Thentia USA Software End User License Agreement


This End User License Agreement (“EULA”) is between the entity you represent (“Licensee”), or, if you do not designate an entity in connection with a licensing purchase or renewal, you individual (“you” or “your”) and Thentia USA Inc. (“Thentia”) and covers your use of any software-as-a-service product for which Thentia provides access to you (the “Services”). It consists of the general terms and conditions under which Thentia, or any Thentia Affiliate will provide professional services, software services, support services and other related services.  It consists of the terms below, as well as any written agreement between you and Thentia, including the payment terms in your applicable Service Schedule, Service Level Agreement, and the Statement of Work (“SOW”) for your license or renewal (together, the “Thentia Agreements”). Definitions of capitalized terms are in Section 21 (Definitions).


THENTIA PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND THE THENTIA AGREEMENTS ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY YOUR USE OF THE SERVICES YOU (A) ACCEPT THIS EULA AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE OR YOU DO NOT AGREE TO THE TERMS OF THIS EULA, THENTIA IS NOT REQUIRED TO LICENSE THE SOFTWARE TO LICENSEE OR YOU.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS EULA, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS EULA, AND THIS EULA EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE OR SERVICES THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF THENTIA’S SOFTWARE OR SERVICES.

1. Provision of Software Services

We shall provide you and you will have the right to receive the Services identified in this EULA or any Thentia Agreement subject to the terms and conditions stated in this EULA.

2. Authorized Users

Where a Thentia Agreement provides for your receipt and your provision of Services, Thentia or its Affiliate will provide you with one or more administrator accounts for the Services (an “Admin Account”). You are responsible for: (a) all activities that occur under the Admin Account or Authorized Users’ accounts; (b) maintaining the security and confidentiality of all user names and passwords for the Admin Account and each Authorized User account; and (c) any loss or damage suffered by you or us as a result of your Authorized User’s failure to adequately safeguard any such account information. You shall promptly notify us of any unauthorized use or access to the Services of which you become aware or that you reasonably suspect.

3. Restrictions with respect to Services

You and your Authorized Users shall use the Services only for internal business purposes and in accordance with the Documentation. You shall ensure that its Authorized Users use of the Services complies with this EULA. Without limitation of the foregoing, except as expressly permitted by this EULA, you and your Authorized Users shall not, and shall not permit or authorize any Person, directly or indirectly, to: (a) use any user identifications, codes, passwords, procedures, or user keys issued to you for access to and use of the Services by any Person that is not authorized to access and use the Services under the terms of the Thentia Agreement; (b) license, sell, lease, rent, outsource, or otherwise make available the Services or any part thereof to any Person or act as an intermediary, aggregator, or service bureau; (c) make any use of the Services that violates applicable Law or privacy rights, Intellectual Property Rights, or other rights of any Person; (d) decompile, reverse engineer, or otherwise access or attempt to access the source code for the Services or make or attempt to make any modification to the Services (except to the extent the foregoing restriction is prohibited under applicable Law); (e) damage, disrupt, or impede the operation of Thentia’s services or systems; (f) circumvent the user authentication or security of the Services or any host, network, or account related thereto; (g) use any application programming interface (i.e., API) to access the Services other than an application programming interface made available by Thentia for such purpose or use or launch any automated system, including “robots,” “spiders,” or “offline readers” to access the Services; (h) mirror the Services on any server; (i) use meta tags or any other “hidden text” using Thentia’s trademarks, service marks, logos, or other indicia of origin; (j) transmit any viruses, worms, defects, Trojan horses, or programming of a destructive nature through the Services; (k) delete, remove, modify, obscure, fail to reproduce, or in any way interfere with any proprietary, trade secret, or copyright notice appearing on or incorporated in the Services; (l) use any non-production instance for any production activities; (m) use the Services to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; or infringe property rights; or (n) access or use the Services to build or support, directly or indirectly, products or services competitive to Thentia.

