IMPORTANT NOTICE: PLEASE READ THIS END-USER
LICENSE AGREEMENT (EULA) CAREFULLY
BY CLICKING “I AGREE”, DOWNLOADING, ACCESSING, INSTALLING, RUNNING OR USING CALCTOPIA SOFTWARE (“SOFTWARE”), SERVICES AND DOCUMENTATION, YOU (EITHER ON BEHALF OF YOURSELF AS AN INDIVIDUAL OR ON BEHALF OF AN ENTITY AS ITS AUTHORIZED REPRESENTATIVE, IN WHICH CASE THE ENTITY TAKES ON ALL RESPONSIBILITIES AND LIABILITIES AS THE LICENSEE UNDER THIS EULA) AGREE (I) THAT THIS EULA IS A LEGALLY BINDING AND VALID AGREEMENT, (II) TO ABIDE BY THE TERMS AND CONDITIONS OF THIS EULA; (III) TO TAKE ALL NECESSARY STEPS TO ENSURE THAT THE TERMS AND CONDITIONS OF THIS EULA ARE NOT VIOLATED BY ANY PERSON OR ENTITY UNDER YOUR CONTROL OR IN YOUR SERVICE; (IV) IF ANY PART OF THIS EULA IS HELD UNENFORCEABLE, THE VALIDITY OF ALL REMAING PARTS WILL NOT BE AFFECTED. IF YOU ARE USING THE SOFTWARE AND/OR SERVICES ON BEHALF OF AN ORGANIZATION, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS EULA FOR THAT ORGANIZATION AND PROMISING THAT YOU HAVE THE AUTHORITY TO BIND THAT ORGANIZATION TO THESE TERMS. IN THAT CASE, “YOU” AND “YOUR” ALSO REFERS TO THAT ORGANIZATION. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT CLICK “I AGREE”, DOWNLOAD, ACCESS, INSTALL, RUN OR USE THE SOFTWARE AND/OR SERVICES. THIS EULA CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY AND EXCLUSIVE REMEDIES. THE PROVISIONS BELOW FORM THE ESSENTIAL BASIS OF OUR AGREEMENT.
The Software is licensed, not sold. This EULA is a legal agreement between You and Calctopia, including any affiliates and contractors acting on Our behalf (collectively “Calctopia”, “Us”, “We”, or “Our”) regarding Your use of the Software. Unless You have a separate written agreement with Calctopia regarding the Software, then Your use of the Software is governed by this EULA.
NOTIFICATION OF CHANGES TO THIS EULA
Calctopia may make changes to this EULA from time to time. When we decide to do so, we will post those changes in the EULA accessible via our website (www.calctopia.com/eula/) and in the EULA file packaged with any Calctopia software download. You must agree to the revised EULA in order to proceed with any software update. If you do not wish to agree with the revised EULA and proceed with the software update, you may continue to use the existing version of the software or uninstall the software.
If you object to any change we make to this EULA, you may terminate this agreement and cease use of the software. Please note, though, that your use of the software after notice of changes to this EULA will constitute your acceptance of the changes to the EULA.
SOFTWARE LICENSE GRANT
Calctopia, subject to the terms and conditions of this Agreement, hereby grants you a non-exclusive, non-assignable, non-transferable, non-sublicensable, revocable, limited right and license to use each Software you purchase or otherwise properly acquire, in each case during the applicable Term for the Permitted Uses in accordance with the Applicable Conditions. The rights granted herein are subject to your compliance with this EULA. The Software is being licensed to you and you hereby acknowledge that no title or ownership in the Software is being transferred or assigned and this EULA is not to be construed as a sale of any rights in the Software. You may copy the Software and Documentation as necessary to install and run the quantity of copies licensed, but otherwise for archival purposes only.
SERVICE LICENSE GRANT
Calctopia, subject to the terms and conditions of this Agreement, hereby grants you a non-exclusive, non-assignable, non-transferable, non-sublicensable, revocable, limited right and license to use the each Service you purchase or otherwise properly acquire, in each case during the applicable Term for the Permitted Uses in accordance with the Applicable Conditions. The rights granted herein are subject to your compliance with this EULA.
