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End User Licensing Agreement

 

END USER LICENSE AGREEMENT This End User License Agreement (“EULA”) contains the terms and conditions for the license granted by Dejero for the End Customer’s use of the Dejero Materials, Communication Services, and if elected Dejero provided Connectivity Services

 

THIS EULA IS BETWEEN YOU AND SILICONNSAVVY LTD AND GOVERNS YOUR USE OF DEJERO’S SOFTWARE AND SERVICES. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS EULA AND MAY NOT ACCESS OR USE THE SOFTWARE OR SERVICES. BY ACCEPTING THIS EULA, BY EXECUTING A PURCHASE ORDER THAT REFERENCES THIS EULA, OR BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE OR SERVICES IN ANY WAY, YOU AGREE TO COMPLY WITH AND BE BOUND BY THE TERMS OF THIS EULA. THIS EULA IS EFFECTIVE BETWEEN CUSTOMER AND DEJERO AS OF THE DATE OF ACCEPTANCE OF THIS EULA. YOU MAY NOT ENTER INTO THIS EULA AND/OR ACCESS THE SOFTWARE OR SERVICES IF YOU ARE A COMPETITOR OF DEJERO OR ANY OF ITS AFFILIATES. 


 

Where the customer or another party downloads, installs, manages or otherwise uses the Software on Customer’s behalf, such party will be deemed to be Customer’s agent and (i) Customer will be deemed to have accepted all of the terms and conditions of this EULA, and (ii) to the extent permitted by applicable law, Customer, not Dejero, shall be responsible for the acts or omissions of such party in relation to its management or use of the Software on Customer’s behalf. 

 

NOW THEREFORE it is agreed as follows:

 

1. DEFINITIONS. In addition to the terms defined elsewhere in this EULA, the following defined terms shall have the following meanings for purposes of this EULA: 

 

1.1 “Authorized User” shall mean the individual(s) authorized by Customer to use the Dejero Materials and Communication Services as permitted pursuant to this EULA. 

 

1.2 “Communication Services” shall mean Dejero’s existing communication infrastructure that provides Customer access to the Software. 

 

1.3 “Computer” means any device or computing environment that benefits from the Software (including without limitation, workstations, personal computers, laptops, netbooks, tablets, smartphones, and environments an internet proxy or a gateway device, or a database). The Software does not have to be physically installed on the computer environment to provide benefit, nor is there a requirement for the computing hardware to be owned by the Customer. The term ‘Computer’ as defined herein includes, without limitation, non-persistent deployments, electronic devices that are capable of retrieving, and transmitting data, and virtual machines. 

 

1.4 “Data” shall mean all Customer information collected and generated in connection with the use of the Dejero Materials and Communication Services, which is deemed Customer’s Confidential Information under this EULA. 

 

1.5 “Dejero Materials” shall mean the Software, documentation, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided by Dejero in connection with the Software, documentation, or are otherwise related thereto. 

 

1.6 "End Authorized User” means Customer’s authorized an employee, consultant or other individual who benefits from the Software licensed to the Customer. “Fee” means the fee payable for the Dejero Materials, enhanced support package, maintenance and support subscription, and/or extended Maintenance subscription. 

 

1.7 “Hardware” means the hardware equipment, together with any and all related components, provided by Dejero (including but not limited to power supply modules, storage media, ship kits and rack mount kits). 

 

1.8 “Intellectual Property” means any and all intellectual property owned by Dejero in the Software, and all modifications, enhancements, corrections, upgrades and additions thereto, including, without limitation, all technical information, technical data, inventions, products, data, algorithms, design, methods, know-how, processes, copyrights, patents, trade secrets, trademarks, software (including object code and source code), models, patterns, drawings, specifications, prototypes, discoveries, techniques systems, works of authorship, ideas, and concepts, and all intellectual property rights therein (whether or not patentable or registerable under copyright, trade-mark, trade secret or similar legislation or subject to analogous protection). 

 

1.9 “Server” means a Computer upon which the Software is installed and from which other Computers receive, transmit or retrieve data, 

 

1.10 “Software” shall mean Dejero’s commercial software and all documentation relating thereto, including any Updates, fixes, Upgrades, enhancements or modifications from time to time. 

 

1.11 “Update” means an update to the Software (excluding Upgrades) made available to the Customer or the Partner by Dejero at its sole discretion from time to time automatically or otherwise, but excluding any updates marketed and licensed by Dejero for a separate Fee. 

 

1.12 "Upgrade” means any enhancement or improvement to the functionality of the Software made available to the Customer or the Partner by Dejero at its sole discretion from time to time automatically or otherwise but excluding any software and/or upgrades marketed and licensed by Dejero for a separate Fee. 

