DEFINELY END USER SOFTWARE LICENSE AND SUPPORT & MAINTENANCE SERVICES AGREEMENT
IMPORTANT - READ CAREFULLY: BY SIGNING OR ACCEPTING AN ORDER REFERENCING THIS AGREEMENT OR BY DOWNLOADING, INSTALLING, RUNNING, ACCESSING OR USING THE SOFTWARE REFERENCED IN THE ORDER (TOGETHER WITH ANY SOFTWARE THAT DEFINELY PROVIDES THROUGH SUPPORT & MAINTENANCE SERVICES, COLLECTIVELY, THE “SOFTWARE”), YOU ARE AGREEING TO ALL OF THE FOLLOWING TERMS AND CONDITIONS. PLEASE READ THESE TERMS CAREFULLY BEFORE TAKING SUCH ACTIONS. IF YOU DO NOT AGREE WITH OR DO NOT HAVE AUTHORITY TO AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, PLEASE DO NOT ACCEPT THESE TERMS OR OTHERWISE ATTEMPT TO DOWNLOAD THE SOFTWARE IN ANY WAY.
1. Parties. These terms represent the agreement (“Agreement”) that governs the purchase of licenses for the Software and related support and maintenance services (“Support & Maintenance Services”) from Defeyene Legal Solutions Limited (dba Definely) (“Definely”) by the customer entity identified in the Order (“Customer”).
2. Orders. “Order” means the accepted order (i.e., End-User License Agreement, Commercial License Agreement, Order Form, Sales Contract, Product Schedule, Purchase Order, Rider, Software Schedule, or other ordering document issued and accepted by Definely.), including any supporting material which the parties expressly identify as incorporated into the Order either by attachment or reference (“Supporting Material”). Supporting Material may include (as examples) product lists, specifications, standard or negotiated service descriptions, data sheets and their supplements, and statements of work (SOWs), published warranties and service level agreements, and may be available to Customer in hard copy or by accessing a designated Definely website.
3. Prices and Taxes. Prices are exclusive of taxes, duties, and fees (including installation, shipping, and handling) unless otherwise stated in the Order. If a withholding tax is required by law, please contact Definely to discuss appropriate procedures. Definely will charge separately for reasonable out-of-pocket expenses, such as travel expenses incurred in providing professional services.
4. Invoices and Payment. Customer agrees to pay all invoiced amounts within thirty (30) days of Definely’s invoice date. Definely may suspend or cancel performance of open Orders or Support & Maintenance Services, or terminate Customer’s use of the Software if Customer fails to make payments when due.
5. Delivery. Definely will use commercially reasonable efforts to deliver the Software in a timely manner. Definely may elect to deliver Software and related Software product/license information by electronic transmission or via download.
6. Support & Maintenance Services. Customer must purchase and receive Support & Maintenance Services for the Software for the first twelve (12) consecutive months beginning at the date of the shipment of the Software (the “Support & Maintenance Services Start Date”) in accordance with Definely’s standard terms of support as set forth below. After such non-cancelable, non-refundable initial Support & Maintenance Services term, Customer may elect in writing not to purchase and receive additional Support & Maintenance Services. Provided Customer is current in its payment of all Support & Maintenance Services fees, the renewal rate for Support & Maintenance Services fees will be the previous year's rate plus an increase not to exceed the greater of (i) five percent (5%) or (ii) the rate in increase of the Consumer Price Index for Urban Wage Earners and Clerical Workers (“CPI-W”), US City Average, All Items, Seasonally Adjusted, for the twelve (12) month period immediately preceding renewal of the Support & Maintenance Services for which such data is available. Should Customer allow Support & Maintenance Services to lapse, reinstatement will be subject to the payment of applicable Support & Maintenance Services fees for the lapsed period plus a fifteen percent (15%) reinstatement fee. Definely will provide Support & Maintenance Services in accordance with the terms set forth within the Definely Service Level Agreement (“SLA”).
Support & Maintenance Services will include provision of such updates, upgrades, bug fixes, patches and other error corrections (collectively, "Updates") as Definely makes generally available free of charge to all licensees of the Software then entitled to Support & Maintenance Services. Definely may develop and provide Updates in its sole discretion, and Customer agrees that Definely has no obligation to develop any Updates at all or for particular issues. Customer further agrees that all Updates will be deemed Software, and related documentation will be deemed Supporting Material, all subject to all terms and conditions of this Agreement. Customer acknowledges that Definely may provide some or all Updates via download from a website designated by Definely and that Customer’s receipt thereof will require an internet connection, which connection is Customer’s sole responsibility. Definely has no obligation to provide Updates via any other media. Support & Maintenance Services do not include any new version or new release of the Software that Definely may issue as a separate or new product, and Definely may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.
7. Eligibility. Definely’s service, support and warranty commitments do not cover claims resulting from: (i) improper use, site preparation, or site or environmental conditions or other non-compliance with applicable Supporting Material; (ii) Modifications or improper system maintenance or calibration not performed by Definely or authorized by Definely; (iii) failure or functional limitations of any non-Definely software or product impacting systems receiving Definely support or service; (iv) malware (e.g. virus, worm, etc.) not introduced by Definely; or (v) abuse, negligence, accident, fire or water damage, electrical disturbances, transportation by Customer, or other causes beyond Definely’s control.
