Enterprise Edition End User License Agreement

You agree that you will comply with (a) all instructions and requirements in any Software specification sheets, user guides, security best practices and policies, and other documentation that we provide or make available to you in connection with the Software (the “Documentation”); and (b) all applicable local, state, national, and international laws and regulations (as each of these may be amended or modified from time to time (“Applicable Laws”) with respect to your use of the Software.

Except as expressly permitted by this EULA, you may not, and you will not encourage, assist or authorize any other person to: (a) incorporate any portion of the Software into your own programs or compile any portion of the Software in combination with your own programs; (b) sell, re-sell, rent, lease, lend, loan, distribute, act as a service bureau or managed service, publicly communicate, transform, or sublicense the Software or otherwise assign any rights to the Software in whole or in part to any third party; (c) use the Software to process, transmit or otherwise make available any content that infringes or misappropriates the intellectual property or proprietary rights of any third party, or without an appropriate license, permission or certification (including as may be required by Applicable Laws); (d) use the Software to create other software that replicates the functionality of, or is intended to replace, the Software; (e) use any software license key (“Key”) provided by us for the Software in connection with any product other than the product for which the Key was issued; or (f) disable or circumvent, or attempt to disable or circumvent, any Key or other technological mechanisms or measures intended to prevent, limit or control use or copying of, or access to, any Software. You will not use the Software with any software or other materials that are subject to licenses or restrictions (e.g., open source software licenses) that, when combined with the Software, would require us to disclose, license, distribute or otherwise make all or any part of such Software available to anyone, or grant others any rights to modify the Software. You will not remove, modify, or obscure any copyright, patent, trademark or other proprietary or attribution notices on or in any Software.

You agree to maintain accurate records as necessary to verify our compliance with this EULA. Upon our request, no more than once every twelve months, you agree to furnish such records to us and certify your compliance with this EULA. We or our independent third party accountant may examine and audit your books and records relating to this EULA and your access, use, and deployment of the Software to the extent necessary to verify your compliance with this EULA and any order form(s).

We warrant to you that the Software, when installed and operated pursuant to our instructions in the Documentation, will perform in material accordance with such Documentation for a period of 60 calendar days from your initial access. Your sole and exclusive remedy for a breach of this limited warranty is to return any allegedly defective Software to us and for us to repair or replace it (at our option and in our sole discretion). This limited warranty is not transferable and does not cover damages, defects, malfunctions or failures caused by any unauthorized modification of the Software by you or your agents; any abuse, misuse or negligent acts by you or your agents; modification by you or your agents of any interfaces or any software or hardware interfacing with the Software; or any failure by you or your agents to follow our installation, configuration, use or operation instructions, as set forth in the Documentation (including failure to install any updates required by us from time to time, for example, for security or as required by Applicable Laws).

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE SOFTWARE IS DELIVERED TO YOU “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. NOTWITHSTANDING THE FOREGOING, THE THIRD PARTY SOFTWARE, INCLUDING WITHOUT LIMITATION THE HEVC CODEC, IS PROVIDED TO YOU “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WE AND OUR LICENSORS, AND EACH OF THEIR RESPECTIVE AFFILIATES AND SUPPLIERS (COLLECTIVELY, THE “RELEASED PARTIES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT, AND ANY WARRANTIES OR CONDITIONS ARISING FROM ANY ACTUAL OR ALLEGED COURSE OF DEALING, USAGE OR TRADE PRACTICE. FURTHER, WE DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR BE ERROR FREE OR THAT DEFECTS IN THE SOFTWARE ARE CORRECTABLE OR WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A RELEASED PARTY OR AN AUTHORIZED REPRESENTATIVE OF A RELEASED PARTY WILL CREATE A WARRANTY. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

THE SOFTWARE IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS REQUIRING FAULT TOLERANCE OR FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, MEDICAL OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK APPLICATIONS”). WE AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK APPLICATIONS.

You will not assign or otherwise transfer this EULA, or any of your rights and obligations under this EULA, without our prior written consent. Any assignment or transfer in violation of this Section 10.1 will be void. Subject to the foregoing, this EULA will be binding upon, and inure to the benefit of, the parties and their respective permitted successors and assigns.

The laws of the State of Washington, without reference to conflict of law rules, govern this EULA and any dispute of any sort that might arise between you and us. The United Nations Convention for the International Sale of Goods and Uniform Computer Information Transactions Act do not apply to this EULA.

If a dispute arises from or relates to this Agreement or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be King County, Washington. The arbitration shall be governed by the laws of the State of Washington.

