Aegis Analytics Software as a Service
(SaaS) End User License Agreement
This agreement is between Aegis Project Controls Corporation
(“Aegis”), located at 8455 Colesville Road, Suite 1500, Silver Spring, Maryland
20910 and customer (“Customer”). In consideration of
the mutual covenants herein expressed, and other true and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereby agree as follows:
1.
Definitions. The following capitalized terms shall have the meanings and
applications set forth below:
1.
“Affiliate” means those entities under common control with or
controlled by a party, such common control or control being defined as the
ownership of more than fifty percent (50%) of the voting equity of the entity
or ownership of securities to which are attached voting rights capable of
electing more than fifty percent (50%) of the entity's board of
directors. Subject to the terms and conditions of this EULA, which shall
be fully applicable, any Affiliate of Customer may use the license granted
hereunder and, in such event, all references to Customer, shall be deemed to be
references to Affiliate. Customer and Affiliate shall be jointly and
severally liable hereunder, provided, however that no Aegis Competitor will be
included as a Customer Affiliate.
2.
“Aegis” means The Aegis Companies and its Affiliates.
3.
“Aegis Competitor” means any entity that licenses or provides any software,
product, or service that is competitive with the Software including companies
listed in the Gartner, Inc. "MDM Magic Quadrant" or similar industry
publications.
4.
“Delivery
Date” means the date Customer is first
granted access to the Software under the applicable Software
License.
5.
“Device” means Customer’s personal computers, laptops
and similar computing devices capable of using the Aegis Analytics software,
which may be monitored and managed by the software, whether owned by Customer
or by Customer’s Users.
6.
“Documentation” means only those written release notes, user guides, and
implementation guides published by Aegis and supplied or made available to Customer
by Aegis.
7.
“Effective
Date” means the date on which Customer
accepts or is deemed to accept this EULA as provided herein, or if physically
executed, the date of last signature.
8.
“Embedded
Software” means any software provided as an
included part of the Software that is owned by one or more third parties and
licensed to Aegis.
9. “Enhancements” mean subsequent versions, releases, or upgrades of the
Software which Aegis makes generally available without payment of an additional
License fee.
10.
“Order” means
an Aegis “Quote,” purchase order, and/or any other form or writing that is
physically or electronically executed by both Customer and Aegis pursuant to
which Customer seeks to purchase the offerings subject to this EULA. This
EULA is incorporated by reference into any Order without modification.
The Order sets forth, as applicable, the (i) number and type of Devices to be
licensed, (ii) type of license, (iii) pricing, and (iv) hours and cost of any
Software Related Services to be provided.
11. “Software
Related Services” means Software-Related services
performed by Aegis as reflected in an Order or in a SOW pursuant to an Order
such as installation, activation, training, software configuration, hosting
environment configuration, modification, integration, reconfiguration,
assessment, optimization, or other Software-related services and
excludes professional services for the development of custom software (which
would be governed by a separate agreement).
12. “Software” means the Aegis Analytics proprietary software, including
any Embedded Software or any Update or Enhancement made available to Customer.
13. “SOW” means a statement of work
executed by the parties, specifying the terms and conditions, deliverables, and
compensation for delivery of Software Related Services or other items.
14. “Third-party
Software” means any software or other product
that is (i) owned by one or more third parties; (ii) licensed by Aegis from
such third parties; and (iii) included as a part of the Software.
15. “Updates” mean corrections to the current version of the Software
provided to Customer.
16. “User” means an individual user of a Device who is an officer,
director, employee, contractor, representative, or agent of Customer or its
Affiliate.
2.
License Grant.
All licenses granted hereunder are
limited, revocable (as provided herein), nonexclusive, non-transferable,
world-wide, non-sublicensable licenses to the Software (each a “Software
License”). The Software components provided under each Software
License include those necessary for the fulfillment of this EULA. Any Affiliate
of Customer may use any Software License granted hereunder and, in such event,
all references to Customer shall be deemed to be references to the applicable
Customer or Affiliate. All Software Licenses are all subject to (i) the
terms, conditions and restrictions set forth in this EULA and (ii) the fees set
forth in the applicable Order and the payment requirements set forth in this
EULA. All Software Licenses are granted solely for the purposes set forth
in this EULA
1.