 

1.13 “Connectivity Services” means airtime service provided to Dejero by a wireless or satellite carrier supporting the Platform to send and receive data with the Product . Terms and conditions for connectivity services outlined by each providing carrier used must be followed by the end user, distribution partner, reseller, agent or approved individual seller. Connectivity Services requires a commercial agreement between Dejero and the End User 

 

2. SOFTWARE 

 

2.1 Software License. The Software provided to Customer may be licensed on a limited or perpetual basis.  

(a) For Software on Dejero Hardware: Subject to the terms and conditions of this EULA, Dejero hereby grants to Customer, a, limited, non-exclusive, non-transferable (except as provided herein), revocable license to use the Software during the Term for Customer’s internal purposes. 

 

2.2 Use of Software. The Software is licensed by Customer on a per Hardware basis (“Licensed Entitlement”). Customer’s actual usage and/or installations, including without limitation any usage or installations for failover purposes, may not exceed the License Entitlement at any time or under any circumstances. If Customer wishes to increase its actual usage, it must first purchase the corresponding additional License Entitlement. 

 

2.3 License to Communication Services. Subject to Customer’s and its Authorized Users’ compliance and performance in accordance with the terms and conditions of the EULA, Dejero hereby authorizes Customer to access and use the Communication Services for Customer’s internal purposes. Customer will be solely responsible for any loss, theft or misuse of its Authorized User names or passwords, and for all activities that occur in Authorized User accounts and for compliance by Authorized Users with all the terms and conditions of this EULA. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software or Communication Services, and notify Dejero promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Software or Communication Services. 

 

2.4 Use Restrictions. Customer shall not, nor shall Customer permit any Authorized User or other person to, do any of the following, unless specifically authorized to do so: (a) use, access, read, download or reproduce all or any part of the Software for any purpose, or in any manner not specifically authorized herein; (b) copy, distribute, disseminate, transmit or otherwise transfer, in any form or by any means, electronic, mechanical, recording, or otherwise, including onto any public or distributed network, all or any part of the Software to any third party; (c) rent, lease, lend, sell, distribute or publish, all or any part of the Software to any person, including on or in connection with any time-sharing, service bureau, software as a service, cloud or other technology or service; (d) modify, adapt, alter, translate, customize, enhance, augment, partially delete or otherwise modify, or create derivative works of all or any part of the Software; (e) decompile, disassemble, reverse engineer, deconstruct or otherwise derive, or attempt to derive, source code from the Software; (f) refer to or otherwise use the Software as part of any effort to develop a similar or competitive product or service to compete with Dejero, or for any other purpose that is to Dejero’s detriment or commercial disadvantage, or could damage Dejero’s goodwill; (g) remove, delete, alter or obscure any trademarks, documentation, warranties or disclaimers, or any copyright, trademark, patent or other Intellectual Property or proprietary rights notices from the Software; (h) bypass or breach any security device or protection used by any of the Software or access or use the Software other than by an Authorized User through the use of his or her own then valid user names and passwords; (i) input, upload, transmit or otherwise provide to or through the Dejero computer or network infrastructure or Software, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (j) damage, destroy, disrupt, disable, impair,interfere with or otherwise impede or harm in any manner the Software, Dejero computer or network infrastructure, or Dejero’s provision of services to any third party, in whole or in part; or (k) use the Software for any purpose or way in violation of local, provincial, national or international laws. 

 

2.5 Permitted Third Party Usage. The Customer may permit its affiliates to use the Software provided that: (i) the Customer shall provide prior written notice to Dejero, (ii) the affiliates shall only use the Software, in accordance with the license rights granted herein, on behalf of the Customer and its affiliates, (iii) the actual usage of the Software by the Customer and affiliates in aggregate shall not exceed the License Entitlement purchased by the Customer, (iv) the Customer shall ensure that its affiliates are aware of and comply with the terms and conditions of this EULA; and, (v) the Customer shall be responsible for, and hold Dejero harmless from, the acts and omissions of its affiliates relating to use of the Dejero Materials. The Customer is solely responsible for compliance with the applicable terms and conditions of any third-party agreements, including without limitation payment of any third-party fees for any connectivity and any other third-party products and services. 

