CITIXSYS SOFTWARE END USER LICENSE AGREEMENT
IMPORTANT-READ CAREFULLY: BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE (AS DEFINED BELOW) AND ANY PRINTED OR ELECTRONIC USER MANUALS OR GUIDES OR INSTRUCTIONS REGARDING USE OF THE SOFTWARE, YOU (ON BEHALF OF YOURSELF OR AS AN AUTHORIZED REPRESENTATIVE ON BEHALF OF AN ENTITY THE “LICENSEE”) AGREE TO ALL THE TERMS OF THIS END USER LICENSE AGREEMENT (THE “EULA”) REGARDING YOUR USE OF THIS SOFTWARE AND DOCUMENTATION. IF YOU LICENSE THE SOFTWARE FOR USE AS A HOSTED SERVICE, YOU ALSO AGREE TO ALL THE TERMS OF EXHIBIT B, ALL OF WHICH ARE INCORPORATED HEREIN, AS APPLICABLE. IF YOU DO NOT AGREE WITH ALL OF THE APPLICABLE TERMS, DO NOT INSTALL, COPY OR OTHERWISE USE THIS SOFTWARE OR THE DOCUMENTATION.
1. CitiXsys possesses certain ownership interests in proprietary software more particularly described herein, and desires to license such software to Licensee under the terms and conditions of this EULA.
2. Licensee desires to license such software from CitiXsys; subject to the terms and conditions of this EULA.
1.1 “Affiliate” means an entity that is Controlled by, under common Control with or Controlling the subject entity during the period of such control.
1.2 “Business Edition” means a version CitiXsys’s software, available through CitiXsys or a CitiXsys authorized reseller, for which a Licensee must pay applicable License Fees and Software Assurance Fee prior to installation or use.
1.3 “CitiXsys” means: (a) CitiXsys Americas Inc., if Licensee is an individual residing in or an entity organized under the laws of the United States entity; or (c) CitiXsys Limited if the Licensee is an individual residing in or an entity organized under the laws of any jurisdiction other than the United States, and in each case, any CitiXsys Affiliate of the applicable CitiXsys entity to whom this Agreement may be assigned, transferred, delegated and/or novated.
1.4 “Cloud Fees” means the applicable fees to be paid by Licensee for the use of the Software, Add-ons and/or Plugins provided to Licensee (if any) as hosted services under the hosted services terms set forth in Exhibit B.
1.5 “Community Edition” means a version of CitiXsys’ software which, upon approval from CitiXsys, is downloadable from CitiXsys and available for use without payment of License Fees. Further details about Community Edition software may be found on the CitiXsys website.
1.6 “Computers” means personal computers located at Licensee’s locations. The number of Computers upon which the Software may be installed shall be determined by the number for which Licensee has paid applicable License Fees to CitiXsys or a CitiXsys authorized reseller, as applicable. Licensee may add additional Computers to this EULA by mutual written agreement with CitiXsys and/or an authorized reseller and such agreement will include the additional license fees due for such additional Computers.
1.7 “Control” means possessing, directly or indirectly, the power to direct or cause the direction of management policies or operations of any entity or person, whether through ownership of voting securities, through common ownership, by contract, or other objective criteria.
1.8 “Documentation” means the user documentation and/or administrator manual for the Software.
1.9 “Effective Date” means the date the Software is shipped to Licensee or made available for download.
1.10 “Error” means any material error or defect in the Software that causes the Software not to perform substantially in conformance with the Documentation. The term Error shall not mean or include any failure of the Software that results from Licensee’s misuse, improper use, alteration, or damage to the Software, or combining or merging the Software with any hardware or software.
1.11 “Intellectual Property Rights” means patents, design patents, copyrights, trademarks, Confidential Information (as defined in Section 6), know-how, trade secrets, moral rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.12 “License Fees”means the applicable software license fees specified to paid by Licensee for the use of the Software, as communicated by CitiXsys or an authorized reseller from time to time.
1.13 “License Term” means the period commencing on the Effective Date and during which Licensee has the right to use the Software, which may be a “Perpetual License” or an “Annual Subscription”, as specified in the purchase order under which Licensee purchased its license to use the Software from CitiXsys or a CitiXsys authorized reseller, as applicable, and for which Licensee has paid the applicable License Fees.
1.14 “Software Assurance Fees” means the “Software Assurance Fee” as set forth in the Suggested Retail Price as otherwise agreed between CitiXsys and Reseller from time to time in writing.
1.15 “Software Assurance” means an agreement under which an End User shall receive upgrades, updates, patches, and bug fixes. Each Software Assurance shall have an initial term of one year which shall renew for successive one year terms upon payment by End User of applicable an annual Software Assurance Fee.
1.16 “Software” means the commercially released, unmodified (i) the current version in general release of CitiXsys software as described by CitiXsys available at CitiXsys websites and portals including but not limited to CitiXsys Knowledge Portal, iVend.com. CitiXsys.com,; (ii) any new releases, versions, corrections, updates or upgrades or extensions of the such software provided by CitiXsys (for which separate consideration may be payable, at the sole discretion of CitiXsys), (iii) the Documentation, and (iv) any complete or partial copies of any of the foregoing. For the avoidance of doubt, the definition of Software does not include any Third-Party Software and any Open Source Software. For avoidance of doubt, “Software” does not include the Community Edition version of CitiXsys’s computer software.
1.17 “Subsidiary” means an entity that is Controlled by the subject company.
1.18 “Add-on” or “Plug In” shall mean a Software add-on developed by a CitiXsys, CitiXsys reseller, or any third party using CitiXsys Extensibility Framework also referred to as hooks or interfaces, to develop new functionalities, features, procedures, routines, or customizations not existing in the Software. An Add-on may be a module providing a new functionality integrated with Software (a “Module”) or it may be an integration component or pipe which enables another standalone software (of any third party) to communicate and integrate with Software.
1.19 “User” means, with respect Software that is licensed in whole or part based on the number of Licensee end users who are authorized to use the licensed Software, an end user authorized to use the Software. Licensee may add additional Users to this EULA by mutual written agreement with CitiXsys and/or an authorized reseller and such agreement will include the additional license fees due for such additional Users.
2.DELIVERY; LICENSE AND LICENSE RESTRICTIONS.
