This End-User License Agreement (“EULA“), together with the Order Form (defined below), is a legal agreement between the purchasing entity (“Customer” or “Licensee” or “you”) and Macabacus, Inc. (“Licensor” ,”Macabacus“, “our”, or “us”) and sets forth the terms and conditions that govern the Software (defined below), provision, access, and use of all services, products, and platforms offered by Macabacus (collectively, the “Services”).
PLEASE NOTE THAT IF YOU SIGN UP FOR THE SOFTWARE USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, AND (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THIS EULA.
If you are accepting on behalf of your employer or another entity, you represent and warrant that:
(i) you have full legal authority to bind your employer or such entity to this EULA;
(ii) you have read and understand this EULA; and
(iii) you agree to this EULA on behalf of the party that you represent. If you do not have the legal authority to bind your employer or the applicable entity please do not click “I agree” (or similar button or checkbox) that is presented to you.
“Fees” means the license subscription fees (as specified in the Order Form) payable by Licensee to Macabacus for the right to Use the Software.
“Customer Data” means all data or information submitted by Licensee or any of its Permitted Users to the Service.
“Order Form” means an order for a subscription to the Software by entering into an Order Form (as may be amended or modified from time to time) between Customer and Macabacus. An Order Form will be one of the following: (a) a written order form or other agreement (including any exhibits) entered into by Customer and Macabacus; (b) if eligible, Macabacus’s acceptance of Customer’s completion of the online ordering process made available on the Macabacus platform, website, or app (the “Macabacus Site“);
(a) all of the contents of the files, disk(s), or other media with which this EULA is provided, including but not limited to
(i) registration information, i.e., license key which is unique for a registration name of the Licensee;
(ii) related explanatory written materials or files (“Documentation”); and
(iii) Software setup files and code samples (if any); and
(b) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to Licensee by Macabacus.
“Subscription Term” means the period of time, as described in the Order Form, from the subscription start date through the subscription end date.
“Use” or “Using” means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation for Licensee’s internal business purposes and subject to any applicable limitations or restrictions as set forth in the Order Form.
“Permitted User” means all individuals who are employees or contractors of Licensee that Licensee wishes to have access to and engage in the Use of the Software.
“System” means Windows OS, GNU/Linux, or Mac OS X, or any virtual machine.
“Host Application” means any Microsoft Office application with which use of the Software is intended.
2.1 Subject to this EULA and payment of the Fees, Licensee is granted a non-exclusive, non-transferrable license to Use the Software within a Host Application during the term of the subscription Customer purchased for Customer’s internal business use. Licensor reserves the right to, at our sole discretion, modify, change, add, remove, or replace the Services and/or the Macabacus Site, including the features and functionality, at any time with or without notice, provided that no such modification will materially diminish the features or functionality of the Services provided to the Customer as of the effective date of Licensee’s then-current Order Form.
2.2 Macabacus will use commercially reasonable efforts to make the Services available on a consistent basis, excluding any planned downtime (including for updates and maintenance). While Macabacus expects planned downtime to be minimal, during any planned downtime, the Services may not be accessible. Macabacus will provide the Customer with reasonable technical support services as may be necessary to assist the Customer in using the Services.
2.3 Macabacus may, at its sole discretion, offer Customer free or discounted trials or pilots (a “Trial”). All Trials and Order Forms applicable will be subject to this EULA and/or any other terms as Macabacus determines. Macabacus may cancel or modify the terms of a free Trial at any time, without prior notice and without liability. At the end of the designated Trial period, in order to continue using the Software, Customer will be required to subscribe to the Software at Macabacus’s then-current Fees or as mutually agreed upon.
NOTWITHSTANDING THAT REDUCED OR NO FEES MAY BE PAYABLE DURING A TRIAL, THE FULL PRICE OF THE FEES THAT WOULD OTHERWISE BE DUE FOR THE APPLICABLE NUMBER OF TRIAL LICENSES WILL BE DEEMED “FEES PAYABLE” FOR THE PURPOSE OF THE LIMITATIONS OF LIABILITY PROVISIONS OF THIS EULA.
2.4 Suspension of Service. Macabacus reserves the right to suspend the Services, without notice, for a reasonable period of time as may be necessary for (i) Macabacus to resolve any actual or threatened risks that, at Macabacus’s sole discretion, pose a credible risk of harm to the Services or the security or integrity; or (ii) if Customer’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), without liability to Customer, until such amounts are paid in full.
