END USER LICENSE AGREEMENT
IMPORTANT - THIS END USER LICENSE AGREEMENT (THIS "AGREEMENT" OR "EULA") IS A LEGAL AGREEMENT BETWEEN YOU ACTING INDIVIDUALLY AND ON BEHALF OF THE COMPANY OR OTHER ORGANIZATION ON WHOSE BEHALF YOU ACCEPT THIS AGREEMENT (COLLECTIVELY, "CUSTOMER") AND CLEO COMMUNICATIONS US, LLC ("CLEO" OR "Cleo"). PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE ACCEPTING THIS AGREEMENT. BY CLICKING THE "I ACCEPT" BUTTON BELOW OR BY ACCESSING OR USING ANY PART OF THE SOFTWARE OR SERVICES (DEFINED BELOW), YOU REPRESENT AND ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, THAT YOU AND CUSTOMER ARE BOUND LEGALLY BY ITS TERMS, AND THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT AND TO BIND CUSTOMER. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND CUSTOMER, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR USE THE SOFTWARE OR SERVICES. IN SUCH CASE, CLICK THE "I REJECT" BUTTON BELOW AND PROMPTLY RETURN AND/OR DELETE ANY MATERIALS RELATED TO THE CLEO PRODUCTS (DEFINED BELOW) THAT YOU HAVE RECEIVED OR THAT ARE IN YOUR POSSESSION. IF YOU OR CUSTOMER HAVE ENTERED INTO A SEPARATE MASTER AGREEMENT WITH CLEO FOR SPECIFIC SOFTWARE AND/OR SERVICES, THEN THE TERMS OF THAT SIGNED MASTER AGREEMENT CONTROL TO THE EXTENT IT CONFLICTS WITH THESE TERMS.
1. DEFINITIONS. Capitalized terms used but not otherwise defined in this Agreement have the following meanings:
1.1 "Cleo System" means Cleo's platform of online software applications in effect from time to time supporting business data transfer and integration.
1.2 "Cleo Products" means the Cleo System, the Software and the Cleo Technology.
1.3 "Cleo Technology" means: (i) the Cleo technology, methodologies and intellectual property (including, without limitation, products, software tools, hardware designs, algorithms, software (in source and object code forms), architecture, objects and documentation (both printed and electronic) existing at any time or otherwise arising outside of this Agreement; (ii) all derivatives, improvements, enhancements or extensions of any of the foregoing, whether or not conceived, reduced to practice or developed during the term of this Agreement; and (iii) all Intellectual Property Rights relating to any of the foregoing.
1.4 "Deliverables" means any deliverables actually provided to Customer as part of the Services (if any) provided by Cleo to Customer pursuant to an Order Agreement.
1.5 "Intellectual Property Rights" means any and all intellectual property rights throughout the world, including, without limitation, any and all patents, copyrights, trademarks, applications for any of the foregoing, trade secret rights, moral rights, unregistered design rights, rights to know-how, inventions, and algorithms, and any and all similar or equivalent rights throughout the world.
1.6 "Malicious Code" means any undocumented malicious data, code, program, or other internal component (e.g., computer worm, computer time bomb or similar component), which could damage, destroy, alter or disrupt any computer program, firmware or hardware, or which could, in any manner, reveal, damage, destroy, alter or disrupt any data or other information accessed through or processed by the Software or Cleo's computer systems in any manner.
1.7 "Order Agreement" means either (i) the separate Purchase Agreement document or other product order confirmation provided by Cleo to Customer in connection with Customer's purchase, access and use of the Software setting forth the term of Customer's right to use the Software and the fees payable in connection therewith; and/or (ii) a statement of work or other written agreement based on which Cleo provides Customer with certain specified Services and any related Deliverables.
1.8 "Services" means any professional services, including, but not limited to, implementation services and consulting services, provided by Cleo to Customer pursuant to the terms of an Order Agreement.
1.9 "Software" means the Cleo System and software applications which are made available by Cleo to Customer from time to time under this Agreement.
1.10 "Users" means individuals who are authorized by Customer to use the Software and who have been supplied with user identifications and passwords by Customer (or by Cleo at Customer's request).
