End User License Agreement
Updated Date: April 23, 2019
This is a license agreement and not an agreement for sale.
1. Subscription Edition
1.1. Subscription License. If you choose to license the Software on a subscription basis (a “Subscription License”), subject to the terms of this Agreement, your subscription order form and any other applicable Additional Subscription Terms (as further defined below), Trilio hereby grants to you for the applicable Term a limited, renewable (as provided for herein), irrevocable (unless as provided for herein) non–exclusive, non– transferable license to use the Software.
1.2. Change or Discontinuance. You agree that Trilio may make updates, upgrades, revisions, changes, alterations, modifications or remove certain features and/or functionality (including, but not limited to, specific components, versions, platforms, languages, etc.) of any or all of the Software included as part of the Subscription License (“Revisions”). Trilio will notify You via email, phone, fax or other mutually agreed to method in advance of a product release or changes made to the Software. Further communication, documentation, etc. will be made available to you through the Trilio customer portal when such Revisions are made available. Any such Revisions shall be considered part of the Software for all purposes of this Agreement. You may provide notice of termination of this Agreement in the event Trilio has materially reduced the overall functionality of the Software through Revisions (a “Software Deficiency”), provided that Trilio shall have thirty (30) days to cure the Software Deficiency and shall certify the effectiveness of any such cure to You in writing. Any second notice of termination from under this paragraph shall be effective as of the date of delivery. Notwithstanding the foregoing, the parties may negotiate in good faith to provide for a prospective reduction in subscriptions fees to account for the Software Deficiency. This provision does not apply to any reduction in functionality that results from any alteration or modification of the Software that is not authorized by Trilio, any use of the Software that is not in accordance with the Documentation, this Agreement, or any interruption or degradation in your networks or equipment or any other cause that is beyond Trilio’s reasonable control. Upon a termination by You pursuant to this Section 1.2, Trilio shall promptly refund any prepaid fees covering the remainder of the Term after the effective date of termination. Where Trilio has introduced commercial products with substantially the same (but not additional) functionality (the “Alternative Software”), Licensee shall have the option to license subscription rights to use and access such Alternative Software, in lieu of the Software.
2. Evaluation Software
If you install a “not for resale” or evaluation version of the Software (“Evaluation Software”) then, subject to the terms and conditions set forth in this Agreement, Trilio hereby grants to you and you hereby accept a limited, non–exclusive, non-transferable license to use the Evaluation Software for the sole purpose of evaluating its functionality and performance (the “Evaluation License”). You are not allowed to use the Evaluation Software for any commercial, productive or training purpose. The Term of the Evaluation License is identified by Trilio in its order form or by the Authorized Reseller in its order form. If you wish to continue using the Evaluation Software beyond expiration of the Evaluation License, you must pay the applicable license fee and your use will be governed by the terms of this Agreement. If you fail to pay the license fee, then your license to use the Evaluation Software terminates and you must immediately discontinue its use and delete and destroy all electronic copies of thereof including, but not limited to, all Documentation. UNAUTHORIZED USE OF THE EVALUATION SOFTWARE, USE OF THE EVALUATION SOFTWARE BEFORE OR BEYOND THE APPLICABLE FIXED TERM, OR ANY ATTEMPT TO DEFEAT ANY TIME- CONTROL DISABLING FUNCTION IN THE EVALUATION SOFTWARE IS AN UNAUTHORIZED USE CONSTITUTING A MATERIAL BREACH OF THIS AGREEMENT AND APPLICABLE LAW AND WILL AUTOMATICALLY AND IMMEDIATELY TERMINATE YOUR LICENSE TO USE THE SOFTWARE.
3. General Restrictions on Use
3.1. You may not redistribute, resell, transfer, rent, lease, or sublicense the Software.
3.2. You may not decompile, “reverse-engineer”, disassemble, or otherwise attempt to derive the source code for the Software, except to the limited extent as is permitted by law notwithstanding contractual prohibition.