2.1 Delivery. CitiXsys (or CitiXsys’s authorized reseller (“Reseller”), if Licensee has purchased its license from such Reseller) will, within fifteen (15) days after the Effective Date, deliver or make the Software available to Licensee, as an installable binary and/or as a cloud service, depending on the types of use for which Licensee is licensed to use the Software. The Software shall be deemed accepted by Licensee at the time it is made available or delivered, as applicable
2.2 License Grant. The Software is licensed on a per-User or per-Computer basis. Modules to the Software may be licensed per-User or per-Computer (or both) depending on the licensing of the underlying Software. Subject to the terms, conditions, and restrictions in this EULA, CitiXsys hereby grants to Licensee, for the License Term, a non-exclusive, non-transferable, non assignable, revocable, personal, limited license (without the right to sublicense) (i) to reproduce the Software for the sole purposes of (a) installing one (1) copy of the Software on each Computer and one (1) copy of the Software on a portable device for the exclusive use of the primary user of such Computer, and (b) making back-up copies of the Software in connection with Licensee’s back-up of the other software, information and data stored on the Computers, and (ii) permitting Users to use such reproductions of the Software as installed on the Computers solely for Licensee’s internal use. Licensee may install one copy of the Software on a computer file server within Licensee’s internal network for sole and exclusive purpose of using the Software to provide printing within the internal network. Licensee’s and its Subsidiaries’ employees, contractors and outsource service providers can exercise the rights granted to Licensee in this Section 2.2 solely on behalf of and solely for the benefit of Licensee; and provided that such use does not exceed the number of Computers and/or Users, as applicable, for which Licensee is licensed. Licensee is responsible and liable for the acts and omissions of its Subsidiaries and such employees, contractors and outsource service providers with respect to the Software and their compliance with the terms, conditions and restrictions of this Agreement. Other external third party users may access Licensee’s installed copies of the software solely or the purpose of accessing and modifying the Licensee’s data. Except for the foregoing, no other rights or licenses are granted to Licensee in this EULA and all other rights are reserved by CitiXsys.
2.3 License Restrictions. Licensee’s use of the Software shall be limited, as applicable, to use on the Computers, by the Users and at the designated locations set out in the purchase agreement through which Licensee acquired the software ActivationID. Licensee shall not and shall not permit, allow or induce any third party to: (i) modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software; (iii) distribute, rent, lease, sell, assign or otherwise transfer rights in or to the Software or Documentation; or (iv) use any portion of the Software to support or provide services to one or more third parties. Licensee may only reproduce the Software in accordance with the licenses granted in Section 2.2 (License Grant). Licensee shall not use the Software in a commercial time-sharing arrangement, as an application service provider or as a service bureau. Licensee may not move the Computers on which the Software is installed to a new location without CitiXsys’s prior written consent and any such move may require the payment of additional fees as determined by CitiXsys. Licensee will keep the Software free and clear of all claims, liens, and encumbrances. Licensee will not alter, change, or remove any copyright, or other proprietary notices or confidentiality legends placed on or contained within the Software. Licensee will include such notices and legends in all copies of any part of the Software made by Licensee pursuant to this EULA. Licensee shall not include its own or substitute its own copyright notice or other proprietary notice in place of CitiXsys’ notices on or in the Software.
3.PAYMENT, TAXES, CERTIFICATION AND AUDIT.
3.1 Payment. Licensee shall pay to CitiXsys (or CitiXsys’s Reseller, if Licensee has purchased its license from such Reseller) the applicable License Fees, Software Assurance Fees and Cloud Fees in accordance with the payment terms in this EULA. All such payments will be made in United States currency. CitiXsys shall provide notice of pending expiration prior to the expiration of any Annual Subscription. Licensee must pay any applicable renewal fees prior to the expiration of the Initial Term or then-current Renewal Term, as applicable, to avoid termination of such licenses.
3.2 Late Fees. For any overdue payments, late fees will accrue at the lesser of: (i) 1.5% per month; or (ii) the maximum rate allowed under law.
3.3 Taxes. The fees and amounts due under this EULA do not include any sales tax, use tax, value added tax (VAT), property tax, consumption tax, excise tax, withholding tax, or other taxes or duties or customs fees or any import, warehouse or other fees, associated with the importation or delivery of the Software, the licenses granted in this EULA, Licensee’s use of the Software, receipt of any services from CitiXsys or Reseller, or the payment of the fees due (collectively “Taxes”). If CitiXsys and/or its Reseller are required under applicable law to pay any Taxes, then such Taxes shall be billed to and paid by Licensee. The foregoing shall not apply to taxes based on CitiXsys’s or its Reseller’s income or payroll taxes. In addition, each party shall be solely responsible for paying or withholding any Taxes imposed by the applicable taxing authority. All fees and amounts due under this EULA shall be paid without deduction for any Taxes, levies, or other charges of any nature which may be imposed. If Licensee is required by any applicable law to make any such deduction from any such payment of fees or amount due under this EULA, then the amount due in respect of such payment shall be increased by the amount of the deduction, and will result, notwithstanding the deduction, in CitiXsys’s or its Reseller’s (as applicable) receipt of the amount that would have received if Licensee had not been required to make such deduction. Licensee agrees to deliver to CitiXsys or its Reseller (as applicable) a receipt or similar documentation evidencing payment of any such deductions or Tax. In the event that CitiXsys or its Reseller pays for any Taxes on behalf of Licensee, then Licensee shall reimburse CitiXsys or its Reseller (as applicable) therefor within thirty (30) days of invoice date.
3.4 Certification and Audit. . On CitiXsys’s or its Reseller’s request, but not more than once per quarter, Licensee will furnish to CitiXsys or its Reseller (as applicable) a signed statement confirming that the Software is being used pursuant to the provisions of this EULA. During the term of this EULA, CitiXsys and/or its Reseller will have the right, at their own expense and upon reasonable written notice to Licensee, to have an examination and audit conducted of Licensee’s records pertaining to the use of the Software, including but not limited to the number and location of the Computers, to ensure compliance with Licensee’s obligations under this EULA. If the audit reveals that Licensee has underpaid fees, Licensee shall promptly pay any deficiency and Licensee shall reimburse CitiXsys or its Reseller (as applicable) for the reasonable cost of the audit. Such audit will be conducted during Licensee’s normal business hours and in such manner as not to interfere unreasonably with Licensee’s normal business activities. An audit will be made no more than once annually unless the previous audit revealed non-compliance by Licensee.
4.MAINTENANCE AND SUPPORT SERVICES.
4.1 Software Assurance.Licensee must purchase, during the first year of its license of the Software, a Software Assurance which ends at the end of the calendar year. After the expiration of Software Assurance, Licensee may renew the Software Assurance on the terms and conditions then applicable. Should Licensee allow Software Assurance to expire and then seek to renew the Software Assurance then, at the time of the Software Assurance renewal, Licensee shall pay to CitiXsys or CitiXsys’s Reseller, as applicable, 100% of the then prevailing Software Assurance Fee for each and every year or part thereof for which Licensee did not have Software Assurance in addition to the then-current fee applicable for the purchase of the Software Assurance. CitiXsys may also impose other conditions as may deemed appropriate at its sole discretion. Licensee may not purchase Software Assurance for any Community Edition of CitiXsys software. Should Licensee desire to receive Software Assurance for such versions, Licensee must first upgrade to the Business Edition of such software and purchase Software Assurance.
