End User License Agreement for Digifi Analyst Cloud for AWS
Digifi Analyst Cloud End User Software Agreement – revised 18 November 2015
Digifi – Digifi Cloud End User Software License Agreement
IMPORTANT READ BEFORE INSTALLING OR OPERATING THIS SOFTWARE.
BY ACCEPTING THIS AGREEMENT, INCLUDING BY INSTALLING, HAVING INSTALLED, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ACKNOWLEDGE YOUR AUTHORITY TO DO SO ON BEHALF OF YOUR COMPANY (IF APPLICABLE). IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT INSTALL OR USE THE PRODUCT. IF YOU ACCESSED THE PRODUCT ELECTRONICALLY CLICK DISAGREE/DECLINE.
This License applies to the software product (Software) you have licensed from Digifi as a service in a cloud or other similar environment. This License is a legal agreement between Digifi and the single entity (Licensee) that has acquired the Software from Digifi under these terms and conditions.
2. Grant of License
Digifi refers to Digifi, a Minnesota state proprietorship, and you or Licensee refers to the individual installing or using the Product if you are acting as an individual; otherwise you or Licensee means the business or other entity for which you are obtaining the Product. Subject to this Agreement and payment of all applicable license fees, Digifi grants you a nonexclusive nontransferable personal limited license to use the software for which valid control codes have been issued by Digifi identified in: (i) the written or electronic order document form or invoice provided or accepted by Digifi (each an Order); or (ii) the installation procedure (a Product) solely for your internal business purposes. Any Product update patch and/or new release (each an Update) replaces part or all of a Product or Update previously released and terminates the license to such previously licensed Product or Update to the extent replaced by the Update. Each Update is subject to the terms and conditions of the license agreement accompanying the Update or if no license agreement accompanies the Update to the terms and conditions of this Agreement.
2.1 License to Make Modifications
Digifi further grants to Licensee the right to modify and adapt Models and provided Examples for Licensee’s internal business purposes.
2.2 License Term
Each Software license is granted for the time period specified in the Order Form pursuant to which the Software is provided to Licensee. A subscription license continues for the term stated in the applicable Order Form or, if no such term is stated, then for one year, in either case subject to the provisions of this Agreement; provided that certain online marketplaces may not state any term and in those cases the term is month-to-month.
Licensee shall not, and shall not allow others to: (i) cause or permit the reverse engineering, disassembly, or de-compilation of any portion of any Products; (ii) remove any copyright notices or other proprietary notices or restrictions from any of the Products; (iii) knowingly disclose results of any benchmark or other performance tests to any third party without Digifi’s prior written consent; or (iv) distribute, sell, sublicense, rent, lease or use the Products (or any portion thereof) for time sharing, hosting, service provider or similar purposes.
4. No Transfers
For Software instances hosted in the public cloud or similar environment, Licensee agrees that it will not transfer the Software out of the licensed hosted environment. Licensee further agrees that it will not defeat, circumvent or disable any copy protection mechanism or mechanism in the Software used to limit license duration or access to nonlicensed functionality or capacity, and that any such attempt will be a material breach of this Agreement. Digifi reserves the right to audit Licensee’s use of the Software or authorize others to conduct such an audit on its behalf and to disable any application or functionality that has not been specifically licensed, in addition to any other rights and remedies available to Digifi.
Maintenance and support of the Software is not provided under this License. Support is subject to policies specified on the product page.
6. Payment and Taxes
License fees will be based upon the Licensee’s use of the Software as a service in a cloud or similar environment. Licensee shall pay the required license fees plus any applicable sales or use taxes or other charges to the cloud or similar environment provider in which the Software is hosted (Cloud Provider). The amounts payable to Cloud Provider is exclusive of any sales or use or other taxes or governmental charges. Licensee shall be responsible for payment of all such taxes or charges except for any taxes based solely on Digifi’s net income. If Licensee is required to pay any taxes based on this license, Licensee shall pay such taxes with no reduction or offset in the amounts payable to the cloud or similar environment in which the Software is hosted.
7. Cancellation and Refund Policy
Licensee may cancel this license at any time. Licensee shall be responsible for payment of all license fees and any applicable sales, use or other taxes as of the date of cancellation. No refunds shall be provided for cancellation or termination of the license.
The license granted in Section 2 is effective until cancelled or terminated and will automatically terminate if Licensee fails to comply with any of the terms and conditions set forth herein. Upon termination, Licensee will destroy the Software and documentation and all copies or portions thereof.
9. Limited Warranties
The Software is provided AS IS. In no event does Digifi warrant that the Software is error free, that it will operate with any software or hardware other than that provided by Digifi or specified in the documentation, or that the Software will satisfy Licensee’s own specific requirements.
9.1 Warranty Exclusions
Digifi is not obligated to correct errors caused by unauthorized modification to Software, by using Software other than as described in the Documentation, by nonDigifi software, or by combining Software with any hardware or software not authorized by Digifi in writing. Licensee’s sole and exclusive remedy and Digifi’s entire liability for Software nonconformity in breach of the foregoing warranty will be: (i) correction of Software errors causing the nonconformity, or (ii) if Digifi determines that it is unable to make the Software operate as warranted using commercially reasonable efforts, Digifi will refund the fees paid for the nonconforming Software and terminate the license to the Software.