8. Dependencies. Definely’s ability to deliver services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the services.
9. Change Orders. Both parties agree to appoint a project representative to serve as the principal point of contact in managing the delivery of services and in dealing with issues that may arise. Requests to change the scope of services or deliverables will require a change order signed by both parties.
10. Software Performance. Definely warrants that the Software will conform materially to their specifications and be free of malware at the time of delivery. Definely warranties for the Software will begin on the Support & Maintenance Services Start Date and, unless otherwise specified in Supporting Material, will last for ninety (90) days. Definely does not warrant that the operation of the Software will be uninterrupted or error-free or that the Software will operate in hardware and software combinations other than as authorized by Definely in Supporting Material.
11. Services Performance. Services are performed using generally recognized commercial practices and standards. Customer agrees to provide prompt notice of any such service concerns and Definely will re-perform any service that fails to meet this standard.
12. Product Warranty Claims. When Definely receives a valid warranty claim for an Definely Software product, Definely will either repair the relevant defect or replace the Software product. If Definely is unable to complete the repair or replace the Software product within a reasonable time, Customer will be entitled to a partial refund of the Software product fees upon the prompt written confirmation by Customer that the relevant Software product has been destroyed or permanently disabled. Definely will pay for shipment of repaired or replaced Software products to Customer.
13. Remedies. This Agreement states Customer’s sole and exclusive remedies for warranty claims. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10, THE SOFTWARE AND SUPPORTING MATERIAL ARE PROVIDED TO CUSTOMER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DEFINELY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND SUPPORTING MATERIAL, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, DEFINELY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
14. Intellectual Property Rights. No transfer of ownership of any intellectual property will occur under this Agreement. Customer grants Definely a non-exclusive, worldwide, royalty-free right and license to any intellectual property that is necessary for Definely and its designees to perform the ordered services. If deliverables are created by Definely specifically for Customer and identified as such in Supporting Material, Definely hereby grants Customer a worldwide, non-exclusive, fully paid, royalty-free license to reproduce and use copies of the deliverables internally. Customer shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.
15. Intellectual Property Rights Infringement. Definely will defend and/or settle any claims against Customer that allege that the Software infringes the intellectual property rights of a third party. Definely will rely on Customer’s prompt notification of the claim and cooperation with our defense. Definely may modify the Software so as to be non-infringing and materially equivalent, or Definely may procure a license. If these options are not available, Definely will refund to Customer the amount paid for the affected Software in the first year or the depreciated value thereafter. Definely is not responsible for claims resulting from any unauthorized use of the Software. This section shall also apply to deliverables identified as such in the relevant Supporting Material except that Definely is not responsible for claims resulting from deliverables content or design provided by Customer.
16. License Grant. Definely grants Customer a non-exclusive, non-transferable, non-sublicensable, limited license to use the version or release of the Definely-branded Software delivered to Customer unless otherwise listed in the Order. Permitted use is for internal purposes only (and not for further commercialization), and is subject to any specific software licensing information that is in the software product or its Supporting Material. For non-Definely branded software, the third party’s license terms will govern its use.
17. License Restrictions. Definely may monitor use/license restrictions remotely and, if Definely makes a license management program available, Customer agrees to install and use it within a reasonable period of time. Customer may make a copy or adaptation of a licensed Software product only for archival purposes or when it is an essential step in the authorized use of the Software. Customer may use this archival copy without paying an additional license only when the primary system is inoperable. Customer may not copy licensed Software onto or otherwise use or make it available on any public external distributed network. Licenses that allow use over Customer’s intranet require restricted access by authorized users only. Customer will also not: (i) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Supporting Material or any part thereof; (ii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; (iii) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Supporting Material, including any copy thereof; (iv) use the Software or Supporting Material in violation of any law, regulation or rule; or (v) use the Software or Supporting Material for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to Definely’s commercial disadvantage.
18. License Term and Termination. Unless otherwise specified, any license granted is perpetual; provided, however, that if Customer fails to comply with the terms of this Agreement, Definely may terminate the license upon written notice. Immediately upon termination, or in the case of a limited-term license, upon expiration, Customer will either destroy all copies of the Software or return them to Definely, except that Customer may retain one copy for archival purposes only.
19. License Transfer. Customer may not sublicense, assign, transfer, rent or lease the Software or Software license except as permitted by Definely. Definely-branded Software licenses are generally transferable subject to Definely’s prior written authorization and payment to Definely of any applicable fees. Upon such transfer, Customer’s rights shall terminate and Customer shall transfer all copies of the Software to the transferee. Transferee must agree in writing to be bound by the applicable Software license terms.
