CONNEXIONZ END USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT (“LICENSE AGREEMENT”) CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE. THE SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD). BY INSTALLING OR USING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT. EXCEPT TO THE EXTENT THE SOFTWARE IS SUBJECT TO A SEPARATE WRITTEN SOFTWARE LICENSE AGREEMENT BETWEEN YOU AND CONNEXIONZ, THIS LICENSE AGREEMENT WILL SUPERSEDE ANY AND ALL LICENSE AGREEMENTS GOVERNING ANY LICENSES OF THE SOFTWARE PREVIOUSLY GRANTED BY CONNEXIONZ (AND ITS PREDECESSORS IN INTEREST) TO YOU.
1. Software License Grant.
1.1. License Grant.
1.1.1. Subject to your acceptance of the terms and conditions of this License Agreement and conditional on payment of all required fees, Connexionz Ltd. (“Connexionz”) grants you a non-exclusive, non-transferable limited license to:
(i) use and access the Software, including any upgrades and new version releases that may be provided to you from time to time (as and when available as part of Connexionz’s Software Maintenance and Support Program), for your internal use in object code form only and as otherwise provided in this License Agreement; and
(ii) use and access any user manuals, guides or other documentation relating to the Software which we provide or make available to you from time to time (“Documentation”), for your internal use and only for the purposes of supporting your use of the Software.
1.1.2. Your license allows you to use the Software only for the purposes (production, evaluation, testing, demonstration, disaster recovery) and for the duration and extent for which you have paid the appropriate license fees, as evidenced by one or more valid order documents (a “Sales Order” or a signed quotation) between you and Connexionz or between you and an authorized Connexionz reseller or distributor identifying the specific software products licensed (the “Software”) and the limitations on use of the Software (such as volume limitations or concurrent client module use limitations).
1.1.3. You agree to exercise the same level of care against unauthorized use or disclosure of the Software and Documentation (to the extent it is not already publicly available) by or to third parties as you use with respect to your own proprietary information of comparable importance, provided that in no event will you use less than reasonable care.
1.2.1. You will use the Software and Documentation only for your internal business purposes and only for your direct benefit, and you will not attempt to use the Software, or any portion of that, in excess of its licensed capacity for which you have paid the appropriate license fees.
1.2.2. You will not, nor will you permit any third party to:
(i) reverse engineer, decompile, disassemble, decrypt, re-engineer, reverse assemble, reverse compile or otherwise translate or create, attempt to create the source code of the Software or perform any process intended to determine the source code for the Software; or
(ii) modify, enhance or create derivative works based upon the Software or otherwise change the Software. Any modification, enhancement, derivative work or other improvement to the Software developed by you, whether with or without the consent of Connexionz, will be the exclusive property of Connexionz and subject to and governed by this License Agreement.
1.2.3. The licenses granted under this agreement are personal to you, and any attempt by you to transfer any of the rights, duties or obligations under this License Agreement shall be void ab initio and shall result in this License Agreement being terminated automatically and with immediate effect.
1.2.4. You may not rent, lease, loan, resell or distribute the Software or any part of that in any way including, but not limited to, making the Software available to others via shared access.
1.3. U.S. Government Entities.
1.3.1. If you are a U.S. Government entity, then your use, duplication or disclosure of the Software is subject to the following restricted rights clause: The Software is a “Commercial Item,” as that term is defined in 48 C.F.R. §2.101, consisting of “commercial computer Licensed Software” and “computer software documentation,” as such terms are used in 48 C.F.R. §252.227-7014(a)(1) and 48 C.F.R. §252.227-7014(a)(5), respectively, and used in 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable, and all as amended from time to time.
1.3.2. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1 through 227.7202-4, and other relevant sections of the Code of Federal Regulations, as applicable; and all as amended from time to time, all U.S. Government entities license the Software
(i) only as Commercial Items; and
(ii) with only the rights explicitly set forth in this License Agreement and the Sales Order.
1.4. New Zealand Users. If you are a New Zealand entity or otherwise using the Software in connection with your business in New Zealand, then nothing in this License Agreement:
(i) is intended to exclude, limit or have the effect of contracting out of the Fair Trading Act 1986; and
(ii) will prevent you from exercising any of your legal rights and remedies under Subpart 3 of Part 2 of the Contract and Commercial Law Act 2017 (NZ) or the Fair Trading Act 1986 in relation to any representations made by Connexionz to you in relation to the Software prior to you entering into this License Agreement.
1.5. Third Party Software. Any portion of the Software that constitutes third party software, including software provided under a public license, is licensed to you subject to the terms and conditions of the software license agreements accompanying such third party software.
