (as defined below). The effective date of this EULA is the date accepted by agreeing to these terms and clicking the Accept button. (“Effective Date”).
In consideration of the mutual promises set out below and for other good and valuable consideration, receipt of which being hereby acknowledged, UWS and End User agree as follows:
Section 1. DEFINITIONS
1.01 Defined Terms. In addition to the terms defined above and elsewhere in this EULA, the following terms as used in this EULA shall have the meanings set forth below:
“Acceptance” shall mean the earliest to occur of any of the following events: (a) formal signed acceptance, (b) an End User’s first production use of UWS Software, (c) 90 days after delivery of UWS Software to the End User, or (d) resolution of all Severity 1 or 2 issues determined in the End User’s acceptance testing phase, whichever comes first.
“Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with End User, where “control” is defined as the ownership of at least fifty percent (50%) of the equity or beneficial interests of such entity.
“Data Protection Requirements” shall mean the Data Protection Act 2018 and all other applicable legislation implementing European Community Directives 95/46, 2002/58 and 2009.136, and any subsequent European Union legislation in relation to the protection of personal data implemented in England and Wales and any similar or equivalent legislation in any other relevant jurisdiction.
“Documentation” shall mean the operating manuals, including a description of the functions performed by the UWS Software, user instructions, technical literature and all other related materials in the English language, in both eye-readable and machine-readable, printable form, which may, from time to time, be supplied to End User by UWS or Reseller to facilitate the use and application of the UWS Software.
“End User License Agreement” or “EULA” shall mean this agreement, all attached exhibits and any other documents made a part hereof or incorporated by reference herein, including any mutually executed written amendments hereto and all Orders.
“End User License Agreement” or “EULA” shall mean this agreement, all attached exhibits and any other documents made a part hereof or incorporated by reference herein, including any mutually executed written amendments hereto and all Orders.
“License” means the right of End User to use the Product, granted by UWS as outlined in this EULA;
“License Fee” means any monies or consideration paid to UWS or Reseller for the right to use the Product in accordance with this EULA;
“Maintenance and Support” means the Software maintenance and support services more particularly described in Section 5.
“Maintenance Start” occurs upon expiration of the Warranty Period.
”Order” means a valid amendment, order form, or purchase order submitted by End User or its Affiliates including a list of UWS Products and Services to be provided by UWS or its Reseller. When End User orders UWS Products through a Reseller under End User’s agreement with the Reseller, UWS confirms that except as set forth herein, as between UWS and End User, this EULA governs such UWS Products and Services.
“Product” means UWS Product.
“Reseller” means a reseller of UWS Product and installation and/or Maintenance and Support services for the UWS Product that are provided by either the UWS or Reseller.
“Services” means the services that UWS agrees to perform pursuant to a Statement of Work.
“Site” means End User’s facilities at the address set forth in an Order.
“Statement of Work” means a statement of work that is entered into between the End User or Reseller and UWS under this EULA and executed by the parties. A Statement of Work includes any amendments thereto made by way of program change requests. (“SOW”).
“System” means the computer hardware, cloud network and/or operating systems of End User upon which the UWS Product has been installed for use.
“Third Party Software” shall mean any software not developed by UWS.
“UWS Integrated Software” means any custom software developed by UWS or a third party on its behalf that integrates with any UWS Software for End User pursuant to an Order as defined in an SOW.
“UWS Product” means the UWS Software, Third Party Software, and UWS Integrated Software licensed to End User by UWS or a Reseller for End User’s use in accordance with this Agreement.
“UWS Software” shall mean, collectively or individually, the software programs described in an Order, in object code format, and including all corrections, modifications, enhancements and updates to such software which may be provided from time to time to End User by UWS or its Reseller pursuant to the terms of this EULA or any support agreement entered into between UWS and End User and, where applicable, the terms of any agreement between End User and a Reseller.
