END USER SOFTWARE ACCESS TERMS
These Software License Terms and Conditions (“Terms and Conditions”) govern access to Sustayn Software licensed by “Sustayn Analytics LLC” hereinafter “LICENSOR” and LICENSEE as defined in the respective Order Form.
1. Sustayn Platform License Terms. License is granted on a non-exclusive and non-transferable basis exclusively (i) to use and access the Sustayn Platform for LICENSEE as an end user, in accordance with the manner and subscription period specified in the Order Form and in accordance with all applicable laws and regulations. For avoidance of doubt, Sustayn Platform shall only be provided to LICENSEE as part of LICENSOR’s Smart Technology and not on a standalone basis. All rights not expressly granted to LICENSEE herein are reserved by LICENSOR.
1.1 Restrictions. LICENSEE will not (and agrees to carry out all reasonable efforts to prevent any third party from): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying structure, ideas, or algorithms of any part of the Sustayn Platform; (ii) modify, translate, or create derivative works based on any part of the Sustayn Platform; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to any part of the Sustayn Platform; (iv) use Sustayn Platform for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Sustayn Platform or any portion thereof; or (vi) use Sustayn Platform to create any other product or solution.
1.2 Ownership of Sustayn Platform. LICENSOR retains all right, title, and interest in and to the Sustayn Platform (and all software, products, works, and other intellectual property created, used, or provided by LICENSOR for the purposes of this Agreement). To the extent LICENSEE provides LICENSOR with any feedback relating to the Sustayn Platform (including, without limitation, feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), LICENSOR shall own all right, title and interest in and to such Feedback (and LICENSEE hereby makes all assignments necessary to achieve such ownership).
1.3 Functionality of Services. LICENSOR may upgrade, modify, replace, or reconfigure the Sustayn Platform at any time provided that any such revision shall not materially reduce the functionality of the Sustayn Platform. If LICENSOR adds new functions or new features to Sustayn Platform, such functionality or new features shall be available to LICENSEE; provided that additional fees may be applicable for such increased functionality or new features.
1.4. Log-In Information; Access. LICENSOR will provide LICENSEE with usernames and passwords (“Log-In Information”) which enable each Authorized User to access and use the Sustayn Platform. Log-In Information may be used only by the assigned Authorized User and may not be transferred or shared without LICENSOR’s consent. LICENSEE and each Authorized User are responsible for maintaining the confidentiality of the Log-In Information and are responsible for all activities occurring under such Log-In Information. LICENSEE shall take reasonable steps to prevent unauthorized access to Sustayn Platform, including without limitation by protecting its Log-In Information and LICENSEE shall immediately notify LICENSOR of any unauthorized use of an Authorized User’s Log-In Information or any other breach of security with respect to Log-In Information.
1.6 Customer Data. Ownership. “Customer Data” (which shall also be known and treated by LICENSOR as Confidential Information) shall mean the data collected, used, processed, stored, or generated as the result of LICENSEE’s use of Sustayn Platform. Customer Data is and shall remain the sole and exclusive property of LICENSEE.
1.7 LICENSOR’s Use of Customer Data; Aggregate and Anonymized Data. Subject to the terms of this Agreement, LICENSE hereby grants to LICENSOR and Sustayn Analytics, LLC a limited, non-exclusive license to copy, collect, process, store, generate, and display the Customer Data to the extent necessary to for the performance of Sustayn Platform. LICENSOR may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. “Aggregate Data” refers to Customer Data that is aggregated and anonymized with all personally identifiable information regarding LICENSOR removed.
1.8 Backup and Recovery of Customer Data. During the Term and any renewal terms, LICENSOR shall maintain a backup of Customer Data for an orderly and timely recovery of such data in the event that the Services are interrupted.
1.9 Loss of Data. In the event of any act, error or omission, negligence, misconduct, or breach by LICENSOR that compromises or is suspected to compromise the security, confidentiality, or integrity of Customer Data or the physical, technical, administrative, or organizational safeguards put in place by LICENSOR that relate to the protection of the security, confidentiality, or integrity of Customer Data, LICENSOR shall, as applicable: (a) notify Customer as soon as practicable; and (b) cooperate with LICENSEE in investigating the occurrence; and (c) perform or take any other actions required to comply with applicable law as a result of the occurrence.
2. Subscription Fee. LICENSEE agrees to pay LICENSOR the Total Annual Subscription Fee as set forth in Order Form (“Subscription Fee”) on an annual basis during the Term plus applicable Taxes. Initial Subscription Fee shall be invoiced on the Acceptance Date. All Subscription Fees under this Agreement are payable in U.S. dollars within 5 (five) days from date of invoice; LICENSOR may, on its discretion, adjust the Subscription Fee up to 3% on an annual basis to account for increases in Consumer price Index, additionally, Subscription Fee shall be also adjusted at the beginning of each Renewal Period (as defined in Order Form). LICENSEE shall be responsible for all applicable taxes associated with Sustayn Platform other than taxes based on LICENSOR’s net income. All Subscription Fees paid are non-refundable and not subject to set-off.
3. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, REGARDING THE USE AND RESULTS OF THE SUSTAYN PLATFORM AND HARDWARE, OR THAT USE WILL BE UNINTERRUPTED OR ERROR-FREE, AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE.
4. Liability Limitations. TO THE EXTENT NOT PROHIBITED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, LICENSOR WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) DIRECT DAMAGES; (II) ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS; (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; (IV) LOSS, INACCURACY, OR CORRUPTION OF DATA OR INTERRUPTION OF USE; (V) ANY MATTER BEYOND ITS REASONABLE CONTROL. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.