End User License Agreement

IMPORTANT: THIS END USER LICENSE AGREEMENT (OR “EULA”) IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE (“YOU” ) AND CALSOFT. BY INSTALLING AND USING THE SOFTWARE, YOU ACCEPT THE SOFTWARE AND AGREE TO THE TERMS OF THIS AGREEMENT. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. BY INSTALLING AND/OR USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BIND THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE TO THESE TERMS, THEN DO NOT INSTALL AND/OR USE THE SOFTWARE AND RETURN THE SOFTWARE TO YOUR PLACE OF PURCHASE. This End-User License Agreement (this “Agreement”) is an agreement between the individual or business entity obtaining a license for the Software according to the terms of this Agreement (“you”), and Calsoft Systems (“Calsoft”). Read the terms and conditions of this Agreement carefully, as it becomes effective upon the earlier of (a) issuance of a License Key to the Software, (b) your first use of the Software, or (c) entering into your Calsoft Order Form. 1. Definitions “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with, you. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. “Authorized Calsoft Reseller” means a business partner that has entered into a contractual relationship with Calsoft to sell Calsoft software licenses and services to end users. “Calsoft Intellectual Property” means the Software, Documentation, and all trademarks and service marks owned or used by Calsoft, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. “Calsoft Order Form” means the Calsoft Order Form you signed when you purchased your Perpetual License or Subscription License from Calsoft or your Authorized Calsoft Reseller. “Confidential Information” means all your and Calsoft’s information, material and data or any third party (i) labeled or designated in writing as confidential or proprietary, (ii) which is verbal or otherwise intangible and the disclosing party advises the receiving party is proprietary or confidential or (iii) which, in view of the nature of such information and/or the circumstances of its disclosure the receiving party knows or reasonably should know is confidential or proprietary, including, but not limited to, software, information relating to financial data, plans, forecasts, intellectual property, methodologies, algorithms, agreements, market intelligence, technical concepts, customer information, strategic analyses and internal developments. Confidential Information does not include information (i) which is or becomes publicly known without any fault of or participation by the receiving party, (ii) was in receiving party’s possession prior to the time it was received from disclosing party or came into receiving party’s possession thereafter, in each case lawfully obtained from a source other than disclosing party and not subject to any obligation of confidentiality or restriction on use, or (iii) is independently developed by the receiving party by persons not having exposure to disclosing party’s Confidential Information. “Documentation” means the user manuals accompanying the Software. “Employee” means you, and your Affiliates, employees, consultants, contingent workers and independent contractors whose business record(s) are or may be managed by the Software or for whom a license for the Software has been purchased. “Fees” shall have the meaning set forth in Section 4. “License Key” means the data string provided by Calsoft to you that, upon installation, permits the use of the Software in a Production environment in accordance with your Calsoft Order Form. “Perpetual License” means a license for which you pay a one-time Fee to obtain the right to use and deploy the Software, whether on a personal computer at your premises or at your preferred hosting provider on a server. “Production” means the use by you or your Employee of the Software. “Software” means Calsoft’s proprietary software, including any modules or add-ons you may elect to install, subscribe to or use. For purposes of this Agreement, the “Software” includes any Updates you are entitled to install or use. “Software Maintenance Plan” means an optional maintenance plan (if available) for the Software provided by Calsoft and purchased from Calsoft or your Authorized Calsoft Reseller. “Subscription License” means a license for which you pay a periodic Fee to obtain the right to use and deploy the Software, whether on a personal computer at your premises or at your preferred hosting provider on a server. “Third Party Application” means applications licensed from third parties which connect or integrate with, or interoperate with the Software. “Updates” means any corrections and enhancements including hot fixes, patches, updates, changes, and upgrades to the Software if and when made available to end-users. Updates do not include new modules or add-ons to the Software which include new functionality for which Calsoft charges a separate fee to its end- users. “Your Input” means suggestions, enhancement requests, recommendations or other feedback provided by you and your Employees and relating to the functionality of the Software. 