If You are licensing the Software for evaluation purposes, Your use of the Software is only permitted in a non-production environment and for a limited period. Notwithstanding any other provision in this EULA, an Evaluation License of the Software is provided “AS-IS” without indemnification, support or warranty of any kind, expressed or implied.
The term of your licenses under this EULA shall commence on the date that you accept this EULA and install or otherwise use the Software and/or Services and ends on the earlier date of either your disposal of the Software and/or Services, Calctopia’s termination of this EULA or the date of the end of the contracted period.
LICENSE TERM EXTENSIONS
At the end of any Term, it may be extended for successive terms (each, an “Extension Term”) in accordance Section. If, under the Applicable Conditions for a given Software and/or Service, the Term automatically extends for an additional month, year or a similar consecutive time period, Calctopia will charge your credit or debit card within a reasonable time prior to the end of the then-current Term for the then-current extension fee (which may be higher than the price you initially paid) and, on receipt of payment, will extend the Term for the applicable Extension Term. You may also cancel your subscription at any time during the Term: canceling your subscription will stop recurring fees going forward, but will not retroactively refund current payments, and you will retain access to your paid-for Software and/or Services until the end of the then-current Term.
PRE-COMMERCIAL RELEASE, ALPHA OR BETA SOFTWARE LICENSES
If the Software You have received with this EULA is a pre-commercial release, alpha or a beta version, then You understand the Software (i) is the Confidential Information of Calctopia, its licensors and suppliers, and (ii) does not represent a final product of Calctopia. You have no right to (i) modify, enhance, adapt, alter, translate, or create derivative works of such Software; (ii) merge or wrap the Software with other software; (iii) sublicense, lease, rent, loan, sell, export, or otherwise transfer or distribute the Software to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; or (v) otherwise use or copy the Software. The Software may contain bugs, errors and other problems that could cause computer system failures and data loss. THEREFORE, ALL PRE-RELEASE, ALPHA OR BETA SOFTWARE IS PROVIDED ON AN “AS-IS” BASIS AND CALCTOPIA DISCLAIMS ANY AND ALL WARRANTIES OR LIABILITY TO YOU OF ANY KIND.
PERMITTED USE OF THE SOFTWARE
You may install and use the Software and/or Services on up to the agreed number of computers indicated in the Documentation or other transaction materials made available to you at the time you purchase the Software (the “Permitted Number of Computers”). The Software and/or Services must be used exclusively by you or your subsidiaries (those entities over which you have more than fifty percent (50%) ownership and control) for internal purposes that do not contravene this Agreement or applicable law. In the event of any such use of the Software by your subsidiaries, you will ensure and be liable for your subsidiaries’ compliance with all obligations imposed on you hereunder. Any obligations of Calctopia in respect of the Software shall be owed solely to you and not your subsidiaries that use the Software under this license.
Each licensee must provide a business and/or personal email account to access the Software and/or Services. Each license is personal and nontransferable to any other users of the same company or its subsidiaries, limited to the owner of said email address. You will not, and will not permit any third party to, (i) username/password combination, third-party email address or other authorization code or number supplied by Calctopia in connection with any Software and/or Service, (ii) username/password combination, third-party email address or other authorization code or number to any party other than Calctopia or Calctopia designated representatives.
Provided the Software is configured for network use, you may install and use the Software on one or more file servers for use on a single local area network for only one (but not both) of the following purposes:
either permanent installation of the Software onto a hard disk or other storage device for up to the Permitted Number of Computers, or
use of the Software over such single local area network, provided the number of different computers on which the Software is used does not exceed the Permitted Number of Computers.
