end user license agreement

July 1st, 2019 version

PLEASE CAREFULLY READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) BEFORE DOWNLOADING, INSTALLING, OR USING THE SOFTWARE. QUIVIDI IS WILLING TO LICENSE THE SOFTWARE TO YOU ONLY IF YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT.

BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE OR OTHERWISE EXPRESSING YOUR AGREEMENT TO THE TERMS CONTAINED HEREIN, YOU INDIVIDUALLY AND ON BEHALF OF THE BUSINESS OR OTHER ORGANIZATION THAT YOU REPRESENT CONSENT TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT OR CANNOT AGREE TO THE TERMS CONTAINED HEREIN, THEN (A) DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE (OR, AS APPLICABLE THE EQUIPMENT IN WHICH THE SOFTWARE IS EMBEDDED), AND (B) WITHIN 30 DAYS AFTER RECEIPT OF THE SOFTWARE, EITHER RETURN THE SOFTWARE TO THE APPLICABLE RESELLER FOR FULL REFUND OF THE SOFTWARE LICENSE FEE, OR, IF THE SOFTWARE WAS EMBEDDED IN QUIVIDI EQUIPMENT FOR WHICH SOFTWARE NO SEPARATE LICENSE FEE WAS CHARGED, RETURN THE EQUIPMENT AND EMBEDDED SOFTWARE, UNUSED, TO QUIVIDI OR THE APPLICABLE RESELLER FOR A FULL REFUND OF THE PURCHASE PRICE.

This Agreement, as may be modified by any applicable Country-Specific Terms, defined below, governs Customer’s access to and use of the Software (as defined below) first placed in use by Customer on or after the release date of this Agreement; provided that if there is a valid, unexpired separate written agreement signed by Customer and QUIVIDI Networks governing Customer’s use of the Software, then to the extent of a conflict between their provisions the order of precedence shall be (i) that signed written agreement, and (ii) this End User License Agreement as may be modified by any Country-Specific Terms as they apply to use of Software in a particular country. In addition, any non-English translated version of this Agreement posted http://www.quividi.com/terms-of-use/ shall be the governing version of this Agreement for purposes of use of the Software in the territory designated at such website as the territory for which such translation applies. PLEASE CHECK THE SCHEDULES TO SEE IF ANY COUNTRY-SPECIFIC TERMS OR TRANSLATION APPLY.

1. DEFINITIONS 

In this Agreement and in the Entitlements (unless the Entitlement otherwise expressly provides), the following capitalized terms shall have the meaning set forth below:

1. “Authorized Users” means the number of Users that Customer is licensed to have access to the Software.
2. “Content“ means any content provided by the Customer or any third party through the Software, including text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, computer code and any kind of data generated by QUIVIDI.
3. “Concurrent Users” means the number of Users that Customer is licensed to have concurrently accessing the Software. If a single User connects to Software using multiple concurrent log-ins or connections, each such active logical connection or log-in is counted toward the number of Concurrent Users.
4. “Country-Specific Terms” means those terms posted in Schedule 1 of this Agreement and designated as replacing one or more terms of this End User License Agreement solely for Customers to the extent they use the Software in a particular country or group of countries (herein “Territory”). Any Country-Specific Terms applicable to Customers using the Software in a stated Territory shall take precedence over any inconsistent terms of this Agreement with respect to Customer’s use of the Software in such Territory.
5. “Customer” or “You” means the individual or other legal entity or other business, governmental or not-for-profit organization that is identified as Customer or end user in the applicable Entitlement or in the authorized reseller’s invoice for such license to the Software. If Software is lawfully received from QUIVIDI or from an authorized reseller but there is no Entitlement, then “Customer” means the party that first so received the software from QUIVIDI or its authorized reseller and accepts the terms of this Agreement. (See Section 13.3, below, with respect to license limitations where there is no Entitlement.)
6. “Device” means any device such as a screen, computer, handset, tablet, laptop, server, switch or router. A Device may also be a physical or virtual machine, hardware partition or blade.
7. “Embedded Software” means a copy of Software delivered embedded in or loaded onto any third-party hardware equipment when such equipment is sold by such third party.
8. “End Customer” means the individual or other legal entity or other business, governmental or not-for-profit organization that determines the purposes and means of the processing of Personal Data.
9. “End User” means the individual or other legal entity or other business, governmental or not-for-profit organization that effectively uses the Software.
10. “End-point” means any Device that terminates a network connection.
11. “Entitlement” means the set of documents issued by (or under authority granted by) QUIVIDI that specify (i) the Software licensed (by QUIVIDI product number), (ii) the license term, (iii) the Licensed Units, (iv) the authorized use, if any, (v) the Customer, and (vi) the license fee charged, if any, and, if none is charged, the fact that the license was granted to Customer free-of-charge. By way of illustration, “Entitlements” may be composed of, among other things, any of the following or combinations of the following, as long as together they meet the criteria of the preceding sentence: written agreement signed by Customer and QUIVIDI, a product description in the QUIVIDI price list, a QUIVIDI invoice, a QUIVIDI quote, a QUIVIDI-issued e-certificate, a QUIVIDI-issued email transmitting authorization codes, as to Updates, a QUIVIDI website-posted Services Description Document, or an End User Services Agreement. In the event of inconsistency with respect to any two Entitlement documents or between this Agreement and any Entitlement document, the one most restrictive of the rights of the Customer shall take precedence.
12. “QUIVIDI” means the contractual entity as mentioned in the “QUIVIDI Contracting Entity, Notices, Governing Law, and Venue” article 21.
13. “Licensed Unit” means a unit of measure by which Customer’s licensed use of Software is limited, as specified in the Entitlement. Examples of Licensed Units include, but are not limited to users, sessions, calls, connections, subscribers, clusters, nodes, devices, links, ports, events or transactions. Licensed Units may also be based on throughput (such as gigabytes per second), performance, configuration, bandwidth, interfaces, processing, or geographic scope. Some Licensed Units are defined in this Section 1 and those definitions shall apply to all Entitlements except as otherwise expressly provided in such Entitlements. Such defined Licensed Units include: Authorized Users, Concurrent Users, Device, End-point, Managed Device, Subscriber, and User.
14. “Managed Device” is a Device that (1) is recognized by the Software as authorized to be configured, administered, managed, provisioned, monitored or otherwise acted upon by the Software or (2) has been configured, administered, managed, provisioned, monitored or otherwise acted upon by the Software.
15. “Network” means a set of networked Devices or other network elements of the Customer that are under the common management and operational control of Customer.
16. “Separately Licensable Feature” means any module, feature, function, service, application, operation, or capability furnished in combination within other Software (herein, collectively, “feature“), which feature is separately licensable from QUIVIDI or its authorized resellers for additional fee, whether such feature is ‘locked’ or key-restricted or even if the feature can be activated or used without a QUIVIDI-issued product activation key.
17. “Software” means an instance of a program, module, feature, function, service, application, operation, or capability of the QUIVIDI or QUIVIDI-supplied software either (i) identified in an Entitlement as licensed to Customer or (ii) made available to Customer by QUIVIDI or a QUIVIDI-authorized reseller for Evaluation Use. “Software” may also consist of an instance either of a Separately Licensable Feature distributed in combination with other Software and or of an Update of other Software.
18. “Subscriber” is a Device, individual, Customer billing record or other identity that is recognized by the Software as authorized (presently, in the past or in the future) to receive services, usage, access or content which were, are or could be provided, managed, distributed, provisioned, billed or otherwise enabled by the Software.
19. “Subscription License” means a license to Software with respect to which the Entitlement states a finite, fixed term of use for the Software and either identifies the license as a “subscription” or expressly includes the right to Updates throughout the fixed term of use without need to purchase a separate Support Contract.
20. “Support Contract” means a support services contract that includes rights to receive certain Updates of the Software, which contract is either (i) a QUIVIDI-issued contract purchased by Customer either from QUIVIDI or from a QUIVIDI-authorized reseller, or (ii) a support services contract issued by a support services provider to Customer under authorization granted by QUIVIDI.
21. “Update” means Software that is an update, upgrade, bug fix or other new releases of other Software. Updates are either “Major Releases” (meaning a revision of Software as determined by QUIVIDI to have significant additional functionality or improved performance, and whose version number is incremented by an integer, such as going from version 5.x to version 6.x) or “Minor Releases” (meaning a bug fix, maintenance release, service release or a revision of a software application as determined by QUIVIDI to be limited to minor additional functionality or corrections of errors, and whose version number is incremented by a decimal, such as going from version 5.2 to version 5.3). A set of new features regrouped under a new product name (such as “VidiGates”) or under a new Edition name of a product (such “VidiReports, Expert Edition”) is not considered a Major Release. An Entitlement to Updates may for certain cases exclude Major Releases.
22. “Usage Monitor” means a network management appliance or application software furnished to Customer (or approved in writing) by QUIVIDI for monitoring use of the Software.
23. “User” means Device, individual, Customer billing record or other identity usable to gain access to any Software functionality (whether or not such account is restricted to a particular Device). User may be an individual or another Device. In counting Users for purposes of measuring usage against the licensed number of “Authorized Users” or “Concurrent Users,” if a User can access the Software through another User each such User shall be counted separately.