4. Changes to Services

We may modify the Services (and features within the Services) from time to time at our sole discretion and such modifications shall replace prior versions. Except for modifications made to comply with applicable Law or address a security risk, we shall not make any modification to the Services that materially degrades the functionality, security or data protection features of the Services. The terms of this EULA shall apply to modifications, updates and upgrades to the Services as may be subsequently provided by Thentia to you.

5. Suspension of Services

We may suspend immediately yours or any Authorized User’s account or access to or use of the Services without any penalty or liability at any time in our discretion in the event that we determine that such suspension is necessary or prudent, whether for security, emergency, legal, or other such reasons, including if such account or activity is known or reasonably suspected by us to be (a) disrupting or causing harm to our or another Person’s computers, systems, or infrastructure or (b) is in violation any term here, applicable Law, or the Documentation; provided that, we shall use commercially reasonable efforts to notify you of any such suspension, either before or after such suspension, and shall remove such suspension upon resolution to Thentia’s reasonable satisfaction of the circumstances giving rise to such suspension.

6. Third-Party Products

You acknowledge that, depending upon the Services configuration and deployment option selected by you, the use of the Services may require the use of Third-Party Products.  You agree that we have no responsibility or obligation to supply (except as may be expressly specified in the Documentation or the Agreement), or any liability whatsoever concerning, the Third-Party Products and that you shall be solely responsible for sourcing, acquiring, and licensing such Third-Party Products directly from the applicable Third-Party Products vendors (unless the parties hereto otherwise agree in writing).  We do not warrant any such Third-Party Applications. Any procurement by you of such Third-Party Applications or services is solely between you and the applicable Third-Party provider.  You acknowledge and agree that Thentia may enable such Third-Party providers to access Client Data for the interoperation of such Third-Party Products with the Services.  Thentia shall not be responsible for any disclosure, modification or deletion of Client Data resulting from any such access by Third-Party Products or Third-Party providers.

7. Monitoring Use

We shall have the right to monitor your use of the Services for the purpose of verifying your compliance with this EULA, including to verify the fees payable in respect of your use of the Services.

8. Attendance on Client Premises and Access to Client Systems

If under this EULA we may come onto your premises or access to your systems remotely, we will comply with all terms agreed on by the Parties for those situations and observe all of your rules, guidelines, and policies that are provided in writing by you to us applicable to those situations.

9. Client Obligations

You shall cooperate with us in all matters relating to the Services in a timely manner and execute and deliver all documents, forms, or instruments necessary for us to implement and render the Services; provide us with all reasonable and necessary data and information in the format requested by us (shall be your responsibility to provide the Client Data in the format requested by us and to ensure the accuracy and adequacy of all such Client Data), and will otherwise provide all reasonable assistance required of yours in order for us to successfully implement the Services on a timely basis; follow our direction, policies, and procedures with respect to the design and implementation of the Services; provide access to your premises and such office accommodation and other facilities as may reasonably be requested by you for the purposes of performing the Services; respond promptly to any Thentia request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for us to perform Services in accordance with the requirements of this EULA; and provide such information as we may reasonably request in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects.

10. System Requirements

The networks, systems, equipment, cabling, facilities and workstations from which you and your Authorized Users access and use the Services or that are used directly or indirectly in the provision of the Services (the “Client Systems”) shall be in good working order, suitable for the purposes for which it is used in relation to the Services, and conforms to all relevant Thentia, legal or industry standards or requirements (the “System Requirements”). Client shall keep the Client Systems current at all times with the then-current System Requirements. Thentia shall have no liability for any failure to access or use the Services due to the failure of any Client Systems to comply with the then-current System Requirements.

11. Client Performance.

The parties agree and acknowledge that: (a) our performance of the Services shall be conditional upon, and subject to, your performance of your obligations hereunder (including any obligations specified in a SOW); (b) that we shall not be liable or responsible, in any manner or to any extent, for any failure of ours to perform all, or any part of, the Services to the extent that any such failure is caused by, due to or contributed to by a failure of Client to perform its obligations; and (c) that we will not be liable for loss or damage or errors arising from reliance on any Client Data or other information, materials, data, graphics, requirements, documents (regardless of form or format) provided by or on behalf of you to us in connection with the performance of the Services (collectively, the “Client Materials”, provided that such term shall not include any Services, Thentia IP, or third-party materials or technology).

