Ataccama end user license agreement

This Ataccama End User License Agreement, including all Orders that reference it (“EULA”), is entered into between the Ataccama entity identified under “Ataccama Contracting Entity” below (the “Licensor”) and the entity or person that places an Order for, or accesses or uses, the Licensed Software (the “Customer” or “you”) (Licensor and Customer each a “Party” and together the “Parties”). If you accept this EULA, place an Order, or access or use the Licensed Software on behalf of a company or other legal entity, you represent and warrant that you are authorized to bind that entity to this EULA, and all references to “Customer” and “you” refer to that entity. If you are not so authorized, or you do not agree to this EULA, you must not accept it or access or use the Licensed Software.

This EULA is effective on the earlier of (a) Customer’s initial access to or use of the Licensed Software, including through any online provisioning, registration or ordering process, or (b) the effective date of Customer’s first Order (such date, the “Effective Date”). This EULA governs Customer’s first Order and any later Orders that reference it, whether placed directly with Licensor or through one of Licensor’s authorized distributors, resellers or channel partners.

Ataccama contracting entity

The Ataccama entity that is the Licensor under this EULA is determined by the country of Customer’s billing address stated in the applicable Order or, where there is no Order, the address Customer provides when registering for or accessing the Licensed Software, as follows:

(a)United States, and all countries in North, Central and South America and the Caribbean other than Canada: Ataccama Corp. U.S., 116 Huntington Avenue, Suite 300, Boston, MA 02116, United States (Company ID: 99-0361800);

(b)Canada: Ataccama Corporation, 200 Wellington Street West, Suite 300, Toronto, Ontario M5V 3C7, Canada (Company ID: 2152030; Business Number: 838607612);

(c)United Kingdom: Ataccama UK Ltd., 7 Birchin Lane, London EC3V 9BW, United Kingdom (registered in England and Wales, Company ID: 09869613);

(d)Australia, New Zealand, and all other countries in the Asia-Pacific region: Ataccama Data Platform Pty Ltd, Level 13, 333 George St, Sydney NSW 2000, Australia (ABN: 27 627 649 549); and

(e)all other countries, including the member states of the European Union and the European Economic Area, Switzerland, the Middle East and Africa: Ataccama Software, s.r.o., Sokolovská 685/136F, 186 00 Prague, Czech Republic (Company ID: 28235550).

If an Order expressly names a different Ataccama entity, that entity is the Licensor for that Order. Each Order forms a separate contract between Customer and the Licensor determined for that Order, and references in this EULA to “Licensor” are to that entity.