 

2.6 Changes to Software. Dejero reserves the right, in its sole discretion, to make any changes to the Software from time to time to maintain or enhance the quality, delivery, competitive strength, efficiency and performance of the Software, or to comply with applicable laws, provided, however, that no such changes will materially reduce the functionality of the Software. Customer acknowledges and agrees that Dejero may vary, Update, or discontinue Software, Software versions, Hardware features, Hardware support, and support for third party products (including without limitation operating systems and platforms) from time to time for reasons including but not limited to changes in demand, technology, or enhancing security. Customer may consent to receive Updates or Upgrades to the Hardware automatically through the internet or other applicable storage media without obtaining further consent each time and if entitled to receive such. Customer may choose not to receive automatic Updates or Upgrades if they so elect. Dejero is not responsible if an Update or Upgrade affects how the Hardware works if this is caused by Customer’s own equipment or device not supporting the Update or Upgrade. Customer can withdraw consent at any time under certain conditions by contacting Dejero. Dejero will provide Twelve (12) months written notice of any planned discontinuation of a core Hardware feature, Hardware support for a particular feature, (a “Discontinuation”) to Customer, including without limitation by emailing and/or emailing and link and publishing the date(s) of each planned Discontinuation at its sole discretion, substitute Software, Communication Service, or Hardware subject to a Discontinuation with one with materially equivalent functionality. Dejero recommends Customers always use the latest version of Software. 

 

3. PROPRIETARY RIGHTS. The Customer acknowledges and agrees that the Dejero Materials and all Intellectual Property and all rights therein and thereto are solely owned and/or licensed by Dejero, and the Customer shall not acquire any right, title or interest in, to or under the Intellectual Property or any part thereof in the Dejero Materials, except such limited rights granted by the License hereunder. Customer acknowledges that the Dejero Materials and all Intellectual Property rights therein are commercially valuable to Dejero and are deemed to be Confidential Information (as defined below). All rights not expressly granted to Customer under this EULA are reserved by Dejero. Customer may not remove, delete, alter, or obscure any product identification or proprietary notices (e.g., copyright and trademark notices) in the Software. 

 

4. TERM AND TERMINATION 

 

4.1 Term. The term of this EULA will commence on the date on which Customer accepts the EULA or an Agreement as described in the introductory paragraphs, and, unless terminated earlier as set forth below, (a) will continue in effect until the end of the subscription term stated in the applicable agreement between Partner and the Customer (the “Term”, which shall include any renewal terms provided in the agreement), or (b) may be perpetual if the License is noted as such in such agreement. 

 

4.2 Termination. Dejero may terminate this EULA immediately, effective on written notice to Customer, if Customer: (a) after thirty (30) days written notice of missed payment, fails to pay the Fee to Dejero or the Partner (as applicable) in accordance with the agreed payment terms; (b) after thirty (30) days written notice of missed payment, Dejero does not receive payment from the relevant Partner for the Dejero Materials and packages provided to Customer, (c) Customer breaches any of the terms and conditions of this EULA; or (d) if Customer becomes insolvent. Customer’s right to use and access the Dejero Materials will automatically terminate on expiry of the applicable Term (unless renewed) or this EULA (whichever is the earlier). Within one (1) month after the date of termination of this EULA or the applicable Term, upon Dejero’ request, Customer will supply Dejero with written certification of the destruction of all partial and complete copies of the applicable Software and documentation. 

 

4.3 Survival. Provisions related to confidentiality, proprietary rights, indemnity, and any other terms and conditions in this EULA which by their nature and context are intended to survive any termination shall so survive such termination. 



 

5. DATA. 

 

5.1 Collected and Generated Data. The Software (including any Updates or Upgrades) may: (i) cause Customer’s device to automatically communicate with Dejero’s servers to deliver the functionality described in the documentation or through new features as they are introduced, and to record usage metrics; and (ii) affect preferences or data relating to technical configuration and operation stored on Customer’s device. Additionally, Customer acknowledges and agrees that Dejero may directly and remotely communicate with the Software in order to provide maintenance and technical support, and to collect various types of information: (1) Software, software versions, software features and operating systems being used by Customer, (2) processing times taken by the software, (3) Customer’s customer identification code and company name, and (4) IP address and/or ID of the machine that returns the above listed information. The Data collected hereunder may be used by Dejero to (a) provide the Dejero Materials and perform this EULA, (b) verify Customer’s compliance with the License Entitlement, and (c) issue alerts and notices to Customer about incidents and product lifecycle changes that affect the Dejero Materials being used by Customer.  

 

5.2 Use of Data. Customer hereby grants Dejero a non-exclusive, “as-is”, perpetual, royalty free license to use Aggregated Data for the purposes of (i) evaluating and improving the performance of the Dejero Materials, and (ii) planning development roadmaps and product lifecycle strategies, (v) issuing alerts and notices to Customer about incidents and product lifecycle changes that affect the Dejero Materials being used by Customer. “Aggregated Data” means Data that is combined with other similar data of other customers. Aggregated Data shall not include (directly or by inference) any (1) information identifying the Customer or any identifiable customer or individual; (2) Customer Confidential Information; or (3) Customer Intellectual Property. The foregoing shall not be construed as a representation or warranty by the Customer that it has the rights, if any, to grant such license or to authorize such use. Dejero acknowledges and agrees that the Aggregated Data is provided by the Customer as-is, without warranties of any kind. Customer hereby disclaims all warranties, express and implied, including the implied warranties of merchantability, fitness for a particular purpose, title/non-infringement, and quality of information with regard to the Aggregated Data. Dejero shall comply with all applicable privacy, security, and other laws applicable to Dejero’s use of the Customer Data, including Aggregated Data. Dejero shall not otherwise access Customer or Authorized User accounts, including Data, except to respond to service or technical problems, at Customer's request, or as necessary for the operation of the billing or other services related to the Software. 

