END USER LICENSE AGREEMENT
This End User License Agreement (“EULA”) is entered into by and between ENETEL SOLUTIONS d.o.o, RN: 20667133, (ENETEL) and End User set forth in Order (the Client), and it covers Client’s use of the Hosted Services and Licenses (“Software Solution”). ENETEL and Client may be referred to herein collectively as the Parties or individually as a Party.
ENETEL and Client agree to the following terms and conditions:
By accessing or otherwise using the Software Solution the Client agrees to be bound by the term and conditions of this EULA. If the Client does not agree to the term and conditions of this EULA, do not make further use of the Software Solution.
“Access Credentials“ means the usernames, passwords, and other credentials enabling access to the Hosted Services;
“Anti-Corruption Laws” means all anti-bribery and anti-corruption laws and regulations binding on a Party’s business in connection with the performance of its obligations or exercise of its rights under this EULA;
“Authorized Third Parties” means officers, employees, agents, and subcontractors of the Client, permitted to access and use Software Solution;
“Brand Elements” means the trademarks, service marks, names, logos, marketing collateral, or similar materials provided by ENETEL under this EULA or Distributor on behalf of ENETEL;
“Client Data” means all information, data, and materials that Client or Authorized Third Parties create and store on the Hosted Services or data generated at the request of the Client.
“Confidential information” means non-public proprietary information of the disclosing party (“Discloser”) obtained by the receiving party (“Recipient”) in connection with this EULA, which is (a) conspicuously marked as confidential or, if verbally disclosed, is summarized in writing to the Recipient and marked as confidential; or (b) is information which by its nature should reasonably be considered confidential whether disclosed in writing or verbally.
“Distributor/Reseller” means partner authorized by ENETEL to sell Software Solution.
“Force Majeure” means an event beyond the affected party’s reasonable control, including (without limitation) accidents, severe weather events, actions of any government agency, epidemic, pandemic, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
“Hosted Service” means SaaS CloseOut, as defined in Appendix 1, accepted by the Client and which is governed by this EULA
“License” means an officially created account that allows each user access to Hosted Services via internet by using Supported Web Browser or Mobile app. A single License may be used by one user, i.e. It is not permitted that multiple users use one License.
“Mobile App” means the mobile application known as CloseOut that is made available by ENETEL through the Google Play Store and the Apple App Store;
“Order” means an order for the Software Solution submitted by Distributor, on behalf of the Client;
“Support Services” means support in relation to the use of, and the identification and resolution of errors in the Hosted Services, which shall include the provision of training/onboarding services.
“Supported Web Browser” means the latest version of Google Chrome, supported by ENETEL.
“Term” means a duration of the EULA;
2. Using Software Solution
2.1. License and right to use. ENETEL grants to the Client a non-exclusive, non-transferable, and temporary a) License to use Hosted Services b) right to use the Hosted Services, for its internal business use during the Term and as set out in the EULA.
2.2. Use by Third Parties. The Client may permit Authorized Third Parties to use the Software Solution provided that the Client is responsible for a) ensuring that such third parties comply with this EULA and b) any breach of the EULA by such third parties.
2.3. Software Solution Generally. The Client will not transfer, sell, resell, reframe, distribute, rent, or lease the Software Solution, including the Software Solution in an outsourced or service bureau offering, or otherwise commercialize the Software Solution. The Client must not use the Software Solution in any way that causes, or may cause, damage or impairment of the availability or accessibility of the Software Solution.
2.4. The Client must not use the Software Solution:
– in any way that is unlawful, illegal, fraudulent, or harmful; or
– in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity
2.5. For the avoidance of doubt, the Client has no right to access the software code, either during or after the Term.
2.6. The Software Solution may only be used through a Supported Web Browser or the Mobile App. The Software Solution may only be used by the Authorized Third Parties.
2.7. License restriction. The License granted by ENETEL to the Client under this clause is subject to the following limitation. The Client must not: a) sub-license its right to access and use the Hosted Services; b) permit any unauthorized person or application to access or use the Hosted Services; c) republish or redistribute any content or material from the Hosted Services; d) make any alteration to the Hosted Services, except as permitted by the ENETEL; e) conduct or request that any other person conduct any load testing or penetration testing on the Hosted Services without the prior written consent of ENETEL; f) use Hosted Services to develop a similar or competing product or service; g) reverse engineer, decompile, disassemble, modify, or seek to access the source code.