Section 2. GRANT OF LICENSE
2.01 License. Subject to the terms and conditions of this EULA and during the term of this EULA, UWS grants End User a revocable, non-transferable (except as set forth herein), non-exclusive license for the number of Authorized Users and for the time period specified in an Order to: (i) install and use the UWS Product on behalf of itself and its Affiliates in accordance with any usage limitations as set forth in an Order at the Site; (ii) make only such copies of the UWS Product as are necessary for the installation or as reasonable for archival and backup purposes, provided that End User shall reproduce on such copies all proprietary notices that appear on the original copy, and all such copies shall be located at the Site; (iii) use, access and copy the Documentation as reasonably necessary to give effect to the license provided End User does not alter or delete any proprietary notices; (iv) allow End User Affiliates to exercise any of the rights granted herein, in whole or in part; (vi) sublicense the UWS Product, and the associated licenses granted under this EULA, in whole or in part, to any End User Affiliate; and (v) sublicense to its contractors, direct and indirect, the right to exercise any of the rights granted herein, in whole or in part, solely in connection with their performance of services for End User or End User Affiliates; provided, however End User may not grant any rights to such subcontractors greater than those granted to End User herein, and End User shall be responsible for the actions and inactions of the subcontractors in relation to the subcontractor’s use of the UWS Products licensed.
2.02 End User is licensed under this EULA to use the UWS Product on any operating system UWS is supporting as of the date of the Order for the applicable UWS Product. Further, if the UWS Product is then covered by Maintenance and Support, End User shall have the right to use the UWS Product on any other UWS supported operating system added after the date of the applicable Order (subject to any express limitations on the number of production copies), without charge. If necessary, UWS shall deliver to End User from time to time upon request such other copies of the UWS Product as is necessary for End User to use the UWS Product on the covered operating systems (subject to any express limitations on the number of production copies).
2.03 UWS Products may be deployed by End User in a production environment using virtualization technology.
2.04 The foregoing represent the only rights granted to, and (together with the applicable license limit [such as number of users, etc.], if any, expressly stated in the applicable Order which shall apply only to production copies) restrictions placed on (in addition to those in Section 4), End User with respect to the UWS Products and/or Documentation.
2.05 Title. UWS shall retain all right, title and interest, including without limitation copyright, patents, trade secrets and/or any other intellectual property rights, in and to the UWS Product and all associated documentation and modifications or translations thereof (excluding any modifications or translations made by End User or its Affiliates for its use in accordance with Section 2.01 above). End User shall not acquire any rights in the UWS Product or any associated documentation other than those specified in this EULA. In order to protect UWS’ proprietary rights in the UWS Product, End User agrees not to intentionally remove UWS’ copyright notice or any other proprietary legends thereon.
2.06 Delivery. UWS will deliver the UWS Product to End User at the Site in accordance with the timeframe and in the manner to be mutually agreed by the parties as set out in the Order.
2.07 Installation. End User shall ensure that the UWS Product is installed (i) by UWS as set out in a Statement of Work, or (ii) by installers certified or approved by UWS. UWS has no obligation to install any UWS Software under this EULA. If End User wishes to retain UWS to provide installation services, the parties shall negotiate and enter into a separate services agreement and Statement of Work for such Services.
Section 3. LICENSE CONSIDERATION
3.01 License Fees and Payment. Upon receipt of an accepted Order, UWS or its Reseller will provide licenses to permit use of the UWS Product in accordance with this EULA and the Order. In consideration for the rights and licenses to the UWS Products hereunder End User shall make payments to UWS or its Reseller according to the terms of this EULA, any Order, and End User’s agreement with the Reseller, as applicable. For any UWS Products ordered by End User or its Affiliates from a Reseller, End User will pay all fees and applicable taxes for such UWS Products and Services to the Reseller and UWS agrees that such payment to the Reseller constitutes full and final satisfaction of End User’s payment obligations under the EULA with respect to the applicable UWS Product and Services, regardless of whether Reseller fails to remit payment to UWS, in whole or in part, under Reseller’s separate agreement with UWS, but such payment and such foregoing agreement by UWS shall not constitute a waiver by UWS of any claim by UWS for any breach of this EULA by End User (other than for non-payment). UWS acknowledges and agrees that End User’s agreement to pay Reseller and other agreements by End User under this EULA constitute good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by UWS, for the UWS Products and Services provided, and other obligations of, and performance by, UWS under this EULA.