Agreement

  1. GRANT OF LICENSE, SCOPE OF LICENSE
    1. Grant of License. Subject to the terms of this Agreement, Licensor grants to the Customer a non-exclusive, non-transferable, non-sublicensable and limited license to use the Licensed Software and the Documentation for the period of the Subscription Term.
    2. Standard product. The Licensed Software is a standard product and Licensor does not warrant that it is fit for any particular purpose. The Customer shall be solely responsible for ensuring that the Licensed Software and its functions are fit for Customer’s intended use and comply with Customer’s requirements.
    3. Permitted Use. The Licensed Software may only be used for Customer’s internal business purposes and accessed by the number of Users stipulated in the Order, which may include different types of Users that have different functionality and use restrictions. Each User must keep its login credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this EULA and actions taken through their accounts. Customer will promptly notify Licensor if it becomes aware of any compromise of its Users’ login credentials. Customer shall at all times during the Subscription Term permit Licensor or its designated auditor to verify that Customer’s use of the Licensed Software does not exceed the number of User subscriptions purchased by the Customer, provided that such audits may occur no more frequently than once per year.
    4. Restrictions, Unauthorized Use. Customer acknowledges that the use of the Licensed Software is provided for Customer’s benefit only and agrees not to use the Licensed Software for the benefit of any third party. The Customer shall not and shall not permit any third party to: (i) whether in whole or in part, sell, rent, lease, sublease, license, sublicense, lend, time-share, transfer, assign or provide the use of, or access to, the Licensed Software, or any part thereof; (ii) reverse engineer, de-compile or disassemble the Licensed Software or any part thereof unless and to the extent, permitted by mandatory statutory provisions; (iii) modify, alter, correct, adapt, translate, enhance, or otherwise create derivative works of any Licensed Software or any part thereof; (iv) except as permitted elsewhere in this EULA, make additional copies of the Licensed Software, Documentation or any part thereof; (v) mortgage, charge or otherwise encumber either the Licensed Software, or any part thereof, or its rights under this EULA; (vi) use the Licensed Software for other than for the use allowed hereunder or in any manner or for any purpose or application not expressly permitted by this EULA or use any open-source components in any manner or for any purpose or application not expressly permitted by the controlling open-source license; (vii) bypass or breach any security protection or authentication methods used for or contained in the Licensed Software or any part thereof, to create unauthorized Internet links to the Licensed Software, or to misuse any errors, bugs, or other deficiencies of the Licensed Software; (viii) use the Licensed Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights, this EULA, or any applicable laws; (ix) access the Licensed Software in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Licensed Software or any part thereof or (x) use any instruments that may adversely affect operation of the Licensed Software.
    5. Territory. The Licensed Software may be accessed and used by the Customer only within or from the Territory. Customer acknowledges that in case the Territory is specified as “global”, “worldwide”, or “unlimited”, the Licensed Software may be accessed and used by the Customer anywhere in the world, but any warranties, representations, obligations, and guaranties of Licensor given under this EULA to the Customer apply only in relation to access and use within or from the territory or the country where the Customer has its registered office as indicated in the applicable Order and of USA, Canada, UK, EEA, Australia, and New Zealand.
    6. EULA violation. Any use of the Licensed Software beyond the scope of this EULA shall constitute a violation of this EULA.
    7. Financial Terms. For the avoidance of doubt, the financial terms, including pricing, fees, and payment schedules, are not governed by this EULA. Such terms shall be set forth in the applicable Order.
  2. RESERVATION OF RIGHTS
    1. Customer Data. Customer shall retain all rights, title and interest in Customer Data. Subject to the license in this Section 2.1, Licensor acquires neither rights, title, nor interest from Customer, its Affiliates or its Users, to Customer Data nor any Intellectual Property Rights thereto. Customer hereby grants to Licensor all necessary consents, permissions and a non-exclusive, non-transferable, worldwide license to use Customer Data solely to the extent necessary to provide the Licensed Software in accordance with this EULA (and as otherwise as instructed by Customer or a User). Customer is solely responsible for Customer Data uploaded, transmitted to and processed through the Licensed Software, including its format, integrity, accuracy, maintenance, and its compliance with all applicable laws, rules, and regulations.
    2. Reservation of rights. Licensor owns and retains all rights, title and interest to the Licensed Software and any part thereof, Documentation and all its copies, including all Intellectual Property Rights thereto. Further, Licensor owns and retains all right, title and interest in and to (a) all improvements, derivative works, enhancements or modifications of the Licensed Software, Documentation or any part thereof created by Licensor (b) any software, applications, inventions, other technology or other deliverables developed in connection with support services, unless otherwise specifically provided in this EULA; and (c) all Intellectual Property Rights related to any of the foregoing.
    3. No implied licenses. Except for the limited rights and licenses expressly granted under this EULA, nothing in this EULA grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the Licensed Software or any part thereof.
    4. Usage data. Except for the Customer Data, Licensor retains all rights to data resulting or derived from the use of the Licensed Software (e.g. analytical data or data generated by the Licensed Software itself which relate to the provision of the Licensed Software) (the “Usage Data”), provided such Usage Data cannot be reverse engineered, modified or recreated to identify any Customer Data.
    5. Customer’s feedback. To the extent Customer, its Affiliates’ or any of its Users, provides any feedback or suggestions (“Feedback”) regarding the Licensed Software, Customer hereby unconditionally and irrevocably assigns all rights, title and interest in and to such Feedback to Licensor, including any and all worldwide Intellectual Property Rights relating thereto at no additional charge and acknowledges that Licensor may freely use, reproduce, modify, distribute, sell or otherwise exploit Feedback, including incorporating such Feedback into the Licensed Software.
