Evertz End User License Agreement
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IMPORTANT: By (a) clicking the "I agree" or "I accept" button below, (b) downloading, installing, copying, or otherwise using the Software, (c) breaking or opening any seal on the packaging of the Software, or (d) signing any signature page or cover page accompanying these terms and conditions, LICENSEE AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. If Licensee does not so agree, Licensee is not granted any rights with respect to the Software, and Licensee must not download, install, copy, or otherwise use the Software and must promptly delete any partial or full copy of the Software and/or, if Licensee obtained the Software on a tangible medium, return the Software. Any such return must be made to the entity from which the Software was obtained (whether Licensor or a distributor or retailer) and the original receipt or invoice for the Software must be presented. Upon such return, Licensee will receive a refund of the amount prepaid for the Software.
Unless otherwise agreed in writing, the use of Evertz software is governed by Evertz Software Terms and Conditions. Details on Evertz Software Terms and Conditions can be found at https://evertz.com/support/software-terms-conditions/.
THIS AGREEMENT APPLIES NOTWITHSTANDING ANY TERMS AND CONDITIONS OF ANY PURCHASE ORDER OR OTHER DOCUMENT OR RECORD PROVIDED BY LICENSEE, whether in written, electronic, or any other form ("Order"). If there is any such Order, LICENSOR HEREBY EXPRESSLY MAKES ITS ACCEPTANCE OF SUCH ORDER CONDITIONAL ON LICENSEE'S ASSENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, including, without limitation, any terms and conditions herein that are different from or not contained in the Order. Licensor expressly rejects any terms and conditions contained in the Order that are different from or in addition to those contained in this Agreement. Licensee acknowledges that LICENSOR IS UNWILLING TO ENTER INTO AN AGREEMENT RELATING TO THE SOFTWARE THAT CONTAINS ANY SUCH DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS AND ASSENTS TO LICENSOR'S REJECTION OF ANY SUCH DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS. No conduct by Licensor, including, without limitation, transfer, delivery, shipment, or installation of any Software, shall constitute, or be construed to constitute, Licensor's assent to or recognition of a contract containing terms and conditions that are different from or are not contained in this Agreement.
DEFINITIONS
In addition to any terms defined elsewhere in this Agreement, the following terms will have the meanings given to them below in this Section 1 (whether used in the singular or plural):
- "Agreement" means this End User License Agreement together with any signature page, cover page, exhibits, and attachments hereto and the terms and conditions thereof.
- "Affiliate" means any entity which, at the time or after the entry into force of this Agreement, directly or indirectly controls, is controlled by, or is under common control with the party. An entity is considered to control another entity if it owns, directly or indirectly, more than fifty percent (50%) of the total voting securities or other such similar voting rights.
- "Approved Source" means Licensor or Licensor's Partner.
- "Derivative Work" means a revision, enhancement, modification, translation, abridgment, condensation, or expansion of Software or any other form in which such Software may be recast, transferred or adapted, which, is used without the consent of Licensor, would constitute a copyright infringement.
- "Documentation" means the written documentation published by Licensor regarding the Software such as manuals, software specifications, technical or training document(s), or configuration information accompanying Product delivered to the Licensee or expressly agreed to by Licensor in a statement of work or functional specification.
- "End User" means each individual or entity who may be authorized by Licensee to access and use the Software pursuant to the terms of this Agreement.
- "Licensee" means the party to which the Software is provided by Licensor (including, in the case of an individual, his or her employer or other principal). For the avoidance of doubt, Software may be provided through Licensor authorized channel partners in which case the client who purchased from such partners shall be deemed as Licensee.
- "Licensor's Partner" means a Licensor authorized reseller, distributor or systems integrator authorized by Licensor to sell Licensor Technology.
- "Services" means those professional services provided to Licensee by Licensor described in an applicable statement of work and/or contract and/or functional specification.
- "Support" means associated relevant support of Licensor Software that is supported by an Annual Software License ("Annual License"). The Annual License is included with the purchase of all Supplier Software for one (1) year from date of shipment ("Initial Term of the Annual License"). After the Initial Term of the Annual License must be purchased annually in order to continue receiving maintenance of the Software.