2. USE OF THE SOFTWARE, DELIVERABLES AND LIMITATIONS.
2.1 Grant of Use Rights. Subject to the terms and conditions of this Agreement, Cleo hereby grants to Customer, solely for its internal business purposes and for no other purpose, a non-exclusive, revocable, non-transferable right to access and use the Software and the Deliverables, if any, in accordance with this Agreement and applicable law for the term set forth in the Order Agreement.
2.2 Customer Responsibilities. Customer is responsible at all times for the following: (i) Customer's implementation of the Software; (ii) Customer's use of the Deliverables: (iii) using the most current licensed versions of an Internet browser in connection with accessing and using the Software; (iv) protecting the names and passwords of the Users of the Software; (v) preventing, and for promptly notifying Cleo of, any unauthorized access to or use of the Software; (vi) each User's compliance with the terms and conditions of this Agreement and each User's acts and omissions; (vii) the reliability, integrity, accuracy, quality and lawfulness of, and the results obtained from, the Software; (viii) using the Software and the related data created or generated by Customer and the Deliverables within the permitted scope and limitations and only in accordance with this Agreement and applicable law; (ix) maintaining archival and backup copies of all data (and any prior versions thereof) accessed, created or generated by any User; and (x) using the Software and the Deliverables in accordance with applicable laws.
2.3 Restrictions. Customer shall not (and shall not permit others) at any time to: (i) license, sublicense, sell, re-sell, rent, lease, transfer, distribute or time share the Software or the Deliverables, or make it or them available for access by third parties, including, without limitation, in the manner of a service bureau or hosted application; (ii) create derivative works based on or otherwise modify the Software or the Deliverables; (iii) disassemble, reverse engineer or decompile the Software, the Deliverables or the Cleo Technology; (iv) access the Software, the Deliverables or information related to the Software or the Deliverables in order to develop a competing product or service; (v) use the Software or the Deliverables to provide a service for others; (vi) use, include, store or send Malicious Code in or from the Software or the Deliverables; (vii) interfere with the integrity of the Software, the Deliverables or its or their data; (viii) remove or modify a copyright or other proprietary rights notice on or in the Software or the Deliverables; (ix) use the Software or the Deliverables to reproduce, distribute, display, transmit or use material protected by copyright or other Intellectual Property Right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (x) violate any law or regulation of the United States, any state thereof or other governmental authority; (xi) disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the Software or the Deliverables; (xii) disrupt the integrity of the Software or the Deliverables; or (xiii) alter, disable, or erase any computer data, computer programs or computer software without authorization.
3.1 Fees; Invoicing and Payment. Cleo will invoice and Customer agrees to pay all fees reflected in the Order Agreement for the use of the Software and (if applicable) for provision of the Services in accordance with the payment terms set forth in the Order Agreement. If no payment terms are indicated in the Order Agreement, each invoice submitted to Customer will be due and payable within 30 days after the date of the invoice. All fees and other payment obligations hereunder are non-cancellable and all amounts paid are nonrefundable. If Customer has received the Cleo Products and Deliverables through a Cleo authorized reseller, the agreed payment terms between Customer and the authorized reseller shall control, to the extent they conflict with the terms set forth in this Section 3 of the Agreement.
3.2 Price Adjustments. Cleo may increase the fees and any other fees and charges for the Software at any time upon notice to Customer.
3.3 Amounts Payable; Taxes. All amounts payable under this Agreement are (i) exclusive of any sales, use, excise, value added, goods and services, and gross receipts taxes, and any and all similar taxes or legally imposed fees, duties or contributions based upon such amounts, except for franchise and margin taxes, if any, or taxes based upon the net income of Cleo; and (ii) reflect the net cash payable to Cleo, net of any and all such taxes, levies, fees and withholdings of every kind or nature. All such taxes, levies, fees and withholdings and the obligation to pay such amounts to the appropriate taxing authorities in a timely manner are the sole responsibility of Customer.
3.4 Late Payments/No Offset. Any invoice remaining unpaid after the due date will accrue interest from the due date until the date Cleo receives such payment at a rate equal to the lesser of one and one-half percent (1.5%) per month or the highest rate permitted by law. Customer shall not offset any amounts owed under this Agreement against any other agreement with Cleo.
