END USER LICENSE AGREEMENT – On-Perm
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING AND/OR USING SOFTWARE FROM RE:FORM. BY USING RE:FORM SOFTWARE, USER ACKNOWLEDGES IT HAS READ, UNDERSTANDS, AND ACCEPTS THIS AGREEMENT. USER FURTHER AGREES THAT RE:FORM MAY DIRECTLY ENFORCE THIS AGREEMENT AGAINST THE USER IN THE CASE OF A BREACH, AND WAIVES ANY OBJECTION REGARDING RE:FORM’S STANDING TO DO SO. AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF USER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT USE RE:FORM SOFTWARE.
This RE:FORM End User License Agreement is between RE:FORM Tech Pte Ltd, 114 Lavender Street, #02-52, CT Hub 2, Singapore 338729 and the individual or entity that accepts the terms of this Agreement (“User“). The effective date of this Agreement (“Effective Date”) is the earlier of the date that User formally accepts this Agreement or first uses RE:FORM’s Software.
Business Partners. User is purchasing Software from a RE:FORM business partner (“Business Partner“). RE:FORM will provide the purchased Software to User under the terms of this Agreement, but is not responsible for (a) the actions and omissions of Business Partners, (b) any additional obligations Business Partners may have to User, or (c) any non-RE:FORM products or services that Business Partners supply to User.
1. SCOPE OF AGREEMENT AND DEFINITIONS
This Agreement sets forth the terms under which RE:FORM will provide Software to User. Capitalized terms are defined in Appendix 1. Pricing and itemized details of User’s purchase are set forth in the applicable Order Form between User and the Business Partner.
2. LICENSE AND OWNERSHIP
2.2 License Scope. Subject to the terms of this Agreement, RE:FORM grants to User during the License Subscription Period a non-exclusive, non-transferable and non-sublicensable right and license to (a) install and use the Software on premises or in a cloud environment, in object-code form, solely for User’s internal business purposes, in the quantity agreed in the Order Form, and (b) to use any third-party open source software provided with the Software, subject to the applicable third-party open source licenses. User may permit its contractors and Affiliates to use the Software and Documentation solely on User’s behalf in accordance with this Agreement. User shall be responsible for (i) ensuring its contractors and Affiliates comply with this Agreement and all applicable Order Forms and (ii) assuming any liability arising from the contractors’ and Affiliates’ use and misuse of the Software and Documentation.
2.3 Restrictions. User will not, directly or indirectly:
(a) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to: (i) the Software, (ii) any modified version or derivative work of the Software created by the User or for the User;
(b) remove or alter any copyright, trademark or proprietary notice in the Software;
(c) transfer, use or export the Software in violation of any laws or regulations of any government or governmental agency;
(d) reverse engineer, decompile or modify any encrypted or encoded portion of the Software; or
(e) act as a service provider of the Software to external parties.
2.3 Ownership. User acknowledges that RE:FORM and its licensors own all right, title, interest to and intellectual property rights of the Software, Support Services, and Documentation provided to User, including all copies, and/or any modifications to the Software.
2.4 Affiliates. The parties agree that their respective Affiliates may also conduct business under this Agreement by entering into Order Forms, subject to this Agreement.
3. REPORTING AND RECORDS
3.1 Reporting. User will notify RE:FORM or the Business Partner promptly if it exceeds the License Entitlements it has purchased in an applicable Order Form. User will include the amount of the excess usage and the date on which it first exceeded its License Entitlements. RE:FORM, through the Business Partner, will increase User’s License Entitlement and adjust its ongoing subscription price to reflect the excess usage, which shall be reflected in a new Order Form.
3.2 Records Retention. User will maintain accurate records necessary to verify its compliance with the License Entitlements in the applicable Order Form and compliance with this Agreement. Upon RE:FORM’s and/or the Business Partner’s written request, User will provide RE:FORM and/or the Business Partner those records within ten (10) business days.
