eXpress Badging SERVICES, inc. - End User License Agreement
PLEASE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”). BY ACCESSING OR USING THE VEONICS™ PORTAL (the “PORTAL’) AND ITS RELATED SOFTWARE, INFORMATIONAL MATERIALS AND SERVICES MADE ACCESSIBLE BY Express Badging SERVICES, Inc. (“eB”) (herein the “SYSTEM”), YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT DOWNLOAD, INSTALL OR USE THE PORTAL, SYSTEM AND ANY RELATED EQUIPMENT.
IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THIS SOFTWARE.
1. Authorized User.
Only an AUTHORIZED USER is permitted to use the Veonics™ Portal.
An authorized user (“AUTHORIZED USER”) is a person or entity designated by eB or one of its approved partners to have access to the PORTAL, based on a unique username and password. Only an AUTHORIZED USER is allowed access to the PORTAL and to use the system and equipment related thereto. All other users are prohibited from using the PORTAL. Unauthorized use of the PORTAL may constitute a violation of Federal, State or other laws and regulations and can result in criminal, civil, and/or administrative action.
As used herein, the terms “YOU”, “YOUR” or “CUSTOMER” refer individually to the AUTHORIZED USER. All AUTHORIZED USERS are required to have an active username and password to access the PORTAL. If you do not have an active username and password, please contact your organization’s primary administrator or contact eB at (321) 784-5925.
The PORTAL and its related SYSTEM and equipment contain proprietary computer software (“SOFTWARE”). The term SOFTWARE includes, but is not limited to, (a) all computer or cloud based identity management, identity verification, and Cloud-based software authentication solutions, services and applications, source code and object (machine) code, as well as a logical access systems and software that was developed by CardSmart Technologies, Inc. (“CST”) and is being used under an exclusive license by eB for the PORTAL; and (b) all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Software, all future updates and upgrades, and all other improvements, revisions, corrections, bug-fixes, hot- fixes, patches, modifications, enhancements, releases, signature sets, upgrades, and policy and database updates and other updates in, of, or related to the SOFTWARE, all derivative works based upon any of the foregoing, and all trade secrets related to the SOFTWARE. By accessing, using and/or downloading the SOFTWARE (including the PORTAL and the related system, informational materials and equipment), YOU are not acquiring any legal or equitable ownership rights to the SOFTWARE, PORTAL, SYSTEM or EQUIPMENT, as well as the informational material. Rather, you acknowledge that you are receiving a limited, revocable, license to use the same in consideration of the payment of a fee to eB, as explained more fully below.
3. License Grant and Proprietary Rights.
a. Limited License Grant.
With respect to the SOFTWARE, and subject to CUSTOMER’S compliance with the Limitations and Restrictions section of this Agreement, including, without limitation, CUSTOMER’S payment of any applicable fees to eB to use the PORTAL, eB grants to CUSTOMER a limited, revocable, nonexclusive, non-sublicensable and nontransferable license, during the License Term to: (1) access and use the SOFTWARE: (2) access and use the PORTAL (including the related system, informational material and equipment): (3) download, install and use such SOFTWARE consistent with the use and restrictions set forth in this Agreement and only for CUSTOMER’S internal business purposes; (4) use the SOFWARE in conjunction with third party software in a manner consistent with the terms of this Agreement; and (5) review any documentation, manuals, informational material and written materials related to the SOFTWARE and for purposes of continued use of the same. CUSTOMER expressly agrees and acknowledges that it, he or she is not granted any rights to update, copy, download, modify, create derivative works of, or claim ownership of the SOFTWARE other than pursuant to the terms of this Agreement.
The SOFTWARE including, without limitation, its object code and source code, whether or not provided to CUSTOMER, is strictly confidential to eB (or its licensor, namely CST). CST owns exclusively and reserves all – and CUSTOMER may not exercise any or claim any rights superior to CST – right, title, and interest in and to the SOFTWARE including, without limitation, all intellectual property rights in and to the SOFTWARE, except to the extent of the limited software use license granted to you in this Agreement. This Agreement is not an agreement of sale, and no title, intellectual property rights, or ownership rights to the SOFTWARE are transferred to CUSTOMER pursuant to this Agreement. CUSTOMER expressly acknowledges and agrees that the SOFTWARE and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the SOFTWARE, all future updates and upgrades, and all other improvements, revisions, corrections, bug-fixes, hot- fixes, patches, modifications, enhancements, releases, signature sets, upgrades, and policy and database updates and other updates in, of, or to the SOFTWARE, all derivative works based upon any of the foregoing, and all copies of the foregoing, are trade secrets and proprietary property of CST or eB, having great commercial value to each of them.
