Caringo End User Software License Agreement
This End User Software License Agreement (“Agreement” or "EULA") is a contract between you (either an individual or a single entity) ("Customer") and Caringo Inc. ("Caringo"), a Corporation under the laws of Delaware, located at 6801 North Capital of Texas Highway,
Building 2, Suite 200,
Austin, Texas 78731, for any software that may be supplied by Caringo not categorized, labeled or considered a “Tool”, “Utility”, or “Sample”(“Software”).
CHECKING "ACCEPT" AT THE END OF THIS AGREEMENT INDICATES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO CONTRACTUALLY BIND CUSTOMER. IF YOU DO NOT HAVE THIS AUTHORITY, YOU SHOULD NOT SELECT "ACCEPT" AND REQUEST APPROVAL FROM SOMEONE WHO DOES HAVE THIS AUTHORITY TO BIND CUSTOMER. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT SELECT THE "ACCEPT" BUTTON AND YOU WILL NOT BE AUTHORIZED TO USE THE SOFTWARE.
In consideration of the mutual covenants and conditions contained in this Agreement, the parties agree as stated herein. Any following attachment referencing this Agreement, if signed/accepted/attached/applicable is also part of this Agreement.
A. Caringo hereby grants to Customer a nonexclusive and nontransferable license, during the term of this Agreement, to use the object code for the Software. For the purpose of this Agreement, the Software shall include all versions, including current, previous, and subsequent versions, of any supplied by Caringo, together with operating instructions, user manuals, training material, and other documentation as may, in Caringo’s sole discretion, be supplied to Customer.
B. Customer shall use the Software for internal purposes only.
C. Customer may not:
(a) modify, adapt, translate, rent, lease, loan, or otherwise make available (including but not limited to via an application service provider or service bureau basis) any copy of the Software;
(b) electronically transmit the Software over a network except as necessary for Customer’s licensed internal use of the Software as specified in the product documentation;
(c) use run-time versions of third-party products embedded in the Software, if any, for any use other than the intended use of the Software,
(d) modify, disassemble, decompile, or reverse engineer (except solely in the European Union to the minimum extent necessary to achieve interoperability) the Software;
(e) transfer possession of any copy of the Software to another party; or
(f) use the Software in any way not expressly provided for in this Agreement.
2. Maintenance, Training, and Other Services.
Customer may obtain Software support and updates in accordance with the Software Maintenance Agreement Terms and Conditions. Maintenance, training, and other services are provided at prices quoted in writing by Caringo or Caringo’s authorized distributors.
3. Purchase, Payment, and Prices.
A. To make a purchase directly from Caringo, Customer will deliver a valid purchase order to Caringo for any Software, services, or other products that Caringo may offer.
B. Invoices for license and/or service(s) fees shall be issued upon delivery of the products or services, unless specified herein to the contrary, and shall be due and payable in United States currency upon receipt by Customer via mail or email. Payment shall be overdue thirty (30) days after the delivery date specified on the invoice. Overdue payments shall be subject to a finance charge of one and one-half percent (1 1/2%) for each month or fraction thereof that the invoice is overdue, or the highest interest rate permitted by applicable law, whichever is lower. Please note that if Software license is purchased through a third party, invoicing process will vary.
C. If not delivered via electronic download, all Software and other Caringo products will be shipped FOB Caringo's facility in Austin, TX, U.S.A., by commercial surface transportation, unless Customer requests in writing shipment by other means. Media and transportation charges for Software will be prepaid and billed to Customer. Unless otherwise specified by Customer, Caringo will arrange for insurance on all shipments while in transit and will bill Customer for such charges. Software shall be deemed accepted upon delivery.
D. The prices stated in Caringo quotations are exclusive of any federal, state, municipal, value-added, foreign withholding or other governmental taxes, duties, fees, excises, or tariffs now or hereafter imposed on the production, storage, licensing, sale, transportation, import, export, or use of the Software or any improvements, alterations, or amendments to the Software. Customer shall be responsible for, and if necessary reimburse, Caringo for all such taxes, duties, fees, excises, or tariffs, except for governmental or local taxes imposed on Caringo's corporate net income.
