EfficientIP EULAEnd-User License Agreement

PLEASE READ CAREFULLY: THIS END-USER LICENSE AGREEMENT (“EULA” or “Agreement”) is a legal agreement between you and/or the business entity you represent (collectively “You”) and the licensor, the EIP Contracting Party (together with its affiliates, collectively “EIP”), each a “Party” and jointly the “Parties” to this Agreement.

1. You and EIP

EIP Contracting Party” refers to the EIP entity mentioned in the applicable Order, if any, or to (i) EfficentIP, société par actions simplifiée, with its principal place of business located at 90, boulevard National La Garenne Colombes – 92250 La Garenne-Colombes (“EfficientIP France”), if Your registered address is located in the European Union, Africa, the Middle East or America (excluding the USA and Canada); or (ii) EfficentIP, UK Ltd, with its registered office located Tenbury – Brenchley House, School Road, Charing, Kent, United Kingdom, TN27 0JW (“EfficientIP UK”), if Your registered address is located in the United Kingdom ; or (iii) EfficientIP, Inc. with its principal place of business located at 1 South Church Street, Suite 400, West Chester, PA 19382] (“EfficientIP USA”), if Your registered address is located in the United States of America or Canada; (iv) EfficientIP PTE Ltd, a company  with its corporate office and registered address at 60 PAYA LEBAR ROAD, #11-47 PAYA LEBAR SQUARE, SINGAPORE (409051) (“EfficientIP Asia”), if Your registered address is located in the Asia-Pacific region. 

The provisions of this EULA govern i) any software initially provided directly to You by EIP directly or through a Distributor (the “Software”), including any varied forms of the Software which may contain new features, malfunction fixes and other enhancements to the Software and its operating procedures and which may be made available directly by EIP or via qualified and entitled third party service provider to You while holding a current Support Services subscription (collectively, “Updates”) thereto (the Software and such Updates, collectively, the “Licensed Software) for use with a EIP hardware product (the “Product”) or, as the case may be, as a standalone ; ii) any documentation for the Licensed Software, that may include user manuals, operation instructions, installation guides, release notes, and on-line help files regarding use of the Licensed Software as updated by EIP (collectively, the “Documentation”); and (iii) any maintenance and support services related to the Licensed Software and/or Product made available by EIP to You directly or via qualified and entitled third party service provider (the “Support Services”). A “Subscriptioncombines a license to use the Licensed Software and the associated Support Services for the term of such Subscription.

2. Acceptance of terms

Installation and use of EIP Licensed Software and Products are subject to You having submitted a purchase order directly with EIP or via an EIP authorized reseller or distributor (“Distributor”) that is consistent with an EIP quotation and is accepted by EIP or the Distributor, in order to acquire or renew the relevant rights, licenses, products and/or services subject to the payment of the applicable fees (an “Order”). If You have not submitted such Order, then You must neither install nor use the Licensed Software and/or Products. IN ADDITION, BY CLICKING ON THE “I AGREE” BUTTON BELOW, DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE LICENSED SOFTWARE AND/OR PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. CERTAIN DOCUMENTS ARE MADE AVAILABLE TO YOU WITHIN THIS EULA VIA HYPERLINKS REDIRECTING TO CONTENT AVAILABLE ONLINE, SUCH AS THE SUPPORT SERVICES POLICIES AND THE DPA, WHICH ARE A PART OF, AND ARE HEREBY INCORPORATED BY REFERENCE INTO, THIS EULA. BY ENTERING INTO THIS AGREEMENT, YOU CONFIRM THAT YOU (I) HAVE FULL KNOWLEDGE OF ALL PROVISIONS INCORPORATED HEREIN BY REFERENCE, (II) AGREE TO BE BOUND BY AND ACCEPT ALL PROVISIONS INCORPORATED HEREIN BY REFERENCE.  EIP reserves the right to, and hereby notifies You that it may, amend the provisions incorporated herein by reference at any time, (including by adding new provisions, or deleting or modifying existing provisions) for any reason whatsoever, which amendment generally shall take effect thirty (30) days after notice to You by any means of communication as determined appropriate by EIP (unless another effective date is specified in the notice). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA AND/OR ANY PROVISIONS INCORPORATED HEREIN BY REFERENCE, DO NOT INSTALL OR USE THE LICENSED SOFTWARE AND/OR PRODUCT AND PROMPTLY CONTACT EIP OR THE DISTRIBUTOR FROM WHICH YOU OBTAINED THEM. In the event of any inconsistency or contradiction between this EULA and the provisions of the Order, the provisions of this EULA shall prevail. If there is a discrepancy, inconsistency or contradiction between any provisions made available online such as the Support Services Policies or the DPA and this EULA, the provisions made available online shall prevail. No general or purchasing terms and conditions, other document, exhibit or addendum, shrink-wrap agreement, clickwrap agreement or any handwritten or typewritten text even if purporting to modify or supplement the text of this EULA will add to or vary the terms of this EULA.