    6. Promotion of Parties. Customer hereby consents to and authorizes the use of its name, trademarks or logos by Licensor in connection with promotional, marketing, sales, financial and public relations materials, including the identification of Customer as a client, without requiring any additional notice. Licensor will comply with all Customer’s branding guidelines to the extent provided by the Customer to Licensor prior to the execution of this EULA.
    7. Product Analytics. Notwithstanding anything to the contrary in this EULA, Licensor shall have the right to collect and analyze anonymized aggregate data derived from Customer Data and other information relating to the provision, use and performance of various aspects of the Licensed Software and related systems and technologies, and Licensor will be free (during and after the Subscription Term) to (i) use such information and data to improve and enhance the Licensed Software and all capabilities of artificial intelligence that will increase the performance and effectiveness of the Licensed Software or for other development, diagnostic and corrective purposes in connection with the Licensed Software, and (ii) make such data available in the aggregated and/or anonymized form, i.e. via so called anonymized industry standard trends.
  3. THIRD PARTY SOFTWARE
    1. Inclusion of third party software. The Licensed Software may include third party and Open Source Software, which license notices or terms and conditions may apply. By accepting this EULA, the Customer is also accepting such additional terms and conditions.
    2. Change of Third Party Terms. Parties acknowledge that the license terms of the third party and Open Source Software may change. If the terms of any third party license necessary for full and undisturbed use of the Licensed Software is changed or revoked, then Licensor may at its discretion replace or adapt the respective part of the Licensed Software. If Licensor is not able to replace or adapt the respective part of the Licensed Software in a manner that does not materially change the Licensed Software or Customer’s rights under this EULA, both Parties shall negotiate in good faith an adequate adjustment of the licensing terms of this EULA. Both Parties also agree to cooperate, in such a case, in order to obtain the relevant third party license to the extent necessary for the Customer. If Parties do not reach an agreement over new terms or if the third party license is not obtained within 30 days from revocation thereof, either Party may terminate this EULA by a written notice with an immediate effect.
    3. Vulnerability management program. Licensor promotes an effective software vulnerability management program for open source software based on Common Vulnerability and Exposure Ratings (CVE) and monitors and fixes any known vulnerabilities of the open-source software, which were assigned a CVE number. Licensor will make all reasonable efforts to fix any such known vulnerability with assigned CVE number without undue delay by providing the Customer, at no charge, with patches or remediation steps to address such known vulnerabilities within the supported software stack.
  4. PAYMENT TERMS
    1. Payment Terms. If Customer purchases the Licensed Software from an authorized reseller (a “Reseller”) instead of from Licensor, Customer will pay applicable amounts to the Reseller as agreed in an Order between Customer and Reseller. Customer’s order details (e.g., scope of use and fees) will be stated in an Order placed by Reseller with Licensor on Customer’s behalf. The Reseller is responsible for the accuracy of such Order. If Customer is entitled to a refund under such Order or this EULA, Licensor will refund any applicable fees to Reseller and Reseller will be solely responsible for refunding the appropriate amounts to Customer, unless otherwise agreed by Licensor. Reseller is not authorized to modify this Agreement or make any promises or commitments on Licensor’s behalf, and Licensor is not a party to, or responsible under, any separate agreement between Customer and Reseller, and is not responsible for Reseller’s acts, omissions, products or services.
  5. INFORMATION AND DATA SECURITY
    1. Security standards. The Parties agree to maintain commercially reasonable security standards for the access and use of the Licensed Software. For this purpose, the Parties will use good industry practice for protection of Licensed Software, and other customary procedure to monitor the Licensed Software including Customer Data, in order to avoid the introduction of any unlawful content, content infringing third party rights, malicious codes that could interfere with or disrupt the proper operation, and any security control of the systems and networks used by Licensor in the provision of the Licensed Software. In addition to the above, Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all credentials and protect against any unauthorized access to, or use of, the Licensed Software; (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Licensed Software and (c) shall instruct its Users and other relevant Personnel of the security practices to be applied in connection with the use of the Licensed Software. Customer shall promptly notify Licensor in writing of any actual or threatened security concerns.
    2. Data protection. The Parties will comply with, and will cause their Personnel to comply with, all applicable Data Privacy Laws. Licensor undertakes that the Personal Information of Customer will be processed in accordance with its then effective policies, which will be provided to Customer by Licensor upon request. Licensor’s operations are ISO/IEC 27001 certified.
    3. Personal Information. If Licensor, in connection with the provision of the Licensed Software to the Customer, has access to the Customer’s Personal Information, then Licensor shall: (i) access, copy, view, process or use such Personal Information only to the extent necessary for provision of the Licensed Software to the Customer under this EULA and (ii) not disclose, transfer, process or provide the Personal Information to a third party (other than their Personnel, whereas similar level of protection of Personal Information is ensured for any such disclosures and transfers), unless obtaining a prior written consent of the Customer (this Section 5.3 of does not apply if Licensor is obliged to provide such Personal Information to a third party under the applicable Data Privacy Laws).