 

6. CONFIDENTIALITY 

 

6.1 Confidential Information. As used herein, the term “Confidential Information” shall mean, with respect to a party hereto, all information and documentation relating directly or indirectly to the business affairs of a party, whether in written, electronic or oral form, including but not limited to, information that (a) is marked “Confidential”, “Restricted,” or “Proprietary Information” or other similar marking, and (b) pertains to the internal business, financial and marketing information, affairs and practices of a party, including without limitation, the Data, (c) pertains to the contractual terms, fees and pricing relating to this Agreement, (d) pertains to the software, firmware, and all technology, training content, and know-how associated with the Dejero Materials, (e) is known by the parties to be considered confidential or proprietary, or (f) should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment in the circumstances. Confidential Information does not include information to the extent that such information: (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party hereunder, (ii) was previously known to the receiving party as evidenced by its written records, (iii) is rightly received by the receiving party from a third party who is not under an obligation of confidentiality, or (iv) is independently developed by the receiving party without reference to or use of the other party’s Confidential Information. 

 

6.2 Restrictions on Disclosure. Each party agrees that during the Term, any renewal term, and at all times thereafter, it will not disclose not disclosed, publish, release, transfer or otherwise make available in any form to, for the use or benefit of, any other person, the other party’s Confidential Information to any person or entity, except to its own personnel having a legitimate need to know for purposes of this Agreement, and who have entered into a written agreement with the receiving party containing confidentiality provisions as restrictive as those set forth in this Section 6. Each party will not use or permit its personnel to use any Confidential Information for purposes other than the performance of its duties under this Agreement. Each party will use at least the same degree of care in safeguarding the other party’s Confidential Information as it uses in safeguarding its own Confidential Information, but in no event will a party use less than reasonable diligence and care. To the extent the receiving party is required by subpoena or otherwise by law to disclose Confidential Information it received from the disclosing party, the receiving party shall provide the disclosing party with prompt written notice of such requirement and shall cooperate with the disclosing party in taking such steps as may be reasonably indicated to maintain the confidentiality of the information subject to disclosure. Upon termination of this Agreement, each party will cease using the other party’s Confidential Information for any purpose and, if requested in writing, will promptly return to the other party all documents or other materials in its possession that contain the other party’s Confidential Information in whatever format, whether written or electronic, including any and all copies or reproductions of the other party’s Confidential Information. Each party confirms and agrees that no representation or warranty, express or implied, is being made by a disclosing party as to the accuracy or completeness of any Confidential Information supplied, and a disclosing party shall not have any liability to the receiving party relating to the use of any Confidential Information or any inaccuracies, errors or omissions. 

 

7. REPRESENTATIONS, WARRANTIES AND INDEMNITIES 

 

7.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to deliver and perform this EULA and to carry out the transactions contemplated hereby, (b) the delivery and performance of its obligations under this EULA does not and will not materially conflict with any legal, contractual, or organizational requirement it may have. 

7.2 Functionality. Dejero warrants that the Software will perform substantially in accordance with the documentation and any specifications provided by Dejero (provided that they are operated in accordance with the Documentation on the designated operating system) for a period of 90 days, or such longer period as is provided in an Agreement. In the event of a breach of this warranty, Dejero will use reasonable commercial efforts to repair or replace the Software so that it performs in accordance with such warranty, as further provided below. 

 

7.3 Limited Warranty. If Customer notifies Dejero in writing of a breach of warranty under Section 7.2 during such warranty period, Dejero’s entire liability and Customer’s sole remedy shall be at Dejero’s option: (i) to correct, repair or replace the Software and/or Documentation within a reasonable time, or (ii) to terminate the EULA as to the affected Software, and the corresponding License Entitlement, and authorize a pro rata refund of the Fee following return of the relevant Software (and all copies thereof) accompanied by proof of purchase. Any replacement Software shall be warranted for the remainder of the original warranty period. The stated warranty shall not apply if (i) the Software has not been used in accordance with the terms and conditions of this EULA and the Documentation, (ii) the issue has been caused by failure of the Customer to apply Updates, Upgrades or any other action or instruction recommended by Dejero, (iii) the issue has been caused by the act or omission of, or by any materials supplied by, the Customer or any third party, or (iv) the issue results from any cause outside of Dejero’s reasonable control. Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS EULA AND TO THE GREATEST EXTENT ALLOWED BY LAW, DEJERO HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR USE OR PURPOSE, OR ANY OTHER MATTER. UNLESS OTHERWISE EXPRESSLY SET FORTH HEREIN, DEJERO DOES NOT WARRANT THAT THE SOFTWARE WILL PERFORM ERROR FREE OR WITHOUT INTERRUPTIONS, NOR THAT THE SOFTWARE WILL MEET ALL CUSTOMER REQUIREMENTS. CUSTOMER CONFIRMS THAT IT HAS NOT RELIED ON ANY REPRESENTATION, WARRANTY, CONDITION, COVENANT OR PROMISE MADE BY DEJERO WHICH HAS NOT BEEN EXPRESSLY STATED IN THIS EULA. CUSTOMER ACKNOWLEDGES THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, AND ANY SERVICES OR ASSISTANCE PROVIDED BY DEJERO IN CONNECTION THEREWITH, REMAINS WITH CUSTOMER. 