12. Access and Use of Client Provided Materials

You acknowledge that in the performance of the Services you may make available to us certain Client Materials and/or Client Data, and further acknowledges that in order to provide the Services, Thentia may require remote access to your Systems. Client hereby grants to us a limited, non-exclusive, sublicensable (to Thentia and its affiliates, personnel, and subcontractors), non-transferable and fully paid-up license to access, store and use any Client Materials, Client Data and/or Client Systems (including, where authorized to do so, via remote access) made available to Thentia for the sole purpose of and only to the extent required in order to perform its obligations under this EULA or any Thentia Agreement, to perform the requested activities. In such circumstances you agree that we may transfer or disclose Client Data to third parties, including to our affiliates, personnel, and subcontractors and any third-party hosting providers, to the extent reasonably required to perform its obligations hereunder. Subject to the limited licenses granted herein, we acknowledge and agree that all right, title and interest whatsoever, in and to the Client Materials, Client Data and Client Systems including all intellectual property and other proprietary rights therein is, and shall be, owned solely and exclusively by you and/or your third-party licensors. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of your Materials and Client Data. You are solely responsible for the selection and implementation of procedures and processes and controls regarding the access, security, encryption, use and transmission of Client Data to us.

13. Cooperation

The parties will work together to implement the Services.  You acknowledge and agree that the Services provided by us are not fully customizable and you shall follow Thentia’s direction, policies, and procedures with respect to the design and implementation of the Services.

14. Financial

Fees Payable. Thentia will invoice you in respect of, and you shall pay to Thentia, the fees for the (the “Fees”). All payments are due in USD currency. All amounts paid by you to Thentia are non-refundable and are not subject to offset.
 
Invoices, Taxes, and Withholdings. Unless otherwise set out, you will pay all Fees invoiced within 30 days of receipt of each invoice. Invoices will be sent, and Fees shall be paid electronically unless otherwise agreed with you. You shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by you hereunder except for any taxes imposed on, or with respect to, Thentia’s income, revenues, gross receipts, personnel, or real or personal property or other assets. We will invoice you for applicable taxes at the time the associated Fees are invoiced.
 
Late Payment. Late payments shall accrue interest from the due date at a rate of one and one-half percent (1.5%) per month or, if lower, the highest rate allowed by applicable Law.  Payments shall first be applied against the payment of any late fees that have accrued, after which any balance remaining shall be applied to payment of the principal due and outstanding. You shall pay all reasonable expenses incurred by us related to the collection of late payments, including reasonable attorneys’ fees.
 
Suspension for Nonpayment. Without limiting Thentia’s rights, if you fail to pay any amounts when due and you do not remedy such failure within five (5) Business Days after the date that we notify you of the unpaid amounts, we may, without liability, cease performing or making available, as applicable, some or all of the Services, including access to the Services, until full payment of all outstanding amounts is received.

15. Warranties

By Thentia. Thentia represents, warrants, and covenants that the Services will function as described in the Documentation in all material respects.

Remedy. For any breach of our warranties under these terms, your sole and exclusive remedy and our entire liability shall be the correction of the deficient Services that caused the breach of warranty, or if we cannot substantially correct the deficiency in a commercially reasonable manner, you may terminate the deficient Services pursuant to the terms herein and we will refund to you the Fees for the terminated Services that you pre-paid to us in respect of the period following the effective date of termination.

By Client. You represent, warrant, and covenant that (a) you own all right, title, and interest in or has a license to all Client Data and has the right to, and has obtained from all applicable Persons all rights and consents necessary to, provide such Client Data to us; and (b) it has obtained all consents and provided all notices required under applicable Privacy Laws for the collection and use of all Client Data for the purposes of this EULA and any Thentia Agreement.
 
