END-USER LICENSE AGREEMENT (EULA)

Version: EULA-20190327
Effective date: March 27th, 2019

This End-User License Agreement  (“EULA”)  states the terms and conditions between you (from here on out referred to as the “Licensee,” an individual or an entity and its affiliates) and PTIGlobal (from here on out referred to as the “Licensor”), to use the Software. This End-User License Agreement is effective from the date when the Licensee receives the Software or receives access to the Software either through the Licensor, a third-party app-market or approved distributor. Any amendments or addendums to this EULA may be distributed along with the Software, and in such case the terms of any such ammendments or addendums shall be considered part of the EULA, and shall prevail over the EULA in the case any of its terms contradict the original document.

By installing, copying, downloading or using the Software, or by clicking a box indicating your acceptance of our EULA (if such is the case), you agree to be bound by the terms of this EULA as the  Licensee.   If you are entering into this agreement on behalf of an entity, by copying, installing, downloading or using the Software, you represent and warrant that you have the authority to bind such entity to the terms and conditions as laid out in this EULA and are agreeing to the EULA on its behalf.

Licensee further agrees that acceptance of this EULA includes the acceptance of PTIGlobal’s Privacy Policy which may be accessed here: https://www.ptiglobal.com/privacy-policy/

IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA OR YOU DO NOT HAVE THE PROPER AUTHORITY TO ENTER INTO THIS AGREEMENT, YOU MAY NOT INSTALL, COPY, DOWNLOAD OR USE THE SOFTWARE.

1. Definitions

• “Authorized User” means a person who accesses and uses the Software under a User License in accordance to the terms of this EULA.
• “Cloud-hosted Products” means PTIGlobal Software hosted in the cloud.
• “Compiled or Encrypted Code”  means any source code that is protected against access by the Licensee or others, without the Licensor’s prior express written permission and is otherwise not granted as part of this EULA.
• “Fees”  means any recurring, or non-recurring costs payable by the Licensee to the Licensor to use the Software and to receive Maintenance and Support as applicable.
• “Free License” means a license or licenses for which Licensor has agreed not to collect any Fees.
• “Maintenance”  means the provision of Software updates, bug fixes and/or enhancements which the licensor may from time-to-time make available to customers with an active Support and Maintenance agreement.
• “Media” means all images, icons, text files in all formats, audio, video or other non-code assets contained within the Software.
• “Paid License” means a license for which Licensor requests a Fee be paid.
• “Parties” means the Licensor the Licensee or both.
• “Products” means Software products, services or other products made avaialble by Licensor.
• “Software” means the Licensor’s branded software which is accompanied or refers to this EULA in as it exists in any form (Uncompilled, Compilled or Encrypted, or otherwise), as well as any related Media or other services.
• “Term” means the period for which a given License is valid.
• “Third-party Libraries” means any third-party Software that Licensor has licensed and embedded in the Software and that may contain Uncompiled Code, Compiled or Encrypted Code, Media or otherwise.
• “Uncompiled Code” means source code that is unprotected and accessible.
• “User License”  means a license granted under the terms of this EULA to Licensee to give permission to an Authorized User to use Software covered by this EULA. The number of licensed users is determined by agreement between Licensor and Licensee through the payment of the appropriate Fees by Licensee or otherwise as a set agreed number of Free Licenses as accepted by Licensor.

2. Grant of License(s)

Licensor’s Software is licensed, never sold.  Licensee’s aceptance of this EULA and remittance of the appropriate Fees to Licensor will grant Licensee the non-exclusive and a non-transferable right to use the Software subject to the conditions as set forth below:

Licenses, payments and restrictions

Any licenses granted are subject to the condition that the Licensee bears the responsibility to ensure that the number of Authorized Users accessing and using the Software is equal to the number of User Licenses for which the necessary Fees have been paid to Licensor. Additional user licenses may be purchased to increase the number of Authorized Users.

The Licensor may, at its sole discretion, provide licenses for the purpose of evaluation of the Software to Licensee. Licensee may download, install, use and operate the Software during a restricted Evaluation Period with the assigned number of Authorized Users. Licensor may, at its sole discretion, limit the functionality of the Software under a Evaluation License. Upon passing of the Evaluation Period, Licensor may revoke further access to the Software and the Licensee must remove and delete all copies of the Software in its possession.

The Licensee is permitted to make copies of the Software to dessiminate to Authorized Users and for backup purposes only. Licensee may only make copies as is reasonbly required to perform the necessary installations for Authorized Users or for backup purposes.

General Terms

With each License, the Licensor grants a worldwide, non-exclusive and non-transferable authorization to use the licensed Software under this EULA.