3.02 Taxes. For any orders between End User and UWS, and not End User and a Reseller, End User shall pay or reimburse all applicable transaction-based taxes (exclusive of taxes on UWS’s net income) and assessments (“Taxes”) arising on or measured by amounts payable to UWS under this EULA, or furnish UWS with evidence acceptable to the taxing authority to sustain an exemption therefrom. UWS shall provide reasonable cooperation to End User if End User contests any proposed Taxes. UWS shall promptly refund to End User any Taxes or portions thereof previously paid by End User and refunded to UWS. Any taxes on orders between End User and a Reseller will be subject to the agreement between End User and the Reseller and Section 3.01 above.
3.03 Usage Limits. UWS may, from time to time, conduct audits of the system or the Site to ensure compliance with the number of concurrent users licensed based on the original Order and any subsequent UWS Product Orders, or otherwise ensure compliance with End User’s obligations under this EULA. If the End User exceeds a contractual usage limit, End User will execute an Order for additional quantities of the applicable UWS Products and Software Maintenance Services (if applicable) promptly upon UWS’s request, and/or pay any invoice for excess usage in accordance with this Agreement.
Section 4. END USER OBLIGATIONS
4.01 End User shall: (a) provide an available telephone line for technical support and (b) hold the UWS Product in confidence for the benefit of UWS and/or its suppliers and licensors using the same degree of care End User uses to protect its own confidential information, but in any event no less than reasonable care. End User shall not itself or enable a third party to (a) use the UWS Product for any purpose other than permitted by this EULA, (b) reverse engineer, decompile, or disassemble the Product, modify, enhance, adapt or translate the UWS Product except as explicitly approved in writing by UWS, (c) use, reproduce, modify, lease, rent, permit concurrent use of, or distribute the UWS Product other than as expressly permitted in this EULA; (d) make UWS Product available to unauthorized third parties; (e) prepare or create derivative works of the UWS Product; (f) build a competitive product or service to the UWS Products; or (g) remove or modify any proprietary notices from the UWS Product. For clarity, nothing in this EULA prohibits the End User from itself, using the UWS Product to provide services on a “software as a service” basis.
4.02 Export Compliance. End User will comply with all applicable Canadian and U.S. export administration regulations with respect to the UWS Products and/or Documentation provided that UWS has notified End User of the applicable Canadian and U.S. export regulations and restrictions and UWS Product(s) affected. UWS will assist End User, at no charge to End User, in obtaining the necessary licenses, authorizations and/or approvals to export the UWS Products and Documentation.
Section 5. SOFTWARE MAINTENANCE
5.01 UpKeep Customer Support. UWS provides UpKeep Customer Support (“UCS”), for the first fifteen (15) months following Acceptance of the initial order (three (3) months for the Warranty Period and an additional twelve (12) months), at additional cost which is to be indicated as part of any Orders delivered to UWS or its Reseller in accordance with the terms and conditions contained in the Upkeep Customer Support EULA. Subsequent annual UCS periods may be contracted from a Reseller by End User.
5.02 Maintenance and Support Obligation. UWS shall make Maintenance and Support which substantially conforms to the provisions of this Section 5 available for purchase by End User for a period of at least seven (7) years following Acceptance for each UWS Product.
Section 6. CONFIDENTIAL INFORMATION
6.01 Confidential Information. A party may from time to time disclose (the “Disclosing Party”) to the other party (the “Receiving Party”) certain Confidential Information (as hereinafter defined) of the Disclosing Party. Except as expressly permitted by this EULA, for a period of three (3) years from the termination of this EULA, the Receiving Party shall protect the Confidential Information of the Disclosing Party from unauthorized dissemination, using its best efforts to prevent unauthorized disclosure. The Receiving Party shall not use the Confidential Information of the Disclosing Party for any purpose not expressly permitted by this EULA, and shall limit the disclosure of the Confidential Information of the Disclosing Party to the employees or agents of the Receiving Party who have a need to know such Confidential Information for purposes of this EULA, and who are, with respect to the Confidential Information of the Disclosing Party, bound in writing or other acknowledgement by confidentiality terms no less restrictive than those contained herein. Notwithstanding the foregoing, Confidential Information may be disclosed if such disclosure is required by law or by the order of a court or similar judicial or administrative body; provided, however, that the Receiving Party shall notify the Disclosing Party of such requirement immediately in writing, and shall cooperate reasonably with the Disclosing Party, at the Disclosing Party’s expense, in obtaining a protective or similar order with respect thereto.
