END-USER LICENSE AGREEMENT
This END-USER LICENSE AGREEMENT (collectively with the Schedules attached hereto, this “EULA”) is a legal agreement between you, whether an individual or a single entity, (hereinafter “Licensee”) and Nouvolution Incorporated (hereinafter “Licensor”) for the Nouvolution software that accompanies this EULA, which includes computer software and may include associated media, printed materials, “online” or electronic documentation, and Internet-based services. An amendment or addendum to this EULA may accompany the software. YOU, AS LICENSEE, AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. THE DATE OF INSTALLATION, COPYING, OR OTHERWISE USE OF THE SOFTWARE BY YOU, AS LICENSEE, IS HEREINAFTER REFERRED TO AS THE EFFECTIVE DATE OF THIS EULA. IF YOU, AS LICENSEE, DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU, AS LICENSEE, MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE.
- LICENSE GRANT AND CONCOMITANT TERMS
- PROPRIETARY RIGHTS
- ACCEPTANCE TESTING
- SOFTWARE SUPPORT SERVICES
- LIMITED WARRANTY FOR SOFTWARE
ACQUIRED IN THE US AND CANADA
- DISCLAIMER OF WARRANTIES
- EXCLUSION OF INCIDENTAL, CONSEQUENTIAL
AND CERTAIN OTHER DAMAGES
- LIMITATION OF LIABILITY AND REMEDIES
- TERM AND TERMINATION
- MISCELLANEOUS PROVISIONS
Article 1. LICENSE GRANT AND CONCOMITANT TERMS
1.1. Scope of License. Licensor grants Licensee a non-exclusive, non-transferable, royalty-free license to use the Software on a single computer, solely for its internal operations. Licensee may copy the Software and Documentation for archival or backup purposes only, provided that all trademarks and copyright notices shall be reproduced in all such copies, and that all such copies shall be subject to the terms of this EULA. The Software is in “use” on a computer when it is loaded into temporary memory (i.e., RAM) or installed into permanent memory (e.g., hard disk, CD-ROM, or other storage device) of a computer. As used herein, “Software” means the computer program(s) commercially marketed as the N41 Apparel Software Suite, including any derivative, upgrade or modification, in machine-readable, object code form and may include associated media, printed materials, “online” or electronic documentation, and Internet-based services.
Licensee may store or install the Software on a single storage device (e.g., a network server or terminal server) which is used to run or install the Software on computers over an internal network, provided Licensee acquires and dedicates a license for each separate client or computer on which the Software is run or installed from the storage device. The Software license may not be shared or used concurrently on different clients or computers.
1.2. Quantity of Licenses Purchased. The use and scope of the licenses and products purchased by Licensee shall be pursuant to the terms in this EULA, including, but not limited to Section 1.1. Licensee shall have the ability to purchase additional licenses, products, and services described herein from Licensor after the Effective Date so long as such additional purchases are in accordance with the terms and conditions of this EULA.
1.3. Payment Schedule of Licenses Purchased. The total quantity of Software licenses purchased by Licensee and any additional fees in relation to the purchase of the Software shall be paid as follows: (1) fifty per cent (50%) due upon receipt of the invoice which correlates to the Effective Date of the sale of the Software issued by Licensor to Licensee; (2) The remainder due upon the earlier of the following two events: (a) Completion of the User Acceptance Testing (“UAT”) as described in Schedule A attached hereto and incorporated herein or (b) Licensee issuing invoices to Licensee’s customers through the use of the Software; (3) if Licensee incurs additional costs and/or fees after the remainder of fees are due in accordance with this section, such costs and/or fees shall be due immediately and payable to Licensor or as otherwise agreed to in writing by the Licensee and Licensor.
There are no grace periods. Payments are delinquent if unpaid one day after they are due. Delinquent payments shall accrue interest at the rate of 10% per month (or any portion thereof) of delinquency.
1.4. Remote Access. Licensee may access and use the Software remotely from another device as described as follows: (1) the single primary user of the device hosting the remote desktop session may access and use the Software remotely from any other device. No other person may use the Software under the same license at the same time except to provide support services; (2) any user may access and use the software remotely from a separately licensed device; and (3) Licensee may allow other devices to access the Software to provide Licensee with support services. Licensee does not need additional licenses for this access.
