END-USER LICENSE AGREEMENT
This End User License Agreement (“EULA”) and the applicable Supplemental Terms (together, this “Agreement”) are entered into between the STORIED DATA INC. and the client that accepted this Agreement (“Licensee”). This Agreement may be accepted by manual signature or electronic signature, or through an electronic system specified by STORIED DATA INC.
“Authorized Individual Users” means individual users granted access to use the Software on a named basis. Each Authorized User shall receive a personal login and password which shall be maintained securely by Licensee from unauthorized use. The number of Authorized Users licensed hereunder is specified on the Sales Order(s) executed hereunder.
“Authorized Production Volumes” means the number of output files which the Software can generate per period as specified in the Sales Order.
“Authorized Servers” means the number of Licensee’s servers on which the Software may be installed as specified in the applicable Sales Order.
“Embedded BI” means the integration of business intelligence solutions within internal business process software, applications, interactive dashboards, reporting, predictive analytics, data real-time analysis, visualizations and interactive reporting which enables business intelligence directly within an user’s applications.
“End-User” Any third party who acquires a license to use the Software, End-User documentation and from the Licensee.
“End-User Documentation” means any manuals and other printed or electronic materials relating to the use or operation of the Software that may be created and provided to End-User by Licensor or Licensee.
“License” means a nonexclusive, nontransferable, limited right acquired by End-User to use Software and End-User Documentation for user’s internal business purposes for the time period specified in the Order, and subject to the applicable Supplemental Terms.
“Licensor” means the owner of the rights to use the Software.
“License Fee” means the license fee for End-Users as per product configuration as specified in the Sales Order.
“Maintenance Services” means Software maintenance, enhancement, updates and/or upgrades and technical support services provided by Licensor or its authorized partner.
“Professional Services” means training, consulting, engineering, designing or other professional services provided hereunder by or on behalf of STORIED DATA INC., typically pursuant to a statement of work.
“Services” means Maintenance Services and Professional Services.
“Software” means the software licensed by STORIED DATA INC. to Licensee hereunder, including updates, modifications, design data, and all copies thereof. Software includes Embedded BI, associated APIs, as well as scripts, toolkits, libraries, reference or sample code, and similar materials.
“STORIED DATA INC. IP” means all patents, copyrights, trade secrets, and other intellectual property rights in or related to Software or Services.
“Supplemental Terms” means those separate terms and conditions that apply to Software, End-User Documentation or Services set forth or referenced in a Sales Order, or otherwise agreed by the parties.
“Sub-licensor” means a third party under Value Added Reseller (VAR) or Application Developer and Reseller (ADR) who is party to Storied Data doing business as (DBA) of Storied Data INC, DBA, VAR or ADR agreement.
“Sales Order” means a purchasing order specifying the number of Licensee’s authorized individual users, the number of Licensee’s Authorized Servers, Licensee’s Authorized Production Volumes, and the payment terms.
- Sublicense Grant.
- Grant to End-User. Subject to the terms and conditions of this Agreement, Licensor or Sub-licensor grants End-User a nonexclusive, non-transferable and non-licensable license to use the Software solely for internal use of End-User only, and not to process any data or information for any third party, in accordance with the terms of this Agreement. Except as stated above, this Agreement does not grant End-User any right (whether by license, ownership or otherwise) in or to intellectual property with respect to the Software. All rights not expressly granted herein are reserved to Licensor or Sub-licensor’. End-User expressly agrees and acknowledges that Licensor or Sub-licensor may include mechanisms within the Software that (a) automatically disable the Software at the end of a specific time period and/or limit the size of the database and/or (b) allow Licensor or Sub-licensor to access the Software to provide Maintenance Services.
- Delivery of Software. Delivery of Software occurs when Licensor makes Software available to Licensee via electronic download from a website specified by STORIED DATA INC..
