END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY) AND AVERISOURCE, LLC, A TEXAS LIMITED LIABILITY COMPANY (“AVERISOURCE”). THIS AGREEMENT GOVERNS ALL SOFTWARE (“SOFTWARE”) AND ANY UPGRADES, UPDATES, PATCHES, HOTFIXES, MODULES, ROUTINES, FEATURE ENHANCEMENTS AND ADDITIONAL VERSIONS OF THE SOFTWARE THAT REPLACE OR SUPPLEMENT THE ORIGINAL SOFTWARE (COLLECTIVELY “UPDATES”) AND THEIR ASSOCIATED MEDIA, PRINTED MATERIALS, ONLINE OR ELECTRONIC DOCUMENTATION, DISTRIBUTED BY OR ON BEHALF OF AVERISOURCE. IF THERE IS NO SEPARATE LICENSE AGREEMENT THEN THIS EULA GOVERNS YOUR USE OF UPDATES, AND SUCH UPDATES WILL BE CONSIDERED SOFTWARE FOR ALL PURPOSES OF THIS EULA. THE “SOFTWARE” SHALL MEAN COLLECTIVELY THE SOFTWARE PROGRAM AND UPDATES AND ANY COPIES THEREOF. THIS EULA, IN AND OF ITSELF, DOES NOT ENTITLE YOU TO ANY UPDATES AT ANY TIME IN THE FUTURE. BY EXPRESSLY ACCEPTING THESE TERMS OR BY DOWNLOADING, INSTALLING, ACTIVATING AND/OR OTHERWISE USING THE SOFTWARE, YOU ARE AGREEING THAT YOU HAVE READ, AND THAT YOU AGREE TO COMPLY WITH AND ARE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA AND ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA, THEN YOU MAY NOT DOWNLOAD, INSTALL, ACTIVATE OR OTHERWISE USE ANY OF THE SOFTWARE AND YOU MUST PROMPTLY RETURN THE SOFTWARE. IF YOU ARE ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF AN ENTITY, YOU ACKNOWLEDGE THAT YOU HAVE THE APPROPRIATE AUTHORITY TO ACCEPT THESE TERMS AND CONDITIONS ON BEHALF OF SUCH ENTITY.
1. License. Subject to your compliance with the terms, conditions and restrictions of this EULA (as a condition to the grant below), AveriSource hereby grants you a limited, personal, non-exclusive, non-transferable, non-assignable license, without rights to sublicense, to install or have installed, display and use the Software (in object code form only) solely for internal purposes only, on as many computers, devices and/or in such configurations as expressly permitted by AveriSource (e.g., as set forth in the applicable AveriSource sales quote (“Order Form”)), or on one computer device owned or leased, and controlled by you if no other entitlement is specified, and for the limited term as expressly permitted by AveriSource (e.g., as set forth in the Order Form). This license grants you the right, exercisable solely by and through you, to:
(a) download, copy and install in accordance with the Documentation one (1) copy of the Software on each of the number of computers set forth on the Order Form owned or leased, and controlled by, you. In addition to the foregoing, you have the right to make one copy of the Software solely for archival and backup purposes, provided that you shall not, and shall not allow any person to, install or use such copy other than if and for so long as the copy installed in accordance with the preceding sentence is inoperable and, provided, further, that you uninstall and otherwise delete such inoperable copy(ies). All copies of the Software made by you: (i) will be the exclusive property of AveriSource; (ii) will be subject to the terms and conditions of this EULA; and (iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original; and
(b) use and run the Software as properly installed in accordance with this EULA and the Documentation, solely as set forth in the Documentation and solely for your internal business purposes.
“Documentation” means user manuals, technical manuals, and any other materials provided by AveriSource, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.
2. License Limitations and Conditions. This license is conditioned upon AveriSource receiving your timely payment of all fees or royalties applicable to the Software. You may not copy the Software except for a reasonable number of copies solely as needed for backup or archival purposes or as otherwise expressly permitted in Section 1 “License” above. You may not modify or remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary notices or markings on or in the Software or Documentation including, without limitation, any such notices, legends or other proprietary notices or markings that appear on any displays, images, screen shots, spreadsheets, schedules, materials or other products of the Software. The rights granted herein are limited to AveriSource’s and its licensors’ and suppliers’ intellectual property rights in the Software and do not include any other third party’s intellectual property rights. You are not granted any rights to any trademarks or service marks of AveriSource or any of its licensors or suppliers. The use of any other software, including any software package or file, whether licensed to you separately by AveriSource or by a third party, is subject to the terms and conditions that come with or are associated with such software.