4.2.1 CitiXsys may periodically release updates, bug fixes and upgrades using its online update mechanism. Licensee may acquire such releases upon the payment of applicable fees, or Licensee may be provided such releases free of cost if Licensee has a subsisting Software Assurance. Licensee is not entitled to receive such releases for any Community Edition of CitiXsys software
4.2.2 CitiXsys will maintain and provide Software Assurance only for last two official releases of the Software including current release. Licensee understands that CitiXsys will deliver any bug fixes or additional functionalities only in the latest released version of the Software. Licensee further understands and agrees that it will be required to upgrade its installed version of the Software to the latest released version to apply any update, bug fixes or additional functionalities.
4.2.3 The terms of this EULA shall apply to any updates, bug fixes and upgrades released by CitiXsys and the same shall be included in the definition of Software hereunder, except to the extent that Licensee is required to agree to additional or revised terms and conditions as a condition of continued use of the Software after the upgrade. CitiXsys makes no additional representations or warranties and assumes no additional liabilities with respect to any such releases.
5.PROTECTION OF PROPRIETARY RIGHTS.
5.1 This EULA does not convey to Licensee any rights of ownership in or title to the Software or to any Intellectual Property Rights in or to the Software. Licensee acknowledges that, as between Licensee and CitiXsys, CitiXsys is the sole and exclusive owner of all right, title and interest in the Software and all Intellectual Property Rights thereto, and that except as stated herein, this EULA does not grant Licensee any rights to any CitiXsys Intellectual Property Rights or any other proprietary rights, franchises or licenses, either expressly, by implication, by way of estoppel, or otherwise.
5.2 Licensee hereby grants CitiXsys a limited, non-exclusive, non-transferable, non-sublicensable license during the Term to use Licensee trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, in presentations, marketing materials, and web site listings for the purposes of advertising or publicizing the CitiXsys and the Software
6.1 Confidential Information. “Confidential Information” means (a) any technical and non technical information related to a party’s business and current, future and proposed products and services of each of the parties, including for example and without limitation, each party’s respective information concerning research, development, design details and specifications, financial information, procurement requirements, engineering and manufacturing information, customer lists, computer programs, source code, business forecasts, sales information and marketing plans; (b) any information a party has received from others that may be made known to the other party and which such party is obligated to treat as confidential or proprietary; and (c) any other information reasonably identifiable as the confidential and proprietary information of the disclosing party (“Discloser”).
6.2 Nondisclosure and Nonuse Obligations. The parties acknowledge that each party might acquire Confidential Information of the other party in connection with the performance of this EULA. The party receiving Confidential Information (“Recipient”) will not use, disseminate, or in any way disclose any of Discloser’s Confidential Information to any person, firm or business, including Licensee’s independent contractors, except as expressly permitted by this EULA. Furthermore, neither party may disclose the existence of any negotiations, discussions or consultations in progress between the parties to any form of public media without the prior written approval of the other party. However, CitiXsys may disclose that Licensee uses the Software under a license from CitiXsys and may include Licensee’s name and logo as part of Licensee customer lists. Furthermore, CitiXsys shall retain the right to use any programs, data, or other materials furnished by Licensee, including Licensee’s Confidential Information, for research purposes and for new product development. Recipient shall treat all of Discloser’s Confidential Information with the same degree of care as Recipient accords to Recipient’s own Confidential Information, but not less than reasonable care. Recipient shall disclose Discloser’s Confidential Information only to those of Recipient’s employees who need to know such information solely for the purpose of fulfilling the Recipient’s obligations or exercising Recipient’s rights hereunder; provided that each such employee must have agreed, either as a condition to employment or in order to obtain Discloser’s Confidential Information, to be bound by terms and conditions substantially similar to those terms and conditions applicable to Recipient under this EULA. Recipient shall immediately give notice to Discloser of any unauthorized use or disclosure of Discloser’s Confidential Information. Recipient shall assist Discloser in remedying any such unauthorized use or disclosure of Discloser’s Confidential Information.
6.3 Exclusions from Nondisclosure and Nonuse Obligations. Recipient’s obligations under Section 6.1 (Nondisclosure and Nonuse Obligations) shall not apply to any of Discloser’s Confidential Information that Recipient can document: (a) was in the public domain at or subsequent to the time such Confidential Information was communicated to Recipient by Discloser through no fault of Recipient; (b) was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time such Confidential Information was communicated to Recipient by such Discloser; (c) was developed by employees or agents of Recipient independently of and without reference to any of Discloser’s Confidential Information; or (d) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. A disclosure by Recipient of any of Discloser’s Confidential Information (a) in response to a valid order by a court or other governmental body; (b) as otherwise required by law; or (c) necessary to establish the rights of either party under this EULA shall not be considered to be a breach of this EULA by such Recipient; provided, however, such Recipient shall provide prompt prior written notice thereof to such Discloser to enable Discloser to seek a protective order or otherwise prevent such disclosure.
6.4 Ownership and Return of Confidential Information and Other Materials. All of Discloser’s Confidential Information is and shall remain the property of Discloser. All materials (including, without limitation, documents, drawings, papers, diskettes, tapes, models, apparatus, sketches, designs and lists) furnished by Discloser to Recipient (whether or not they contain or disclose Discloser’s Confidential Information) are the property of such Discloser. Within five (5) days after any request by Discloser, Recipient shall destroy or deliver to Discloser, at Discloser’s option, (a) all such Discloser-furnished materials and (b) all materials in Recipient’s possession or control (even if not Discloser-furnished) that contain or disclose any of such Discloser’s Confidential Information. Recipient will provide Discloser a written certification of Recipient’s compliance with Recipient’s obligations under this Section.
6.5 Statistical Data Collection.
LICENSEE CONFIRMS THAT IT HAS CAREFULLY READ AND UNDERSTOOD THE FOLLOWING:
6.5.1 A feature in the Software enables CitiXsys to collect statistics on Software usage. Among the types of statistics that this feature collects are: Company Name, Email Id, Application Version, License Type (Community or Business), Date of Installation, Localization, Store Count, POS Count. The feature also collects software performance data such as: Exceptions in the system, Errors, transaction per day, average line items; number of purchase order, number of good receipts, number of manual till openings, number of manager overrides per day, number of price overrides per day, number of discount overrides per day, number of promotional transactions per day, number of sales order per day, number of gift cards sold per day, number of integration failures per day.
6.5.2 This statistics collection is activated by default at the time of the Software is installed on Licensee’s Computers and enables CitiXsys to collect such data in an aggregated form for statistical analysis about the extent and degree of users’ interaction with the software, which features and events of the software are most used, time taken to execute an activity, operating systems being used, patterns of use, geographical location of users, bugs and errors and other such general usage data. Licensee understands that the intent behind collection of such statistical data is to conduct usage information and facilitate improvement of the software.
6.6 Confidentiality of this EULA. Licensee agrees to treat the terms and conditions of this EULA as Confidential Information of CitiXsys and agrees not to disclose such terms and conditions to any person or entity whatsoever other than legal counsel, except as such disclosure may be required for accounting or tax reporting purposes or as otherwise may be required by law.