Subscription
License. To the extent reflected in
an Order, a Software License provided for the use of the Software on a
subscription basis shall be hereinafter referred to as a “Subscription
License.” The term for Subscription Licenses shall be one (1) year, unless
another term is specified in the Order (the “Subscription Period”). The
initial Subscription Period begins on the Delivery Date of the first
Subscription License. In the event additional Subscription Licenses are
added during a Subscription Period, such Subscription Licenses shall be
coterminous with the then current Subscription Period and the fees for the same
shall be prorated accordingly.
2.
Trial
License. To the extent reflected in
an Order, a Software License for evaluation purposes (“Trial”) shall be
used solely for the purposes of testing and evaluating the Software shall be
hereinafter referred to as a “Trial License.” Such free Trial
License shall be for a period of thirty (30) days from the Delivery Date (the “Trial
Period”). Customer may cancel at any time during the Trial Period,
but the Subscription Period will automatically be extended to one (1) year if
the Trial is not cancelled within the Trial Period. Customer is solely
responsible for taking appropriate measures to back up its systems and for
taking other measures to prevent any loss of files or data during the
Trial. Under any Trial License, the Software is provided “AS IS,” without
any additional warranty of any kind and Customer understands and agrees no
other warranties stated herein shall be applicable to the Trial License.
4.
License Restrictions. Customer
shall use industry-standard physical, logical, and electronic security and
confidentiality systems to protect the Software, using at least the same degree
of care it utilizes for the protection of its own software and other confidential
and proprietary information. The restrictions set forth in this Section,
including all subsections, shall hereafter be referred to as the “License
Restrictions.” With respect to each Software License, Customer further agrees
that it:
1.
Shall not
share with or assign, copy, sublicense, transfer, lease, rent, sell,
distribute, install, or otherwise provide to any non-Affiliate party (other
than Users) (i) the Software License, (ii) the Software; (iii) any use or
application of the Software; or (iv) Customer’s rights under this EULA shall
not pledge as security or otherwise encumber, the Software;
2.
Shall use
the Software solely (i) for Customer’s internal use within Customer’s ordinary
business operations, (ii) in accordance with all applicable laws and
regulations, and (iii) as provided in this EULA, the Documentation, and any
supplemental limitations specified or referenced in the relevant Order, if any;
3.
Shall not
use the Documentation except for supporting its authorized use of the Software;
4.
Other than
as expressly set forth in this EULA, shall not (i) modify, adapt, translate,
duplicate, disassemble, decompile, reverse assemble, reverse compile, or
reverse engineer, or take similar action with respect to the Software for any
purpose, or (ii) attempt to discover the underlying source code or algorithms
of the Software (unless enforcement is prohibited by applicable law and
then, only to the extent specifically permitted by applicable law, and then
only upon providing Aegis with reasonable advance written notice and
opportunity to respond);
5.
For the
purpose of designing, modifying, or developing software or services similar in
purpose, scope, or function to the Software, shall not engage in competitive
analysis, benchmarking, use, evaluation or viewing of the Software or
Documentation or create any derivatives based upon the Software, whether for
Customer’s internal use or for license or for resale;
6.
Shall not
use any Aegis competitor to use the Software on its behalf, view the Software
or Documentation, or provide management, staging, support, hosting, or similar
services with regard to the Software without the prior
written consent of Aegis, and
7.
Shall not
permit any party, whether acting directly or on behalf of Customer, to breach
or violate any of these License Restrictions.
5.