- End-User agrees that it shall not, and shall not permit any other person to, (i) duplicate, copy, modify, translate or otherwise alter, incorporate into other materials or create any derivative work based upon, in any manner whatsoever, in whole or in part, the Software or End-User Documentation (or any portion thereof), (ii) reverse assemble, reverse engineer, disassemble, decompile or otherwise attempt to create or discover any source code of the Software by any means whatsoever (except solely to the extent that applicable law prohibits reverse engineering restrictions). End-User further agrees not to publish, disclose, display or make accessible, distribute, lease, lend, provide, sell, transfer, assign or otherwise convey, or grant any security interest in, the Software or End-User Documentation, in whole or in part, to any person or entity. End-User agrees that any copies of the Software and End-User Documentation shall contain the same proprietary notices which appear thereon and therein.
- Copies and Adaptations. End-User may make or authorize the making of copies or adaptations of the Software provided that any new copy or adaptation is created as an essential step in the utilization of the Software and is used in no other manner or is for archival purposes only to back up use of the Software. All proprietary rights notices must be faithfully reproduced and included on all copies and adaptations. All such software and all copies or modifications thereof are or shall become the property of Licensor or Sub-licensor and/or, as appropriate, its licensors.
- Title. Licensor or Sub-licensor retains all title to its technology or software included with or contained or embedded in the Software and End-User Documentation, all copies and derivative works thereof (by whomever produced), all related documentation and materials, and all patent, copyright, trademark, trade secret and other intellectual property rights inherent in or appurtenant to any of the foregoing. This license is not a sale of a copy of the Software and does not render End-User the owner of a copy of the Software. Ownership of Licensor’s technology or software included with or contained or embedded in the Software and all components and copies thereof shall always remain with Licensor, regardless of who may be deemed the owner of the tangible media in or on which the Software may be copied, encoded, or otherwise fixed.
- License Fee. The Licensee will pay the License fees set forth in the Sales Order related to use of Software and Services are invoiced in advance and Professional Services will be invoiced monthly as charges are incurred. The License Fee shall be paid in full by the End-User within thirty (30) days of the date Licensee received the Sales Order invoice. In the event of the termination of Sub-licensor’s license with its licensor, all such fees shall be payable directly to Licensor. All payments made hereunder are non-refundable. Failure of Licensee to make any payment when due which is not remedied within 15 days after notice by Licensor shall constitute sufficient cause for Licensor to immediately suspend its performance under this Agreement. Payments of amounts made under this Agreement after their due date will incur interest at a rate equal to one percent (1%) per month (i.e., 12% per annum) or the highest rate permitted by applicable law, whichever is less.
- Use of Name and Trademarks; Press Release Cooperation. Unless otherwise requested by Licensee, Licensor may reference Licensee name and use Licensee logo and trademarks as well as indicate that Licensee is a Licensor customer in Licensor’s business development and marketing efforts and materials (both printed and online), including without limitation its website. Further, promptly after execution of this Agreement, the parties shall work together in good faith to issue a press release announcing the relationship created hereunder.
- Maintenance Services. For any purchased License and subject to payment of applicable fees, Licensor shall provide standard Maintenance Services.
- Licensee Data. All data stored or managed by means of the Software, including the results of data analysis and outputs generated from the Software, is “Licensee Data.” Licensee Data will be imported from different source systems that Licensee uses and may need further transformations. Licensee is required to have legal access to all Licensee Data. Licensee is required to comply with data protection laws and regulations and with the terms and conditions regarding the different source systems that Licensee uses. Under no circumstances will Licensor be liable for any destruction or corruption of or damage to Licensee Data or any data that is transferred or used by Licensee by means of the Software. All Licensee Data is deemed Licensee’s property.
- Compliance with Applicable Law. End-User understands that the Software and End-User Documentation may be subject to export control and other laws and regulations. End-User may not use, license, download, export or re-export the Software or End-User Documentation or any underlying information or technology other than in full compliance with all United States, foreign and other applicable laws and regulations. End-User shall not export, directly or indirectly any technical data or Software or the direct product of any such technical data or Software to any country for which the United States Government or any agency thereof, at the time of export, requires an export license or other governmental approval, without first obtaining such license or approval.
