This End User License Agreement (“EULA”) governs your use of the AIMS360 software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements, modifications, add-ons, of the foregoing (the “Service Software”), as provided to you (“you” or “your”) for use (remotely or otherwise) pursuant to and subject to a SaaS Cloud Services and Purchase Software License Agreement and all exhibits and schedules attached thereto (the “Underlying Agreement”) between AF Technology, LLC d/b/a AIMS 360 (“AIMS360”) and your employer or other person or entity who owns or otherwise lawfully controls the computer on which the Service Software is being accessed or installed and has entered into an Underlying Agreement (“Customer”).
Any terms used herein and not otherwise defined shall have the definition set forth in the Underlying Agreement. In the event that any provision of this EULA and any provision of the Underlying Agreement are inconsistent or conflicting, such provisions of the Underlying Agreement shall control, but only to the extent that such provision is inconsistent or conflicting with this EULA.
AIMS360 PROVIDES YOUR ACCESS TO THE SERVICE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM, AND SUBJECT TO THE TERMS AND CONDITIONS OF THE UNDERLYING AGREEMENT. BY [CLICKING THE “ACCEPT” BUTTON] YOU:
(a) ACCEPT THIS EULA AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS;
(b) REPRESENT AND WARRANT THAT YOU HAVE THE FULL RIGHT, POWER AND AUTHORITY TO ENTER INTO AND PERFORM YOUR OBLIGATIONS UNDER THIS EULA, AND YOU HAVE THE FULL RIGHT, POWER AND AUTHORITY TO BE BOUND TO THIS EULA (AND TO BIND YOUR BUSINESS AND/OR THE CUSTOMER AS APPLICABLE) AND YOU ARE NOT BARRED OR OTHERWISE LEGALLY PROHIBITED FROM ACCESSING OR USING THE SERVICE SOFTWARE;
(c) REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND
(d) REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED USER AND WILL ONLY CONTINUE TO ACCESS AND USE THE SERVICE SOFTWARE SO LONG AS YOU ARE AN AUTHORIZED USER AND ONLY IN YOUR CAPACITY AS AN AUTHORIZED USER ACTING ON BEHALF OF CUSTOMER FOR CUSTOMER’S INTERNAL USE SUBJECT TO THE TERMS AND CONDITIONS OF THE UNDERLYING AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, AIMS360 WILL NOT AND DOES NOT LICENSE THE SERVICE SOFTWARE TO YOU AND YOU MUST NOT ACCESS OR USE THE SERVICE SOFTWARE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS EULA, YOU ARE NOT GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS EULA, AND THIS EULA EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF AIMS360’S SERVICE SOFTWARE.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, you agree as follows:
Capitalized terms have the meaning set forth in Schedule 1 below and where otherwise defined below.
Subject to and conditioned upon your strict compliance with all terms and conditions set forth in this EULA, AIMS360 hereby grants to you a personal, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable, limited license to use the Service Software, subject to all conditions and limitations set forth in this EULA, so long as you remain an Authorized User acting in your capacity as such for Customer.
This license grants you the right, exercisable solely by you, to:
(a) Access and use the Service Software solely for the Customer’s internal business use solely in the United States or Canada in accordance with this EULA, and Customer’s obligations under the Underlying Agreement.
(b) If the Service Software was licensed pursuant to a Purchase Agreement, install in accordance with the Underlying Agreement, one (1) copy of the Service Software on a computer owned or leased, and controlled by, Customer for Customer’s sole use subject to the terms and conditions of the Underlying Agreement. Unless otherwise set forth in the Underlying Agreement, such computer shall be for a single Authorized User.
(c) Use and run the Service Software in accordance with this EULA and the Underlying Agreement, and solely for Customer’s internal business purposes. If the Service Software was licensed pursuant to a Purchase Agreement, then such use is permitted only on the computer on which the Service Software is installed, at the physical location thereof and not via any remote access or other network.
(d) If the Service Software was licensed pursuant to a Purchase Agreement, transfer any licensed copy of the Service Software from one computer to another, provided that Customer notifies AIMS360 in writing of each such transfer.
The foregoing license will terminate immediately on the earlier to occur of:
(a) The expiration or earlier termination of the Underlying Agreement between AIMS360 and the Customer; or
(b) Your ceasing to be authorized by Customer to use the Service Software as an Authorized User for any or no reason, including without limitation the termination by Customer of your employment or engagement.
Except as specifically set forth in this Section 2, nothing in this EULA grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Service Software, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Service Software and the Third Party Materials are and will remain with AIMS360 and the respective rights holders in the Third Party Materials.