Third-party Software. The Software contains third-party software. With respect
to such Third-Party Software, Aegis hereby (i) assigns, sublicenses, or passes
through to Customer all assignable warranties, representations, covenants, and
indemnities granted to Aegis by any third-party in connection therewith along
with the remedies for breach of such. To the extent that Aegis is not
permitted to take one or more of the foregoing actions, Aegis will, at
Customer’s request and expense, enforce the foregoing protections on behalf of
Customer to the extent permitted to do so under the terms of the applicable third-party
license. Other than the forgoing, all Third-Party Software listed in an
Order is provided “AS IS,” with no other warranties of any kind. Any Third-Party
Software sublicense will terminate when this EULA terminates, when the Software
License terminates, or when the Software is no longer being used by
Customer. Third-party Software shall be subject to the License
Restrictions. IN NO EVENT WILL AEGIS BE LIABLE FOR THE PERFORMANCE OF ANY
THIRD-PARTY PRODUCT OR THE BREACH OF ANY WARRANTY RELATED THERETO. AEGIS
SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES (INCLUDING ANY WARRANTY
OF NON-INFRINGEMENT) AND DISCLAIMS ALL LIABILITY, INCLUDING ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE, INCLUDING WITHOUT LIMITATION, ANY
LOST PROFITS OR SAVINGS, AND ANY LOSS OR DAMAGE, CAUSED BY ANY THIRD-PARTY
PRODUCT.
6.
Additional Work.
To the extent that Aegis is requested to provide additional Software Related
Services to Customer (such as training or installation), they shall be provided
pursuant to an Order or SOW, billed at Aegis’s then-current rates for Software
Related Services, and invoiced to Customer. Software Related Services
provided on Customer’s premises shall be subject to Aegis’s reimbursement
policies.
7.
Additional Orders. In the event that Customer
wishes to place additional Devices under a Software License or avail itself of
any other offerings set forth herein, the parties shall execute an Order
detailing the number and type of additional Software Licenses and/or other
offerings to be obtained. Pricing for such Orders shall be as set forth
in the original Order, subject to any pricing changes made pursuant to this
EULA, or, if no pricing is provided in the original Order, Aegis’s then-current
published prices shall apply.
8.
Payment Obligations.
1.
Payment
Obligations. Customer is required to pay its Subscription
monthly. If payment is not made within fourteen (14) days of the monthly due
date, Aegis may, in its sole discretion, terminate access to the Software.
9.
Confidentiality
and Proprietary Rights.
1.
Confidentiality. In the course of performance of this EULA,
either party (“Discloser”) may find it necessary to disclose to the
other party (“Recipient”), or Recipient may otherwise obtain from
Discloser, certain proprietary information, which includes, but is not limited
to that which relates to software, computer codes or instructions,
developments, inventions, processes, designs, drawings, engineering, pricing,
research, statistics, business plans, product plans, products, services,
customers or prospective customers, contractors, licensors, suppliers, markets,
marketing, finances, and any other materials that have not been made available
to the general public and which have been the subject of reasonable efforts to
be kept secret (“Confidential Information”). Confidential
Information does not include information that: (a) was in the public domain at
the time of Discloser's communication thereof to Recipient, (b) becomes part of
the public domain after the time of disclosure, through no improper action of
Recipient; (c) was in Recipient's possession free of any obligation of
confidence at the time of Discloser's communication thereof to Recipient; (d)
can be shown by documentation to have been independently developed by the
Recipient without the use of or reference to any Confidential Information; (e)
is not treated as confidential by Discloser; or (f) is approved for
release by Discloser in writing. Recipient shall use any Confidential
Information received (or derivatives thereof) solely for the purpose of
performing its obligations under this EULA. Recipient shall not disclose
or permit any non-Affiliate party access to any Confidential Information,
except to Recipient’s officers, directors, employees, contractors,
representatives, or agents on a need-to-know basis and where all such officers,
directors, employees, contractors, representatives, or agents have
confidentiality obligations at least as restrictive as those set forth in this
Section. Recipient agrees to use reasonable efforts to protect the
confidential or proprietary nature of such Confidential Information (and any
derivatives thereof), using at least the same degree of care it utilizes for
the protection of its own strictly confidential and proprietary
information. The obligations under this EULA will continue: (i) with
respect to Confidential Information (and/or derivatives thereof) that does not
constitute a trade secret, in perpetuity after the termination of this EULA;
and (ii) for any Confidential Information (and/or derivatives thereof) that
constitutes a trade secret, for so long as such information remains a trade
secret under applicable law. Notwithstanding the foregoing, in the event
disclosure is required by court or government order, Recipient shall (x)
promptly notify Discloser of such order so that it may seek a protective order
or other appropriate remedy and (y) only disclose such Confidential Information
to the extent required. All Discloser Confidential Information and
derivatives thereof shall remain the property of Discloser and will be returned
to Discloser within ten (10) days following the termination of this EULA.
