End User Liscense Agreement
END USER LICENSE AGREEMENT (“EULA”)
PLEASE REVIEW THE FOLLOWING END USER LICENSE AGREEMENT AND ANY REFERENCED TERMS AND CONDITIONS, WHICH ARE HEREBY INCORPORATED HEREIN (‘AGREEMENT’). THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU, THE USER, AND THE ENTITIES (COLLECTIVELY REFERRED TO HEREINAFTER AS THE ‘SUBSCRIBER’) ON WHOSE BEHALF YOU ARE ACCESSING AND/OR USING THE VALORX TECHNOLOGY (AS DEFINED BELOW), AND VALORX INC, A DELAWARE CORPORATION (“VALORX”). EXCEPT AS SET FORTH IN ANY SEPARATE WRITTEN AGREEMENT(S) EXECUTED BY THE SUBSCRIBER AND VALORX, THIS AGREEMENT GOVERNS ALL USE OF THE VALORX TECHNOLOGY AND SUPPORT SERVICES.
BY CLICKING ‘I AGREE’, OR OTHERWISE USING THE VALORX TECHNOLOGY OR THE SUPPORT SERVICES, SUBSCRIBER CONSENTS TO ALL OF THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT. IF SUBSCRIBER DOES NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, IMMEDIATELY STOP USING THE VALORX AND SUPPORT SERVICES AND CONTACT VALORX.
IF THERE IS/ARE SEPARATE WRITTEN AGREEMENT(S) EXECUTED BY AND BETWEEN THE SUBSCRIBER AND VALORX, THE TERMS AND CONDITIONS OF SUCH SEPARATE WRITTEN AGREEMENT(S) SHALL PREVAIL IN THE EVENT OF A CONFLICT WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
This End User License Agreement (“Agreement”) is between Valorx and the customer (individual or entity) that has downloaded or otherwise procured the licensed Software (as defined below) for use as an end user (“you”). This Agreement applies only to Software, Support and Maintenance Services, and Professional Services, as referenced herein.
Subject to Section 24, Valorx may modify the terms of this Agreement from time to time. It shall post the most updated version of this Agreement on its website. It is Subscriber’s responsibility to review and stay informed of any changes. Subscriber’s continued use of the Valorx Technology following modification to the terms of this Agreement or Subscriber’s failure to object to such modification shall constitute Subscriber’s consent to be bound by the modified Agreement.
“Account” means one or more accounts created by Subscriber for Subscriber to manage its Valorx subscriptions.
“Confidential Information” shall mean all confidential information of a party, whether written or oral, and whether in paper or electronic format, disclosed to a receiving party that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the receiving party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential information related to either party’s customer lists, customer information, products, technical information, pricing information, pricing methodologies, bank information, payment terms, invoice information, vendor lists or information regarding the disclosing party’s business planning or business operations shall be deemed Confidential Information without any marking or further designation. Notwithstanding the above, the receiving party’s nondisclosure obligations shall not apply to information that: (i) was generally available to the public at the time it was disclosed, or becomes generally available to the public through no fault of the receiving party; (ii) was known to the receiving party at the time of disclosure as shown by written records in existence at the time of disclosure; (iii) was developed independently by the receiving party prior to the disclosure, as shown by written records in existence prior to the disclosure; (iv) is disclosed with the prior written approval of the disclosing party; (v) becomes known to the receiving party from a source other than the disclosing party without breach of this Agreement by the receiving party and in a manner which is otherwise not in violation of the disclosing party’s rights; or (vi) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the receiving party shall provide reasonable advance notice to enable the disclosing party to seek a protective order, and that such information remains Confidential Information for all other purposes.
“Data Protection Laws” has the meaning as set forth in Section 9 of this Agreement.
“Device” means Windows® or Mac or Linux personal computer, network, storage or other devices upon which or through which the Valorx Technology is used and/or installed.
“Downloadable Software” means any downloadable client software which is provided by Valorx solely for the purpose of accessing the Valorx Technology.
“Downloadable Reports” means any downloadable reports in any format which is provided in connection with the Valorx Technology.
“Infrastructure” means the technical systems, hardware and all connected devices of Valorx or its third-party suppliers.
“Malicious Code” has the meaning as set forth in Section 6.2 of this Agreement.
“Order” means the order form (whether provided online or in physical form) submitted by Subscriber to purchase the right to use the Valorx Technology.