The Calctopia Services may require an Internet connection to access the Calctopia Services or its Internet-based features, authenticate the Software, or perform other functions. In order for certain features of the Calctopia Services to operate properly, you may be required to have and maintain (a) an adequate Internet connection and/or (b) a valid and active account with an online service as set forth in the documentation related to Calctopia Services. By using the Calctopia Services, you acknowledge and agree that third party data transfer fees may apply depending on your data plan. Please consult your carrier for further information. If you do not maintain such accounts, then the Calctopia Services or certain features of the Calctopia Services may not operate or may cease to function properly, either in whole or in part.
ANY USE OF THE SOFTWARE OTHER THAN AS EXPRESSLY AUTHORIZED BY THIS SECTION OR ANY RESALE OR FURTHER DISTRIBUTION OF THE SOFTWARE CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT AND MAY VIOLATE APPLICABLE COPYRIGHT LAWS.
Without Calctopia’s prior written consent, You must not, and must not allow any third party to: (a) disclose to any third party the results of any benchmarking testing or comparative or competitive analyses of Calctopia’s Software done by or on behalf of You, except as specified in Section (Benchmarking); (b) make available Software and/or Services in any form to anyone other than Your employees or contractors reasonably acceptable to Calctopia and require access to use Software and or Services on behalf of You in a matter permitted by this EULA; (c) distribute, lease, sell, rent, lend, convey, assign, transfer or sublicense Software, Services or Documentation to an Affiliate or any third party, neither permit third parties to benefit from the use or functionality of the Software and/or Services via a timesharing, service bureau, subscription service, application service provider or other similar arrangements; (d) use Software in conflict with the terms and restrictions of the Software’s licensing model and other requirements specified in Product Guide and/or Calctopia quote; (e) except to the extent permitted by applicable mandatory law, modify, adapt, translate, enhance, or create derivative works from the Software, or reverse engineer, decompile, disassemble or otherwise attempt to derive source code from the Software or algorithms contained therein, except as specified in Section (Decompilation); (f) remove any copyright or other proprietary notices on or in any copies of Software; (g) defeat, violate or circumvent; attempt to defeat, violate or circumvent; authorize or assist any third party in defeating, violating or circumventing any technological restrictions within the Software or specified in this EULA, such as via software or services; or (h) you may not remove, obscure or modify any proprietary notices, marks or labels on the Software.
Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of the Territory give you the express right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, you must first request such information from Calctopia, provide all reasonably requested information to allow Calctopia to assess your claim, and Calctopia may, in its discretion, either provide such interoperability information to you, impose reasonable conditions, including a reasonable fee, on such use of the Software, or offer to provide alternatives to ensure that Calctopia’s proprietary rights in the Software are protected and to reduce any adverse impact on Calctopia’s proprietary rights.
Calctopia does not provide any support services for the Software under this EULA. You have no rights to any support unless you separately purchase Calctopia Support Services. These support services are subject to the Support Services Terms.
UPGRADES AND UPDATES
Upgrades and updates of the Software and/or Services shall be provided to you by Calctopia during the term of the license indicated in the Documentation or other transaction materials made available to you at the time you purchase the Software and/or Services.
You will not be entitled to receive any feature or content updates or upgrades of the Software and/or Services unless you renew the license for a new Period or purchase a new subscription.
You may not rent, lease, sub-license, or lend the Software, Services or the Documentation or any portions thereof. You may not transfer or assign the license herein or any of your obligations in this Agreement, in whole or in part, without Calctopia’s prior written consent.
Each license is personal and nontransferable to any other users of the same company or its subsidiaries, limited to the owner of the email address.
The Software and Documentation, all copies and portions thereof, and all improvements, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein, are and shall remain the sole and exclusive property of Calctopia and its licensors. The structure, organization and code of the Software and/or Services are valuable trade secrets and confidential information of Calctopia. Your rights to use the Software, Services and Documentation shall be limited to those expressly granted in this EULA and any applicable Order. No other rights with respect to the Software or any related Intellectual Property Rights are implied. You are not authorized to use (and shall not permit any third party to use) the Software, Services Documentation or any portion thereof except as expressly authorized by this EULA or the applicable Order. Calctopia reserves all rights not expressly granted to You, including all associated copyrights, patents, trade secret rights, computer codes, trademarks and other intellectual property rights. Calctopia does not transfer any ownership rights in any Software.