3.5 Suspension of use of the Software. Notwithstanding any other provision contained in this Agreement, if Customer fails to pay any amount when due hereunder, Cleo may suspend Customer's ability to use the Software until all outstanding past due amounts are received by Cleo.
4. OWNERSHIP. Cleo owns all right, title, and interest and any and all Intellectual Property Rights in and to the Software, the Deliverables and the Cleo Products. Except as expressly provided in this Agreement, Cleo does not grant (and expressly reserves) any rights, express or implied, or ownership in or to the Software, the Deliverables and the Cleo Products. Customer acknowledges that this Agreement does not provide Customer with title to or ownership of the Software, the Deliverables or the Cleo Products, but rather provides Customer only a limited right of use consistent with the express terms and conditions of this Agreement. Cleo has a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, transferable, sublicensable right to make, use, sell, offer for sale, import, or otherwise incorporate into the Software, the Deliverables and/or the Cleo Products any suggestions, enhancements, recommendations or other feedback provided by Customer and its Users relating to the Software, the Deliverables and/or the Cleo Products.
5. WARRANTIES AND DISCLAIMERS.
5.1 By Customer. Customer represents and warrants to Cleo as follows: (i) Authority. The individual who accepts this Agreement on behalf of Customer is authorized by all necessary corporate (or other entity) action to do so, and this Agreement is the legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms. (ii) Compliance with Laws. Customer and Customer's Users will comply with all laws, rules, regulations, ordinances, and codes that are applicable to accessing and using the Software.
5.2 DISCLAIMER OF WARRANTIES. (i) CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE SOFTWARE AND THE DELIVERABLES IS AT ITS SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS SOLELY WITH CUSTOMER. (ii) CLEO MAKES NO REPRESENTATIONS, WARRANTIES OR AGREEMENTS WITH RESPECT TO THE SOFTWARE, THE DELIVERABLES OR THE CLEO PRODUCTS AND CLEO SPECIFICALLY DISCLAIMS AND EXCLUDES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES ARISING UNDER STATUTE, WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM USAGE OR TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. CLEO SPECIFICALLY DOES NOT WARRANT THAT THE SOFTWARE, THE DELIVERABLES OR THE CLEO PRODUCTS WILL MEET THE REQUIREMENTS OF CUSTOMER, THAT THEY WILL BE ACCURATE OR OPERATE WITHOUT INTERRUPTION OR ERROR, OR THAT DEFECTS IN THE SOFTWARE, THE DELIVERABLES OR THE CLEO PRODUCTS WILL BE CORRECTED, AND CUSTOMER ACKNOWLEDGES THAT IT ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THE SOFTWARE, THE DELIVERABLES AND CLEO PRODUCTS, AS DELIVERED, ARE NOT GUARANTEED TO MEET ALL OF CUSTOMER'S ACTUAL OR STATED REQUIREMENTS AND CLEO MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING, WITHOUT LIMITATION, THE SECURITY, INTEGRITY, EFFICIENCY OR CAPABILITIES OF THE SOFTWARE, THE DELIVERABLES OR THE CLEO PRODUCTS AND CUSTOMER ACKNOWLEDGES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR ALL DECISIONS IT MAKES WITH REGARD TO OPERATION OF ITS BUSINESS AND OPERATIONS.
6. INDEMNIFICATION AND LIMITATION OF LIABILITY.
6.1 By Cleo. Except to the extent Customer is responsible for indemnifying Cleo under Section 6.2 below and subject to the limitations set forth in Section 6.3 below, Cleo agrees to defend, indemnify and hold harmless Customer and its officers, directors, employees and agents against any third-party claims, suits or actions (a "Claim") that the Software or the Deliverables infringe any patent, copyright, trademark, trade secret, or other Intellectual Property Right of a third party, provided that Customer: (i) promptly informs and furnishes Cleo with a copy of such Claim; (ii) gives Cleo all relevant evidence in Customer's possession, custody or control; and (iii) gives Cleo reasonable assistance in such Claim, at Cleo's expense, and the sole control of the defense thereof and all negotiations for its compromise or settlement, provided that Cleo agrees that it will not compromise or settle any such Claim unless Customer is unconditionally released from all liability.