1.5. Multiplexing. The hardware or software Licensee uses to (1) pool connections, (2) reroute information, or (3) reduce the number of devices or users that directly access or use the Software (sometimes referred to as “multiplexing” or “pooling”), does not reduce the number of licenses Licensee needs.
1.6. Use Restrictions. The Software may not be re-sold, sub-licensed, rented, leased, or transferred (except as expressly provided above). Access to the Software (as a hosted service or in any other fashion, whether for fees or no fees) will not be provided to any persons other than Licensee’s authorized agents.
Except as explicitly provided herein, Licensee shall not: (1) make available nor distribute all or part of the Software to any third party by assignment, sublicense or by any other means; (2) copy, adapt, reverse engineer, decompile, disassemble, or modify, in whole or in part, any of the Software; or (3) use the Software to operate in or as a time-sharing, outsourcing, or service bureau environment, or in any way allow third party access to the Software.
Article 2. PROPRIETARY RIGHTS
2.1. Proprietary Rights. Licensee acknowledges and agrees that the copyright, trademark, patent, trade secret, and all other intellectual property rights of whatever nature in the Software, including any rights in derivative, modified or adapted versions of the Software, are and shall remain the property of Licensor, and nothing in this EULA should be construed as transferring any aspects of such rights to Licensee or any third party.
Article 3. CONFIDENTIALITY
3.1. Confidential Information. “Confidential Information”, shall mean the Software and the terms and conditions of this EULA. Licensee acknowledges the confidential and proprietary nature of the Confidential Information and agrees that it shall not reveal or disclose any Confidential Information for any purpose to any other person, firm, corporation or other entity, other than Licensee’s employees with a need to know for such Confidential Information to perform employment responsibilities consistent with such Licensee’s rights under this EULA. Licensee shall safeguard and protect the Confidential Information from theft, piracy or unauthorized access in a manner at least consistent with the protections Licensee uses to protect its own most confidential information. Licensee shall inform its employees of their obligations under this EULA, and shall take such steps as may be reasonable in the circumstances, or as may be reasonably requested by Licensor, to prevent any unauthorized disclosure, copying or use of the Confidential Information. Licensee acknowledges and agrees that in the event of the Licensee’s breach of this EULA, Licensor will suffer irreparable injuries not compensated by money damages and therefore shall not have an adequate remedy at law. Accordingly, Licensor shall be entitled to a preliminary and final injunction without the necessity of posting any bond or undertaking in connection therewith to prevent any further breach of these confidentiality obligations or further unauthorized use of Confidential Information. This remedy is separate and apart from any other remedy Licensor may have.
3.2. Unauthorized Disclosure. Licensee shall notify Licensor immediately upon discovery of any prohibited use or disclosure of the Confidential Information, or any other breach of these confidentiality obligations by Licensee, and shall fully cooperate with Licensor to help Licensor regain possession of the Confidential Information and prevent the further prohibited use or disclosure of the Confidential Information.
Article 4. ACCEPTANCE TESTING
4.1. Acceptance Testing. Requirements for acceptance testing of initial and upgrade versions of the Software are identified as set forth in Schedule A attached hereto, and incorporated herein.
Article 5. SOFTWARE SUPPORT SERVICES
5.1. Supplemental Agreement – Annual Software Support Service (REQUIRED). Licensor shall provide to Licensee Software Support service as set forth in Schedule B attached hereto, and incorporated herein.
5.2. Additional Software/Services. This EULA applies to updates, supplements, add-on components, or Internet-based services components of the Software that Licensee may obtain from Licensor after the date Licensee obtains the initial copy of the Software, unless Licensee accepts updated terms or another agreement governs. Licensor reserves the right to discontinue any Internet-based services provided to Licensee or made available to Licensee through the use of the Software.
If Licensee purchases support services non-related to the Software from Licensor, Licensor shall provide support services on the terms and conditions specified in an agreement separate from this EULA.
5.3. Upgrades. To use Software identified as an upgrade, Licensee must first be licensed for the software identified by Licensor as eligible for the upgrade. After upgrading, Licensee may no longer use the software that formed the basis for Licensee’s upgrade eligibility.