“Subscriber” has the meaning as set forth in the first paragraph of this Agreement.
“Subscriber Data” shall mean all Subscriber’s Confidential Information and other data generated, uploaded or transmitted by Subscriber using the Valorx Technology.
“Subscription” means the non-exclusive, non-transferable right to use the Valorx Technology, both on a trial or paid basis, and subject to the terms of this Agreement.
“Subscription Fees” means the fees payable as set forth in the Order.
“Subscription Period” means the time period of subscription as set forth in the Order subject to Section 2 hereof.
“Support” has the meaning as set forth in Section 5 of this Agreement.
“Virus or Malware” means programming or software code designed to damage, destroy or otherwise interfere with programs, software, and/or devices, not limited to: Trojans; any Windows temporary files of any kind (including, without limitation, any *.p or ~*.* files); worms, and/or corrupted files.
“Valorx Technology” means the various features and components thereof, software, mobile applications, any documentation both on and offline, as well as any modifications, derivatives, updates or upgrades as may be offered by Valorx from time to time, and which are chosen by and subscribed to by the Subscriber via a Subscription. A Subscriber may choose to subscribe to one or more features of the Valorx Technology under its Subscription as may be offered by Valorx from time to time.
“Valorx” means Valorx, Inc., a Delaware Corporation, located at 1257 Quarry Lane, Ste 155, Pleasanton, CA 94566.
Subject to the terms and conditions of this Agreement, Subscriber may use the Valorx Technology in the manner as set forth in the Order (the “Services”). Valorx shall make commercially reasonable efforts to provide the Services to Subscriber.
The Subscription begins on the earliest of (i) the Subscriber’s payment is processed, (ii) the start date on an Order (when applicable), or (iii) the adding of an environment to a trial subscription.
A Subscription shall have an initial term of one (1) year and shall be auto-renewed for additional one (1) year periods unless Subscriber provides at least sixty (60) days prior written notice before the end of the initial or any renewal period that it desires to terminate such Subscription. A Subscription may also terminate in whole or in part, due to:
- the operation of paragraph 24,
- a termination of the agreement by Valorx following a breach of any of terms of this Agreement by Subscriber, including non-payment of any Subscription Fees when due, or
- Valorx decision to terminate the Subscription with sixty (60) days prior notice to Subscriber.
3. GRANT OF RIGHT OF USE.
The Services, including the Valorx Technology is licensed and not sold. During the Subscription Period and subject to the receipt by Valorx of all due and payable Subscription Fees from Subscriber, Valorx grants Subscriber a revocable, limited, non-transferable, non-exclusive, worldwide license to access the Services in accordance with the Order and to use it pursuant to the terms of this Agreement. This Agreement covers any updates, new releases or enhancement(s) of the Services, which Valorx may make available to Subscriber from time to time.
4. ACCOUNT/USER ACCOUNT SECURITY.
In addition, Subscriber shall be solely responsible for access to, content in and use of its Account(s). Subscriber shall not allow its users to share their account details (including username and password) with any person outside of Subscriber or for any reason other than as contemplated herein. Valorx shall not be liable for any loss or damage arising from any access to, or sharing and use of Subscriber’s Account(s). In the event that Subscriber believes or suspects that there has been any unauthorized access to the Account(s), Subscriber must notify Valorx immediately by electronic mail to email@example.com.
5. SUPPORT SERVICES.
- Valorx Technology Warranty. Valorx represents and warrants to Subscriber that for a period of thirty (30) days from delivery (the “Warranty Period”) the Valorx Technology shall operate in substantial conformity with the documentation. Valorx does not warrant that Subscriber’s use of the Valorx Technology will be uninterrupted or error-free. Valorx’s sole liability (and Subscriber’s exclusive remedy) for any breach of this warranty shall be, in Valorx’s sole discretion, to use commercially reasonable efforts to provide Subscriber with an bug-fix or work-around which corrects the reported non-conformity. If Valorx determines such remedies to be impracticable within a reasonable period of time, then Valorx shall provide a pro-rated refund. Valorx shall have no obligation with respect to a warranty claim unless notified of such claim within the Warranty Period. For the avoidance of doubt, this warranty applies only to the initial delivery of Valorx Technology and does not renew or reset, for example, with renewal terms, software updates or maintenance releases.