7. LIMITED WARRANTY, REMEDY, AND DISCLAIMER OF WARRANTY.
7.1 Limited Warranty; Remedy. For a period of thirty (30) days following initial delivery of the Software, CitiXsys warrants that the Software will be free of Errors. If during the warranty period the Software do not perform as warranted (a “Non-Conformance”), Licensee shall notify CitiXsys in writing and such notice shall provide a detailed description of the Non-Conformance and the circumstances surrounding how the Non-Conformance is manifested. In such event, CitiXsys shall, without further charge to Licensee, undertake, at CitiXsys’s sole option, to (a) correct any such Non-Conformance; (b) replace such Software; or (c) terminate this EULA and refund to Licensee any amounts paid by Licensee prior to the date of such termination. CITIXSYS MAKES NO WARRANTIES FOR ANY COMMUNITY EDITION OF CITIXSYS SOFTWARE. LICENSEE ACKNOWLEDGES THAT THE FOREGOING ARE LICENSEE’S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN. CitiXsys does not warrant the Software or the operation of the Software will be error free or bug free. No employee, agent, representative or affiliate of CitiXsys has the authority to bind CitiXsys to any oral representations or warranty concerning the Software. Any written representation or warranty not expressly contained in this EULA will not be enforceable. The warranty set forth above is made to and for the benefit of Licensee only.
7.2 Warranty Limitations. The forgoing warranty shall only apply if: (i) the Software has been properly installed and used at all times and in accordance with the Documentation; (ii) no modification, alteration or addition has been made to the Software by persons other than CitiXsys or CitiXsys’s authorized representative; (iii) Licensee has not requested and CitiXsys has not implemented modifications, alterations or additions to the Software that cause it to deviate from the Documentation, (iv) Licensee has promptly and properly installed all fixes, upgrades, updates, and enhancements made available by CitiXsys to Licensee, (iv) the defect or nonconformity is not caused in whole or in part by any defect in hardware, third party software, or modifications not made by CitiXsys; or (v) the Non-Conformance is the result of the performance and/or functionalities of any Addons.
7.3 Disclaimer of Warranty.
THE WARRANTIES STATED ABOVE ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY CITIXSYS. CITIXSYS HEREBY EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT. LICENSEE REPRESENTS AND ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE CITIXSYS SOFTWARE AND ASSOCIATED SERVICES OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS EULA.
7.4 Inherently Dangerous Application. Licensee acknowledges that the Software is not specifically designed or intended for use in connection with the design, construction, maintenance and/or operation of any (i) nuclear facility, (ii) mass transit or mass transit support system, (iii) aviation or aviation support system, (iv) life support system, or (v) any other inherently dangerous application. CitiXsys shall not be liable to Licensee, in whole or in part, for any claims or damages arising from such use and Licensee agrees to indemnify, defend and hold CitiXsys harmless against any claims, suits, causes of action, liabilities, damages, settlement amounts, costs and expenses arising out of or in connection with any such use.
8.LIMITATION OF LIABILITY AND REMEDY.
8.1 No Consequential Damages.
IN NO EVENT WILL CITIXSYS BE LIABLE TO LICENSEE WITH RESPECT TO THIS EULA OR OTHERWISE UNDER ANY THEORY, INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, DAMAGES FOR LOSS OF DATA, LOSS OF USE OF COMPUTER HARDWARE, DOWNTIME, LOSS OF GOODWILL, LOSS OF BUSINESS, AND HARDWARE MALFUNCTION, EVEN IF CITIXSYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS EULA, CITIXSYS’ LIABILITY TO LICENSEE UNDER THIS EULA WILL BE LIMITED TO THE TOTAL FEES PAID BY LICENSEE TO CITIXSYS FOR THE PERPETUAL LICENSE (AS DEPRECIATED OVER 12 MONTHS) (IN THE CASE OF A PERPETUAL LICENSE) AND LIMITED TO THE TOTAL AMOUNTS PAID BY LICENSEE TO CITIXSYS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM FOR DAMAGES IN THE CASE OF AN ANNUAL SUBSCRIPTION). THE PARTIES ACKNOWLEDGE THAT THE OTHER PARTS OF THIS EULA RELY UPON INCLUSION OF THIS SECTION HEREIN.
8.2 Allocation of Risks. This EULA allocates fairly between CitiXsys and Licensee the risks of defects to, or failure of, the Software. This allocation is reflected in the pricing of the Software provided under this EULA, the limited warranties provided, the limited remedies provided, the disclaimer of liability for certain damages and the limitation of liability in this Section 8 (Limitation of Liability and Remedy).
9.1 By CitiXsys.
9.1.1 Intellectual Property Claims. Subject to the terms in Section 8 (Limitation of Liability and Remedy), CitiXsys will defend, at its expense, any legal proceeding brought against Licensee to the extent it is based on a third party claim, action or suit that the use of the Software by Licensee is a direct infringement of a copyright or a United States patent issued as of the Effective Date, and CitiXsys will pay all damages awarded by a court of competent jurisdiction attributable to such claim or settlement amount paid to settle the claim, provided that Licensee (i) provides prompt notice of the claim to CitiXsys; (ii) gives CitiXsys sole control of the defense and settlement of the claim; (iii) provides to CitiXsys all available information, assistance, and authority to defend; and (iv) has not compromised or settled such proceeding without CitiXsys’ prior written consent.
9.1.2 Remedies. Should the Software or any portion thereof become, or in CitiXsys’ opinion be likely to become, the subject of a claim for which indemnity is provided under Subsection 9.1.1 (Intellectual Property Claims), CitiXsys may, in CitiXsys’ sole discretion: (i) obtain for Licensee the right to continue using the Software; (ii) replace or modify the Software so that it becomes non-infringing; or (iii) accept the return of the Software and grant Licensee a pro rata refund of the License Fee actually paid by Licensee to CitiXsys under this EULA for such Software.
9.1.3 Exclusions. CitiXsys will have no obligations under this Section 9 for any Community Edition of CitiXys software. CitiXsys will have no liability for any infringement or claim which results from: (i) modifications to the Software made by Licensee or third parties or modifications to the Software made by CitiXsys based on specifications or instructions provided by Licensee; (ii) use of the Software in combination with any equipment, software, or data, not produced by CitiXsys; (iii) CitiXsys’ compliance with designs or specifications of Licensee; or (iv) use of the Software in a manner prohibited under this EULA, in a manner for which the Software was not designed, or in a manner not in accordance with the Documentation.
9.1.4 Entire Liability. THE PROVISIONS OF THIS SUBSECTION 9.1 AND, IF APPLICABLE, THE PROVISIONS OF SECTION 7.1 OF EXHIBIT B, SET FORTH THE ENTIRE INDEMNIFICATION OBLIGATIONS OF CITIXSYS AND THE SOLE REMEDIES OF LICENSEE WITH RESPECT TO CLAIMS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF ANY KIND.