- "Software" means software provided pursuant to this Agreement where the software (i) is Licensor Software installed on Hardware (ii) is Licensor software provided to Licensee independently of the Hardware. Nothing in this Agreement shall constitute or be deemed to constitute an obligation of Licensor to provide any Software, Documentation, or other software, updates, options, bug fixes, error corrections, modifications, enhancements, and other Software releases. The term "purchase" when used with respect to Software means to acquire a license to use Software (not to acquire title to the Software).
- "Updates" means any bug fixes and minor enhancements without substantial added functionality or features and which is generally denoted in the version number by a change to the numbers to the right of the first decimal point (e.g., a change from 2.0 to 2.1 or from 2.1 to 2.1.2) to the Software as made available by Licensor. Available with active Annual License.
- "Upgrade" means a release of Software which consists of a new version with substantial enhancements, added functionality or new features and which is generally denoted in the version number by a change to the number to the left of the first decimal point (e.g., a change from 2.x to 3.x) available at an additional cost.
LICENSE GRANT
Any license granted is contingent upon acceptance by Evertz of an order and applicable payment for the license from Licensee for the software according to the terms of payment. Evertz grants Licensee a non-exclusive, non-assignable, personal, non-transferable, non-sublicensable, revocable, limited right to use the Software in object code only for your internal business purposes. The software is the property of Evertz and no title to, or ownership of the Software is transferred to Licensee. Licensee may not sublicense, distribute, lease, rent, lend, resell, or otherwise transfer, the software to un-affiliated parties. Licensee may not copy, reverse engineer, decompile, make derivative works of, modify, or disassemble the Software. At Evertz' discretion, Updates may be made available to the Licensee. Licensee is responsible for ensuring compliance with the recommended system requirements for the intended operation of the Software.
USE BY THIRD PARTIES
Licensee may permit an End User to exercise the rights granted in Section 2 on Licensee's behalf, provided that Licensee is responsible for (a) ensuring that such End User complies with this EULA and (b) any breach of this EULA by such End User.
RESTRICTIONS OF USE
Licensee shall use the Software strictly in accordance with the terms of this Agreement and shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the course code of, or decrypt the Software; (b) make any modification, adaptation, improvement, enhancement, translation or Derivative Work from the Software; (c) violate any applicable laws, rules, or regulations in connection with Licensee's access or use of the Software; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Licensor; (e) install, use or permit the Software to exist on more equipment than is licensed for; (f) distribute any part of the Software or Documentation; (g) make the Software available over a network or other environment permitting access to more users or equipment than is licensed for; (h) use the Software for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, products or software offered by Licensor,(i) use the Software to send automated queries to any website or to send any unsolicited commercial emails.
DECOMPILATION
In the event that Licensee has to ensure interoperability of the Software with its computer environment and only to the extent required by mandatory and non-waivable provisions of applicable law, Licensee will notify Licensor in writing with the request to: reproduce software code within the Software and translating its form, provided that (i) such acts are performed by Licensee and are indispensable to obtain the information necessary to achieve interoperability of an independently created computer program with other programs, (ii) the information necessary to achieve interoperability has not previously been readily available to Licensee, (iii) Licensee has requested in advance in writing that Licensor make such information available to Licensee and Licensor has not done so within reasonable time, and (iv) these acts are confined to the parts of the software code within the Software which are necessary to achieve interoperability. In no event may Licensee (a) use any information obtained pursuant to this Section 2.5 for any purpose other than to achieve the interoperability of the independently created computer program, (b) provide or disclose such information to others, except to the extent necessary for the interoperability of the independently created computer program, or (c) use such information in the development, production or marketing of a computer program substantially similar to the Software. No license or right is granted hereunder, whether express, by implication, or otherwise, with respect to any information obtained pursuant to this Section 2.5 or its use.
AUTHORIZED ACTIVATION
If the Software was provided subject to an authorized activation, authorization procedure, or requires an authorized validation key, Licensee may not use the Software and shall have no rights to use the Software under this Agreement, unless such the Software is properly activated or authorized, or such validation key has been properly obtained and applied, in accordance with the applicable procedures. Licensee agrees and acknowledges that such procedures may require certain action by Licensee from time to time in order to maintain the state of activation or authorization of the Software.