6.02 Definition of Confidential Information. For purposes of this EULA, the term “Confidential Information” shall mean (a) in the case of UWS, the UWS Software including any customization services in both object and source code forms, and any related software in expressed form, systems, functions, applications, software architecture, technology, idea, algorithm, concepts, innovations, discoveries, processes, techniques, databases or information contained therein, including without limitation any documentation, trade secrets and know-how related to any of the foregoing; (b) a party’s product plans, designs, costs, prices and names, non-published financial information, marketing plans, distribution lists, business opportunities, personnel, research, development or know-how; (c) any information designated by the Disclosing Party which, at the time of disclosure, is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential as confidential in writing or, if disclosed orally would; (d) the terms and conditions of this EULA, and (e) any information that the Receiving Party knows is confidential or proprietary or would be reasonably expected to be confidential or proprietary based on the nature of such information; provided, however that Confidential Information will not include information that: (i) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the Receiving Party; (ii) is known and has been reduced to tangible form by the Receiving Party at the time of disclosure and is not subject to restriction; (iii) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; (iv) is lawfully obtained from a third party who has the right to make such disclosure; or (v) is released for publication by the Disclosing Party in writing.
6.03 Return of Confidential Information. The Receiving Party shall return to the Disclosing Party, destroy or erase all Confidential Information of the Disclosing Party in tangible form: (a) upon the written request of the Disclosing Party; or (b) upon the expiration or termination of this EULA, whichever comes first, and in both cases, upon request from the Disclosing Party, the Receiving Party shall certify promptly in writing that it has done so.
Section 7. LIMITED WARRANTY AND DISCLAIMER
7.01 (a) Limited Warranty. UWS warrants that, for a period of 90 calendar days after Software Acceptance (the “Warranty Period“), a) the UWS Software will materially conform to the functional specifications in the Documentation and that the media on which the software is delivered will be free of defects, and b), the UWS Integrated Software will conform to requirements set out in the agreed upon Statement of Work. In the event of nonconformity of the UWS Software to such functional specification or of the UWS Integrated Software to the Statement of Work, End User shall notify UWS or Reseller and provide same with information in written or electronic form. End User expressly agrees that UWS does not represent or warrant that the UWS Product will meet the requirements of End User, that the UWS Product will operate in the combinations which may be selected for use by the End User (unless such combination is contemplated by the Documentation or the reasonable and ordinary use of the UWS Product), or that the operation of the UWS Product will be uninterrupted or error free. No warranty express or implied is offered on UWS Product that has been used without complete payment for all associated fees to UWS or Reseller related to the UWS Product at issue. Third Party Software shall be subject to any warranties UWS receives.
7.02 UWS further represents and warrants that: (i) it has the authority to enter into and perform under this EULA; (ii) it has the right to give End User the rights set forth in this EULA and in each UWS Product; (iii) it has the right to provide any and all information, products, software and/or services under this EULA to End User, for use in accordance with this EULA; and (iv) it has the right to grant any of the software licenses granted under the terms of this EULA or the applicable Statement of Work to End User.
7.03 UWS’s sole liability and End User’s exclusive remedy with respect to breach of the Limited Warranty set out in Sections 7.01 and 7.02 will be limited to the prompt error correction or UWS Product replacement, or, if neither is, in UWS’s opinion, commercially reasonable, refund of the license fee received by UWS or Reseller.
7.04 Services Warranties. UWS represents, warrants and covenants that all Services shall be performed (a) in accordance with the requirements of this EULA including any requirements set forth in the applicable Order; and (b) in a good and workmanlike manner, and (c) will not, unless otherwise agreed between the parties contain any open source software that requires: (i) any software that requires as a condition of use, modification and/or distribution of such software, that such software: (A) be disclosed or distributed in source code form; (B) be licensed for the purpose of making derivative works; and (C) can be redistributed only free of enforceable intellectual property rights (e.g., patents); and/or (ii) any software that contains, is derived in any manner (in whole or in part) from, or statically or dynamically links against any software specified under (i).