3. Rights Reserved. THE SOFTWARE IS LICENSED, NOT SOLD. Except for the license expressly granted in this EULA, AveriSource, on behalf of itself and its licensors and suppliers, retains all right, title, and interest in and to the Software and in all related content, materials, copyrights, trade secrets, patents, trademarks, derivative works and any other intellectual and industrial property and proprietary rights, including moral rights, registrations, applications, renewals and extensions of such rights (the “Works”). The rights in these Works are valid and protected in all forms, media and technologies existing now or hereafter developed and any use other than as expressly set forth herein, including the reproduction, modification, distribution, transmission, adaptations, translation, display, republication or performance of the Works is strictly prohibited. AveriSource, on behalf of itself and its licensors and suppliers, retains all rights not expressly granted herein.
4. Restrictions. Except as otherwise provided herein or expressly agreed by AveriSource, you may not, and will not allow a third party to: (A) use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 1 hereof or in violation of any law, regulation, or rule, (B) sell, lease, license, sublicense, assign, distribute or otherwise transfer or encumber by any means (including by lien, hypothecation or otherwise) in whole or in part the Software; (C) provide, make available to, or permit use of the Software in whole or in part by, any third party without AveriSource’s prior written consent, unless such use by the third party is solely on your behalf, is strictly in compliance with the terms and conditions of this EULA, and you are liable for any breach of this EULA by such third party (a “Permitted Third Party”); (D) copy, reproduce, republish, upload, post or transmit the Software in any way; (E) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code (or underlying ideas, algorithms, structure or organization) from the Software program, in whole or in part; (F) modify, translate, adapt, or otherwise create derivative works based upon the Software; (G) use the Software on a service bureau, rental or managed services basis or permit other individuals or entities to create Internet “links” to the Software or “frame” or “mirror” the Software on any other server or wireless or Internet-based device; (H) use the Software to create a competitive offering; (I) share or publish the results of any benchmarking of the Software without AveriSource’s prior written consent; or (J) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the AveriSource’s commercial disadvantage. You may not, and will not allow a Permitted Third Party to, use the Software in excess of the number of licenses purchased from or expressly authorized by AveriSource.
5. Compliance. Upon request by AveriSource, you will certify in writing that all use of Software is in compliance with the terms of this EULA, indicating the number of Software licenses deployed at that time. You grant AveriSource, or an agent selected by AveriSource, the right to perform, during normal business hours, a reasonable audit of your compliance with this EULA. You agree to cooperate and provide AveriSource with all records reasonably related to your compliance with this EULA. If, as a result of the audit, a deficiency of greater than five percent (5%) is found in the license fees paid, then you shall bear the total cost of the audit, in addition to any other liabilities you may have.
6. Non-Transferability. This license is non-transferable. You may not distribute, sublicense, assign, share, sell, grant a security interest in, use for service bureau purposes, or otherwise transfer the Software or your license to use the Software without the prior written consent of AveriSource.
7. Support and Subscription Services.
(a) Subject to Section 7(c), the license granted hereunder entitles you to the basic software maintenance and support services provided by AveriSource to its Software customers from time to time: (i) for the Term set forth on the Order Form; and (ii) thereafter, solely if you purchase additional support services.
(b) Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as AveriSource makes generally available to all licensees of the Software then entitled to maintenance and support services. AveriSource may develop and provide Updates in its sole discretion, and you agree that AveriSource has no obligation to develop any Updates at all or for particular issues. You further agree that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this EULA. You acknowledge that AveriSource may provide some or all Updates via download from a website designated by AveriSource and that your receipt thereof will require an internet connection, which connection is your sole responsibility. AveriSource has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that AveriSource may issue as a separate or new product, and AveriSource may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.
(c) AveriSource has no obligation to provide maintenance and support services, including Updates: (i) for any but the most current or immediately preceding version or release of the Software; (ii) for any copy of Software for which all previously issued Updates have not been installed; (iii) if you are in breach under this EULA; or (iv) for any Software that has been modified other than by or with the authorization of AveriSource, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by AveriSource in writing.
8. Termination. AveriSource may terminate this EULA immediately and without prior notice if you fail to comply with any term or condition of this EULA or if AveriSource does not receive timely payment for the licenses to the Software. In addition, AveriSource may terminate any license to Software distributed for free, at any time in its sole discretion. This EULA will terminate automatically if you fail to comply with any of its terms or if the license term ends. You may terminate this EULA at any time on written notice to AveriSource. In the event of termination of this EULA, all licenses granted hereunder shall automatically terminate and you must immediately cease use of the Software and return or destroy all copies of the Software. Upon termination or expiration of the term of your license to use the Software, AveriSource shall be entitled to use disable your ability to access and/or use the Software using the license protection features already built into the Software. The parties recognize and agree that their obligations under Sections 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of this EULA, as well as obligations for payment, shall survive the cancellation, termination and/or expiration of this EULA, and/or the licenses granted hereunder. Except if the EULA is terminated under Section 12(D), AveriSource will not have any obligation upon the termination of this EULA to refund any portion of any license fee.