- Government Restricted Rights. If the license to Software and End-User Documentation is being acquired by the U.S. Government or any related governmental organization, the Software and End-User Documentation are “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. (FAR) section 12.212 and 48 C.F.R. (DFAR) section 227.7202, as applicable, and are provided to such governmental organization (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. (FAR) section 12.212, or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. (DFAR) section 227.7202-1 and section 227.7203-3. Such governmental organization’s rights to use, modify, reproduce, release, perform, display, or disclose the Software and End-User Documentation are subject to the restrictions set forth in this Agreement. Any technical data provided that is not covered by the above provisions is deemed to be “technical data-commercial items” pursuant to 48 C.F.R. (DFAR) section 252.227-7015(a). Any use, modification, reproduction, release, performance, display, or disclosure of such technical data shall be governed by the terms of 48 C.F.R. (DFAR) section 252.227-7015(b). Sub-licensor and its Licensor shall each be a Contractor/Offeror, as such terms are defined in 48 C.F.R. (FAR) Section 227.7201.
- Indemnity. End-User agrees to defend, indemnify and hold Licensor harmless against any and all damages, costs, liabilities, expenses and settlement amounts incurred in connection with any suit, claim or action by any third party against Licensor as a result of negligence, misrepresentation, error, act or omission on the part of End-User or its representatives in utilizing, or arising out of the use of, the Software or End-User Documentation.
- Data Protection. When Licensor processes personal data on Licensee behalf in connection with the Services, the terms set out at www.storieddata.com are incorporated herein by reference and shall apply to the use of such Services. Licensee will indemnify and hold harmless STORIED DATA INC., and their authorized partner from any claims, damages, fines, and costs (including attorney’s fees and expenses) relating in any way to Licensee’s noncompliance with applicable data protection laws.
- Warranty Disclaimer. THE SOFTWARE AND END-USER DOCUMENTATION ARE PROVIDED “AS-IS” AND “AS-AVAILABLE.” LICENSOR MAKES NO, AND HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY TO END-USER OR ANY OTHER PERSON OR ENTITY CONCERNING THE SOFTWARE OR END-USER DOCUMENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS, USE, ACCURACY, TITLE OR NONINFRINGEMENT. IN ADDITION, LICENSOR MAKES NO WARRANTY THAT THE SOFTWARE OR END-USER DOCUMENTATION WILL MEET END-USER’S REQUIREMENTS, OR THAT END USER’S USE OF THE SOFTWARE OR END-USER DOCUMENTATION WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE; NOR DOES LICENSOR MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE OR END-USER DOCUMENTATION OR THAT DEFECTS OR ERRORS IN THE SOFTWARE OR END-USER DOCUMENTATION WILL BE CORRECTED. END-USER ACKNOWLEDGES AND AGREES THAT THE ACCURACY OF THE SOFTWARE AND THE RESULTS GENERATED BY THE SOFTWARE ARE DIRECTLY IMPACTED BY END-USER’S CUSTOMIZATIONS AND IMPLEMENTATIONS OF THE SOFTWARE, AND THE TRAINING AND DIRECTION GIVEN TO USERS OF THE SOFTWARE, AS WELL AS OTHER VARIABLES OUTSIDE OF THE CONTROL OF LICENSOR AND SUB-LICENSOR.
- Limitation of Liability. LICENSOR SHALL NOT BE LIABLE TO END-USER OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER RESULTING FROM (I) THE USE OR THE INABILITY TO USE THE SOFTWARE OR END-USER DOCUMENTATION, (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY FAILURE OF ANY GOODS OR SERVICES PURCHASED OR OBTAINED VIA USE OF THE SOFTWARE OR END-USER DOCUMENTATION, (III) DAMAGES FOR LOSS OF PROFITS, REVENUE OR GOODWILL, (IV) WORK STOPPAGE IN ANY WAY ARISING OUT OF OR RELATED TO THE SOFTWARE OR END-USER DOCUMENTATION OR THIS AGREEMENT, (V) COMPUTER FAILURE OR MALFUNCTION OR (VI) ANY AND ALL OTHER COMMERCIAL DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S TOTAL LIABILITY TO END-USER OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE LICENSED DATA EXCEED ONE HUNDRED UNITED STATES DOLLARS (US$100).
- State law exclusions; Allocation of Risk. The limitations and disclaimers in Section 9 and Section 10, or the applicable provisions thereof, will not apply in the event and to the extent that applicable law specifically prohibits or limits such provisions. The provisions of Section  and of Section  allocate the risks under this Agreement between Licensor, Sub- licensor and End-User and the parties have relied upon the limitations set forth herein in determining whether to enter into this Agreement.