You shall not, and shall not permit any other Person to, access or use the Service Software except as expressly permitted by this EULA and, in the case of Third Party Materials, the applicable third-party license agreement(s).
For purposes of clarity and without limiting the generality of the foregoing, you shall not:
(a) except as the Underlying Agreement and this EULA expressly permits, copy, modify, translate, adapt, or otherwise or create derivative works or improvements, whether or not patentable, of the Service Software or any part thereof;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Service Software, or any features or functionality of the Service Software, to any Person for any reason, whether or not over a network, or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Service Software, in whole or in part;
(d) bypass or breach any security device or protection used by the Service Software or access or use the Service Software, other for Customer’s internal Permitted Uses, through the use of your own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Service Software or AIMS360 Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code or, except as expressly permitted in Section 3.1, Prohibited Data;
(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Service Software, AIMS360 Systems or AIMS360’s provision of services to any third party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, notices, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Service Software, including any copy thereof;
(h) access or use the Service Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other AIMS360 customer), or that violates any applicable Law;
(i) access or use the Service Software for purposes of competitive analysis of the Service Software, the development, provision or use of a competing software service or product or any other purpose that is to the AIMS360’s detriment or commercial disadvantage; or
(j) otherwise access or use the Service Software beyond the scope of the authorization granted under this Section 2.
If you become aware of any actual or threatened activity prohibited by Section 2.4, you shall:
(a) take all reasonable and lawful measures within your control that are necessary to stop the activity or threatened activity and to mitigate its effects; and
(b) notify AIMS360 of any such actual or threatened activity.
AIMS360 may, directly or indirectly, and by use of a AIMS360 Disabling Device or any other lawful means, suspend, terminate or otherwise deny your access to or use of all or any part of the Service Software, without incurring any resulting obligation or liability, if:
(a) AIMS360 receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires AIMS360 to do so; or
(b) AIMS360 believes, in its good faith and sole discretion, that:
(i) you have failed to comply with any term of this EULA, or accessed or used the Service Software beyond the scope of the rights granted or for a purpose not authorized under this EULA;
(ii) you have been, or are likely to be involved in any fraudulent, misleading or unlawful activities; or
(iii) this EULA expires or is terminated.
This Section 2.6 does not limit any of AIMS360’s other rights or remedies, whether at law, in equity or under this EULA.
You may be able to access Service Software, Support Services or other Services, including making customer service inquiries and posting comments and reviews, on the Website(s). Your use of the Website(s) is subject to the Terms of Use posted on the applicable Website(s), which shall govern all access and use of the Website(s) other than accessing and using the Services Software.
You acknowledge that, except for the Permitted Personal Information Processing (defined below), the Service Software is not designed with security and access management for Processing the following categories of information:
(a) Personal Information or Financial Account Data other than Access Credentials, Customer Account Information, Customer Client Account Information; unique identifiers may be associated with Customer Systems, or other devices used by Customer or its Authorized Users that access or interact with the Service Software (“Device ID(s)”);
(b) data that is classified and/or used on the U.S. Munitions list, including software and technical data;
(c) articles, services and related technical data designated as defense articles or defense services; and
(d) ITAR (International Traffic in Arms Regulations) related data,
(each of the foregoing, “Prohibited Data”).
You shall not, and shall not permit any other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Service Software or any AIMS360 Personnel, except that
(i) Access Credentials may be submitted to obtain access to the Service Software or upon AIMS360’s request;
(ii) Customer Account Information and Customer Client Account Information may be submitted only as specifically requested by AIMS360 into the fields of the Service Software specifically calling for such information for Financial Account Data Processing as applicable (e.g., as called for by AIMS360 to complete a Customer’s Services account profile or process a payment but not otherwise input by a Customer or Authorized User such as into notes fields or other insecure fields); and
(iii) Device IDs may be associated with Customer Systems, or other devices used by Customer or its Authorized Users that access or interact with the Service Software
(collectively (i)–(iii) are “Permitted Personal Information Processing”).
You are solely responsible for reviewing all Customer Data you enter and you shall ensure that no Customer Data constitutes or contains any Prohibited Data except as submitted for, and as part of, the Permitted Personal Information Processing. You irrevocably consent to AIMS360’s data practices as set forth in its privacy policy in effect at the time the data is submitted to, or collected by, AIMS360.
