NUMTRA PLATFORM/SERVICE END USER LICENSE AGREEMENT
LAST UPDATE: October 23, 2019
THIS AGREEMENT BETWEEN YOU AND NUMTRA GOVERNS THE USE OF NUMTRA PLATFORM AND/OR SERVICE. ANY USE OF THE PLATFORM OUTSIDE THE SCOPE OF THE TERMS AND CONDITIONS IS PROHIBITED. BY DOWNLOADING, INSTALLING, OR USING THE PLATFORM, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AS "CUSTOMER". IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE. IF YOU ARE USING THE PLATFORM AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP, OR OTHER ENTITY, YOU ACKNOWLEDGE THAT YOU ARE AUTHORIZED TO SIGN AND BIND THE ENTITY TO ACCEPT THE TERMS OF THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE ON THE DATE YOU FIRST DOWNLOAD THE SOFTWARE ("EFFECTIVE DATE").
1. Definitions. Capitalized terms not otherwise defined in this Agreement are defined as follows:
"Documentation" means end user or technical documentation provided with the Platform.
"Intellectual Property Rights" means patents, trademarks, service marks, trade names, registered and unregistered designs, trade or business names, copyright, database rights, design rights, rights in confidential information, and any other intellectual property rights regardless of registration, including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which exist now or will in the future exist in any part of the World.
"Internal Business Purposes" means use of the Software solely for Customer's internal business projects, and deploying such projects in production mode. This definition does not include providing services using the Software to third parties.
"Software" means the Platform or Service code of Numtra's proprietary edition computer program, together with any modifications.
2. Software Use and License Grant
2.1 License. Numtra grants to Customer a non-exclusive, non-transferable, and non-sublicensable license to: (i) install a single occurrence of the Software on a single virtual machine owned or controlled by Customer or use the Software as a pre-built image run on a server (if applicable); and (ii) use the Software to process data owned, licensed, or controlled by Customer for Internal Business Purposes in accordance with the Documentation and this Agreement. Numtra may, at its sole discretion, grant to Customer a nonexclusive, non-transferable, non-sublicensable limited license to a trial of the edition of the Software for a period of up to 4 weeks, which may be extended at Numtra's discretion.
2.2 Restrictions. Customer will not (and will not permit any third party to): (i) copy or use the Software other than allowed by this Agreement; (ii) use the Software with unauthorized equipment or products; (iii) modify the Software, create derivative works based upon the Software, reverse engineer, decompile, decrypt, disassemble, or otherwise reduce the Software to human-readable form; (iv) create programs similar or identical to the Software; (v) use the Software in violation of any applicable laws; (vi) distribute, sell, license or otherwise provide the Software to unauthorized third parties; (vii) install the Software on systems not under control by Customer, or use or permit the Software to be used to perform services for third parties, including as a service bureau, SaaS, time sharing basis or otherwise; (viii) disclose the results of any performance or functional evaluation of the Software including benchmark results or competitive analyses; or (ix) alter or remove proprietary notices or legends contained on or in the Software. No implied licenses are granted by Numtra under this Agreement. Customer is responsible for all use of the Software by anyone accessing the Software using User credentials.
3. Confidentiality. "Confidential Information" means non-public data, information and other materials regarding the products, software, services, or business of Numtra provided to Customer, where such information is marked or otherwise communicated as "proprietary" or "confidential," or by its nature be reasonably considered confidential and/or proprietary. The parties agree that the Software (and any performance data, benchmark results, and related technical information), the Documentation, Numtra's pricing information is Confidential Information. Confidential Information shall not include information which: (i) is already known to the Customer prior to disclosure by Numtra; or (ii) becomes publicly available without fault of the Customer. Customer agrees to: (i) use the Confidential Information of Numtra only to perform or exercise rights granted under this Agreement; (ii) treat all Confidential Information of Numtra in the same manner as it treats its own proprietary information, but in no case with less than reasonable care; and (iii) disclose Numtra's Confidential Information only to employees and contractors of Customer who have a need to know such information, provided that any recipient shall be subject to obligations of confidentiality substantially similar to the terms of this Agreement. Customer shall be liable for the non-compliance of an employee or contractor.
