END USER LICENSE AGREEMENT
END USER LICENSE AGREEMENT
Hello, and thank you for choosing Pulseway! This End User License Agreement (this “Agreement”) is an agreement between MMSoft Design Ltd. (“MMSoft”, “we,” “us,” or “our”) and you as the Licensee for the licensed software (the “Software”). By installing or using the Software, you agree to the terms of this Agreement. If you don’t agree with the terms of this Agreement, then you cannot install, access, or use the Software.
When Does this Agreement Start (and When Does it End)?
This Agreement is effective as of the earlier of the date set forth herein, the date of first installation, or the date on which this Agreement is accepted through an accompanying Order Form, as applicable (such date, the “Effective Date”). This Agreement will automatically renew for additional Terms equal to the greater of the expiring Term length or three (3) years, unless either party gives the other party notice of non-renewal at least 30 days and no more than 60 days before the end of the relevant Term. Except as otherwise specified in an Order Form, pricing during any automatic renewal Term will be the same as that during the immediately preceding Term plus an increase not to exceed five percent (5%) plus any increase in the Consumer Price Index published by the U.S. Bureau of Labor Statistics during the immediately prior year, in MMSoft Design Ltd’s sole discretion.
What Does This Agreement Cover?
This Agreement covers all matters and transactions involving the Software and services, such as your installation and use of the Software, as well as all transactions between you and us initiated through, involving, or relating to the Software. From time to time, we may modify, update, or upgrade the Software, and this Agreement will apply to the Software as modified, updated or updated by us.
Does this Agreement Cover Third Party Applications?
The Software is designed to work in conjunction with certain third party applications (“Third Party Apps”). This Agreement pertains only to the Software, and not to your acquisition or use of any Third Party App that you may use in conjunction with the Software, even if that use is suggested, installed or activated by us or our agents. Third Party Apps are not owned or controlled by us and are subject to licensing and other restrictions as indicated in any applicable Third Party App end user license agreement. We do not warrant or guarantee the functionality of any Third Party App or any particular, continuing or future interoperability between the Software and any Third Party App. Before using or installing any Third Party Apps you represent and warrant that you have obtained all authorizations necessary to use, install and distribute the Third Party App and updates from both the End User and as well as the application provider.
Your Limited License Rights.
The Software is licensed and not sold. Subject to your compliance with the terms of this Agreement and any restrictions set forth in any applicable order form that we provide to you (“Order Form”), including your full and timely payment of all fees described in the Order Form, we hereby grant to you during the term of this Agreement a non-sublicensable, non-exclusive, revocable, non-transferable right to use the Software in object code form only and, at all times, only for the number of authorized users (or “Seats”) purchased by you as specified on the Order Form.
You agree that your use of the Software is limited solely to the furtherance of your provision of professional managed information technology services to third parties and you will not use the Software for any other purpose. You are permitted to deploy the Software in accordance with this Agreement, the Order Form, and only in accordance with any documentation that accompanies the Software or which we may provide to you (“Documentation”). You are responsible for ensuring that any use of the Software by your authorized end users (“End Users”) is permitted by this Agreement.
In addition to any other restrictions described in this Agreement, you agree that you will not remove, alter, or obscure proprietary notices that appear on or in the Software or Documentation, or allow any End User to do so. You will not (and will not allow any End User to) (i) decompile, disassemble, reverse compile, or reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Software (except to the extent that applicable law prohibits such restrictions), (ii) modify, or create derivative works based on the Software, (iii) provide, sell, give, rent, lease, lend, loan, distribute, transfer, use for timesharing or service bureau purposes or otherwise use or allow others to use the Software for the benefit of any third party (except to the extent that the Software forms part of the services being provided by Licensee to End Users), (iv) use the Software, or allow the transfer, transmission, export, or re-export of the Software or portion thereof, in violation of any U.S. or any other applicable law including export control laws or regulations, or (v) develop keys or license codes other than license keys provided by us for the Software, or attempt to defeat or circumvent any such keys or any other access restrictions included in the Software or determine how any such keys are developed. All the limitations and restrictions on the Software in this Agreement also apply to Documentation.