Except as otherwise expressly set forth in this EULA, you have and will retain sole responsibility for:
(a) all Customer Data you enter into the Service Software, including its content and use;
(b) all information, instructions and materials provided by or on behalf of you in connection with the Service Software;
(c) Customer Systems;
(d) the security and use of your Access Credentials; and
(e) all access to and use of the Service Software directly or indirectly by or through the Customer Systems or your Access Credentials, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
You shall:
(a) secure the use of your Access Credentials and protect against any unauthorized access to or use of the Service Software;
(b) control the access and use of the Service Software to ensure compliance with this EULA; and
(c) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Service Software to ensure compliance with this EULA.
You shall immediately inform Customer and the AIMS360 Support Center by sending an e-mail to support@aims360.com of any suspected failure to meet the requirements of this Section 3.4, any suspected breach by you or others acting on behalf of Customer of an EULA or the Underlying Agreement, or any other unauthorized access or use of the Service Software.
All right, title and interest in and to the Service Software and any related materials of any nature whatsoever, including all Intellectual Property Rights therein, are and will remain with AIMS360 and the respective rights holders in the Third-Party Materials. You have no right, license or authorization with respect to any of the Service Software (including Third-Party Materials) except as expressly set forth in Section 2 or the applicable third-party license, in each case subject to Section 2.4. All other rights in and to the Service Software (including Third-Party Materials) are expressly reserved by AIMS360 and the respective third-party licensors. In furtherance of the foregoing, you hereby unconditionally and irrevocably grant to AIMS360 an assignment of any and all right, title and interest in and to the Resultant Data that you may have, including all Intellectual Property Rights relating thereto.
You grant AIMS360 a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of any suggestions or improvements to the Services or the AIMS360 Materials you make, post or submit to us (on or via the Service, or by means other than the Service, including without limitation via our social media pages and accounts such as Facebook, Twitter and LinkedIn) (“Submissions”), and derivative works thereof, for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same, all without any obligation to you not required by applicable law, or explicit terms of our Privacy Policy or applicable Additional Terms.
As permitted by applicable law, and subject to any explicit terms of our Privacy Policy and applicable Additional Terms, you also irrevocably consent to our use and association of your name (and, if part of a Submission, your likeness) in connection with your Submissions and derivatives thereof. As permitted by applicable law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Submissions, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section. In addition, we and our successors, assigns and licensees retain all of the rights held by members of the general public with regard to your Submissions. Our receipt of your Submissions is not an admission of their novelty, priority, or originality, and it does not impair our right to contest existing or future intellectual property rights relating to your Submissions.
In connection with this EULA, AIMS360 may disclose or make available Confidential Information to you. Subject to Section 5.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that AIMS360 considers confidential or proprietary, including information consisting of or relating to AIMS360’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which AIMS360 has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing, the Service Software and AIMS360 Materials are the Confidential Information of AIMS360 and the terms of this EULA are the Confidential Information of AIMS360.
Confidential Information does not include information that:
(a) was rightfully known to you without restriction on use or disclosure prior to such information’s being disclosed or made available to you in connection with this EULA;
(b) was or becomes generally known by the public other than by your or any of Customer’s Representatives’ noncompliance with this EULA;
(c) was or is received by you on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or
(d) was or is independently developed by you without reference to or use of any Confidential Information.
As a condition to being provided with any disclosure of or access to Confidential Information, you shall:
(a) not access or use Confidential Information other than as necessary to exercise your rights or perform your obligations under and in accordance with this EULA;
(b) except as may be permitted by and subject to your compliance with Section 5.4, or otherwise expressly permitted by this EULA or the written consent of AIMS360, not disclose or permit access to Confidential Information other than to Representatives of the Customer who: (i) need to know such Confidential Information for purposes of your exercise of rights or performance of obligations under and in accordance with the Underlying Agreement; (ii) have been informed of the confidential nature of the Confidential Information and your obligations under this Section 5.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 5.3;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care you use to protect Customer’s sensitive information and in no event less than a reasonable degree of care; and
(d) ensure Customer’s Representatives’ compliance with, and be responsible and liable for any of such Representatives’ non-compliance with, the terms of this Section 5. You understand and acknowledge that only Authorized Users are permitted to access the Service Software.
You agree to pay AIMS360 all costs incurred by you in enforcing any of this provision against you, including without limitation, actual attorney fees.
If you or any of Customer’s Representative is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, you shall:
(a) promptly, and prior to such disclosure, notify AIMS360 in writing of such requirement so that AIMS360 can seek a protective order or other remedy or waive its rights under Section 5.3; and
(b) provide reasonable assistance to AIMS360, at AIMS360’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
If AIMS360 waives compliance or, after providing the notice and assistance required under this Section 5.4, you remain required by Law to disclose any Confidential Information, you shall disclose only that portion of the Confidential Information that you are legally required to disclose.