Article 6. LIMITED WARRANTY FOR SOFTWARE ACQUIRED IN THE US AND CANADA
6.1. Scope. The “Warranty Period” for the Software shall be sixty (60) days from the Acceptance Date as defined in Schedule A. Licensor represents to Licensee that: (1) during the Warranty Period, the Software shall operate free from Critical Defect; and (2) upon notification to Licensor during the Warranty Period of any Critical Defects, Licensor will, during its normal business hours and at no cost to Licensee, use reasonable efforts to correct such Defects which are reproducible and verifiable by Licensor, excluding any defects or errors caused by uses of the Software which were not in accordance with its intended business purpose.
If an implied warranty or condition is created by Licensee’s state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, Licensee also has an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (SIXTY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE SIXTY-DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to Licensee.
Any supplements or updates to the Software, including without limitation, any (if any) service packs or hot fixes provided to Licensee after the expiration of the sixty-day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory.
6.2. “Critical Defect” Defined. For purposes of this EULA, “Critical Defect” shall mean any unexpected adverse system behavior that does not allow for a reasonable user manual workaround.
6.3. Limitations on Remedies; No Consequential or Other Damages. In the event that Licensee notifies Licensor of a material error during the Limited Warranty Period, Licensor’s sole liability for breach of the foregoing warranty, and Licensee’s sole remedy, will be as is set forth below:
Except for Licensor’s use of reasonable efforts to correct such errors or, in Licensor’s sole discretion, to refund the portion of the prepaid price applicable to the portion of the Software which is defective, LICENSEE IS NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Software does not meet Licensor’s Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of Article 8 (“Exclusion of Incidental, Consequential and Certain Other Damages”) are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Licensee. This Limited Warranty gives Licensee specific legal rights. Licensee may have other rights which vary from state/jurisdiction to state/jurisdiction.
6.4. Licensee’s Exclusive Remedy. Licensor’s and its suppliers’ entire liability and Licensee’s exclusive remedy for any breach of this Limited Warranty or for any other breach of this EULA or for any other liability relating to the Software shall be, at Licensee’s option from time to time exercised subject to applicable law, (a) return of the amount paid (if any) for the Software, or (b) repair or replacement of the Software, that does not meet this Limited Warranty and that is returned to Licensor with a copy of Licensee’s receipt. Licensee will receive the remedy elected by Licensor without charge, except that Licensee is responsible for any expenses Licensee may incur (e.g. cost of shipping the Software to Licensor). This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, and Licensor will use commercially reasonable efforts to provide Licensee’s remedy within a commercially reasonable time of Licensee’s compliance with Licensor’s warranty remedy procedures. Outside the United States or Canada, neither these remedies nor any product support services offered by Licensor are available without proof of purchase from an authorized international source. To exercise Licensee’s remedy, contact: Nouvolution, Inc. / Attn. Nouvolution Sales Department / 1458 South San Pedro Street, Suite #256, Los Angeles, CA 90015, or the Nouvolution subsidiary serving your country.
Article 7. DISCLAIMER OF WARRANTIES
7.1 Scope. The Limited Warranty that appears above is the only express warranty made to Licensee and is provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Licensor and its suppliers provide the Software and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Software, and the provision of or failure to provide support or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
Article 8. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES
8.1 Scope. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA.
THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE (EXCEPT AS PROVIDED BELOW), INCLUDING WITHOUT LIMITATION, TO FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, MISREPRESENTATIONS, BREACH OF CONTRACT, BREACH OF WARRANTY OF LICENSOR OR ANY SUPPLIER, AND EVEN IF LICENSOR OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND OF OTHER APPLICABLE LAWS. ANY FEES IN RELATION TO THIS EULA REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES SET FORTH IN THIS EULA.