4. CONFIDENTIAL INFORMATION
4.1 Confidentiality. “Confidential Information” means information and/or materials provided by one party (“Discloser”) to the other party (“Recipient”), which are identified as confidential at the time of disclosure or, under the circumstances of disclosure, a reasonable person would understand to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such: this Agreement, license keys, RE:FORM’s pricing, product roadmap or strategic marketing plans, non-public materials relating to the Software including, without limitation, all source code, binaries, and Documentation. Recipient may disclose Discloser’s Confidential Information only to Recipient’s employees or contractors who need to know such Confidential Information and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder.
4.2 Exclusions. “Confidential Information” does not include information that: (i) is independently developed by or for the Recipient without access or reference to, or use of, Confidential Information; (ii) is lawfully received free of restriction from another source having the right to furnish such information; (iii) is or becomes lawfully in the public domain other than through a breach of this Agreement; (iv) was known by the Recipient prior to disclosure; (v) Discloser agrees in writing is free of such restrictions; or (vi) is generally disclosed by the Discloser to third parties without a duty of confidentiality.
4.3 Duties Regarding Confidential Information. At all times during and after the term of this Agreement, Recipient shall keep Discloser’s Confidential Information confidential using the same degree of care that it uses to protect its own Confidential Information, but not less than a reasonable degree of care. Recipient shall not disclose Discloser’s Confidential Information to a third party without the Discloser’s written consent or use the Confidential Information for purposes other than the performance of this Agreement. Where disclosure is required by law, such disclosure shall not constitute a breach of this Agreement provided Recipient gives Discloser reasonable advance notice to enable Discloser to seek appropriate protection of the Confidential Information.
4.4 Unauthorized Disclosures. The parties agree that Recipient’s unauthorized disclosures of Confidential Information may result in irreparable injury for which a remedy in money damages may be inadequate. The parties therefore agree the Discloser may be entitled to seek an injunction to prevent a breach or threatened breach of this Section without posting a bond. Any such injunction shall be additional to other remedies available to Discloser at law or in equity.
4.5 Feedback. To the extent User provides suggestions or other feedback specifically relating to the Software or Support Services, User grants to RE:FORM a royalty free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, and otherwise exploit such feedback, including incorporating it into the Software and Support Services.
4.6 Contact Details. RE:FORM does not seek or require, and User shall not provide, access to User Personal Data other than Contact Details. User agrees RE:FORM may process Contact Details solely for the performance of this Agreement, which may include transferring Contact Details outside the European Economic Area (“EEA”), and/or allowing Contact Details to be processed by third parties in furtherance of this Agreement. User may update, modify, or delete Contact Details upon written request. If RE:FORM is granted access to User Personal Data other than Contact Details, User shall promptly notify RE:FORM and RE:FORM shall promptly return all such User Personal Data in its possession or control to User, and User shall terminate such access. RE:FORM will promptly notify User of any known or suspected security breach, or any unauthorized disclosure, affecting User Personal Data, and provide all reasonable cooperation to User in investigating and remediating any breach and/or disclosure.
5. WARRANTIES AND DISCLAIMER
5.1 General Representations and Warranties. RE:FORM represents and warrants that: (a) it will use reasonable skill and care in providing the Support Services; (b) the Support Services will be performed in a professional and workmanlike manner by qualified personnel; (c) it has the authority to enter into this Agreement with User; and (d) RE:FORM has taken commercially reasonable measures to ensure the Software does not, at the time of delivery to User, include malicious or hidden mechanisms or code designed to damage or corrupt the Software.