In the absence of a separate, valid and written license agreement duly executed by and between You and EIP for the purchase and license of the Licensed Software and/or the Products (the “Separate License Agreement”), this EULA shall apply in all respects. In the event of any conflict between the provisions of this EULA and the Separate License Agreement, the provisions of the Separate License Agreement shall govern.

3. License

Subject to Your compliance with all terms and conditions of this EULA and provided EIP or the Distributor has received all payments applicable to Your use thereof, EIP grants You a non-exclusive, non-assignable and revocable right, for the License Term (as defined below) for Your internal business purposes, to install and use the Licensed Software and the related Documentation in machine-readable, object code form solely on a single computer,  virtual machine or, when applicable, Product owned or leased by You and using only one Activation Key (as defined hereafter) according to the provisions of this EULA and the Documentation). An “Activation Key” shall mean the unique identifier generated by EIP that enables the Licensed Software to be activated.

This EULA shall be effective on the date You click on the I agree button, install the Licensed Software and/or Product or otherwise start using the Licensed Software and/or Product, whichever comes first, (the “Effective Date”) and will remain in force under the conditions and for the license or Subscription terms indicated in the Order or in the Separate License Agreement, subject to any earlier termination of the Order for material breach (if applicable) or unless terminated in accordance with the provisions of this EULA or any Separate License Agreement (“License Term”). This EULA and Your access to the Licensed Software and/or Product shall be suspended or terminated by EIP (i) immediately upon notice to You in the cases expressly identified in this EULA; and (ii) in case of material breach of Your obligations that has not been remedied, rectified or cured within thirty (30) days of receiving a written notice of EIP to do so. EIP’s termination of this EULA shall become effective (a) upon notice to You or upon expiration of the cure period specified above or (b) upon termination of the Order or Separate License Agreement. Upon termination or expiration of this EULA or any Order for any reason whatsoever, You will immediately cease to use the Licensed Software and the Support Services and shall when applicable, immediately destroy or return all copies of the terminated or expired Licensed Software and associated Documentation in their entirety and shall no longer have access to Support Services. Expiration or termination of this Agreement or any Order shall not relieve You of Your obligation to pay all fees that have accrued or are otherwise owed under this EULA or Order.

You agree to use the Licensed Software and/or Product only as authorized in this EULA and any applicable Order. Licensed Software is licensed to be installed and used on only one computer or virtual machine and, when the Licensed Software is provided on a Product, only on the original Product provided to You (or replacement of the same model as may be provided by EIP under the Warranty or Product Support Services). A valid license must be purchased for each computer, virtual machine or, when applicable, Product on which the Licensed Software is installed. 

Except as expressly set forth in this EULA, You may not, whether for valuable consideration or otherwise: 

  1. copy, modify, adapt, merge, embed, sell, lease, assign, distribute, sublicense or transfer in any manner or form, in whole or in part, the Licensed Software, Products, Documentation or Activation Key except as otherwise required by law; or 
  2. use the Licensed Software or Documentation to create derivative works of the Licensed Software, or develop or distribute any software product that competes in the marketplace with the Licensed Software, or any other tool, system or library developed or marketed by EIP; or
  3. use the Licensed Software to process data of third parties in any manner whatsoever, including in facilities management or any other computer-based services business, or publicly display visual output of the Licensed Software; or
  4. reverse engineer, decompile or disassemble the Licensed Software or attempt in any manner whatsoever to recreate the Licensed Software source codes or equivalent, provided that information necessary to achieve interoperability of the Licensed Software with another computer program will be made available by EIP to You on request); or
  5. repair or have the Product repaired by any other person than EIP authorized suppliers; or 
  6. open the Product casing or alter the Product in any manner whatsoever; or 
  7. correct errors, defects, and other operating anomalies on the Licensed Software; or
  8. communicate to any third party your personal identifiers.  