If You purchase or download the Software in China, Cuba, Guyana, Moldova, Nepal, Laos or Vietnam, You may not copy the Software or printed materials accompanying the Software for any purpose.
Calctopia warrants to You that the Software will, for a period of ninety (90) days following notice of availability for electronic download or delivery (“Warranty Period”), substantially conform to the applicable Documentation, provided that the Software: (a) has been properly installed and used at all times in accordance with the applicable Documentation; and (b) has not been modified, abused or added to by persons other than Calctopia or its authorized representative. Calctopia will, at its own expense and as its sole obligation and Your exclusive remedy for any breach of this warranty, either replace that Software or correct any reproducible error in that Software reported to Calctopia by You in writing during the Warranty Period. If Calctopia determines that it is unable to correct the error or replace the Software, Calctopia will refund to You the amount paid by You for that Software, in which case the License for that Software will terminate.
DISCLAIMER OF WARRANTY
OTHER THAN THE WARRANTY ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CALCTOPIA SOFTWARE AND/OR SERVICES ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE”, AND CALCTOPIA AND ITS SUPPLIERS MAKE NO OTHER EXPRESS WARRANTIES UNDER THIS EULA, AND DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COMMON LAW, JURISPRUDENCE, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. CALCTOPIA AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR THAT IT WILL SATISFY YOUR PERFORMANCE REQUIREMENT OR THAT IT WILL BE FREE FROM DEFECTS OR THAT IT WILL MEET YOUR REQUIREMENTS. NO ORAL OR WRITTEN ADVICE PROVIDED BY CALCTOPIA, CALCTOPIA’S LICENSORS, CALCTOPIA’S SUPPLIERS OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
LIMITATION OF LIABILITIES
TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL CALCTOPIA AND ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF SAVINGS, LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS INTERRUPTION, LOSS OF DATA, COSTS OF PROCURING SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, OTHER INTANGIBLE LOSSES OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. CALCTOPIA’S AND ITS LICENSORS’ LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED THE GREATER OF THE LICENSE FEES YOU PAID FOR THE SOFTWARE GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER CALCTOPIA OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. CALCTOPIA’S LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS EULA. YOU MAY NOT BRING A CLAIM UNDER THIS EULA MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ARISES.
NO LIABILITY FOR OPEN SOURCE MATERIALS
THE SOFTWARE CONTAINS “OPEN SOURCE” MATERIALS (E.G., ANY SOFTWARE SUBJECT TO OPEN SOURCE, COPYLEFT, GNU GENERAL PUBLIC LICENSE, LIBRARY GENERAL PUBLIC LICENSE, LESSER GENERAL PUBLIC LICENSE, MOZILLA LICENSE, BERKELEY SOFTWARE DISTRIBUTION LICENSE, OPEN SOURCE INITIATIVE LICENSE, MIT, APACHE OR PUBLIC DOMAIN LICENSES, OR SIMILAR LICENSE). CALCTOPIA MAKES NO WARRANTIES, AND SHALL HAVE NO LIABILITY, DIRECT OR INDIRECT, WHATSOEVER WITH RESPECT TO OPEN SOURCE MATERIALS CONTAINED IN THE SOFTWARE.
THESE OPEN SOURCE SOFTWARE LICENSES CONSTITUTE SEPARATE WRITTEN AGREEMENTS. TO THE LIMITED EXTENT THAT THESE OPEN SOURCE LICENSES EXPRESSLY SUPERSEDE THE PRESENT EULA, THE OPEN SOURCE LICENSES GOVERN YOUR AGREEMENT WITH CALCTOPIA FOR THE USE OF CALCTOPIA SOFTWARE AND SERVICES.