5.2 Disclaimer of Warranty. EXCEPT AS PROVIDED IN SECTION 5.1, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RE:FORM MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. RE:FORM DOES NOT GUARANTEE THAT USE OF THE SOFTWARE AND SUPPORT SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT RE:FORM WILL CORRECT ALL SOFTWARE ERRORS. FOR THE BREACH OF THE WARRANTIES SET FORTH IN SECTION 5.1, USER’S EXCLUSIVE REMEDY AND RE:FORM’S ENTIRE LIABILITY FOR BREACH OF SECTION 5.1(a) OR (b) WILL BE THE REPERFORMANCE OF DEFICIENT SERVICES, OR IF RE:FORM CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, USER MAY TERMINATE THE RELEVANT SERVICES AND RECEIVE A PRO RATA REFUND OF THE FEES PAID FOR THE DEFICIENT SERVICES AS OF THE EFFECTIVE DATE OF TERMINATION. USER’S EXCLUSIVE REMEDY AND RE:FORM’S ENTIRE LIABILITY FOR BREACH OF SECTION 5.1(d) WILL BE TO UNDERTAKE COMMERCIALLY REASONABLE EFFORTS TO REMEDY OR SUPPLY A TEMPORARY FIX, OR MAKE AN EMERGENCY BYPASS, IF RE:FORM REPRODUCES THE PROBLEM IN A CURRENT, UNALTERED RELEASE OF THE SOFTWARE, OR IF RE:FORM CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, USER MAY TERMINATE THE RELEVANT LICENSE .
6. INDEMNIFICATION
6.1 Defense. If a third party initiates or threatens a legal action alleging that User’s use of the Software directly infringes the third party’s patent, copyright, or trademark or misappropriates the third party’s trade secret rights (“Third Party Rights”) (such action, a “Claim”), then RE:FORM will (a) promptly assume the defense of the Claim and (b) pay costs, damages and/or reasonable attorneys’ fees that are included in a final judgment against User (without right of appeal) or in a settlement approved by RE:FORM that are attributable to User’s use of the Software; provided that User (i) is current in the payment of all applicable fees, or becomes current, prior to requesting indemnification, (ii) notifies RE:FORM in writing of the Claim promptly after receipt of the Claim, (iii) provides RE:FORM with the right to control the defense of the Claim with counsel of its choice,and to settle such Claim at RE:FORM’s sole discretion (unless the settlement requires payment by User or requires User to admit liability), and (iv) reasonably cooperates with RE:FORM in the defense of the Claim.
6.2 Injunctive Relief. If the Software becomes the subject of any actual or anticipated third party infringement claim, RE:FORM may, at its sole option and expense, (i) procure for User the right to continue using the affected Software consistent with this Agreement, (ii) replace or modify the affected Software with functionally equivalent non-infringing software, or, (iii) if either (i) or (ii) is not available on a commercially-feasible basis, terminate the Agreement or applicable Order Form and refund any prepaid fees for all unused portions of the then-current Subscription Period.
6.3 Exclusions. RE:FORM will have no liability for any Claim based upon (a) use of non-current versions of the Software when RE:FORM has made newer, non-infringing versions available to User at no additional charge; (b) altered versions of the Software (unless the specific alteration was made by or for RE:FORM); (c) use, operation or combination of the applicable Software with non-RE:FORM programs, data, equipment or documentation if such infringement would have been avoided but for such use, operation or combination; (d) RE:FORM’s compliance with designs, specifications or instructions provided by User where those designs, specifications or instructions cause the infringement; (e) use by User after notice by RE:FORM to discontinue use of all or a portion of the Software; or (f) third-party open source software. This section constitutes the entire liability of RE:FORM, and User’s sole and exclusive remedy, with respect to any third party claims of infringement or misappropriation of intellectual property rights.
6.4 Indemnification. User will indemnify, defend and hold RE:FORM harmless, at User’s expense, against any third party claim, suit or proceeding resulting from, relating to or arising out of a claim that: (i) based on the negligent acts or willful misconduct of User’s employees or agents, that directly causes damage or bodily injury to persons or property, real or tangible, and such damage or bodily injury directly arises out of performance of this Agreement; or (ii) any claim arising from User’s use and User’s Affiliates’ use of the Software in a manner that is in breach of this Agreement. User’s obligation to indemnify RE:FORM shall include an obligation to pay any costs, including but not limited to reasonable legal fees, expert witness fees, reasonable expenses, damages and other costs incurred by RE:FORM and awarded by a court of competent jurisdiction. The indemnification set forth in this Section 6.4 is subject to the following: (a) RE:FORM shall notify User promptly in writing of any claim or action; (b) User shall have sole control of the defense and all negotiation for any settlement or compromise; provided, however that no such third party claim or action may be settled or compromised by User without the express written consent of RE:FORM unless such settlement or compromise includes a release of all claims against RE:FORM by the party bringing such claim or action; (c) RE:FORM shall have the right at its sole cost and expense to participate in any such legal proceeding with counsel of its own choosing; (d) RE:FORM agrees to reasonably assist User in the defense of the claim.
