This End User License Agreement (“EULA”) governs your and any of your Users’ use of the Software. Your use of the Software constitutes your acceptance of this EULA, and you are responsible for your Users’ use of the Software. Your use of the Software may otherwise be specified in an order document detailing the fees and support or other terms associated with the Software (an “Order”). Collectively the Order, the Ativion Services Agreement, or another set of terms and conditions as agreed, and this Ativion End User License Agreement govern your use of the Software (together, the “Agreement”). All capitalized terms used but not defined in this EULA shall have the meanings set forth in the Ativion Services Agreement. This EULA is between the Ativion affiliate entity identified on the applicable Order (if no entity is identified then Impero Solutions Ltd.t/a Ativion, or Impero Solutions Inc. dba Ativion if you are based in the United States of America) (“Ativion”), and the customer identified on the Order or the individuals under such customer’s control (“you” or “User”) and governs your use, access, and distribution of the Software provided to you by Ativion, including any documentation or related written materials associated with the same (collectively the “Software”) as well as any other services or activities described in the Order.
BY CLICKING TO “ACCEPT” OR “AGREE” TO THIS EULA WHEN THIS OPTION IS MADE AVAILABLE TO YOU OR BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, WHICHEVER IS FIRST TO OCCUR, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS EULA AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE OR DOWNLOAD THE SOFTWARE AND DELETE IT FROM YOUR DEVICE.
Subject to the terms of this EULA, an Order, and any other governing documents (including but not limited to the Ativion Services Agreement) and your payment of all fees, Ativion hereby grants you, during the term specified in the applicable Order, a limited, non-exclusive right of access to use the Software, in executable form only, for your internal operations and benefit of your Users (the “Subscription”). Upon termination of this right of access, you shall promptly remove and uninstall all instances of the Software. Subject to this EULA, and provided you are the customer identified in the applicable Order, you may sublicense any end-user or per-device software or agents provided by Ativion (“Device Agents”) to your Users to enable them to access the Software. You may upload data directly or allow for Ativion to process on your behalf (“Customer Data”), and the processing of Customer Data is governed by our Data Processing Addendum, and Ativion Privacy Policy, available at www.www.ativion.com/legal, updated from time to time.
You acknowledge and agree that the Software is provided under subscription for right of access and is not sold to you. You do not acquire any ownership interest in the Software under this EULA, or any other rights thereto other than to use the Software in accordance with the subscription-based right of access granted, and subject to all terms, conditions, and restrictions, under this Agreement. Ativion and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this EULA.
You acknowledge that when you download, install, or use the Software, Ativion may use automatic means (including, for example, cookies and web beacons) to collect information about your device and about your use of the Software (including, without limitation, to check for software updates, to validate your PIN, to send automated error diagnostic reports, and to send anonymous software usage information). You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Software or certain of its features or functionality, and the Software may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Software is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through this Software, you consent to all actions taken by us with respect to your information in compliance with the Ativion Privacy Policy.
You may not resell the Software unless your organisation has an executed “Reseller Agreement” in place which specifically allows the resale of Ativion Software. If you are permitted to resell the Software, you must ensure that anyone to whom you provide the Software also agrees to this EULA. If you have purchased the Software other than from Ativion, your fees, described in Section 8, shall be due to the reseller of the Software in accordance with the terms of your agreement with such third party.
Ativion will provide general assistance, troubleshooting, and related support services to you during the term of this EULA, subject to any additional specifications in your Order unless otherwise stated (“Support”). Support is available via channels notified to you during the timeframe specified in your Order. Ativion may from time to time release patches, updates, bug fixes, and other enhancements to the Software (“Releases”). Releases may also modify or delete in their entirety certain features and functionality. This EULA shall govern all releases and they shall be considered Software for purposes of the EULA. You agree that Ativion has no obligation to provide any Releases or to continue to provide or enable any particular features or functionality. Ativion will provide Support only to Users named in the Order. To receive Support, you must be on the most recent Release or one prior release of the Software and have an active Subscription in place. Ativion may require you to update to the most recent release of the Software. You agree that you will promptly update and install any versions which Ativion identifies as important to the security of the Software, designated as a “security release”. If your Order specifies a separate fee for Support, then you are entitled to Support only during the term described in the Order.
Ativion undertakes no responsibility for the security of any User Device. Customer must use reasonable security precautions in connection with its use of the Software. Ativion will not use or disclose Customer Data except as materially required to perform the Services or as required by law. Ativion makes no representation or warranty whatsoever regarding open source software or with regard to any third-party products or Services which we may recommend for your consideration.
