Colectica End User License Agreement

Effective April 30, 2018

This is an agreement between You and Colectica or its affiliates ("Colectica") and governs your Use of Colectica Software.

This agreement, any supplemental license terms and any specific product terms at www.colectica.com/legal/eula (collectively, the "EULA") govern Your Use of the Software.

  1. Acceptance of Terms. By Using the Software, You agree to be bound by the terms of the EULA. If you are entering into this EULA on behalf of an entity, you represent that you have authority to bind that entity. If you do not have such authority or you do not agree to the terms of the EULA, neither you nor the entity may Use the Software.

  2. License. Subject to payment of the applicable fees and compliance with this EULA, Colectica grants You a limited, non-exclusive and non-transferable license to Use object code versions of the Software and the Documentation solely for Your internal operations and in accordance with the Entitlement and the Documentation. Colectica licenses You the right to Use only the Software You acquire from an Approved Source. In the event that Colectica requires You to register as an end user, Your license is valid only if the registration is complete and accurate. The Software may contain open source software, subject to separate license terms made available with the Colectica Software or Documentation. If the Software is licensed for a specified term, Your license is valid solely for the applicable term in the Entitlement. Your right to Use the Software begins on the date the Software is made available for download or installation and continues until the end of the specified term, unless otherwise terminated in accordance with this Agreement.

  3. Evaluation License. If You license the Software or receive Colectica product(s) for evaluation purposes or other limited, temporary use as authorized by Colectica ("Evaluation Product"), Your Use of the Evaluation Product is only permitted for the period limited by the license key or otherwise stated by Colectica in writing. If no evaluation period is identified by the license key or in writing, then the evaluation license is valid for thirty (30) days from the date the Software or Colectica product is made available to You. You will be invoiced for the list price of the Evaluation Product if You fail to return or stop Using it by the end of the evaluation period. The Evaluation Product is licensed "AS-IS" without support or warranty of any kind, expressed or implied. Colectica does not assume any liability arising from any use of the Evaluation Product. You may not publish any results of benchmark tests run on the Evaluation Product without first obtaining written approval from Colectica. You authorize Colectica to use any feedback or ideas You provide Colectica in connection with Your Use of the Evaluation Product.

  4. Ownership. Colectica or its licensors retain ownership of all intellectual property rights in and to the Software, including copies, improvements, enhancements, derivative works and modifications thereof. Your rights to Use the Software are limited to those expressly granted by this EULA. No other rights with respect to the Software or any related intellectual property rights are granted or implied.

  5. Limitations and Restrictions. You will not and will not allow a third party to:

    1. transfer, sublicense, or assign Your rights under this license to any other person or entity (except as expressly provided in Section 12 below), unless expressly authorized by Colectica in writing;

    2. modify, adapt or create derivative works of the Software or Documentation;

    3. reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Software, except as provided in Section 16 below;

    4. make the functionality of the Software available to third parties, whether as an application service provider, or on a rental, service bureau, cloud service, hosted service, or other similar basis unless expressly authorized by Colectica in writing;

    5. Use Software that is licensed for a specific device, whether physical or virtual, on another device, unless expressly authorized by Colectica in writing; or

    6. remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks on or within the Software;

  6. Third Party Use of Software. You may permit a third party to Use the Software licensed to You under this EULA if such Use is solely (i) on Your behalf, (ii) for Your internal operations, and (iii) in compliance with this EULA. You agree that you are liable for any breach of this EULA by that third party.

  7. Without Warranty and Disclaimer. Disclaimer. Colectica and its licensors provide Software "as is" and expressly disclaim all warranties, conditions or other terms, whether express, implied or statutory, including without limitation, warranties, conditions or other terms regarding merchantability, fitness for a particular purpose, design, condition, capacity, performance, title, and non-infringement. Colectica does not warrant that the Software will operate uninterrupted or error-free or that all errors will be corrected. In addition, Colectica does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.

  8. Limitations and Exclusions of Liability. In no event will Colectica or its licensors be liable for the following, regardless of the theory of liability or whether arising out of the use or inability to use the Software or otherwise, even if a party been advised of the possibility of such damages: (a) indirect, incidental, exemplary, special or consequential damages; (b) loss or corruption of data or interrupted or loss of business; or (c) loss of revenue, profits, goodwill or anticipated sales or savings. All liability of Colectica, its affiliates, officers, directors, employees, agents, suppliers and licensors collectively, to You, whether based in warranty, contract, tort (including negligence), or otherwise, shall not exceed the license fees paid by You to any Approved Source for the Software that gave rise to the claim. This limitation of liability for Software is cumulative and not per incident. Nothing in this Agreement limits or excludes any liability that cannot be limited or excluded under applicable law.