SUBSCRIPTION LICENSE
In addition to or in substitution of the foregoing, following terms and conditions shall apply to the Software license indicated as Subscription License (defined below).
Limited Scope of License
Any features for which Licensee has not paid the applicable Fee or any other unenabled features of the Software are unlicensed and Licensee agrees not to use or access such features. Licensor may unenable the Software or any part/features thereof during the term of Subscription License due to Licensor's decision to discontinue the service or other causes.
Licensing and Use Rules and Restrictions for the Software
For Software licenses specifying a term or time-based fee payment (a "Subscription License"), unless otherwise provided in a separate Subscription Agreement between Licensor and Licensee, in addition to the restrictions set forth in this Agreement, the following restrictions apply: (i) such license will automatically expire at the end of the term; (ii) Licensee agrees that at the end of the specified term Licensee shall destroy the Software (if received on a tangible medium) together with all copies, and merged or combined portions thereof in any form and certify such destruction in writing upon the request of Licensor, and(iii) notwithstanding other provisions in this Agreement, Licensee shall not be entitled to updates or upgrades, or the use thereof, under an active applicable Support Agreement if the license term has expired. Licensor reserves the right to terminate the licenses immediately for failure to timely pay the applicable License Fee.
Thereafter, the Subscription shall automatically renew for additional period (s)of equal duration ("Renewal Term") unless either party provides prescribed notice of non-renewal to the other party prior to the expiration of the then-current term for the Software. Unless otherwise specified on the applicable Proposal/Contract, the License Fee for any Renewal Term shall be Licensor's then-current Subscription rates. Upon automatic renewal, Licensor may invoice Licensee prior to the first day of automatic renewal of the Renewal Term. Licensor reserves the right to terminate the Subscription immediately for failure to timely pay the applicable License Fee. The License Fee shall be as provided in the applicable Proposal/Contract.
Multiple Licenses
Pursuant to relevant Proposal/Contract and the complete payment of Fees thereof, multiple license may be granted to install and use the Software in as many PCs as number of license indicated in the purchase order during the term of Subscription License.
Updates
The Software shall be updated and all updates shall be implemented and deployed at Licensor's discretion during the term of Subscription License.
SUPPORT
If Licensee purchased maintenance and support services ("Support") from Licensor as evidenced by applicable purchase order, and subject to Licensee's payment of all applicable Fees to Licensor, Licensor shall provide Support to Licensee in accordance with Licensor's then-current support policy and Licensor's then current Service Level Agreement (and subject to all other terms and conditions of this Agreement) or as otherwise agreed by Licensor and Licensee in writing. If the Licensee does not purchase Support, the Licensor does not provide Support or any other type of support services.
SOFTWARE LICENSE TERMS; RENEWALS
Provided that Licensor receives timely payment of the Software license and Annual License, Evertz may make available, as applicable, to Licensee Support for the Software. If Licensor does not receive timely payment of the Software license(s), Annual License, Licensor may suspend Support in whole or in part. If Licensee requests Licensor to reinstate Support after a lapse due to non-renewal or non-payment, Licensor shall resume providing Support to Licensee upon Licensee's payment of such amounts as may be specified by Licensor to reflect the fees that would otherwise have been due during the interim period and a payment fee for the lapse or non-payment in addition to the then-current list price of the Annual License.
EXCLUSIONS
Licensor shall not be required to provide Support, including without limitation the correction of any error, (a), (b) if Licensee has not paid the applicable Software license and Annual License, (c) if Licensee is in breach of this Agreement, (d) with respect to any unauthorized or unpermitted use of the Software, or any use not in accordance with the Documentation or with the terms of this Agreement, (e) with respect to any use of the Software on any platform (hardware and/or software) not specified in the applicable Documentation or for which the Software has not been licensed, (f) with respect to any error, nonconformance or damage caused by any abuse, misuse, neglect (other than by Licensor) or acts of God, war or civil unrest, governmental action, or third-party act, error or omission. (g) with regard to any alteration, modification or enhancement of the Software, or the integration or incorporation with or the attachment of any feature, program or device to the Software, or any part thereof by any party other than Licensor, (h) due to use of defective media (other than media provided by Licensor) or defective duplication (not created or performed by Licensor) of the Software, (i) where Licensee has not incorporated any Update, releases or error corrections as recommended or mandated by Licensor, (j) problems caused by failure of Licensee to follow instructions or corrective procedures provided by Licensor, such as the installation of any updates, or(k) hardware malfunction.