What About End User Data?
Each End User is and will remain the owner of all information and data that he or she enters into, uploads, or stores using the Software (“End User Data”). We will access and use End User Data during the term of this Agreement to fulfill our licensing and technical support obligations (if applicable) to you, or as necessary to comply with any applicable statute, law or regulation. We may also use the End User Data in an anonymous and de-identified manner to monitor and evaluate our services, the Software, and/or our technical support services, or to demonstrate the features and functions of the Software to others. You hereby represent and warrant that we have the right to access and use any End User Data as described in this Agreement.
You understand and agree that we are not responsible for the accuracy, quality or legality of any End User Data or the means by which any End User acquires or uses such data. Unless we agree otherwise in writing, you acknowledge and agree that you have the sole responsibility for adequately controlling, processing, storing, and backing up all End User Data.
You represent and warrant that you have the right to grant the rights set forth herein and that you have obtained all authorization necessary to disclose End User Data to us.
Support and Maintenance.
During the term of this Agreement you will be entitled to receive support for the Software through our online support portal (the “Portal”) and through our online Community Forum. Portal support will be provided during our regular business hours only; the Community Forum is accessible to you on a 24x7x365 basis. Note, some of the advice and directions provided in the Community Forum originates from other users of the Software who are not our employees or representatives. You are advised to use caution when taking advice or directions from any non-MMSoft representative or employee, and we do not warrant the accuracy, completeness, or effectiveness of any advice or directions offered by non-MMSoft personnel on or through the Community Forum.
What are the Costs?
You agree to pay the fees indicated in the Order Form (“Fees”). Except as otherwise specified in this Agreement or in an Order Form, (a) Fees are based on Software licensed and not actual usage, (b) all payment obligations under this Agreement are non-cancelable and non-refundable, and (c) quantities of Seats purchased cannot be decreased during the relevant subscription term. If we agree to accept payment from you via ACH debit, credit card or other method (“Payment Method”), and you have provided us with all applicable billing information, then you hereby authorize us, using the Payment Method, to automatically charge you for all Fees, including Fees for automatic renewal periods. Should automatic billing fail, you must immediately provide us with updated or corrected information for the failed Payment Method or provide for payment by alternative means that is acceptable to us.
Any Fees that remain unpaid more than thirty (30) days after the applicable due date will bear a late payment fee of 2.0% per month or the maximum rate allowed by law, whichever is lower. Unless otherwise expressly stated in an Order, all Fees are exclusive of any taxes, fees, duties, shipping, or other charges, however designated, now or hereafter levied, and you will be responsible for all such taxes and charges under this Agreement. You are responsible for all incidental charges related to using the Software such as charges for Internet access, third party software licenses, text messaging, or other data transmission. We reserve the right, but not the obligation, to suspend your access to the Software if we do not timely receive all Fees when due.
You agree to be responsible for payment for all activity by End Users who access or use the Software through your account regardless of whether such activity was authorized by you or not.
To the fullest extent permitted by law, you agree to defend, indemnify and hold us harmless, as well as our affiliates, officers, directors, employees and agents, from and against any and all claims, damages, losses, liabilities, costs and expenses (including attorneys’ fees) arising from or related to (i) your use of and access to the Software; (ii) your violation of any term of this Agreement; (iii) your use, installation, or distribution of any Third Party Apps and, (iv your violation of any third party right, including without limitation any copyright, property, or privacy right. This indemnification obligation will survive the termination of this Agreement.