ARTICLE 9. LIMITATION OF LIABILITY AND REMEDIES
9.1 Scope. Notwithstanding any damages that Licensee might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Licensor and any of its suppliers under any provision of this EULA and Licensee’s exclusive remedy hereunder (except for any remedy of repair or replacement elected by Licensor’s with respect to any breach of the Limited Warranty) shall be limited to the greater of the actual damages you incur in reasonable reliance on the Software up to the amount actually paid by you for the Software or US$5.00. The foregoing limitations, exclusions and disclaimers (including Articles 6, 7, and 8) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
ARTICLE 10. INDEMNITY
10.1 Licensor Indemnification. Licensor hereby indemnifies Licensee against any claim that the Software, furnished and used within the scope of this EULA, infringes any U.S. registered copyright or patent, provided that: (1) Licensor is given prompt notice of the claim; (2) Licensor is given immediate and complete control over the defense and/or settlement of the claim, and Licensee fully cooperates with Licensor in such defense and/or settlement; (3) Licensee does not prejudice in any manner Licensor’s conduct of such claim; and (4) the alleged infringement is not based upon the use of the Software in a manner prohibited under this EULA, in a manner for which the Software was not designed, or in a manner not in accordance with the Specifications.
10.2. Altered Version. Licensor shall have no liability for any claim of infringement based on (a) the use of a superseded or altered version of the Software if infringement would have been avoided by the use of a current or unaltered version of the Software which Licensor made available to Licensee; or (b) the combination, operation or use of the Software with software, hardware or other materials not furnished by Licensor.
10.3. Injunction. If a final injunction is obtained against the use of any part of the Software by reason of infringement of a U.S. registered copyright or patent, Licensor will, at its option and expense, either (1) procure for Licensee the right to continue to use the Software; (2) modify the Software so that it becomes noninfringing; or (3) repurchase the Software and Documentation less depreciation at the rate of twenty-five percent (25%) per year, or pro rata for part of the year, from the date of Acceptance to the date of removal of the Software. If Licensor selects this third option, Licensee shall, immediately upon receipt from Licensor of the payment set forth above, at Licensor’s option destroy or return all copies of the Software and Documentation in its possession or under its control.
10.4. Liability. The foregoing states Licensor’s entire obligation and liability with respect to the infringement of any property right.
10.5. Licensee Indemnification. Licensee hereby indemnifies Licensor against any claim for alleged infringement of any U.S. registered copyright or patent, arising out of the use of the Software by Licensee in any manner prohibited by this EULA.
10.6. PCI Compliance. Licensee is responsible for performing and maintaining the PCI-DSS (Payment Card Industry Data Security Standard) and PA-DSS (Payment Application Data Security Standard) installation of their software. Licensee indemnifies and holds harmless Licensor, its shareholders, officers, and employees from and against any claims, demands, liabilities, or expenses, including attorney’s fees and costs, for all actions relating to the PCI-DSS and PA-DSS installation of their software.
ARTICLE 11. RECORDS
11.1. Record Keeping. Licensee shall maintain complete and accurate records indicating where the Software has been installed and the number of users of the Software (“Copy Records”). Licensee shall submit current Copy Records to Licensor upon 24 hours notice.
ARTICLE 12. TERM AND TERMINATION
12.1. Termination. The License granted herein shall remain in effect perpetually unless terminated as provided for in Section 12.2 herein.
12.2. Licensor’s Termination Rights. Licensor may terminate this EULA and the licenses, without prejudice to any other remedy Licensor may have, immediately without further obligation to Licensee, in the event of (1) any breach by Licensee of Articles 1, 2, or 3 of this EULA which cannot be remedied within twenty-four (24) hours of Licensor’s notice to Licensee of the breach and Licensor’s intent to terminate the License; (2) any material breach of Sections other than those set forth above which cannot be remedied within thirty (30) days of Licensor’s notice to Licensee of the breach and Licensor’s intent to terminate the License; or (3) Licensee’s making an assignment for the benefit of its creditors, the filing under any voluntary bankruptcy or insolvency law, under the reorganization or arrangement provisions of the United States Bankruptcy Code, or under the provisions of any law of like import in connection with Licensee, or the appointment of a trustee or receiver for Licensee or its property.
12.3. Cessation of Use. Upon termination of this EULA, Licensee shall cease using the Software and shall promptly return all physical copies of the Software in its possession or control and delete all copies of such materials residing in on or off-line computer memory.