In addition to any other express termination right set forth elsewhere in this EULA, AIMS360 may, to the extent permitted by applicable law, terminate this EULA and your use of the Service Software if:
(a) you harass AIMS360’s employees or agents;
(b) you provide AIMS360 with false statements or information;
(c) you interfere with AIMS360’s operations;
(d) you attempt, without prior authorization from AIMS360, to install, remove or in any way modify AIMS360’s software or hardware;
(e) you engage in the unauthorized use and infringement of AIMS360’s Intellectual Property Rights;
(f) you breach this EULA; or
(k) for any other reason in AIMS360’s sole discretion.
Upon any expiration or termination of this EULA, except as expressly otherwise provided in this EULA or unless otherwise agreed to in writing in advance of expiration or termination:
(a) all rights, licenses, consents and authorizations granted by AIMS360 to you will immediately terminate, and subject to the applicable restrictions set forth therein;
(b) you shall immediately cease all use of any Service Software or related materials and
(i) within five (5) days return to AIMS360, or at AIMS360’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on the Service Software or AIMS360’s Confidential Information; and
(ii) at the request of AIMS360, certify to AIMS360 in a signed written instrument that you have complied with the requirements of this Section 6.2(b).
If any materials relating to the Service Software or any of AIMS360’s Confidential Information cannot be reasonably delivered to AIMS360, you shall render all such materials unusable and certify in writing to the complete destruction of all materials. All such returned materials shall be the sole property of AIMS360. Notwithstanding anything to the contrary in this EULA, all information and materials described in this Section 6.2(b) will remain subject to all confidentiality, security and other applicable requirements of this EULA and the Underlying Agreement; and
(c) AIMS360 may disable your access to the Service Software.
The provisions set forth in the following sections, and any other right or obligation of the parties in this EULA that, by its nature, should survive termination or expiration of this EULA, will survive any expiration or termination of this EULA: Section 2.4, Section 4, Section 5, Section 6.2, this Section 6.3, Section 7, Section 8 and Section 9.
You represent and warrant to AIMS360 that:
(a) you, and your use of the Service Software will comply with all federal, state and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations;
(b) you will not use the Service Software, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service Software; and
(c) you are not engaged in and will not accept payment for any illegal activity in the legal jurisdiction(s) in which you do business or provide goods and/or services.
You shall not use the Service Software where significant damage or injury to persons, property or business may happen if any error occurs. Customer expressly assumes all risks for such use.
EXCEPT FOR ANY EXPRESS COVENANTS OR WARRANTIES MADE BY AIMS360 TO CUSTOMER IN THE UNDERLYING AGREEMENT (IF ANY), ALL SERVICE SOFTWARE AND RELATED MATERIALS ARE PROVIDED “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND, AND, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AIMS360, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER WITH RESPECT TO THE SERVICE SOFTWARE AND RELATED MATERIALS, AND AIMS360 SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, AIMS360 MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE SOFTWARE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOURS, THE CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE, OR THAT ANY DEFECTS THAT MAY EXIST IN THE AIMS360 MATERIALS WILL BE CORRECTED. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
IN NO EVENT WILL AIMS360 OR ANY OF ITS AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS, LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS EULA OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY:
(a) LOSS OF PRODUCTION, GOODWILL, USE, BUSINESS, REVENUE OR PROFIT;
(b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICE SOFTWARE;
(c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN;
(d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE LOSSES OR DAMAGES;
€ FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR
(f) COMPUTER FAILURE OR MALFUNCTION,
REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF AIMS360 OR ANY OF ITS AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS, LICENSORS, SERVICE PROVIDERS OR SUPPLIERS, TO YOU AND CUSTOMER IN THE AGGREGATE, UNDER OR IN CONNECTION WITH THIS EULA OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO AIMS360 IN CONNECTION WITH THE USE OF THE SERVICE SOFTWARE DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
For purposes of this EULA: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this EULA as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this EULA: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this EULA; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this EULA to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this EULA to the same extent as if they were set forth verbatim herein. The headings in this EULA are for reference only and do not affect the interpretation of this EULA.
This EULA constitutes the sole and entire agreement of the parties with respect to the subject matter of this EULA and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
You shall not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of your obligations or performance, under this EULA, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without AIMS360’s prior written consent, which consent AIMS360 may give or withhold in its sole discretion. No delegation or other transfer will relieve you of any of your obligations or performance under this EULA. Any purported assignment, delegation or transfer in violation of this Section 9.3 is void. This EULA is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
This EULA is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this EULA.