4. Title to Software.
Customer acknowledges that title to and ownership of the Software will at all times remain with Caringo or licensors to Caringo of software being licensed or sublicensed to Customer hereunder. Customer shall include Caringo's copyright or proprietary rights notice(s) on any copies of the Software and/or associated documentation, including copyright or proprietary rights notices of third parties that are included on media or in documentation provided by Caringo. Customer acknowledges that the Software (except certain open source components) is the property of Caringo or its licensors and that Customer's limited license rights in and to the Software may not be assigned, sub-licensed, or otherwise transferred for any reason without the prior, signed, written (not email), express consent of a Caringo corporate officer.
For Customers who have paid Caringo for Software, Caringo warrants that the Software will conform in all material respects to its then-current written specifications when properly installed on appropriate equipment and for ninety (90) days thereafter. For purposes of this Agreement, the sole source of such specifications shall be Caringo's written user documentation. Customer will notify Caringo of any nonconformity within ten (10) days of the expiration of the warranty period. Where a material nonconformity exists within the warranty period and proper notice has been given to Caringo, Caringo will, as its sole and exclusive liability and remedy to Customer, use its commercial reasonable efforts to attempt to confirm, diagnose, and correct the particular nonconformity and provide Customer with one (1) copy of any such corrected version of the Software, or, if Caringo is unable to correct such nonconformance(s) within a reasonable period of time, refund all license fees paid to Caringo for the Software. Customer understands and agrees that THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND CARINGO EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT AND THAT THIS DISCLAIMER IS A MATERIAL PORTION OF THIS AGREEMENT WITHOUT WHICH CARINGO WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
6. Limitation of Liability.
Customer agrees that Caringo's liability to Customer or any third party under this Agreement or for any other reason relating to this Agreement or the products and services provided under this Agreement, including claims for contribution or indemnity, shall be limited to the amount paid to Caringo under this Agreement. CUSTOMER AGREES THAT IN NO EVENT SHALL CARINGO BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, DATA, EFFICIENCY, OR USE, EVEN DESPITE THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
7. Intellectual Property Indemnity.
For Customers who have paid Caringo for Software, without modifying Section 6, Caringo will defend any action against Customer claiming that the Software constitutes direct infringement of a duly issued United States patent issued prior to the Effective Date or United States copyright. Caringo shall indemnify Customer for any loss, cost, damage, or expense finally awarded against Customer by a court of competent jurisdiction as a proximate result of such infringement. Caringo’s obligations under this section are expressly conditioned upon Caringo having sole control of any such action, and upon Customer notifying Caringo immediately in writing of the claim and giving authority, information, and assistance necessary to settle and/or defend such claim. If the use of the Software infringes or is enjoined, or Caringo believes that the Software is likely to infringe or be enjoined, Caringo may, at its sole option, (i) procure for Customer the right to continue use of the licensed Software as furnished, (ii) replace the licensed Software, (iii) modify the licensed Software to make it non-infringing, or (iv) terminate the license and refund the license fee for the Software, less a proportional adjustment for the time the Software was used by Customer, equal to the ratio of the time elapsed since the delivery date to five (5) years. The indemnity provided herein shall not apply if the alleged infringement arises from: (a) the use of other than a currently supported, unaltered release of the licensed Software; (b) the use of Software that has been modified or merged with any other program(s) by Customer; or (c) the use of the licensed Software in combination with software or hardware not specifically permitted under this Agreement. The foregoing states Caringo's entire liability for patent, copyright, or other proprietary rights infringement.
8. Confidentiality of Software and Documents.
A. Customer shall not reproduce, duplicate, copy, sell, lease, or otherwise disclose, transfer, or disseminate the Software, including operating instructions, user manuals, and training materials, in any medium except as authorized herein. Customer may make copies of the Software, in machine readable form, only as is reasonably necessary for archival and backup purposes. Any such authorized copy shall contain all Caringo's and any third party copyright/proprietary rights notices as specified in Section 4 above.
B. Customer agrees to using reasonable efforts not less than Customer exercises for its own confidential materials, to retain in confidence, and to require its employees (and any consultants who receive access) to retain the Software in confidence, and will make no use of such information solely except under the terms and during the existence of this Agreement, and then only to the extent that such use is necessary to Customer’s employees (or consultants) to perform their employment. The terms of this section shall not apply to information that (a) was known to Customer prior to its receipt from Caringo; (b) is or becomes public knowledge without fault of Customer; (c) is acquired by the Customer from a third party with good legal title thereto and without obligation of secrecy; or (d) has been approved for release by Caringo's written authorization.