    4. Data Breach procedure. Licensor will implement commercially reasonable security standards in accordance with good industry practice to seek, detect and identify any Data Breaches. If Data Breach is identified, Licensor shall: (i) within reasonable time as of the detection or identification of actual Data Breach notify the Customer; (ii) identify in reasonable term with respect to the severity and character of the Data Breach, the cause or suspected cause of the Data Breach; (iii) provide the Customer based on the prior Customer’s request with information regarding the actual Data Breach, including information on newly implemented security measures (to the extent that the provision of information itself does not undermine security measures); (iv) without undue delay, take all commercially reasonable steps to (a) mitigate the negative effects of Data Breach; and (b) implement such a measures to mitigate the potential risk of reoccurrence of the Data Breach.
  6. CONFIDENTIALITY
    1. Confidentiality obligation. In connection with this EULA, each Party may disclose or make available to the other Party Confidential Information. The Disclosing Party shall not in part or in whole copy, disclose, publish or reveal any Confidential Information of the Receiving Party disclosed in connection with this EULA, at any time prior to intentionally making such information public by the Disclosing Party.
    2. Receiving Party. Receiving Party agrees that (i) it shall maintain the Confidential Information in confidence using at least the same degree of care as it employs in maintaining as secret its own Confidential Information, but always at least a reasonable degree of care; (ii) it shall use the Confidential Information only in accordance with this EULA; (iii) it shall limit access to the Confidential Information solely to those of its Personnel who have a direct and immediate need of such access to Confidential Information, and shall ensure that such Personnel shall be bound by and comply with the provisions hereof; (iv) it shall not disclose or transfer the Confidential Information to any third parties, other than its Affiliates or Personnel, provided however that such disclosure or transfer is on a need-to-know basis; and (v) it has no ownership interest in the Confidential Information of the Disclosing Party.
    3. Exclusion of confidentiality. The Receiving Party may disclose or make available the Confidential Information to the necessary extent: (i) to the Receiving Party’s attorney, auditor, tax or other advisor, provided the respective advisor is bound by a statutory obligation of confidentiality; (ii) to a third party for purpose of performing due diligence of the Receiving Party in connection with the sale or intended sale of the Receiving Party, its part, or its business operations, provided such third party is bound by an obligation of confidentiality no less restrictive than the obligations in this Section 6; (iii) the Confidential Information is required to be disclosed by a decision of a court, applicable law (legislative/administrative regulations) or a public administration body, provided, however, that Receiving Party has provided the Disclosing Party with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy and that, if such protective order or other remedy is not available or is not successfully awarded, Receiving Party furnishes only that portion of the Confidential Information that is legally required; and (iv) based on the Disclosing Party’s prior written consent, which must specify the Confidential Information and the manner and scope of its use, and provided such third party is bound by an obligation of confidentiality no less restrictive than the obligations in this Section 6.
    4. Loss of Confidential Information. The Receiving Party is obligated to notify the Disclosing Party immediately about any unauthorized disclosure, loss or theft of Confidential Information or media containing Confidential Information, about any other leak of Confidential Information or any other situation, which results or may result in breach of the Receiving Party’s obligations under this EULA.
    5. Confidentiality of a dispute. The Parties to this EULA agree to keep confidential to themselves and to their legal and other professional advisers the existence and details of any arbitral proceedings pursuant to Section 13.
    6. Term of confidentiality. The confidentiality obligations contained in this EULA will remain in full force and effect for the duration of this EULA and subsequently for a period of three (3) years starting from the date of termination of this EULA.
    7. Return/removal of Confidential Information. The Confidential Information remains and shall remain the sole property of the Disclosing Party and the Receiving Party acknowledges that the Confidential Information has an economic value for the Disclosing Party. After the termination of this EULA, the Disclosing Party shall have a right at any time request in writing from the Receiving Party to: (i) return or to destroy originals of documents and other tangible medium containing the Confidential Information that were transferred to the Receiving Party under this EULA, or (ii) remove from all electronic data storage devices and systems the Confidential Information that was transferred to the Receiving Party under this EULA.
  7. REPRESENTATIONS AND WARRANTIES
    1. Representations. Both Parties represent that: (i) they are incorporated and validly existing under the laws of the jurisdiction of its incorporation; (ii) they are not subject of any voluntary or involuntary petition under any bankruptcy, insolvency or similar law affecting creditors generally; (iii) they are not subject to any winding up, transformation or rehabilitation proceeding; and (iv) the execution of this EULA by its representative, whose signature is set forth at the end of this EULA, has been duly authorized by all necessary corporate actions of such Party.
    2. Exclusion of warranties. ALL LICENSED SOFTWARE, DOCUMENTATION, OR ANY INFORMATION, DATA OR SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS”. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED FOR IN THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER STATUTORY, CONTRACTUAL, EXPRESS, IMPLIED, OR OTHER, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE USE OR NON-INFRINGEMENT OF ANY RIGHTS. WITHOUT LIMITING THE FOREGOING AND UNLESS EXPRESSLY STIPULATED OTHERWISE IN THE AGREEMENT, LICENSOR MAKES NO COVENANT OR WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE, DOCUMENTATION, OR ANY OTHER LICENSOR OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES, OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET CUSTOMER’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE, OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES, OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM, OR NETWORK), EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION, OR BE SECURE, ACCURATE, OR COMPLETE.