9.2 By Licensee. Except for claims covered under CitiXsys’ indemnity to Licensee under Subsection 9.1 (By CitiXsys), Licensee will defend and indemnify CitiXsys from any and all claims, actions, and suits brought against CitiXsys by third parties, and will hold CitiXsys harmless from all corresponding loss, liability, damages, settlement amounts, costs and expenses incurred by CitiXsys arising out of or related to Licensee’s misuse, modification or alteration of the Software. CitiXsys will (i) provide notice of the claim, action or suit promptly to Licensee; (ii) give Licensee sole control of the defense and settlement of the claim; action or suit (iii) provide to Licensee all available information, assistance and authority to defend; and (iv) not compromised or settled such proceeding without Licensee’s prior written consent, which will not be unreasonably withheld of delayed.
10.TERM AND TERMINATION.
10.1 Term. This EULA shall have an “Initial Term” that runs concurrent with the License Term. If the License Term is an Annual Subscription, Licensee’s license to use the Software will expire at the end of the Initial Term (and any subsequent Renewal Term, defined as follows). Licensee must contact CitiXsys or Reseller, as applicable, and pay any applicable fees to renew the license for an additional period equivalent to the License Term (each a “Renewal Term” and together with the Initial Term referred to as the “Term”). Licensee may be required to apply an new ActivationID to activate the Software for Renewal Terms. CitiXsys shall not be liable for any damages resulting from Licensee’s failure to timely renew an Annual Subscription license or apply a new ActivationID.
10.2 Termination. This EULA may be terminated in any of the following ways: (i) by either party upon material breach by the other party, if the party in breach fails to cure such breach within fifteen (15) days after receipt of written notice from the other party, provided however that termination for any breach of the provisions of Section 2 (License, Ownership, and Restrictions) shall be effective as of the day notice is given, and provided further that the cure period for a failure to pay amounts owed to CitiXsys or Reseller will be ten (10) calendar days; (ii) by either party, effective as of the end of the Initial Term or applicable Renewal Term, by written notice to the other party at least thirty (30) days prior to the end of the then-current term; or (iii) by either party if the other party is insolvent, or the subject of a voluntary or involuntary bankruptcy petition.
10.3 Effect of Termination. Upon termination of this EULA for any reason: (a) all licenses granted in this EULA shall terminate, (b) Licensee will destroy and erase any and all copies of the Software and other Confidential Information of CitiXsys and deliver to CitiXsys written certification by a senior officer of Licensee confirming that Licensee as destroyed and erased all such copies of the Software and CitiXsys’ Confidential Information, (c) Licensee shall return all Documentation, regardless of form and including, without limitation, all copies, analyses, derivations and compilations of the Documentation to CitiXsys within thirty (30) days following the termination of this EULA and provide written certification by a senior officer of Licensee that all Documentation has been returned to CitiXsys; and, (d) at any time and from time to time during the sixty (60) day period following the termination of this EULA and upon five (5) days prior written notice, Licensee shall permit CitiXsys and/or Reseller to inspect Licensee’s facilities to insure compliance with the obligations of this EULA.
10.4 No Refund; Cumulative Remedies. Unless otherwise set forth herein, Licensee shall not be entitled to any refund of any fees or amounts paid by Licensee under this EULA as a result of the termination of this EULA. The rights and remedies of CitiXsys provided in this Section 10 (Term and Termination) shall not be exclusive and are in addition to any other rights and remedies provided by law or this EULA.
10.5 Survival of Certain Terms. The following provisions will survive any expiration or termination of this EULA: 3 (Payment, Taxes, Certification and Audit), 5 (Protection of Proprietary Rights), 6 (Confidentiality), 8 (Limitation of Liability and Remedy), 9 (Indemnifications), 10 (Term and Termination), and 11 (General Provisions).
11.1 Waiver. The failure or forbearance by CitiXsys or Licensee to enforce any right or claim against the other party shall not be deemed to be a waiver by CitiXsys or Licensee of such right or claim or any other right or claim hereunder. The waiver by CitiXsys or Licensee of a breach hereof shall not operate or be construed as a waiver of any subsequent breaches of the same or any other provision.
11.2 Severability. If any provision of this EULA is determined in any proceeding binding upon the parties to be invalid or unenforceable, that provision shall be deemed severed from the remainder of this EULA, and the remaining provisions of this EULA shall continue in full force and effect.
11.3 Applicable Law and Forum. This Agreement shall be interpreted according to the laws of England without regard to or application of choice of law rules or principles. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply
11.4 Export Compliance. The Software, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export or import the Software as may be required after delivery to Licensee. Licensee shall make reasonable efforts to notify and inform its employees having access to the Software of Licensee’s obligation to comply with the requirements stated in this Subsection.
11.5 Notices. All notices required under this EULA will be in writing and will be considered given as of twenty-four (24) hours after sending by electronic means, facsimile transmission, overnight courier or hand delivery, or as of five (5) days of certified mailing and appropriately addressed to the parties. CitiXsys may provide notice to Licensee via email or at the address provided by Licensee upon registration of the Software. Licensee shall ensure that CitiXsys is notified of any change of address. Licensee shall address notices to CitiXsys at the following addresses (as applicable), which may be updated by CitiXsys from time to time:
To CitiXsys Limited:
Palmerston House, 2nd Floor
Fenian Street, Dublin 2 IRELAND
To CitiXsys Americas Inc.:
CitiXsys Americas Inc.
One Rockefeller Plaza, 11th Floor
New York NY 10020 USA
11.6 Assignment. This EULA may not be assigned or transferred by Licensee (by operation of law, in connection with a change of control, or otherwise) without the prior written consent of CitiXsys. CitiXsys may assign this EULA to (i) an Affiliate of CitiXsys, (ii) a purchaser of all or substantially all of the stock or assets of CitiXsys, or (iii) a third party participating in a merger or other corporate reorganization in which CitiXsys is a constituent corporation. If CitiXsys agrees in writing to the transfer of any license hereunder, such transfers shall be subject to CitiXsys’ transfer policies and fees. This EULA will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Any purported attempt to assign or transfer this EULA in violation of this provision will be deemed void.
11.7 Force Majeure.A party is not liable for non-performance to the extent to which the non-performance is caused by events or conditions beyond that party’s control, and the party gives prompt notice to the other party and makes all reasonable efforts to perform. In no event will this provision affect Licensee’s obligation to make payments under this EULA.
11.8 Section Headings.The section headings in the EULA are solely used for the convenience of the parties and have no legal or contractual effect.
11.9 Independent Contractors. Nothing in this EULA is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship between the parties.
11.10 Attorney Fees. If either party employs attorneys to enforce any rights arising out of or related to this EULA, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs from the other party.
11.11 Entire EULA. This EULA, including Exhibit B, if applicable, constitutes the entire agreement between the parties with respect to the subject matter thereof and supersedes all prior proposals, agreements, negotiations, representations, correspondence and all other communications, whether written or oral, between CitiXsys and Licensee. No modification or waiver of any provision hereof shall be effective unless made in writing signed by both CitiXsys and Licensee. Any terms and conditions in Licensee’s purchase order or other communication will be null and void and are hereby rejected by CitiXsys.