C. The provisions of this Section shall survive the termination of this Agreement for a period of five (5) years. Notwithstanding the expiration of the obligation to exert the standard of care specified in this Agreement, Customer may not transfer Software or information licensed hereunder to a third party.
D. Customer shall not release the results of any benchmark of the Software, or of any third party products embedded in the Software, without prior, written (not email), express approval of a Caringo corporate officer.
This Agreement is effective on the earlier of (i) the date of shipment of the Software or (ii) the date the “I Accept” button is clicked during the registration process, and continues until terminated as provided herein, or by express written agreement of both parties. Caringo may terminate this Agreement, effective on sending notice via email, upon: (a) any material breach of this Agreement by Customer that is not cured within ten (10) days following written notice thereof; (b) Customer's insolvency, bankruptcy, suspension of business, assignment of assets for the benefit of creditors, voluntary dissolution, or appointment of a trustee for all or any substantial portion of Customer's assets; or (c) failure by Customer to pay license fees for Software under the payment terms specified in this Agreement or as stated on Caringo’s invoice for such Software. In the case of annual or other periodic fees, Customer may terminate its rights by electing not to pay such fees, in which case this Agreement terminates on the last day of the last period for which Customer had paid such fees. Upon termination, all licenses granted hereunder terminate and Customer will immediately destroy the Software (and confirm same via written, signed certification of a Customer officer) and all copies in any form.
A. Waiver/Amendment. No waiver, amendment, or modification of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver, amendment, or modification is sought to be enforced. No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided herein, shall be deemed as a waiver of any such right, power, or remedy.
B. Assignment. Either party may assign this Agreement to an entity acquiring substantially all of its assets or merges with it, provided that such assignee agrees in writing to assume all obligations under this Agreement. Except as set forth above, neither party may assign any of its rights or delegate any of its obligations under this Agreement to any third party without the express written consent of the other. Subject to the above, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto.
C. Disputes. The rights of the parties hereunder shall be governed by the internal laws of the State of Texas without its conflict of law rules. Any suits brought hereunder shall be brought and heard solely in the federal or state courts in Austin, TX, and Customer admits the jurisdiction thereof.
Customer agrees that Caringo has the right to obtain injunctive and other equitable relief in any court of competent jurisdiction at any time. Customer acknowledges that the Software contains trade secrets, the disclosure of which would cause substantial immediate harm to Caringo that could not be remedied by the payment of damages alone. Accordingly, Caringo will be entitled to preliminary and permanent injunctive relief and other equitable relief for any breach of Caringo's intellectual property rights in the Software.
D. Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
E. Export. Customer acknowledges that the laws and regulations of the United States and other countries restrict the export of the Software and warrants that that it will comply with all export control regulations of such countries. Customer agrees that it will not export or re-export the Software in any form without first obtaining written approval from Caringo, and the appropriate United States and/or foreign government approvals.
F. Notice. Any notice, consent, or other communication hereunder shall be in writing, and shall be given personally, by FAX with receipt, certified return receipt requested postal mail, or by express delivery with receipt to either party at their respective addresses (email may be used for other, operational communications):
(i) to Caringo at:
6801 North Capital of Texas Highway
Building 2, Suite 200
Austin, Texas 78731
(ii) to Customer at:
Physical address and e-mail provided to Caringo or such other address as may be designated by written notice of either party. Notices shall be deemed given when delivered or transmitted, or seven (7) days after deposit in the postal mail.
G. Entire Agreement. This Agreement, including all Attachments hereto, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all proposals, oral, or written, all previous negotiations, and all other communications between the parties with respect to the subject matter hereof. The terms of this Agreement shall prevail notwithstanding any different, conflicting, or additional terms that may appear in any purchase order, email, or other Customer document or communication. All products and services delivered by Caringo to Customer are subject to the terms of this Agreement, unless specifically addressed in a separate agreement. In any action to enforce or interpret this Agreement, the prevailing party will be reimbursed all its attorneys’ fees and related costs.
H. Open Source. The Software may contain open source components, which are provided under the terms of their respective licenses, which are included in the product units and product documentation. Caringo will ship open source (e.g., GPL-covered) source code after receiving written request specifying the code you seek accompanied by prepayment (check on U.S. bank or money order) for $55, to cover shipping and handling, provided you specify your physical address for our shipping you a CD.