FEES AND PAYMENT
Access of the Software license and Support shall be governed by this Agreement.
The fee in respect to the Software license, and the specified term or End User authorizations and limitations, shall be set out in as quoted by Licensor and, once agreed by Licensor and Licensee, shall be due and paid by the Licensee for the relevant term as invoiced by Licensor. Licensee shall pay the fees as per the terms indicated on the Licensor invoice. All fees paid hereunder are non-refundable. Past due invoices bear interest from the payable date at the lesser of (a) one and one- half percent (1.5%) per month, or (b) the maximum rate permitted by law.
The fees and all other charges hereunder do not include, and Licensee shall be solely liable (and reimburse and indemnify Licensor) for, any taxes not based on Licensor's net income (including, without limitation, any sales, use, value-added, withholding, property, excise, import or export tax), duties or tariffs imposed or levied by any governmental entity on the Software or in connection with this Agreement or the performance hereof. All fees shall be increased as may be necessary so that after Licensee makes all deductions or withholdings that may be required by applicable law, Licensor receives an amount equal to the amount payable to Licensor hereunder without any such deductions or withholdings.
ACKNOWLEDGMENT
Licensee acknowledges that: a) software in general is not error-free and such errors will not constitute a breach of this Agreement; b) the Software has been designed to operate only in conjunction with certain software or other products as contemplated in the Documentation or functional specification or as may be notified by Licensor to Licensee in writing from time to time; c) Licensee accepts responsibility for the interoperability of the Software with equipment and software not provided by Licensor or not contemplated in the Documentation or functional specification; d) Licensee accepts responsibility for the selection of the Software to achieve its requirements or intended results; e) no oral or written information or advice provided by Licensor, its employees, agents or other representatives will create a warranty or expand the limited Licensor warranty provided herein and/or in the Documentation; f) Licensee is solely responsible for creating, on a regular basis, and maintaining adequate backup copies of all of its data which is processed by, or relevant to, the Software.
CONFIDENTIALITY
Each Party acknowledges that during the term of this Agreement, each Party and its Representatives (as defined herein) may be exposed to information of a confidential or proprietary nature which is either marked as confidential or provided under circumstances reasonably indicating that it is ("Confidential Information"). Each Party agrees to (i) hold such Confidential Information in confidence using the same degree of care normally used to protect its own proprietary and/or confidential information within its own organization, but not less than a reasonable degree of care; (ii) use such Confidential Information only for the purpose of performing under this Agreement and for no other purposes; (iii) restrict disclosure of such Confidential Information solely to its Representatives with a need to know in connection with the performance of this Agreement (and provided that such persons are advised of the obligations assumed herein and are bound by obligations of confidentiality and non-use to protect the disclosing Party's rights and interest hereunder), and (iv) shall not disclose such Confidential Information to any third party that is not a Representative of receiving Party, without prior written approval of the disclosing Party. "Representative(s)" of a Party means that Party's (and such Party's Affiliates') directors, officers, partners, employees, contractors, consultants, agents, advisors, attorneys, potential financing sources, and potential joint ventures. The foregoing restrictions on the use and/or disclosure of Confidential Information shall not apply to any portion of the Confidential Information: (i) that is independently developed by the receiving Party without any use of and/or access to the disclosing Party's Confidential Information, or received free of restriction from a third party not known by the receiving Party to be in breach of any confidentiality obligation owed to the disclosing Party with respect to such Confidential Information, (ii) that is publicly known at the time of disclosure or which thereafter becomes publicly known through no wrongful act of the receiving Party as of the date such information becomes publicly known, (iii) that at the time of disclosure to the receiving Party was known to such Party free of restriction; or (iv) that the disclosing Party agrees in writing is free of such restrictions. Notwithstanding anything to the contrary in this Agreement, the restrictions on the use or disclosure of Confidential Information shall expire three (3) years after termination or expiration of this Agreement. Notwithstanding the forgoing, the receiving Party may disclose Confidential Information as required by law. If the receiving party is required by law or by interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process to disclose any Confidential Information, to the extent permitted by applicable law such Party will provide the disclosing Party with prompt, prior written notice of such request or requirement so that the disclosing Party may seek an appropriate protective order and/or the receiving Party's compliance with the provisions of this Agreement. In no event shall this Agreement be construed to prohibit, and Licensor shall be entitled to use or develop for any purpose, including without limitation, use in development, manufacture, promotion, sale and maintenance of its own or its customers' products and services, any information which may be retained as general, non-party specific, know-how, ideas, processes or expertise in the unaided memories of its personnel.