    3. Failure to perform. Licensor undertakes that any Errors will be corrected in accordance with Licensor’s then current standards for Support Services. The performance of Licensor’s obligations under this EULA represents Licensor’s’ total liability and full obligation in relation to the Customer as a consequence of any Errors, and the Customer shall have no other claims against Licensor, as a consequence of such Errors. Licensor does not warrant or accept other terms and conditions in relation to the Licensed Software. Accordingly, the Customer shall not be entitled to make any claims against Licensor if the Licensed Software contains errors or inconveniences, which are not covered by this EULA and Licensor fails to correct such errors or inconveniences, or if the operation and performance of the Licensed Software are not free from interruptions or errors.
  8. LIMITATION OF LIABILITY
    1. Limitation of liability. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED FOR IN THE AGREEMENT, NEITHER PARTY OR ANY LICENSOR PERSONNEL SHALL 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 INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, CONSEQUENTIAL LOSS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LITIGATION COSTS, LOSS, DAMAGE OR CORRUPTION OF DATA, LOSS OF GOODWILL OR PRODUCTION, OR BUSINESS OPPORTUNITIES, OR REPUTATION, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, REGARDLESS OF WHETHER PARTIES, LICENSOR AND OTHER PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR SUCH LOSSES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF AN AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. Cap on monetary liability. In no event will the collective aggregate liability of either Party under or in connection with this EULA or use or performance of Licensed Software, or any part thereof, exceed the total amount of fees paid or payable by the Customer for the Licensed Software, whether to Licensor or a Reseller, in the twelve (12) months preceding the relevant incident from which the liability arose.
    3. Exception from Limitations. The limitation of liability and the cap on monetary liability stipulated above shall not apply to: (a) bad faith, gross negligence or willful or intentional misconduct of a Party, its Affiliates or its Personnel; (b) personal injury or death caused by a Party, its Affiliates or its Personnel; (c) losses arising from Customer’s unauthorized use of any Licensed Software and/or any infringement of Licensor’s Intellectual Property Rights; and (d) a Party’s intentional breach of Confidentiality obligations stipulated in Section 6 of this EULA.
    4. Exclusion of Liability. Notwithstanding the prior limitations and/or exceptions, Licensor shall never be liable for any losses or damages as stipulated hereunder: (a) stemming from any modifications, customizations or other changes in the Licensed Software performed by the Customer or by any third parties, unless approved in writing beforehand; (b) if the Licensed Softwares are not used in compliance with the Documentation; (c) caused by omitting to fix, patch or repair a known error, bug or vulnerability by the Customer if such fix, patch or repair was made available to Customer; (d) if a defect was caused by external factors, outside Licensor’s reasonable control, including other programs and malicious software, or caused by such integration of or interaction between the Licensed Software and the Customer Systems, which was not expressly allowed by the Documentation; (e) that could have been prevented by the Customer, if acted with due and reasonable care; (f) that are a result of Customer’s breach of or non-compliance with any express provision of this EULA; and (g) stemming from unavailability of the Licensed Software if it is caused by interruption or failure of telecommunication infrastructure, digital transmission links, or downtime of the third party platform providers on which the Licensed Software are running.
    5. Force Majeure. Neither Party shall be in breach of this EULA, nor liable for delay in performance, or failure to perform, any of its obligations under this EULA (except for any payment obligation), if such delay or failure results from events, circumstances or causes beyond its reasonable control including acts of God, flood, fire, earthquake, tsunami, explosion, epidemics, pandemics, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this EULA, national or regional emergency, strikes, labour stoppages or slowdowns, or other industrial disturbances, passage of new law, or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. A Party whose performance is affected by a Force Majeure event shall give notice to the other Party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure event. During the Force Majeure event, if one Party is non-affected, such Party may similarly suspend its performance obligations until such time as the affected Party resumes performance. If the period of delay or non-performance continues for 3 months, either Party may terminate the affected then-current Subscription Term upon 14-days written notice to the other Party.
    6. Hardship clause. Notwithstanding Section 8.5 above, the Parties are bound to perform their contractual duties under this EULA even if events have rendered performance more onerous than could reasonably have been anticipated at the time of the execution of this EULA.
    7. Liability Exclusion. Any limitation of liability set out in this EULA shall have effect to the maximum extent allowed by law. In some states/jurisdictions mandatory statutory provisions do not allow such exclusion or limitation of liability, which may entail that the limitations stated herein do not apply to the Customer, neither in whole nor in part. However, such limitation of liability shall still be interpreted in a manner that preserves the application of the limitation to the maximum extent permitted by the applicable law.
  9. THIRD PARTY RIGHTS INFRINGEMENT
    1. Infringement Claim. In the event of an Infringement Claim, Licensor will at its own expense and at its own discretion (i) procure for Customer the right to continue using the Licensed Software, (ii) replace the Licensed Software or its part thereto with non-infringing product with equivalent or better capacity and performance, or (iii) terminate the respective Subscription Term with written notice and immediate effect with pro rata refund of relevant fees for the remainder of the respective Subscription Term in a form of service credits for Licensed Software, unless no other services are contracted from the Licensor.
    2. Limited Remedies. Licensor’s performance of its obligations under these Sections 9 and 10 represent Licensor’s total liability and full obligation, and the Customer’s sole and exclusive remedy, as a consequence of any Infringement Claims and the Customer shall have no other claims as a consequence of such Infringement Claims.
  10. INDEMNIFICATION