3.3. You may not use, copy, or install the Software on any system with more than one computer, or permit the use, copying, or installation of the Software by more than one user or on more than one computer. If you hold multiple, validly licensed copies, you may not use, copy, or install the Software on any system with more than the number of computers permitted by license, or permit the use, copying, or installation by more users, or on more computers than the number permitted by license; provided, however, that for the Subscription License, Trilio may allow you to install and use prior versions of the Software on the same computer with a properly licensed current version of the Software.
3.4. You may not modify the Software or create any derivative work of the Software. Derivative works include but are not limited to translations. You may not alter any files or libraries in any portion of the Software.
3.5. You may not copy any part of the Software except to the extent that licensed use inherently demands the creation of a temporary copy stored in computer memory and not permanently affixed on storage medium.
4. Responsibility for Access
To the extent that Trilio provides you with serial numbers, access codes, entitlement numbers or a license to access services or support, you are responsible for the security and use of such information, including that contained in the documentation therefore.
5. Term and Termination
The term of the license granted you under this Agreement (the “Term”) is as specified in your order form, provided, however that if no term is specified, the license term for the Subscription Edition shall be one (1) year, renewable automatically (unless either Party provides notice of non- renewal thirty (30) days prior to the expiration of a Term), and the license term for the Evaluation Software shall be thirty (30) days. Trilio may immediately terminate this Agreement, including all licenses granted hereunder, if you fail to comply with any of the terms and conditions of contained herein. Upon any expiration or termination, you must destroy all copies of the Software and any key codes associated with the same and all of its component parts and you must provide Trilio in writing your certification as to the same.
6. Audit & Retention of Records
Trilio shall have the right to audit and inspect Licensee’s usage of the Software and to verify Licensee’s compliance with the provisions of this Agreement (including all payment terms, if any) during Licensee’s normal business hours not more than quarterly. Licensee shall promptly remedy any underpayments that are discovered, and if any underpayment exceeds 5% of the amount owed over the audited period, then Licensee shall reimburse Trilio for the costs of the audit.
7. Warranties and Warranty Disclaimers
7.1. THE EVALUATION VERSION OF THE SOFTWARE IS LICENSED ‘AS IS’. YOU BEAR THE RISK OF USING IT. TRILIO GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE ADDITIONAL RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, TRILIO EXCLUDES THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.2. Except with respect to the Evaluation Software, Trilio warrants solely to you that the Software will perform substantially in accordance with the accompanying written materials for a period of ninety (90) days after the date on which you purchase the License for the Software. Trilio makes no warranty that the Software will meet your requirements or operate under your specific conditions of use nor that your use of the Software will be uninterrupted or error free at all times and in all circumstances, nor that program errors will be corrected. YOU MUST DETERMINE WHETHER THE SOFTWARE MEETS YOUR REQUIREMENTS. YOU BEAR SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE SOFTWARE TO MEET YOUR REQUIREMENTS. TRILIO WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF
DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE. This limited warranty shall
not apply to any error or failure resulting from (i) machine error, (ii) your failure to follow operating instructions, (iii) negligence or accident, or (iv) modifications to the Software by any person or entity other than Trilio. In the event of a breach of warranty, your sole and exclusive remedy and Trilio’s sole and exclusive obligation, is repair of all or any portion of the Software. If such remedy fails of its essential purpose, Licensee’s sole remedy and Trilio’s maximum liability shall be a refund of the paid purchase price for the defective Software only. This limited warranty is only valid if Trilio Data receives written notice of breach of warranty no later than thirty (30) days after the warranty period expires. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7, TRILIO DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.3. THE SOFTWARE MAY CONTAIN “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). ANY OPEN SOURCE MATERIALS THAT MAY BE DELIVERED BY TRILIO EMBEDDED IN OR IN ASSOCIATION WITH THE SOFTWARE IS PROVIDED PURSUANT TO THE OPEN SOURCE LICENSE APPLICABLE TO THE SOFTWARE AND SUBJECT TO THE DISCLAIMERS AND LIMITATIONS ON LIABILITY SET FORTH IN SUCH LICENSE. AS REQUIRED BY THE COMMON PUBLIC LICENSE (“CPL”), IF A USER WISHES TO OBTAIN THE SOURCE CODE FOR THE COMPONENTS LICENSED UNDER THE CPL A USER MAY ACCESS THEM AT HTTP://WIXTOOLSET.ORG. TRILIO MAKES NO WARRANTIES, AND SHALL HAVE NO LIABILITY, DIRECT OR INDIRECT, WHATSOEVER WITH RESPECT TO OPEN SOURCE MATERIALS CONTAINED IN THE SOFTWARE.