INTELLECTUAL PROPERTY
Evertz retains all Intellectual Property Rights in the Software. The Software and any related documentation are and will remain Evertz' exclusive property. All rights not expressly granted to Licensee are reserved. All title and copyrights in and to the Software (including by not limited to any images, photographs, animations, video, music, text, and "applets" incorporated into the Software), the accompanying printed materials, and any copies of the Software are owned by Evertz or its suppliers. Copyright laws and international treaty provisions protect the Software. Therefore, Licensee must treat the Software like any other copyrighted material except that Licensee may copy the Software to an alternative location provided that the copy is used solely for backup or archival purposes. Licensee may not copy the printed materials accompanying the Software. All feedback in respect of Evertz's business, offerings and services, including, without limitation the Software including potential improvements or changes thereto (collectively, "Feedback") will be owned exclusively by Evertz. Licensee may not remove any Evertz product identification, trademark, copyright, patent or other notices or markings contained in, displayed by, or provided with the Software.
OWNERSHIP BY LICENSOR
Licensor owns or holds all intellectual property rights in the Software and all related content and Documentation. Licensor retains all right, title, and interest in and to the intellectual property rights relating to the Software and its use not expressly set out in this Agreement. Licensee agrees and acknowledges that it shall not obtain any ownership right or any intellectual property rights, whether express, by implication, estoppel, or otherwise, with respect to any Software under this Agreement, nor will it obtain any license, except for the express license grant set forth in this Agreement. Licensee acknowledges and agrees that Licensor (or its suppliers or licensors, as applicable) owns and shall retain all right, title and interest in and to the Software (including any copies, portions, extracts and derivatives thereof) and any and all intellectual property rights throughout the world relating thereto.
OWNERSHIP BY LICENSEE
No provision of this Agreement shall be deemed to transfer to Licensor any rights in intellectual property owned or held by Licensee.
SOFTWARE LICENSE TERM & TERMINATION
- This Agreement and all rights granted hereunder shall be effective until terminated in accordance with this Section 8.
- Licensee may terminate the Software license at any time upon written notice to Licensor, provided that the early termination of the Software license by Licensee shall not diminish or derogate from Licensee's obligations to pay the total fees agreed to as invoiced by Licensor. For the purposes of certainty, fees contracted for under a purchase order and paid by Licensee prior to termination are non-refundable.
- Licensor may immediately terminate the Software license if Licensee breaches the terms of this Agreement and such breach, if curable, is not cured within thirty (30) days' notice thereof, including, without limitation, any failure to pay fees when due or any unauthorized use or disclosure of the Software or any copy, portion, extract or derivative thereof or of any other Confidential Information. If the Software has been provided to Licensee for trial use or otherwise for a specific time period (including any time-out, key or similar mechanism), the Software license shall immediately terminate upon expiration of such time period.
- Either Party may terminate the Software license upon written notice to the other Party if such other Party (i) files for or becomes subject to any proceedings under any bankruptcy or insolvency laws, or initiates any action under any such laws for bankruptcy, reorganization, or liquidation, (ii) makes a general assignment for the benefit of creditors, (iii) fails to generally pay its debts as they become due, or (iv) dissolves or fails or ceases to continue business in the ordinary course.