11.12 Amendments. This EULA may not be amended, except by a writing signed by both parties.
11.13 U.S. Government License Rights. The Software and Documentation covered by this EULA are “Commercial Item(s),”as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable. If the Software and Documentation is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein. Any unpublished rights are reserved under the copyright laws of the United States.
11.14 The Software may contain or be distributed with third party software covered by an open source software license (“Open Source Software”) or other third party software (“Third-Party Software”) covered by a different license. Such software is not included in the definition of “Software” and Licensee’s use of any such Open Source Software and/or Third-Party Software is governed by the terms of the notices, license terms and disclaimers applicable to such software, except that the disclaimers of warranty and limitations of liability of this EULA shall apply to the Open Source Software and Third-Party Software.
ADDITIONAL TERMS FOR HOSTED VERSIONS OF THE SOFTWARE, ADD-INS AND PLUGINS
The terms (“Terms”) set forth in this Exhibit B to the CitiXsys Software End User License Agreement apply to Licensee if Licensee has purchased a license to use the Software as a hosted service provided by CitiXsys. Unless defined in this Exhibit A, capitalized terms appearing in this Exhibit have the meanings set forth in the EULA.
1.1 “Activation Date” means the date on which the Hosted Service is made available to Licensee
1.2 “Licensee Data” ” means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Licensee or any User and received and analyzed by the Hosted Service.
1.3 “Licensee System” means Licensee’s internal website(s), servers and other equipment and software used in the conduct of Licensee’s business.
1.4 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.5 “Subscription Term” means the subscription period for Licensee’s use of the Hosted Service set forth in the purchase order under which Licensee purchased its license to use the Hosted Service from CitiXsys or a CitiXsys authorized reseller, as applicable.
1.6 “Hosted Service” means the hosted Software service provided by CitiXsys to Licensee pursuant to these Terms.
1.7 “Third Party Offerings”means certain software or services delivered or performed by third parties that are required for the operation of the Hosted Service, or other online, web-based CRM, ERP, or other business application subscription services, and any associated offline products provided by third parties, that interoperate with the Hosted Service.
2.LICENSES AND RESTRICTIONS.
2.1 Access and Use License Subject to Licensee’s compliance with the terms and conditions contained in these Terms and the EULA, CitiXsys hereby grants to Licensee, during the relevant Subscription Term, a limited, non-exclusive, non-transferable, revocable (a) right for its Users to access and use the Hosted Service in accordance with the Documentation, and (b) license to download any software offered by CitiXsys that is required for access and use of the Hosted Service (the “Downloadable Software”), in each case solely for Licensee’s internal business purposes and not for the benefit of any other person or entity. Licensee’s use of the Hosted Service may be subject to certain limitations, such as, for example, limits on storage capacity for Licensee Data. Any such limitations will be specified either in an applicable purchase order or in the Documentation. Licensee’s use of Downloadable Software may be subject to additional terms and conditions (the “Downloadable Software License”), and Licensee agrees to comply with all such terms and conditions as a condition to using such Downloadable Software. In the event of any inconsistency between the terms of any Downloadable Software License and these Terms, the terms of the Downloadable Software License shall apply only with respect to the Downloadable Software referenced by such license and no other Downloadable Software or any CitiXsys services.
2.2 Restrictions Licensee shall not, directly or indirectly, and Licensee shall not permit any User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Hosted Service or Downloadable Software; (b) modify, translate, or create derivative works based on any element of the Hosted Service, Downloadable Software or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Hosted Service or Downloadable Software; (d) use the Hosted Service or Downloadable Software for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Licensee and Users; (e) remove any proprietary notices from the Documentation or Downloadable Software; (f) publish or disclose to third parties any evaluation of the Hosted Service without CitiXsys’s prior written consent; (g) use the Hosted Service or Downloadable Software for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the Hosted Service; (i) introduce any Open Source Software into the Hosted Service; or (j) attempt to gain unauthorized access to the Hosted Service or their related systems or networks.
3.THIRD PARTY OFFERINGS.
3.1 Use of Third Party Offerings CitiXsys or third parties may from time to time make Third Party Offerings available to Licensee or require the use of Third Party Offerings to effectively use the Hosted Service. Any acquisition by Licensee of any such Third Party Offerings, and any exchange of data between Licensee and any provider of a Third Party Offering, is solely between Licensee and the applicable provider of the Third Party Offering. CitiXsys does not warrant or support any Third Party Offerings, whether or not they are designated by CitiXsys as “certified” or otherwise, except as specified in an applicable purchase order. If Licensee installs or enables any Third Party Offering for use with the Hosted Service, Licensee acknowledges that CitiXsys may allow providers of that Third Party Offering to access Licensee Data as required for the interoperation and support of such Third Party Offering with the Hosted Service. CitiXsys shall not be responsible for any disclosure, modification or deletion of Licensee Data resulting from any such access by the providers of Third Party Offerings.
3.2 Integration with Third Party Offerings The Hosted Service may contain features designed to interoperate with Third Party Offerings. To use such features, Licensee may be required to obtain access to such Third Party Offering from their providers. If the provider of any Third Party Offering ceases to make the Third Party Offering available for interoperation with the corresponding Hosted Service features on reasonable terms, CitiXsys may cease providing such features without entitling Licensee to any refund, credit, or other compensation.
3.3 CitiXsys Access Codes To the extent that CitiXsys requires that Licensee grant CitiXsys authorizations, passwords or other user credentials to a Third Party Offering (“CitiXsys Access Codes”) to retrieve Licensee Data or to enable interoperability with the Hosted Service, Licensee shall promptly provide such Supplier Access Codes. CitiXsys shall not share, reassign, divulge or disclose any Supplier Access Codes except to CitiXsys employees or authorized contractors specifically engaged in the provision of the Hosted Service. Supplier Access Codes shall constitute Licensee’s Confidential Information under these Terms.
3.4 Third Party Hostings CitiXsys may use the services of one or more third parties to deliver any part of the Hosted Service. In such case, as between CitiXsys and Licensee, CitiXsys shall have sole discretion in determining the third party suppliers to use, the hardware and software used to provide the hosting services, the nature of any database services utilized, and all other technical aspects related to the supply of the Hosted Service. CitiXsys will pass-through any warranties to the extent that CitiXsys receives any from its then current third-party service provider that it can provide to Licensee. Licensee agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Licensee from time to time.
4.1 Passwords CitiXsys or Reseller (as applicable) will issue to Licensee (or its Affiliates designated on an applicable purchase order), user logins and passwords for each User authorized to access and use the Hosted Service. Licensee shall be, and shall ensure that each of its and its Affiliates respective Users are, responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued. Licensee is solely responsible for any and all access and use of the Hosted Service that occurs using logins and passwords issued to Licensee and/or Licensee’s Affiliates. Licensee shall, and shall ensure that Licensee’s Affiliates, restrict its Users from sharing passwords. Licensee agrees to immediately notify CitiXsys of any unauthorized use of any account or login and password issued to Licensee’s or Licensee’s Affiliates’ Users, or any other breach of security known to Licensee. CitiXsys shall have no liability for any loss or damage arising from Licensee’s failure to comply with the terms set forth in this Section.