No waiver by you of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by you. Except as otherwise set forth in this EULA, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this EULA shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
If any term or provision of this EULA is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this EULA or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this EULA so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
This EULA is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or related to this EULA or the licenses granted hereunder may be instituted in the federal courts of the United States or the courts of the State of California in each case located in the city of Los Angeles and County of Los Angeles, and you irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
You acknowledge and agree that a breach or threatened breach by you of any of your obligations under Section 2.4, Section 3.1, Section 4, or Section 5 would cause AIMS360 irreparable harm for which monetary damages alone would not be an adequate remedy, and you agree that, in the event of such breach or threatened breach, AIMS360 will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Service Software.
“Affiliate” means, with respect to a specified entity, an entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the entity specified.
“AIMS360” has the meaning set forth in the preamble.
“AIMS360 Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by AIMS360 or its designee to disable Customer’s or any Authorized User’s access to or use of the Service Software automatically with the passage of time or under the positive control of AIMS360 or its designee.
“AIMS360 Personnel” means all individuals involved in the performance of services to the Customer as employees, agents or independent contractors of AIMS360 or any Subcontractor.
“AIMS360 Systems” means the information technology infrastructure used by or on behalf of AIMS360 in providing the Service Software, including all computers, software, hardware, databases, processes, APIs, algorithms, user interfaces, trade secrets, know-how, techniques, designs, electronic systems (including database management systems) and networks, whether operated directly by AIMS360 or through the use of third-party services.
“Authorized User” means each of the individuals authorized to use the Service Software pursuant to the Underlying Agreement and the other terms and conditions of this EULA, and shall include the Customer’s employees who have been issued Access Credentials.
“Confidential Information” has the meaning set forth in Section 5.1.
“Customer” has the meaning set forth in the preamble.
“Customer Account Information” shall mean Financial Account Data of the Customer that is collected, downloaded or otherwise received directly or indirectly from Customer or an Authorized User by or through the Services.
“Customer Client Account Information” shall mean Financial Account Data of the Customer’s clients that is collected, downloaded or otherwise received directly or indirectly from Customer, Customer’s clients, or an Authorized User by or through the Services.
“Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Service Software.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
“Device ID” has the meaning set forth in Section 3.1.
“EULA” has the meaning set forth in the preamble.
“Financial Account Data” means credit card account information or other Customer Data (e.g., ACH direct debit account information) that is subject to the PCI DSS or other financial industry rules or regulations regarding account information.
“Harmful Code” means any software, hardware or other technology, device or means, now or hereafter known or devised, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Service Software or AIMS360 Systems as intended by this Agreement. Harmful Code does not include any AIMS360 Disabling Device.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance provider.
“PCI DSS” shall mean the Payment Card Industry Data Security Standard.
“Permitted Personal Information Processing” has the meaning set forth in Section 3.1.
“Permitted Use” means any authorized use of the Service Software, and such of the Resultant Data that AIMS360 delivers or makes available to Customer for Customer’s internal business use, by an Authorized User for the benefit of Customer, and solely for Customer’s internal business operations, subject to the terms and conditions hereof.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Personal Information” means any information that does or can identify a specific individual. Personal Information includes all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, “Personal Data” as defined in the EU Data Protection Directive (Directive 95/46/EEC), “Personal Information” as defined under the Children’s Online Privacy Protection Act of 1998, and all rules and regulations issued under any of the foregoing.
“Process” means to take any action or perform any operation or set of operations that the Service Software is capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
“Prohibited Data” has the meaning set forth in Section 3.1.
“Purchase Agreement” means a purchase agreement entered into with AIMS360 prior to December 31, 2016, pursuant to which the Customer obtained a license to install the Service Software on one or more of Customer’s computers.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, managers, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.
“Resultant Data” means information, data and other content that is derived by or through the Service Software from Processing Customer Data.
“Underlying Agreement” has the meaning set forth in the preamble.
“Service Software” has the meaning set forth in the preamble.
“Subcontractor” shall mean any third party that AIMS360 engages from time to time in its discretion to perform services to the Customer.
“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Service Software that are not proprietary to AIMS360.
“you” and “your” has the meaning set forth in the preamble.
“Website(s)” means such web sites, mobile apps and other online service locations made available by AIMS360, but excludes the Service Software, Cloud Services and Support Services even if the Website(s) is/are used to access or interact with them.