7. LIMITATION OF LIABILITY AND DISCLAIMER OF DAMAGES.
7.1 Disclaimer of Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR LICENSORS BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO LIABILITY ARISING FROM ITS OBLIGATIONS UNDER SECTION 6 (“INDEMNIFICATION”), IN NO EVENT WILL RE:FORM’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED FIVE THOUSAND DOLLARS (US$5,000). NOTHING IN THIS SECTION 8.1 WILL BE DEEMED TO LIMIT EITHER PARTY’S LIABILITY FOR WILLFUL MISCONDUCT, FRAUD, OR INFRINGEMENT BY ONE PARTY OF THE OTHER’S INTELLECTUAL PROPERTY RIGHTS.HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Limitation of Liability. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.
7.3 Any limitation of liability set forth in this agreement shall not preclude RE:FORM from claiming under any insurance placed or provided pursuant to this agreement up to the full amount payable under such insurance.
8. TERM AND TERMINATION
8.1 Effective Date and Term. This Agreement commences on the Effective Date and will continue for so long as there is an Order Form in effect between the parties.
8.2 Termination for Cause. Either Party may terminate this Agreement immediately upon written notice to the other Party: (a) if the other Party materially breaches or fails to perform or observe any material term or condition of this Agreement (in whole or in part) and such default has not been cured within fifteen (15) days after written notice of such default to the other Party; or (b) if the other Party (i) terminates or suspends or threatens to cease to carry on its business, (ii) becomes subject of or goes into liquidation except for the purposes of a genuine solvent amalgamation or solvent reconstruction , (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise. For the avoidance of doubt, termination of this Agreement will result in the termination of all Subscription Terms but shall not affect any of the Parties’ accrued rights or liabilities and all prepaid fees will be nonrefundable.
8.3 Effect of Termination. All licenses granted to User, and all Support Services obligations of RE:FORM, will end upon the expiration or termination of this Agreement for any reason. Within thirty (30) days after termination, each Recipient shall return or destroy (or in the case of electronic data, use commercially reasonable efforts to delete or render practicably inaccessible by Recipient) all Confidential Information and materials containing any Confidential Information of the Discloser (and, where RE:FORM is the Discloser, all copies of the Software in Recipient’s possession). The User do within eight (8) weeks do make and provide a copy to RE:FORM an affidavit/affirmation by a director verifying that (i) User had uninstalled and deleted or caused to be uninstalled and deleted the Software on premises or in a cloud environment (as the case may be); and (ii) the date from which User had ceased using the Software together with evidence in Support Services thereof.
9. MISCELLANEOUS
9.1 Assignment. Neither party may assign this Agreement without the other party’s prior written consent. Notwithstanding anything contrary to this Agreement, RE:FORM may assign this Agreement to: (i) any RE:FORM Affiliate; or (ii) any entity in connection with a reorganization, merger, consolidation or other transaction involving all or substantially all of the voting securities or assets of RE:FORM, upon written notice to User. Subject to the foregoing limitation on assignment, the Agreement will be binding upon, enforceable by and inure to the benefit of the parties and each of their successors and assigns.
9.2 Compliance with Applicable Laws. Each party will comply with all applicable laws, including without limitation, applicable export-control restrictions, data privacy laws, and anti-corruption laws.
9.3 Future Features and Functions. The development, release, and timing of any additional features or functionality of the Software remains at RE:FORM’s sole discretion. Accordingly, User agrees that it is purchasing products and services based solely upon features and functions that are currently available as of the time an Order Form is executed, and not in expectation of any future feature or function.