8. Limitation of Remedies and Damages
8.1. UNDER NO CIRCUMSTANCES SHALL TRILIO, ITS DIRECTORS, OFFICERS, EMPLOYEES. RESELLERS OR AGENTS BE LIABLE TO YOU OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE SOFTWARE, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF TRILIO OR ANY OTHER PARTY, EVEN IF TRILIO IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS TRILIO’S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED.
8.2. IN ANY CASE, THE ENTIRE LIABILITY OF TRILIO AND ITS DIRECTORS, OFFICERS, EMPLOYEES. RESELLERS OR AGENTS UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE LICENSE FEES PAID TO TRILIO HEREUNDER OVER A PERIOD OF TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH LIABILITY AROSE, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE ENTIRE LIABILITY OF TRILIO AND ITS DIRECTORS, OFFICERS, EMPLOYEES. RESELLERS OR AGENTS UNDER THIS AGREEMENT RELATED TO THE EVALUATION LICENSE SHALL NOT EXCEED $500, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. TRILIO IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SOFTWARE AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
You agree to indemnify, hold harmless, and defend Trilio, its affiliates, officers, directors, employees, contractors, agents and resellers from and against any and all claims, lawsuits and proceedings (collectively “Claims”), and all expenses, costs (including attorney’s fees), judgments, damages and other liabilities resulting from such Claims, that arise or result from your breach of this Agreement, including, but not limited to your use of the Software in violation of this Agreement or any applicable law.
10. Confidential Information
10.1. Definition. Confidential Information means any information disclosed by Trilio to you, either directly or indirectly, in writing, orally or by inspection of tangible objects, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall
include the Software (including, but not limited to, all source code) and any Trilio professional services, the terms of this Agreement and any order form. Confidential Information may also include information disclosed to Trilio by third parties.
10.2. Obligations. You will at all times keep in confidence all such Confidential Information. You shall not (i) use any Confidential Information for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by Trilio in writing, disclose Confidential Information, except to those of its employees who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the you containing protections no less stringent than those herein. You agree to assist Trilio in remedying such unauthorized use or disclosure of the Confidential Information. The foregoing obligations will not apply to the extent you can demonstrate by documentary evidence:
- The disclosed Confidential Information was part of the public domain at the time of disclosure without breach of any obligation owed to Trilio;
- The disclosed Confidential Information was lawfully in your possession at the time of its disclosure by Trilio without breach of any obligation owed to Trilio;
- You received the disclosed Confidential information from a third party without similar restrictions on disclosure and without breach of any obligation owed to
10.3. Compelled Disclosure. You may disclose Confidential Information if you are compelled by law to do so, provided you give Trilio prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Trilio’s expense, if Trilio wishes to contest the disclosure. If you are compelled by law to disclose the Confidential Information as part of a civil proceeding to which Trilio is a party, and Trilio is not contesting the disclosure, Trilio will reimburse you for your reasonable cost of compiling and providing secure access to such Confidential Information.
10.4. Injunctive Relief. You acknowledge that your breach of any of the provisions of the confidentiality and non-use obligations specified herein could cause Trilio irreparable injury for which monetary damages may not provide an adequate remedy. Therefore, in the event of your breach or threatened breach of any of your confidentiality or non-use obligations under this Agreement, Trilio shall have the right to seek specific performance or an immediate injunction to prevent or restrain the breach, in addition to any other remedies available at law or in equity.
