END USER Access agreement
BY EXECUTING AN ADVANTAGE SOW THAT REFERENCES THIS END USER ACCESS AGREEMENT, CLICKING THE ACCEPTANCE BUTTON, OR ACCESSING OR USING ANY PART OF THE SERVICES (AS DEFINED BELOW), YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE SERVICE.
In connection with your access to certain Advantage software and services (collectively the “Services”), you agree that you will use the Services for your internal business purposes only, unless otherwise specified in an Advantage SOW. Your rights to access the Services may be immediately revoked in the event of your breach of any of the provisions contained herein.
Grant of Access and License Rights. If you are provided access to Advantage Services in an Advantage SOW, Advantage hereby grants to you a non-exclusive, non-transferable license to use the Services, including any software to which you are granted access by Advantage (“Software”) and any accompanying user’s manuals or documentation (“Documentation”). Some Software licensed to you hereunder will be third party software and may be subject to additional terms and conditions required by the owner of such software or to open source licenses in the case of open source software. Advantage reserves the right, in its sole discretion, to introduce new functionality into the Services from time to time.
Third Party Software Requirements. You shall be solely responsible for procuring and maintaining the necessary hardware and software for accessing and utilizing the Services. For certain integrated third party subscription services, you will be required to maintain an active subscription with any third party whose services are integral to the integrated Services to be provided to you. For any Advantage Services that involve use of Quick Base, you will need an active Quick Base account in order to use such Services. All fees and costs associated with maintaining such third party subscription services shall be your sole responsibility.
Ownership. Any development Advantage does for you in native Quick Base and resulting Quick Base applications will be considered work for hire and owned by you. This type of development will not involve source code, since Advantage does not have access to nor does it modify Quick Base source code. You acknowledge that other non-Quick Base Services and Software, API and other code are owned by Advantage Integrated Solutions, Inc. and/or its third party providers and they shall retain all right, title and interest in and to such Services and Software. In the cases where Advantage writes source code in its contracted work for you, that code is owned by Advantage and you retain a non-exclusive, perpetual, royalty-free license to continue to use it for the application for which it was designed and deployed, unless the SOW specifies that a subscription or other type of license is required for continued use of such code.
You will not, and will not permit any employee or other third party to copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the Services in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Services or any trade secret information or process contained in the Services or remove any product identification, copyright or other notices.
You agree not to remove, alter or conceal any product identification, copyright notices, or other notices or proprietary restrictions from the documentation provided to you by Advantage, and you further agree to reproduce any and all such notices on any copies of such documentation.
Confidential Information. Each party shall hold in confidence any non-public or other proprietary information received by on on behalf of the other party and shall not disclose it to any their party in any way without the other party’s written permission.
Compliance with laws. Each party will at all times comply with laws and regulations which are applicable to their respective obligations herein or in the Statement of Work.
DISCLAIMER OF WARRANTIES. ADVANTAGE SHALL PROVIDE THE SERVICES USING PERSONNEL OF REQUIRED SKILL, EXPERIENCE, AND QUALIFICATIONS IN ACCORDANCE WITH GENERALLY RECOGNIZED INDUSTRY STANDARDS. EXCEPT AS PROVIDED HEREIN OR IN THE SOW, NEITHER ADVANTAGE, NOR ITS THEIR PARTY PROVIDERS, MAKE ANY WRRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIS OF MERCHANTABILITY, COURSE OF DEALING OR TRADE OR FITNESS FOR ANY PARTICULAR PURPOSE. ADVANTAGE AND ITS PROVIDERS MAKE NO WARRANTY WITH REGARD TO THE RELIABILITY, ACCURACY OR COMPLETENESS OF THE INFORMATION AVAILABLE THROUGH THE SERVICES NOR DO THEY MAKE ANY WARRANTIES THAT ALL ERRORS CAN BE OR WILL BE CORRECTED OR THAT THE SERVICES WILL OPERATE WITHOUT ERROR.
LIMITATION OF LIABILITY. ADVANTAGE’S LIABILITY (UNDER BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) IF ANY, FOR ANY DAMAGES RELATED TO THE SERVICES SHALL BE FOR ACTUAL DAMAGES INCURRED AND SHALL NOT EXCEED THE FEES YOU PAID TO ADVANTAGE FOR THE USE OF THE SERVICES HEREUNDER. IN NO EVENT SHALL ADVANTAGE BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING LOST PROFITS, LOST DATA AND THE LIKE ARISING OUT OF OR IN CONNECTION WITH THE SERVICES EVEN IF ADVANTAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, ADVANTAGE SHALL HAVE NO LIABILITY OF ANY KIND FOR ANY MALFUNCTIONS OR FAILURE OF THIRD PARTY SOFTWARE AND YOU ACKNOLWEDGE AND AGREE THAT YOUR SOLE REMEDY FOR DAMAGES OF ANY KIND RESULTING FROM THIRD PARTY SOFWARE MALFUNCTIONS OR FAILURE SHALL BE AGAINST SUCH THIRD PARTY AND NOT ADVANTAGE. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
INDEMNIFICATION. you AGREE to indemnify and hold advantage, its directors, officers and employees, representatives and agents harmless from and against any and all claims, losses, liability, damages, costs, and expenses (including attorney’s fees, expert witness fees, and court costs) arising out of any gross negligence or willful misconduct by you related to the SERVICES and your use thereof. Advantage will indemnify and hold you harmless from and against any and all claims, losses, liability, damages, costs, and expenses (including attorney’s fees, expert witness fees, and court costs) directly or indirectly arising from or related to any actual or alleged infringement, misappropriation, or violation of any third party’s patents, copyrights, trade secret rights, trademarks, or other intellectual property or proprietary rights of any nature resulting from your receipt or use of the Services in compliance with the terms of this agreement. If your continued use of the Services is restricted or prohibited as a result of any such infringement, misappropriation, or violation of third party rights, Advantage shall, at Advantage’s option and at no charge to you, and in addition to your other rights and remedies, (a) secure for you the right to continue using the Services, as the case may be, as allowed under this Agreement or (b) modify or replace the infringing components of the Services, as the case may be, so that they are non-infringing with no material loss or degradation of features, functionality, or performance. Notwithstanding the foregoing, Advantage will not be obligated to indemnify you to the extent that an infringement or misappropriation claim is based upon (i) use of the Services in breach of this Agreement or any applicable Order or SOW; (ii) use of the Services in combination with other products not supplied or recommended by Advantage, if such infringement or misappropriation would not have occurred but for such combined use; or (iii) any modification of the Services made by or on behalf of you (other than at Advantage’s direction), if such infringement or misappropriation would not have occurred but for such modification.
No Assignment. Neither party may assign any of its rights or obligations hereunder without the written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement and Statement of Work in its entirety to a successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity.
Amendment. The Agreement may only be modified by mutual agreement of authorized representatives of both parties in writing.
Waiver and Severability. No failure, delay in exercising or enforcing any right or remedy hereunder by Advantage shall constitute a waiver of any other right or remedy, or future exercise thereof. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
Choice of Law and Jurisdiction. The construction, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction. The application of the U.N. Convention on Contracts for the International Sale of Goods is specifically excluded from this Agreement.