4. Limitations and Restrictions on License
Except as otherwise expressly provided in this Agreement, the foregoing license grant excludes any right to, and CUSTOMER shall not: (1) sell, transfer, assign or sublicense the SOFTWARE or its license rights under this Agreement, whether voluntarily or by operation of law, to any third party, directly or indirectly, and any such attempted transfer, assignment or sublicense shall be void; (2) use or allow use of the SOFTWARE on any hardware other than the EQUIPMENT authorized or provided by eB; (3) lease, lend or use the SOFTWARE for timesharing purposes; sell, market, license, sublicense, distribute, or otherwise grant to any person or entity any right to use the SOFTWARE except to the extent expressly permitted in this Agreement; (4) use the SOFTWARE to provide, alone or in combination with any other product or service, any product or service to any person or entity, whether on a fee basis or otherwise; (5) modify, reproduce, decompile, decrypt, disassemble, reverse engineer, create the source code of, create derivative works of or otherwise reduce to human-readable form any form of the SOFTWARE; gain access to trade secrets or confidential information in the SOFTWARE; circumvent any copy-protection or license enforcement; or attempt to do any of the foregoing, except to the extent expressly permitted by applicable law; (6) remove, erase, obscure, or tamper with any copyright or any other product identification or proprietary rights notices, seal, or instructional label printed or stamped on, affixed to, or encoded or recorded in or on any SOFTWARE or related documentation; or fail to preserve all copyright and other proprietary notices in all copies of the SOFTWARE and related documentation; (7) combine, commingle, or integrate the SOFTWARE with any other software, unless otherwise authorized pursuant to this Agreement; (8) provide a third party with a copy of or access to the SOFTWARE; and (9) use or allow use of the SOFTWARE in violation of any applicable law or regulation or to support or facilitate any illegal activity. Notwithstanding any other provision of this Agreement, CUSTOMER shall not attempt to circumvent any security or access restrictions relevant to SOFTWARE or features therein. Any violation of these limitations and restrictions shall constitute a ground for eB to immediately terminate this Agreement.
5. Updates .
The terms and conditions of this Agreement shall apply to any upgrades, updates, bug fixes or modified versions (collectively, “Updates”) or additional copies of the SOFTWARE. Notwithstanding any other provision of this Agreement: (1) CUSTOMER shall have no license or right to use any such Updates or additional copies unless CUSTOMER, at the time of acquiring them, already holds a valid license to the SOFTWARE associated with such Updates and has paid any required fees to eB for such SOFTWARE; and (2) use of additional copies of the SOFTWARE is limited to backup purposes only. By downloading or using any Updates, CUSTOMER rights with respect to the Updates are subject to the terms of the latest revision of this Agreement posted on eB’s website the time of receipt of the Updates.
6. Proprietary Notices.
CUSTOMER agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the SOFTWARE in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in this Agreement, CUSTOMER may make such backup copies of the SOFTWARE as may be necessary for lawful use, provided CUSTOMER affix to such copies all copyright, confidentiality, and proprietary notices that appear on the original.
7. Reservation of Rights .
The SOFTWARE and informational material that are owned by CST, is subject to the rights of its licensees, and is protected by copyright, patent, trademark, and trade secret laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between CUSTOMER and eB, the SOFTWARE and informational material, including without limitation all intellectual property rights therein and thereto, are the sole and exclusive property of CST only subject to certain rights of eB pursuant to its agreement with CST. All SOFTWARE is licensed to CUSTOMER and not sold to CUSTOMER. eB reserves all rights not expressly granted in this Agreement, and no rights or licenses shall be deemed or interpreted to be granted or transferred hereunder, whether by implication, estoppel, or otherwise.
8. Protection of Information.
CUSTOMER agrees that the SOFTWARE and associated documentation, including, without limitation, the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of CST, subject only to the rights of eB pursuant to its agreement with CST. CUSTOMER shall not disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of CST. CUSTOMER shall implement reasonable security measures to protect such trade secrets and copyrighted material.