Without limiting the foregoing or the License Restrictions, Customer shall not
disclose or display any Aegis Confidential Information, including the Software,
to any Aegis Competitor. The obligations set forth in this Section are
hereafter referred to as the “Confidentiality Obligations.”
2.
Proprietary
Rights. Title to and ownership of
the Software and all Aegis copyrights, names, trademarks, trade names, service
marks or any other identifying characteristics are proprietary intellectual
property of significant value and goodwill to Aegis and all associated
intellectual property rights relating thereto (the “Aegis IP”) are
retained by Aegis. This EULA only grants Customer the limited right to
use the Aegis IP under the terms and restrictions specified in this EULA.
Customer does not, and will not, acquire any other right, title
or interest in any Aegis IP, which will at all times remain the exclusive
property of Aegis or the applicable third-party licensor to Aegis.
Customer will not remove, suppress, or modify in any way any proprietary
marking which is on or in the Aegis IP, or which is on any media supplied with
the Aegis IP, except where expressly allowed. Customer acknowledges and
agrees that Aegis shall be the sole owner of any Enhancements, Updates, or
derivatives of the Software which are developed by Aegis during and after the
term of this EULA. Without limiting the foregoing, Customer expressly
acknowledges and agrees that Aegis shall be the sole owner of any
newly-developed intellectual property including but not limited to (i)
newly-developed, revised, or modified source code and (ii) inventions where
such are related in any way to the Software or Aegis’s general business,
regardless of whether such are developed, revised, or modified in response to
Customer’s requests, suggestions, or ideas, even if performed as Software
Related Services paid for by Customer. During the term of this EULA and
thereafter, Customer shall not assert the invalidity of the Aegis IP, or
contest Aegis’s right, title or interest therein and
thereto, and Customer shall not cause, influence, or assist in any manner
whatsoever, any other party to make any such assertions or contest.
10.
Limited Warranties; Remedies; Disclaimers; Limitation
of Liability.
1.
Limited
Software Warranty and Remedies.
In connection with Software Licenses granted hereunder, Aegis warrants that the
Software, as delivered by Aegis to Customer, will substantially perform the
functions set forth in the Documentation (the “Software Warranty”).
If deviations from the requirements set forth in the Software Warranty occur
within the ninety (90) day period following the Delivery Date (the “Software
Warranty Period”) upon written notice by Customer to Aegis, Aegis will,
without additional compensation, either (1) repair, at its facilities, the
Software; or (2) replace the Software, in each case to correct the
nonconformity. If Aegis provides written notice to Customer that it is
unable to correct the nonconformity within a reasonable period, or if neither
option (1) nor (2) is commercially feasible, either party may terminate this
EULA and the relevant Software License upon written notice to the other
party. The Software Warranty Period is not extended in any way by any
Enhancement or Update, by placing more Devices under license, by any delivery
of additional Software, or by replacement or repair of the Software. For
clarity, newly purchased Software Licenses receive the Software Warranty from
their Delivery Date, but purchasing new Software Licenses does not extend the
Software Warranty Period for previously purchased Software Licenses. The
Software Warranty does not cover situations where: (a) the Software has not
been used in accordance with this EULA and the Documentation; (b) the Software
has been altered in any way by a party other than Aegis that is not under the
direction or control of Aegis; (c) the Software is used in an operating
environment other than as specified in the Documentation; (d) such
nonconformity in the Software is due to abuse, neglect, or other improper use
by Customer; or (e) reported errors or nonconformities cannot be reproduced by Aegis,
working, in good faith, with Customer’s assistance. This Section sets
forth Customer’s sole and exclusive remedies with respect to breaches of the
Software Warranty.
