CloseOut END USER LICENSE AGREEMENT
END USER LICENSE AGREEMENT
This End User License Agreement (“EULA”) is entered into by and between CloseOut FSM d.o.o, RN: 21931845, (“CO FSM”) and End User set forth in Order (“the Client”), and it covers Client’s use of the Hosted Services and Licenses (“Software Solution“). CO FSM and Client may be referred to herein collectively as the Parties or individually as a Party.
By accessing or otherwise using the Software Solution, or any part thereof, the Client expressly agrees to be legally bound by the terms and conditions of this EULA and Data Processing Agreement. If the Client does not agree to the terms and conditions of this EULA and Data Processing Agreement, 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 CO FSM under this EULA or Distributor on behalf of CO FSM;
“Client Data“ means all information, data, and materials that the 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 CO FSM to sell Software Solution.
“Day(s)” means calendar day(s).
“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 software-as-a-service CloseOut.
“License“ means an officially created account that allows each user access to Hosted Services via the 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 CO FSM through the Google Play Store and the Apple App Store;
“Order“ means an order for the Software Solution submitted by the 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 CO FSM.
“Term” means a duration of the EULA;
2. Using Software Solution
- License and right to use. CO FSM grants 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.
- 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.
- 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.
- 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
- For the avoidance of doubt, the Client has no right to access the software code, either during or after the Term.
- 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.
- License restriction. The License granted by CO FSM 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 CO FSM; 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 CO FSM; 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
- Confidentiality. The 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 the Discloser, Recipient will either return, delete or destroy all Confidential Information of Discloser and certify the same.
- Usage of Client’s data. The Client is responsible for Client Data. CO FSM 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 CO FSM the right to use, modify, replicate, and transfer the Client Data only as reasonably required to provide the Hosted The Client warrants to CO FSM that the Client Data when used by CO FSM 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.
- Safety and protection of Client’s data. The Software Solution has a clearly defined system for Client authentication and authorization. When a Client’s account is created, only the hash password value is recorded to the database. Passwords are saved in the encrypted format without the possibility of deciphering by any other user on the system. Client’s data and documentations are only accessible through the application, by authenticated and authorized users. All communication between users and the Hosted services is encrypted with 256-bit encryption and is executed by TLS 1.2 protocol. All Client data uploaded by Authorized Third Parties to the Hosted Services (photos, videos, documents, checklists), are hosted on Amazon Simple Storage Service (AWS S3) which ensures by design data integrity, data availability and security. For all data generated by the system itself (reports, changes history, log history), a daily backup is created (copies are created), and backup copies are kept on servers for 7 (seven) Days. Data can be restored from backup copies stored on AWS cloud. Also, the system permanently keeps the history of changes and logs for tracking of key users’ activities.
All the data is stored in a secure physical site on servers in AWS data centers, located in Europe and USA. Safety and security measures for AWS servers are described in detail in the document that is accessible through the following link: https://aws.amazon.com/compliance/.
- CO FSM 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 CO FSM 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.
- This EULA does not include in any way transfer to the Client of any property or intellectual rights.
- 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.
- CO FSM shall defend the Client against any third-party claims that the use of the Software Solution in accordance with this EULA infringes any third-party Intellectual Property Right. The foregoing obligations are applicable only if the Client a) promptly notifies CO FSM in writing of the infringement claim; b) allows CO FSM sole control over the defense for the claim and any settlement negotiations; and c) reasonably cooperates in response to CO FSM’s request for assistance; d) and makes no admission of liability or fault itself or on behalf of CO FSM.
- CO FSM shall not have any liability if the alleged infringement is based on modification of Software Solution by anyone other than CO FSM.
5. Client’s obligation
- 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 CO FSM may investigate complaints or suspected violations of applicable regulations and/or violation of provisions of this EULA, and if there is a violation, CO FSM may take action to remedy the violation including restricting, suspending, or terminating access to the Hosted Service. If CO FSM reasonably believes that such violation would expose it to civil, regulatory, or criminal liability, CO FSM may take action immediately without prior notice. The Client agrees to indemnify, defend and hold CO FSM harmless for any claims, liability, damages, and costs (including attorneys’ fees) arising from Client or Client Authorized Third Parties violations of applicable regulations.
- 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 CO FSM 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.
- 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, CO FSM reserves the right to cancel or suspend the provision of the Software Solution.
6. Changes to Hosted service
- CO FSM 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.
- If Client wishes to exercise his warranty rights, Client shall notify CO FSM upon complaint regarding malfunction of the Hosted Service. CO FSM shall modify and correct the Hosted Service functionalities so they can conform to all functionalities.
- Except as expressly stated, CO FSM: (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;
- The Client acknowledges that CO FSM 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, CO FSM 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.
- CO FSM shall use reasonable endeavors to maintain the availability of the Hosted Services to the Client but does not guarantee 100% availability.
- 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 CO FSM.
- CO FSM may enhance or refine Hosted Services, although in doing so, CO FSM 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 acknowledges that from time-to-time CO FSM may need to perform emergency maintenance without providing the Client advance notice during which time CO FSM may temporarily suspend Client’s access to and use of Hosted Services.
8. Limitation of liability
- CO FSM 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 CO FSM, unauthorized by CO FSM, and not under the direction of CO FSM;
- 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
- The Client agrees to indemnify and hold harmless CO FSM, 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 CO FSM 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.
- In no event will CO FSM 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 CO FSM 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
- CO FSM provides basic Support services with the Hosted The Support Services fee is included in the License fee that Client pays to Distributor. CO FSM provides Support services to users via its dedicated ticketing system.
- CO FSM will acknowledge support requests from the Client within 1 hour. Where CO FSM considers it necessary to facilitate efficient communication, CO FSM may contact the Client by email or otherwise.
- CO FSM will supply upgrades to the Software Solution as they are commercially released.
- CO FSM will use reasonable endeavors to solve problems with the Software Solution identified and notified by the Client by means of the dedicated ticketing system. CO FSM 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. CO FSM 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.
- 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 CO FSM’s sole control.
- CO FSM 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 supported by CO FSM, or any fault in any such equipment or software; or
- the Client’s failure to follow CO FSM’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 CO FSM; or
- any breach of Client’s obligations under this EULA
- 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
- In case of termination of the Agreement, this EULA shall also cease to be effective. 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.
- Upon termination of the EULA, the Client is obliged to stop using the Software Solution and to destroy or return to CO FSM any copies of Confidential Information.
11. Applicable Law
- The EULA shall be governed by, construed, and enforced in accordance with the laws of Illinois, 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 Chicago, Illinois.
- The Client is obliged to comply with all applicable laws and regulations related to receipt and use of the Hosted 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. CO FSM may modify or discontinue Hosted Service features to comply with applicable laws and regulations.
- 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.
- 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 the Client without the express prior written consent of CO FSM. CO FSM may transfer its rights and obligations from the EULA without any restrictions.
- 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.
- 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.
- 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.