Warranty Disclaimer. Except for the express warranties set forth in this Section 15, the services are provided “as is” and “as available” and Thentia and its affiliates and third party suppliers hereby expressly disclaim all warranties and conditions of any kind or nature, whether express, implied or statutory, including any implied warranties of merchantability, title, non-infringement, fitness for a particular purpose, that defects shall be corrected, that the services shall be free of viruses or other harmful components, or that access to the services and their use shall be uninterrupted or error-free, and all warranties arising from course of dealing, usage, or trade practice. All third-party materials are provided “as is” and any representation or warranty of or concerning any third-party materials is strictly between client and the third-party owner or distributor of the third-party materials.

16. Ownership Rights

Thentia IP. As between Client and Thentia, Thentia owns and shall retain all right, title, and interest, including all Intellectual Property Rights, used in or to provide the Services, the Deliverables, the Documentation, Thentia’s and its licensors’ trademarks, service marks, logos, and other indicia of origin used in connection with the Services and all proprietary information and know-how of Thentia and its licensors incorporated in or used in the provision of the Services, and all updates, modifications, improvements, and derivative works of any of the foregoing (collectively, the “Thentia IP”). All right, title and interest, including all Intellectual Property Rights, in Thentia IP vests automatically and immediately in Thentia on creation. Thentia expressly reserves all rights in the Thentia IP. All use of Thentia’s and its licensors’ trademarks, service marks, logos, and other indicia of origin hereunder shall inure to the benefit of the owner thereof.
 
Client Data. As between Client and Thentia, Clients owns and shall retain all right, title and interest, including all Intellectual Property Rights, in Client Data. Client hereby grants to Thentia a limited, non-transferable, non-exclusive, worldwide, fully paid up, royalty-free sublicensable (to Thentia and its Affiliates, personnel, and subcontracts) license to, during the term of the applicable Thentia Agreement, use, copy, store, and display Client Data solely as necessary for the purpose of performing its obligations under this EULA and any Thentia Agreement.  Thentia shall have no obligation to check any Client Data for accuracy, adequacy, or completeness and may assume that all Client Data uploaded to the Services or provided to Thentia is accurate, adequate, and complete as submitted. Thentia will not be responsible for any error, omission, or damages caused by an inaccuracy, inadequacy, or lack of completeness with respect to such Client Data.
 
Feedback. You and your employees, agents and subcontractors may provide to us, but have no obligation to provide, input regarding the Services, including comments or suggestions regarding the possible creation, modification, correction, improvement, or enhancement of the Services or other products or the technology marketplace in general (collectively, “Feedback”).  You hereby grant to us a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid up, transferable license, with right of sublicense, to use, reproduce, modify, disclose, and otherwise exploit all Feedback in any manner for any purpose.
 
Residual Knowledge. You acknowledge and agree that: (a) Thentia has certain knowledge, skills and expertise which forms an integral and continuing part of its business; (b) in the process of performing services for you hereunder and services for others, we have developed, and will continue to develop general skills, know-how, expertise, professional experience and generic information of general application that are neither unique nor specific to Client (including underlying concepts and ideas, knowledge, techniques, skills, methods and know-how) (“Background Knowledge”). Subject to our obligations of confidentiality hereunder, you agree that nothing in this EULA or any Thentia Agreement shall limit, restrict or otherwise prevent us and/or our licensors from using any Background Knowledge, including to provide services to any other person.
 
General. To the extent any right, title, interest or Intellectual Property Rights in any of the Thentia IP does not automatically and immediately vest in Thentia, you hereby irrevocably assigns, transfers and conveys (and shall cause to be assigned, transferred and conveyed), without reservation, and, to the extent necessary, agrees to irrevocably assign, transfer and convey, without reservation, to us, all such right, title and interest thereto and to waive, or cause to be waived, all moral and similar rights therein and thereto in favor of Thentia. Client agrees to execute such documents and cause its employees, agents, and subcontractors to execute such documents as may be required to give effect to the ownership rights of Thentia as set out herein.