3. Confidential information and use of Client’s data
3.1. Confidentiality. Recipient will hold in confidence and use no less than reasonable care to avoid disclosure of any Confidential Information to any third party, except for its employees, affiliates, and contractors who have a need to know (“Permitted Recipients”). Recipient: (a) must ensure that its Permitted Recipients are subject to written confidentiality obligations no less restrictive than the Recipient’s obligations under this EULA, and (b) is liable for any breach of this section by its Permitted Recipients. Such nondisclosure obligations will not apply to information that: (i) is known by Recipient without confidentiality obligations; (ii) is or has become public knowledge through no fault of Recipient; or (iii) is independently developed by Recipient. The Recipient may disclose Discloser’s Confidential Information if required under regulation, law or court order provided that Recipient provides prior notice to Discloser (to the extent legally permissible) and reasonably cooperates, at Discloser’s expense, regarding protective actions pursued by Discloser. Upon the reasonable request of Discloser, Recipient will either return, delete or destroy all Confidential Information of Discloser and certify the same.
3.2. Usage of Client’s data. The Client is responsible for Client Data. ENETEL does not endorse and has no control over what users submit through the Hosted Service. The Client shall retain all rights to the Client Data. The Client grants ENETEL a right to use, modify, replicate, and transfer the Client Data only as reasonably required to provide the Hosted Service. The Client warrants to ENETEL that the Client Data when used by ENETEL in accordance with this EULA will not infringe the intellectual property rights or other legal rights of any person, and will not breach the provisions of any law, statute, or regulation in any jurisdiction and under any applicable law. To the extent Client’s use of Software Solution requires it, the Client is responsible for providing notice to, and obtaining consents from, individuals regarding the collection, processing, transfer and storage of their data through the Client’s use of Software Solution.
3.3. Safety and protection of Client’s data Safety procedures and protection of the Client’s data stored on the Hosted Services are determined in detail in the Appendix 1 and Appendix 2. Client’s data stored on the Hosted Services (photographs, video material, documents), as well as system-generated data (reports, change history, user login history), is backed up (copied) daily and a backup copy is kept for 7 (seven) days. In case of need, a previous backup can be restored from the AWS cloud archive.
4.1. ENETEL retains ownership of all intellectual property rights to the Software Solution and underlying technology, the software, and associated documentation (“the Materials”). This ownership extends to all copies and portions of the Materials, and all improvements, enhancements, modifications, and derivative works. The Client may use the Materials solely as part of the service provided by ENETEL and for Client’s internal business operations subject to the terms of this EULA. The Client’s right to use the Materials is limited to those rights expressly granted by this EULA.
4.2. This EULA does not include in any way transfer to the Client of any property or intellectual rights.
4.3. The Client agrees not to remove or alter any Brand Elements, including without limitation any electronic watermarks or other identifiers, that may be incorporated in the Hosted Services or any copy of the Hosted Services.
5. Client’s obligation
5.1. Compliance. The Client represents and warrants that it has the legal power and authority to enter into and perform its obligations under this EULA, its execution and performance of this EULA will not violate any other agreement to which it is a party, and it will comply with all laws applicable to its business in connection with its performance under this EULA, including import and export compliance laws and regulations and Anti-Corruption Laws, and will not give, offer or promise any item of value to any official, person or entity in violation of Anti-Corruption Laws. The Client agrees that ENETEL may investigate complaints or suspected violations of applicable regulations and/or violation of provisions of this EULA, and if there is a violation, ENETEL may take action to remedy the violation including restricting, suspending, or terminating access to the Hosted Service. If ENETEL reasonably believes that such violation would expose it to civil, regulatory, or criminal liability, ENETEL may take action immediately without prior notice. The Client agrees to indemnify, defend and hold ENETEL harmless for any claims, liability, damages, and costs (including attorneys’ fees) arising from Client or Client Authorized Third Parties violations of applicable regulations.
5.2. Access credentials. The Client is responsible for their account information, password, or other Access credentials. The Client agrees to implement and maintain reasonable security measures to protect their Access credentials and is obliged to notify ENETEL immediately of any known unauthorized use of its account. All registration information Client provides must be accurate and the Client will keep such information current.
5.3. Fees. The Client is obliged to pay the agreed fees (if any) to the Distributor for Software Solution. In case of non-payment, by the Client or by the Distributor, ENETEL reserves the right to cancel or suspend the provision of the Software Solution.
6. Changes to Hosted service
6.1. ENETEL will continuously upgrade the features of the Hosted Services in order to improve functionality and user experience. All upgrades shall be made available to the Client in accordance with the update procedure of the Hosted Service.
7.1. ENETEL warrants that the Hosted Service will comply with the conditions defined in the Appendix 1.
7.2. If Client wishes to exercise his warranty rights, Client shall notify ENETEL upon complaint regarding malfunction of the Hosted Service. ENETEL shall modify and correct the Hosted Service functionalities so they can conform to functionalities contained in Appendix 1.