4. Ownership. The Software is licensed and not sold or for perpetual use. Numtra and its licensors own and retain all title, Intellectual Property Rights, and interest in and to the Software and all copies or portions, and any derivative works thereof. Suggestions or feedback provided by Customer to Numtra relating to the Software will be Numtra's property and deemed Confidential Information of Numtra, and Customer consents to assignment of suggestions and feedback to Numtra.
5. Warranties. Disclaimer. The Software is provided "as is." Customer assumes sole responsibility for any results obtained from using the Software. Numtra disclaims any and all warranties, conditions or representations (whether express or implied, oral or written), including without limitation any implied warranties of title, non-infringement, information, merchantability or fitness for any particular purpose (whether or not Numtra knows or has reason to know of such purpose), whether arising by law, custom, usage in trade or by course of dealing. Numtra and its licensors do not warrant the results of any use of the Software, or that it is bug or error free, or that its use will be uninterrupted. Numtra does not warrant that the Software or any equipment, system, or network on which the Software is used will be free of vulnerability to intrusion or attack. Numtra will in no way be held liable for any inability of, error, or fault of Customer or any third party appointed by Customer to install the Software. Data uploaded to the Software and any third-party databases, software, hardware, or services connecting from or to the Software (collectively, "Third Party Materials") are not the responsibility of Numtra and Numtra does not make any warranties or promises with respect to the Third-Party Materials.
6. Limitation on Liability.
6.1 Exclusion of Non-Direct Damages. In no event will Numtra (or Numtra's licensors or suppliers) be liable for special, incidental, consequential, punitive, exemplary or tort damages (including, without limitation, any damages resulting from loss of use, data, profits, or business) arising out of or in connection with the Software or this Agreement, whether or not Numtra has been advised of the possibility of such damages.
6.2 Maximum Liability. In no event will the cumulative liability of Numtra, whether in contract, tort, or otherwise, arising out of or in connection with the Software or this Agreement, exceed $500. The limitation on liabilities set forth herein will apply to all claims in aggregate.
7. Term and Termination.
7.1 Term. This Agreement is effective as of the Effective Date and will remain in effect for until it is terminated by either party at any time or when Customer ceases to use the Software. This Agreement automatically terminates upon any breach by Customer. Upon termination, Customer will destroy all copies of the Software in its possession or control. 7.2 Survival. Any terms that by their nature, including but not limited to Sections 1, 2.2, 3, 4, 5, 6, 7, and 8, extend beyond the Agreement remain in effect until fulfilled, and apply to successors and assignees.
8. General
8.1 Open Source. The Software uses components subject to third party open source software licenses ("Open Source Software"). A list of current Open Source Software is provided at https://www.numtra.com/thirdparty.html. To the extent necessary, the license accompanying the Open Source Software will apply in lieu of the terms of this Agreement specifically with respect to such Open Source Software.
8.2 Marketing. Numtra has the right to disclose that Customer is a customer of Numtra and use Customer's name and logo for sales and marketing materials including on Numtra's website.
8.3 Choice of Law; Venue. This Agreement is governed by and construed in accordance with the laws of the State of Washington, without regard to conflicts of laws rules. The exclusive jurisdiction and venue for actions arising under this Agreement will be the State and Federal courts in Washington. The Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods will not apply.
8.4 Entire Agreement; Modifications. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of the Agreement. Except as expressly provided herein, this Agreement supersedes and cancels all previous or contemporaneous communications, proposals, representations, collateral warranties, collateral contracts, statements, assurances, undertakings, and agreements of any nature (whether written or oral) relating to the subject matter contained herein. Each party acknowledges and agrees that in entering into this Agreement, it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings which were made by or on behalf of the other party in relation to the subject matter of this Agreement at any time before its execution (together "Pre-Contractual Statements"), other than those which are set out in this Agreement. Each party waives all rights and remedies which might otherwise be available to it in relation to Pre-Contractual Statements. Nothing in this Section excludes or restricts the liability of either party arising out of pre-contractual fraudulent misrepresentation or fraudulent concealment. This Agreement may only be amended by a writing executed by both parties.
8.5 Severability. If any provision of this Agreement is invalid or unenforceable, the remaining provisions remain in full force and effect.