We warrant that for a period of thirty (30) days from your first use of the Software (the “Warranty Period”) the Software will operate in conformity to the Documentation. This warranty covers only problems reported to us in writing during the Warranty Period, and which are capable of being observed or reproduced by MMSoft. SOFTWARE OR ANY PART THEREOF WHICH HAS BEEN SUBJECT TO ABUSE, MISUSE, ACCIDENT, ALTERATION, MODIFICATION, NEGLECT, OR UNAUTHORIZED REPAIR OR INSTALLATION IS NOT COVERED BY THIS WARRANTY. ANY LIABILITY OF MMSOFT UNDER THIS WARRANTY WILL BE LIMITED EXCLUSIVELY TO REPAIR OR REPLACEMENT OF THE SOFTWARE OR, IF REPAIR OR REPLACEMENT IS INADEQUATE AS A REMEDY OR, AT MMSOFT’S DETERMINATION, IMPRACTICAL, TO A REFUND OF THE LICENSE FEE PAID FOR THE SOFTWARE. EXCEPT FOR THE FOREGOING, ALL SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. MMSOFT DOES NOT WARRANT THE RESULTS OF USE, OR THAT THE SOFTWARE IS BUG FREE OR THAT THE SOFTWARE WILL PROVIDE ANY PROTECTION AGAINST VIRUSES OR ANY NETWORK INTRUSION OR SECURITY BREACH, OR THAT THE USE OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. THE SOFTWARE IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN LIFE-DEPENDENT OR HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE OR SERVICE COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL OR ENVIRONMENTAL DAMAGE. TO THE EXTENT YOU USE THE SOFTWARE IN SUCH AN ENVIRONMENT, YOU EXPRESSLY ASSUME ALL RISK THEREFOR.
Limitation of Liability.
This Section limits the liabilities arising under this Agreement and is a bargained-for and material part of this Agreement. You acknowledge and agree that (i) MMSoft would not enter into this Agreement unless it could rely on the limitations described in this Section, and (ii) in purchasing one or more licenses for the Software, you have balanced the limitations in this Section against the value and usefulness of the Software for your business purposes and decided to move forward with such licensing.
In no event shall either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees due and owing to MMSoft), savings, or other indirect or contingent event-based economic loss arising out of or in connection with this Agreement, the Software, or for any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by any delay in furnishing the Software or technical services required under this Agreement, even if a party has been advised of the possibility of such damages; however, reasonable attorneys’ fees awarded to a prevailing party (as described below) shall not be limited by the foregoing limitation. Except for your payment obligations, indemnification obligations, and payment of attorneys’ fees (as described elsewhere in this Agreement), a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by you (excluding hard costs for licenses, hardware, etc.) to MMSoft in the twelve (12) month period immediately preceding the earliest date on which the applicable Claims accrued. The foregoing limitations shall not apply where expressly prohibited by law, or to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, or gross negligence.
Confidentiality. Each party agrees to hold the other party’s Confidential Information in confidence and not to use it for any purpose other than the purposes permitted under this Agreement. Each party agrees to use the same standard of care to protect Confidential Information as it uses to protect its own similar confidential and proprietary information, but not less than a reasonable standard of care. Confidential Information of the other party may only be disclosed to those affiliates, employees, contractors and advisors of you or us, as applicable, on a need-to-know basis and who agree to be bound by confidentiality restrictions at least as restrictive as those contained in this Agreement; provided, that nothing shall prevent or prohibit a party from using or disclosing Confidential Information as may be required by law, rule, regulation or legal process. Confidential Information is, and remains, the property of the disclosing party. Unless otherwise explicitly set forth herein, no licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied with respect to Confidential Information. We may identify you as a customer when referring to lists of customers. Furthermore, and as discussed above, we may automatically extract and use End User Data internally for the limited use of its research and analysis as may be necessary to enhance and improve the Software, provided always that any such retained data or information shall be for internal use only and shall be used in a de-identified manner only.