2. License 2.1 Nature of License. Subject to your Calsoft Order Form, this Agreement is for the license of the Software on one of the following basis: a. Perpetual License, or b. Subscription License 2.2 Grant of License. Calsoft hereby grants to the you a limited, non-assignable, non-transferrable and non-exclusive license to use and operate the Software in accordance with the terms and conditions set out in this Agreement solely for your own personal or internal business operations. The license is effective upon installation by you and remains in force until termination by either you or Calsoft. 2.3 Temporary Limited License. In the event Calsoft has provided the Software to you (a) to evaluate the Software, (b) as a Calsoft Authorized Reseller, not for resale, (c) as an institution of higher education, for use by staff and/or students, without Fees, or (d) when otherwise no Fees are charged for use of the Software, then, subject to your compliance with the terms and conditions of this Agreement, Calsoft grants you a limited, non-assignable, non-transferrable and non-exclusive license to use and operate the Software solely for the purpose(s) agreed upon by Calsoft and you. The license granted under this Section 2.3 shall be limited as follows: (a) you may use the Software only on the number of computers and networks specifically authorized by Calsoft; (b) you may use the Software only for the purposes expressly authorized by Calsoft and subject to such further restrictions agreed upon by Calsoft and you; (c) the license grant may be terminated by Calsoft upon ten (10) days written notice; and (d) the Software and any related documentation is provided “As Is” without warranty of any kind, either express or implied, including, without limitation, the implied warranties or merchantability, fitness for a particular purpose. 2.4 Scope of Use. You or your Affiliates may use the Software for each License Key you purchased. You may also use a reasonable number of copies of the Software for development, testing, archival purposes, and training on non-production personal computers or servers. No other right or license to use of the Software is granted or implied. You are responsible for ensuring your Affiliates comply with the terms of this Agreement. Except as otherwise expressly provided in this Agreement, you may not: a. use the Software, or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by this Agreement; b. permit any person other than authorized users who possess legitimately purchased or obtained License Keys and authorized Affiliates to use the Software; c. reverse engineer, decompile or disassemble the Software; d. publish the Software for others to copy; e. rent, lease or lend the Software; or f. use the Software for commercial purposes not intended by the terms of this Agreement. You may make copies of and modify the Documentation for the purpose of internal employee training. 2.5 Operating Environments. You acknowledge that Calsoft licenses the Software for use with operating environments (i.e. servers, personal computers, peripherals and operating systems) supported by Calsoft as set forth in the Documentation and shall not be liable for any failure of the Software to perform in operating environments other than those identified in the Documentation. 2.6 Software Updates. In the case of Subscription Licenses, so long as you are current on your Subscription Fees, Calsoft will provide you with Updates at no additional charge. In the case of Perpetual Licenses, Updates will be provided to you as long as you are currently covered by an optional Software Maintenance Plan. Updates are only available if you have, or have upgraded to, a supported version of the Software. In the case of a Perpetual License, if your Software Maintenance Plan lapses, you may be charged fees for the lapsed period, reinstatement fees and penalties in order to purchase a new Software Maintenance Plan. 2.7 License Keys. The Software, when used in production, requires a License Key to install or access it. You are responsible for the use of any License Key(s) assigned to you and must not share the License Key(s) with any third party. If your License Key is stolen, or if you suspect any improper or illegal usage of your License Key, you should promptly notify Calsoft of such occurrence. A replacement License Key will be issued to you and the compromised License Key will be disabled. 