9. Export, Import and Government Restrictions. The Software is subject to U.S. export laws as well as the laws of the country where it is delivered or used. You agree to abide by these laws. Under these laws, the Software may not be sold, leased or transferred to embargoed countries (currently Cuba, Iran, North Korea, Sudan and Syria), other restricted countries, restricted end-users, or for restricted end-uses. You understand that certain functionality of the Software, such as encryption or authentication, may be subject to import or export restrictions in the event that you transfer the Software from the country of delivery, and you are responsible for complying with applicable restrictions.
The Software and documentation are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software and documentation with only those rights set forth herein. Contractor/manufacturer is AveriSource, LLC, 2424 Babcock Road, Suite 300, San Antonio, Texas, 78229.
10. Warranty; Disclaimer of Warranty. AveriSource warrants that it has the right to grant the licenses to the Software. Except as set forth in Sections 13, 15 and 16 below, AveriSource warrants that such Software will substantially conform in material respects to the functional written specifications provided by AveriSource with the Software when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation. This limited warranty is not transferable and extends only for thirty (30) days from the delivery date of the Software. This limited warranty does not cover damages, defects, malfunctions or failures caused by any unauthorized modification of the Software by you, or your agents; any abuse, misuse or negligent acts of you; modification by you of any interfaces or any software or hardware interfacing with the Software; or any failure by you to follow AveriSource’s installation, operation or maintenance instructions. EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY, AVERISOURCE MAKES, AND YOU RECEIVE, NO OTHER WARRANTIES RELATED TO THE SOFTWARE WHETHER EXPRESS, IMPLIED OR STATUTORY, AND AVERISOURCE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND WITH RESPECT TO ANY THIRD PARTY MATERIALS INCLUDED WITH THE SOFTWARE. AVERISOURCE DOES NOT WARRANT THAT THE FUNCTIONS OF THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE AND THE RESULTS ACHIEVED. YOUR SOLE AND EXCLUSIVE REMEDY, AND AVERISOURCE’S ENTIRE LIABILITY, FOR BREACH OF THE WARRANTIES PROVIDED HEREIN, IS FOR AVERISOURCE, AT ITS SOLE DISCRETION, TO EITHER USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY ANY NON-CONFORMANCE OR TO PROVIDE A REFUND OF THE LICENSE FEES RECEIVED BY AVERISOURCE FOR THE SOFTWARE. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE (UNLESS LOCAL LAW PROVIDES OTHERWISE).
11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL AVERISOURCE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS EULA, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT AVERISOURCE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL AVERISOURCE’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS EULA OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO AVERISOURCE PURSUANT TO THIS EULA FOR THE SOFTWARE IN THE TRAILING SIX (6) MONTHS PRIOR TO THE CLAIM GIVING RISE TO SUCH LIABILITY.
(c) THE LIMITATIONS SET FORTH IN SECTION 11(a) AND SECTION 11(b) SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS EULA FAIL OF THEIR ESSENTIAL PURPOSE.
INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT REQUIRED TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW.
12. Indemnification. Except where prohibited by applicable law, AveriSource shall defend you against any third-party claim or action that the Software (specifically excluding open source software) infringes or misappropriates that third party’s patent, copyright, trade secret, or other intellectual property rights (“Indemnified Claims”). In addition, if AveriSource receives prompt notice of an Indemnified Claim that, in AveriSource’s reasonable opinion, is likely to result in an adverse ruling, then AveriSource will at its sole discretion: (A) obtain a right for you to continue using such Software; (B) modify such Software to be non-infringing; (C) replace such Software with a non-infringing substitute; or (D) terminate this EULA and provide a pro-rata refund of the pre-paid license fees actually paid by you for the allegedly infringing Software covering the period after the effective date of such termination. Notwithstanding the foregoing, AveriSource shall have no obligation under this Section for Indemnified Claims resulting or arising from: (i) modifications of the Software that were not performed by or on behalf of AveriSource; (ii) your unauthorized use of the Software, or the combination or operation of the Software in connection with a third-party product, software or service (the combination of which causes the claimed infringement); (iii) your failure to incorporate Software updates or upgrades that would have avoided the alleged infringement; or (iv) AveriSource’s compliance with your specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by you (collectively, “Excluded Indemnified Claims”). AveriSource’s duty to indemnify and defend you is contingent upon: (a) your providing AveriSource with prompt written notice of the third-party claim or action, (b) AveriSource having the right to solely control the defense and settlement of such claim or action, and (c) your cooperation with AveriSource in defending and resolving such claim or action. This Section states your exclusive remedies for any third-party intellectual property claim or action, and nothing in this EULA or elsewhere will obligate AveriSource to provide any greater indemnity to you. You, at your expense, shall defend and indemnify AveriSource against any claim, action or proceeding brought against AveriSource which arises from or is in any manner connected with any of the Excluded Indemnified Claims or that arises from your breach of any provision of this EULA.