6.2 By Customer. Customer shall defend, indemnify and hold harmless Cleo and its officers, directors, employees and agents against any and all Claims arising from or related, directly or indirectly, to: (a) Customer's use of the Software and the Deliverables, including any data created, transmitted or received by Customer; (b) Customer's violation of any statutes, laws, rules, regulations and codes of any governmental authority; or (c) a breach by Customer of its representations, warranties, covenants and agreements contained in this Agreement, provided that Cleo: (i) promptly informs and furnishes Customer with a copy of such Claim; (ii) gives Customer all relevant evidence in Cleo's possession, custody or control; and (iii) gives Customer reasonable assistance in such Claim, at Customer's expense, and the sole control of the defense thereof and all negotiations for its compromise or settlement, provided that Customer shall not compromise or settle any such Claim unless Cleo is unconditionally released from all liability.
6.3 LIMITATION OF LIABILITY. EXCEPT FOR ITS INDEMNITY OBLIGATIONS IN SECTION 6, THE CUMULATIVE, AGGREGATE LIABILITY OF CLEO AND ITS AGENTS AND SUPPLIERS TO CUSTOMER FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER HEREUNDER FOR THE THREE-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL CLEO, ITS AGENTS, AND ITS SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOST REVENUE, LOSS OF USE, LOSS OF DATA, COSTS OF RECREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT, PROGRAM, OR DATA, OR CLAIMS BY ANY THIRD PARTY. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THESE LIMITS.
7. TERM AND TERMINATION.
7.1 Term. The term of this Agreement commences upon Customer's acceptance as set forth herein and will continue in full force until terminated.
7.2 Termination. This Agreement will terminate upon the following: (a) Automatically and without notice on any of the following events: (i) Customer's breach of Section 2.3 or Section 3.5; (ii) Customer voluntarily or involuntarily becomes the subject of a petition in bankruptcy or of any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors that is not dismissed or discharged within 60 days after being commenced; (iii) Customer admits in writing its inability to pay its debts generally as they become due (or takes any corporate action tantamount to such admission); (iv) Customer makes an assignment for the benefit of its creditors; or (v) Customer ceases to do business or commences dissolution or liquidation proceedings; (b) Customer's breach of this Agreement (other than as set forth in Section 7.2(a) above) that is not cured within 10 days (or within 5 days with respect to a failure to make any payment required hereunder) after Cleo gives Customer written notice of such breach; or (c) Automatically, at the end of the term specified in the applicable Order Agreement.
7.3 Rights and Remedies upon Termination. In the event of any termination pursuant to either Section 7.2(a) or Section 7.2(b), Cleo will be entitled to all other rights and remedies which it may have under this Agreement and under applicable law.
7.4 Data Backup. Cleo has no obligation to backup or archive any data created or generated by Customer through use of the Software. Customer is at all times solely responsible for ensuring that it has a copy of any such data (or portions thereof) that it may need for its ongoing operations outside of its use of the Software.
7.5 Survival. The provisions of this Agreement regarding payment, ownership, indemnification, limitation of liability and all others that by their sense and context are intended to survive the execution, delivery, performance, termination or expiration of this Agreement survive and continue in effect.
8. GENERAL PROVISIONS.
8.1 Governing Law, Jurisdiction, and Venue. This Agreement (and the rights and obligations of the parties with respect to their relationship under this Agreement) are governed by and must be construed and enforced in accordance with the laws of the State of Illinois, excluding its conflict of laws rules to the extent such rules would apply the law of another jurisdiction. The parties hereto consent to the jurisdiction of all federal and state courts in Illinois, and agree that venue lies exclusively in Winnebago County, Illinois.
8.2 Attorneys' Fees. The prevailing party in any action or proceeding to enforce this Agreement, including any efforts to collect amounts due under this Agreement by engagement of any attorney, collection agency or otherwise, is entitled to recover from the other party its costs and attorneys' fees in addition to any damages available to such party.