 

8. LIMITATION OF LIABILITY. CUSTOMER AGREES THAT DEJERO SHALL NOT BE LIABLE TO CUSTOMER UNDER THIS EULA FOR ANY DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST REVENUE, LOST DATA, REPLACEMENT GOODS, OR INTERRUPTION OF USE OF THE SOFTWARE, WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL DEJERO’S AGGREGATE LIABILITY TO CUSTOMER FOR ANY LOSSES, CLAIMS, BREACHES OR DAMAGES UNDER THIS EULA EXCEED THE AMOUNTS RECEIVED BY DEJERO FROM CUSTOMER PER INDIVIDUAL DEVICE UNDER AN AGREEMENT IN THE MOST RECENT TWELVE (12) MONTH PERIOD PRECEDING THE BRINGING OF THE CLAIM. THE LIMITATIONS ON DAMAGES IN THIS PARAGRAPH WILL APPLY UNDER ALL THEORIES OF LIABILITY OR CAUSES OF ACTION, INCLUDING CONTRACT, WARRANTY (INCLUDING WARRANTY REMEDIES UNDER THE WARRANTY PARAGRAPH ABOVE), TORT OR STRICT LIABILITY. THE FOREGOING LIMITATIONS DO NOT APPLY TO (I) A DISCLOSURE OF CONFIDENTIAL INFORMATION IN BREACH OF SECTION 6 (CONFIDENTIAL INFORMATION); (II) BREACH OF DEJERO’S PROPRIETARY RIGHTS UNDER SECTION 3; OR (III) OBLIGATIONS OF INDEMNITY HEREUNDER. CUSTOMER ACKNOWLEDGES THAT, DESPITE REASONABLE PRECAUTIONS TAKEN BY DEJERO TO ENSURE SECURITY OF THE SOFTWARE, THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO GAIN ACCESS TO THE SOFTWARE, AND DEJERO CANNOT AND DOES NOT GUARANTEE THE PRIVACY OR SECURITY OF ANY DATA TRANSFERRED OVER OR CONNECTED TO THE INTERNET. 

 

9. INDEMNIFICATION 

 

9.1 Indemnification by Customer. The Customer agrees to indemnify, defend and hold harmless Dejero, its affiliates, and their respective agents from and against any and all liabilities, claims, demands, actions, damages, loss, cost or expense, including reasonable legal fees (“Claims”) arising directly or indirectly out of any breach of the provisions of this EULA, the use of the Software by the Customer, or any violation by the Customer of any provincial, state, federal or other laws and regulations. 

 

9.2 Indemnification by Dejero. Subject to the exclusions and restrictions herein, Dejero will indemnify, defend and hold harmless Customer against any Claims made by any third party alleging that the Customer’s use or possession of the Software in accordance with the terms and conditions of this EULA infringes such third party’s copyright, trademark or patent rights, Notwithstanding the foregoing, Dejero will have no liability hereunder or any obligation to indemnify, defend or hold Customer harmless for any infringement action or claim that is based upon or arising from (i) Customer’s use of the Software or any component thereof beyond the scope of permitted use set forth herein, (ii) Customer’s unauthorized modification of the Software or any component thereof, (iii) Customer’s combination of the Software or any component thereof with other products, equipment, software, or data not supplied or other otherwise allowed by Dejero, (iv) Customer fails to notify Dejero in writing within forty-five (45) days of Customer being notified of any such Claim, (v) Customer does not, at the written request of Dejero, promptly cease to use or possess the Software that is the subject of the Claim, or (vi) Customer, without Dejero’s prior written consent, acknowledges the validity of the Claim or takes any action that might impair the ability of Dejero to contest the Claim. If Customers’ right to use the Software is enjoined, Dejero will, in its sole discretion, (i) procure for Customer the right to use the Software, (ii) replace the Software with a functionally equivalent product, (iii) modify the Software such that Customer has the right to use the Software. If Dejero fails to provide one of the foregoing remedies within forty-five (45) days of notice of the claim, Customer shall have the right to terminate this EULA with no further liability to Dejero, and Dejero shall refund to Customer (a) for up-front of lump-sum license fees, all sums paid by Customer for the infringing Software, prorated over five (5) years from the date of delivery of the Software, and (b) for fees paid periodically or on subscription basis, the portion of fees paid in advance by Customer, if any, for use of the Software during the remainder of the then-current term during which Customer is unable to use the Software. 