THE SOFTWARE IS PROVIDED TO USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ATIVION, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, 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, ATIVION PROVIDES NO WARRANTY OR UNDERTAKING AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, 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.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
The Customer shall be responsible for the payment of all fees in relation to sales, use, and similar taxes relating to your use of the Software. Your use of the Software may be terminated if the Customer does not comply with their payment obligations contained in the Order.
This EULA shall continue in force until the termination of the Order. This EULA cannot be terminated while the Order is still in place. Ativion may terminate this EULA for cause on written notice if the other party materially breaches the EULA (including a failure by the Customer to pay fees when due) and does not remedy the breach within 30 days of the non-breaching party’s written notice describing the breach.
We process personal data on behalf of the Customer, in accordance with our Ativion Privacy Policy, and the Ativion Services Agreement and DPA. You remain the exclusive owner of your Customer Data. If you require any further information on this, please contact the purchasing representative of your organisation or refer to our policies at https://www.www.ativion.com/legal/.
Each party agrees not to use the other’s Confidential Information except in connection with the performance or use of or provision of the Software, the exercise of its legal rights under this Agreement, or as required by law, and will use reasonable care to protect Confidential Information from unauthorized disclosure. “Confidential Information” means non-public information disclosed by one party to the other in any form that: (i) is designated as “Confidential”; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either party’s products, pricing, customers, marketing and promotions, know- how, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure. Each party agrees not to disclose the other’s Confidential Information to any third party except: (a) to its Representatives, provided that such Representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement; (b) as required by law; or (c) in response to a subpoena or court order or other compulsory legal process, provided that the party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information unless the law forbids such notice.
Customer agrees that Ativion may publicly disclose that it is providing Services to Customer and may use Customer’s name and logo to identify Customer in promotional materials, including press releases. Customer may not issue any press release or publicity regarding the Agreement or use the Ativion name or logo or other identifying indicia without Ativion’s prior written consent.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL ATIVION OR ITS AFFILIATES OR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL LOSS OR DAMAGES OF ANY KIND. IN NO EVENT SHALL ATIVION BE LIABLE TO ANY PUNITIVE DAMAGES OR FOR ANY LOSS OF PROFITS, DATA, REVENUE, BUSINESS OPPORTUNITIES, CUSTOMERS, CONTRACTS, GOODWILL, OR REPUTATION. IN NO EVENT WILL ATIVION’S ACTUAL LIABILITY EXCEED THE AMOUNT OF FEES RECEIVED AS PART OF THE ORDER. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR ATIVION WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
YOU HEREBY INDEMNIFY AND HOLD HARMLESS ATIVION AND ITS REPRESENTATIVES FROM AND AGAINST ANY AND ALL ALLEGATIONS, CLAIMS, DEMANDS, COSTS, EXPENSES (INCLUDING ATTORNEYS’ FEES AND DISBURSEMENTS), LOSSES, LIABILITIES, PENALTIES, FINES, SETTLEMENTS OR DAMAGES ARISING OUT OF: (I) YOUR ACTUAL OR ALLEGED BREACH OF YOUR OBLIGATIONS CONTAINED WITHIN THIS EULA, (II) YOUR BREACH OF YOUR AGREEMENTS WITH, OR LEGAL OBLIGATIONS TO, ANY OF YOUR USERS OR ANY PARTY TO WHOM YOU RESELL OR OTHERWISE PROVIDE THE SOFTWARE, OR (III) YOUR BREACH OF ANY APPLICABLE LAW. YOUR OBLIGATIONS UNDER THIS SECTION INCLUDE CLAIMS ARISING OUT OF THE ACTS OR OMISSIONS OF YOUR USERS, REPRESENTATIVES AND AFFILIATES, EVEN YOU DID NOT AUTHORIZE SUCH ACTS OR OMISSIONS. ATIVION WILL CHOOSE LEGAL COUNSEL TO DEFEND THE CLAIM, PROVIDED THAT THE CHOICE IS REASONABLE AND IS COMMUNICATED TO YOU. YOU MUST COMPLY WITH ATIVION’S REASONABLE REQUESTS FOR ASSISTANCE AND COOPERATION IN THE DEFENSE OF THE CLAIM. ATIVION MAY NOT SETTLE THE CLAIM WITHOUT YOUR CONSENT, WHICH MAY NOT BE UNREASONABLY WITHHELD, DELAYED OR CONDITIONED. YOU MUST PAY COSTS AND EXPENSES DUE UNDER THIS SECTION AS ATIVION INCURS THEM.