2.
Infringement
Claims. In connection with Licenses
granted hereunder, Aegis, at its sole expense, agrees to defend and indemnify
Customer against any third-party claim that Customer’s use of the Software, as
delivered by Aegis to Customer and used in accordance with this EULA and the
Documentation, directly infringes a third-party copyright or issued patent or
directly misappropriates a trade secret (an “Infringement Claim”),
provided that: (i) Customer notifies Aegis in writing within thirty (30) days
of the Infringement Claim; (ii) Aegis has sole control of the defense and all
related settlement negotiations, as long as such settlement shall not include a
financial obligation for Customer; and (iii) Customer provides Aegis with the
information, assistance and authority to enable Aegis to perform Aegis’s
obligations under this Section. In any action based on an Infringement
Claim, Aegis, at its option its own expense, may: (1) procure the right
for Customer to continue using the Software in accordance with the provisions
of this EULA; (2) make such alterations, modifications or adjustments to the
Software so that the infringing Software becomes non-infringing without
incurring a material diminution in performance or function; (3) replace the
Software with a non-infringing substantially similar substitute; or (4) if (1),
(2), or (3) cannot be achieved after the exercise of commercially reasonable
efforts, either party may terminate the License. If a Subscription License is
terminated pursuant to this Section, Aegis shall refund to Customer the unused
remainder of any Subscription License fees and Other Fees prepaid by Customer
and received by Aegis. If a Trial License is terminated pursuant to this
Section, no payment shall be due Customer. In connection with any
termination pursuant to this Section, Customer shall comply with all
post-termination requirements set forth in this EULA. Aegis shall have no
liability or obligations for an infringement claim pursuant to this Section to
the extent that it results from: (a) modifications to the Software made by a
party other than Aegis or under the direct control of Aegis; (b) the
combination, operation or use of the Software with non-Aegis equipment,
devices, software or data, unless the claim would not have occurred but for the
use of the Software in the combination, operation or use; (c) use of the
Software outside the scope of this EULA or in contravention of the
Documentation; or (d) Aegis’s use of any designs, plans, instructions,
specifications, diagrams or the like, provided by Customer, if any. Nothing in
this provision shall be construed as a limitation on Customer’s ability to
retain legal counsel at its own expense to monitor the proceedings. This
Section sets forth Customer’s sole and exclusive remedies with respect to
Infringement Claims.
3.
Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS EULA, THE
SOFTWARE, THIRD-PARTY SOFTWARE, UPDATES AND ENHANCEMENTS, SOFTWARE
RELATED SERVICES, OR DELIVERABLES PROVIDED AS A RESULT OF THE PERFORMANCE OF
MAINTENANCE OR SOFTWARE RELATED SERVICES (COLLECTIVELY, THE “WARRANTED
MATTERS”) ARE PROVIDED “AS IS” AND AEGIS AND ITS LICENSORS, DEVELOPERS, AND
OTHER SUPPLIERS (THE “AEGIS PARTIES”) FURTHER DISCLAIM THAT THE
FUNCTIONS CONTAINED IN THE WARRANTED MATTERS WILL MEET THE REQUIREMENTS OF
CUSTOMER OR OPERATE ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH IN THIS
EULA, THERE ARE NO OTHER WARRANTIES,
CONDITIONS, OR REPRESENATATIONS, WHETHER EXPRESS OR IMPLIED BY STATUTE,
OPERATION OF LAW, TRADE USAGE, COURSE OF PERFORMANCE OR DEALING OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY,
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, FITNESS FOR A
PARTICULAR USE, NONINFRINGEMENT, TITLE, ACCURACY, OR COMPLETENESS; ALL SUCH
WARRANTIES BEING SPECIFICALLY AND FULLY DISCLAIMED BY THE AEGIS PARTIES.