 

9.3 Mutual Indemnity Provisions. Each party’s indemnity obligations hereunder are subject to the following: 

(a) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; 

(b) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the claim; provided that settlements shall require prior approval by the indemnitee, and 

(c) the aggrieved party shall cooperate fully to the extent necessary and execute all documents necessary for the defense of such claim. 

 

10. GOVERNMENT RIGHTS AND APPLICABLE LAWS. 

 

10.1 Government Customers. If Customer is an agency or other part of the U.S. Government, the Software and the documentation are commercial computer software and commercial computer software documentation and their use, duplication and disclosure are subject to the terms of this EULA per FAR 12.212 or DFARS 227.7202-3, as amended, or equivalent provisions of agencies that are exempt from the FAR or that are U.S. state or local government agencies. 

 

10.2 Government Indemnity. If Customer is a federal, state, or other governmental instrumentality, organization, agency, institution, or subdivision, the limitations of liability and Customer’s indemnity obligations herein shall apply only in the manner and to the extent permitted by applicable law, and without waiver of Customer’s constitutional, statutory, or other immunities, if any. 

 

10.3 Export Control Laws. Customer is solely responsible for ensuring that the Dejero Materials are used, accessed, disclosed and/or transported only in accordance with all applicable export control laws. Customer certifies that it al all Authorized Users, or any party that owns or controls or is owned or controlled by Customer or Authorized Users, are not: (i) ordinarily resident in, located in, or organized under the laws of any country or region subject to economic or financial sanctions or trade embargoes imposed, administered, or enforced by the United States; (ii) the U.S. Department of the Treasury's List of Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders List; the U.S. Department of Commerce's Denied Persons List or Entity List; or any other sanctions or restricted persons lists maintained by the United States; or (iii) otherwise the target or subject of any Sanctions and Export Control Laws. Licensee further certifies that it will not, directly or indirectly, export, re-export, transfer, or otherwise make available (a) the Products, or (b) any data, information, software programs and/or materials resulting from the Products (or direct product thereof) to any country, region, or person described in this Clause or in violation of, or for purposes prohibited by, Sanctions and Export Control Laws, including for proliferation-related end uses. Customer agrees that Dejero shall have no obligation to provide any Updates, Upgrades or other Services related to the Software where Dejero believes the provision of such Updates, Upgrades or services could violate applicable sanctions and export control laws 

 

10.4 Compliance with Laws. Dejero warrants the provision of Software, Product, and Communication Services will comply with all applicable local, state, federal, provincial, and other governmental laws, regulations and ordinances in each jurisdiction applicable to the Software and Communication Services, including without limitation any data protection and privacy laws and those applicable to trans-border data flow. The Customer warrants that in entering into this EULA neither it nor any of its officers, employees, agents, representatives, contractors, intermediaries or any other person or entity acting on its behalf has taken or will take any action, directly or indirectly, that contravenes the United States Foreign Corrupt Practices Act 1977, or (iii) any other applicable anti-bribery laws or regulations anywhere in the world. Customer warrants that its use and possession of the Dejero Materials is and will continue to be in accordance with all other applicable laws and regulations. In particular but without limitation, Customer acknowledges and agrees that it may be necessary under applicable law for Customer to inform and/or obtain consent from individuals before it intercepts, accesses, monitors, logs, stores, transfers, exports, blocks access to, and/or deletes their communications. Customer is solely responsible for compliance with such laws. 

 

10.5 Consequences of Breach. ANY BREACH OR SUSPECTED BREACH OF THIS SECTION 10 BY CUSTOMER SHALL BE A MATERIAL BREACH INCAPABLE OF REMEDY AND ENTITLES DEJERO TO TERMINATE THIS EULA IMMEDIATELY WITH OR WITHOUT NOTICE TO CUSTOMER. In addition, Customer agrees (to the extent permitted by applicable law, and without waiver of Customer’s constitutional, statutory, or other immunities, if any) to indemnify and hold Dejero harmless from and against any claim, proceeding, loss, liability, cost or damage suffered or incurred by Dejero resulting from or related to Customer’s violation 

 