Protection of Client Marks and Artwork. “Client Marks” means all trademarks, service marks, logos, and other indicia of origin belonging to you, whether registered or not. “Artwork” means any templates, drawings, specifications, or other artwork you provide to us in connection with our performance of Services. We may use any Client Mark or Artwork only if necessary to perform the Services and then only as approved in advance by you. We will comply with any written specifications provided by you to us for such use. We will not (a) impair your rights in Client Marks in any way; (b) acquire any title to Client Marks through their use and may not claim any title to Client Marks through their use; (c) make any unlicensed use of any Client Mark or (d) file any application in any jurisdiction for the registration of any Client Mark. Thentia’s use of Client Marks is to accrue to your benefit. Any artwork created by us containing any Client Mark must be approved by you before it may be used for Services.
 
Preservation of Parties’ Rights. Except as expressly stated, neither Party transfers to the other any Intellectual Property Rights or other property under this EULA or any Thentia  Agreement. Either Party is free to use in its business any skills, experience, ideas, concepts, know-how, or techniques that it acquires in performing or receiving the Services, so long as in doing so that Party does not infringe the other’s Intellectual Property Rights or breach its obligations in respect of Confidential Information under this EULA.

17. Confidentiality Obligations

Confidential Information. “Confidential Information” means all data and information in any form whatsoever, whether disclosed orally or disclosed or accessed in written, electronic, or other form of media disclosed or made available by a Party or its Affiliates (“Disclosing Party”) to the other Party or its Affiliates (the “Receiving Party”) in the course of dealings under any Thentia Agreement that can reasonably be inferred to be confidential or proprietary in nature, whether or not marked or described as “confidential”. Client Data, Client Usage Information and Anonymized Data generated therefrom shall constitute Client’s Confidential Information. Information communicated, disclosed, or made accessible by Thentia to you in the course of providing the Services (excluding Client’s Confidential Information) constitutes Thentia’s Confidential Information, including the Services (excluding Client Data), the Deliverables (excluding Client’s Confidential Information included therein), the Documentation and all other Thentia IP. Despite the foregoing, Confidential Information shall not include any information (other than information about identifiable individuals) which (i) is or becomes publicly known through no wrongful act or failure to act on the part of the Receiving Party; (ii) is rightfully obtained by the Receiving Party, free from any obligation of confidence, from a Third Party; (iii) is known to the Receiving Party prior to such information having been furnished to the Receiving Party in the course of the dealings relating to this EULA and was not subject to any confidentiality obligation on the part of the Receiving Party; or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.

Protection of Confidential Information. Each Party, as a Receiving Party, shall: (a) hold the Confidential Information of the Disclosing Party in confidence; (b) not use or copy the Confidential Information of the Disclosing Party except for purposes of exercising its rights or performing its obligations under the applicable Thentia Agreement; (c) not disclose the Confidential Information of the Disclosing Party except to its directors, officers, employees, independent contractors and subcontractors who (i) have a need to know such information for the purposes of the Party exercising its rights or performing it obligations under the applicable Thentia Agreement, (ii) are informed of the confidential nature of the information, and (iii) agree in writing or are otherwise bound to act in accordance with the obligations set out in this Section 17, (d) safeguard the Confidential Information of the Disclosing Party using the same degree of care as it uses to protect its own Confidential Information of a like nature, but in any event not less than a reasonable degree of care; and (e) promptly notify the Disclosing Party in writing of any unauthorized disclosure or unauthorized use of the Disclosing Party’s Confidential Information of which it becomes aware. Further, Thentia will not compile, capture, track or use any Client Usage Information, except as Anonymized Data (i) for purposes of verifying Client’s compliance with this EULA and any Thentia Agreement (including determination of Fees for Services); and (ii) to provide, support, maintain and improve the Services (but for no other purpose).
 