3. Virtual Professional Services; Training. Team training or train-the-trainer sessions, or customization solutions (“Professional Services”) are not included as standard in the Services. Unless otherwise set forth in an Order Form, we will charge for training on a per-hour basis or customization solutions at a fixed fee, at our then current rates and is deemed delivered as it is performed. Further, customization does not include modifications to the Software. All timelines relating to the Professional Services are estimates and conditional upon your timely response and cooperation throughout such process. Changes to Professional Services may result in the use of additional resources, time, materials, and costs. Professional Services are performed subject to your cooperating with us or our Representatives as we indicate for our performance of such Professional Services.
4. Permitted Users
4.1 The Permitted User designated by Customer to administer Customer’s Use of the Software (“Admin”) will have the right to manage Customer’s account and its Permitted Users in accordance with this EULA and will act as an authorized representative of Customer in dealings with Macabacus related to Customer’s account and use of the Software.
4.2 Each Permitted User corresponds to a single user license. Customer will ensure that each Permitted User only uses the Software through its assigned user account. If Customer exceeds the usage authorized by the Order Form (for example, by exceeding the number of Permitted Users), then Macabacus reserves the right to charge and invoice Customer the pro-rata Fees corresponding to such overage.
4.3 Customer may add more Permitted Users during any Subscription Term (“Additional Users”). Macabacus will notify Customer in advance of any pro-rata additional Fees associated with the Additional Users. Customer may be required to modify its existing Order Form or enter into a new Order Form to add Additional Users.
4.4 Macabacus reserves the right to suspend or deactivate a Permitted User if it determines that such license may have been used for an unauthorized purpose.
5. Use of the Service.
5.1 Macabacus Responsibilities. Macabacus shall:
(i) in addition to its confidentiality obligations, not use or modify the Customer Data (except for the purposes of performing its obligations or exercising its rights under this EULA) or disclose the Customer Data to anyone other than Customer and the applicable Permitted Users;
(ii) use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data; and
(iii) provide support to Customer’s Permitted Users, at no additional charge, in accordance with Section 2.2.
5.2 Customer Responsibilities. Customer is responsible for all activities that occur while using the Software during the Subscription Term and for Permitted Users’ compliance with this EULA. Customer shall:
(i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data;
(ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Macabacus promptly of any such unauthorized access or use; and
(iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Services.
5.3 Use Restrictions. Customer (and Customer’s Permitted Users) shall not and shall not permit others to:
(i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software except to the extent that enforcement is prohibited by applicable law;
(ii) license, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Software available to any third party;
(iii) use the Software to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
(iv) use the Software to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including, without limitation, material that is harmful to children or violates third-party privacy or publicity rights;
(v) use the Software to send or store computer program routines, devices, code, instructions, or features (including but not limited to time bombs, viruses, software locks, drop-dead devices, malicious logic, worms, trojan horses, bugs, errors, defects or trap doors) capable of deleting, damaging, disabling, deactivating, interfering with access to, or otherwise harming Software, Host Application or any other user devices, networks, data, or information;
(vi) frame or mirror any content forming part of the Software;
(vii) interfere with or disrupt the integrity or performance of the Software or the data contained, or attempt to gain unauthorized access to the Software or its related systems or networks; or
(viii) initiate competitive analysis or the development or provision of a competing service or product;
5.4 Publicity. The parties may, with prior written consent: (i) issue press releases relating to this EULA; or (ii) include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
6. Fees & Payment.
6.1 Fees. In consideration for the receipt of the Software, Customer shall pay Macabacus the Fees, as specified in an Order Form in accordance with the terms and conditions. The Order Form or a corresponding invoice issued by Macabacus will set forth the payment terms in connection with the Services for the applicable Subscription Term.
6.2 Invoicing & Payment. Customer shall have the option to purchase the Services by credit card or automated clearing house (“ACH”) and Customer shall be invoiced for the Services. Unless otherwise stated in an Order Form, the Fees for the Services will be invoiced not more than thirty (30) days in advance of the Initial Term and any Renewal Term, as applicable. Further, unless otherwise stated in an invoice, purchases for the Services by credit card are due upon receipt of invoice. Purchases for the Services by ACH are due thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with CFI.
6.3 Taxes. Unless otherwise stated, Macabacus’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including, without limitation, value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Macabacus’s net income or property. If Macabacus has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Macabacus with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. Proprietary Rights.
