This Software End User Agreement, including the Order Form which by this
reference is incorporated herein (this “Agreement“), is a binding agreement between the NedGraphics Contracting Entity noted on the
Order Form (“Provider“) and the
person or entity identified on the Order Form as the Client of the Software (“Client“).
PROVIDER PROVIDES THE SOFTWARE AND RELATED TRAINING SERVICES (IF REQUESTED)
SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CLIENT ACCEPTS AND
COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON OR EXECUTING THE ORDER FORM YOU (A) ACCEPT THIS AGREEMENT
AND AGREE THAT CLIENT IS 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 CLIENT IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER
LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT AND BIND
CLIENT TO ITS TERMS. IF CLIENT DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROVIDER WILL NOT AND DOES NOT
LICENSE THE SOFTWARE TO CLIENT, AND YOU MUST NOT DOWNLOAD, INSTALL, OR ACCESS THE SOFTWARE AND/OR
DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR
CLIENT’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY
IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY
SOFTWARE THAT CLIENT DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF PROVIDER’S
SOFTWARE.
“Authorized Users” means solely those individuals authorized to use the Software
by the Client, or the Provider, on Client’s behalf, pursuant to the license granted under this Agreement, as set
forth on the Order Form.
“Documentation” means Provider’s user
manuals, handbooks, and installation guides relating to the Software made available by Provider to
Client.
“Intellectual Property Rights” means any and all registered and unregistered rights
granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright,
trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or
equivalent rights or forms of protection, in any part of the world.
“Fees” means the fees, including all taxes thereon, paid or required to be paid by
Client for the license or access rights granted under this Agreement, any fees set forth in the Order Form,
and/or other applicable fees.
“Order Form” means the ordering document executed by the Provider for
Client’s purchase of the license and/or Maintenance for the Software granted under this Agreement and for other
services listed therein, if any.
“Person” means an individual, corporation, partnership, joint venture, limited liability
company, governmental authority, unincorporated organization, trust, association, or other entity.
“SLA” means Provider’s standard service level agreement that Provider may provide to
Client from time to time.
“Software” means the product, including
such features and functions, describd in the Order Form in object code format, including any Updates provided
to Client pursuant to this Agreement.
“Third Party” means any Person other than Client or Provider.
“Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Provider generally makes available free
of charge to all Clients of the Software.
2. License Grant and Scope.
Subject to and conditioned upon Client’s payment of the Fees and Client’s compliance with all terms and
conditions set forth in this Agreement, Provider hereby grants Client a non-exclusive,
non-sublicensable, non-transferable (except in compliance with Section 17(e)), license, during the Term,
as applicable, based on the Order From, to:
install in accordance with the
Documentation only the quantity of Software set forth on the Order Form on no more than the
equivalent number of computers (i.e. workstations) owned or leased, and controlled by, Client;
or
access and use the Software for no more
than the number of Authorized Users set out in the Order Form, unless the Order Form expressly
states that the Client is purchasing a network, or enterprise, license; and
use the Software, or run the Software as
properly installed, in accordance with this Agreement and the Documentation, solely as set forth
in the Documentation and solely for Client’s internal business purposes.
3. Use of AI Tools and Technologies.
Scope of AI Integration
The Provider may utilize artificial
intelligence tools, including but not limited to large language models and similar AI technologies, to deliver
certain features, functionalities, or services within the Software or as part of ancillary services provided to
the Client and its Authorized Users (“AI Tools”).
These AI Tools may be leveraged for tasks such as, but not limited to, natural language
processing, data analysis, user support, and content generation.
Data Input and ownership
The use of AI Tools may involve the
processing of data provided by the Client and its Authorized Users to enable features, functionalities and
outputs tailored to such data. As between the Provider and the Client, all data input into the AI Tools, and all
outputs generated as a result, shall be owned by the Client or its Authorized Users, as applicable. Client is
solely responsible for ensuring the accuracy, legality and appropriateness of all data submitted to the AI Tools
by it or its Authorized Users.