    1. Licensor’s obligation to indemnify. Licensor shall defend Customer against Infringement Claims and pay to Customer the actual and documented costs, damages and reasonable legal fees finally awarded by a court in an amount up to (one-million dollars) USD 1,000,000 in the aggregate.
    2. Customer’s obligation to indemnify. Customer shall indemnify, defend and hold harmless Licensor and its Personnel from and against any and all Losses incurred by them to the extent that such Losses arise out of or relate to any allegation that any Intellectual Property Right or other right or law, is or will be infringed, misappropriated, or otherwise violated by Customer, its Affiliates, and their Users in relation to use of Licensed Software or otherwise in connection with this EULA, including (but not limited to) (i) Customer Data, including any processing of Customer Data by or on behalf of Licensor in accordance with this EULA; (ii) any materials or information (including data, specifications, software, content, or technology) provided by or on behalf of Customer including Licensor’s compliance with any specifications or directions provided by or on behalf of Customer to the extent it is prepared without any contribution by Licensor; (iii) allegations of facts that, if true, would constitute breach of Customer representations, warranties, covenants or obligations under this EULA; or (iv) gross negligence, wilful misconduct and/or fraud by Customer in connection with this EULA.
    3. Procedure. Each Party’s obligations under Sections 10.1 and 10.2 above are contingent on the indemnified Party immediately: (i) notifying the indemnifying Party of any action, proceedings or claim of a third party in writing as soon as the indemnified Party becomes aware of it; (ii) allowing the indemnifying Party to fully control the defense and any related settlement negotiations, provided however that any settlement (a) does not require the indemnified Party to make any admission of liability or that it acted unlawfully, (b) does not require the indemnified Party to take any action or prohibit the indemnified Party from carrying out any action, unless approved so by the indemnified Party (c) does not affect any other legal proceeding against the indemnified Party; and (iii) cooperating with the indemnifying Party in the defense and any related settlement negotiations by providing it with the appropriate information and assistance required for such defense or settlement.
    4. Conditions regarding Infringement Claim indemnification. Licensor’s duty to defend and indemnify against Infringement Claims shall not apply if (a) the Infringement Claim results from an unauthorized use of the Licensed Software, or the combination, operation or use of the Licensed Software with equipment, software or data not supplied, supported or approved by Licensor and an Infringement Claim would not have occurred but for such combination, operation or use, or (b) the Infringement Claim results from the Customer’s failure to use updated or modified Licensed Software provided to Customer to avoid an Infringement Claim. Any modification of the Licensed Software made by anyone other than Licensor shall render the above duty to defend and indemnify null and void in respect of any part of the Licensed Software, which has been modified or affected by such modification, unless it can be proven that these modifications are not a cause of the Infringement Claim.
    5. Defense by the indemnified Party. If the indemnifying Party does not comply with the procedural obligations in Section 10.3, the indemnified Party shall be entitled, but not obliged to defend itself against the claim at its expense. Upon notifying the indemnifying Party that it intends to do so, the indemnified Party shall be irrevocably authorized by the indemnifying Party, to the extent legally possible, to assume the defense of the legal suit or proceedings brought forward against the indemnified Party, and the indemnified Party shall be entitled to take legal action/proceedings and/or make a settlement regarding the Infringement Claim. The indemnifying Party shall provide the indemnified Party with the appropriate information or assistance for such defense or settlement.
    6. Mitigation. Each Party has the duty to mitigate the claims that would otherwise be recoverable from the other Party pursuant to this EULA by taking appropriate and reasonable actions to reduce or limit the amount of such claims.
  11. TERM AND TERMINATION
    1. Duration of this EULA. This EULA shall become effective on the Effective Date and shall continue for the period until the end of the latest active Subscription Term, unless terminated earlier in accordance with this EULA.
    2. Right to use. The right to use the Licensed Software shall commence on the respective Subscription Start Date and shall continue for the period of the Subscription Term as set forth in an Order. Renewal following the Subscription Term shall be set forth in the applicable Order.
    3. Termination without a cause. Neither Party shall be entitled to terminate this EULA without a cause at any time.
    4. Termination for a cause. In addition to any other termination right stipulated in this EULA, either Party may terminate this EULA by a written notice delivered to the other Party if (a) the other Party breaches any material term or condition of this EULA and fails to cure such breach within thirty (30) days after receiving notice of the breach; (b) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts, including, in the case of Customer, the failure to pay any amount due under an Order where such failure continues for more than 30 days; (c) a winding up process is initiated in respect of the other Party; (d) insolvency proceedings are initiated in respect of the other Party by this other Party; (e) the other Party is prohibited from performing its business activity in the Territory; or (f) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
    5. Obligations upon termination. Upon termination of this EULA for any reason: (a) each Party shall cease all activities authorized by this EULA; (b) any then-current subscription pursuant to an Order will cease to exist for the remainder of the applicable Subscription Term; (c) Customer shall cease all use and access to the Licensed Software, unless specifically allowed under this EULA in relation to exit assistance; and (d) both Parties shall return or destroy (as may be instructed) any and all copies of data, materials, information or software (as applicable) of the other Party, including any copies in a computer memory or on data storage devices; (e) both Parties shall comply with other obligations specifically stipulated in relation to the termination of this EULA.
    6. Survival. Any provision of this EULA, which expressly or by implication is intended to come into or continue in force on or after termination or expiration of this EULA, shall remain in full force and effect.