The Licensed Software, Documentation, Product and any elements thereof incorporate EIP confidential and trade secret information which You shall not disclose to third parties. 

This EULA does not grant You any rights to the source code for the Licensed Software, but information necessary to achieve interoperability of the Licensed Software with another computer program will be made available to You on request. Therefore, You undertake not to make any changes to the Licensed Software and not to decompile the Licensed Software for any reason whatsoever unless so authorized by EIP and in accordance with applicable law. EIP has created, and will from time to time create, other computer software programs that may be based upon or related to the Licensed Software and those other programs are not licensed to You under this EULA unless they are the subject of an Order. 

Any breach of the above provisions or any intervention on the Licensed Software and/or Product carried out by You,  or by a third party other than EIP, unless the latter grants its discretionary consent to it in advance and in writing shall constitute a breach that may give EIP the right to immediately suspend upon notice Your access to the Licensed Software and/or Product and/or terminate this EULA and/or the Order and/or Separate License Agreement, without triggering its liability.

EIP reserves the right to demand You to provide, in writing, certification of the geographical locations, type and serial number of all computer hardware on which the Licensed Software and/or Product is/are being used and on which the Activation Key has been activated, together with confirmation that the Licensed Software and/or Product is/are being used in accordance with the terms of this EULA, the Order and/or any applicable Separate License Agreement. Not more frequently than once every twelve (12) months and on reasonable prior notice being given, You shall give EIP physical and/or remote electronic access to Your premises during normal business hours to verify the proper use of the Licensed Software and/or Product. You will address any non-compliance identified by the audit by promptly paying any applicable fees for use of the Licensed Software and/or Product. You will promptly reimburse EIP for all reasonable costs of the audit if it reveals an underpayment of more than 5% of the fees payable for Your use of the Licensed Software and/or Product, or if You have materially failed to maintain accurate records of Licensed Software and/or Product use.

4. Delivery

If You have purchased directly from EIP a Product and Licensed Software for use on the Product, the Product will be delivered by EIP FCA Origin or DAP airport (according to Incoterms 2020) depending on the country of destination as stated (and unless stated otherwise) in the applicable Order. In any case, You shall bear all costs related to the shipment of a Product from the premises of EIP. Product shipping and delivery instructions shall be clearly specified in the Order. EIP shall select the method of shipment and the carrier. If the Product is shipped FCA origin, risk of loss or damage to any Product in transit is Yours and You will be responsible for filing claims with the carrier. For Licensed Software that is not pre-installed on a Product and for replacement Licensed Software provided by EIP under this Agreement, EIP shall arrange for the relevant Licensed Software to be made electronically available to You through a designated portal or other electronic means unless otherwise agreed by the Parties in writing.

EIP reserves ownership of the Product until full payment of all applicable charges specified in the Order without prejudice to any other compensatory damages that EIP may claim. However, all risks inherent to the Product are Your responsibility upon delivery as set out above. Consequently, You undertake to ensure their proper preservation at Your own expense and to take out insurance to cover the risks of loss, theft, damage or destruction of the Product subject to retention of title. In the event of non-payment by You, EIP reserves the right to physically take back the Product or the property titles representing them at Your expense, risk and peril. Independently of this retention of title provision, EIP may, at its discretion and without triggering its liability, terminate the Agreement as set out above and suspend Your access to the Licensed Software, Products and/or Support Services by giving You fifteen (15) days’ prior notice as from the sending by EIP of a formal notice by registered letter with acknowledgement of receipt.