ARTICLE 13. MISCELLANEOUS PROVISIONS
13.1. Headings. The headings used in this EULA are for convenience only and are not intended to be used as an aid to interpretation.
13.2. Entire Agreement; Severability. This EULA (including any addendum or amendment to this EULA which is included with the Software) is the entire agreement between Licensee and Licensor relating to the Software and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. To the extent the terms of any policies of Licensor or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the validity or enforceability of the remainder of this EULA shall not be affected and shall continue in full force and effect.
13.3. Binding. This EULA will be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns. Licensee shall not assign its rights or obligations under this EULA without the prior written consent of Licensor. Consent described in this Section shall be given in Licensor’s sole discretion.
13.4. No Waiver. Failure by either party to exercise any right or remedy under this EULA does not signify acceptance of the event giving rise to such right or remedy.
13.5. Solicitation. Licensee shall not solicit the employment of nor employ any Licensor personnel who has been directly involved in the development, sale, installation, or support of the Software for a period of two (2) years from the later of the termination of such individual’s employment at Licensor or the last date of Acceptance of any Software.
13.6. Governing Law. This EULA shall be deemed to have been executed in the State of California and will be governed by and construed in accordance with the laws of the State of California. The parties hereby consent to the jurisdiction of the courts of the State of California or the United States District Court for the Central District of California for the purpose of any action or proceeding brought by either of them in connection with this EULA.
13.7. Notice. Unless otherwise agreed to by the parties, any notice required or permitted to be given or delivered under this EULA shall be delivered to the address set forth in this EULA, and addressed to the attention of:
if to Licensor:
1130 South Flower Street, Suite #211
Los Angeles, CA 90015
with a copy to:
Kenneth T. Hahn & Associates
Attn: Kenneth T. Hahn
3699 Wilshire Boulevard, Suite 860
Los Angeles, CA 90010
Notice shall be deemed to have been received by any party, and shall be effective, (i) on the day given, if personally delivered or if sent by confirmed facsimile transmission, receipt verified or (ii) on the third day after which such notice is deposited, if mailed by certified, first class, postage prepaid, return receipt requested mail.
13.8. Export Restrictions. Licensee acknowledges that the Software is subject to U.S. export jurisdiction. Licensee agrees to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
13.9. Notice Regarding Security. To help protect against breaches of security and malicious software, Licensee should periodically back up its data and system information, use security features such as firewalls, and install and use security updates.
13.10. Applicable Law. If Licensee acquired this Software in the United States, this EULA is governed by the laws of the State of California. If Licensee acquired this Software in Canada, unless expressly prohibited by local law, this EULA is governed by the laws in force in the Province of Ontario, Canada; and, in respect of any dispute which may arise hereunder, Licensee consents to the jurisdiction of the federal and provincial courts sitting in Toronto, Ontario. If Licensee acquired this Software in the European Union, Iceland, Norway, or Switzerland, then local law applies. If Licensee acquired this Software in any other country, then local law may apply.
13.11. Attorneys’ Fees. The prevailing party in any action to enforce or interpret this EULA shall be entitled to reimbursement of its reasonable attorneys’ fees.
The following NOUVOLUTION GUARANTEE applies to Licensee if Licensee acquired this Software in any other country:
Statutory rights not affected – The following guarantee is not restricted to any territory and does not affect any statutory rights that Licensee may have from Licensee’s reseller or from Licensor if Licensee acquired the Software directly from Licensor. If Licensee acquired the Software or any support services in Australia, New Zealand or Malaysia, please see the “Consumer rights” section below.
The guarantee – The Software is designed and offered as a general-purpose software, not for any user’s particular purpose. Licensee accepts that no Software is error free and Licensee is strongly advised to back-up Licensee’s files regularly. Provided that Licensee has a valid license, Licensor guarantees that a) for a period of 60 days from the date of receipt of Licensee’s license to use the Software or the shortest period permitted by applicable law, it will perform substantially in accordance with the written materials that accompany the Software; and b) any support services provided by Licensor shall be substantially as described in applicable written materials provided to Licensee by Licensor and Licensor support engineers will use reasonable efforts, care and skill to solve any problem issues. In the event that the Software fails to comply with this guarantee, Licensor will either (a) repair or replace the Software or (b) return the price Licensee paid. This guarantee is void if failure of the Software results from accident, abuse or misapplication. Any replacement Software will be guaranteed for the remainder of the original guarantee period or 30 days, whichever period is longer. Licensee agrees that the above guarantee is Licensee’s sole guarantee in relation to the Software and any support services.