2. LICENSE GRANT 

Subject to payment of the applicable fees and subject to the terms of this Agreement, QUIVIDI grants to Customer a non-exclusive and non-transferable license, without right to sublicense, to use the Software, in executable form only, and only within the restrictions and subject to the conditions set forth in the Entitlement and those set forth in this Agreement. Unless otherwise expressly provided in the Entitlement:

1. Embedded Software. Customer shall use Embedded Software solely for execution on the unit of the thirdparty equipment originally delivered to Customer with such Software installed. Any Update of such Embedded Software that Customer has licensed under a Support Contract may be loaded and executed only on the QUIVIDI equipment on which the originally licensed Embedded Software is authorized to execute. Further, if Customer also licenses any Separately Licensable Feature combined with or incorporated in the Embedded Software (whether in dormant or active form), Customer may use such Separately Licensable Feature only for execution on the QUIVIDI equipment on which the Embedded Software is authorized to execute. The license term for any such Separately Licensable Feature or Update shall be as specified in its own Entitlement. Notwithstanding any other provision of this Agreement, except as may otherwise be required by applicable law, no license is granted for installation or use of any Embedded Software or associated Update or Separately Licensable Feature on any QUIVIDI equipment resold by anyone who is not an authorized reseller of such equipment.
2. Single Instance/Single Device. Except to the extent otherwise explicitly stated in the Entitlement (including, without limitation, where the Entitlement states that the license is a “Volume License”) Customer shall use a single instance of the Software on a single Device and the quantity of all applicable Licensed Units shall be one (1).
3. Non-transferability of Licensed Units. Unless expressly permitted by the Entitlement, quantities of Licensed Units purchased separately are not allowed to be transferred or allocated between or among different licenses or instances of the Software.
4. Separately Licensable Features and Updates. Unless otherwise expressly stated in an Entitlement purchased by Customer, a license to a particular release of Software shall not entitle Customer to receive or use any Separately Licensable Feature delivered in combination with that Software or any Update of that Software. An Entitlement to a Separately Licensable Feature or to an Update may specify terms, conditions and restrictions, including different Licensed Units and different term of use, that are different than those of that underlying licensed Software; provided however, that in no event shall any such Entitlement be construed to expand implicitly any terms, conditions or restriction of use of the underlying licensed Software.
5. Volume License. If the Entitlement specifies that it is a Volume License, Customer may allocate the applicable Licensed Units across the licensed number of Software instances provided that (i) such instances are all running on the Customer Network specified in Customer’s Entitlement; (ii) the total number of Licensed Units does not exceed the number licensed under that Entitlement and (iii) a Usage Monitor is used to validate (i) and (ii) and to report such usage to QUIVIDI. Customer shall not alter or disable the Usage Monitor at any time during the term of the Volume License and shall not disable, alter or destroy the Usage Monitor, its connection to QUIVIDI or any data collected by such Usage Monitor. If the Volume License is granted as to a particular number of Licensed Units, then all licensed copies of the software in the Customer Network may not be used to support in the aggregate more than that number of Licensed Units.
6. Updates. Except as expressly provided below in Section 3.7, below, with respect to Subscription Licenses or as otherwise expressly provided in an Entitlement or Support Contract, Customer shall have no rights in any Update to Software, nor any rights to support services associated with such Software.
7. Subscription License. In case of a Subscription License of Software, QUIVIDI shall make available to Customer during the term of the Subscription License the Supported Updates (as defined below) solely for support of the Customer’s licensed copy(ies) of such Software during the term of the Subscription License, subject to the terms and conditions set forth below:
   1. As used herein, “Supported Updates” as of any particular time during the term of the Subscription License means any Update of such Software then available generally to Customers who have purchased a Subscription License to such Software.
      2. For each Supported Update, the Customer’s rights in such Update will be subject to the same terms, restrictions and conditions as apply to the Software (including without limitation the terms, restrictions or conditions on use set forth in this Agreement and in any “Entitlement” as it applies to the Software).
8.  Trial license. If there is an Entitlement that specifies “Evaluation”, “Demonstration” or “Trial” Use, then Customer may only use the Software for its internal evaluation or qualification of the Software (or the equipment in which it is embedded) and only in a development or test network environment in contemplation of potential future licensing for a commercial or other use.
9. Except to the extent otherwise required by applicable law or expressly provided in the Entitlement, this license is not sublicensable, transferable or assignable by Customer and any attempted sublicense, transfer or assignment shall be null and void.