OTHER WRITTEN OR ORAL REPRESENTATIONS OR AFFIRMATIONS OF FACT, INCLUDING BUT
NOT LIMITED TO, STATEMENTS FROM AEGIS OR ANY OTHER SOURCE REGARDING THE
PERFORMANCE OF THE WARRANTED
MATTERS THAT ARE NOT CONTAINED IN THIS
EULA, SHALL NOT BE BINDING ON THE AEGIS PARTIES AND ARE HEREBY EXPRESSLY
DISCLAIMED. AEGIS FURTHER
DISCLAIMS ANY LIABILTY TO CUSTOMER OR USERS FOR ANY DATA OR USAGE CHARGES FOR
DEVICES MANAGED BY THE SOFTWARE.
4.
Limitation
of Liability. EXCEPT FOR BREACHES
OF THE LICENSE RESTRICTIONS, CONFIDENTIALITY OBLIGATIONS, OR A PARTY’S
INTELLECTUAL PROPERTY RIGHTS (“IP”) OR CLAIMS UNDER THE INDEMNITY
PROVISIONS OF THIS EULA, (A) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT,
CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY LOST PROFITS,
REVENUE, DATA, OR DATA USE AND (B) EITHER PARTY’S MAXIMUM AGGREGATE LIABILITY
FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS EULA OR ANY ORDER, WHETHER
SUCH ACTION IS BROUGHT IN LAW, EQUITY, CONTRACT OR TORT (INCLUDING NEGLIGENCE
AND STRICT LIABILITY), OR OTHERWISE, SHALL BE LIMITED TO THE SOFTWARE LICENSE
FEES PAID BY CUSTOMER AND RECEIVED BY AEGIS HEREUNDER IN THE LAST TWELVE (12)
MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11.
Indemnity.
1.
Mutual
Indemnification. Each party (the “Indemnitor”)
shall defend and indemnify the other party and its Affiliates, officers,
directors, employees, contractors, agents, successors and assigns (the “Indemnitees”)
from and against any and all claims, losses, damages, judgments, costs and
expenses, including attorneys’ fees incurred directly or indirectly (“Claims”)
by the Indemnitees arising out of or relating to: (i) any breach or violation
of the Confidentiality Obligations, or an Indemnitee’s IP rights by Indemnitor,
(ii) any and all third-party Claims related to any negligent acts, fraud, or
intentional misconduct of the Indemnitor or its Affiliates or agents, and/or
(iii) any personal injury (including death) or damage to property resulting
from the Indemnitor’s or its Affiliates’ or agents’ acts or omissions.
2.
Procedure. As a condition to any indemnity claim under this
Section, (i) Indemnitees must notify Indemnitor in writing within thirty (30)
days of the claim; (ii) Indemnitor must have sole control of the defense and
all related settlement negotiations, as long as such settlement shall not
include a financial obligation for Indemnitees; and (iii) Indemnitees must
provide Indemnitor with the information, assistance and authority to enable
Indemnitor to perform Indemnitor’s obligations under this Section.
Nothing in this provision shall be construed as a limitation on Indemnitees’
ability to retain legal counsel at its own expense to monitor the
proceedings.
12.
Term, Renewal, and Termination.
1.
Term
and Renewal. This EULA will
commence on the Effective Date and will continue for so long as a Subscription
is in place, unless the EULA is earlier terminated as provided
herein.
2.
Customer
Termination. Customer may terminate this
EULA for cause: (i) in the event of a material breach by Aegis of this EULA
that is unremedied for a period of thirty (30) days after receipt of written
notice by Aegis, (ii) immediately with concurrent notice in the event of a
breach by Aegis which, by its nature, cannot be cured, or (iii) as otherwise
expressly provided herein. With respect to terminations for cause, except
as otherwise expressly and specifically stated in this EULA, no refunds or
payments of any kind shall be due Customer.
3.
Aegis
Termination. Aegis may terminate the EULA
and the relevant Software License under this EULA: (i) if Customer ceases or is
delinquent in making payments of any applicable Software License fees for a
period of fourteen (14) days after payment is due; (ii) in the event of a
material breach of this EULA by Customer that is unremedied for a period of fourteen
(14) days after receipt of written notice by Customer; (iii) as otherwise
expressly provided; (iv) immediately with concurrent notice in the event of a
breach by Customer which, by its nature, cannot be cured.