10.6 AVIATION DEJERO HAS NOT DESIGNED AND DOES NOT PROVIDE ANY PRODUCT, INCLUDING WITHOUT LIMITATION ANY HARDWARE, SOFTWARE, SUPPORT SERVICE OR OTHER SERVICE, FOR USE IN AIRCRAFT OF ANY KIND, IN CONNECTION WITH THE OPERATION OF ANY AIRCRAFT OR IN ANY SYSTEM THAT COMMUNICATES WITH ANY AIRCRAFT (TOGETHER, AN “AVIATION USE“). DEJERO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO ANY AVIATION USE. If Customer, or anyone to whom Customer has transferred, or provided access to, anything received from Dejero, engages in any Aviation Use (regardless of whether Customer or anyone else has modified anything received from Dejero), it shall be Customer’s exclusive responsibility to comply with all applicable regulations of the Federal Aviation Administration and all applicable regulations of foreign authorities (together, the “Aviation Regulations”), including without limitation all regulation concerning airworthiness, certification, registration, operational safety and maintenance. Customer shall comply strictly with all Aviation Regulations, and Customer shall ensure strict compliance with all Aviation Regulations by anyone to whom Customer transfers, or provides access to, anything received from Dejero. DEJERO SHALL HAVE NO OBLIGATION TO SUPPORT THE CUSTOMER OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO ANY MATTERS RELATED TO AVIATION REGULATIONS, INCLUDING WITHOUT LIMITATION ANY APPLICATIONS, TESTING, INVESTIGATION OR RESPONSES TO REQUESTS FOR INFORMATION. WITHOUT LIMITING ANY OTHER OBLIGATIONS OF CUSTOMER UNDER THIS AGREEMENT, CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS DEJERO AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO ANY AVIATION USE BY CUSTOMER, OR BY ANYONE TO WHOM CUSTOMER HAS TRANSFERRED, OR PROVIDED ACCESS TO, ANYTHING RECEIVED FROM DEJERO. In addition, if Customer engages in or authorizes or allows anyone to engage in any Aviation Use, Customer shall ensure that there is in force commercial general liability insurance including aviation and aviation products liability coverage with limits of not less than $10 Million Dollars per occurrence and $20 Million Dollars in the aggregate. Such insurance policies shall: (a) be issued by companies with a rating of A-/VII or better in the current Best’s Insurance Report; (b) name Dejero and its officers, directors, employees and agents as additional insureds; and (c) provide primary coverage without any right of contribution from any other insurance that Dejero may have. Such insurance policies shall waive any right of subrogation against Dejero and its officers, directors, employees and agents. At Dejero’s request, Customer will provide certificates of insurance evidencing the required coverage. 

 

11. GENERAL

 

11.1 Feedback. Customer has no obligation to provide Dejero with ideas, suggestions, concepts, or proposals relating to Dejero Materials (“Feedback”). However, if Customer provides Feedback to Dejero, Customer grants Dejero a non-exclusive, perpetual, irrevocable, worldwide, sub-licensable, transferable, royalty-free right and license to store, make, use, sell, market, have made, offer to sell, import, reproduce, publicly display, transmit, distribute, modify, publicly perform, and otherwise exploit such Feedback, in whole or in part, for any purpose, including combining the Feedback with other materials and/or products and making derivative works of or alterations to the Feedback in any manner or format whatsoever, without any reference, obligation, or remuneration to Customer. All Feedback shall be deemed non-confidential to Customer. Feedback shall not be construed as including any Customer Data or Customer Confidential Information. Dejero acknowledges and agrees that the Feedback is provided by Customer “as-is”, without warranties of any kind, and any Feedback used by Dejero will be used at Dejero’s sole risk and liability. 

 

11.2 Audits

(a) Self-Audit. To help manage Customer’s use of the Software and Customer’s compliance with this EULA, Customer agrees to perform a self-audit upon thirty (30) working days’ prior written notice from Dejero calculating the number of Authorized Users, Computers, Servers or other applicable units benefiting from the Software. If Customer’s self-audit reveals that Customer’s actual usage exceeds the License Entitlement, Customer shall procure the additional licenses required from Dejero or its preferred Partner. Such fees shall be at least as favorable at the rates originally paid hereunder by Customer. 

(b) Formal Audits. If Customer does not perform a self-audit upon request from Dejero, or if Dejero has reason to doubt the results of such self-audit, upon prior written notice to Customer, Customer shall permit Dejero or an independent certified accountant appointed by Dejero to access Customer’s premises upon five (5) business days’ notice and during normal business hours and inspect Customer’s books of account and records that, in Customer’s reasonable judgment have a bearing on or pertain to matters, rights, duties, or obligations covered by this EULA, to verify the manner and performance of Customer’s obligations under this EULA, including without limitation the payment of all applicable license fees. Any such audit shall minimize the disruption to Customer’s business operations. Dejero shall not be able to exercise this right more than once in each calendar year. If an audit reveals that Customer has underpaid fees to Dejero, Customer shall be invoiced for and shall pay to Dejero or the Partner (as applicable) within thirty (30) business days of the date of invoice an amount equal to the shortfall between the fees due and those paid by Customer. The rates to be paid by Customer for any excess use shall be at least as favorable as those originally paid hereunder. The cost of such audit shall be borne by Dejero, except that if the amount of the underpayment exceeds five percent (5%) of the fees due or the audit reveals a violation of any license restrictions pursuant to this EULA then, without prejudice to Dejero’s other rights and remedies, Customer shall also pay Dejero’s reasonable costs of conducting the audit. 