9.2 NO IMPLIED WARRANTIES
THE WARRANTIES ABOVE ARE THE EXCLUSIVE WARRANTIES REGARDING THE PRODUCTS AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES OF DIGIFI, WHETHER EXPRESS OR IMPLIED, INCLUDING NONINFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
DIGIFI DOES NOT WARRANT THAT ANY PRODUCT TECHNICAL SUPPORT, OR SERVICE WILL MEET LICENSEE’S REQUIREMENTS, THAT THE PRODUCTS WILL OPERATE IN THE COMBINATIONS WHICH LICENSEE MAY SELECT FOR USE OR WITH ANY NONDIGIFI PROGRAMS USED BY LICENSEE, THAT THE OPERATION OF ANY PRODUCT WILL BE UNINTERRUPTED OR ERRORFREE, OR THAT ALL ERRORS IN PRODUCTS, HARDWARE OR DOCUMENTATION WILL BE CORRECTED.
10. LIMITATION OF WARRANTIES AND LIABILITIES
10.1 NO INDIRECT DAMAGES
EXCEPT LICENSEE’S BREACH OF THE LICENSE RESTRICTIONS IN SECTION 2, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF DIGIFI AND/OR ITS LICENSORS HAS/HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 LIMIT ON DIRECT DAMAGES
EXCEPT LICENSEE’S BREACH OF THE LICENSE RESTRICTIONS IN SECTION 2, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY LICENSEE TO DIGIFI DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM.
10.3 Allocation of Risk
The provisions of this Agreement fairly allocate the risks between Digifi, on the one hand, and Licensee on the other. Licensee acknowledges and agrees that the pricing reflects this allocation of risk and the limitation of liability specified herein, and that Digifi would not enter into this Agreement without such allocation and limitation.
11. U.S. Government Rights
The Software and Documentation qualify as commercial items as that term is defined at Federal Acquisition Regulation (FAR) (48 C.F.R.) 2.101, consisting of commercial computer software and commercial computer software documentation as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.72021 through 227.72024, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this End User License Agreement may be incorporated, Licensee may provide to Government end user or, if this Agreement is direct, Government end user will acquire, the Software and Documentation with only those rights set forth in this End User License Agreement. Use of either the Software or Documentation or both constitutes agreement by the Government that the Software and Documentation are commercial computer software and commercial computer software documentation and constitutes acceptance of the rights and restrictions herein.
Each party represents and warrants that the person executing this Agreement on behalf of such party, or clicking I agree in the case of a Product trial or online marketplace subscription, is authorized to enter into this Agreement on behalf of such party.
12.2 Governing Law and Venue
This License will be governed by the laws of the State of Minnesota, USA without regard to its choice of law rules. The provisions of the U.N. Convention for the International Sale of Goods and the Uniform Computer Information Transactions Act, in whatever form adopted, will not apply and the parties specifically opt out of the application of such laws. In the event of any dispute arising out of or relating to this Agreement, the parties shall seek to settle the dispute via direct discussions. If a dispute cannot be settled through direct discussions, the parties agree to first endeavor to settle the dispute via voluntary nonbinding mediation, before resorting to arbitration. A mediator will be selected by voluntary agreement of both parties, or in the event both parties cannot agree on a mediator, a mediator will be selected in accordance with the rules of JAMS. The mediation shall be held in St. Paul, Minnesota. Each party shall bear its own costs and expenses and an equal share of the administrative and other fees associated with the mediation. Any dispute that remains unresolved following mediation shall be settled by arbitration administered by the JAMS in accordance with its Comprehensive Arbitration Rules. The place of arbitration shall be St. Paul, Minnesota. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrator(s), all of its costs and fees. “Costs and fees” mean all reasonable preaward expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, outofpocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees. In rendering the award, the arbitrator(s) shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of Minnesota. The foregoing alternative dispute resolution provisions will not apply to claims or actions related to the infringement, misappropriation or violation of Digifi’s intellectual property rights or those of its third party licensors and such actions may be brought in any court of competent jurisdiction. Any provisions found to be unenforceable will not affect the enforceability of the other provisions contained herein, but will instead be replaced with a provision as similar in meaning to the original as possible. This License constitutes the entire agreement between the parties with regard to its subject matter. No modification will be binding unless in writing and signed by the parties.
12.3 Force Majeure
Neither party shall be liable to the other for its failure to perform its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to unforeseen circumstances beyond its reasonable control.
All notices under this Agreement shall be sent in writing and shall be delivered by (i) personal hand delivery, (ii) first class mail with return receipt, (iii) overnight mail by recognized commercial carrier with tracking receipt, or (iv) confirmed email or fax and copied by one of the methods described in (i), (ii) or (iii) above, to the address first listed above or to such other address that has been properly noticed.
12.5 No Agency Relationship
Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between Licensee and Digifi.
12.6 Open Source Notice
Digifi may distribute third party open source software programs with the Software either incorporated into the Software or provided separately. These third party programs are subject to their own additional license terms, none of which require notice, attribution, payment, disclosure or license back of any Licensee information. A list of open source software programs delivered with the Software can be found in the README.txt file in the Documentation.
Licensee agrees that Digifi may use Licensees company name (if applicable) in Digifi’s Licensee list and may publish information identifying Licensee as a user of Digifi products in advertisements, news releases and releases to professional and trade publications. Licensee will have the right to approve each such release prior to its placement, but agrees not to unreasonably withhold its approval.