9. Term and Termination.
This Agreement is effective until terminated. CUSTOMER may terminate this Agreement at any time by uninstalling or destroying all copies of the SOFTWARE including, without limitation, any documentation. CUSTOMER’s license rights under this Agreement will terminate immediately without notice from eB if CUSTOMER fails to comply with any provision of this Agreement. Upon such termination by eB, CUSTOMER shall promptly return or destroy all copies of the SOFTWARE and its related documentation.
10. Protection of User Name and Password.
YOU are prohibited from sharing YOUR user name and/or password with any other person or organization without written permission from eB. It is YOUR responsibility to maintain and securely store YOUR user information. YOU will contact YOUR primary administrator and eB immediately if YOU suspect that an unauthorized third party may be using YOUR account or if YOUR account information is compromised, lost or stolen. Failure to observe this security protocol will result in denial of YOUR access to the PORTAL and other possible legal or administrative actions.
YOUR user information, including name, telephone number and email address, is used by the SOFTWARE and related system to set up profiles of user accounts for SYSTEM administrators to authorize, manage, and/or perform other maintenance activities. User accounts support user authentication and controls governing proper access to and use of the PORTAL.
IT IS YOUR RESPONSIBILITY TO MAINTAIN THE SECURITY OF YOUR USER NAME, PASSWORD AND IDENTIFICATION INFORMATION, INCLUDING THAT OF YOUR EMPLOYEES AND REPRESENTATIVES. YOU ARE ADVISED TO MAINTAIN REASONABLE SECURITY MEASURES IN ACCORDANCE WITH APPLICABLE AND ACCEPTABLE BUSINESS PRACTICES KNOWN IN THE DATA SECURITY AND PRIVACY INDUSTRY. NEITHER eB NOR CST SHALL BE RESPONSIBLE OR LIABLE FOR YOUR FAILURE TO BE AWARE OF AND IMPLEMENT SUCH APPLICABLE AND AVAILABLE DATA SECURITY AND PRIVACY CONTROLS.
11. SYSTEM Users Have No Expectation of Privacy.
YOU as a user (authorized or unauthorized) have no explicit or implicit expectation of privacy in anything viewed, created, downloaded, or stored on this SYSTEM, including e-mail, Internet, and Intranet use. Any or all uses of this SYSTEM (including all peripheral devices and output media) and all files on this SYSTEM may be intercepted, monitored, read, captured, recorded, disclosed, copied, audited, and/or inspected by authorized eB employees, contractors or agents. Access or use of this software by any person, whether authorized or unauthorized, constitutes consent to such interception, monitoring, reading, capturing, recording, disclosure, copying, auditing, and/or inspection at the discretion of authorized eB employees, contractors or agents.
By continuing to use this SYSTEM, YOU indicate YOUR awareness of, and consent to, these terms and conditions and acknowledge that there is no reasonable expectation of privacy in the access or use of this PORTAL. Collected information on individuals may be shared and protected as authorized by law. Except for such authorized activities, eB does not share any information we receive with any outside parties. Disclosure of, or providing user information requested in forms contained within this SYSTEM or provided via email contact is voluntary. By providing the information, YOU, the individual user, assume all responsibility to ensure the information provided is correct, valid, and current and is so maintained.
12. YOU Must Comply With CAN SPAM Act.
YOU agree that all emails sent using the PORTAL’S optional email feature will not be used in a SPAM broadcast or any other such improper use and are only being sent to known individuals for the purpose of creating a photo identification credential. YOU represent and warrant that YOU will comply with the CAN SPAM Act (and the associated CAN-SPAM Rule) and all other applicable laws.
13. Third Party Content.
Third party content, such as software applications provided by third parties, may be made available directly to YOU by other companies or individuals under separate terms and conditions, including separate fees and charges. Because eB may not have tested or screened the third party content, YOUR use of any third party content is at YOUR sole risk.
14. Information Stored on the Portal.
a. Information Stored On The Portal Is Proprietary and Sensitive.
YOU recognize and acknowledge that all information entered into and stored on the PORTAL is owned by and the property of YOUR organization or YOUR organization’s customers, and these entities are solely responsible for the accuracy and maintenance of said information.