Exceptions. Each Party, as a Receiving Party, shall be relieved from its obligations: (a) to the extent the Disclosing Party gives its prior written consent; or (b) to the extent necessary under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, provided that unless otherwise prohibited, the Receiving Party shall provide prior written notice of such disclosure to the Disclosing Party to afford the Disclosing Party the opportunity to seek a protective order. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions of this EULA, the Receiving Party will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information.

Information Security. Thentia shall use commercially reasonable electronic, organizational, and physical security measures to safeguard Client Data. Thentia shall notify you promptly in the event of any loss or theft of, or unauthorized access to or use or disclosure of, Client Data. You acknowledge and agrees that it is solely responsible for: (a) implementing and managing security and privacy measures for the Client Systems and any items not provided and managed by Thentia within the Services, such as systems and applications built or deployed by you upon the Services, any Third-Party Products, and your end-user access control to the Services, (b) all information, instructions, and materials provided by or on behalf of you or any Authorized User in connection with the Services; (c) your information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services; (d) the security and use of you and your Authorized Users’ access credentials; (e) all access to and use of the Services directly or indirectly by or through the Client Systems or its or its Authorized Users’ access credentials, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use; and (f) the accuracy and completeness of all Client Data.
 
Transmission of Data. You understand that the technical processing and transmission of data is fundamentally necessary to use of the Services.  You are responsible for securing DSL, cable or another high-speed internet connection and up-to-date “browser” software in order to utilize the Services. You expressly consent to our interception and storage of data (including Client Data) as needed to provide the Services hereunder, and you acknowledge and understand that Client Data will be transmitted over the internet, and over various networks, only part of which may be controlled by us. You further acknowledge and understand that such data transmitted in the use of the Services may be accessed by unauthorized parties when communicated across the internet, network communications facilities, telephone, or other electronic means.  Without limiting our applicable obligations, Thentia is not responsible for any Client Data which is delayed, lost, altered, intercepted, or stored during the transmission of any data whatsoever across networks not controlled by Thentia, including, but not limited to, the internet and your local network.

Obligations on Termination. On the termination or expiry of this EULA or any Thentia Agreement, as applicable: (a) Client will have the opportunity to download its Client Data from the Services within 30 days from the effective date of termination, after which Thentia will have no responsibility to store, and may delete such data from the Services; and (b) other than with respect to Client Data in the Services for which (a) applies, each Party, as a Receiving Party, shall, at the request of the Disclosing Party: (i) promptly return or, at the option of the Disclosing Party, destroy all Confidential Information of the Disclosing Party which is in physical form that is held by the Receiving Party or by other Persons for which the Receiving Party is responsible hereunder; and (ii) destroy all Confidential Information of the Disclosing Party in electronic form, whether held by the Receiving Party or by other Persons for which the Receiving Party is responsible hereunder; provided that each Party, as a Receiving Party, may retain Confidential Information of the Disclosing Party (x) stored in electronic records, to the extent it is backed up or archived as a matter of routine processes on the electronic information management and communications systems or servers of the Receiving Party and such backed up or archived Confidential Information is not intentionally accessed; (y) to the extent retention is required by applicable Law; or (z) as may be required for the Receiving Party to demonstrate its compliance with this EULA, provided that in each case, the Confidential Information remains subject to the confidentiality obligations herein, which obligations survive indefinitely. Confidential Information that constitutes a trade secret under any applicable law, in which case, such obligations shall survive for as long as such Confidential Information remains a trade secret under such law.
 
Use of Client Name/Marks. We may use your name and any Client Mark on our website and in marketing and advertising materials for the purpose of identifying you as our customer.

18. Liability

Exclusion of Certain Damages. In no event will Thentia or its Affiliates be liable to you or its Affiliates for any special, indirect, punitive, enhanced, incidental, consequential or exemplary damages, or any loss of profits, revenue, data, goodwill or reputation, or failure to realize expected savings, or any other economic loss, even if it has been informed of the possibility of these types of damages and notwithstanding the failure of any agreed or other remedy of its essential purpose. This exclusion of liability applies regardless of the cause of action, whether in contract or tort, including without limitation negligence and strict liability.