- Upon termination of the Software license, all rights granted to Licensee hereunder, and by extension to any End User(s), shall immediately terminate, and Licensee shall immediately discontinue any use of the Software.
- Any section that by its nature should survive expiration or termination of this Agreement shall remain in effect after the expiration or termination of this Agreement. Without limitation of the generality of the foregoing, termination shall not affect Licensee's obligation to pay any fees.
LIMITATION OF LIABILITY
EXCLUSION OF INDIRECT DAMAGES
IN NO EVENT SHALL EITHER PARTY AND/OR ITS AFFILIATES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES BY REASON OF ANY ACT OR OMISSION OR ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR ITS SALE, DELIVERY, INSTALLATION, WARRANTY, MAINTENANCE, OPERATION, PERFORMANCE OR USE, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF DATA, BUSINESS OR GOODWILL, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF WORK OR IMPAIRMENT OF OTHER ASSETS, DIMINUTION OF VALUE, LOST REVENUES, INCOME OR PROFITS, COSTS OF CAPITAL, DAMAGE TO ASSOCIATED PRODUCTS OR EQUIPMENT OR TO FACILITIES, COSTS OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, COSTS ASSOCIATED WITH DOWN TIME, COSTS OF REPLACEMENT POWER, AND ANY SIMILAR OR DISSIMILAR LOSSES, COSTS OR DAMAGES.
LIMITATION OF LIABILITY
SUBJECT TO THE EXCLUSIONS SET OUT IN SECTION 9.3 BELOW, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY'S LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) FOR ANY CLAIM OR RECOVERY OF ANY KIND HEREUNDER, SHALL EXCEED THE GREATER OF THE PRICE OR FEES PAID OR PAYABLE FOR THE SOFTWARE LICENSE, OR FEES PAID FOR SERVICES AND/OR SUPPORT WITH RESPECT TO WHICH SUCH A CLAIM OR RECOVERY IS MADE.
EXCLUSIONS
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE LIMITATION OF LIABILITY SET FORTH IN SECTION 9.2sHALL NOT APPLY IN THE CASE OF A BREACH BY LICENSEE OF ITS OBLIGATIONS UNDER SECTION 2.3 ABOVE, THE LICENSE AND USE RULES AND RESTRICTIONS FOR LICENSOR SOFTWARE.
WARRANTY
DISCLAIMER
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10 (WARRANTY), THE SOFTWARE, THE DOCUMENTATION AND ANY SERVICES PROVIDED HEREUNDER, ARE PROVIDED ON AN "AS IS" BASIS, AND LICENSOR AND ITS AFFILIATES AND AGENTS (I) DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (II) DO NOT WARRANT THAT ACCESS TO THE SOFTWARE WILL BE UNINTERRUPTED, ERRORFREE, OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE OR PROVIDED THROUGH ANY APPLICATION IS ACCURATE, COMPLETE OR FREE OF VIRUSES OR OTHER HARMFUL CONTENTS OR COMPONENTS; (III) SHALL IN NO EVENT BE LIABLE TO LICENSEE OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE (INCLUDING LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY, OR FAILURES, DELAYS OR INTERRUPTIONS OF ANY SOFTWARE, APPLICATION, DOCUMENTATION OR SERVICES. LICENSOR EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF LICENSEE'S USE OF THE SOFTWARE, DOCUMENTATION OR SERVICES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES. IN SUCH JURISDICTIONS, LICENSOR'S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
WARRANTY FOR SOFTWARE
Licensor warrants to Licensee that for a period of one (1) year from the earlier of (i) the date of shipment of the Software from Licensor or its representative to Licensee and (ii) the Software is accessed by Licensee: (a) the tangible media on which the Software is furnished, if applicable, will be free of material defects in materials and workmanship under normal use; and (b) the Software conforms to its published Specifications, if any; (c) in no event does Licensor warrant that the Software is error free or that Licensee will be able to operate the Software without problems or interruptions. Licensor makes no warranty as to the performance of third-party software, hardware, telecommunications or networks. In order to exercise rights under the above warranty Licensee shall provide to Licensor within the applicable warranty period (i) written notice setting forth in detail the defect in the Software, and (ii) proof of purchase of the Software license. If any such Software is defective under the above warranty, Licensor shall, in its sole discretion, replace the Software or repair such Software through a Software Update otherwise commercially released and generally available. In the event that Licensor, despite its commercially reasonable efforts, is unable to replace or modify the Software in a functionally equivalent manner, Licensor will terminate Licensee's Software license and refund to Licensee all unused fees prepaid by Licensee with respect to such Software license, except for professional services.