Personal Data Disclaimer
The Software and associated AI Tools
are not designed to receive, store, or process personal data or personally identifiable information as defined
under applicable data protection laws (PII). Client agrees not to input, upload or otherwise provide any PII in
connection with its use of the AI Tools. The Provider disclaims all responsibility and liability for the
processing of any PII inadvertently submitted and does not accept or assume the role of a processor or
sub-processor under any applicable data protection laws in respect of such data.
Client shall ensure that all data
submitted by it or its Authorized Users is non-personal and does not include information that could directly or
indirectly identify any individual.
AI Tools Usage
Disclaimer.
Client acknowledges and agrees that any
data, content, or information input into AI Tools by Client or its Authorized Users is provided at their own
risk. Provider disclaims any responsibility or liability for any consequences resulting from such inputs,
including but not limited to any decisions or actions taken based on outputs generated by the AI Tools. Client
and its Authorized Users are solely responsible for ensuring that inputs do not violate any laws, regulations,
or third-party rights, and for verifying the accuracy and appropriateness of AI-generated outputs for their
intended purposes.
No Guarantee of AI Outputs
While the Provider
endeavors to ensure the accuracy and relevance of outputs generated by AI Tools, the Client acknowledges
that:
• AI-generated
content may not always be accurate, complete, or suitable for the specific purposes of the Client and its
Authorized Users.
• Provider shall not
be liable for any claims, damages, or losses resulting from decisions made or actions taken based on the
reliance on AI-generated content. Client is responsible for reviewing and confirming the accuracy and
appropriateness of AI-generated content for its intended use.
Third-Party AI Providers
Provider may engage
third-party service providers to supply or support certain AI functionalities within the Software or services.
Provider will use reasonable efforts to ensure these third-party providers adhere to acceptable standards of
security and privacy. However, Provider disclaims any liability for data breaches, losses, or other damages
arising from the actions or omissions of third-party AI providers.
Consent and Opt-Out
Use of the AI Tools
is optional. The Client and/or its Authorized Users may opt out of the use of the AI Tools at any time via
settings within the Software (where available), or, if such settings are not available, by providing written
notice to the Provider.
Client acknowledges
that opting out of the AI Tools may limit or disable certain features or functionalities of the Software that
depend on AI-driven processing. However, such opt-out will not affect the availability of core non-AI
functionality, nor shall it alter the Client’s ownership of input or output data as described in Section
3(b).
Opting out does not
affect the Client’s obligations under this Agreement, including ensuring that all submitted data remains
appropriate and free of PII as described in Section 3(c).
Updates and Changes to AI Tools
Provider reserves the right, at its
sole discretion, to update, modify, or discontinue any AI Tools integrated into the Software or services.
Provider will endeavor to notify Client of significant changes that could materially affect the use or
functionality of the Software or services.
Compliance and Transparency
Provider commits to
ensuring that the integration and use of AI Tools in the Software and services are in compliance with applicable
laws and regulations. Upon Client’s request, Provider will provide information regarding the specific AI Tools
used and their role in the provision of the Software and services.
4. Use Restrictions. Client shall not, and shall require its Authorized Users not to, directly or indirectly:
use (including make any copies of) the
Software or Documentation beyond the scope of the license granted under 2;
provide any other Person not an
Authorized User, including any subcontractor, independent contractor, affiliate, or service
provider of Client, with access to or use of the Software or Documentation;
modify, translate, adapt, or otherwise
create derivative works or improvements, whether or not patentable, of the Software or
Documentation or any part thereof;
combine the Software or any part thereof
with, or incorporate the Software or any part thereof in, any other programs, other than where
the Software is designed and permitted by Provider to integrate into a Third-Party program or
service;
reverse engineer, disassemble, decompile,
decode, or otherwise attempt to derive or gain access to the source code of the Software or any
part thereof;
remove, delete, alter, or obscure any
trademarks or any copyright, trademark, patent, or other intellectual property or proprietary
rights notices provided on or with the Software or Documentation, including any copy
thereof;
rent, lease, lend, sell, sublicense,
assign, distribute, publish, transfer, or otherwise make available the Software, or any features
or functionality of the Software, to any Third Party for any reason, whether or not over a
network or on a hosted basis, including in connection with the internet or any web hosting, wide
area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau,
software as a service, cloud, or other technology or service;
use the Software or Documentation in
violation of any law, regulation, or rule; or
use the Software or Documentation for
purposes of competitive analysis of the Software, the development of a competing software
product or service, or any other purpose that is to the Provider’s commercial
disadvantage.