Calctopia, in addition to such other rights as may be available at law, in equity or otherwise, may terminate your license to any or all Software and/or Services without liability (i) for convenience on five (5) days’ prior notice, provided that Calctopia, in its sole discretion, shall for paid Software and/or Services, either (a) refund to you the fees you paid to Calctopia in respect of the unexpired portion of the applicable Subscription Term, pro-rated over the applicable Subscription Term, or (b) grant a license for a substantially similar product for the remainder of the Subscription Term, or (ii) for cause at any time without notice.
TERMINATION FOR BREACH
Calctopia may terminate this EULA effective immediately upon written notice to You if: (a) You fail to pay any portion of the fees under an applicable Order within ten (10) days after receiving written notice from Calctopia that payment is past due; or (b) You breach any other provision of this EULA and fail to cure within thirty (30) days after receipt of Calctopia’s written notice thereof.
TERMINATION FOR INSOLVENCY
Calctopia may terminate this EULA effective immediately upon written notice to You if You: (a) terminate or suspend your business; (b) become insolvent, admit in writing Your inability to pay Your debts as they mature, make an assignment for the benefit of creditors; or become subject to control of a trustee, receiver or similar authority; or (c) become subject to any bankruptcy or insolvency proceeding.
EFFECTS OF TERMINATION
Upon Calctopia’s termination of this EULA: (a) all Licensed rights to all Software and/or Services granted to You under this EULA will immediately cease; and (b) You must cease all use of all Software and/or Services, and return or certify destruction of all Software to Calctopia, and return, or if requested by Calctopia, destroy, any related Calctopia Confidential Information in Your possession or control and certify in writing to Calctopia that You have fully complied with these requirements. Any provision will survive any termination or expiration if by its nature and context it is intended to survive, including Sections (License Restrictions), (No Liability for Open Source Materials), (Ownership), (Records and Audit), (Disclaimer of Warranty), (Limitation of Liability), (General Termination; and it subsections), (Binding Arbitration Agreement and Class Action Waiver), (Decompilation), (Benchmarking), (Data Privacy), (U.S. Government Restricted Rights), (Microsoft Restricted Rights), (Indemnity).
BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
This Binding Arbitration Agreement and Class Action Waiver applies to any Dispute arising from or
related to a Solution or this Agreement and involving you and Calctopia and/or its Subsidiaries. “Dispute,” for purposes of this Section, means any dispute, action, or other controversy regardless of the particular cause of action(s) asserted (i.e., it encompasses, among any other potential cause of action or legal basis, claims for breach of contract, fraud, and violation of statute or regulation).
In the event of a Dispute, you must provide Calctopia with a notice of Dispute, which is a written statement of the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested. You must send any Notice of Dispute by email to Calctopia at [email protected] (stating Subject: Notice of Dispute Under EULA).
CLASS ACTION WAIVER
ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. YOU WILL NOT SEEK TO HAVE ANY
DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
AGREEMENT TO ARBITRATE
If you and Calctopia do not resolve any Dispute by informal negotiation, any other effort to resolve the Dispute will be conducted exclusively by binding arbitration governed by the Spanish Law of Arbitration (11/2011) or by the Irish Arbitration Act 2010, except as provided in the following “Exceptions to Agreement to Arbitrate” below. Except as provided in the next section, you are giving up the right to litigate (or participate in litigation as a party or class member) all Disputes in court before a judge or jury. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right to judicial review. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
EXCEPTIONS TO AGREEMENT TO ARBITRATE
SMALL CLAIMS COURT. You may litigate any Dispute in small claims court, in the county or other similar political subdivision in which you reside, if the Dispute meets all requirements to be heard in the small claims court. If you initiate a claim in small claims court, you are responsible for all court costs and fees.
INTELLECTUAL PROPERTY. All Disputes concerning any alleged misappropriation of your or Calctopia’s intellectual property, including any Disputes concerning Ownership Section of this Agreement, will be resolved in court (except for Microsoft, see Microsoft Restricted Rights).