5. Orders and Renewals

All Orders are irrevocable, non-cancellable and, except as otherwise expressly agreed to herein, non-refundable for their entire term. Subscriptions and standalone Support Services begin upon EIP’s delivery of Software or Products and renewals begin upon the expiration date of the current term of Your Subscription or Support Services subscription except if and as otherwise agreed in writing by EIP. If You purchase a Subscription and/or standalone annual or multi-year Support Services (whether payable upfront or annually) You agree that payment of the fees corresponding to the entire term of the Subscription and/or Support Services purchased is due to EIP and is required regardless of whether or not You or the Distributor elect to use or receive any of the corresponding licenses or services.

Except if otherwise expressly agreed by EIP, if You do not submit to EIP or Distributor a renewal order depending on available options then in effect and in accordance with EIP’s then current terms at the very latest 72 hours prior to the date of expiration of the current term of your Subscription and/or Support Services, You will be deemed to have chosen not to renew such Subscription and/or Support Services, in which case all Your Support Services and, in the case of a Subscription, all your licenses, shall end upon expiration of Your then current Subscription and/or Support Services subscription.

6. Warranty

EIP warrants that, for the warranty period specified hereafter, the original Software and Product initially provided to You will be free of material defects in materials and workmanship under normal use and will substantially conform to their Documentation as published by EIP (the “Warranty”). The warranty period applicable to the Software is ninety (90) days and the one applicable to the Product is one (1) year, both beginning from the date of their initial shipment to You.

This limited Warranty extends only to You. To the maximum extent permitted under applicable law, Your exclusive remedy and the entire liability of EIP under this limited Warranty will be, at EIP’s sole option to i) repair the defective part of the Software or Product or replace it with a Product or Software substantially equivalent in terms of functionalities, ii) make commercially reasonable efforts to make the defective Software perform substantially in accordance with its Documentation or iii) refund the  license fees paid for the defective Software or the fees paid for the defective Product upon its return.  

This Warranty (i) does not apply, if the Licensed Software (a) has been altered, except by EIP, (b) has not been installed, operated, repaired, or maintained in accordance with instructions provided by EIP, (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident, or (d) is used in ultra-hazardous activities; (ii) does not cover with respect to the Product (a) third party products; (b) components that are added to the Product after the Product is shipped from the Product’s Distributor or added through Product Distributor’s custom factory integration services at Your request to EIP; (c) any problems caused by such components or third party products; (d) repairs necessitated by Software problems (other than the firmware or associated software drivers covered by the limited Product Warranty as set forth above) or as a result of alteration or repair by anyone other than the Product’s Distributor or its representatives; or (e) damage or problems due to external causes, including but not limited to accident, abuse, misuse, neglect, problems with electrical power, force majeure event, usage not in accordance with Product instructions or any product related to it (but in all cases damage or problems due to normal wear and tear are excepted).

THE FOREGOING WARRANTIES ARE IN LIEU AND EXCLUDE ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS FOR LICENSED SOFTWARE AND PRODUCTS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. EIP disclaims all liability for any use or application of any Licensed Software and Products or the results or decisions made or obtained by users of the Licensed Software and Products. EIP does not warrant that (i) the functions of any Licensed Software and Product will meet Your requirements or will enable it to attain Your objectives, (ii) the Licensed Software and Products will operate in the combination or environment selected for use by You, or (iii) the operation of the Licensed Software and Products will be uninterrupted or free of errors. In all instances, You shall be solely responsible for ensuring that the results produced by Licensed Software and Products comply with quality and safety requirements of Your products or services. You shall have exclusive responsibility for (i) selection of the Licensed Software and Products to achieve Your intended results, (ii) installation of the Licensed Software and Products, (iii) taking adequate measures to properly test, operate and use each Licensed Software and Product and (iv) results obtained therefrom.