- Mutual Warranties Regarding Malicious Code. Each party will use standard industry practices to test any deliverables, technology or material delivered or transmitted by a party hereunder for the delivery or transmission of “Malicious Code” and shall remove any such “Malicious Code” prior to delivery or transmission. “Malicious Code” as used herein shall mean any code that is designed to harm, or otherwise disrupt in any unauthorized manner, the operation of the other party’s computer programs or systems or destroy or damage data in an unauthorized manner. For sake of clarity, Malicious Code shall not include standard routines that are implicit in the standard functionality of the Valorx Technology.
7. FORCE MAJEURE.
Neither party will be liable to the other for any failure to meet its obligations under this Agreement where such failure is caused by events beyond its reasonable control including, but not limited to, failure of communications networks, inability to timely obtain instructions or information from the other party, governmental action, fire, storms, floods or other acts of God, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.
8. CONSENT TO USE DATA.
Subscriber hereby grants to Valorx a worldwide, non-exclusive, fully paid-up license to use the Subscriber Data in any manner reasonably necessary for the proper functionality of the Services. Subscriber represents and warrants that Subscriber owns all right, title and interest in and to the Subscriber Data or has a license granting it the rights necessary to permit it to grant the foregoing license. Valorx may use the Subscriber Data in an aggregated format with data provided by other third parties for various business purposes, including but not limited to showing market data to other Subscribers, provided that it is not possible to identify Subscriber, or any individual Subscriber transaction from such data.
9. DATA PROTECTION.
Each party shall comply with its respective obligations under applicable data protection laws (‘Data Protection Laws’). Neither party shall do any act or omit any act that puts the other party in breach of its obligations as per this clause, nor shall anything in this Agreement be deemed to prevent any party from taking any action it reasonably deems necessary to comply with Data Protection Laws. Subscriber agrees that during the course of this Agreement: (i) with respect to the data that Subscriber collects, accesses or otherwise uses, Subscriber alone shall determine the purposes for which and the manner in which such data are collected, processed and used; and (ii) Subscriber is the data controller with respect to all data Subscriber may process.
Except as otherwise expressly provided under this Agreement, Subscriber shall have no right, and Subscriber shall not permit any third party, to:
(i) harm, disrupt or otherwise engage in activity that diminishes the Valorx brand, Valorx Technology, or Infrastructure;
(ii) transfer, assign or sublicense the limited rights granted to Subscriber in this Agreement to any other person or entity (any such attempted transfer, assignment, sublicense or unauthorized use shall be void);
(iii) make error corrections to or otherwise modify, adapt or make plug-ins for the Valorx Technology or decompile, decrypt, disassemble, reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms file formats or programming or interoperability interfaces of the Valorx Technology or of any files contained or generated using the Valorx Technology by any means whatsoever or otherwise reduce the Valorx Technology to human-readable form, except to the minimum extent expressly permitted under applicable law notwithstanding this restriction;
(iv) use or permit the Valorx Technology to be used to perform services for third parties, whether on a service bureau or time-sharing basis or otherwise, without the express written authorization of Valorx;
(v) attempt to alter, circumvent or provide the method or means to circumvent any disabling mechanism in the Valorx Technology;
(vi) use the Valorx Technology in any manner not expressly authorized herein;
(vii) use or permit the use of the Valorx Technology for storage, possession or transmission of any information, the possession, creation or transmission of which violates any state, local or federal law;
(viii) use the Valorx Technology in a manner that infringes upon or misappropriates the intellectual property or privacy rights of any third party;
(ix) perform any load testing of the Valorx Technology or attempt to probe, scan or test the vulnerability of the Valorx Technology without proper authorization;
(x) log into a server or Account that customer is not authorized to access;
(xi) alter, obscure, remove or fail to reproduce any trademark, product identification, proprietary marking, copyright or other notices from the Valorx Technology; or
(xii) publicly disseminate information regarding the performance of Products;
(xiii) Will not share program/code/ materials/ manuals/ configuration documents to any external parties/ vendors/ developers without the written permission from Valorx;
(ix) Use the Valorx name or Valorx trademarks or logos without the written permission from Valorx; or
(x) misrepresent any person or entities’ identity, impersonate any person or attempt to gain access to any Account, the Infrastructure or the networks or property of any third person.