5. Responsibility for Use of Software.
Client is responsible and liable for all uses of the Software and Documentation through
access thereto provided by Client, directly or indirectly. Specifically, and without limiting the
generality of the foregoing, Client is responsible and liable for all actions and failures to take
required actions with respect to the Software and Documentation by its Authorized Users or by any other
Person to whom Client or an Authorized User may provide access to or use of the Software and/or
Documentation, whether such access or use is permitted by or in violation of this Agreement.
6. Compliance Measures.
The Software may contain technological
copy protection or other security features designed to prevent unauthorized use of the Software,
including features to protect against any use of the Software that is prohibited under 4. Client
shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or
implement any workaround to, any such copy protection or security features.
On Provider’s written request, Client
shall conduct a review of its and its Authorized Users use of the Software and certify to
Provider in a written instrument signed by an officer of Client that it is in full compliance
with this Agreement or, if Client discovers any noncompliance:
Client shall immediately remedy
such noncompliance and provide Provider with written notice thereof. Client shall
provide Provider with all access and assistance as Provider requests to further evaluate
and remedy such noncompliance.
If Client’s use of the Software
exceeds the number of copies, seats or Authorized Users permitted under the license,
Provider shall have the remedies set forth in Section 6(d).
During the Term, Provider may, in
Provider’s sole discretion, audit Client’s use of the Software to ensure Client’s compliance
with this Agreement, provided that (i) any such audit shall be conducted on not less than 10
days’ prior notice to Client, and (ii) no more than 1 audit may be conducted in any 6 month
period except for good cause shown. Provider also may, in its sole discretion, audit Client’s
systems within 3 months after the end of the Term to ensure Client has ceased use of the
Software and removed all copies of the Software from such systems as required hereunder. The
Client shall reasonably cooperate with Provider’s personnel conducting such audits and provide
all reasonable access requested by the Provider to records, systems, equipment, information, and
personnel, including machine IDs, serial numbers, and related information. Provider may conduct
audits only during Client’s normal business hours and in a manner that does not unreasonably
interfere with the Client’s business operations.
If the audit determines that the Client’s
use of the Software exceeds or exceeded the use permitted by this Agreement then:
Client shall, within 5 days
following the date of Provider’s written notification thereof, pay to Provider the
retroactive Fees for such excess use and, unless Provider terminates this Agreement
pursuant to Section 6(d)(ii),
obtain and pay for a valid license to bring Client’s use into compliance with this
Agreement. In determining the Client Fee payable pursuant to the foregoing, (x) unless
Client can demonstrate otherwise by documentary evidence, all excess use of the Software
shall be deemed to have commenced on the commencement date of this Agreement or, if
later, the completion date of any audit previously conducted by Provider hereunder, and
continued uninterrupted thereafter, and (y) the rates for such licenses shall be
determined without regard to any discount to which Client may have been entitled had
such use been properly licensed prior to its commencement (or deemed
commencement).
If the use exceeds or exceeded
the use permitted by this Agreement by more than 10%, Client shall also pay to Provider,
within 5 days following the date of Provider’s written request therefor, Provider’s
costs incurred in conducting the audit and Provider shall also have the right to
terminate this Agreement and the license granted hereunder, effective immediately upon
written notice to Client.
Provider’s remedies set forth in this Section
6(d) are cumulative and are in
addition to, and not in lieu of, all other remedies the Provider may have at law or in equity, whether under
this Agreement or otherwise.
7. Maintenance and Support.
Subject to Section 7(d), the license granted hereunder entitles
Client to the software maintenance and support services (“Maintenance”). Maintenance shall be
for the term set forth in the Order Form (“Maintenance Term”).