7. Intellectual Property

The Licensed Software incorporates EIP and, as further detailed below, third-party software and technology. EIP and its licensors retain all rights, title and interest, including, but not limited to, all trademarks, copyrights, patent rights, and all other proprietary rights in and to the Licensed Software and the Documentation and in all improvements, enhancements, modifications and derivative works thereof. The Licensed Software and Documentation are licensed only; no title in or to the Licensed Software, Documentation or Support Services is assigned or transferred to You. You do not have any license or right to use any Updates unless You have a valid license to the original Licensed Software and all applicable license and support fees have been paid. Use of Updates is limited to Licensed Software and Products for which You are the original end-user licensee or authorized transferee. The Licensed Software also incorporates open source and/or publicly available content under separate license; a list of such content and applicable licenses is included in the applicable portion of the Documentation, or available upon request.

The Licensed Software is confidential in nature and not in the public domain. 

You agree not to challenge, directly or indirectly, any right or interest of EIP in the Licensed Software, nor the validity or enforceability of EIP’s rights under applicable law. You agree not to directly or indirectly register, apply for registration or attempt to acquire any legal protection for any of the Licensed Software or any proprietary rights in the Licensed Software or to take any other action which may adversely affect EIP’s rights or interest in the Licensed Software or Documentation in any jurisdiction.  

You agree to notify EIP immediately and in writing of all circumstances, of which You are aware, surrounding the unauthorized possession or use of the Licensed Software and Documentation by any person or entity. You agree to cooperate fully with EIP, at EIP’s expense, in any litigation relating to or arising from such unauthorized possession or use. 

In the event of a breach of Your obligations under this Section, EIP or the Distributor may, without triggering its liability, immediately terminate this EULA and/or the Order without prejudice to any claim for damages. You will immediately cease to use the Licensed Software, the Product and the Support Services. 

8. Software and Product Support Services 

You are provided with Support Services relating to the Licensed Software and Product(s) (the “Support Services”) depending on the level of Software and Product Support Services You have subscribed, as set out in the Order.  Support Services begin upon our delivery of Software or Products and renewals begin upon the expiration date of the current term of Your Support Services subscription except if otherwise agreed in writing by EIP or the Distributor.   Support Services policies in effect as of the Effective Date of this EULA are detailed and accessible on EIP’s website and downloadable by You being assigned an account number by EIP by any means. 

The version of the Support Services policies applicable to a specific purchase or renewal Order shall be those currently in effect as of the date of such purchase or renewal Order. Information related to Your account is strictly personal and confidential. If You submit a support request to EIP, before doing so You must have at least taken the first level training course offered by EIP with respect to the Licensed Software. Support for Licensed Software or a Product may not be available for any Licensed Software or a Product that EIP has declared obsolete or end of life.  If You purchase Support Services for a Licensed Software or a Product for which Support Services were never originally purchased or for which Support Services have lapsed, You will be charged for the time period during which no support services were in effect with an increase of 20%.

9. Limitation of liability 

Except for Sections 7 (“Intellectual Property”) and 10 (“Indemnification”), the license restrictions in section 3 (“License”),  and a Party’s gross negligence, willful misconduct, death or personal injury, neither Party’s aggregate liability to the other for any claims arising out of this Agreement will be more than the amounts of charges paid by You for the Licensed Software, the Product and/or the Support Services that is/are the basis of the cause of action in the twelve (12) months preceding the date on which the damage has occurred. This limit shall apply to any and all claims, regardless of the legal theory on which they are based, and shall include all costs and fees. To the maximum extent permitted by applicable law,  EIP, its licensors, affiliates, suppliers, distributors or resellers shall have no liability for any indirect damages including but not limited to loss of use, loss of data, loss of profits, business interruption, or procurement of replacement software or hardware, relating to or arising from the use of the Licensed Software, the Product, the Documentation, the Support Services or any related services provided under this EULA, even if such Party has been advised of the possibility of such damages

Either Party undertakes to bear all claims, liabilities, costs and expenses exceeding the above-mentioned caps and accordingly waives its right to any form of recourse against the other Party or its insurers related thereto. Either Party further undertakes to have its insurers waive any recourse against the other Party and its insurers in excess of this amount.