13. Development Tools. If the Software includes development tools, such as AveriSource’s iSAT Builder Toolkit, scripting tools, APIs (application programming interfaces), Digital Modernization Assessment, iSAT Discovery+ or sample scripts (collectively “Development Tools”) and unless there is a separate agreement between you and AveriSource for the Development Tools, you may use such Development Tools to create new scripts and code for the purpose of customizing your use of the Software (within the parameters set forth in this EULA and within the parameters set forth in the Development Tools themselves) and for no other purpose. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA, THE DEVELOPMENT TOOLS ARE PROVIDED “AS IS” WITHOUT INDEMNITY OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. AVERISOURCE BEARS NO LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE DEVELOPMENT TOOLS AND HAS NO DUTY TO PROVIDE SUPPORT TO YOU.
14. Hosted and Internet-Accessible Software. Some or all of the Software may be remotely hosted or accessible to you through the Internet (“Hosted Software”). In such case, AveriSource may suspend, terminate, withdraw, or discontinue all or part of the Hosted Software or your access to the Hosted Software upon receipt of a subpoena or law-enforcement request, or when AveriSource believes, in its sole discretion, that you have breached any term of this EULA or are involved in any fraudulent, misleading, or illegal activities. AveriSource may modify the Hosted Software at any time with or without prior notice to you. AveriSource may perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the Hosted Software installed on its and your system(s), which may temporarily degrade the quality of the Hosted Software or result in a partial or complete outage of the Hosted Software. Updates, patches or alerts may be delivered from AveriSource servers, which may be located outside of your country. AveriSource provides no assurance that you will receive advance notification of such activities or that your use of the Hosted Software will be uninterrupted or error-free.
15. Open Source and Third-Party Software. The Software may come bundled or otherwise be distributed with open source or other third-party software, which is subject to the terms and conditions of the specific license under which it is distributed and which are in addition to or may be different from those contained in this EULA. You are bound by and shall comply with all third-party licenses. Any breach by you of any third-party license shall also be a breach of this EULA. If you do not agree to abide by the applicable terms for such third-party products, then you should not install or use such third-party products. You understand and acknowledge that such open source software is not licensed to you pursuant to the provisions of this EULA and that this EULA may not be construed to grant any such right and/or license. OPEN SOURCE SOFTWARE IS PROVIDED BY AVERISOURCE “AS IS” WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA, AS IT RELATES TO ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH OPEN SOURCE SOFTWARE, AVERISOURCE SHALL HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Under certain open source software licenses, you are entitled to obtain the corresponding source files. You may find corresponding source files for the Software at https://d3js.org/, https://www.graphviz.org, https://nlog-project.org/, https://github.com/JanKallman/EPPlus, https://angular.io/, https://google.github.io/material-design-icons/, https://getbootstrap.com/, https://github.com/Microsoft/automatic-graph-layout, https://www.nuget.org/packages/Mehdime.Entity/, https://github.com/jhipster/generator-jhipster, https://www.jhipster.tech/, https://start.jhipster.tech/jdl-studio/, https://clang.llvm.org, https://winmerge.org/?lang=en or other locations that may be specified to you by AveriSource.
16. High-Risk Disclaimer and Excluded Data. The Software is not designed or intended for high-risk applications, for use as online control systems or use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities or other power generation systems, aircraft navigation or communications systems, air traffic control, medical or life support systems, vehicle operation applications, any police, fire or other safety response systems, weapons systems or in any other device or system in which function or malfunction of the software could result in death, personal injury or physical or environmental damage. Any such use or application by you is outside the scope of this license and you are not authorized to use the Software in any such application. You acknowledge that Software provided under this EULA is not designed with security and access management for the processing and/or storage of the following categories of data and software: (A) classified data and software; (B) data and software controlled under the International Traffic in Arms Regulations (“ITAR”); and (C) personally identifiable information that is subject to heightened security requirements as a result of your internal policies or practices or by law (collectively referred to as “Excluded Data”). You hereby agree that you are solely responsible for reviewing data that the Software will provide to AveriSource (or to which AveriSource will have access) to ensure that it does not contain Excluded Data.