Because some or all of the information stored in the PORTAL may be of a sensitive nature, YOU understand that it is YOUR obligation to take whatever action necessary to preserve and protect against the unauthorized use, disclosure, copying, dissemination or distribution of this information. By accepting the terms of this EULA, YOU agree to report directly to YOUR employer, primary administrator and/or authorized eB employees any breaches, attempted or planned breaches of the PORTAL, its information, and/or any attempts to coerce or compromise other authorized PORTAL users in the administration of the PORTAL or the information stored within it.
b. eB and CST Are Not Responsible For Information Accuracy or Loss.
YOU acknowledge that eB and CST are not responsible for and are held harmless specifically pertaining to data accuracy or currency, and/or any loss of data or photos.
c. YOU and YOUR Organization Are Responsible For Information Accuracy, Backing Up.
YOU, as an AUTHORIZED USER of the PORTAL, understand that YOUR organization, its employees, agents, customers, and any other users YOUR organization has authorized to have access to the PORTAL, are responsible for properly securing, backing up and restoring any information uploaded to and used by the PORTAL.
15. Products, Trademarks & Copyrights.
As an AUTHORIZED USER of the PORTAL, YOU recognize and acknowledge that Veonics™ Portal™, Veonics™ Credential Database™, VCdB™, vID™, eB Virtual ID™, vID Secured™, vID Secured System™, vID Designer™, Print Queue Manager™, vPQM™, vID Viewer™, MobileTrack™, CELLfie™, and vID Mobile Authentication™ are trademarks, products, and/or services owned by CST, subject only to the rights of eB a set forth in its agreement with CST. YOU further acknowledge that all materials used in conjunction with YOUR training, use, administration, and documentation of the PORTAL and which bear the appropriate copyright or trademark markings, are the property of CST and that all legal rights are reserved. YOU agree that YOU will not, nor will YOU allow another party to change or remove any identification from the products which indicates CST ownership, confidentiality, patents, service marks, trademarks or copyrights.
16. Limited Software Warranty and Disclaimers.
Subject to the terms and conditions of this Agreement, for any SOFTWARE downloaded, used or accessed by CUSTOMER, provided that sufficient proof of purchase exists that is acceptable under applicable laws, eB and CST warrant for a period of sixty (60) days from CUSTOMER’s Start Date (as that term is defined below), the SOFTWARE licensed hereunder will perform substantially in accordance with the informational material (the “Limited Warranty”). The sole and exclusive remedy of the CUSTOMER and the entire liability of either eB or CST under this limited software warranty shall be: (a) for eB to repair or replace the defective SOFTWARE, or (b) if such repair or replacement would in eB’s opinion be commercially unreasonable, upon eB’s receipt of your written representation and promise that you have removed all instances of the SOFTWARE and will not use the SOFTWARE, refund the price paid by you for use of the applicable SOFTWARE. This limited warranty applies only to the original purchaser. The “Start Date” shall mean the date when the CUSTOMER is granted access to the SOFTWARE on the PORTAL or eB website.
YOU EXPRESSLY ACKNOLWEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGHTHE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS” AND NEITHER eB NOR CST MAKE ANY REPRESENTATIONS OR WARRANTIES, AND THEY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SYSTEMS INTEGRATION. WITHOUT LIMITING THE FOREGOING, NEITHER eB NOR CST MAKE ANY WARRANTY, REPRESENTATION, OR GUARANTEE AS TO THE SOFTWARE’S USE OR PERFORMANCE AND DO NOT WARRANT, REPRESENT, OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE FAIL-SAFE, UNINTERRUPTED, OR FREE FROM ERRORS OR DEFECTS OR THAT THE SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS.
NEITHER eB NOR CST WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE SOFTWARE OR SEVICES WILL BE CORRECTED, OR THAT THE SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THIS SOFTWARE MAY AFFECT THE AVAILABILITY AND USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES.
No warranty will apply if the SOFTWARE: (a) has been altered, except by eB or CST; (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by eB in the applicable documentation; or (c) has been subjected to unreasonable physical, thermal or electrical stress, misuse, negligence, or accident.