2. Intellectual Property.
2.1. You acknowledge and agree that:
(i) the Software is licensed and not sold; and
(ii) by accepting the licenses set forth in this License Agreement, you acquire only the right to use the Software and Documentation in accordance with the terms of this License Agreement, and that Connexionz and/or its licensors will retain all rights, title, interest, including all associated intellectual property rights, patent, copyright, trademark, trade dress, trade secret, technology, information, confidential information and other proprietary rights in and to the Software and Documentation, including all portions, copies and modifications to that.
2.2. Connexionz reserves all rights not expressly granted to you in this License Agreement.
3.1. Subject to the limitations stated in this License Agreement, Connexionz warrants to you, the original end user, that, for a period of ninety (90) days from the date the Software is made available to you (“Warranty Period”), the Software, as delivered:
(i) will materially conform to Connexionz’s then-current Documentation; and
(ii) does not contain any computer worms or viruses.
3.2. To be eligible for a remedy under this warranty you must report all warranted problems to Connexionz in writing within the Warranty Period.
3.3. In the event of any breach of this warranty, Connexionz may, at its sole option, provide a correction or a workaround for any reproducible errors or other noncompliance, a replacement of the non-conforming Software, hardware key, media and/or documentation, or a refund of the license fees you paid for the affected Software, subject to Your return of the Software. If Connexionz does so within a reasonable time of you reporting, and Connexionz verifying, the breach, this will constitute your exclusive remedy, and Connexionz’s entire liability, in respect of the breach of warranty.
3.4. This limited warranty is void if you have modified or altered the Software, installed, operated, repaired or maintained the Software other than in accordance with the then-current Documentation, subjected the Software to misuse, negligence, or accident, or cannot reasonably reproduce the error reported by you.
3.5. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
3.6. Disclaimer of additional warranties
3.6.1. The express warranty above is in lieu of all other warranties, and Connexionz makes no representations or warranties concerning the Software, expressed or implied, except as expressly provided in this License Agreement or preserved under section 1.4 above (New Zealand Users), and expressly disclaims to the maximum extent permitted by applicable law any and all other warranties, including, but not limited to, any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement or skill and care.
3.6.2. Any implied warranties that by law cannot be disclaimed are limited in duration to the greater of:
(i) ninety (90) days from the date of this License Agreement, or
(ii) the shortest period permitted by law.
3.6.3. Except as expressly set out in this License Agreement, the Software provided by Connexionz is provided “as is” and without warranty of any kind. You agree that you are solely responsible for the results obtained from the use of the Software.
4. Intellectual Property Indemnification.
4.1.1. Connexionz will indemnify and defend, at its own expense, any claim, suit or proceeding brought against you by a third party to the extent it is based upon a claim that your use of the Software worldwide except in North America pursuant to this License Agreement infringes upon any patent, copyright, trademark rights, registered designs, geographic indications, layout designs of a third party.
4.1.2. If you comply with the provisions of this document, Connexionz will pay all damages, costs and expenses finally awarded to third parties against you in such action.
4.1.3. If the Software is, or in Connexionz’s opinion might be, held to infringe as set forth above, Connexionz may, at its option:
(i) acquire the right for you to continue to use the Software upon the terms of this Agreement;
(ii) modify the Software to avoid or correct the infringement; or
(iii) replace the Software.
4.1.4. If none of such alternatives are, in Connexionz’s opinion, commercially reasonable, you will return the infringing Software to Connexionz, and Connexionz’s sole liability, in addition to its obligation to pay awarded damages, costs and expenses as set forth above, will be to refund the license fees you paid to Connexionz under this agreement, depreciated on a 3-year, straight-line basis.
4.2.1. The foregoing notwithstanding, Connexionz will have no liability for any claim of infringement arising as a result of:
(i) your use of the Software in combination with any items not supplied by Connexionz;
(ii) any modification of the Software by you or at your request;
(iii) use of other than the latest revision of the Software if use of the latest revision would avoid the infringement;
(iv) use of the Software outside the scope of the granted licenses or otherwise in violation of the terms of this License Agreement; or
(v) any other act or omission by you which is a breach by you of any term of this License Agreement.
4.3. Conditions to Indemnification.
4.3.1. Connexionz will have the sole right to control the defense of, and to settle or compromise, any claim of infringement concerning the Software, and Connexionz’s indemnification obligations are conditioned upon you:
(i) giving Connexionz prompt written notice of any claim for which indemnity is sought; and
(ii) fully cooperating in the defense or settlement of any such claim.