If one or more parts of the Section “Binding Arbitration Agreement and Class Action Waiver” are found to be illegal, invalid or unenforceable as to all or some parts of a Dispute, then, and only in that circumstance, those parts will be severed and the Dispute will be resolved subject to all remaining parts of Section “Binding Arbitration Agreement and Class Action Waiver” and all other provisions of this Agreement. If such severance results in all or some parts of a Dispute proceeding in a court of law, exclusive jurisdiction for any such court proceeding shall be the courts sitting in the Madrid or Dublin, depending on where the offices of Calctopia are located . For purposes of any such court proceeding, you consent to, and will not challenge, the Madrid or Dublin courts’ personal jurisdiction over you, and you further waive objection based upon improper venue or forum non conveniens and will not seek transfer to another district or jurisdiction.
You may use the Software to conduct internal performance testing and benchmarking studies. You may only publish or otherwise distribute the results of such studies to third parties as follows: (a) only if You provide a copy of Your study to Calctopia prior to distribution; (b) only if Calctopia has reviewed and approved of the methodology, assumptions and other parameters of the study prior to such publication and distribution.
RECORDS AND AUDIT
During the License Term for Software and for two (2) years after its expiration or termination, You will maintain accurate records of Your use of the Software sufficient to show compliance with the terms of this EULA. During this period, Calctopia will have the right to audit Your use of the Software to confirm compliance with the terms of this EULA. That audit is subject to reasonable notice by Calctopia and will not unreasonably interfere with Your business activities. Calctopia may conduct no more than one (1) audit in any twelve (12) month period, and only during normal business hours. You will reasonably cooperate with Calctopia and any third party auditor and will, without prejudice to other rights of Calctopia, address any non-compliance identified by the audit by promptly paying additional fees. You will promptly reimburse Calctopia for all reasonable costs of the audit if the audit reveals either underpayment of more than five (5%) percent of the Software fees payable by You for the period audited, or that You have materially failed to maintain accurate records of Software use.
You agree that Calctopia may process technical and related information about Your use of the Software which may include Internet protocol address, hardware identification, operating system, application software and non-personally identifiable Software usage statistics to facilitate the provisioning of updates, support, invoicing or online services and may transfer such information to other companies in the Calctopia worldwide group of companies from time to time. To the extent that this information constitutes personal data, Calctopia shall be the controller of such personal data. To the extent that it acts as a controller, each party shall comply at all times with its obligations under applicable data protection legislation.
U.S. GOVERMENT RESTRICTED RIGHTS
This Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, and subject to certain restricted rights as identified in FAR Section 52.227-19 “Commercial Computer Software – Restricted Rights” and DFARS 227.7202, “Rights in Commercial Computer Software or Commercial Computer Software Documentation”, as applicable, or any successor U.S. regulations. The Software and Documentation was developed entirely at private expense, and no part of the Software was first produced in the performance of a Government contract. Any use, modification, reproduction, release, performance, display or disclosure of the Software by the U.S. Government shall be done solely in accordance with this Agreement.
MICROSOFT RESTRICTED RIGHTS
By the acceptance of the present EULA, Microsoft Corporation and its subsidiaries, including Microsoft Licensing GP (collectively “Microsoft”), agree in perpetuity not to pursue any legal claim against Calctopia and/or any of its Subsidiaries, Calctopia’s Customers and/or Calctopia’s Subsidiaries’ Customers regarding infringement of any Intellectual Property Rights (eg. patent, trade secrets, copyrights, trademarks, know-how, computer codes, application programming interfaces), including all of their possible rights, whether at law or in equity. This extendible, assignable and transferable covenant shall be binding upon, and inure to, the benefit of Calctopia and/or any of its Subsidiaries, their successors, assigns and executors, administrators and personal representatives.