20. License Compliance. Definely may audit Customer compliance with the Software license terms. Upon reasonable notice, Definely may conduct an audit during normal business hours (with the auditor’s costs being at Definely’s expense). If an audit reveals underpayments then Customer will pay to Definely such underpayments. If underpayments discovered exceed five (5) percent of the contract price, Customer will reimburse Definely for the auditor costs.
21. Confidentiality. Information exchanged under this Agreement will be treated as confidential if identified as such at disclosure or if the circumstances of disclosure would reasonably indicate such treatment. Confidential information may only be used for the purpose of fulfilling obligations or exercising rights under this Agreement, and shared with employees, agents or contractors with a need to know such information to support that purpose. Confidential information will be protected using a reasonable degree of care to prevent unauthorized use or disclosure for 3 years from the date of receipt or (if longer) for such period as long as the information remains confidential. These obligations do not cover information that: i) was known or becomes known to the receiving party without obligation of confidentiality; ii) is independently developed by the receiving party; or iii) where disclosure is required by law or a governmental agency.
22. Personal Information. Each party shall comply with their respective obligations under applicable data protection legislation. The Software and related registration processes may collect personally identifiable information (“PII”) about Customer and the use of the Software, including feature usage, and transmit that to Definely. Definely may use this information to provide services and optimize them. Customer may opt-out of some but not all these scenarios, as described in the Software documentation. Additional information is provided at https://www.definely.com/privacy-policy.
23. US Federal Government Use. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if Customer is the US Government or any contractor therefor, Customer shall receive only those rights with respect to the Software and Supporting Material as are granted to all other end users under license, in accordance with (i) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (ii) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
24. Global Trade compliance. Software products and services provided under this Agreement are for Customer’s internal use and not for further commercialization. The Software and Supporting Material may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export or release the Software or Supporting Material to, or make the Software or Supporting Material accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. Customer shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or Supporting Material available outside the US. Definely may suspend its performance under this Agreement to the extent required by laws applicable to either party.
25. Limitation of Liability. Definely’s liability to Customer under this Agreement is limited to the greater of $100,000 or the amount payable by Customer to Definely for the relevant Order. Neither Customer nor Definely will be liable for lost revenues or profits, downtime costs, loss or damage to data or indirect, special or consequential costs or damages. This Section 25 does not limit either party’s liability for: unauthorized use of intellectual property; death or bodily injury caused by their negligence; acts of fraud; willful repudiation of this Agreement; nor any liability which may not be excluded or limited by applicable law.
26. Disputes. If Customer is dissatisfied with the Software or Support & Maintenance Services purchased under this Agreement and disagrees with Definely’s proposed resolution, both parties agree to promptly escalate the issue to a Vice President (or equivalent executive) in each respective organization for an amicable resolution without prejudice to the right to later seek a legal remedy.
27. Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.
28. Termination. Either party may terminate this Agreement on written notice if the other fails to meet any material obligation and fails to remedy the breach within a reasonable period after being notified in writing of the details. If either party becomes insolvent, unable to pay debts when due, files for or is subject to bankruptcy or receivership or asset assignment, the other party may terminate this Agreement and cancel any unfulfilled obligations. Any terms in this Agreement which by their nature extend beyond termination or expiration of this Agreement will remain in effect until fulfilled and will apply to both parties' respective successors and permitted assigns.
29. General. This Agreement represents our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist. Modifications to the Agreement will be made only through a written amendment signed by both parties. If Customer is contracting with Defeyene Legal Solutions Limited, this Agreement is governed by the law of England and Wales, and is subject to the non-exclusive jurisdiction of the courts of England and Wales. The parties agree that the United Nations Convention on Contracts for the International Sales of Goods is specifically excluded from application to this Agreement.
Revised December 2022
EVALUATION SOFTWARE
If Customer has received the Software for purposes of evaluation, regardless of how labeled, the use of the Software is limited to a fifteen day period of time, or as specified in the email accompanying the download instructions (the "Evaluation Period") and all use will be governed by the terms set forth below.1. Grant of License. Definely grants Customer a limited, personal, internal use, non-exclusive, non-transferable license to use the Software solely to evaluate its suitability for Customer's internal business requirements during the Evaluation Period. Without limiting the foregoing, Customer may not use the Software during the Evaluation Period to create publicly distributed computer software or for any other commercial purpose. Applications developed with Evaluation Software may expire. This license may be terminated by Definely at any time upon notice to Customer and will automatically terminate, without notice, upon the first to occur of the following: (a) the completion of Customer's evaluation of the Software or (b) the expiration of the Evaluation Period.2. Limited Use Software. Portions of the full-use version of the Software may be withheld or unusable and use of the Software may require accessing portions of the Software remotely through the Internet. Full use of the Software may be restricted by technological protections.3. Disclaimer of Warranty. THE SOFTWARE ARE PROVIDED ONLY FOR EVALUATION PURPOSES ON AN "AS IS" BASIS. DEFINELY EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.4. Limitation of Liability. IN NO EVENT WILL DEFINELY BE LIABLE FOR ANY DAMAGES, INCLUDING LOST PROFITS OR DATA, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF DEFINELY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
Revised December 2022