2.8 Use Reporting. Calsoft reserves the right to gather data on usage of the Software to ensure that the Software is being used in accordance with the terms of this Agreement and the type of license purchased by you. The Software may monitor user counts, transaction volumes, resource level utilization, License Key numbers, server IP addresses and other information. In the event that any unauthorized use of the Software is discovered, it shall be considered a material breach of this Agreement. You agree not to block, electronically or otherwise, the transmission of data required for the monitoring of compliance with this Agreement. Any blocking of data required for compliance may result in immediate termination of this Agreement. 3. Intellectual Property and Confidentiality 3.1 Ownership and Reservation of Rights to Calsoft Intellectual Property. Calsoft and its licensors own all right, title and interest in and to the Calsoft Intellectual Property. Subject to the limited rights expressly granted hereunder, Calsoft reserves all rights, title and interest in and to the Calsoft Intellectual Property. No rights are granted to you pursuant to this Agreement other than as expressly set forth in this Agreement. 3.2 Your Input. Calsoft shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Software any of Your Input. Calsoft shall have no obligation to add Your Input to the Software. You shall have no obligation to provide Your Input. 3.3 Confidentiality. A party shall not disclose or use any Confidential Information of the other party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement. Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care. No disclosure of any Confidential Information will be construed as granting (a) except for any limited license expressly set forth in this Agreement, a license of such Confidential Information, including without limitation any intellectual property rights, or (b) any right of ownership in such Confidential Information. A disclosure by one party of Confidential Information of the other party to the extent required by law shall not be considered a breach of this Agreement, provided the party so compelled promptly provides the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other party’s expense, if the other party wishes to contest the disclosure. 3.4 Remedies. If a party violates (or threatens to violate) the terms of Section 3, the other Party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate. 4. Fees License fees (the “Fees”) for the Software in the case of a Perpetual License, or for the initial term in the case of a Subscription License, are due and payable to Calsoft or your Authorized Calsoft reseller, or as otherwise provided in your Calsoft Order Form. Unless expressly provided otherwise in your Calsoft Order Form, in the case of a Subscription License, the Fees for renewal terms shall be based on the then current list price for the Subscription License purchased by you. Except as otherwise expressly provided in this Agreement, Calsoft does not refund Fees. 5. Term and Termination. 5.1 Term for Perpetual Licenses Only. The term of your Perpetual License commences as provided in your Calsoft Order Form. The term of this Agreement shall continue in effect until terminated as provided in Section 5.3. 5.2 Term for Subscription Licenses Only. The initial term of your Subscription License commences as provided in your Calsoft Order Form. The length of the initial term of this Agreement for your Subscription License is set forth in your Calsoft Order Form. This Agreement will terminate upon expiration of the initial term or any renewal term should you fail to renew this Agreement. It is your responsibility to contact Calsoft regarding any potential expiration that you deem inappropriate. Calsoft is not liable for any damages or costs incurred in connection with expiring licenses of the Software. 5.3 Termination. Either party may terminate this Agreement: (a) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such 30 day notice period; or (b) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Calsoft may terminate this Agreement upon fifteen (15) days prior written notice to you if you fail to pay any Fees and you do not cure such failure within the 15 day notice period. In the case of a Subscription License, upon any termination by you pursuant to this Section for a material breach by Calsoft, Calsoft shall refund you any prepaid Fees received by Calsoft for your Subscription License for the balance of the term after the effective date of termination. In the case of a Perpetual License, upon any termination by you pursuant to this Section, you shall not be eligible for any refund of your Fees. 5.4 Effect of Termination. Upon any termination of this Agreement, you shall, as of the date of such termination, immediately cease using the Software, Documentation and Calsoft Confidential Information, and either (a) return the Software, Documentation, all copies thereof, and all License Keys that you have obtained to Calsoft, or (b) destroy all such materials and provide written verification of such destruction to Calsoft. Termination for any reason shall not relieve you of the obligation to pay any Fees accrued or due and payable to Calsoft prior to the effective date of termination. 