The Licensee warrants that (i) only Authorized Users are provided access to the Software and only in accordance with the terms of this EULA, (ii) the Software is not used in any manner other than as set forth by the original intent of the Software, including for any medical purposes or the use where life is at stake, (iii) Licensee will not directly or indirectly support the process or aid in the process to decompile; reverse engineer; disassemble; modify; adapt; create derivative works from; or otherwise attempt to derive any part or whole of the Software, through neglect, omission or any other circumstance, (iv) attempt to access any included third-party Software or Media directly or indirectly, (v) Licensee will not sell; sublicense; rent; redistribute; reproduce; transmit; circulate; disseminate; translate; alter or convert the Software to any format or otherwise provide the Software to a person or entity who is not an Authorized User, (vi) Licensee will not alter or amend the software in any way, (vii) Licensee will not publish, republish, refer to Licensor’s Software, name, trade name, logo, or digital presence without the express written permission of Licensor.

Licenses are granted subject to the terms of this EULA and unless terminated earlier in accordance with the terms of this EULA, the term for usage granted herunder shall be considered (i) perpetual for any Paid License of downloaded Software, (ii) for the duration of the licensing period for any Cloud-hosted Products, (iii) for the duration of the agreed Evaluation period on Evaluation licenses and (iv) for an unspecified period with the Licensor’s discretion to revoke access to products at any time on Software where Free licenses were granted.

Licensee warrants that Software is only installed on computer systems and hardware that is owned, operated and controlled by Licensee.

The Licensor reserves the right to remotely control the grant of licenses and in its discretion revoke access to the product if it suspects that the terms of this EULA are being violated in any manner.

3. Fees

If Licensor imposes Fees for Licenses on Software related to this EULA,, then Licensee must pay all Fees by their due date as agreed between Licensee and Licensor during purchase of the User License. Failure to remit the necessary Fees will result in the immediate termination of access to the Software under this Agreement until such time that payment is made.

4. Maintenance and Support

The Licensor may as part of regular maintenance and as part of a Support and Maintenance agreement provide Software updates, feature additions or otherwise enhance the Software. Any such changes to the Software will be subject the EULA as related to the Software unless otherwise specified at the time of release. The Licensor reserves the right to provide future feature additions, revisions, re-designs, add-ons or other amendments to its Software under a separate Licensing agreement with Fees associated as it may apply.

The Licensor may offer support services and any such services may be sold as a package along with Software maintenance, or may be offered standalone.  The Licensor reserves the right to provide such services subject to additional fees. Support and Maintenance is not included with the original Software and will require an additional agreement.

5. Warranty and Disclaimer

The Parties represents and warrant that they each have the legal authority to enter into this Agreement, and that, if either is a representative of an entity, each representative has the proper legal Authority to act on behalf of and enter into a binding Agreement with respect to the terms and conditions set forth in this document.

ALL PRODUCTS ARE PROVIDED “AS IS.” PTIGLOBAL, ITS SUCCESSORS AND ASSIGNS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY WITH REGARD TO ITS PRODUCTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, HOWEVER; THE DURATION OF ANY STATUTORILY REQUIRED WARRANTIES, IF SUCH APPLY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. PTIGLOBAL DOES NOT WARRANT UNINTERRUPTED USE OF ITS PROUCTS OR THAT THEY ARE FREE OF ERRORS OR DEFECTS. AS SUCH, PTIGLOBAL SHALL HAVE NO LIABILITY AS A RESULT OF DELAYS, INTERRUPTIONS OF SERVICE, FAILURE OF ITS PRODUCT OR ANY OTHER PROBLEMS THAT ARE NOT WITHIN REASONABLE CONTROL OF PTIGLOBAL. PTIGLOBAL SHALL HAVE NO LIABILITY WITH RESPECT TO CONTENT THAT IS GENERATED BY USERS OF ITS PRODUCTS. WHILE PTIGLOBAL IS MAKING REASONABLE EFFORTS TO SECURE ITS PRODUCTS, ENHANCE PERFORMANCE, REDUCE ERRORS AND IMPROVE CUSTOMER EXPERIENCE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, PTIGLOBAL SHALL HAVE NO LIABILITY WITH RESPECT TO (I) THE SECURITY OF THE DATA STORED IN ITS SYSTEM, (II) OPERABIITY OF ITS PRODUCTS ON ALL AVAIALBLE HARDWARE AND POSSIBLE CONFIGURATIONS, (III) MEETING YOUR REQUIREMENTS AND EXPECTATIONS OF ITS PRODUCTS, (IV) THAT STORED DATA WILL BE ERROR FREE, WILL NOT BE LOST OR OTHERWISE BECOME CORRUPTED, (V) THAT ANY OF ITS HOSTED PRODUCTS OR PRODUCTS FOR DOWNLOAD ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL THE FOREGOING DISCLAIMERS ALSO APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW TO PTIGLOBAL’S LICENSORS, DISTRIBUTORS, CONTRACTORS AND AGENTS.