17. Limitation of Warranty.
EXCEPT AS SPECIFIED IN THE LIMITED SOFTWARE WARRANTY SET FORTH IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR MEETING CUSTOMER’S REQUIREMENTS, NONINFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, COMPATIBILITY OR INTEROPERABILITY WITH ANY HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY eB OR CST OR OF SATISFACTORY QUALITY, OR FREEDOM FROM INTERRUPTION OR ERROR, ARE HEREBY DISCLAIMED AND EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE 60-DAY WARRANTY PERIOD OR OTHERWISE TO THE MAXIMUM EXTENT PERMITTED BY LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
18. Disclaimer of Liabilities.
IN NO EVENT WILL eB, CST, OR THEIR RESPECTIVE OFFICERS, EMPLOYEES, AFFILIATES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOST REVENUE OR PROFIT, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF eB, CST OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF eB, CST OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUPPLIERS OR LICENSORS TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNTS ACTUALLY PAID TO eB BY CUSTOMER FOR THE SOFTWARE OR EQUIPMENT THAT IS THE SUBJECT OF SUCH CLAIM IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE WHEN NOTICE OF SUCH CLAIM WAS PROVIDED HEREUNDER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. IN SUCH A CASE THE FOREGOING LIMITATION WILL BE APPLIED TO THE GREATEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, NEGLIGENCE, CONTRACT OR OTHERWISE, SHALL eB or CST BE LIABLE TO THE CUSTOMER UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS SUBJECT MATTER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR EXTRA-CONTRACTUAL DAMAGES OF ANY KIND, LOSS OF GOODWILL, LOSS OF PERSONNEL SALARIES, LOST PROFITS OR REVENUE, DAMAGES DUE TO WORK STOPPAGE AND/OR COMPUTER FAILURE OR MALFUNCTION, AND/OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES,WHETHER OR NOT FORESEEABLE, EVEN IF THE EXCLUSIVE REMEDIES PROVIDED BY THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES SHALL CST OR eB BE LIABILE FOR INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THAT eB OR CST HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATED TO ANY FAILURE ON YOUR PART TO: (A) SAFEGUARD AND PROTECT AGAINST CORRUPTION OF YOUR PROTECTED INFORMATION; (B) MAINTAIN THE SECURITY OF ALL PROTECTED INFORMATION; (C) ALLOW UNAUTHORIZED THIRD PARTIES TO GAIN ACCESS TO THE PROTECTED INFORMATION, (D) ADEQUATELY STORE THE PROTECTED INFORMATION; (E) TAKE REASONABLE STEPS BASED ON APPLICABLE INDUSTRY STANDARDS TO PREVENT UNAUTHORIZED ACCESS TO PROTECTED INFORMATION; AND (F) TO TAKE REASONABLE STEPS BASED ON APPLICABLE INDUSTRY STANDARDS WHICH LEADS TO THE CORRUPTION OF THE PROTECTED INFORMATION. ANY DATA INTRUSION OR BREACH OF PROTECTED INFORMATION THAT IS CAUSED BY OR CONTRIBUTED TO BY YOU SHALL BE YOUR SOLE RESPONSIBILITY. NEITHER CST NOR eB SHALL BE HELD RESPONSIBLE FOR ANY DATA OR PRIVACY BREACH THAT IS CAUSED BY YOUR ACTIONS OR INACTIONS. AS USED HEREIN, THE TERM PROTECTED INFORMATION INCLUDES, BUT IS NOT LIMITED TO, DATA, OR PHOTOGRAPHSS, PERSONALLY IDENTIFIABLE INFORMATION, SENSITIVE PERSONAL INFORMATION, CONFIDENTIAL INFORMATION, PROTECTED HEALTH INFORMATION AND ANY OTHER FORM OF PROTECTED/PRIVATE INFORMATION THAT IS NOT GENERALLY PUBLICLY KNOWN OR AVAILABLE (COLLECTIVELY “PROTECTED INFORMATION”) AS IT MAY EXIST IN ANY ELECTRONIC OR NON-ELECTRONIC FORM.
CUSTOMER shall defend, indemnify, and hold eB, CST and their respective affiliates, officers, directors, employees, and representatives harmless against any liabilities, losses, damages, claims, demands, fees, expenses and other costs of any kind or nature, including, without limitation, any attorney fees, expert fees, filing fees, judgments, and settlement amounts associated therewith, as and when incurred, arising out of or related to CUSTOMER’S use of the SOFTWARE or any breach or alleged breach by CUSTOMER or any of CUSTOMER’S employees, representatives or agents of any obligation, representation or warranty contained in this Agreement.