4.
Customer
Obligations upon Termination.
Upon the termination or expiration of this EULA and the related Software
Licenses for any reason whatsoever (i) any Software License will automatically
and immediately terminate, (ii) Customer will immediately cease and desist from
all use of the Software in any way, and (iii) within ten (10) days after the
effective date of the termination or expiration of this EULA and any related
Software License, Customer is required to uninstall and either return or
destroy the applicable Software and provide a written certification executed by
an officer of Customer certifying such action. Except for Customer terminations
for cause, upon termination, Customer shall pay any fees then owing under this
EULA as of the date of termination within thirty (30) days. Terminations
are effective upon Customer’s compliance with this Section.
5.
Aegis
Obligations upon Termination. Upon the termination or expiration
of this EULA and the related Software License for any reason whatsoever, at
Customer’s request, Aegis will either provide Customer with instructions to
enable Customer to use the report function of the Software to export all Device
information from the Software or use the report function of the Software to
export all Device information from the Software.
6.
Trial
License.
Before the conclusion of the Trial Period, Customer may terminate this EULA
immediately upon notice to Aegis and shall comply with its obligations
hereunder. To the extent that Customer continues to use the Software after the
end of the Trial Period, then the Trial License(s) shall convert to an annual Subscription
License(s) under this EULA at Aegis’s then-current rates, terms, and
conditions.
7.
Survival. The provisions of this EULA
that by their sense and context are intended to survive termination of this
EULA, shall so survive termination.
13.
Notices.
Except as otherwise provided herein,
all notices, consents, requests, instructions, approvals, and other
communications made, required, or permitted under this EULA will be given to Aegis
at the addressed listed above by: (i) personal service or recognized
international or overnight courier, deemed effective on reported delivery date;
or (ii) facsimile transmission or email transmission, deemed effective on
delivery date confirmation. email
apps@consultaegis.com or postmaster@products.rhino.works. Notices, consents, requests, instructions, approvals and
other communications made, required, or permitted under this EULA will be given
to Customer at the address on file with Aegis.
14.
Surveys; Data Usage. Aegis shall
be entitled to conduct periodic surveys solely for the purposes of determining
(i) the number of Devices in use with the Software and (ii) compliance with the
terms and conditions of this EULA. Such surveys shall be conducted
remotely, at Aegis’s expense, and shall not interfere with Customer’s business
operations. Alternatively, at Aegis’s request, Customer will use the
Software to produce a report containing the information reasonably requested by
Aegis. In addition, Aegis shall be entitled to use anonymized
project data and Customer usage metrics to operate, manage, debug and improve
Aegis’s products and services, such use to include, without limitation, internal analytics, machine learning
and artificial intelligence (AI) analytics.
15.
General Provisions.
1.
Acceptance
of an Additional Order.
Customer’s acceptance of an additional Order and reaffirmation of its agreement
to the terms and conditions of the EULA and the original Order shall be
indicated by Customer (i) executing and returning to Aegis a new Order or (ii)
using any additional Devices with the Software.
2.
Governing
Law. This EULA, and all disputes
arising hereunder or related hereto, may only be brought before a state or
federal court of appropriate jurisdiction, closest to Silver Spring, in the
State of Maryland.
3.
Disputes. The parties acknowledge and agree that any breaches
of the License Restrictions, the Confidentiality Obligations, or either party’s
IP rights may give rise to irreparable harm to the non-breaching party for
which the granting of monetary damages would not be an inadequate remedy,
accordingly, the non-breaching party may, in addition to all other available
remedies, seek equitable remedies to restrain any continued breach of the
License Restrictions or a party’s IP rights by the breaching party, as the case
may be, without having to prove that actual damage has been sustained by the
non-breaching party. No action arising out of this EULA, regardless of
form, may be brought more than one (1) year after the claiming party knew or
should have known of the cause of action.
4.