7.3. Except as expressly stated, ENETEL: (a) expressly disclaims all warranties and conditions of any kind, express or implied, including without limitation any warranty or condition; and (b) makes no warranty or representation that: (i) the Hosted Service will be uninterrupted, completely secure, error-free, or free of viruses, bugs, or other malicious software
programs; or (ii) the Hosted Services will meet Client’s business requirements or operate with Client existing systems; (iii) the Hosted Service will be entirely free from security vulnerabilities;
7.4. The Client acknowledges that ENETEL will not provide any legal, financial, accountancy, or taxation advice under this EULA or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this EULA, ENETEL does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Client will not give rise to any legal liability on the part of the Client or any other person.
7.5. ENETEL shall use reasonable endeavors to maintain the availability of the Hosted Services to the Client but does not guarantee 100% availability.
7.6. For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this EULA:
– a Force Majeure Event.
– a fault or failure of the internet or any public telecommunications network.
– a fault or failure of the Client’s computer systems or networks, or
– scheduled maintenance carried out in accordance with the written notice given by ENETEL
7.7. ENETEL may enhance or refine Hosted Services, although in doing so, ENETEL will not materially reduce the core functionality of Hosted Services; and perform scheduled maintenance of the infrastructure and software to provide Hosted Services, during which time the Client may experience some disruption to Hosted Services. The Client acknowledge that from time to time ENETEL may need to perform emergency maintenance without providing the Client advance notice during which time ENETEL may temporarily suspend Client’s access to and use of Hosted Services.
8. Limitation of liability
8.1. ENETEL will not be liable for any damages or loss caused by or resulting from:
– Any modification or repair or integration to Hosted services not made by ENETEL, unauthorized by ENETEL, and not under the direction of ENETEL;
– Operate or use of the Hosted services for purposes substantially outside of the scope of this EULA;
– Improper use of the Hosted services or in a manner or for the purpose other than for which it was designated;
– Any breach of obligations by the Client, under this EULA;
– Force Majeure: external causes, that include, but not limited to, fire, flooding, lightning, or any other natural disaster;
– Misuse of the Hosted services
– Client Data
8.2. The Client agrees to indemnify and hold harmless ENETEL, and their respective officers, directors, employees, and suppliers against any and all claims, damages, liabilities, losses, and/or expenses including reasonable attorney fees arising from (a) Client’s use of the
Hosted Service in a manner not expressly authorized by ENETEL or that is in violation of applicable law, (b) Client Data or combination of Client Data with other applications, content or processes, (c) Client’s compliance with any specifications, requirements or instructions provided by Client or a third party on Client’s behalf, and (d) a dispute between Client and any third party.
8.3. In no event will ENETEL be liable to Client for any special, incidental, indirect, or consequential losses or damages, and/or any liability for, in each case direct or indirect, special or consequential, loss of profit, loss of revenue or income, loss of use or production, goodwill, anticipated savings, loss of business, contract, opportunity or data, whether based on breach of EULA, tort (including, without limitation, negligence), product liability, or otherwise, and whether or not ENETEL has been advised of the possibility of such potential loss or damage. This limitation of liability shall apply regardless of the cause of action or legal theory applied or asserted by the Client.
9. Support Services
9.1. ENETEL provides basic Support services with the Hosted Services as described in the Appendix 1. The Support Services fee is included in the License fee that Client pays to Distributor. ENETEL provides Support services to users via its dedicated ticketing system.
9.2. ENETEL will acknowledge support requests from the Client within 1 hour. Where ENETEL considers it necessary to facilitate efficient communication, ENETEL may contact the Client by email or otherwise.
9.3. ENETEL will supply upgrades to the Software Solution as they are commercially released.
9.4. ENETEL will use reasonable endeavors to solve problems with the Software Solution identified and notified by the Client by means of the dedicated ticketing system. ENETEL undertakes to keep the Client updated on progress and, where practical, provide an interim fix and/or workaround so that the Client can continue effective use of the Software Solution. ENETEL expects reasonable support from the Client’s side to help diagnose the problem, examples of such activities involve providing the adequate log files, and if necessary, access to the Client’s environment.
9.5. The Client accepts that, where a particular identified problem requires an update to the Software Solution, the scheduling of any new releases and the functionality of those releases contain shall be under ENETEL’s sole control.