4.2 No Circumvention of Security. Neither Licensee nor any of Licensee’s Affiliates nor any User may circumvent or otherwise interfere with any user authentication or security of the Hosted Service. Licensee will immediately notify CitiXsys of any breach, or attempted breach, of security known to Licensee
4.3 Security. CitiXsys will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Licensee Data. Notwithstanding the foregoing, Licensee acknowledges that, notwithstanding any security precautions deployed by CitiXsys, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Hosted Service and Licensee Data. CitiXsys cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.
5.1 Licensee System.Licensee is responsible for (a) obtaining, deploying and maintaining the Licensee System, and all computer hardware, software, modems, routers and other communications equipment necessary for Licensee, its Affiliates and their respective Users to access and use the Hosted Service via the Internet; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Hosted Service via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in these Terms, an Order Form or a Statement of Work, CitiXsys shall not be responsible for supplying any hardware, software or other equipment to Licensee under these Terms.
5.2 Acceptable Use.Licensee shall be solely responsible for its actions and the actions of its Users while using the Hosted Service. Licensee acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Licensee’s use of the Hosted Service, including without limitation the provision and storage of Licensee Data; (b) not to send or store data on or to the Hosted Service which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Hosted Service or another’s computer or mobile device; (d) not to upload in any way any data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either “Protected Health Information” subject to and defined by the Health Insurance Portability and Accountability Act, or an individual’s first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver’s license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; (e) not to use the Hosted Service for illegal, fraudulent, unethical or inappropriate purposes; (f) not to interfere or disrupt networks connected to the Hosted Service or interfere with other ability to access or use the Hosted Service; (g) not to distribute, promote or transmit through the Hosted Service any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (h) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (i) not to interfere with another customer’s use and enjoyment of the Hosted Service or another person or entity’s use and enjoyment of similar services; (j) not to use the Hosted Service in any manner that impairs the Hosted Service, including without limitation the servers and networks on which the Hosted Service is provided; (k) to comply with all regulations, policies and procedures of networks connected to the Hosted Service and CitiXsys’s service providers; and (l) to use the Hosted Service only in accordance with the Documentation. Licensee acknowledges and agrees that CitiXsys neither endorses the contents of any Licensee communications, Licensee Data, or Other Information (as defined below) nor assumes any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby. CitiXsys may remove any violating content posted or stored using the Hosted Service or transmitted through the Hosted Service, without notice to Licensee. Notwithstanding the foregoing, CitiXsys does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Licensee Data, Other Information, or any other information or data input into or stored in the Hosted Service for completeness, integrity, quality, accuracy or otherwise. Licensee shall be responsible and liable for the completeness, integrity, quality and accuracy of Licensee Data and Other Information input into the Hosted Service. CitiXsys reserves the right to amend, alter, or modify Licensee’s conduct requirements as set forth in these Terms at any time. CitiXsys may deliver notice of such updated requirements to Licensee via e-mail or through the Hosted Service. Licensee’s continued access to and use of the Hosted Service following issuance of such updated Licensee requirements shall constitute Licensee’s acceptance thereof. CitiXsys may upon written notice to Licensee amend this Section 5.2.
5.3 Temporary Suspension CitiXsys may temporarily suspend Licensee’s, its Affiliates’ or their respective Users’ access to the Hosted Service in the event that either Licensee, its Affiliates or any of their Users is engaged in, or CitiXsys in good faith suspects Licensee, its Affiliates’ or any of their Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). CitiXsys will attempt to contact Licensee prior to or contemporaneously with such suspension; provided, however, that CitiXsys’s exercise of the suspension rights herein shall not be conditioned upon Licensee’s receipt of any notification. A suspension may take effect for Licensee’s entire account and Licensee understands that such suspension would therefore include its Affiliates and User sub-accounts. Licensee agrees that CitiXsys shall not be liable to Licensee, any of its Affiliates or Users, or any other third party if CitiXsys exercises its suspension rights as permitted by this Section. Upon determining that Licensee has ceased the unauthorized conduct leading to the temporary suspension to CitiXsys’s reasonable satisfaction, CitiXsys shall reinstate Licensee’s, its Affiliates and their respective Users’ access and use of the Hosted Service. Notwithstanding anything in this Section to the contrary, CitiXsys’s suspension of Hosted Service is in addition to any other remedies that CitiXsys may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, CitiXsys may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
6.1 AvailabilitySubject to the terms and conditions of these Terms, CitiXsys will use commercially reasonable efforts to make the Hosted Service available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which CitiXsys will use commercially reasonable efforts to provide at least 48 hours advance notice and routine maintenance times currently scheduled for every Sunday, 11:01 p.m. to 06:00 a.m. (Eastern Time) and as otherwise specified by CitiXsys, or (b) any unavailability caused by circumstances beyond CitiXsys’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or the unavailability or modification by third parties of Third Party Offerings. Certain enhancements to the Hosted Service made generally available at no cost to all subscribing customers during the applicable Subscription Term will be made available to Licensee at no additional charge. However, the availability of some new enhancements to the Hosted Service may require the payment of additional fees, and CitiXsys will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. These Terms will apply to, and the Hosted Service includes, any enhancements, updates, upgrades and new modules to the Hosted Service subsequently provided by CitiXsys to Licensee hereunder.
6.2 Software AssuranceLicensee may purchase, renew, or resume Software Assurance through Reseller. In no case shall CitiXsys shall be obliged to deliver Software Assurance to Reseller with respect to any licensee until and unless it has received from Reseller the applicable fee for purchase, renewal or resumption of the Software Assurance, as applicable. Each Licensee must enter into Software Assurance during the first year of its license of the Software. If a Licensee has discontinued Software Assurance and subsequently wishes to resume it, then CitiXsys shall not be obliged to deliver Software Assurance to Reseller until and unless it has received from the Reseller the Software Assurance Fee for the then-current term as well as the fee for the entire preceding period during which the Software Assurance was inactive. With respect to the Subscription Licenses, the Software Assurance will cease automatically after the specified period. CitiXsys will not take any responsibility if the Software Assurance are not renewed on time or are not applied in time.
In addition to the indemnification obligations set forth in the main body of the EULA, the parties agree to the following indemnification obligations with respect to the provision and use of the Hosted Service:
7.1 CitiXsys Indemnity.
(a) General. CitiXsys will defend, at its expense, any legal proceeding brought against Licensee to the extent such proceeding is based on a third party claim, action or suit that the use of the Hosted Service by Licensee is a direct infringement of a copyright or a United States patent issued as of the Effective Date, and CitiXsys will pay all damages awarded by a court of competent jurisdiction attributable to such claim or settlement amount paid to settle the claim, provided that Licensee (i) provides prompt notice of the claim to CitiXsys; (ii) gives CitiXsys sole control of the defense and settlement of the claim; (iii) provides to CitiXsys all available information, assistance, and authority to defend; and (iv) has not compromised or settled such proceeding without CitiXsys’s prior written consent. Licensee may, at its own expense, engage separate counsel to advise Licensee regarding a Claim and to participate in the defense of the claim, subject to CitiXsys’s right to control the defense and settlement.