Liability of Liability. In no event shall the aggregate liability of Thentia and its affiliates arising out of or related to this EULA or any Thentia Agreement, whether under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, exceed the total amounts actually paid by client to Thentia for the services giving rise to the liability during the twelve (12) months immediately preceding the event giving rise to such liability.
19. Termination of Agreement

This EULA shall remain in effect until its earlier termination or the expiration or termination of all Thentia Agreements.   Without limiting Thentia’s rights under these terms, we may terminate this EULA or any Thentia Agreement immediately upon notice to you if you have failed to pay an amount payable to Thentia when due, and such amount remains unpaid fifteen (15) days after your receipt of notice from us that such amount has not been paid. You shall have a period of sixty (60) days following in which to download the Client Data applicable to the expired or terminated Services. You acknowledge and agree that: (y) it is your sole responsibility to download the Client Data from the Services within the time period set out in this subsection; and (z) Thentia has no responsibility to store, and may delete, Client Data after the expiry of the time period set out in this subsection. Upon the expiration or termination of this EULA or any Thentia Agreement, you shall immediately cease all access to and use of the Services and associated Thentia IP and the rights granted in this EULA or any Transaction Agreement (as applicable) with respect to the terminated Services shall automatically terminate (other than the rights to download Client Data from the Services). Where you have terminated this EULA or a Thentia Agreement, as applicable, pursuant to these terms, you shall immediately pay to Thentia all outstanding Fees and other amounts due hereunder for Services received up to the effective date of termination. All fees are non-refundable. Termination of a single Thentia Agreement does not automatically terminate other Thentia Agreements that may then be in effect between the Parties. Each separate agreement between the Parties may be terminated in accordance with its respective terms and conditions. On termination or expiration of any Thentia Agreement, the Parties may agree in writing for Thentia or its Affiliate to provide, and you to receive, Professional Services to facilitate your wind-down of Services. Such Professional Services will be provided at Thentia’s then-current rates and may be provided pursuant to a separate professional services agreement.

20. General Terms and Conditions

Parties’ Representatives. The Parties will each appoint a representative for the Services.

Injunctive Relief. Your breach of any restrictions set forth in this EULA may cause immediate and irreparable harm to Thentia for which money damages may not constitute an adequate remedy.  In such event, Thentia shall be entitled to seek injunctive or other equitable relief for any such violation or incident, without proof of actual damages. Except as expressly set forth in this EULA, the right and remedies under this EULA are cumulative and in addition to any other rights or remedies available at law or in equity or otherwise.

Notices. Any notice, request, demand, instruction, or other document to be given to Thentia under this EULA must be in writing and delivered by registered mail to notices@thentia.com..

Severability.  If any provision of this EULA or the application of any provision to any person or circumstance is determined to be unenforceable to any extent, the remaining provisions of this EULA shall remain in effect if the essential provisions of this EULA for each Party remain enforceable. If any provision is determined to be invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this EULA so as to effect the original intent of the parties as closely as possible.

No Waiver. No failure or delay to exercise any right and no custom of the Parties may form a waiver of a Party’s right to demand full compliance with this Agreement.
 
Force Majeure. If the performance by Thentia of any of its obligations under this EULA is prevented, hindered, or delayed due to any cause beyond its reasonable control, including, work stoppages, natural disasters, catastrophic weather events, fires, riots, outbreaks of disease or pandemics, accidents, terrorism, war, unavailability of Third Party materials, or outages of power or communications networks (each a “Force Majeure Event”), then Thentia shall not be liable for such non-performance, hindrance, or delay as long as the Force Majeure Event and its effects continue.

Relationship of the Parties. Thentia is an independent contractor, not your agent, joint venturer, partner, or fiduciary, and does not undertake to perform any of your regulatory obligations or assume any responsibility for your business or operations.  Each Party is responsible for determining the assignment of its employees and agents, and their respective contractors, and for their direction, control, and compensation.
 
Subcontracting. Thentia may subcontract obligations to you but will remain liable to you for any subcontracted obligations.