7.1 Ownership of Services. Subject to the limited rights expressly granted, Licensor owns all rights in the Software and Services, including all related Intellectual Property Rights (defined below). Except for the limited license expressly provided in Section 2.1, nothing shall be interpreted to transmit any rights in the Software and the Licensee will not have any intellectual property or proprietary rights in and to the Software. “Intellectual Property Rights” means all intellectual property and proprietary rights, whether registered or unregistered (and all renewals and extensions), in and to all forms of intellectual property and/or proprietary materials, in any and all media now known or later devised, including all works of authorship, trade secrets, source code, and moral rights (where applicable), together with all copyright, trademark, patent, and other rights.
7.3 Suggestions. Macabacus shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Permitted Users relating to the operation of the Service.
8.1 Confidential Information. “Confidential Information” means all non-public knowledge or information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential, proprietary or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this EULA, the Customer Data, the Services, business and marketing plans, technology and technical information, product designs, and business processes.
8.2 Exclusions. Confidential Information shall not include any information that:
(i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
(iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or
(iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
8.3 Non-Disclosure. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this EULA, except with the Disclosing Party’s prior written permission. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
8.4 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). The Receiving Party will promptly advise the Disclosing Party if the Receiving Party learns of any unauthorized use or disclosure of any Confidential Information. At the Disclosing Party’s written request, the Receiving Party will, to the extent technically possible, return, delete, or destroy (as requested) the Disclosing Party’s Confidential Information in its possession, except if and to the extent the Receiving Party is required by applicable law to retain any specific Confidential Information.
8.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
9. Warranties & Disclaimers
9.1 Warranties. Each party, and individuals on behalf of their respective parties, represent and warrant that it has the legal power to enter into this EULA. Macabacus represents and warrants that (i) it will provide the Software in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) the Software will substantially conform to the specifications set forth in the Order Form and this EULA. For any uncured breach by Macabacus of the warranties in this Section, the Customer’s exclusive remedy will be to terminate this EULA for cause in accordance with Section 12.2.
9.2 Disclaimer. EXCEPT AS SET FORTH IN SECTION 9.1, LICENSEE AGREES THAT MACABACUS HAS MADE NO EXPRESS WARRANTIES TO LICENSEE REGARDING THE SOFTWARE AND THAT THE SOFTWARE IS BEING PROVIDED TO LICENSEE “AS IS” WITHOUT WARRANTY OF ANY KIND. MACABACUS DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, OR NONINFRINGEMENT OF THIRD-PARTY RIGHTS.
10. Mutual Indemnification
10.1 Indemnification by Licensor. Subject to this EULA, Licensor shall defend, indemnify and hold Licensee harmless against any loss, damage, or costs (including reasonable attorneys’ fees) in any third party actions, lawsuits, or proceedings made or brought against Licensee alleging that the use of the Software as contemplated infringes on such third party’s Intellectual Property Rights (“IP Claims”).
10.2 Mitigation. If: (i) Licensor becomes aware of an actual or potential IP Claim, or (ii) Licensee provides Licensor with notice of an actual or potential IP Claim, Licensor may (or, in the case of an injunction against Licensee, shall), at Licensor’s sole option and determination:
(a) procure for Licensee the right to continue to use the Software;
(b) replace or modify the Software with equivalent or better functionality so that Licensee’s use is no longer infringing; or
(c) if (a) or (b) are not commercially reasonable, terminate provision of the Software and refund to Licensee any pre-paid Service fees for any periods after the termination of the Software, less any outstanding monies owed by Licensee to Licensor.
10.3 Exclusions. The obligations in Sections 10.1 and 10.2 do not extend to:
(i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Software furnished by Licensor with other products, software, or services not provided by Licensor;
(ii) any IP Claim related to any Customer Data; or
(iii) any IP Claim related to any use or exercise of any other right in respect to the Software outside the scope of the rights granted in this EULA.
10.4 Indemnification by Customer. Subject to this EULA, Customer shall defend, indemnify and hold Macabacus harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred, directly or indirectly, from or in connection with any actions, lawsuits, or proceedings made or brought against Macabacus by a third party for Customer’s breach of Section 5.3 (Use Restrictions) or alleges that Customer Data, or Customer’s use of the Software in violation of this EULA, infringes on the intellectual property rights of, or has otherwise harmed, a third party (“Customer Claims”).