8.6 Waiver. A waiver of any right or remedy under this Agreement or by law is only effective in writing. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
8.7 Assignment. Neither party may assign any of its rights or obligations without the prior written consent of the other party (not to be unreasonably withheld). However, either party may assign their rights and obligations under this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Numtra may also assign rights and obligations at any time to an affiliate. Any attempt to assign rights or obligations under this Agreement in breach of this section will be void. Numtra may delegate any of its obligations hereunder, provided it shall remain fully liable and responsible for its delegates' actions or inactions in violation of this Agreement. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
8.8 Notice. All notices under this Agreement must be in writing and sent to business addresses specified in this Agreement, unless a party designates otherwise. For notice purposes, Numtra's address will be: Numtra Inc., 8201 164th Ave NE, Suite 200, Redmond, WA 98052.
8.9 Independent Contractors. The parties are independent contractors for purposes under this Agreement, and this Agreement does not create any partnership, joint venture, employment, franchise, or agency relationship.
8.10 Force Majeure. Neither party will be liable for any delay in performance due to an act of God, nature, public enemy, terrorism, earthquake, flood, fire, government order, riot, civil disobedience, labor strife, or any other causes beyond its reasonable control, and without its fault or negligence, including, by way of example and not limitation, a shortage of supplies or personnel, interruption of electricity, communication, or transportation. The party whose performance is delayed will use commercially reasonable efforts to notify the other party and minimize its effect.
8.11 Export. The Software and Documentation, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, or other export or import laws and regulations in other jurisdictions. Customer agrees to comply with all applicable laws and regulations.
8.12 Data Privacy. Each party undertakes to process personal data in accordance with all applicable laws and regulations, and in particular, when applicable, as of October 23, 2019, with Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such personal data.
8.13 Trial Licenses. For licenses to Licensed Products for a trial basis only ("Trial License"), the following license terms and restrictions shall apply:
8.13.1. Subject to the terms and conditions of this License Agreement, Numtra grants you a limited, worldwide, royalty-free, non- assignable and non-exclusive license to use the Licensed Product solely for Licensee's temporary trial and internal evaluation use only in a non-production environment. In order to preserve and protect its rights under applicable law, Numtra is not giving, transferring or selling Licensee any ownership rights to the Licensed Product, which are owned by or licensed to Numtra. Third Party Licensor specifically retains title to all data and tools owned by them. The Licensed Product shall not be resold or otherwise disclosed to any third party without the prior written consent of Numtra, and Licensee shall not copy, decode, reverse engineer or use the Licensed Product for any other purpose. Licensee may use the Licensed Product licensed from Numtra solely in connection with Licensee's own evaluation efforts, and Licensee shall not resell, sublicense or otherwise publicly disclose or disseminate any output of the Licensed Product. Licensee shall not place the Licensed Product on the Internet or any similar network or network service or enter into any direct, reseller, distribution or third party arrangements for distribution as, but not limited to, electronic, on line, subscription, "fee for service" or general, uncontrolled availability to the public without a prior written agreement with Numtra.
8.13.2 The following restrictions apply to Trial Licenses:
A. PER USER LICENSE ONLY: USES PERMITTED. Pursuant to this License Agreement, the Licensed Product is hereby licensed for a thirty (30) day trial and evaluation period for use only on a single virtual machine in Azure or other public cloud for each user License. The Licensed Product may be installed onto a virtual machine in Azure or other public cloud. In addition, you agree to use reasonable efforts to protect the Licensed Product from unauthorized use, reproduction, distribution or publication. All rights not specifically granted in this License Agreement are reserved by Numtra.
B. RESTRICTIONS AND LIMITATIONS. For the Trial License, Numtra shall provide to Licensee support and consultation via telephone or email during the hours of 10 am and 5 pm, PST, Monday through Friday (excluding statutory holidays), from Numtra designated offices to assist Licensee in resolving problems Licensee has encountered in the use of the Licensed Products, and in accordance with the Technical Support Guidelines and Policies available at http://www.numtra.com/supportguidelines (the "Support Policies"). The Support Policies may be updated from time to time by Numtra in its discretion.