Microsoft agrees not to interfere with any patenting activity of Calctopia with respect to its Patents, meaning any and all patents, utility models, patent registrations, and equivalent rights (including, without limitation, originals, divisionals, provisionals, results of reexamination, continuations, continuations-in-part, extensions or reissues), and applications for the foregoing, in all countries of the world, and any other procedure or formality with respect to the aforesaid that can result in an enforceable patent right anywhere worldwide. In particular, Microsoft agrees to:
1. Not to challenge the validity of Calctopia’s Patents, nor assist or request any third party to: (i) contest the legality, validity or enforceability of any of Calctopia’s Patents or Calctopia’s ownership of them (ii) request reexamination, or assist or request any third party to request reexamination of any of Calctopia’s Patents (iii) assert patent exhaustion or any other theory by which the covenant not to sue granted herein extends immunity from suit for infringement of a Calctopia Patent to any third party, or (iv) request any kind of administrative actions regarding Calctopia’s Patents, including PTAB reviews and equivalents.
2. Not to bring suit, or assist others in bringing suit to challenge Calctopia’s position on exhaustion or implied license issues as to Calctopia’s Patents.
3. Not to assist others with arguments of invalidity, exhaustion or implied license, or other defenses of any type to Calctopia’s Patents.
4. Not to bring, assist in bringing or participate in any litigation asserting that this Agreement precludes Calctopia from pursuing license agreements with other computer system vendors for Calctopia’s patents.
5. Microsoft acknowledges and agrees that Calctopia expects to continue research and development that will result in ownership or control of additional Patents and therefore covenants will be extended to such additional Patents. Microsoft also acknowledges and agrees that Calctopia may acquire additional Patents from third parties and/or obtains the ability or right to grant a covenant not to sue or other freedom from suit from Microsoft, and therefore covenants will be extended to them.
6. Microsoft acknowledges and agrees that if a Subsidiary is acquired or formed by (or an entity otherwise becomes a Subsidiary of) Calctopia, or a product line is acquired (whether through ownership, exclusive license or other transfer) by Calctopia, covenants shall extend to such Subsidiary, and/or Customers of such Subsidiary or product line, but effective only as of the date of the acquisition or formation (or the entity’s otherwise becoming a Subsidiary). Furthermore,
7. If a Calctopia’s Subsidiary ceases to be a Subsidiary and such Subsidiary holds (at or before the time it ceases to be a Subsidiary) any Patents which Microsoft agreed not to pursue any legal claim, the covenants shall continue as to such Patents as if the Subsidiary had continued to be a Subsidiary. Et vice versa, of a Microsoft’s Subsidiary ceases to be a Subsidiary and such Subsidiary holds (at or before the time it ceases to be a Subsidiary) any Patents under which Calctopia, Calctopia’s Customers, Calctopia’s Subsidiaries and/or Calctopia’s Subsidiaries Customers are provided covenants, the covenants shall continue as to such Patents as if the Subsidiary had continued to be a Subsidiary.
You agree to indemnify, defend and hold Calctopia, its partners, affiliates, contractors, officers, directors, employees and agents harmless from and against any and all damages, losses and expenses, including reasonable attorney’s fees, arising directly or indirectly from: (i) your acts and omissions to act in using the Calctopia Services pursuant to the terms of the EULA; or (ii) your breach of this EULA. Calctopia reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with Calctopia in asserting any available defenses.
You agree and accept that the Software and the Documentation may be subject to import and export laws of any country, including those of the European Union and the United States (specifically the Export Administration Regulations (EAR)). If you export the Software, you agree to and acknowledge that you are exclusively responsible for complying with all applicable laws and regulations, including but not limited to all European Union and United States trade sanctions and export regulations (including any activities relating to nuclear, chemical or biological materials or weapons, missiles or technology capable of mass destruction), regardless of the country in which you reside in or of which you are a citizen.
GOVERNING LAW AND JURISDICTION
The laws of Ireland, govern this Agreement and your use of the Software, Services and the Documentation. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The courts located within Dublin shall be the exclusive jurisdiction and venue for any dispute or legal matter arising out of or in connection with this Agreement or your use of the Software, Services and the Documentation. Notwithstanding this, you agree that Calctopia shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.