The following provisions expressly survive any termination or expiration of this EULA: Sections 2 (Reservation of Rights), 3 (Third Party Software), 6 (Confidentiality), 8 (Limitation of Liability), 10 (Indemnification), 11 (Term and Termination), 13 (Governing Law and Dispute Resolution), 14 (Miscellaneous).

  1. CHANGE MANAGEMENT
    1. Changes to Licensed Software. Licensor has the right, in its sole discretion, to make any changes to the Licensed Software and Documentation that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of the Licensed Software to its customers; (ii) the competitive strength of or market for the Licensed Software; or (iii) the cost efficiency or performance of the Licensed Software; or (b) to comply with applicable laws.
    2. Adjustment Events. Licensor has the right to make any changes to the Licensed Software and Documentation, including changes to time or performance or suspension of any performance standards, including applicable service levels, where: (a) there is a material change to or deficiency in the information that the Customer has supplied to Licensor; (b) there is a material change to the service needs or requirements of the Customer on or after the Effective Date; or (c) Licensor’s third-party infrastructure providers materially change the cost burden on Licensor ((a) through (c), an “Adjustment Event”). Any Adjustment Event, and its impact to this EULA, must be agreed in writing by both Parties as an addendum to this EULA. If the Parties cannot reach agreement within thirty (30) days of notice of an Adjustment Event, then either party may terminate this EULA.
  2. GOVERNING LAW AND DISPUTE RESOLUTION
    1. Governing Law and Dispute Resolution. This Agreement shall be governed by the laws of England and Wales, without regard to conflicts of laws principles. Any dispute arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (LCIA) Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three. The seat, or legal place, of arbitration shall be London. The language to be used in the arbitral proceedings shall be English.
    2. Interim measures. Parties agree and acknowledge that the arbitral tribunal may, at the request of a Party, grant interim or conservatory measures against another Party as well as amend, suspend or revoke any such measures. Parties also agree and acknowledge that this Section 13.2 does not prevent the Parties from applying to any competent national authority for interim or conservatory measures. A request to a national authority to order such measures or to enforce such measures already ordered by the arbitral tribunal shall not constitute an infringement or waiver of the arbitration agreement and shall not affect the powers of the arbitral tribunal.
  3. MISCELLANEOUS
    1. Export Controls. Each Party agrees to comply fully with all applicable export laws and regulations which may apply from time to time to the provision or usage of the Licensed Software or to other performance of this EULA. The Customer agrees to fully indemnify Licensor against all Loss to the extent such Loss arises out of Customer’s breach of this Section 14.1.
    2. Assignment. Customer shall not assign or transfer this EULA, in whole or in part, or any rights or obligations herein, without the prior written consent of Licensor, except in the event of an acquisition of Customer’s business to which this EULA exclusively relates, to the successor to such business. Any purported assignment without Licensors consent shall be deemed null and void. Licensor reserves the right to assign or transfer this EULA, including its rights and obligations under this EULA, in whole or in part, to an Affiliate, or to a third party.
    3. Communication. Parties hereby agree that any written notice shall be deemed binding, valid and delivered, if it is delivered to either of the other Party’s contacts as set forth below. Any change of the contact persons shall be notified to the other Party without undue delay.
      1. If to Licensor:

The address of the applicable Ataccama entity set out under “Ataccama Contracting Entity” above, Attention: Legal Department, with a copy by email to [legal@ataccama.com].

  1. If to Customer:

The billing address and contact person stated in the applicable Order or, where there is no Order, the address and email contact Customer provides when registering for or accessing the Licensed Software.

  1. Severability and validity. If any provision of this EULA is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this EULA. If any provision of this EULA is deemed deleted, Parties shall negotiate in good faith a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
  2. Interpretation. Wherever the singular is used in this EULA the same will be construed as meaning the plural if the context requires, unless specifically stated otherwise. All headings used in this EULA are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision.
  3. Exclusive remedies. The performance of Licensor’s obligations under this EULA represents Licensor’s total liability and full obligation to Customer in relation to the Licensed Software, and the Customer shall have no claims against Licensor related to the Licensed Software other than those specified in this EULA.
  4. Binding nature. This EULA and all of its provisions enures to the benefit of, and become binding upon, the Parties and the successors and permitted assigns of the respective Parties. Nothing expressed or implied in this EULA is intended or shall be construed to confer upon or give any person, other than the Parties and their Affiliates, successors and permitted assignees, any right or remedies under or by reason of this EULA.
  5. Waiver of rights. No failure or delay by a party to exercise any right or remedy provided under this EULA or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
  6. Amendments. This EULA may be amended, modified or revoked in whole or in part only by a written amendment signed and agreed on by both Parties. Reference to this EULA herein shall include any amendment hereof.
  7. Entire EULA. This EULA constitutes the sole and entire agreement between the Parties, and supersedes any previous agreements, understandings and arrangements between the Parties relating to the Licensed Software. Each Party acknowledges that in entering into this EULA it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this EULA.
  8. Counterparts. This EULA may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one EULA.
  9. DEFINITIONS
“Affiliate”means any entity that, directly or indirectly, controls, is controlled by or is under common control of a Party to this EULA (but only for so long as such control exists), where “control” means the ownership of more than 50% of the voting rights in that entity.
“EULA”means this End User License Agreement.
“Business day”means any day except any Saturday, any Sunday, or any day on which banking institutions are required by law or other governmental action to close in the jurisdiction of Customer.
“Confidential Information”means, without regard to the form or medium (whether tangible or intangible, oral, written, electronic or other), all information that: (i) is not generally known and that relate to the Disclosing Party or its activities, including: a) information that is a subject of the Disclosing Party’s trade secret or intellectual property, especially know-how, software functional specification, source codes, object or machine codes, computer programs, proposals, plans, outlines, concepts, specifications, designs, drawings, present or future products or services and markets, inventions, prototypes, algorithms, computer models and applications, developments, processes, formulae, engineering, architectures, hardware configuration information, diagrams, data, computer programs, databases, price lists and technology of Licensor, (b) information concerning Disclosing Party’s business policies, business relations, business activities and contacts, its agreements with business partners and clients, (c) information about internal organization, internal procedures, and employees, as well as business, financial, marketing, technical, security and other procedures, plans and strategies and economic results of the Disclosing Party; (ii) information about the content of this EULA; and (iii) other information, labelled as confidential by the Disclosing Party, as well as all other facts, information or data that reasonably should be understood to be confidential given the nature of the information and the circumstances of their disclosure or which – if released or made available to third parties – is capable of causing damage or other harm to the Disclosing Party. Confidential Information does not include information that: (i) is publicly available at the time of its disclosure or subsequently becomes available to the public, however, only if such Confidential Information is not disclosed by a breach of a legal obligation; (ii) has been independently acquired or developed by the Receiving Party without breach of this EULA, except the situation when it is obvious or by means of diligent inquiry it becomes obvious that a source of such Confidential Information was not entitled to provide the Confidential Information; (iii) has been rightfully acquired by the Receiving Party from a third party, without any limitation in relation to its further use or disclosure except the situation when it is obvious or by means of diligent inquiry it becomes obvious that a source of such Confidential Information was not entitled to provide the Confidential Information; and (iv) information that is expressly labeled by the Disclosing Party as not confidential.
“Consumer User”means a named individual authorized by the Customer to use or access Licensed Software with a “read only” access rights.
“Customer Data”means any information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer by or through the Licensed Software or that incorporates or is derived from the processing of such information, data or content by or through the Licensed Software, including any configuration data, temporary data, or cached data.
“Customer Personnel”means all Customer’s officers, directors, management, employees, agents, consultants, subcontractors, successors.
“Customer Systems”means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks and internet connectivity, whether operated directly by Customer or through the use of third-party services.
“Data Breach”means any unauthorized disclosure, access, acquisition, use or transfer of any Customer Data, whether or not including any Personal Information, by a third party, whether or not due to fault or breach of this EULA by Licensor or its Personnel.
“Disclosing Party”means a Party that discloses or makes available Confidential Information to the other Party (i.e. the Receiving Party) under this EULA.
“Data Privacy Law”means all applicable laws and regulations relating to processing of Personal Information and privacy, especially General Data Protection Regulation (EU) (2016/679) and Directive on Privacy and Electronic Communications (2002/58/EC), including where applicable any guidance and codes of practice issued by the relevant public administration body.
“Documentation”means product and services specifications, materials, manuals, handbooks and any other documents provided or made available by Licensor to the Customer regarding the access and/or use and/or operation of the Licensed Software.
“Error”means any reproducible failure of the Licensed Software or its part to operate in material aspects in accordance with this EULA.
“Incident”means a support request that begins when Customer contacts Licensor, to report one specific Error or other issue and ends when Licensor either: (a) resolves the Error; (b) determines in its reasonable discretion that the Error cannot be resolved; (c) determines that it is not an Error pursuant to this EULA; or (d) if not determined as Error, and in its sole discretion, provides another solution.
“Infringement Claim”means a third party’s claim against Customer that the use of the Licensed Software by Customer, as contemplated by and in accordance with this EULA, infringes any third party Intellectual Property Rights in the Territory.
“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.
“Licensed Software”means Licensor’s proprietary software product, as identified in the relevant Order, including any Updates thereto, but excluding any Professional Services deliverables.
“Licensor”means the Ataccama entity determined under “Ataccama Contracting Entity” at the beginning of this EULA, provided that for the purposes of Section 2 (Reservation of Rights) and any other provision concerning ownership of the Licensed Software, Documentation or Intellectual Property Rights, “Licensor” also includes any Affiliate of that entity which owns any right, title or interest in or to the Licensed Software or through which any part of the Licensed Software is provided.
“Licensor Personnel”means all of Licensor’s officers, directors, management employees, agents, consultants, contractors, service providers, suppliers, resellers, distributors, successors and individuals involved in the performance of this EULA.
“Loss”means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable legal fees, disbursements and charges, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“New Software”means software other than the Licensed Software (including Updates thereto) released by Licensor that may from time to time be introduced and marketed generally as a distinct licensed product.
“Open Source Software”means open-source software as defined by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org).
“Party” or “Parties”means individually or collectively Licensor or Customer.
“Personnel”means together Licensor Personnel and/or Customer Personnel, as applicable.
“Personal Information”means any information in any media provided by one Party to the other, or processed by one Party on behalf of the other Party, relating to an identified or identifiable natural person, including, without limitation: a person’s first and last name, home or other physical address, telephone number, fax number, email address or other online identifier, Social Security number or other third-party issued identifier (including, but not limited to, state identification number, driver’s license number, or passport number), biometric data, health information, credit card or other financial information (including bank account information), IP address and cookie information, or any other device-specific number or identifier.
“Order”means an order for access to the Software, Support Services, or related services that is executed by Customer and Licensor or one of Licensor’s authorized distributors, resellers, or channel partners.
“Power User”means a named individual authorized by the Customer to use or access Licensed Software designated as an “Owner” or “Editor” in the respective Licensor application.
“Professional Services”means consulting, configuration, deployment, training or other similar services provided pursuant to a statement of work, including any related deliverables.
“Receiving Party”means a Party that receives or acquires Confidential Information directly or indirectly from the other Party (i.e. the Disclosing Party) under this EULA.
“Subscription Start Date”means date specified as such in an Order from which the Licensed Software is provided to the Customer.
“Subscription Term”means the term specified in the relevant Order, including, if applicable, any initial term and renewal term. The Subscription Term commences on the respective Subscription Start Date.
“Support Services”means maintenance and other support services provided in connection with the Licensed Software but excluding Professional Services.
“Territory”means the following countries: Global
“Update”means enhancements, improvements, patches, fixes or other modifications of the Licensed Software, including any updated Documentation, provided to the Customer during the Subscription Term, but does not include any New Software.
“User”means each individual authorized by the Customer to use or access Licensed Software with respective access rights to execute Power User rights or Consumer User rights.
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