Exclusion of All Other Terms – To the maximum extent permitted by applicable law and subject to the guarantee above, Licensor disclaims all warranties, conditions and other terms, either express or implied (whether by statute, common law, collaterally or otherwise) including but not limited to implied warranties of satisfactory quality and fitness for particular purpose with respect to the Software and the written materials that accompany the Software. Any implied warranties that cannot be excluded are limited to 60 days or to the shortest period permitted by applicable law, whichever is greater.
Limitation of Liability – To the maximum extent permitted by applicable law and except as provided in the Nouvolution Guarantee, Licensor and its suppliers shall not be liable for any damages whatsoever (including without limitation, damages for loss of business profits, business interruption, loss of business information or other pecuniary loss) arising out of the use or inability to use the Software, even if Licensor has been advised of the possibility of such damages. In any case Licensor’s entire liability under any provision of this EULA shall be limited to the amount actually paid by Licensee for the Software. These limitations do not apply to any liabilities that cannot be excluded or limited by applicable laws.
Consumer rights – Consumers in Australia, New Zealand or Malaysia may have the benefit of certain rights and remedies by reason of the Trade Practices Act and similar state and territory laws in Australia, the Consumer Guarantees Act in New Zealand and the Consumer Protection Act in Malaysia in respect of which liability cannot lawfully be modified or excluded. If Licensee acquired the Software in New Zealand for the purposes of a business, Licensee confirms that the Consumer Guarantees Act does not apply. If Licensee acquired the Software in Australia and if Licensor breaches a condition or warranty implied under any law which cannot lawfully be modified or excluded by this agreement then, to the extent permitted by law, Licensor’s liability is limited, at Licensor’s option, to: (i) in the case of the Software: a) repairing or replacing the Software; or b) the cost of such repair or replacement; and (ii) in the case of support services: a) re-supply of the services; or b) the cost of having the services supplied again. Should Licensee have any questions concerning this EULA, or if Licensee desires to contact Licensor for any reason, please use the address information enclosed in this Software to contact the Licensor subsidiary serving Licensee’s country or visit Nouvolution on the World Wide Web at http://www.nouvolution.com.
ACCEPTANCE TESTING PROVISIONS
1. Licensor shall conduct Unit Testing (“UT”) and Application Integration Testing (“AIT”) relating to Software. Licensee will be responsible for User Acceptance Testing (“UAT”).
2. Anticipated duration for the various Nouvolution tests is as follows:
(a) UT – 3 days
(b) AIT – 1 week
3. Upon completion of UT and AIT to the satisfaction of both parties, the Software, or any upgrade release (as the case may be) will be migrated to the production environment. Licensee’s failure to specifically reject, in writing, the Software (or any upgrade release) within 10 business days of migration will be deemed completion of the entire UAT for the entire Software package and acceptance of the Software (or upgrade release).
[END OF SCHEDULE A]
SUPPLEMENTAL AGREEMENT - ANNUAL SOFTWARE SUPPORT SERVICES
ARTICLE 1. SERVICES AND FEES
(a) Service Request.
“Service Request” under this Supplemental Agreement means both a Support Request and/or Maintenance Request as define below.
(b) User Support.
“User Support” in this Supplemental Agreement means answering Licensee questions about how to use and/or troubleshoot the Software. Nouvolution agrees to provide Licensee with unlimited User Support by e-mail, phone, or remote access promptly after Licensee identifies a user problem and notifies Nouvolution (“Support Request”) pursuant to Section 1.2 below.
(c) Software Maintenance.
“Software Maintenance” in this Supplemental Agreement means providing the services necessary to remedy any programming error attributable to Nouvolution that is found to exist in the Software, either by replacing the Software or by taking appropriate corrective action. Nouvolution agrees to provide Software Maintenance promptly after Licensee identifies a claimed programming error and notifies Nouvolution of that error (“Maintenance Request”). Corrected or replacement Software delivered to Licensee shall be limited to one copy of the Software, and one copy of any revised documentation.