Such Maintenance may include, but is not
limited to, (i) correction of material defects so that the Software will operate materially in
conformity with the warranties in this Agreement, (ii) Updates, subject to Section 7(c) and
(d), and (iii) telephone or email/electronic consultation services regarding
the use of the Software during Provider’s standard support hours.
Maintenance will include provision of
Updates. Provider may develop and provide Updates in its sole discretion, and Client agrees that
Provider has no obligation to develop any Updates at all or for particular issues, except to
correct material defects such that the Software operates in material conformity with the
warranties in this Agreement. Client further agrees that all Updates will be deemed Software,
and related documentation will be deemed Documentation, all subject to all terms and conditions
of this Agreement. Client acknowledges that Provider may provide some or all Updates via
download from a website designated by Provider and that Client’s receipt thereof will require an
internet connection, which connection is Client’s sole responsibility. Provider has no
obligation to provide Updates via any other media. Maintenance and support services do not
include any new version or new release of the Software that Provider may issue as a separate or
new product, and Provider may determine whether any issuance qualifies as a new version, new
release, or Update in its sole discretion.
Provider has no obligation to provide
Maintenance, including Updates:
for any but the most current
version or release of the Software;
for any copy of Software for
which all previously issued Updates have not been installed;
if Client is in breach under this
Agreement; or
for any Software that has been
modified other than by or with the authorization of Provider, or that is being used with
any hardware, software, configuration, or operating system not specified in the
Documentation or expressly authorized by Provider in writing.
8. Collection and Use of Information.
Client acknowledges that Provider may,
directly or indirectly through the services of Third Parties, collect and store information
regarding use of the Software and about equipment on which the Software is installed or through
which it otherwise is accessed and used, including, but not limited to, through:
the provision of maintenance and
support services; and
security measures included in the
Software as described in 6.
Client agrees that the Provider may use
such information for any purpose related to any use of the Software by Client or on Client’s
equipment, including but not limited to:
improving the performance of the
Software or developing Updates; and
verifying Client’s compliance
with the terms of this Agreement and enforcing the Provider’s rights, including all
Intellectual Property Rights in and to the Software.
9. Intellectual Property Rights.
Client acknowledges and agrees that the Software and Documentation are provided under license, and not
sold, to Client. Client does not acquire any ownership interest in the Software or Documentation under
this Agreement, or any other rights thereto, other than to use the same in accordance with the license
granted and subject to all terms, conditions, and restrictions under this Agreement. Provider and its
Providers and service providers reserve and shall retain their entire right, title, and interest in and
to the Software and all Intellectual Property Rights arising out of or relating to the Software, except
as expressly granted to the Client in this Agreement. Client shall safeguard all Software (including all
copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Client shall
promptly notify Provider if Client becomes aware of any infringement of the Provider’s Intellectual
Property Rights in the Software and fully cooperate with Provider in any legal action taken by Provider
to enforce its Intellectual Property Rights.
10. Payment. All Fees are payable
in advance in the manner set forth in the Order Form and are non-refundable. Any renewal of the license
or Maintenance hereunder shall not be effective until the fees for such renewal have been paid in full.
If an Order Form is silent as to the manner in which a Fee is to be paid, payments for such fees must be
made within 30 days of the date of the invoice in the currency listed in the Order Form. Any amount not
paid when due shall be subject to a service charge equal to the lesser of one and one-half percent
(1.5%) per month or the maximum amount permitted by law, and Provider may defer shipments of Software
and/or provision of services until all overdue payments are received. Late payment of the Fees will not
foreclose any other right that Provider may have as a consequence of late payment. In the event that
Provider is required to take legal action to collect unpaid amounts, and Provider is successful in such
action, Client will reimburse all costs and reasonable attorneys’ fees incurred by Provider in such
action
11. Term and Termination.
This Agreement and the license granted
hereunder shall remain in effect for the term set forth on the Order Form or until earlier
terminated as set forth herein (the “Term“).
Either Party may terminate this
Agreement, effective upon written notice to other Party, if such other Party, materially
breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of
cure, remains uncured thirty (30) days after the non-breach Party provides written notice
thereof.