4.3.2. Subject to the foregoing, however, you, at your own expense, may participate, through your attorneys or otherwise, in the investigation, trial and defense of any such claim, demand or action and any appeal therefrom.
4.4. Exclusive Remedy. The foregoing states Connexionz’s entire liability and your exclusive remedy concerning infringement of intellectual property rights, including but not limited to, patent, copyright and trade secret rights.
5. Limitation of Liability.
5.1. Under no circumstances will either party be liable to the other for any punitive damages or lost profits or other economic loss, lost or degraded data, interruption of business, procurement of substitute products, or for indirect, special, consequential, exemplary or incidental damages (including without limitation any loss of business, revenue, goodwill or use), however caused and regardless of theory of liability, arising out of the use of (or inability to use) the Software provided under this License Agreement, even if such party has been advised of the possibility of such damages.
5.2. These limitations apply to all causes of action in the aggregate, including causes of action arising out of termination of this License Agreement, breach of contract, breach of warranty, negligence, strict liability, misrepresentation, product liability and any other torts.
5.3. The maximum aggregate amount for which either party may be liable under this License Agreement will be limited to the amounts actually paid or payable by you for the Software subject of the claim for which such liability is asserted.
5.4. This section will not apply, however, to:
5.4.1. a party’s breach of confidentiality;
5.4.2. to any claim arising out of your breach of the license restrictions set forth in this License Agreement; or
5.4.3. to any liability we may have to you under the legislation referred to in section 1.4 above (New Zealand Users)
6. Term and Termination.
6.1. Term. The term of this License Agreement and your licenses to the Software and Documentation will commence as of the first to occur of the date of your acceptance of this License Agreement or the date the Software is made available to you and you have commissioned it, and will continue until the termination or expiration of the term of all of the licenses of the Software, unless earlier terminated at the end of any timeframe specified in a Sales Order or as provided below.
6.2.1. Connexionz may terminate this License Agreement effective ten (10) days after written notice to you in the event that you fail to pay when due any fees for the Software as provided in a Sales Order.
6.2.2. Either party may terminate this License Agreement effective thirty (30) days after written notice to the other party (“Breaching Party”) in the event that the Breaching Party has breached a material provision of this License Agreement and the Breaching Party does not cure such breach within such thirty (30) day period.
6.3. Rights and Obligations upon Termination or Expiration.
6.3.1. Upon termination of this License Agreement, all rights granted to you under this agreement will immediately cease and you will:
(i) immediately discontinue all use of the Software and Documentation; and
(ii) destroy all copies of the Software and Documentation.
6.3.2. Termination of this License Agreement for any reason will not excuse your obligation to pay in full any and all amounts due for the Software, nor will termination result in a refund of any fees paid by you for the Software. The absence of a right to a refund will not preclude you from bringing a claim for damages or other compensation which you are otherwise entitled to bring under this License Agreement.
6.4. Continuing Obligations. The terms and conditions in this License Agreement that by their nature and context are intended to survive any termination of this License Agreement, including, without limitation, Sections:
(i) 2 (Intellectual Property);
(ii) 4 (Intellectual Property Indemnification);
(iii) 5 (Limitation of Liability);
(iv) 6 (Term and Termination);
(v) 7 (Disclaimer of Damages); and
(vi) 8 (Miscellaneous)
will survive such termination of this License Agreement for any reason and will be fully enforceable thereafter.
7.1.1. All notices, demands or other communications under this License Agreement will be in writing, will reference this License Agreement, and will be deemed given:
(i) when delivered personally;
(ii) five (5) days after having been sent by registered or certified mail, return receipt requested; or
(iii) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt.
7.1.2. All communications will be sent to the address for such party as last provided to the other, subject to modification by giving notice as provided in this agreement.
7.2. Governing Law.
7.2.1. This License Agreement will be construed and governed in accordance with the applicable laws as determined (based on your location) in accordance with the table set out at the end of this section without regard to any rules of conflicts or choice of law provisions that would require the application of the laws of any other jurisdiction.
7.2.2. All disputes arising out of or relating to this License Agreement will be submitted to the exclusive jurisdiction of the applicable courts as determined (based on your location) in accordance with the table set out at the end of this section , and each party to this Agreement irrevocably consents to such jurisdiction and waives all objections to this venue.