(d) Software Modification.
“Software Modification” in this Supplemental Agreement means customized programming services provided at Licensee’s request. Licensee may request modifications to the Software by submitting a Change Request Form which will be supplied by Nouvolution, Inc.
(e) Electronic Data Interchange.
“Electronic Data Interchange” in this Supplemental Agreement means the electronic exchange of invoices and purchase orders. EDI “Set Up” in this Supplemental Agreement means maintaining an accurate library of retailer EDI requirements, advising Licensee when updates or changes are necessary, document mapping, and data conversion and analysis. “Trading Partner” means an individual entity with which Licensee conducts business via EDI. “EDI Support” means unlimited support by e-mail, phone, or remote access promptly after Licensee identifies an EDI problem and notifies Nouvolution (“EDI Request”) pursuant to Section 1.2 below.
1.2. Service Requests.
(a) Licensee’s Authorized Representatives.
Only those parties identified to Nouvolution, Inc. by Licensee are “Licensee’s Authorized Representatives”. Nouvolution, Inc. will only respond to Service Requests from Licensee’s Authorized Representatives.
(b) Hours of Operation.
Nouvolution, Inc. shall perform all service during normal business hours, Monday through Friday, from 9:00 AM to 5:00 PM Pacific Time, and will usually respond to Licensee’s service request in the same manner in which it was reported, in the order it was received.
(c) Response Time.
Nouvolution, Inc. will make an attempt to contact Licensee by telephone within two hours of a Service Request made by telephone; within twelve 12 hours of a Service Request made by email; and within 48 hours of any Service Request requiring Nouvolution, Inc. to appear on site to provide support services or maintenance services. Nouvolution, Inc. will respond to requests made outside normal business hours within a reasonable time as determined by Nouvolution, Inc.
1.3. Fees. The fees for the Services provided under this Supplemental Agreement shall be eighteen percent (18%) per annum of the total MSRP of Licensee’s total purchased Software user licenses. Fees are subject to change on thirty (30) days written notice to Licensee. Licensee shall pay the first payment concurrently with Licensee’s purchase of the Software. In the event Licensee adds any servers, users, and/or workstations, Licensee shall immediately notify Nouvolution, Inc. in writing as such changes will affect price terms.
1.4. Late Payments. Any late payment shall accrue compound interest at the rate of ten percent (10%) per annum, or at the highest rate allowed by law, until the total late payment and interest is paid in full.
ARTICLE 2. TERM & TERMINATION
2.1. Scope. This Supplemental Agreement shall be operative from the Effective Date of the EULA for a one year period subject to automatic renewal for additional successive one year terms. This Supplemental Agreement shall remain in effect perpetually unless terminated by Nouvolution, Inc. as a result of Licensee’s default of the EULA or this Supplemental Agreement. In the event of termination, all fees payable under this Supplemental Agreement shall become due and payable immediately and without notice or demand by Nouvolution, Inc., and all obligations of Nouvolution, Inc. under this Supplemental Agreement shall end immediately upon termination. As used in this Article 2, default shall mean any failure on the part of Licensee to pay the fees provided for hereunder within five (5) days after notice that payment is delinquent. In such case, Nouvolution, Inc. may suspend service, declare all fees due, or terminate this Supplemental Agreement. Payments will continue to accrue as provided herein until the Supplemental Agreement expires or is terminated.
ARTICLE 3. MISCELLANEOUS PROVISIONS
3.1. ModificationsExcluded. Nouvolution shall not be obligated to provide support services and maintenance services pursuant to this Agreement with respect to any modifications to the Software made by Licensee or to any third party computer program incorporating all or any part of the Software..
3.2. Costs Related to Licensee Modified Software. If Nouvolution corrects defects or problems attributable to errors caused by Licensee or corrections or modifications made by Licensee, Licensee agrees to pay Nouvolution’s then current standard rates for time and material.
[END OF SCHEDULE B]
[END OF END USER LICENSE AGREEMENT]