7.05 Exclusions. THE WARRANTIES SET FORTH IN SECTION 7 ARE THE ONLY WARRANTIES PROVIDED BY UWS FOR THE UWS SOFTWARE, SERVICES AND ANY UPKEEP CUSTOMER SUPPORT. TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, UWS DISCLAIMS, ON BEHALF OF ITSELF AND ITS LICENSORS AND RESELLERS, ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS (i) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, QUALITY, TITLE, NON-INFRINGEMENT, OR SUCCESSFUL SYSTEM INTEGRATION OR COMPATIBILITY, (ii) THAT THE UWS SOFTWARE ARE ERROR-FREE OR SECURE, (iii) THAT OPERATION OF THE UWS PRODUCT WILL BE SECURE OR UNINTERRUPTED, (iv) ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR (v) THAT THE UWS PRODUCT OR SERVICES WILL MEET END USER’S REQUIREMENTS. FOR GREATER CERTAINTY, UWS OR ITS RESELLERS SHALL NOT BE RESPONSIBLE FOR LOSS OF DATA OR UNAUTHORIZED ACCESS OF DATA RESULTING FROM END USER’S USER OF THE UWS PRODUCTS OR THE SERVICES, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY RELATING TO DATA OF AN END USER USED, INCORPORATED OR OTHERWISE ASSOCIATED WITH THE UWS PRODUCTS.
7.06 Indemnity. (a) Subject to Section 7.05, UWS will defend or settle any claim brought or allegation made against End User by a third party that UWS Software, Services or Documentation, or End User’s use or deployment of the UWS Software, Services or Documentation infringes upon, misappropriates or otherwise violates such party’s trademark, copyright or patent valid in Canada, the United States or the United Kingdom. UWS’ obligations under this Section 7.06 are subject to the conditions that End User (i) notifies UWS in writing of any such claim promptly upon learning of it (provided UWS’ indemnification obligations hereunder shall only be lessened to the extent End User’s failure to provide such notice materially impacts UWS’ ability to defend against such claim) and allows UWS to have sole control of the defense and all related settlement negotiations, and (ii) cooperates with UWS, at UWS’ expense, in defending or settling the claim. UWS has no obligation with respect to any settlement, payment or admission made, or cost or expense incurred, without UWS’ prior written consent. This Section 7.06 states UWS’ entire liability and End User’s exclusive remedy for any actual, threatened or alleged infringement claims, actions, suits, and proceedings relating to the subject matter of this EULA.
(b) UWS may, at its sole discretion, elect to defend, compromise, or settle the claim, in which event End User shall provide all reasonable available information, assistance, and authority to enable UWS to do so, provided UWS reimburses End User for such activity. End User may elect nonetheless to continue to defend those aspects of the action against End User that End User deems, in its sole discretion, to be necessary. In such event, UWS shall provide all reasonable available information, assistance, and authority to enable End User to do so, provided End User reimburses UWS for such activity, and further provided that UWS shall not be responsible for indemnifying End User for any damages, costs, or fees associated with such elected defense. End User shall have no authority to settle any claim on behalf of UWS.
7.07 Exceptions. UWS will have no liability for any claim or allegation that is based upon:
(a) use of a version of the UWS Product that has been withdrawn from ongoing support via a publically available ‘End of Support’ notification; or
(b) any modification of the UWS Product that was not made by UWS.
(c) the use or combination of the UWS Product with software, hardware, data or processes not provided by UWS, if such alleged infringement would not occur without such combination.
UWS will not be liable for damage, loss, or other liability to the extent the same falls within the scope of liability for which End User is responsible under Section 7.06.
7.08 Mitigation.
If the UWS Product or any portion or component thereof is held or is believed by UWS to infringe upon a third party’s rights, UWS may, at its option and expense:
(d) obtain for End User a license to continue using such item; or
(e) modify the UWS Product so that it becomes non-infringing; or
(f) if neither of the foregoing alternatives is reasonably available, and with End User’s consent (which shall not be unreasonably withheld), terminate End User’s license to use such UWS Product and refund to End User a prorated portion of the License Fees paid by End User therefor.