6. Remedies, Indemnification 6.1 Indemnification by Calsoft. 6.1.1. Infringement; Limitation. Calsoft will, at its expense, indemnify and hold you harmless against any claims made by an unaffiliated third party that the Software infringes its patent, copyright, or trademark, or misappropriates its trade secret (“Infringement Claim”); provided: (a) you notify Calsoft, in writing, not later than 20 days after you receive notice of the Infringement Claim, (b) you give Calsoft sole control of the defense and any settlement negotiations, and (c) you cooperate with Calsoft in defending against or settling the Infringement Claim. Calsoft’s obligation of indemnification will not apply to the extent that the Infringement Claim is based on (a) your use of the Software after Calsoft notifies you to discontinue use due to such a claim, (b) your combining the Software with non-Calsoft product, data or business process including third party add-ons or programs, (c) your altering or modifying the Software, including any modifications by third parties, or (d) your use of the Software in violation of this Agreement. You agree to reimburse Calsoft for any costs or damages that result from these actions. 6.1.2 Remedy for Infringement. If Calsoft receives information concerning an Infringement Claim, Calsoft may, at its expense and without obligation to do so, either (a) procure for you the right to continue to run the Software or (b) modify the Software or replace it with a functional equivalent, to make it non-infringing, in which case you will stop using the allegedly- infringing Software immediately. If, as a result of an Infringement Claim, your use of the Software is enjoined by a court of competent jurisdiction, Calsoft will, at its option, (a) procure the right to continue its use, (b) replace it with a functional equivalent, (c) modify it to make it non-infringing, or (d) refund the Fees and terminate this Agreement. 6.1.3 Exclusive Remedy. This Section 6.1 constitutes your exclusive remedy for Infringement Claims. 6.2. Indemnification by You. You will, at your own expense, indemnify and hold Calsoft, and its subsidiaries and Affiliates, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees, arising out of any use of the Software by you, your Affiliates, any other party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement. 7. Disclaimer 7.1 DISCLAIMERS. THE SOFTWARE IS SOLD “AS IS” AND WITHOUT ANY WARRANTY. CALSOFT DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITING THE FOREGOING, CALSOFT EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE. YOU HEREBY ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES FROM CALSOFT OR A CALSOFT AUTHORIZED RESELLER. 8. Limitation of Damages and Liability 8.1 LIMITATION ON DAMAGES. EXCEPT FOR A BREACH OF SECTION 3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 8.2 LIMITATION ON LIABILITY. EXCEPT FOR CALSOFT’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 6, CALSOFT’S CUMULATIVE LIABILITY TO YOU, YOUR AFFILIATES, OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED (A) IN THE CASE OF A PERPETUAL LICENSE, TO THE FEES RECEIVED BY CALSOFT FOR THE SOFTWARE PRORATED OVER A FIVE (5) YEAR TERM COMMENCING WITH THE DATE YOUR PERPETUAL LICENSE COMMENCED PURSUANT TO SECTION 5.1, OR (B) IN THE CASE OF A SUBSCRIPTION LICENSE TO THE FEES RECEIVED BY CALSOFT FOR THE LAST TWELVE (12) MONTHS. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. 8.3 APPLICATION OF LIMITATIONS. ALL LIMITATIONS ON LIABILITY, DAMAGES AND CLAIMS ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. 8.4 NO THIRD PARTY REPRESENTATIONS OR WARRANTIES. NO THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY AUTHORIZED CALSOFT RESELLER, IS AUTHORIZED BY CALSOFT TO MAKE ANY REPRESENTATION OR WARRANTY TO YOU REGARDING THE SOFTWARE. 9. Third Party Applications. 9.1 No Warranty of Third Party Applications. Calsoft does not warrant any Third Party Application regardless of who you may purchase or license the application from. 9.2 Use of Third Party Application. Any agreement for use by you of a Third Party Application is solely between you and the applicable third party provider. 9.3 No Obligation As to Third Party Application. Calsoft is not responsible for any aspect of a Third Party Application that you may purchase, license, subscribe to or connect to through the Software, or any interoperation or other information related to the foregoing. Calsoft is not responsible for any exchange of data or other interaction between you and a third party provider of the Third Party Application. Any such exchange or interaction is solely between you and such third party provider and is subject to a separate privacy policy or other terms governing your access to or use of the Third Party Application. Calsoft shall not be responsible for any disclosure, modification, corruption or deletion of your data resulting from any such access by a Third Party Application. 