8.3 Entire Agreement. This Agreement and any other documents expressly contemplated hereby constitute the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes all prior written or oral agreements, communications, and understandings between the parties with respect to the subject matter hereof.
8.4 Amendment. Cleo has the right, at any time and without prior notice to Customer, to add to or modify the terms of this Agreement by delivering notice of such amended terms to Customer by email at the address provided to Cleo by Customer or by posting notice of such amended terms to Cleo's website www.cleo.com. Customer's access to or use of the Software or Services after the date that notice of such amended terms is delivered to Customer or posted on Cleo's website will be deemed to constitute acceptance of such amended terms.
8.5 Waiver. No waiver of any provision of this Agreement is effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No failure or delay by either party in exercising any right, power, or remedy under this Agreement will operate as a waiver of any such right, power, or remedy. The express waiver of any right or default hereunder will be effective only in the instance given and will not operate as or imply a waiver of any similar right or default on any subsequent occasion.
8.6 Notices. Any notice, demand, request, or other communication required or permitted to be given under this Agreement must be made in writing, properly addressed to the party to receive notice at the address set forth herein or at such other address for notice as such party may hereafter designate by written notice to the other party given in the manner provided herein. In the case of notice to Cleo, the notice must be sent (i) via email with a confirmed receipt at Legal@cleo.com or (ii) via U.S. certified or registered mail, return receipt requested, postage prepaid, to the attention of Cleo Communications US, LLC, Attn.: Legal Department, at 4949 Harrison Avenue, Suite 200, Rockford, IL 61108. In the case of notice to Customer, the notice must be sent via email with a confirmed receipt to the email address provided to Cleo. Notice will be deemed received: (a) on the date of a confirmed email receipt, or (b) on the third business day after deposit with the U.S. Postal Service if sent by certified or registered mail, return receipt requested, postage prepaid. Customer agrees to accept communications from Cleo via email.
8.7 Construction. If any provision of this Agreement is for any reason held to be invalid, illegal, or unenforceable under applicable law in any respect, then: (i) such invalidity, illegality, or unenforceability will not affect the other provisions of this Agreement; (ii) this Agreement will be construed as if such invalid, illegal, or unenforceable provision were excluded from this Agreement; and (iii) the court in its discretion may substitute for the excluded provision an enforceable provision which in economic substance reasonably approximates the excluded provision.
8.8 Assignment. Customer shall not transfer or assign this Agreement or any rights or obligations under this Agreement (whether by operation of law or otherwise) or delegate any duties under this Agreement without the prior written consent of Cleo, which consent may be withheld in its sole and absolute discretion, and any purported attempt to do so in violation of this Section will be null and void.
8.9 Force Majeure. If by reason of labor disputes, strikes, lockouts, riots, war, inability to obtain labor or materials, earthquake, fire or other action of the elements, accidents, Internet service provider failures or delays, governmental restrictions, appropriations or other causes beyond the reasonable control of a party hereto (each, a "Force Majeure Event"), either party is unable to perform in whole or in part its obligations as set forth in this Agreement, excluding any obligations to make payments hereunder, then such party will be relieved of those obligations to the extent it is so unable to perform and such inability to perform will not make such party liable to the other party. Neither party will be liable for any losses, injury, delay or damages suffered or incurred by the other party due to a Force Majeure Event.
8.10 Specific Performance; Remedies Cumulative. Customer acknowledges that a breach of this Agreement cannot be adequately compensated for by money damages and agrees that specific performance is an appropriate remedy for any breach or threatened breach hereof. Customer acknowledges that compliance with the provisions of this Agreement is necessary in order to protect the proprietary rights of Cleo. Accordingly, Customer hereby: (i) consents to the issuance of any injunctive relief or the enforcement of other equitable remedies against it at the suit of Cleo, without bond or other security, to compel performance of any of the terms of this Agreement; and (ii) waives any defenses thereto, including, without limitation, the defenses of failure of consideration, breach of any other provision of this Agreement, and availability of relief in damages. All remedies, whether under this Agreement, provided by law, or otherwise, are cumulative and not alternative.
Revised January 7, 2020