The Parties are working together to further develop the capabilities of the Software and other Trilio products and services. In the event that you provide Trilio with any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Software or Trilio services (collectively “Feedback”), you agree that Trilio will own, and you agree to assign and hereby assign to Trilio all of your right, title, and interest in, such Feedback. To the extent that the foregoing assignment is ineffective for whatever reason, you agree to grant and hereby grant to Trilio a nonexclusive, perpetual, irrevocable, royalty free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit such Feedback without restriction.
12. Use of Logo
Other than as expressly stated herein, neither party shall use the other party’s marks, codes, drawings or specifications without the prior written permission of the other party.
13. Export Controls
Licensee acknowledges that the Software is subject to the provisions of the U.S. Export Administration Regulations and may be subject to export and import regulations in countries outside the U.S. and agrees to comply with all such applicable laws and regulations, as required. Licensee acknowledges and agrees that it will not import, export, re-export, transfer or use, directly or indirectly, the Software in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, but is not limited to, the export regulations of the United States, and the import and export restrictions of any country in which Licensee transacts business. Licensee also agrees that it will not itself, nor allow any third parties to export, import, transfer, use or re-export the Software, directly or indirectly (i) to any U.S. embargoed country; (ii) to any person or entity on a denial list published by the U.S. Government; or (iii) for any end use that is prohibited by United States or other applicable law, including nuclear, missile, chemical biological weaponry or other weapons of mass destruction. Licensee acknowledges that certain software or technologies may be classified as “restricted encryption” items under section 740.17(b)(2) of the U.S. Export Administration Regulations and may require export licenses or U.S. re-export approval when being shipped from the U.S. or other countries.
14. Force Majeure
Trilio shall not be liable for the performance of its obligations under this Agreement if it becomes commercially impracticable to perform due to any contingency beyond its reasonable control, including as a result of a Force Majeure. “Force Majeure” means a cause of any kind not reasonably within the control of a party, including, without limitation, acts of God and the public enemy, sabotage, boycotts, disruptions of transportation facilities, inability to obtain supplies or materials, acts of government or its agencies, strikes, labor disputes, power disruptions, lockouts or any other industrial disturbance, or judicial action.
15. Compliance with Statutes and Regulations
You will comply with all applicable Federal, state, local and foreign statutes, rules, regulations and orders, as applicable to each party, including but not limited to the Foreign Corrupt Practices Act.
16. No Implied Licenses
All title and ownership rights in and to the Software, the intellectual property embodied in the Software, and any trademarks or service marks of Trilio that are used in connection with the Software are and shall at all times remain exclusively owned by Trilio and its licensors. Nothing contained in this Agreement shall be construed as conferring any rights by implication, estoppel or otherwise, under any intellectual property right, other than the rights expressly granted in this document.
This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall be for accommodation only and shall not be binding upon the parties. All communications and notices to be made or given pursuant to this Agreement, and any dispute proceeding related to or arising hereunder, shall be in the English language. In the event of any discrepancy or inconsistency between different language versions of this Agreement (and all associated documents or correspondence concerning this Agreement), the English language version shall prevail.
18. Relationship of the Parties
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
19. No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement.
You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Trilio. Any such assignment shall be void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
21. Waiver; Severability
No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. If any provision of this Agreement 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 Agreement shall remain in effect.
22. Governing Law; Jurisdiction
The laws of the Commonwealth of Massachusetts, without reference to its choice of law principles, govern this Agreement and any claims arising out of or relating to this Agreement or our relationship. All disputes and controversies arising out of or relating to this Agreement or our relationship must be resolved in the state and federal courts in the county of Suffolk and Commonwealth of Massachusetts, and each of us irrevocably consents to the exclusive venue and personal jurisdiction of those courts for the resolution of such disputes and waives all objections thereto.
Any provisions of the Agreement containing proprietary rights, confidentiality obligations, disclaimers, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.
24. Entire Agreement
This Agreement, including all exhibits and addenda hereto and all order forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any order form, the provisions of this Agreement will apply, unless such exhibit, addendum or order form expressly references such conflict or inconsistency, in which case the exhibit, addendum or order form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Licensee’s purchase order or other order documentation (excluding Trilio order forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.