3. USE PROHIBITIONS  

Notwithstanding the foregoing, this license does not permit the Customer to, and Customer agrees that it shall not, alone or through another party:

1. modify, unbundle, reverse engineer, or create derivative works based on the Software;
2. make copies of the Software (except as necessary for backup purposes and as otherwise expressly permitted in the Entitlement);
3. remove any proprietary notices, labels, or marks on or in the Software;
4. distribute any copy of the Software to any third party, including Embedded Software in any equipment sold in any secondhand market, except if this third party is an End Customer whose name was put on the entitlement;
5. use any feature, function, service, application, operation, or capability embedded within Software (herein, collectively, “feature”) where such feature is ‘locked,’ key-restricted or otherwise identified as not licensed for use without paying a separate fee, unless Customer first purchases the applicable license(s) and obtains a valid authorization from QUIVIDI supported by an Entitlement explicitly authorizing such feature; this prohibition applies even if the feature can be activated or used without a QUIVIDI-issued product activation key;
6. distribute any product activation key for the Software provided by QUIVIDI to any third party, except if this third party is an End Customer whose name was put on the entitlement;
7. use the Software in any manner that extends or is broader than the uses purchased by Customer from QUIVIDI or an authorized QUIVIDI reseller;
8. use Embedded Software on non-QUIVIDI equipment;
9. use Embedded Software (or make it available for use) on QUIVIDI equipment that the Customer did not originally purchase from QUIVIDI or an authorized QUIVIDI reseller;
10. disclose the results of testing or benchmarking of the Software to any third party without the prior written consent of QUIVIDI;
11. attempt to alter or deface any notice or marking on any copy of the Software or attempt to assign or transfer any rights (whether by contract, by operation of law or otherwise) under this Agreement or under any Entitlement;
12. use any Update to which Customer may otherwise be entitled if either (1) at the time of acquiring such Update, Customer does not already hold a valid license to the original Software or (2) Customer has not paid the applicable fee for the Update (or the Support Contract under which the Update is furnished);
13. deactivate or modify or impair the functioning of any Usage Monitor or any record, log or functionality designed to monitor, measure or limit use of the Software or compliance with the license terms of this Agreement;
14. unless otherwise expressly provided in the Entitlement, permit any other User to use its access to any Software features or functionality in support of any business activity in which such other User for a fee grants third parties access to such features or functionality; or
15. use the Software or permit any User or any other third party to use the Software in violation of any applicable law or regulation or to support any illegal activity.

4. AUDIT 

Customer agrees to allow QUIVIDI or its independent professionals the right, at any times during the term of any license to any Software licensed by QUIVIDI to Customer hereunder and thereafter until three (3) years after the latest termination or expiration date of any such license, to inspect and copy during normal business hours the Usage Monitor logs, other Software logs and other relevant Customer records to verify Customer’s compliance with this Agreement and the Entitlement; provided that any such inspection and copying shall be conducted under reasonable and customary restrictions to protect against use or disclosure of confidential Customer information therein other than as appropriate to verify Customer’s compliance with the terms of this Agreement and any Entitlement and to enforce QUIVIDI’s rights thereunder. In the event such inspection discloses non-compliance with this Agreement, Customer shall promptly pay to QUIVIDI the appropriate license fees, plus the reasonable cost of conducting the audit.

5. RECORDKEEPING 

Customer shall maintain accurate records as necessary to verify compliance with this Agreement. Upon request by QUIVIDI, Customer shall furnish such records to QUIVIDI and certify its compliance with this Agreement.