7.2.3. The parties to this License Agreement as a result of this document waive trial by jury in any action, proceeding, claim or counterclaim brought by either of them against the other on any matters whatsoever arising out of or in any way connected with this License Agreement.
|Jurisdiction where you are permanently located||Governing Law of this Licence Agreement||Courts with jurisdiction to hear matters concerning this License Agreement|
|United States||Laws of the state of California||State or federal courts of competent jurisdiction located in Orange County, California|
|Canada||The Laws of Canada||The Courts of Canada|
|Australia||The Laws of Australia||The Courts of Australia|
|United Kingdom||The Laws of the United Kingdom||The Courts of the United Kingdom|
|European Union||The laws of the European Union Member Country in which the licensee is permanently located.||The Courts of the European Union Member Country in which the licensee is permanently located.|
|New Zealand||The laws of New Zealand||The Courts of New Zealand|
|Other (rest of the world)||The laws of New Zealand||The Courts of New Zealand|
7.3.1. If any one or more of the provisions of this License Agreement is determined to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any of the remaining provisions or portions of that will not be affected or impaired as a result of that and will nevertheless be binding between the parties.
7.3.2. In the event any provision of this License Agreement is found to be invalid, illegal, or unenforceable, the parties will modify that provision in a manner that gives effect to the intent of the parties in entering into the License Agreement.
7.4. Waiver or Delay.
7.4.1. No failure to exercise or delay by a party in exercising any right, power, or remedy under this License Agreement operates as a waiver of such right, power, or remedy.
7.4.2. A single or partial exercise of any right, power, or remedy does not preclude any other or further exercise of that or any other right, power, or remedy.
7.4.3. A waiver is not valid or binding on the party granting the waiver unless made in writing.
7.5. Export Laws.
7.5.1. The Software is subject to United States export control jurisdiction, and may not be shipped, transferred, re-exported to any country or recipient, or used for any purpose prohibited by any applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations as well as end-user, end-use, and destination restrictions issued by the United States and other governments.
7.5.2. You will not export or re-export the Software without first obtaining the appropriate U.S. or foreign government export licenses.
7.6. Entire Agreement.
7.6.1. This License Agreement constitutes the entire understanding and agreement between the parties with respect to the subject matter of this License Agreement and supersedes all previous agreements and communications between the parties concerning such subject matter. This section will not limit or effect any rights and remedies you may have under the legislation referred to in section 1.4 (New Zealand Users) or any other legislation which cannot be lawfully contracted out of or modified by agreement.
7.6.2. No modifications may be made to this License Agreement except in writing, signed by both parties.
7.7. Benefit of Agreement. This License Agreement will bind and inure to the benefit of the parties and their respective permitted successors and assigns.
7.8. Cumulative Remedies. Except as otherwise provided by this License Agreement, all remedies of the parties under this agreement are non-exclusive and are in addition to all other available legal and equitable remedies.
7.9. Force Majeure. Neither party (“Affected Party”) will be liable or deemed to be in default for any delay or failure in performance under this License Agreement (except for payment obligations) resulting, directly or indirectly, from acts of God, civil or military authority, acts of the public enemy, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements, strikes, labor disputes or any causes beyond the Affected Party’s reasonable control provided that the Affected Party will promptly resume or remedy, as the case may be, the performance of its obligations under this Agreement as soon as practicable.
7.10. Construction of Agreement.
7.10.1. Each party acknowledges that it has had the opportunity to review this License Agreement with legal counsel of its choice.
7.10.2. The titles and headings in this agreement are for reference purposes only and will not in any manner limit the construction of this License Agreement, which will be considered as a whole.
7.11. Choice of Language.
7.11.1. The original version of this License Agreement has been written in English, which will be the controlling language in all respects.
7.11.2. Any translations into any other language are for reference only and will have no legal or other effect.
7.12. Personal Data; Consent to Process and Transfer.
7.12.1. You agree to comply with all applicable laws and regulations which may govern your use of the Software, including, but not limited to, laws pertaining to the collection and use of personal data and to the transfer of data over state or other jurisdictional lines.
7.12.2. You agree that Connexionz, its affiliates, and agents may collect and use information you provide in relation to any support services performed with respect to the Software and requested by you.
7.12.3. Connexionz agrees not to use this information in a form that personally identifies you, except to the extent necessary to provide such services.
7.12.4. You agree that Connexionz may transfer your information to the United States or other countries for use in accordance with this Section.
7.13. Conflicts. In the event of a conflict between this License Agreement and any other document or agreement involving the Software, the terms of this License Agreement shall take precedence to the extent of such conflict.
7.14. Trademarks. This License Agreement does not grant you any rights in connection with any trademarks and/or service marks of Connexionz.
This EULA was last updated 22 June 2022.