10. Indemnification

EIP undertakes to defend and indemnify You against any legal action or claim made by a third party alleging that a Licensed Software and/or a Product delivered under this Agreement infringes the intellectual property rights of a third party provided that: i) You have used the Licensed Software and/or the Product in accordance with the provisions of this Agreement and the Documentation; ii) the Licensed Software and/or the Product have not been modified by a person other than EIP; iii) the Licensed Software and/or the Product have not been used in combination with any other product or service offered by any other provider than EIP ; iv) You have promptly notify EIP of any claim or legal action brought pursuant to this Section 10; v) EIP has exclusive control over the defense of such claim and any related settlement discussions and vi) You provide EIP with reasonable assistance and cooperation in the defense and settlement of such claim. EIP shall indemnify You against any costs, damages and expenses (including reasonable legal fees) finally awarded against You by a court of competent jurisdiction or agreed to in a written settlement agreement signed by EIP arising out of such claim. 

If such claim is made, or if EIP believes that a claim or legal action, as provided for in this Section, could prevent You from using the Licensed Software and/or the Product, EIP may at EIP’s sole option and expense, either (i) obtain the necessary rights for You to continue using the Licensed Software and/or the Product,  or (ii) modify or replace the Licensed Software and/or the Product, with a Licensed Software and/or a Product substantially equivalent in terms of functionality. If EIP considers that such options are not feasible, EIP may terminate the Licensed Software and/or require return of the Product and will refund Customer any amount paid in advance by Customer corresponding to the unused or unsupplied portion of the affected Licensed Software and/or Product upon return or destruction of all copies of the affected Licensed Software and/or Product as certified by an officer of Customer. 

This Section 10 states EIP’s entire liability and Your exclusive remedy for any claim of infringement of intellectual property rights.

11. Data protection 

In the framework of this Agreement, EIP may implement data processing activities which are subject to the provisions of a data processing agreement available on EIP’s website (the “DPA”). 

12. Export Control 

Export to You of Licensed Software and Product and Documentation is subject to all applicable countries’ export and re-export laws and regulations. EIP and its licensors shall have no liability towards You if necessary authorizations, licenses or approvals are not obtained.  

You shall not export or re-export, either directly or indirectly, Licensed Software and/or Product, any part thereof, or any process or service that is the direct product of the Licensed Software and/or Product (the foregoing collectively referred to as the “Restricted Components”) when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval.  

You hereby warrant to EIP that all Restricted Components ordered hereunder shall not be used in violation of any applicable export laws, including for proliferation of any nuclear, chemical or biological weapons or missile delivery systems and shall not be diverted to any country, company or individual if prohibited by the applicable export laws of any country. If You violates these provisions, EIP may terminate this EULA, any Order and/or any, and all licenses related thereto and access to the Licensed Software and/or Product hereunder upon written notice.

13. Applicable law and jurisdiction 

This EULA shall be exclusively construed and governed by and shall be interpreted, without regard to the rules of conflicts of laws, in accordance with (i) the laws of France, if the Contracting Party is EfficientIP, France; (ii) the Laws of England and Wales, should the Contracting Party be EfficientIP, UK ; (iii) the laws of the Commonwealth of Pennsylvania, should the Contracting Party be EfficientIP USA ; or (iv) the laws of Singapore, should the Contracting Party be EfficientIP Asia. The application of the Vienna Convention on the International Sale of Goods is expressly excluded by the Parties.

If a dispute arises out of or in connection with this EULA, Parties shall in good faith attempt to resolve that dispute promptly and meet within fifteen (15) days following the receipt of a registered letter with acknowledgment of receipt from one of the Party requesting to do so. If the Parties are unable to agree on an amicable solution at the end of the above-mentioned delay, the dispute shall then be submitted to the competent courts indicated herein which shall have exclusive jurisdiction to hear and settle any dispute arising out of or in connection with this EULA without prejudice to Parties’ right to appeal or cassation : (i) the competent court of Paris, if the  Contracting Party is EfficentIP France; (ii) the competent court of London, should the Contracting Party be EfficientIP UK; (iii) the state and federal courts sitting in the Eastern District of Pennsylvania, should the Contracting Party be EfficentIP USA.; and (iv) the competent court of Singapore, should the Contracting Party be EfficientIP Asia.  Either Party may seek immediate injunctive relief in any court of competent jurisdiction. Each Party waives any objection on the basis of personal jurisdiction, improper venue, forum non conveniens or otherwise.