20. Reports and Audit .
CUSTOMER agrees to monitor its use of the SOFTWARE and generate accurate, complete and auditable records of its level of use. If at any time CUSTOMER becomes aware that it has used any SOFTWARE without paying applicable fees or in excess of the limitations set forth in any applicable proof of purchase, CUSTOMER shall promptly notify eB in writing of such use and pay any additional fees for the type of the SOFTWARE or the features or functionality thereof actually used by CUSTOMER.
CUSTOMER agrees that eB shall have the right, at eB’s expense, to audit CUSTOMER’S use of the Software on at least fifteen (15) business days’ advance notice, during CUSTOMER’S normal business hours and no more frequently than twice each year, which audit shall not unreasonably interfere with CUSTOMER’S business.
Any terms of this Agreement which by their nature should survive the termination of this Agreement shall survive such termination. The license limitations and restrictions contained in Sections 3 and 4, as well as the following provisions shall survive the termination or expiration of this Agreement: Sections 7, 8 and 10-23 (inclusive).
22. Other General Provisions.
a. Conflicts of laws.
This Agreement shall be governed by and interpreted in accordance with the laws of the State of New Jersey, without regard to conflict of laws and provisions thereof. Disputes arising hereunder shall be subject to the exclusive jurisdiction of the state and federal courts located in New Jersey, and the parties agree to submit to the jurisdiction of such courts.
eB may assign this Agreement or delegate its responsibilities without restriction. CUSTOMER may not assign this Agreement, its rights or licenses, or delegate its duties, hereunder, nor may any successor entity of CUSTOMER assume such rights, licenses or duties, in whole or in part, directly or indirectly, whether by sale of stock or assets, merger, change of control, operation of law, or otherwise, without eB’s prior written consent. Any assignment or assumption in violation of the foregoing shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective permitted successors and assigns.
c. Entire Agreement.
This Agreement is the entire agreement between eB and CUSTOMER with respect to the SOFTWARE (including the underlying PORTAL, SYSTEM, and informational material), and supersedes any and all prior agreements, negotiations, or other communications between eB and CUSTOMER, whether oral or written, with respect to the subject matter hereof. In the event that any provision of this Agreement is held to be invalid or unenforceable, then: (a) such provision shall be deemed to be reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed to be severed from this Agreement; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby. eB’s failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law shall not constitute a waiver of that right, power or remedy. eB’s waiver of any obligation or breach of this Agreement shall not operate as a waiver of any other obligation or subsequent breach of the Agreement. The English language version of this Agreement shall be the official and controlling version, and any translation provided is solely for convenience
Each party hereto acknowledges that by reason of its relationship with the other party hereunder, it may have access to confidential information and materials concerning the other party’s business, technology, and/or products that is confidential to the other party (“Confidential Information”). Each party’s Confidential Information is of substantial value to the party, which value could be impaired if such information was disclosed to third parties or used in violation of this Agreement. Written or other tangible Confidential Information must at the time of disclosure be identified and labeled as Confidential Information belonging to the disclosing party. When disclosed orally or visually, Confidential Information must be identified as confidential at the time of the disclosure, with subsequent confirmation in writing within fifteen (15) days after disclosure. Each party agrees that it will not use in any way for its own account or the account of any third party, such Confidential Information, except as authorized under this Agreement, and will protect Confidential Information at least to the same extent as it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information. Neither party may use the other party’s Confidential Information except to perform its duties or exercise its rights under this Agreement. The Confidential Information restrictions will not apply to Confidential Information that is (i) already known to the receiving party at the time of access hereunder, (ii) becomes publicly available through no wrongful act of the receiving party, (iii) independently developed by the receiving party without benefit of the disclosing party’s Confidential Information, (iv) has been rightfully received from a third party not under obligation of confidentiality or (v) is required to be disclosed by law, provided the party compelled to disclose the Confidential Information provides the party owning the Confidential Information with prior written notice of disclosure adequate for the owning party to take reasonable action to prevent such disclosure, where reasonably possible. Unless otherwise agreed to by both parties, upon termination of this Agreement or an applicable Addendum, each party will return the other party’s Confidential Information.