7.09 Indemnification by End User.
End User will defend or settle any claim brought or allegation made against UWS or a UWS Affiliate by a third party (i) arising out of the combination, operation or use of the UWS Software with any other item, (ii) arising out of the overlaying or other modifications by End User of third-party content; or (iii) based on use of the UWS Software by or on behalf of End User after UWS has notified End User of its belief (supported by reasonable basis) that such activities may constitute an infringement of the intellectual property rights of a third party. End User’s obligations under this Section 7.09 are subject to the conditions that UWS (i) notifies End User in writing of any such claim promptly upon learning of it (provided End User’s indemnification obligations hereunder shall only be lessened to the extent UWS’ failure to provide such notice materially impacts End User’s ability to defend against such claim) and allows End User to have sole control of the defense and all related settlement negotiations, and (ii) cooperates with End User, at End User’s expense, in defending or settling the claim. End User has no obligation with respect to any settlement, payment or admission made, or cost or expense incurred, without End User’s prior written consent.
7.10 Exclusion of Certain Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR A BREACH OF SECTION 6 OR IN THE CASE OF END USER, A BREACH OF SECTION 4.01 OR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 7.09, NEITHER PARTY WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY (i) LOSS OF PROFITS, REVENUE, SALES, BUSINESS, BUSINESS REPUTATION, GOODWILL OR DATA, (ii) INTERRUPTION OF ANY BUSINESS, OR (iii) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH IN THIS AGREEMENT.
7.11 Claims by Third Parties. NEITHER PARTY NOR ITS AFFILIATES WILL BE LIABLE FOR ANY CLAIM AGAINST THE OTHER PARTY BY ANY THIRD PARTY, EXCEPT AS PROVIDED IN SECTION 7.06 or 7.09.
7.12 Limit of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 7.06, SECTION 7.09 AND FOR BREACH OF SECTION 6, THE TOTAL LIABILITY OF EITHER PARTY FOR DAMAGES OR CLAIMS IN ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY USED, WILL NOT EXCEED THE FEES PAID OR PAYABLE BY END USER TO UWS (OR A RESELLER) UNDER THIS AGREEMENT AS OF THE DATE ON WHICH THE CLAIM ARISES.
7.13 Acknowledgement. The parties acknowledge that the terms and conditions of this EULA, including without limitation the amount of fees payable hereunder, are in consideration of the allocation of risks between End User and UWS and the limitations and exclusions of liability set out herein.
7.14 Limitation for Illicit Code. UWS assumes no liability whatsoever or any responsibility for protection against any type of Illicit Code that is not specifically delivered to End User as part of the UWS Products, specifically but not limited to:
(a) Email Support. End User is responsible for all email filtering, specifically including virus checking and SPAM filtering. In addition, End User is responsible for all archiving and backing up of all email messages that are processed by the System.
(b) Web Support. End User is responsible for all protection against any Illicit Code that may be contracted by the opening or pushing of Web pages to either End User’s System or from End User to its customers.
(c) VoIP Support. End User is responsible for all protection against any Illicit Code that may be contracted by the delivery of a Voice over IP (“VOIP”) data packet to the End User System.
(d) Other Data Channels. For customers who use alternate data channels, specifically including but not limited to Chat, SMS, Social Media, WebRTC, Skype, or Facebook, End User is responsible for all protection against any Illicit Code that may delivered in any format via these data channels or as a result of these data channels usage.
For the purposes of this section “Illicit Code” means any software disabling procedure or other materials, including but not limited to any key, node, lock, instruction, time-out function, time bomb, virus, device, malicious logic, worm, Trojan horse, “back door”, bug, error, defect, or trap door that: (i) might disable, limit or affect the UWS Product functionality or operation; (ii) may cause or allow the UWS Product to replicate, transmit or activate itself; or (ii) may cause or allow the UWS Product to access, disable, alter, damage, or erase any computer network, server, data, or application services.
7.15 Survival. The provisions of this section shall survive termination of this EULA.
Section 8. INTELLECTUAL PROPERY
8.01 UWS Products.End User agrees that all intellectual property, including without limitation any improvements, inventions, industrial designs, literary, artistic or musical works, computer programs and other creations, data, topographies, concerns and trade secrets, copyrights, trademark rights and patent rights (collectively, “Intellectual Property”) embodied in the UWS Product, is the exclusive property of UWS or its suppliers. UWS agrees that any pre-existing or independently created Intellectual Property owned by End User that is embodied in the Intellectual Property will remain the property of End User. End User hereby grants to UWS a non-exclusive license to use, modify and access any End User Intellectual Property solely to provide the UWS Products and Services set out in the applicable Order Form.