Provider may terminate this Agreement,
effective immediately, if Client files, or has filed against it, a petition for voluntary or
involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general
assignment for the benefit of its creditors or applies for, or consents to, the appointment of a
trustee, receiver, or custodian for a substantial part of its property.
Upon expiration or earlier termination of
this Agreement, the license granted hereunder shall also terminate, and Client shall cease using
and destroy all copies of the Software and Documentation. No expiration or termination shall
affect Client’s obligation to pay all Fees that may have become due before such expiration or
termination, or entitle Client to any refund, in each case except as set forth in Section
12(c)(ii).
12. Limited Warranties, Exclusive Remedy, and
Disclaimer/Warranty Disclaimer.
Solely with respect to Software for which
Provider receives a Fee, Provider:
warrants that, for a period of
ninety-days (90) days following the purchase date set forth on the Order Form any media
on which the Software is provided will be free of material damage and defects in
materials and workmanship under normal use and the Software will substantially contain
the functionality described in the Documentation, and when properly installed on a
computer meeting the specifications set forth in, and operated in accordance with, the
Documentation, will substantially perform in accordance therewith; and
shall, to the extent the Provider
has provided to the Client the SLA, provide the remedies listed in the SLA for any
failure of the Software listed in the SLA. Such remedies will be Client’s sole remedy
for any failure of the Software, and Client recognizes and agrees that if the SLA does
not list a remedy for a given failure, it has no remedy; provided this sentence does not
restrict any Client right to terminate this Agreement for breach where applicable.
Credits issued pursuant to the SLA apply to outstanding or future invoices only and are
forfeit upon termination of this Agreement. Provider is not required to issue refunds or
to make payments against such credits under any circumstances, including without
limitation after termination of this Agreement.
THE FOREGOING WARRANTIES DO NOT APPLY, AND PROVIDER
STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.
The warranties set forth in Section 12(a)(i) and Section 12(a)(ii) will not
apply and will become null and void if Client materially breaches any provision of this Agreement, or if
Client, any Authorized User, or any other Person provided access to the Software by Client or any
Authorized User, whether or not in violation of this Agreement:
installs or uses the Software on or in
connection with any hardware or software not specified in the Documentation or expressly
authorized by Provider in writing;
modifies or damages the Software, or the
media on which it is provided, including abnormal physical or electrical stress; or
misuses the Software, including any use
of the Software other than as specified in the Documentation or expressly authorized by Provider
in writing.
If, during the period specified in Section 12(a),
any Software covered by the warranty set forth in such Section fails to perform substantially in
accordance with the Documentation, and such failure is not excluded from warranty pursuant to the
Section 12(b), Provider will, subject to Client’s promptly notifying Provider in writing of such
failure, at its sole option, either:
repair or replace the Software, provided
that Client provides Provider with all information Provider reasonably requests to resolve the
reported failure, including sufficient information to enable the Provider to recreate such
failure; or
refund the Fees paid for such Software,
subject to Client’s ceasing all use of and returning to Provider all copies of the
Software.
If Provider repairs or replaces the
Software, the warranty will continue to run from the initial date specified on the Order Form, and not from
Client’s receipt of the repair or replacement. The remedies set forth in this Section 12(c) are Client’s sole
remedies and Provider’s sole liability under the limited warranty set forth in Section 12(a).
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN
SECTION 12(a),
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO CLIENT “AS IS” AND WITH ALL FAULTS AND
DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PROVIDER, ON
ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE PROVIDERS AND SERVICE
PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH
RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF
DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE
PROVIDER PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED
SOFTWARE WILL MEET THE CLIENT’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH
ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY
PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE
CORRECTED.
13. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
IN NO EVENT WILL PROVIDER OR ITS
AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE PROVIDERS OR SERVICE PROVIDERS, BE LIABLE TO
CLIENT OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE;
LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS
OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR
SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR
PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY
INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT,
EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, ORDER FORM, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS
OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE PROVIDER WAS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL PROVIDER’S AND ITS
AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE PROVIDERS’ AND SERVICE PROVIDERS’,
COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT, ORDER FORM OR THEIR
RESPECTIVE SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO
THE PROVIDER PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE IN THE TWELVE (12) MONTHS PERIOD
PRECEDING THE DATE THE SUBJECT OF THE CLAIM FIRST AROSE.
THE LIMITATIONS SET FORTH IN SECTION
13(a) AND
SECTION 13(b)
SHALL APPLY EVEN IF THE CLIENT’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL
PURPOSE.
14. Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its
associated regulations. Client shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
15. US Government Rights. Each of
the Documentation and the Software is a “commercial product” as that term is defined at 48 C.F.R. §
2.101, consisting of “commercial computer software” and “commercial computer software documentation” as
such terms are used in 48 C.F.R. § 12.212. Accordingly, if Client is an agency of the US Government or
any contractor therefor, Client only receives those rights with respect to the Software and
Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §
227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors,
or (b) 48 C.F.R. § 12.212, with respect to all other US Government Clients and their contractors.
Confidentiality.
(a) Definition of Confidential
Information. For purposes of this Agreement, “Confidential Information” shall mean any and all non-public
information that is disclosed by either Party to the other Party during the term of this Agreement, or for the
purposes of onboarding or being provided an order to purchase the Software, including but not limited to
business and marketing plans, technology and technical information, product plans and designs, and business
processes disclosed by either Party. However, Confidential Information shall not include any information which
(i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any
obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation
owed to the Disclosing Party, (iv) was independently developed by the Receiving Party, or (v) the information
referred or otherwise covered by Section 8 herein.
(b) Protection of Confidential
Information. The Receiving Party agrees to (i) take at least reasonable measures to prevent the unauthorized
disclosure or use of Confidential Information, and to protect the confidentiality thereof in a manner no less
stringent than it protects the confidentiality of its own proprietary and confidential information, but in no
event with less than due care, and (ii) not to use any Confidential Information of the Disclosing Party for any
purpose outside the scope of this Agreement. The Receiving Party shall limit access to Confidential Information
of the Disclosing Party to those of its employees and contractors who need such access for purposes consistent
with this Agreement and who have signed confidentiality agreements with the Receiving Party containing
protections no less stringent than those herein.
(c) Client Representation Regarding
Confidential Information. The Client represents and warrants that any Confidential Information it provides to
Provider, including Confidential Information belonging to a third party, is lawfully owned or licensed by
Client, and that Client has the authority or permission to disclose such Confidential Information to Provider as
required for the purposes of onboarding or being provided an order to purchase the Software. The Client agrees
to indemnify and hold harmless the Provider against any claims, losses, liabilities, damages, expenses, and
costs (including attorneys’ fees and court costs) arising from or relating to any breach of this representation
and warranty.
(d) Compelled Disclosure of Confidential
Information. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing
Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent
legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to
contest the disclosure.
(e) Return or Destruction of
Confidential Information. Upon termination of this Agreement, the Receiving Party shall return or destroy all
copies of Confidential Information of the Disclosing Party, at the Disclosing Party’s discretion, and certify in
writing to the Disclosing Party that it has complied with this requirement, except to the extent required to be
retained by law.
By accepting this Agreement, Client
expressly acknowledges and agrees to the terms set forth in this confidentiality clause, recognizing the
importance of protecting the confidentiality and integrity of the information exchanged between the Parties in
the course of executing and performing this Agreement.
Use of Client Information and Privacy Policy
Provider may collect and process certain
business contact information and other administrative data relating to Client and its personnel
(such as names, email addresses, billing details, and support interactions) for the purposes of
account setup and management, invoicing and payment, technical support, software updates,
service communications, and marketing of Provider’s products and services.
Such data will be processed in accordance
with Provider’s Privacy Policy (available at:
https://nedgraphics.com/privacy-policy/).
This provision does not apply to Client
Data input into the Software or processed by the AI Tools, which are governed separately under
this Agreement.