  9. Upgrades and Additional Copies of Software. Notwithstanding any other provision of this EULA, You are not permitted to Use Upgrades unless You, at the time of acquiring such Upgrade:

    1. already hold a valid license to the original version of the Software, are in compliance with such license, and have paid the applicable fee for the Upgrade; and
    2. limit Your Use of Upgrades or copies to Use on devices You own or lease; and
    3. unless otherwise provided in the Documentation, make and Use additional copies solely for backup purposes, where backup is limited to archiving for restoration purposes.

  10. Audit. During the license term for the Software and for a period of three (3) years after its expiration or termination, You will take reasonable steps to maintain complete and accurate records of Your use of the Software sufficient to verify compliance with this EULA. No more than once per twelve (12) month period, You will allow Colectica and its auditors the right to examine such records and any applicable books, systems (including Colectica product(s)), and accounts, upon reasonable advanced notice, during Your normal business hours. If the audit discloses underpayment of license fees, You will pay such license fees plus the reasonable cost of the audit within thirty (30) days of receipt of written notice.

  11. Term and Termination. This EULA shall remain effective until terminated or until the expiration of the applicable license or subscription term. You may terminate the EULA at any time by ceasing use of or destroying all copies of Software. This EULA will immediately terminate if You breach its terms, or if You fail to pay any portion of the applicable license fees and You fail to cure that payment breach within thirty (30) days of notice. Upon termination of this EULA, You shall destroy all copies of Software in Your possession or control.

  12. Transferability. You may only transfer or assign these license rights to another person or entity in compliance with the current Colectica Relicensing/Transfer Policy. Any attempted transfer or, assignment not in compliance with the foregoing shall be void and of no effect.

  13. US Government End Users. The Software and Documentation are "commercial items," as defined at Federal Acquisition Regulation ("FAR") (48 C.F.R.) 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in FAR 12.212. Consistent with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and Defense Federal Acquisition Regulation Supplement ("DFAR") 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this EULA may be incorporated, Government end users will acquire the Software and Documentation with only those rights set forth in this EULA. Any license provisions that are inconsistent with federal procurement regulations are not enforceable against the U.S. Government.

  14. Export. Colectica Software, products, technology and services are subject to local and extraterritorial export control laws and regulations. You and Colectica each will comply with such laws and regulations governing use, export, re-export, and transfer of Software, products and technology and will obtain all required local and extraterritorial authorizations, permits or licenses.

  15. Survival. Sections 4, 5, 7, 8, 10, 11, 13, 14, 15, 17, 18 and 19 shall survive termination or expiration of this EULA.

  16. Interoperability. To the extent required by applicable law, Colectica shall provide You with the interface information needed to achieve interoperability between the Software and another independently created program. Colectica will provide this interface information at Your written request after you pay Colectica’s licensing fees (if any). You will keep this information in strict confidence and strictly follow any applicable terms and conditions upon which Colectica makes such information available.

  17. Governing Law, Jurisdiction and Venue. The law that governs the EULA (notwithstanding any conflict of laws provision) is the law of the State of Minnesota and the specific courts that have exclusive jurisdiction over any claim arising under this EULA are the State and Federal Courts of Minnesota.

  18. The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods. In addition, no person who is not a party to the EULA shall be entitled to enforce or take the benefit of any of its terms under the Contracts (Rights of Third Parties) Act 1999. Regardless of the above governing law, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party's intellectual property or proprietary rights.

  19. Integration. If any portion of this EULA is found to be void or unenforceable, the remaining provisions of the EULA shall remain in full force and effect. Except as expressly stated or as expressly amended in a signed agreement, the EULA constitutes the entire agreement between the parties with respect to the license of the Software and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded. The parties agree that the English version of the EULA will govern in the event of a conflict between it and any version translated into another language.

  20. Contact Information. If you have any questions about this EULA, or if you want to contact Colectica for any reason, please direct all correspondence to: Colectica, 1428 Washington Ave S Ste 203, Minneapolis, MN 55454, United States of America or email support@colectica.com.