8.02 UWS Integrated Software. UWS and End User agree that, unless otherwise set forth in a mutually executed amendment to this EULA, UWS will retain ownership of Intellectual Property rights in any UWS Integrated Software, excluding any Confidential Information or pre-existing Intellectual Property of End User.
Section 9. TERM AND TERMINATION
9.01 Term. This EULA will remain in effect for the duration of all licenses and services purchased hereunder. Expiration of any license or term of service hereunder shall not affect this EULA as applies to any other licenses or services hereunder.
9.02 Termination by UWS. UWS may terminate this EULA and any license granted hereunder by written notice if End User:
(a) breaches its obligations under Section 4.02 or 6 (Confidentiality);
(b) materially breaches any other term of this EULA and fails to cure such breach within thirty (30) days following written notice from Licensor;
(c) admits in writing its inability to pay its debts as they become due, applies for or consents to the appointment of a trustee, receiver, or other custodian, makes a general assignment for the benefit of its creditors, or initiates any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency law; or
(d) becomes subject to any bankruptcy, dissolution or liquidation proceedings which are not dismissed or resolved within one-hundred twenty (120) days.
9.03 Effects of Expiration or Termination. Upon expiration of this EULA or termination for any reason whatsoever:
(a) all licenses granted to End User hereunder shall terminate;
(b) End User will immediately cease using the UWS Product; and
(c) End User will promptly destroy (or return if requested by UWS) all copies of the UWS Software in End User’s possession or control and, if requested by UWS, provide a certificate stating that End User has done so, signed by an officer of End User.
9.04 Other Remedies and Consequences. The termination or expiration of this EULA or any license granted hereunder does not prevent or limit either party from pursuing any other remedy or remedies available to it at law or equity, including without limitation injunctive relief, nor does such termination or expiration relieve End User of any remaining obligation hereunder to pay amounts otherwise due to UWS. Except to the extent otherwise provided in this EULA, upon expiration or termination of this EULA for any reason, each party will promptly return or destroy (at the other party’s option) all copies of the other party’s Confidential Information in such party’s possession or control.
Section 10. MISCELLANEOUS
10.01 Government Rights. The Product shall be deemed “commercial computer software” and “commercial computer software documentation” pursuant to DFAR Section 227.7202 (and any successor sections). The use of the Product including, but not limited to, its reproduction and display, by the United States of America and/or any of its instrumentalities, regardless of form (collectively “Government”) shall be governed by this EULA
10.02 Severability If any part of this EULA is unenforceable because of any rule of law or public policy, such unenforceable provision shall be severed from this EULA, and this severance shall not affect the remainder of this EULA.
10.03 Entire Agreement. This EULA, including all exhibits, schedules and attachments, constitutes the entire agreement between the parties with respect to the subject matter of this EULA and supersedes all previous negotiations, proposals, commitments, and understandings of any nature whatsoever. There are no representations or warranties with respect to the subject matter of this EULA other than those expressed herein. No consent, modification or change of terms of this EULA shall bind either party unless in writing signed by both parties. The terms of this EULA and the licenses herein shall prevail notwithstanding any conflicting terms or legends which may appear on, with or in the UWS Products or Materials. In addition, any notices, legends, shrink-wrap, browser wrap, click wrap or other agreement or other terms, whether additional, different or inconsistent with those of this EULA, presented by UWS in connection with the UWS Products or Materials shall be void and of no effect even if presented or purportedly accepted after the date of this EULA and will not be considered an amendment to this EULA unless expressly set forth as such, in writing signed by both parties, and specifically referencing this EULA and the section(s) being modified.
10.04 Waiver. The failure of either party to insist in one or more instances upon strict performance of the covenants of this EULA, or to exercise any right or option herein contained, shall not be construed a waiver, or relinquishment for the future, and such covenant and/or right or option shall remain and continue in full force and effect. Any waiver shall be effective only if made in writing.
In addition, for End User’s using Upstream Works AI Models, the following waiver shall apply: AI Disclaimer and Contractual: Accuracy, Limitations, and Potential Biases Regarding Use of Hugging Face AI Models.
10.05 Orders. Each Order shall form an integral part of this EULA. No terms contained in any Order (other than the Products and/or Services and associated quantities or durations listed therein), or any acceptance or confirmation or similar document issued by Company, shall be binding on the parties unless specifically agreed to in writing by both parties.