EXCLUSIONS FROM OBLIGATIONS
Licensor will have no obligation under this warranty for any claim to the extent that it arises out of or is based upon (i) use of the Software in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (ii) use of the Software by Licensee or any End User for purposes not intended or outside the scope of the license granted to Licensee; (iii) Licensee's failure to use the Software in accordance with the Documentation; or (iv) any modification of the Software not made or authorized in writing by Licensor.
LIMITED REMEDY
This Section 10 shall be Licensee's sole and exclusive remedy, and Licensor's sole and exclusive liability, for any failure of the Software to perform to the warranty hereunder. Licensee's exclusive remedies for breach of the warranty shall be the repair or replacement of the Software. If repair or replacement is not possible within ninety (90) days following Licensor's receipt of written notice of a breach of the warranty, Licensee may terminate the license to the defective Software by providing written notice to Licensor and Licensee shall be entitled to receive a refund of the fees paid for the Software license that are pre-paid and unused, for the period following termination, with the exception of the fees paid in respect of Services.
INDEMNITY BY LICENSEE
Licensee shall defend Licensor against any claim made or brought against Licensor by a third party with respect to Licensee's or End User's misuse of the Software including but not limited to noncompliance with laws and regulations, provided that Licensor (i) promptly gives Licensee written notice of the claim, and (ii) provides to Licensee all reasonable assistance, at Licensee's expense.
FORCE MAJEURE
No Party shall be liable for any failure to perform or delay in the performance of its obligations if the same is partly or wholly delayed or prevented by an event of force majeure, defined as an event which is beyond the reasonable control of the Parties, such as but not limited to Acts of God (e.g. floods, earthquakes, hurricane), epidemics, fires, explosions, strikes, riots, war, rebellions, sabotage, act or threat of terrorism, shortage in supplies from normally reliable sources, embargo, governmental act or omission (e.g. delay or failure to issue, suspension or withdrawal of any license, permit or authorization), labor disputes, delay from a subcontractor caused by an event of force majeure as defined herein or other similar occurrence beyond the control and without the fault or negligence of the affected Party. Any such delay or failure shall suspend the project schedule until the delay or failure ceases, and the project schedule shall be deemed extended accordingly.
WAIVER
The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver of such provision or the right thereafter to enforce each and every provision. No waiver by either Party, express or implied, of any breach of this Agreement shall be construed as a waiver of any other breach of such term or condition.
ASSIGNMENT
Licensee may not assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of Licensor. No attempt to assign or transfer in violation of this provision will be binding upon Licensor. Any proposed assignee or transferee must agree in writing to be bound by all the terms, conditions, and obligations of this Agreement. Notwithstanding Licensor agreement to any such assignment, Licensee shall remain subject to the obligations of confidentiality set forth in this Agreement. Licensor may assign or otherwise transfer its rights and obligations under this Agreement and any purchase order.
NO THIRD-PARTY BENEFICIARIES
This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of nor may any provision hereof be enforced by, any other person
APPLICABLE LAW
This Agreement will be construed and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada as applicable, without regard to conflict of laws provisions. The Parties hereby attorn to the exclusive jurisdiction of the courts of the Province of Ontario.
EXPORT
Licensee and Licensor acknowledges that any Software, Support, Services and/or Documentation provided under this Agreement may be subject to export control laws and regulations of Canada, the United States, or other applicable jurisdictions. Licensee and Licensor agrees to comply with all such laws and regulations, neither Licensee nor Licensor will export, re-export, or transfer any items, directly or indirectly, in violation of any applicable laws or regulations. Licensee and Licensor agrees to obtain any required government licenses or approvals prior to any export or re-export.