11. INTELLECTUAL PROPERTY RIGHTS
The Valorx Technology is protected by worldwide copyright, trademark, patent and other intellectual property laws and treaties and belongs to Valorx and/or its licensors. Subscriber acknowledges that (i) rights in the Services, and specifically in Valorx Technology, is licensed (not sold) to Subscriber, and (ii) that Subscriber shall have no rights or title in or to the Services, and specifically in Valorx Technology, other than the right to use it in accordance with the terms of this Agreement. Other than as set forth herein, Valorx, its licensors and any applicable third parties, own all title, copyright and other intellectual property rights in and to the Services, and specifically in Valorx Technology. The Services, and specifically in Valorx Technology, in all confidential formats existing, constitutes a trade secret of and is proprietary to Valorx, its suppliers and/or licensors, including but not limited to, the specific internal code, design and structure of individual programs and software, the display and associated interface information. Subscriber shall not disclose Valorx’s Confidential Information and confidential aspects of the Services, and specifically in Valorx Technology, to third parties or use such information outside the scope of this Agreement.
12. OPEN SOURCE SOFTWARE.
Subscriber agrees and acknowledges that portions of the Valorx Technology may incorporate open source software. Any open source software provided with or contained in the Valorx Technology may be subject to additional terms and conditions as provided and amended from time to time by the applicable licensor and is provided ‘AS IS’ and without any warranty of any kind.
13. DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE WARRANTIES CONTAINED IN 6.1, VALORX MAKES NO WARRANTIES REGARDING THE SERVICES. VALORX SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. VALORX DOES NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS AND ERRORS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES WILL MEET SUBSCRIBER’S PARTICULAR REQUIREMENTS OR EXPECTATIONS. VALORX DOES NOT PROVIDE ANY WARRANTIES REGARDING THE ACCURACY OF DATA OR INFORMATION PROVIDED BY THIRD PARTIES. VALORX SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, SERVICE FAILURES, AND ANY OTHER PROBLEMS ARISING FROM SUBSCRIBER’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN VALORX AND SUBSCRIBER. VALORX’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITED WARRANTIES SPECIFIED HEREIN.
14. LIMITATION OF LIABILITY.
VALORX, ITS AFFILIATES, LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS, SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL PUNITIVE OR EXEMPLARY DAMAGES OR LIABILITY (INCLUDING REASONABLE ATTORNEYS’ FEES), INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF BUSINESS, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR LOSS OF PROFIT OR REVENUE, THAT RESULT FROM OR ARE RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF VALORX HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY. THE AGGREGATE LIABILITY OF VALORX TO SUBSRIBER IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF THE NET AMOUNT PAID BY SUBSCRIBER TO VALORX PURSUANT TO THIS AGREEMENT IN THE THREE MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES OR ONE THOUSAND DOLLARS ($1,000).
15. CONTRACTUAL LIABILITY.
Subscriber agrees to be contractually liable to Valorx and its licensors to defend and hold, harmless from and against any and all damages, fines, penalties, assessments, liabilities, losses, costs and expenses (including attorneys’ fees, expert fees and out-of-pocket expenses) in connection with (i) Subscriber’s use of the Services, (ii) Subscriber’s violation of the terms of this Agreement, (iii) Subscriber’s violation of any third-party rights, including any intellectual property rights, (iv) any claim of misuse of the Services, including but not limited to any claim that Subscriber is storing illegal files or data in its Account, (v) use of the Services in violation of this Agreement or of any state, federal or international law, rules and regulations (including but not limited to laws, rules and regulations related to exportation, shipping or transportation), (vi) use by Client of any API made available by Valorx, or (vii) use by Valorx of Subscriber Data in accordance with Section 8 of this Agreement.
Valorx will notify Subscriber in a reasonably prompt manner of any claim for which Valorx is seeking indemnification pursuant to this Agreement. The Subscriber may thereafter assume control of such claim provided that Subscriber must obtain the approval of Valorx before entering into any settlement agreement. Valorx will have the right to participate at its own sole cost and expense in the defense or settlement of such claim.
16. EFFECT OF TERMINATION.
Without prejudice to any other rights, Valorx may suspend or terminate, in part or in whole, without notice, Subscriber’s use of the Services and this Agreement if Subscriber does not abide by its terms, in which case Subscriber must cease all use of the Services. Clauses 1, 6.2, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23 and 24 shall survive any termination of this Agreement.
17. ENTIRE AGREEMENT.
This Agreement (as may be amended by time to time) and any other written and executed agreements relating to the Services by and between Valorx and the Subscriber shall constitute the entire agreement between Subscriber and Valorx relating to the Services and the Support and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Services or Support. If this License is translated into a language other than English and there are conflicts between the translations, the English version shall prevail.
18. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without application of California conflicts of laws principles and without application of the United Nations Convention on the International Sale of Goods. In the event of a dispute, claim or controversy, including but not limited to all payment disputes, arising out of or relating to this Agreement or any Order Form, the parties irrevocably agree to submit such dispute, claim or controversy initially to nonbinding mediation before JAMS (the “Dispute Resolution Organization”) within 25 miles of Pleasanton, California. In the event that mediation fails to resolve all disputes, then the parties shall submit all remaining disputes to binding arbitration (also within 25 miles of Pleasanton, California) before the same Dispute Resolution Organization. The parties agree to participate in the arbitration in good faith and to share equally in its costs. Notwithstanding any provision to the contrary, the parties agree that all disputes, claims or controversies arising out of this Agreement must brought within one (1) year of the events giving rise to them.
Subscriber agrees that Valorx may identify Subscriber and use Subscriber’s trademarks and logos for the purpose of identifying Subscriber as a customer of Valorx, both internally and in externally published media. Other use of Subscriber’s trademarks and logos shall be subject to Subscriber’s prior written consent.
20. EXPORT CONTROLS.
Subscriber agrees that the Services will not be used, shipped, transferred or exported into any country or to anyone: (i) which the EU or UN has embargoed goods; (ii) where the national legislation of the relevant Member State of the European Union (EU) has embargoed goods; (iii) listed in any enacted Common Position on restrictive measures imposed by the EU; (iv) on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders; or (v) in any manner prohibited by the EU Common Foreign and Security Policy, the United States Export Administration Act, or any other export laws or regulations. By using the Services, Subscriber represents that Subscriber is not located in, under the control of, or a national or resident of any such country or on any such list and Subscriber takes full and sole responsibility for such use.
Any sales, use, value added or other taxes (including applicable withholding taxes), shall be borne by the Subscriber. Accordingly, Subscriber shall pay or, if paid by Valorx, reimburse Valorx for all such taxes based on this License or any fees payable hereunder (but not any taxes based upon Valorx’s revenues or income), together with any interest on such taxes.
22. U.S. GOVERNMENT RIGHTS.
If Subscriber is obtaining Services on behalf of any part of the United States Government, the Services and any documentation shall be deemed “Commercial Off the Shelf Software” and “Commercial Computer Software Documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR 12.212 and 52.227-19, as applicable. Any use, modification, revision, release, performance, display or disclosure of the Services shall be governed solely by the terms of this Agreement.
23. EQUITABLE RELIEF.
The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof (without any requirement to post bond or guarantee), in addition to any other remedy to which they are entitled at law or in equity.
The delay or failure of either party to exercise any right provided in this Agreement shall not be deemed a waiver. This Agreement may not be amended by Subscriber, but Valorx may amend this Agreement from time to time and shall post any amended Agreement on its website at www.valorx.com, PROVIDED HOWEVER that Subscriber shall have the right within 14 days of such posting to provide written notice of objection to Valorx (by sending an email to firstname.lastname@example.org); if an objection is so made, then Valorx shall have the right forthwith to terminate this Agreement, and if the Agreement is not so terminated, it shall continue in force in the form so amended by Valorx. This Agreement is for the sole benefit of Valorx and Subscriber and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. If any provision of this Agreement shall be held to be illegal, void or unenforceable by any court of competent jurisdiction or arbitral tribunal, such provision shall be of no force and effect and shall not impair the enforceability of any other provision of this Agreement; the parties agree that the relevant provision shall be deemed replaced by such provision which is binding and enforceable and which differs as little as possible from the non-binding and/or non-enforceable provision, taking into effect the object and purpose of this Agreement. Except as set forth in this Agreement, the remedies of the parties under this Agreement are cumulative and will not exclude any other remedies to which the respective party may be lawfully entitled. Except as expressly set forth in this Agreement, all notices must be in writing and shall be mailed by registered or certified mail (effective on the third day following the date of mailing), or sent via email to email@example.com (with evidence of effective transmission). All notices must be addressed to Valorx at firstname.lastname@example.org. Valorx may assign, pledge or otherwise transfer this Agreement, or any rights or obligations hereunder in whole or in part to any entity. Paragraph headings are for convenience and shall have no effect on interpretation.