Termination; Suspension. This Agreement and all rights and licenses granted hereunder will automatically terminate upon the earlier of (a) the date that is thirty (30) days following a party’s receipt of written notice of any material breach delivered by either party to the other party provided that any such breach remains uncured at the end of such notice period and (b) the end of a Term that is not renewed as provided for herein. Furthermore, and without derogating from any rights or remedies of Pulseway, Pulseway shall be entitled to suspend any Service and the use of the Software by Licensee should Licensee breach any term of this Agreement, including without limitation failing to pay any amounts due in a timely manner, or if continued provision of Services poses a risk to Pulseway in its discretion. Upon termination of this Agreement, or if the license ceases to be effective, Licensee shall immediately cease all use of all Software and Documentation and return or (upon Pulsway’s request) destroy all copies of all Software and Documentation and all portions thereof and so certify in writing to Pulsway and immediately pay all amounts due to Pulsway hereunder. Sections which are intended to survive shall survive any termination or non-renewal of this Agreement. Termination is not an exclusive remedy and all other remedies available under applicable law or in equity will be available to MMSoft Design Ltd whether or not termination occurs.
Audits. The Software is programmed to track the number of authorized Seats and deployed copies of the Software, as well as other usage related data. You shall not engage in any activity designed to circumvent or obstruct, or which has the effect of circumventing or obstructing, the Software’s tracking capabilities. You hereby grant to MMSoft the right to monitor usage by all of End Users and to audit your relevant books, records and accounts, at MMSoft’s expense, during your normal business hours to verify your compliance with this Agreement. If any audit reveals that any additional amounts are owed in excess of five percent (5%) of the total Fees paid during the audited time period, then such owed amounts will be paid immediately, and the cost of such audit shall be reimbursed by you.
No Assignment. Neither this Agreement nor the rights and licenses granted hereunder are assignable or transferable by you without MMSoft’s prior written consent; any attempt to do so shall be null and void ab initio. We may assign this Agreement in whole or in part.
Notices and Electronic Communications. We may give notice by means of a general notice on the Software, electronic mail to your e-mail address on record in our account information, or by written communication sent by first class mail or pre-paid post to your address on record in our account information. Such notice shall be deemed to have been given 48 hours after delivery by first class mail or pre-paid post or 12 hours after sending by email. Licensee shall give notice to us (such notice shall be deemed given when received by MMSoft Design Ltd) by confirmed mail delivery to our address listed in the Order.
Governing Law; Jurisdiction. This Agreement is governed by the laws of the State of New York and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Software shall be subject to the exclusive jurisdiction of the state and federal courts located in the Borough of Manhattan, New York, New York. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement. This choice of jurisdiction and venue does not prevent either party from seeking injunctive relief in connection with any breach or threatened breach of this Agreement or enforcement or recognition of any award or order in any appropriate jurisdiction. In addition, the parties agree that they may only bring claims against the other in their individual capacities and not as a plaintiff, class representative or member in any purported class or representative proceeding. The parties hereby agree that each is waiving all respective rights to a trial by jury regarding any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Software. Any claim by either party arising out of or related to this Agreement must be brought no later than two (2) years after it has accrued. If MMSoft prevails in litigation in connection with this Agreement, it will be entitled to recover its reasonable attorneys’ fees, costs and other expenses.
Entire Agreement; Severability. Subject to the other terms and conditions of this Agreement, this Agreement is the entire agreement between MMSoft and you regarding your use of the Software, and supersedes and replaces any previous communications, representations, or agreements, whether oral or written. In the event any provision of this Agreement is held invalid or unenforceable the remainder of the Agreement will remain enforceable and unaffected thereby. This Agreement may not be modified nor any rights under it waived, in whole or in part, except in writing, signed by both parties.
Force Majeure. Each party’s obligation (other than your obligation to pay Fees when due) shall be suspended during any period that the party is rendered incapable of performing by virtue of any criminal acts of third parties, war, viruses, acts of public enemies, severe weather conditions, utility failures, strikes or other labor disturbances, fires, floods, other natural disasters, other acts of God, unforeseeable acts of employees, telecommunication or interruption of Internet service, or any causes of like or different kind beyond any reasonable control of the party.
Waiver. The failure of either party to insist in any instance upon any payment or performance when due by the other party, shall not relieve such other party of any of its obligations with respect to such performance, or constitute a waiver of such party’s right to insist upon the full and timely performance in the future of any of the other party’s obligations under this Agreement.