This agreement is between Data Discovery Solutions Limited, trading as Actfore, a Delaware corporation (Actfore), and the customer entering into this agreement (Customer),effective as of the date of the last signature below. The Actfore software, updates, documentation and license keys provided to Customer (Software) are licensed and are not sold.
1. SCOPE. This agreement describes the licensing of the Software, support and implementation services.
2. LICENSE. Subject to the other terms of this agreement, Actfore grants Customer, under an order, a non-exclusive, non-transferable license for the duration specified and up to the license capacity purchased to:
a. Use the Software only in Customer’s internal business operations; and
b. Make one copy of the Software for archival and backup purposes.
Third party contractors and Affiliates of Customer may use and access the Software under the terms of this agreement. Customer is responsible for their compliance with the terms of this agreement. Affiliate means any company controlled by or under common control with Customer, directly or indirectly, with an ownership interest of at least 50%.
3. RESTRICTIONS. Customer may not:
a. Transfer, assign, sublicense, rent the Software, create derivative works of the Software, or use it in any type of service provider environment.
b. Reverse engineer, decompile, disassemble, or translate the Software; or
c. Evaluate the Software for the purpose of competing with Actfore.
4. PROPRIETARY RIGHTSAND MUTUAL CONFIDENTIALITY.
a. Proprietary Rights. The Software, workflow processes, user interface, designs, know-how and other technologies provided by Actfore as part of the Software are the proprietary property of Actfore and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Actfore and its licensors. The Software is protected by copyright and other intellectual property laws. Customer may not remove any product identification, copyright, trademark or other notice from the Software. Actfore reserves all rights not expressly granted.
a. SOFTWAREPERFORMANCE WARRANTY. Actfore warrants that the Software will perform in substantial accordance with its accompanying technical documentation for a period of 30days from the date of the order. This warranty will not apply to any problems caused by software not licensed to Customer by Actfore, use other than in accordance with the technical documentation, or misuse of the Software. The warranty only covers problems reported to Actfore during the warranty period or 30 days after. Customer will cooperate with Actfore in resolving any warranty claim. Actfore will use commercially reasonable efforts to remedy covered warranty claims within a reasonable period of time or replace the Software, or if Actfore cannot do so it will refund to Customer the license fee paid. This remedy is customer’s exclusive remedy, and Actfore’s sole liability for these warranty claims.
b. IMPLEMENTATIONSERVICES Warranty. Actfore warrants that it will perform the implementation services in conformance with generally accepted practices within the software services industry and in accordance with the applicable statement of work (SOW), for a period of 90 days after completion of the implementation services under the SOW. If Customer believes there is a breach of the above warranty, then Customer must notify Actfore no later than 30 days after the end of the warranty period and provide reasonable cooperation to Actfore. Actfore will use commercially reasonable efforts to remedy covered warranty claims within a reasonable period of time or replace the non-conforming services, or if Actfore cannot do so it will refund the fee paid for the non- conforming services. THISREMEDY IS CUSTOMER’S EXCLUSIVE REMEDY, AND Actfore ’S SOLE LIABILITY FOR THESE WARRANTY CLAIMS.
c. DISCLAIMER OF WARRANTIES. Actfore disclaims all other express and implied warranties, including without limitation the implied warranty of merchantability and fitness for a particular purpose. Customer understands that the Software may not be error free and use may be interrupted.
6. TERMINATION. This agreement expires at the end of the license period specified in the order. Either party may terminate this agreement upon a material breach of the other party after a 30 days’ notice/cure period, if the breach is not cured during such time period. Upon termination of this agreement or a license, Customer must discontinue using the Software, de-install and destroy or return the Software and all copies, within 5 days. Upon Actfore's request, Customer will provide written certification of such compliance.
7. ANNUAL SUPPORT. Actfore’s annual technical support and maintenance services (Support) may be purchased under an order. Support may be provided in subsequent years if Customer and Actfore agree on the support renewal for that year. Support is provided under the Support policies then in effect. Actfore may change its Support terms, but Support will not materially degrade during any Support term. Full details of our Support Terms can be found at http://support.Actfore.com/
8. LIMIT ON LIABILITY. There may be situations in which (as a result of material breach or other liability) Customer is entitled to make a claim against Actfore. In each situation (regardless of the form of the legal action (e.g., contract or tort claims), Actfore is not responsible for any damage and does not have any liability beyond the greater of the amount paid or payable by Customer to Actfore within the 12 months prior to the event that gave rise to the claim. Even if it knows of the possibility of such damage or liability, in no circumstance is Actfore responsible for any: loss of, or damage to, data or information; lost profits, revenue, or productivity; or other special, consequential, incidental or indirect damages.
9. DEFENSE OF THIRD PARTY CLAIMS. Actfore will defend or settle any third party claim against Customer to the extent that such claim alleges that the Software violates a copyright, patent, trademark or other intellectual property right, if Customer, promptly notifies Actfore of the claim in writing, cooperates with Actfore in the defense, and allows Actfore to solely control the defense or settlement of the claim. Costs. Actfore will pay infringement claim defense costs incurred as part of its obligations above, and Actfore negotiated settlement amounts, and court awarded damages. Process. If such a claim appears likely, then Actfore may modify the Software, procure the necessary rights, or replace it with the functional equivalent. If Actfore determines that none of these are reasonably available, then Actfore may terminate the Software and refund (as applicable) any prepaid and unused fees subscription license, Support and service fees and the license fee for perpetual licenses (amortized over a 5-year period from the date of the order). Exclusions. Actfore has no obligation for any claim arising from: Actfore’s compliance with Customer’s specifications; A combination of the Software with other technology where the infringement would not occur but for the combination; or Technology not provided by Actfore. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND ACTFORE’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
10. OTHER TERMS.
a. Compliance Audit. No more than once in any 12-month period and upon at least 30 days advance notice, Actfore (or its representative) may audit Customer’s usage of the Software at any Customer facility. Customer will cooperate with such audit. Customer agrees to pay within 30 days of written notification any fees applicable to Customer’s use of the Software in excess of the license.
b. Export Compliance. Each party will comply with all applicable export control laws of the United States, foreign jurisdictions and other applicable laws and regulations.
c. US government Restricted Rights. The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. government or any agency thereof is subject to restrictions as set forth in subparagraph (c)(I)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 C.F.R. 52.227-19, as applicable.
d. No PO Terms. Actfore rejects additional or conflicting terms of a Customer’s form-purchasing document.