6. CONFIDENTIALITY 

The Parties agree that aspects of the Software and associated documentation are the confidential property of QUIVIDI. As such, Customer shall maintain the Software and associated documentation in confidence, which at a minimum includes restricting access to the Software to Customer employees and contractors having a need to use the Software for Customer’s internal business purposes.

7. OWNERSHIP 

QUIVIDI and QUIVIDI’s licensors, respectively, retain ownership of all right, title, and interest (including copyright) in and to the Software, associated documentation, and all copies of the Software. Nothing in this Agreement constitutes a sale or other transfer or conveyance of any right, title, or interest in the Software or associated documentation.

8. OPEN SOURCE COMPONENTS 

Software may use or include one or more of the open source software components listed in the Quividi open source attribution file, available in the application directory or in the ‘About’ menu of the application. Please refer to that file for the open source license disclosures and pertinent terms.

9. WARRANTY 

Except as may otherwise be provided in the warranty posted at http://help.quividi.com/ applicable to the Software, and except for Software excluded from warranty coverage under subsection (f), below, QUIVIDI warrants for the sole benefit of Customer that for a period of ninety (90) days from the Start Date, the media on which software is delivered, shall be free from defects in material and workmanship under normal authorized use consistent with the product instructions, subject to the following:

1. In addition, with respect to Embedded Software embedded in QUIVIDI security products, application acceleration products or certain other Hardware products, as more specifically set forth on http://help.quividi.com/, for a period of ninety (90) days from the date a Customer receives such Hardware product QUIVIDI will provide the Customer that purchased such Hardware product access to one (1) download of the most recent commercially-available revision of Software that is embedded in such hardware product. Customer may download the Software by going to http://vidicenter.quividi.com/. Such download shall be treated as though it were an Update for purposes of this Agreement. This right to download extends only to the Customer and not to any subsequent transferee of the Hardware product on which it is embedded;
2. In any event, THE SOLE AND EXCLUSIVE REMEDY OF THE CUSTOMER AND THE ENTIRE LIABILITY OF QUIVIDI UNDER THIS LIMITED WARRANTY SHALL BE THE REPLACEMENT OF THE SOFTWARE.
3. Restrictions: No warranty will apply if the Software (i) has been altered, except by QUIVIDI; (ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by QUIVIDI; (iii) has been subjected to unreasonable physical, thermal or electrical stress, misuse, negligence, or accident or (iv) has been licensed solely for Evaluation Use or demonstration use or is beta software or otherwise not commercially released. In addition, Software is not designed or intended for use in (i) the design, construction, operation or maintenance of any nuclear, chimical or any other facility, (ii) navigating or operating aircraft or any other transportation vehicule; or (iii) operating life-support or life-critical medical equipment, and QUIVIDI disclaims any express or implied warranty of fitness for such uses. Customer is solely responsible for backing up its programs and data to protect against loss or corruption. QUIVIDI warranty obligations do not include installation, reinstallation or backup support.
4. IN NO EVENT DOES QUIVIDI WARRANT THAT THE SOFTWARE, OR ANY EQUIPMENT OR NETWORK RUNNING THE SOFTWARE, WILL OPERATE WITHOUT ERROR OR INTERRUPTION, OR WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK.
5. Nothing in this Agreement shall give rise to any obligation on the part of QUIVIDI to support the Software. Support services may be purchased separately. Any such support shall be governed by a separate, written support services agreement.
6. Exclusions: Software licensed for research and development use, lab use, evaluation use or demonstration use, shall be furnished “AS IS” and without warranty of any kind, expressly or implied.
7. Disclaimer of implied Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, TO THE EXTENT PERMITTED BY LAW QUIVIDI DISCLAIMS ALL WARRANTIES IN AND TO THE SOFTWARE (WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE), INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. This disclaimer and exclusion shall apply even if the express warranty fails of its essential purpose.
8. Exclusion of Warranty on Hardware. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER QUIVIDI NOR ITS SUPPLIERS WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, REGARDLESS OF WHETHER QUIVIDI OR ITS SUPPLIERS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR: (i) ANY PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST DATA OR LOST PROFITS; OR (ii) FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; OR (iii) FOR ANY CLAIMS BASED ON ANY ERROR, DEFECT OR NONCONFORMITY IN THE HARDWARE, PRODUCTS OR SERVICE, FOR ANY AMOUNT IN EXCESS OF THE PRICE PAID TO QUIVIDI FOR SUCH DEFECTIVE HARDWARE, PRODUCT(S) OR SERVICE; OR (IV) FOR ALL OTHER CLAIMS RELATED TO AN ERROR, DEFECT OR NONCONFORMITY IN THE HARDWARE, PRODUCTS OR SERVICE ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNT PAID TO QUIVIDI HEREUNDER DURING THE THREE (3) MONTHS PRECEDING THE DATE THE CAUSE OF ACTION AROSE.