9.6. ENETEL shall have no obligation to provide the support and maintenance services if the fault is not reported through the dedicated ticketing system (Jira Service Desk), or where faults arise from:
– misuse, incorrect use of or damage to the Software Solution; or
– failure to maintain the necessary environmental conditions for use of the Software Solution; or
– use of the Software Solution in combination with any equipment or software not provided by ENETEL, or any fault in any such equipment or software; or
– the Client’s failure to follow ENTEL’s oral or written instructions as to use of the Software Solution; or
– the Client is altering or repairing the relevant Software Solution without the written consent of ENETEL; or
– any breach of Client’s obligations under this EULA
9.7. The Parties agree that all correspondence, technical and commercial documents as well as any other information relating to the Software Solution shall be in English language.
10. Term and Termination
10.1. The EULA will be valid as of the date of signing by both Parties. The Client is obliged to inform ENETEL at least 30 days prior to the end of the current month that the Client wishes to terminate the EULA. If no prior notice was provided, the EULA shall continue to be valid.
10.2. Either Party may terminate the EULA with immediate effect by delivering a written notice to the other Party, if the other Party is in fundamental breach of any of the provisions of the EULA and fails to remedy such breach within 15 (fifteen) calendar days after receipt of a written notice specifying such breach.
10.3. Either Party may terminate the EULA immediately by giving written notice of termination to the other Party if the other Party:
– is dissolved
– ceases to conduct all of its business;
– is or becomes insolvent or is declared insolvent;
– is subject of the bankruptcy petition;
10.4. ENETEL is entitled to terminate the EULA by submission of the written termination statement with a termination period of no less than 30 (thirty) calendar days.
10.5. Termination of the EULA shall not affect the Client’s obligation to pay agreed fees, settlement of disputes and any other provision which is to operate after termination.
10.6. Upon termination of the EULA, the Client is obliged to stop using the Software Solution and to destroy or return to ENETEL any copies of Confidential Information.
11. Applicable Law
11.1. The EULA shall be governed by, construed, and enforced in accordance with the laws of Texas, USA without reference to its conflicts of law provision. The Parties shall make a good faith effort to settle amicably any dispute arising out of or related to the EULA. An attempt to reach a settlement shall be deemed to have failed if the dispute is not amicably resolved by the Parties within 30 (thirty) days of notification thereof sent by one of the Parties regarding the dispute and commencing the settlement period. In case the Parties have failed to reach an amicable settlement, the disputes arising out of or in connection with the EULA shall be settled in front of competent court in Dallas, Texas.
11.2. The Client is obliged to comply with all applicable laws and regulations related to receipt and use of the Hosted Service. The Client must ensure to have the right to use all features of the Hosted Service in his registered jurisdiction. The Hosted Service may not be available in all countries and may not be available for use in any particular location. ENETEL may modify or discontinue Hosted Service features to comply with applicable laws and regulations.
12.1. Force Majeure. Except for payment obligations, neither Party shall be in breach of the EULA nor liable for delay in performing, or failure to perform, any of its obligations under the EULA if such delay or failure result from events, circumstances, or causes beyond its reasonable control. In such circumstances, the affected Party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 20 (twenty) days, the Party not affected may terminate this EULA by giving written notice to other Party.
12.2. Assignment. The EULA and the documents incorporated herewith represent the entire understanding between the Parties hereto regarding the subject matter hereof and may not be amended except by an instrument in writing signed by both Parties. The EULA nor any of rights and obligations are undertaken herewith may not be assigned or otherwise transferred by either Party in whole or in part without the express prior written consent of the other Party.
12.3. Relationship of Parties. The EULA is not intended by the Parties to constitute or create a joint venture, partnership, or formal business organization of any kind, other than the arrangement that is specifically defined in the EULA and the rights and obligations of the Parties shall only be those expressly stated in the EULA. Neither Party shall have the authority to bind the other except to the extent authorized herein.
12.4. Severability. If any provision of the EULA shall be unlawful, void, or for any reason is unenforceable, then that provision shall be deemed severable for the EULA and shall not affect the validity and enforceability of any remaining provisions.
12.5. No Waiver. Neither the failure nor delay by either Party to exercise any right or remedy under this EULA nor shall any single or partial exercise of any right or remedy shall operate or be construed as a waiver thereof. No waiver of any right or remedy under the EULA will be effective unless in writing signed by the Party to be charged thereby.
12.6. Number of copies. The EULA is made in 2 (two) identical original copies, 1 (one) for each Party, of which each shall be deemed an original, and of which all taken together shall constitute the same agreement.
12.7. Execution. The Parties agree to be legally bound by all of the foregoing terms and hereto have caused the EULA to be executed by their respective duly authorized representatives as of the day and year written below.
12.8. The Parties agree that an integral part of this EULA are:
– Appendix 1 – Technical specification for SaaS CloseOut
– Appendix 2 – Data Processing Agreement