10. General Terms 10.1 Additional Products and Services. You acknowledge that if you should acquire additional software products from Calsoft, the End User License Agreement associated with those Calsoft products shall apply. Such other agreements do not apply to your Perpetual License or Subscription License covered by this Agreement. 10.2 Governing Law and Choice of Forum. This Agreement and the obligations of the parties hereunder will be interpreted, construed and enforced in accordance with the laws of the United States of America, and the State of California, without regard to its choice of law rules. Any legal action to enforce or interpret any provision of this Agreement shall be brought in the state or federal courts located in Los Angeles County, California, USA. The parties accept and consent to, the jurisdiction of, and venues in, the federal and state courts located in Los Angeles County, California, USA, and hereby waive any and all objections to such jurisdiction and venue. 10.3 Complete Agreement. This Agreement, including all exhibits hereto, together with your Calsoft Order Form, constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. 10.4 Severability. If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation. 10.5 Survival. Sections 3, 5.4, 6, 7, 8, and 10 of this Agreement shall survive the termination of this Agreement, regardless of the cause for termination, and shall remain valid and binding indefinitely. 10.6 Headings. The Article and Section headings contained in this Agreement are incorporated for reference purposes only and shall not affect the meaning or interpretation of this Agreement. 10.7 No Waiver. The failure of either party to enforce any rights granted under this Agreement or to take action against the other party in the event of any breach of this Agreement shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. 10.8 Right To Use Name. Unless you provide Calsoft with written notice to the contrary, you give Calsoft the right to use your name in print, on-line, and in other multimedia advertising and marketing materials for the purpose of disclosing that you are a customer of Calsoft. 10.9 Amendment. Calsoft reserves the right, in its sole discretion, to amend this Agreement from time to time. Any amendment is effective thirty (30) days after the most current revised version is released. You are responsible for regularly reviewing the terms and conditions of Calsoft’s End User License Agreement. You may request the current version of the End User License Agreement by emailing us at support@calsoft.com. Your continued use of the Software 30 days after the most current version of Calsoft’s End User License Agreement is released shall be conclusively deemed an acceptance of the amended Agreement. Should you not agree to the terms and conditions of the amended Agreement, your sole remedy is to terminate this Agreement. 10.10 Taxes. You shall, in addition to the Fees required under this Agreement, pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of the transaction contemplated under this Agreement, excluding income taxes on the net profits of Calsoft. You shall reimburse Calsoft for the amount of any such taxes or duties paid or incurred directly by Calsoft as a result of this transaction. 10.11 Assignment of Rights. You may not sublicense, lease, rent, or assign your rights in the Software, Documentation, or License Keys, as granted by this Agreement, to or with any third party (other than an Affiliate) without prior written consent of Calsoft. Notwithstanding the foregoing, you may assign your rights in this Agreement and the Software without such consent in the case of a sale of substantially all of your assets or equity interests, or in the case of a merger, change in control or similar transaction, provided that (a) the assignee agrees in writing to be bound by the terms of this Agreement, (b) you are not in material breach or default under this Agreement, and (c) you agree to remain liable for any breach of this Agreement by the assignee. Any attempt by a Party to assign its rights or obligations under this Agreement other than as permitted by this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 11. Export Regulations Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in licensing and using the Software. Without limiting the generality of the foregoing, you shall not make the Software available to any person or entity that: (a) is located in a country that is subject to a U.S. government embargo; (b) is listed on any U.S. government list of prohibited or restricted parties; or (c) is engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction. 12. United States Government Restricted Rights The Software and Documentation are provided with Restricted Rights. Use, duplication, or disclosure by the United States government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (b) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. S:52.227-19, as applicable.