10. EXCLUSION OF CERTAIN DAMAGES

TO THE EXTENT PERMITTED BY LAW, NEITHER QUIVIDI NOR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR RELATING TO THE SOFTWARE OR USE OF THE SOFTWARE. IN NO EVENT SHALL QUIVIDI OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR DAMAGES ARISING FROM UNAUTHORIZED OR IMPROPER USE OF ANY QUIVIDI OR QUIVIDI-SUPPLIED SOFTWARE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. QUIVIDI has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties.

11. LIMITATION OF DAMAGES

IN NO EVENT SHALL QUIVIDI’S OR ITS SUPPLIERS’ OR LICENSORS’ CUMULATIVE LIABILITY TO CUSTOMER FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, EXCEED THE GREATER OF (I) ONE HUNDRED THOUSAND EUROS (€ 100,000-) IN THE AGGREGATE OVER ALL COPIES OF ANY AND ALL SOFTWARE LICENSED TO CUSTOMER BY QUIVIDI OR ITS DISTRIBUTORS OR RESELLERS; OR (II) THE PRICE PAID TO QUIVIDI FOR LICENSED RIGHTS TO THE SOFTWARE THAT GAVE RISE TO THE CLAIM. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. QUIVIDI has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the Parties, and that the same form an essential basis of the bargain between the Parties.

12. NO LIABILITY TO ANY THIRD PARTY

THE EXTENT PERMITTED BY LAW, QUIVIDI DISCLAIMS ANY AND ALL LIABILITIES OR OBLIGATIONS WHATSOEVER RELATED TO THE SOFTWARE OR ITS LICENSING TO OR USE BY ANYONE OTHER THAN CUSTOMER. Customer shall defend, indemnify and hold QUIVIDI harmless from and against any liability, damages, loss or cost (including attorneys’ fees) arising out of or relating to any dispute, lawsuit, administrative hearing, arbitration or settlement based on any claim by a party other than Customer relating to the Software originally licensed to Customer (or relating to a service offered by Customer involving use of the Software).

13. TERM AND TERMINATION 

This License is granted for the license term specified in the Entitlement, if any.
If no license term is specified in the Entitlement, then:

1. As to any Embedded Software, unless the license is Evaluation Use, Demonstration Use or Trial Use, the license shall be terminable only for non-payment or other breach under Section 13.4, below.
2. If Software is licensed under a Subscription License, or under annual Support Contract or other time-limited basis, all rights to use such Software cease upon the expiration of the applicable subscription period or of the applicable Support Contract, subject to any renewal rights explicitly set forth in the Entitlement to the extent properly exercised by the Customer.
3. As to any other Software, if the Customer has lawfully received the Software without any Entitlement, then the license term shall be thirty (30) days from date of delivery to Customer of the first copy of the Software; provided that Customer may not perform multiple downloads of Software (or otherwise take delivery of multiple successive copies of the Software) to circumvent such term limitation.
4. Any breach of this Agreement (including any Entitlement) or failure by Customer to pay any applicable fees due shall result in termination of the license granted herein thirty (30) days after failure by Customer to cure any curable breach.
Upon any expiration or other termination of any license to Software, Customer’s right to use the Software shall terminate and Customer shall promptly destroy or return to QUIVIDI all copies of the Software and related documentation in Customer’s possession or control.

14. TAXES 

All license fees payable under this agreement are exclusive of tax. Customer shall be responsible for paying taxes arising from the purchase of the license, or importation or use of the Software. If applicable, valid exemption documentation for each taxing jurisdiction shall be provided to QUIVIDI prior to invoicing, and Customer shall promptly notify QUIVIDI if their exemption is revoked or modified. All payments made by Customer shall be net of any applicable withholding tax. Customer will provide reasonable assistance to QUIVIDI in connection with such withholding taxes by promptly: providing QUIVIDI with valid tax receipts and other required documentation showing Customer’s payment of any withholding taxes; completing appropriate applications that would reduce the amount of withholding tax to be paid; and notifying and assisting QUIVIDI in any audit or tax proceeding related to transactions hereunder. Customer shall comply with all applicable tax laws and regulations, and Customer will promptly pay or reimburse QUIVIDI for all costs and damages related to any liability incurred by QUIVIDI as a result of Customer’s non-compliance or delay with its responsibilities herein. Customer’s obligations under this Section shall survive termination or expiration of this Agreement.