 

12. MISCELLANEOUS PROVISIONS 

 

12.1 Excusable Delays in Performance. Neither party shall be liable to the other for any delay in the performance of its obligations hereunder which is unavoidable with reasonable diligence, and occurs without its fault or negligence, which is caused by an event, act of God, or third party not within its reasonable control; provided, however, that the party so delayed in performance shall promptly notify the other party of the delay and its expected duration. 

 

12.2 Amendment. Dejero may amend the terms and conditions of this EULA and/or any documents and policies referenced herein by notice to Customer, upon Customer’s acceptance of any such amendment. Such amended terms and conditions shall be binding upon Customer upon Customer’s acceptance of the revised terms. For the avoidance of doubt, such amended terms and conditions shall supersede any prior version of the EULA that may have been embedded in the Software itself. 

 

12.3 Assignment. Customer may only assign or transfer its rights to the Software on a permanent basis provided that Customer transfer the EULA, together with the hardware, its documentation, and all other relevant materials, and the recipient agrees to the terms of this EULA. 

 

12.4 Disputes and Choice of Law. This EULA shall be construed in accordance with the laws of the Province of Ontario, Canada without giving effect to the choice or conflicts of law provisions thereof. The parties agree that any legal proceedings which arise under this EULA shall be brought in the courts of the Province of Ontario, Canada. 

OR

Governing Law and Jurisdiction. In the event the Partner from which Licensee has purchased the licenses is located in: (1) The United States of America, Canada, or Latin America, this EULA, the relationship between Customer and Dejero, and any dispute or claim arising out of or in connection with it, including without limitation non-contractual disputes or claims, shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts notwithstanding its conflicts of law principles. The parties waive any right to a jury trial in any litigation arising out of or in connection with this EULA, and the federal and state courts of the Commonwealth of Massachusetts, U.S.A. shall have exclusive jurisdiction to determine any dispute or claim that may arise out of, under, or in connection with this EULA; and (2) ANY OTHER COUNTRY, this EULA and any dispute or claim arising out of or in connection with it, including without limitation non-contractual disputes or claims, shall be governed by and construed in accordance with the laws of England and Wales, without regard to conflict of laws principles, and the courts of England and Wales shall have exclusive jurisdiction to determine any dispute or claim that may arise out of, under, or in connection with this EULA Provided that nothing shall limit the right of Dejero to initiate proceedings against Customer in any court of competent jurisdiction where deemed necessary by Dejero to (i) protect its Intellectual Property rights, (ii) protect its Confidential Information, and/or (iii) recover overdue payments. Nothing in this EULA shall limit any right of the Customer to take proceedings in or to benefit from consumer protection laws that apply in the Consumer’s country of residence. The parties agree that the UN Convention on Contracts for the International Sale of Goods (CISG, Vienna, 1980) shall not apply to this EULA or to any dispute or transaction arising out of this EULA. 

 

12.5 Miscellaneous Terms. The section headings contained in this EULA are inserted for reference purposes only and will not affect the meaning or interpretation of this EULA. The invalidity or unenforceability of any provision of this EULA will not affect the validity or enforceability of any other provision of this EULA. This EULA constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, discussions or representations, whether written or oral, and may not be amended without the agreement of both parties. The failure of either party to assert any of its rights under this EULA, including the right to terminate this EULA in the event of a breach or default by the other party, will not be deemed to constitute a waiver by that party of its right thereafter to enforce each and every provision of this EULA in accordance with their terms. The parties to this EULA are independent contractors and this EULA does not establish any relationship of partnership, joint venture, employment, franchise or agency between Dejero and Customer. Neither party has the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein. If there are any inconsistencies between the English language version of this EULA and any translated version, the English language version shall prevail. 

 

BY AGREEING TO THE TERMS OF THIS EULA, CUSTOMER HEREBY ACKNOWLEDGES AND CONFIRMS THAT IT HAS REVIEWED, UNDERSTANDS AND AGREES TO THE TERMS AND CONDITIONS OF THIS EULA, AND FURTHER AGREES TO ENSURE THAT EACH OF CUSTOMER’S EMPLOYEES, AUTHORIZED USERS AND OTHER END USERS DO THE SAME. 

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