17. Right to Preliminary and Injunctive Relief. You agree that money damages would be an inadequate remedy for AveriSource in the event of a breach or threatened breach by you of the provisions set forth in this EULA; therefore, you agree that in the event of a breach or threatened breach of any such provisions, AveriSource may, in addition to any other remedies to which it is entitled, be entitled to such preliminary or injunctive relief (including an order prohibiting you from taking actions in breach of such provisions), without the need for posting bond, and specific performance as may be appropriate to preserve all of AveriSource’s rights. All rights and remedies afforded by law shall be cumulative and not exclusive.
18. Choice of Law. THIS EULA AND ANY CLAIMS UNDER ANY THEORY OF LIABILITY IN ANY WAY TO THIS EULA OR ANY RELATIONSHIPS CONTEMPLATED HEREIN SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, U.S.A., WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW AND EXCLUSIVE OF ANY PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. The parties agree that the provisions of the Uniform Computer Information Transactions Act (“UCITA”), as it may have been or hereafter may be in effect in any jurisdiction, shall not apply to this EULA, and the parties waive any and all rights they may have under any laws(s) adopting UCITA in any form.
19. Dispute Resolution and Binding Individual Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN YOU AND AVERISOURCE arising out of or in connection with this EULA, or the breach, termination or validity thereof SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING INDIVIDUAL ARBITRATION. If you are in the United States, the arbitration will be administered by the American Arbitration Association (AAA), or JAMS (if you are in Canada, arbitration will be at ADR Chambers pursuant to the general ADR Chambers Rules for Arbitration located at www.adrchambers.com). Otherwise, the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) by one or more arbitrators appointed in accordance with such rules. The arbitration shall be conducted in the English language. For any ICC arbitration, the place of the arbitration shall be Dallas, Texas or another commercial center reasonably chosen by the arbitration panel to ensure that the award resulting from the arbitration shall be of an international character and enforceable under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The arbitration panel shall be empowered to grant whatever relief would be available in court, including without limitation preliminary relief, injunctive relief and specific performance. Any award of the arbitration panel shall be final and binding immediately when rendered, and judgment on the award may be entered in any court of competent jurisdiction. Neither you nor AveriSource shall be entitled to join, consolidate, or include any claims belonging to or alleged or arising from, by, or on behalf of any third party to an arbitration brought hereunder, or arbitrate any claim as a class action, class representative, class member, or in a private attorney general capacity. The individual (non-class) nature of this dispute resolution provision goes to the essence of the parties’ dispute resolution agreement, and if found unenforceable, the entire arbitration and dispute resolution provision shall be void. Notwithstanding the foregoing, AveriSource may apply to any relevant government agency or any court of competent jurisdiction to preserve its rights under this EULA and to obtain any injunctive or preliminary relief, or any award of specific performance, to which it may be entitled, either against you or against a non-party; provided, however, that no such administrative or judicial authority shall have the right or power to render a judgment or award (or to enjoin the rendering of an arbitral award) for damages that may be due to or from either party under this EULA, which right and power shall be reserved exclusively to an arbitration panel proceeding in accordance herewith.
20. No Waiver. No waiver of breach or failure to exercise any option, right, or privilege under the terms of this EULA on any occasion by AveriSource shall be construed to be a waiver of a subsequent breach or right to exercise any option, right, or privilege.
21. No Assignment. Customer may not assign or transfer its interests, rights or obligations under this EULA, in whole or in part, whether voluntarily, by contract, by operation of law, or by merger (whether that party is the surviving or disappearing entity), stock or asset sale, consolidation, dissolution, through government action or order, or otherwise. Any attempt to assign this EULA without prior written consent from an authorized executive officer of AveriSource shall be null and void. No delegation or other transfer will relieve you of any of your obligations or performance under this EULA. AveriSource may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this EULA without your consent. This EULA is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
22. Entire Agreement. Unless you have entered into another written agreement with respect to the Software which has been signed by you and an authorized representative of AveriSource and which conflicts with the terms of this EULA, you agree that this EULA supersedes all prior written or oral agreements, warranties or representations with respect to use of the Software. If any term (or part thereof) of this EULA is found to be invalid or unenforceable, the remaining provisions (including other valid parts within the effected term) will remain effective. You acknowledge that you have read this EULA, that you understand it, that you agree to be bound by its terms, and that this is the complete and exclusive statement of the EULA between you and AveriSource regarding the Software.
Last Revised January 26, 2021