Export
Laws. The Software is subject to
United States export control laws and regulations and may be subject to export
or import regulations in other countries. These laws and regulations
include licensing requirements and restrictions on destinations, end users, and
end use. Customer agrees to comply with all domestic and international
export and import laws and regulations that apply to the Software and
acknowledges that Customer has the responsibility to obtain any and all
necessary licenses to export, re-export, or import the Software and covenants
that it shall not, directly or indirectly, sell, export, re-export, transfer,
divert, or otherwise dispose of any Software, source code, or technology
(including derivative products) received from Aegis under this EULA to any
other party or destination prohibited by the laws or regulations of the United
States, without obtaining prior governmental authorization as required by those
laws and regulations.
5.
Assignment. This EULA, including any
rights, licenses or obligations under this EULA, may
not be assigned or otherwise transferred (whether by operation of law, merger,
reorganization, or otherwise) by Customer to any non-Affiliate party without
the prior written consent of Aegis and any attempt to do so in violation of the
terms hereof shall be null and void.
6.
Force
Majeure. A party is not liable under this EULA for non-performance
caused by an any failure of performance, equipment, or payment due to causes
beyond the reasonable control of such party, if the party makes reasonable
efforts to perform. This Section does not operate to relieve either Party
of its obligation to make payments then owing.
7.
Publicity. Aegis may use the name and/or logo of Customer in a
list of customers used in marketing materials until requested to cease this use
by Customer. Within forty-five (45) days of signing this EULA Aegis may
publish a press release announcing the acquisition of Customer as a customer,
provided Customer has an opportunity to review and approve the press release.
8.
Independent
Contractor. Aegis shall
at all times be considered an independent contractor under this
EULA. Nothing contained herein will be construed to create the
relationship between the parties of principal and agent, employer and employee,
partners or joint venturers.
9.
No
Third-Party Beneficiaries.
This EULA is for the benefit of Customer and Aegis and does not provide any third-party
the right to enforce it or to bring an action for any remedy, claim, liability,
reimbursement or cause of action or any other right or
privilege.
10.
Non-Waiver. The failure of either party to require the
performance by the other party of any provision hereof will not constitute a
waiver of that provision or the required performance. The waiver by
either party of any breach of any provision of this EULA will only be valid if
given in an executed written instrument and any such waiver will not constitute
a waiver as to any subsequent breach or continuation of the same breach.
11.
Headings. Headings are used in this EULA for convenience only
and shall not affect any construction or interpretation of this EULA.
12.
Language. In the event that Aegis or another party has
provided Customer with a translation of this EULA from the English language to
another language, Customer agrees that such translation is provided for
convenience only; that the American English language version of this EULA
governs the relationship between Aegis and Customer; and, if there is any
conflict between the American English language version of this EULA and such
translation, the American English language version shall take precedence.
All disputes arising under this EULA shall be resolved in the English language.
13. Entire
Agreement. This EULA constitutes the entire
agreement between the parties with respect to the subject matter hereof.
This EULA and any related Order supersede and replace all prior understandings,
negotiations, commitments, representations, and agreements of the parties
relating to the Software and the subject matter hereof. Aegis’s agreement
to provide the Software to Customer is expressly conditioned upon the
unequivocal application of all terms and conditions included in this EULA to
such transaction and any additional or different terms or conditions proposed
by Customer (whether by purchase order, counter-offer, acknowledgement,
electronic data interchange, vendor enrollment, or otherwise) are hereby
expressly objected to and will not be in any way binding upon Aegis.
Although any related Order or SOW is incorporated by reference herein, it is
the express agreement of the parties that the terms of this EULA shall
supersede any conflicting terms in any related Order or SOW, unless the
conflicting terms in such related Order or SOW clearly express an intent to
supersede this EULA by directly and specifically referring to the section or
sections of this EULA to be superseded and such Order or SOW is executed by an
officer of each party. If any term of this EULA is found to be invalid or
unenforceable, the remaining provisions will remain effective and such term
shall be replaced with a term consistent with the purpose and intent of this
EULA. This EULA may only be amended or modified in writing and any modification
or amendment to this EULA will be effective only upon execution by an officer
of each party.
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