Client agrees that Provider may
communicate with designated Client contacts by email or other means regarding administrative,
invoicing, support, or promotional matters, and may retain such communications for recordkeeping
and quality assurance purposes.
Client may opt out of receiving direct
marketing communications at any time by using the unsubscribe link provided in emails or by
contacting Provider directly.
Miscellaneous.
All matters arising out of or relating to
this Agreement shall be governed by and construed in accordance with the internal laws of the
State of New Jersey without giving effect to any choice or conflict of law provision or rule.
Any legal suit, action, or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby shall be instituted in the federal courts of the United States
of America or the courts of the State of New Jersey in each case located in Union County, and
each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal
suit, action, or proceeding. Service of process, summons, notice, or other document by mail to
such party’s address set forth herein shall be effective service of process for any suit,
action, or other proceeding brought in any such court.
In no event shall either Party be liable
to the other Party, or be deemed to have breached this Agreement, for any failure or delay in
performing its obligations under this Agreement, (except for any obligations to make payments),
if and to the extent such failure or delay is caused by any circumstances beyond such Party’s
reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake,
pandemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not),
terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions;
and (v) embargoes or blockades in effect on or after the date of this Agreement.
All notices, requests, consents, claims,
demands, waivers, and other communications hereunder shall be in writing and shall be deemed to
have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when
received by the addressee if sent by a nationally recognized overnight courier (receipt
requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if
sent during normal business hours of the recipient, and on the next business day if sent after
normal business hours of the recipient; or (iv) on the third day after the date mailed, by
certified or registered mail, return receipt requested, postage prepaid. Such communications
must be sent to the respective parties at the addresses set forth on the Order Form (or to such
other address as may be designated by a party from time to time in accordance with this Section
17(c)Section).
This Agreement, together with the Order
Form, constitutes the sole and entire agreement between Client and Provider with respect to the
subject matter contained herein, and supersedes all prior and contemporaneous understandings,
agreements, representations, and warranties, both written and oral, with respect to such subject
matter.
Client shall not assign or otherwise
transfer any of its rights, or delegate or otherwise transfer any of its obligations or
performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation
of law, or otherwise, without Provider’s prior written consent, which consent Provider may give
or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting
its generality, any merger, consolidation, or reorganization involving Client (regardless of
whether Client is a surviving or disappearing entity) will be deemed to be a transfer of rights,
obligations, or performance under this Agreement for which Provider’s prior written consent is
required. No delegation or other transfer will relieve Client of any of its obligations or
performance under this Agreement. Any purported assignment, delegation, or transfer in violation
of this Section
17(e) is void.
Provider may freely assign or otherwise transfer all or any of its
rights, or delegate or otherwise transfer all or any of its obligations or performance, under
this Agreement without Client’s consent. This Agreement is binding upon and inures to the
benefit of the parties hereto and their respective permitted successors and assigns.
This Agreement 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 on any other Person any legal or equitable
right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
This Agreement may only be amended,
modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by
any party of any of the provisions hereof shall be effective unless explicitly set forth in
writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no
failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from
this Agreement shall operate or be construed as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power, or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any term or provision of this
Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity,
illegality, or unenforceability shall not affect any other term or provision of this Agreement
or invalidate or render unenforceable such term or provision in any other jurisdiction.
For purposes of this Agreement, (a) the
words “include,” “includes,” and “including” shall be deemed to be followed by the words
“without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,”
“hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context
otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer
to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an
agreement, instrument, or other document means such agreement, instrument, or other document as
amended, supplemented, and modified from time to time to the extent permitted by the provisions
thereof and (z) to a statute means such statute as amended from time to time and includes any
successor legislation thereto and any regulations promulgated thereunder. This Agreement shall
be construed without regard to any presumption or rule requiring construction or interpretation
against the party drafting an instrument or causing any instrument to be drafted. The Order Form
[and all Annexes, Schedules, and Exhibits] referred to herein shall be construed with, and as an
integral part of, this Agreement to the same extent as if they were set forth verbatim
herein.
The headings in this Agreement are for
reference only and do not affect the interpretation of this Agreement.