We and our affiliates will not be liable for any delay or failure to perform any obligation under this EULA where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outage, utilities or other telecommunications failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

The only data we collect from you with regard to the Software is Account Information. We will only use Account Information in accordance with the privacy policy located at https://www.procustodibus.com/privacy/ (and any successor or related locations designated by us), as may be updated by us from time to time, and you consent to such usage. You further acknowledge and agree that personal information supplied by you, including Account Information, may be transferred to other countries or jurisdictions outside of your country or jurisdiction of residence, and that the protections afforded such information under the laws and regulations of the country or jurisdiction to which the information is transferred may not be comparable to or as protective as the protections afforded such information in your country or jurisdiction of residence. You represent and warrant that your creation, collection, receipt, access, use, storage, disposal, transfer and disclosure of your employees’ personal information does and will comply with all applicable federal, national, state, municipal and local privacy and data protection laws, as well as all other applicable regulations and directives, and that you have obtained all consents required by the foregoing laws. “Account Information” means information about you that you provide to us in connection with a Sales Order. For example, Account Information may include names, usernames, phone numbers, email addresses and billing information associated with a Software subscription.

We may provide any notice to you under this EULA by sending a message to the email address you provided with your Account Information. Notices we provide by email will be effective when we send the email. It is your responsibility to notify us of any change to your email address. You will be deemed to have received any email messages sent to your email address when we send them, whether or not you actually receive the message. To give us notice under this EULA, you must contact us by personal delivery, overnight courier or registered or certified mail to the mailing address listed below. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one (1) business day after they are sent. Notices provided registered or certified mail will be effective three (3) business days after they are sent.

Arcem Tene
225 Cedar St #1013
Seattle, WA 98121

We and you are independent contractors, and this EULA will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.

All communications and notices made or given pursuant to this EULA must be in the English language. If we provide a translation of the English language version of this EULA, the English language version of the EULA will control if there is any conflict.

You may use our confidential information only in connection with your use of the Software as permitted under this EULA. You will not disclose our confidential information during the term or at any time during the five (5) year period following the end of the term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of our confidential information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this EULA or your use of the Software.

Except as set forth in Sections 3, 5, and 10.11, this EULA does not create any third party beneficiary rights in any individual or entity that is not a party to this EULA.

We will indemnify and hold you harmless from any third party claim brought against you that the Software, as provided by us to you under this EULA and used within the scope of this EULA, infringes or misappropriates any U.S. patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, provided (a) use of the Software by you is in conformity with the EULA and Documentation; (b) the infringement is not caused by modification or alteration of the Software or Documentation made by you or a party at your direction, other than as specified by us in writing; and/or (c) the infringement was not caused by a combination or use of the Software with products not supplied by us.

Our indemnification obligations are contingent upon you: (a) promptly notifying us in writing of the claim; (b) granting us sole control of the selection of counsel, defense, and settlement of the claim; (c) providing us with reasonable assistance, information and authority required for the defense and settlement of the claim; and (d) using the most up-to-date version (including hotfixes, patches, and updates) of the Software. Sections 10.11 and 10.12 states our entire liability (and shall be your sole and exclusive remedy) with respect to indemnification to you.

NO RELEASED PARTY WILL BE LIABLE TO YOU UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY FOR (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, (B) THE VALUE OF YOUR CONTENT, © LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, OR GOODWILL, OR (D) UNAVAILABILITY OF THE SOFTWARE, SUPPORT SERVICES OR PROFESSIONAL SERVICES, EVEN IF WE HAVE BEEN ADVISED OF, OR SHOULD HAVE KNOWN OF, THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 10.11, OUR AND OUR AFFILIATES’ AGGREGATE LIABILITY UNDER THIS EULA WILL NOT EXCEED THE LESSER OF $10,000 OR THE AMOUNT RECEIVED BY US FOR THE APPLICABLE SOFTWARE LICENSE DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE RELEVANT CLAIM AROSE.

You acknowledge that the Software is subject to U.S. export jurisdiction. You are solely responsible for complying with all Applicable Laws that apply to the download, installation and use of the Software in your jurisdiction. You will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, the Software or any computer equipment or device containing the Software to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, U.S. Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority, including all end-user, end-use and destination restrictions issued by U.S. and other governments. You represent and warrant that you and your financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the U.S. Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list, and the U.S. Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority. You understand that certain functionality of the Software, such as encryption or authentication, may be subject to use, import or export restrictions in the event that you transfer the Software from the country of delivery, and you are responsible for complying with any such applicable restrictions. The Software is provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Software. If you are using the Software on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Software. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.