15. EXPORT 

Customer agrees to comply in its use of the Software with all applicable export laws and restrictions and regulations of France, the European Union and the United States and any applicable foreign agency or authority, and not to export or re-export the Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. Customer shall be solely liable for any such violations.

16. THIRD PARTY SOFTWARE  

Any licensor of QUIVIDI whose software is embedded in the Software and any supplier of QUIVIDI whose products or technology are embedded in (or services are accessed by) the Software shall be a third-party beneficiary with respect to this Agreement, and such licensor or vendor shall have the right to enforce this Agreement in its own name as if it were QUIVIDI. In addition, certain third party software may be provided with the Software and is subject to the accompanying license(s), if any, of its respective owner(s). The list of the portions of the Software that are distributed under and subject to open source licenses can be found at http://help.quividi.com/.

17. CONTENT

Some of our Software allow you to upload, submit, store, send or receive Content. You retain ownership of any intellectual property rights that you hold in that Content.
When you upload, submit, store, send or receive Content to or through our Software, you give QUIVIDI (and those we work with) a worldwide licence to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes that we make so that your content works better with our Softwares and/or services), communicate, publish, publicly perform, publicly display and distribute such content. The rights that you grant in this licence are for the limited purpose of operating, promoting and improving QUIVIDI services and Softwares, and to develop new ones. This licence continues even if you stop using our services. Some QUIVIDI services may offer you ways to access and remove content that has been provided to that service nd/or throught the Software. Also, in some of our services, there are terms or settings that narrow the scope of our use of the content submitted in those services. Make sure that you have the necessary rights to grant us this license for any content that you submit to our services and/or Software.

18. AGGREGATION OF DATA    

QUIVIDI will be authorized to aggregate the Customer Audience and Traffic Data with data from other QUIVIDI customers, for reasons including but not limited to benchmarking and statistical purposes, under the following cumulative conditions:
1. There will be a minimum of 4 (four) customers composing the aggregated audience data in any given audience data group
2. No single network will ever make up for more than 40% of the data of any given audience data group
3. The name of the Customer will never be mentioned as having contributed to the aggregated audience data, unless with the agreement of the Customer
4. All labels and names entered by the Customer will be made anonym.

19. GOVERNING LAW AND LOCALIZED VERSIONS OF THIS AGREEMENT 

This Agreement shall be governed by the laws of the country defined in Article 21. The provisions of the U.N. Convention for the International Sale of Goods shall not apply to this Agreement. For any dispute arising under this Agreement, the Parties hereby consent to the personal and exclusive jurisdiction of, and venue in the courts defined in Article 21.

20. MISCELLANEOUS 

This Agreement constitutes the entire and sole agreement between QUIVIDI and the Customer with respect to the Software, and supersedes all prior and contemporaneous agreements relating to the Software, whether oral or written (including any inconsistent terms contained in a purchase order), except that the terms of a separate written agreement executed by an authorized QUIVIDI representative and Customer shall govern to the extent such terms are inconsistent or conflict with terms contained herein. Neither any modification to this Agreement nor any waiver of any rights hereunder shall be effective unless expressly assented to in writing by the party to be charged. If any portion of this Agreement is held invalid, the Parties agree that such invalidity shall not affect the validity of the remainder of this Agreement. This Agreement and associated documentation has been written in the English language, and the Parties agree that the English version will govern unless otherwise expressly stated in applicable Country-Specific Terms.

21. CONTRACTING ENTITY, NOTICES, GOVERNING LAW, AND VENUE.

The QUIVIDI entity entering into this Agreement, the address to which Customer should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where Customer is domiciled.

In the event of any controversy or dispute between QUIVIDI and you arising out of or in connection with your use of the Site, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party must submit such controversy or dispute to mediation under the CMAP (Centre for Mediation and Arbitration of Paris, Paris Chamber of Commerce and Industry – 39, avenue Franklin D. Roosevelt, 75008 Paris – France) Rules of Mediation to which the parties undertake to adhere. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.