10.5 Indemnification Procedures. The party seeking indemnity or defense (“Indemnified Party”) will provide written notice to the party from which indemnity is sought (“Indemnifying Party”) of the existence of any claim as soon as practicable after becoming aware of the claim; provided, however, that the Indemnified Party’s failure to give timely notice of such claim will not relieve the Indemnifying Party of its indemnification obligations unless such failure actually prejudiced the Indemnifying Party. At the Indemnifying Party’s sole expense, the Indemnifying Party will be entitled to assume and control the defense of the claim and the Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of the claim. The Indemnifying Party will have the right to settle such claim at its sole discretion, provided that, without the Indemnified Party’s prior written consent (not to be unreasonably withheld or delayed), the settlement is purely monetary, does not require the Indemnified Party to make a monetary payment, and provides an unconditional release of the Indemnified Party with respect to such claim.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, INTERRUPTION TO BUSINESS, LOSS OF INFORMATION OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SUPPLY TO OR LICENSEE’S USE OF OR INABILITY TO USE THE SOFTWARE, WHETHER OR NOT LICENSOR HAS BEEN INFORMED OF THE POSSIBILITY OF THE SAME, AND WHETHER STYLED AS A CLAIM IN CONTRACT, TORT OR OTHER LEGAL THEORY.
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS EULA, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF: (I) $100,000; OR (II) THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
THE FOREGOING LIMITATIONS SHALL NOT APPLY TO CUSTOMER’S BREACH OF SECTION 5.3
12. Term & Termination.
12.1 Term of Agreement. This EULA shall commence as of the Effective Date and, unless earlier terminated in accordance with its terms, shall continue in effect for the initial term set out in the Order Form (the “Initial Term”). Unless otherwise specified in an applicable Order Form, the Subscription Term will automatically renew for successive one-year periods (each, a “Renewal Term”) except if a party provides the other party with written notice of its intention not to renew not less than 60 days prior to the end of the Initial Term or the then-current Renewal Term. The Initial Term and any subsequent Renewal Terms shall constitute the “Term” of this EULA. Notwithstanding the above, the EULA shall expire within ninety (90) days if there is no active Order Form.
12.2 Termination for Cause. A party may terminate this EULA for cause: (i) upon thirty (30) days written notice of a material breach to the other party and such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and is unable to continue performance of their respective responsibilities. Upon any termination for cause by Customer, Macabacus shall refund Customer any prepaid fees for any periods after the effective date of termination of the EULA.
13. General Provisions.
13.1 Relationship of the Parties. The parties are independent contractors. This EULA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this EULA.
13.3 Notices. All notices under this EULA shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the second business day after sending by email. Notices to Macabacus shall be addressed to the attention of the Legal Department at [email protected]. Notices to Customer shall be addressed to Customer’s signatory of this EULA unless otherwise designated in an Order Form.
13.4 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Macabacus prior to the effective date of termination.
13.5 Surviving Provisions. The following provisions shall survive any termination or expiration of this EULA: Sections 6 through 12.
13.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this EULA shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.7 Severability. If any provision of this EULA is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this EULA shall remain in effect.
13.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this EULA in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. Any attempt by a party to assign its rights or obligations under this EULA in breach of this section shall be void and of no effect. Subject to the foregoing, this EULA shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.9 Governing Law. Unless otherwise stated in an Order Form, this EULA shall be governed by the laws in the State of New York, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this EULA. The application of the United Nations Convention on Contracts for the International Sale of Goods to this EULA is expressly excluded.
13.10 Venue; Waiver of Jury Trial. The courts located in New York City, New York, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this EULA. Each party consents to the exclusive jurisdiction of such courts. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this EULA.
13.11 Force Majeure. Neither party shall be responsible for its failure to perform its obligations under this EULA to the extent due to unforeseen circumstances or causes beyond its control, including, without limitation, acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason and uses reasonable efforts to limit the resulting delay in its performance.
13.12 Export. Customer acknowledges and agrees that the Software may be subject to export and import controls under the regulations of the United States and other countries, and Customer shall comply with all export and import control regulations of such countries. Customer shall be responsible for procuring all required permissions for any subsequent export, import or use of the Software.
13.13 Entire Agreement. This EULA constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions of this EULA and any Order Form, the terms such Order Form shall prevail. Further, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this EULA, and all such terms or conditions shall be null and void.