Third-Party Beneficiaries. This EULA is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express, or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this EULA.
 
Entire Agreement. This EULA together with any Thentia Agreement is the entire agreement between the Parties about its subject matter and may not be amended except by an agreement in writing.
 
Governing Law. Any legal action or proceeding with respect to this Agreement shall be brought exclusively in a District Court in the State of Delaware, or the United States District Court for the State of Delaware.  By execution and delivery of this Agreement, the parties irrevocably accept the exclusive jurisdiction of such courts and waive, to the fullest extent permitted by law, any objection that they may now or hereafter have to the jurisdiction or laying of venue of any such litigation brought in any such court and any claim that any such litigation has been brought in an inconvenient forum.  The parties acknowledge that the acceptance of the exclusive jurisdiction of such courts is a material consideration for entering into and performing this Agreement.  Notwithstanding the foregoing, if You are a US public sector agency or government institution in the United States, the laws of the primary

jurisdiction in which You are located will govern this Agreement and any disputes arising from it.
 
Survival. Any terms and conditions of this EULA which by their nature extend beyond the end of the Term will survive and remain in effect after the end of this EULA.

Waiver of Jury Trial.  To the extent legally permissible, the parties irrevocably waive any right to demand that any action, proceeding, or counterclaim arising out of or in any way related to this EULA or the relationship of the parties be tried by jury. This waiver extends to any right to demand a trial by jury arising from any source, including the Constitution of the United States or any state therein, common law, or any applicable statute or regulation. The parties acknowledge that they are knowingly and voluntarily waiving their rights to demand trial by jury and that such waiver is a material consideration for entering into and performing this EULA.
 
Conflict. If there is any conflict between this EULA and any Thentia Agreement, then the Thentia Agreement will prevail.
21. Definitions

“Affiliate” means, in relation to a Person, any Person that controls, is controlled by, or is under common control with such first-mentioned Person, where control means possessing (a) directly or indirectly, the power to direct or cause the direction of the management, policies, or operations of a Person, whether through ownership of voting securities, by contract, or otherwise or (b) the ownership of, or the power to vote, more than fifty percent (50%) of the voting stock, shares, or interests of a Person.

“Anonymized Data” means aggregated, anonymized data that: (a) is derived from Client Data or Client Usage Information, and (b) does not contain any information that is protected by Privacy Laws.

“Authority” means any applicable court, stock exchange authority, regulatory, arbitral, governmental (including national, state, provincial and local governmental authorities), supranational or administrative agency, institution or body.

“Authorized User” means your employees or others authorized by you to access and use the Services on your behalf.

“Client Data” means the data provided by, or collected by Thentia for, you as part of or in connection with the Services, and the results of processing that data through the Services.

“Client Usage Information” means any data, including but not limited to metadata, in any way generated from the use of the Services by you, or any of their Authorized Users, including but not limited to clients.

“Deliverables” means any written or electronic items (such as software, code, specifications, diagrams, flowcharts, forms, reports, and other materials and work product) being developed for or delivered to you as part of the Services.

“Intellectual Property Rights” means all patents, copyrights, moral rights, database rights, design rights, and rights in trade secrets and know-how, all other intellectual property and proprietary rights, all other equivalent or similar rights which may arise or exist anywhere in the world, in each case, whether registered or unregistered, and all applications for any of the foregoing rights.

“Laws” means any applicable laws, rules, regulations, guidelines and other legally binding measures issued, administered or enforced by any Authority, as they may be amended from time to time.

“Person” means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization, self-regulatory organization, regulatory authority, or other governmental authority.

“Privacy Laws” means all Laws governing the collection, use, disclosure or protection of personal information.

“Professional Services” means any services other than Services which Thentia or its Affiliate has agreed to provide to you under a written agreement between the parties.

“Third Party” means a Person other than Thentia, you, or our respective Affiliates.

“Third-Party Applications” means applications, integrations, services, or implementation, customization and other consulting services related thereto, provided by a party other than Thentia that interoperate with the Services.