- Third Party Beneficiary. End-User acknowledges and agrees that Licensor, Storied Data INC., is an intended third party beneficiary of this Agreement and that Storied Data INC. shall have full rights to enforce its and Sub-licensor’s rights hereunder.
- Term. The Term of this Agreement shall commence on the date hereof, and shall expire three (3) years from the date hereof. Thereafter, this Agreement shall be automatically renewed for successive one (1) year Terms. Upon expiration of the initial Term of this Agreement either party may terminate the Agreement upon ninety (90) days prior written notice to the other party.
- Termination. This Agreement shall automatically terminate in the event that End-User materially breaches any of its obligations hereunder, and such breach remains uncured for thirty (30) days. Upon termination, End-User shall immediately cease all use of the Software and End-User Documentation and return to Licensor or Sub-licensor or destroy the original and all copies of the Software, and End User Documentation and so certify to Licensor and Sub-licensor. Termination is not an exclusive remedy of Licensor or Sub-licensor and all other remedies (including, without limitation, equitable relief) will be available whether or not this Agreement is terminated.
- Confidentiality. Each of the parties acknowledges that under this Agreement it may receive information treated as confidential and proprietary information by the other party, including without limitation the Software, which is confidential information of Licensor and/or Sub-licensor (the “Confidential Information”). Each party agrees to maintain the Confidential Information in the strictest of confidence and will not, at any time during the term of this Agreement or for a period of three years thereafter, use, disseminate or disclose any Confidential Information to any person or entity other than its employees who have a “need to know,” who have been apprised of this restriction and who are themselves bound by similar nondisclosure restrictions. In the event of any loss or disclosure of the Confidential Information, the party responsible for such loss or disclosure shall notify the other party immediately. Upon termination of this Agreement, all documents and records containing the Confidential Information will be returned to the party who disclosed or provided such Confidential Information. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include information that (i) is or becomes generally available to the public other than through breach hereof by either party; (ii) is communicated by a third party that had no confidentiality obligations with respect thereto; or (iii) is required to be disclosed by law, including without limitation, pursuant to the terms of a court order, provided that the party so required to disclose has given the other party prior notice of such disclosure and an opportunity to contest such disclosure.
- Records and Audit. End-User shall maintain, at its executive offices (wherever located) for the duration of this Agreement and for two years thereafter, books of account and such other records with respect to the Software as may be made by End-User concerning the use of the Software. Licensor or its agent may, at Licensor’s sole expense, examine and verify (i) said books and records relating to the Software for the purpose of verifying the accuracy thereof, and (ii) End-User’s use of the Software during End-User’s normal business hours and upon reasonable written notice, but no more than once annually; provided, however, that if such audit reveals any underpayment of greater than five percent (5%) or any use of the Software in violation of this Agreement, in addition to such other remedies as may be available to Licensor, End-User shall pay to Licensor (i) all such amounts plus all interest in such amounts pursuant to Section  and (ii) all costs of such audit. Licensor shall notify End-User in writing within 90 days after such examination if Licensor believes that End-User’s books are not accurate. Licensor and its agents shall keep all information obtained in such examination confidential and use such information solely for the purpose of this Section.
- Governing Law; Forum. This Agreement shall be deemed to have been made in and shall be construed pursuant to the laws of the United States of America without regard to conflicts of law’s provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods.
- Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT.
- End User may not assign any of its rights or obligations, in whole or in part, under this Agreement without the advance written consent of Licensor/ Sub-licensor. Any assignment of this Agreement may require the payment of additional license fees, as provided by Sub-licensor/in the governing agreement/terms and conditions.
- Uniform Computer Information Transactions Act (UCITA). The parties expressly agree and acknowledge that to the fullest extent permitted by law, the provisions of the Uniform Computer Information Transactions Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement.
- Survival. The following sections shall survive any termination or expiration of this Agreement: Sections , [2.3], , , , , , , , , , , , , , , , and .
- If the Sales Order Licensee executed was accompanied by a modified version of this End User License Agreement which was executed by both Licensee and Licensor, then such modified End User License Agreement will govern the use of the Software and not this Agreement.