9.4 Notices. Notices may be sent by first-class mail or private courier to the address of the receiving party identified on the first page of this Agreement. Notice will be deemed given seventy-two (72) hours after mailing, or upon confirmed delivery by private courier, whichever is sooner. User will address notices to RE:FORM Legal Department, with a copy to legalnotices@RE:FORM.com. Either party may from time to time change its address for notices under this Section upon written notice to the other party.
9.5 Severability/Waiver. If any provision of this Agreement is ruled invalid or unenforceable, the provision will be severable from this Agreement so the remaining provisions are unaffected. No waiver of any rights under this Agreement will constitute a subsequent waiver unless otherwise stated in writing.
9.6 Dispute Resolution. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Hong Kong SAR. Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the eBRAM Arbitration Rules.
9.7 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect. Each party may identify the other as a User or supplier, as applicable
9.8 Force Majeure. Force majeure events shall excuse the affected party (the “Non-Performing Party”) from its obligations under this Agreement so long as the event and its effects continue. Force majeure events include, without limitation, Acts of God, natural disasters, war, riot, network attacks, acts of terrorism, fire, explosion, accident, sabotage, strikes, inability to obtain power, fuel, material or labor, or acts of any government. As soon as feasible, the Non-Performing Party shall notify the other party of (a) its best reasonable assessment of the nature and duration of the force majeure event, and (b) the steps it is taking to mitigate its effects. If the force majeure event prevents performance for more than sixty (60) consecutive days, and the parties have not agreed upon a revised basis for performance, then either party may immediately terminate the Agreement upon written notice.
9.9 US. Government Restricted Rights. If the Software is being licensed by the U.S. Government, the Software is “commercial computer software” and “commercial computer documentation” developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject solely to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
9.10 Entire Agreement. This Agreement, together with the applicable Order Form(s) and statements of work, constitutes the entire agreement between parties, and supersedes all prior or contemporaneous proposals, quotes, negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter.
9.11 Insurance During the term of this Agreement, User warrants that it shall maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement, in particular sufficient insurance coverage with regard to the obligations as set-forth in Sections 6.1 and 7.1 herein and by law. User will issue to RE:FORM evidence of sufficient insurance including copies of applicable Certificates of Insurance within three (3) business days once requested by RE:FORM.
9.12 NEITHER THE EXISTENCE OF NOR THE ASSENT BY USER TO THE TYPES OR LIMITS OF INSURANCE CARRIED BY USER SHALL BE DEEMED A WAIVER OR RELEASE OF USER’S LIABILITY OR RESPONSIBILITIES UNDER THIS AGREEMENT
Appendix 1
(Definitions)
“Affiliate” means with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities. Where Affiliates of the parties conduct business under this Agreement, references to User in this Agreement shall include any applicable Affiliate of User.
“Documentation” means RE:FORM’s published user manual that describes the functionality of the Software, as updated by RE:FORM from time to time.
“License Entitlement” means the applicable license metrics and quantities under which the Software is licensed to User, which may include, without limitation, users, nodes, clusters, clients, requests, services, or workspaces as set forth in an Order Form.
“License Subscription” means the subscription User purchases to use the Software.
“License Subscription Term” means the subscription period(s) specified in an Order Form during which User is licensed to use the Software under this Agreement.
“Order Form” means the purchasing document that details the Software purchased by User, including the applicable pricing and License Entitlements.
“Personal Data” means any information relating to an identified or identifiable natural person (or, to the extent that applicable Data Privacy Laws apply to information about legal persons, an identified or identifiable legal person);
“Support Services” means the maintenance and Support Services provided by RE:FORM to User during the Subscription Term and as subject to the terms of the Service Level Agreement entered into between the parties which form an integral part of this agreement
“Software” means RE:FORM software and other software programs branded by RE:FORM, including updates; Software may include third-party open source software which may be provided therewith, or Community Versions.