10.06 Assignment. This EULA and the License granted hereunder may not be assigned, sub‑licensed or otherwise transferred by either party under any circumstances whatsoever without prior written consent from the non-assigning party, except that: (a) End User may assign this EULA to an Affiliate; and (b) either party may assign this EULA in connection with a merger, reorganization or sale of all or substantially all of such party’s assets, provided that the surviving or acquiring entity is not a material competitor of the non-assigning party, the non-assigning party is notified of the transaction prior to the closing of the transaction, the surviving entity or purchase expressly assumes this EULA and Company’s obligations hereunder, and, if requested by the non-assigning party, acknowledges such assumption in writing to the non-assigning party. Any permitted assignee or any successor-in-interest of a party shall take assignment or assumption subject to all of the terms and conditions of this EULA. Any purported assignment of this EULA in contravention of this Section 9.07 shall be null and void and, without limiting any other rights or remedies available under this EULA, at law or in equity, the non-assigning party may immediately terminate this EULA without further liability.
10.07 Governing Law and Dispute Resolution.This EULA and all schedules shall be governed a) in accordance with the laws of the State of New York and the federal laws of the United States applicable therein if the End User Site is within the United States, b) in accordance with the laws of the United Kingdom and Wales if the End Use Site is within the United Kingdom, Ireland or Continental Europe, or c) accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and the federal laws of Canada applicable therein if the End User Site is anywhere else. Any trial by jury shall be waived by the parties to the greatest extent permitted by applicable laws.
10.08 Notices. All notices required hereunder shall be in writing and shall be deemed to have been given and received when delivered in person or upon receipt (or refusal) when mailed by registered or certified mail, return receipt requested, postage prepaid, or by End User Priority overnight delivery service, to the respective address first set forth above or as provided herein.
10.9 Independent Contractors; Beneficiaries. In performing their obligations, and exercising their rights, under this EULA, the parties shall be independent contractors, and neither shall have the authority to bind or act as agent for the other. No partnership, joint venture, or other business organization is created by this EULA. Except as otherwise expressly provided herein, there are no third party beneficiaries of this EULA.
10.10 English. This EULA is in the English language only, which language is controlling in all respects, and no versions in any other language will be binding on the parties.
10.11 Compliance with Laws. Each of the parties will comply with all applicable laws and regulations. Without limitation, End User will not import, export, or re-export, directly or indirectly, any UWS Product to any country in violation of the laws and regulations of any applicable jurisdiction, including without limitation the United States of America. UWS represents and warrants that it is not required to obtain approvals from any governmental entity to execute this EULA or to perform its obligations hereunder.
10.12 Severability, Waiver. The invalidity or unenforceability of any provision of this EULA shall not affect the remaining provisions of this EULA, which will remain in full. No waiver of any default or breach of a provision hereof shall be binding unless in writing, nor shall the waiver of any default or breach affect a party’s rights with respect to any other or future default or breach.
10.13 Force Majeure. Neither party will be liable for failure or delay in the performance of its obligations, other than payment of money, due to strike, riot, fire, flood, natural disaster, or other cause beyond such party’s control, provided that such party gives prompt written notice of such condition to the other party and resumes its performance as soon as practicable. If either party’s performance under this EULA is delayed for one-hundred and eighty (180) days or more, the other party may terminate this EULA.
10.14 Cumulative Remedies. Except as expressly indicated, no right or remedy conferred by this EULA is exclusive of any other right or remedy available at law or in equity.
10.15 Interpretation. Section headings are for convenience only and shall not be deemed to be part of this EULA. Use of the terms “hereunder”, “herein”, “hereby”, and similar terms refer to this EULA.
10.16 Execution. This EULA may be signed in counterparts, each of which will be deemed an original, but all of which together will constitute a single instrument.
10.17 Third Parties. For parties located in the United Kingdom, except as expressly provided in this EULA, a person who is not a party to this EULA may not enforce any of its terms under the UK Contracts (Rights of Third Parties) Act 1999.
10.18 Data Protection. For parties located in the United Kingdom, each party must comply with all Data Protection Requirements that apply to it in relation to any personal data (as defined in the UK Data Protection Act 2018) processed in accordance with this EULA.
Updated: October 21, 2024