6. Intellectual Property Rights

Licensor retains all rights, title and interest (not including Third-party Software), as well as all intellectual property rights in and to the Software. Licensor’s Software is protected by copyright and other intellectual property laws and treaties. The Licensee does not acquire any rights of ownership in the Software under any License agreement and this EULA.

Licensor acknowledges the rights of Third-party Software which may be embedded in its product. Any such Third-party Software is the rightful property of its owner and respectful Licensor. Licensor does not give any permission or any rights to any such embedded Software. Any such Software is governed by its own License Agreements and Licensee does not receive any rights in ownership or usage to those Third-party products. Should the licensing requirements of Third-party Software owners prevent Licensor to continue the use of such Third-party Software in its products, then Licensor will remove such access and replace its function with any product or service that Licensor deems fit.

Licensee may not remove any branding, markings or other copyright information from Licensor’s product.

7. Breach of Terms

If Licensee discovers that Licensee (individual or entity) has breached its obligations under this EULA, then Licensee must immediately report such breach and the related circumstances to the Licensor.

If Licensor discovers the use or distribution of its Software or any embedded Third-party Software to unlicensed users or in circumstances that are not covered by current licensing agreements, then Licensor or any affected Third-party Software owner will be entitled without any prejudice of Licensors rights or Third-party owner’s rights to charge the licensee, in addition to any agreed and paid licenses, the fees related to unlicensed users, installations or distributions for the period Licensee was found to be in breach to bring licensee into compliance with the terms of this EULA.

8. Certification of Compliance under Suspected Unauthorized Use

If the Licensor reasonably suspects that the Software issued to Licensee is in use by an unlicensed person or party without prior written consent, or that Third-party embedded Software is being accessed or used independent of Licensor’s Software, or there is indication that Licensee is otherwise in breach of this EULA, then Licensor retains the right to request Licensee to conduct an internal audit to ensure its compliance with the EULA and provide certification in writing within no more than sixty (60) days to certify its compliance with the terms of this EULA.

9. Termination

In the event of a breach of the terms of this EULA, Licensor has the right to immediately terminate the Licenses granted under this EULA through written notificantion to Licensee, if the Licensee does not upon notice of breach comply with an internal audit and certification under section 8, or does not remediate an identified breach within no more than fifteen (15) calendar days after breach has been identified. After termination of such licenses associated with this EULA, Licensee aggrees to immediately cease the use of Licensors Software, uninstall and return or certify the permanent destruction of all copies of the Software in its possession. Under no circumstances shall Licensee operate Licensors Software after the termination or retain any copies beyond fifteen (15) calendar days after receipt of written termination notice by Licensor.

In the event that the Term, or licensing period has passed and Licensee does not renew the Term or licensing period for the Software, Licensees rights under this Agreement will terminate automatically and irrevocably without notice from PTIGlobal.

Upon termination for any reason, the rights granted  hereunder shall terminate and Licensee shall immediately discontinue all use of the Products associated with this EULA and destroy and remove from all computers, hard drives, cloud storage devices, mobile devices, networks and other storage media all copies of the Products, but all of Licensee’s obligations with respect to this agreement remain in effect.

10. Indemnification

Licensee agrees that PTIGlobal, its licensors, distributors, contractors and agents, collectively the “Indemnified Parties”, shall have no liability whatsoever for any use by Licensee of its Products. Licensee shall indemnify and hold harmless the Indemnified Parties from any claims, damages, liabilities, costs and fees (including reasonable attorneys’ fees) arising from (i) Licensee’s failure to comply with any of the terms of this EULA, (ii) Licensee’s improper use of the Products related to this EULA by not following the intended use of the Products or utilizing said Products in medical application or in a situation where life is at stake. To the maximum extent permitted by applicable law, Licensee hereby releases and waives all claims against the Indemnified Parties from any and all liability for claims, actual and consequential damages, costs and expenses including litigation costs and attorneys’ fees of any kind and nature, arising out of or in any way connected to the use of the Products. If Licensee is a California resident, Licensee waives its rights under California Civil Code § 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” Residents of other states, countries, nations or regions waive their rights under all comparable laws, statutes or regulations.

11. Limited Warranty

Licensee acknowledges that Licensor’s Cloud-hosted Products are hosted by third-parties. All such hosted products and their availability are governed by the third-parties Service Level Agreement.

If in any case Licensee has remedies against the Licensor imposed by applicable law or statute and any such remedy cannot be excluded by Licensor and its Third-Party providers, then the to the fullest extent permitted by such law or statute, the Licensor’s and its Third-Party provider’s liability are limited to reparing or replacing Software, resupplying Maintenance or Support in the case of Maintenance or Support and if none such limitation is applicable, then the maximum liability shall be equal to the Fees paid by Licensee for Licensors Products. In the case of Free Licenses, there shall be no financial obligation on part of the Licensor or its Third-party providers.