(b) Mitigation. If any claim which CitiXsys is obligated to defend Licensee under this Section 7.1 has occurred, or in CitiXsys’s determination is likely to occur, CitiXsys may, in its sole discretion and at its option and expense (a) obtain for Licensee the right to use the Hosted Service, (b) substitute a functionality equivalent, non-infringing replacement for such the Hosted Service, (c) modify Hosted Service to make it non-infringing and functionally equivalent, or (d) terminate these Terms and refund to Licensee any prepaid amounts attributable the period of time between the date Licensee was unable to use the Hosted Service due to such claim and the remaining days in the then-current Subscription Term.
(c) Exclusions. Notwithstanding anything to the contrary in these Terms, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Licensee’s use of infringing Licensee Data; (ii) use of the Hosted Service in combination with any software, hardware, network or system not supplied by CitiXsys where the alleged infringement relates to such combination, (iii) any modification or alteration of the Hosted Service other than by CitiXsys, (iv) Licensee’s continued use of the Hosted Service after CitiXsys notifies Licensee to discontinue use because of an infringement claim, (v) use of Open Source Software; (vi) Licensee’s violation of applicable law; (vii) Third Party Offerings; or (viii) the Licensee System.
(d) Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF CITIXSYS WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE HOSTED SERVICE, AND LICENSEE HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF CITIXSYS WITH RESPECT THERETO.
7.2 Licensee Indemnity. Licensee shall defend CitiXsys and its Affiliates, licensors and their respective officers, directors and employees (“CitiXsys Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Licensee Data or Licensee System (and the exercise by CitiXsys of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) Licensee’s use or alleged use of the Hosted Service other than as permitted under these Terms; or (c) arising from the occurrence of any of the exclusions set forth in this agreement. Licensee shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) incurred by the CitiXsys Indemnified Parties from any such Third-Party Claim. Licensee’s obligations under this Section are conditioned upon (x) Licensee being promptly notified in writing of any claim under this Section, (y) Licensee having the sole and exclusive right to control the defense and settlement of the claim, and (z) CitiXsys providing all reasonable assistance (at Licensee’s expense and reasonable request) in the defense of such claim. In no event shall CitiXsys settle any claim without Licensee’s prior written approval. CitiXsys may, at its own expense, engage separate counsel to advise CitiXsys regarding a Third-Party Claim and to participate in the defense of the claim, subject to Licensee’s right to control the defense and settlement.
8.1 Hosted Service.As between CitiXsys and Licensee, all right, title and interest in the Hosted Service, Downloadable Software, and any other CitiXsys materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Licensee regarding CitiXsys, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by CitiXsys or CitiXsys’s licensors and providers, as applicable. Licensee hereby does and will irrevocably assign to CitiXsys all evaluations, ideas, feedback and suggestions made by Licensee to CitiXsys regarding the Hosted Service (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.
8.2 Licensee Data. As between CitiXsys and Licensee, all right, title and interest in (a) the Licensee Data, (b) other information input into the Hosted Service by Licensee (collectively, “Other Information”) and (c) all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Licensee. Licensee hereby grants to CitiXsys a limited, non-exclusive, royalty-free, worldwide license to use the Licensee Data and perform all acts with respect to the Licensee Data as may be necessary for CitiXsys to provide the Hosted Service to Licensee, and a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and distribute the Other Information as a part of the Aggregated Statistics (as defined below). To the extent that receipt of the Licensee Data requires CitiXsys to utilize any account information from a third party service provider, Licensee shall be responsible for obtaining and providing relevant account information and passwords, and CitiXsys hereby agrees to access and use the Licensee Data solely for Licensee’s benefit and as set forth in these Terms. As between CitiXsys and Licensee, Licensee is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Licensee Data.
8.3 Aggregated Statistics.Notwithstanding anything else in these Terms or otherwise, CitiXsys may monitor Licensee’s use of the Hosted Service and use data and information related to such use, Licensee Data, and Other Information in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Hosted Service (“Aggregated Statistics”). As between CitiXsys and Licensee, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by CitiXsys. Licensee acknowledges that CitiXsys will be compiling Aggregated Statistics based on Licensee Data, Other Information, and information input by other customers into the Hosted Service and Licensee agrees that CitiXsys may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Licensee or its Confidential Information.
9.TERM AND TERMINATION
9.1 TermThe term of these Terms commence on the Activation Date and continue until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in these Terms. Except as otherwise specified in an applicable purchase order, Subscription Terms for all Users shall automatically renew for additional periods equal to the expiring Subscription Term unless one party gives the other written notice of non-renewal at least thirty (30) days prior to the expiration of the then current Subscription Term. The per-unit pricing during any automatic renewal term shall be the same as that during the immediately prior term unless CitiXsys has given Licensee written notice of a pricing increase at least sixty (60) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
9.2 Termination. These Terms shall terminate upon any termination or expiration of the EULA. At any time after the initial Subscription Term, Licensee shall have the right to terminate these Terms (but not the EULA) for convenience on at least thirty (30) days prior written notice to CitiXsys; provided, however, that under no circumstances shall Licensee be entitled to any refund of any Cloud Fees for such termination. Should Licensee desire to continue to use the Software on-premises, but not as part of the Hosted Service, Licensee may cease payment of applicable Cloud Fees at the end of the then current Subscription Term, but must continue to pay all other License Fees and SA Fees. CitiXsys shall have the right to terminate any these Terms for convenience on at least thirty (30) days prior written notice to Licensee.
9.3 Effects of Termination.Upon expiration or termination of these Terms, (a) Licensee’s use of and access to the Hosted Service shall cease; and (b) all fees and other amounts owed to CitiXsys shall be immediately due and payable by Licensee, including without limitation, all fees incurred under any outstanding purchase order. Upon Licensee’s request made within thirty (30) days after the effective date of applicable termination or expiration, CitiXsys shall make any Licensee Data stored on the Hosted Service available for download by Licensee in the format in which it is stored in the Hosted Service. After such 30-day period, CitiXsys shall have no obligation to maintain or provide any Licensee Data and may thereafter, unless legally prohibited, delete all Licensee Data in its systems or otherwise in its possession or under its control. Unless otherwise set forth herein, Licensee shall not be entitled to any refund of any fees or amounts paid by Licensee under these Terms as a result of termination.
9.4 Suspension of Service. In addition to its termination rights set forth above, if any amounts owed by Licensee for the Hosted Service are seven (7) or more days overdue, CitiXsys may, without limiting CitiXsys’s other rights and remedies, suspend Licensee’s and its Users’ access to the Hosted Service until such amounts are paid in full.