PRIVACY
Evertz collects personal information that you provide to us. Some information, such as your Internet Protocol (IP) address and/or browser and device characteristics, is collected automatically when you visit our website. Evertz processes your information for purposes based on legitimate business interests, the fulfillment of our contract with you, compliance with legal obligations, and/or your consent. We only share information with your consent, to comply with laws, to provide you with services, to protect your rights, or to fulfill business obligations. We only share information with the following categories of third parties; Data Analytics Services. We may use cookies and other tracking technologies to collect and store your information. We may transfer, store, and process your information in countries other than your own. We keep your information for as long as necessary to fulfill the purposes outlined in this privacy notice unless otherwise required by law. We aim to protect your personal information through a system of organizational and technical security measures. We do not knowingly collect data from or market to children under 18 years of age. In some regions, such as the European Economic Area (EEA) and United Kingdom (UK), you have rights that allow you greater access to and control over your personal information. You may review, change, or terminate your account at any time. If you are a resident of California, you are granted specific rights regarding access to your personal information. This will be updated as necessary to stay compliant with relevant laws.
NO PUBLICITY
Neither Licensee and Licensor shall, without the prior written consent of the other, use the name, logo, trademarks, or any other identifying marks of the other party in any advertising, publicity, or promotional materials, except as required by law. Additionally, Licensee and Licensor agrees not to make any statements or take any actions that could reasonably be expected to damage the reputation or goodwill of the other party.
NOTICES
All notices shall be given in writing and deemed effective upon receipt. Notices to Licensor shall be sent to 5292 John Lucas Drive, Burlington, Ontario L7L 5Z9 Attention: Marsha Garner. Notices to Licensee shall be sent to the address set out on the purchase order, unless otherwise directed by Licensee.
SEVERABILITY
If any provision of this Agreement is determined to be unenforceable or invalid by court decision, this Agreement will not be rendered unenforceable or invalid as a whole, and the provision will be changed and interpreted so as to best accomplish the objectives of the original provision within the limits of applicable law and the remainder of the Agreement shall remain in full force and effect.
DISPUTE RESOLUTION
Disputes, controversies or claims may arise between the Parties. To minimize the expense to and impact on each Party of formally resolving such disputes, controversies and claims in accordance with the Applicable Law Section 16 above, the Parties will first attempt to resolve any controversy or claim arising out of or relating to any purchase order.
INTERPRETATION
In this Agreement, (a) the insertion of headings is for convenience of reference only and will not affect the construction or interpretation of this Agreement; (b) words or abbreviations that have well known or trade meanings are used herein in accordance with their recognized meanings; and (c) terms and conditions hereof are the result of negotiations between the parties and this Agreement will not be construed in favor of or against any party by reason only that a party or its professional advisors participated in the preparation of this Agreement.
THE NIELSEN COMPANY CUSTOMERS
If the Software makes use of any licensed The Nielsen Company ("Nielsen") component ("Nielsen Product"), Licensee is then considered a "Nielsen Customer" and the following additional requirements shall apply:
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Use of the Nielsen Product to decode watermarks for source identification from the broadcast audio stream of its programming and/or the authorized advertiser programming is solely for the purpose of verifying the encoding of watermarks and is considered Nielsen confidential information. Licensee agrees that any output or functions of the Nielsen Product may not be used to decode watermarks in the audio stream of or attempt to identify any other Nielsen Customer.
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Licensee agrees that the decoding of watermarks by Nielsen Product is not determinative of the quality of an audience measurement, analysis, research, marketing or other service related to content or its viewers ("Ratings") Without a separate agreement between Nielsen and Nielsen Customer, Licensee agrees that nothing under this Agreement requires the provision by Nielsen of Ratings that nothing under this Agreement shall grant any right to or affect any obligation regarding the use of any such Ratings. Licensee agrees that any watermarks decoded through use of the Nielsen Product shall be processed accurately and without modification.
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