12. Limitation of Liability

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL PTIGLOBAL, ITS LICENSORS, DISTRIBUTORS, CONTRACTORS AND AGENTS  BE LIABLE TO YOU OR ANY OTHER PERSON (I) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER OR (II) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. PTIGLOBAL’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY LICENSEE TO PTIGLOBAL, EXCEPT WHERE NOT PERMITTED BY APPLICABLE LAW, IN WHICH CASE PTIGLOBAL’S LIABILITY SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW. ALL THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF PTIGLOBAL HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO SUCH LICENSEES.

13. Publicity Rights

While this EULA is in effect and not otherwise terminated as set forth in section 9, the Licensee grants the Licensor the right to include Licensee as a customer in Software promotional material, including the Licensee’s logo, unless Licensor has a separate, prior, agreement with Licensee. The Licensee can deny Licensor this right at any time by submitting a written request via e-mail to  info2@ptiglobal.com, requesting to be excluded from Software promotional material. Licensor will promptly act upon such written request, but no later than thirty (30) calendar days upon receipt of such request from Licensee.

14. Product Enhancements

The Licensor is continously working to improve its products and the experience of its licensed users and potential users. As such Licensor needs to collect information on the usage of its products to measure and analyze the usage patterns and behaviors of its users. Any such data collection is govenred by Licensors Privacy Policy which may be accessed at https://www.ptiglobal.com/privacy-policy/. Licensee herewith declares and grants authority to the Licensor to collect such data, exclusively for the use as described in this section and Licensee declares to have read and agrees to Licensors Privacy Policy as referenced in this section.

15. Amendments

This Agreement may not be amended or otherwise altered, unless expressely permitted by Licensor, or agreed to by Licensor, in which case all such amendments must be in written form and agreed to by signature of Licensor’s authorized representatitve.

16. Assignment of EULA

Licensee may assign this EULA to (i) successors in the case of mergers or acquisitions, (ii) if the Licensee is a supplier to a government agency. However, in each case, (i) Licensor is notified in writing within ninety (90) days of such assignment, (ii) the assignee agrees to be bound by the terms and conditions contained in this EULA and (iii) upon assignment assignee removes or destroys any copies of the Product and immediately ceases the use of assigned licenses under this EULA. Licensor may assign its rights and obligation under this EULA without the consent of the Licensee. Any such permitted assignee shall accept and be bound by the terms and conditions of this Agreement.

17. Export Restrictions

In connection with the Products, Licensee agrees to comply with all export laws, export restrictions and regulations of the Department of Commerce, the United States Department of the Treasury Office of Foreign Assets Control (OFAC), or other United States or foreign agency or authority, and Licensee agrees not to export, or allow the export or re-export of the Products in violation of any such restrictions, laws or regulations. By downloading, installing, accessing or using Licensor’s Products, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any restricted or sanctioned country.

18. Governing Law and Exclusions

This Agreement shall be governed, interpreted and enforced pursuant to the laws of the State of Oregon, USA.

Licensor reserves the right to seek immediate issuance of a temporary restraining order or preliminary injunction enforcing this Agreement, injunction to enforce an arbitration award, or other order of similar magnitude, including obtaining full payment of all fees and costs under this Agreement from any court of competent jurisdiction and to judgment for damages caused by Licensee’s breach, and to any other remedies provided by applicable law prior to, during, or after commencement or prosecution of any other court or arbitration proceedings or the final decision and award of the arbitrators.

The terms of the United Nations Convention with respect to  Contracts for the Sale of Goods do not apply to this Agreement.

19. Entire Agreement

This EULA, and any included addendum or amendment as greed by Licensor, constitutes the entire agreement between the Licensee and the Licensor relating to Licensors Products. As such, they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products related to this Agreement or any other subject matter as it relates to this EULA.

20. Waiver

Failure by Licensor to insist upon or enforce any of Licensee’s obligations under this EULA, or failure by Licensor to exercise any of the rights or remedies to which Licensor is entitled under this EULA, shall not constitute a waiver of any such rights or remedies and shall not relieve Licensee from its obligations to remain in compliance with the terms of this EULA.

No waiver by Licensor shall be legally binding, unless it is submitted to Licensee in written form by an authorized representative of Licensor.

21. Severability

Should any court find that any Section of this Agreement is invalid; such finding shall not affect the validity of any other Section of this Agreement.

22. No Partnership

Nothing in the EULA is intended to, or shall be deemed to, establish any agency, partnership or joint venture between the Parties. Neither party may act as the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party.

23. Survival

Clauses 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 18, 19, 20, 21, 22 and 23 shall survive any termination of this EULA.