Archive
2022 - LICENSE AND PURCHASE AGREEMENT

1.License.

(a).General. EPS grants you a limited, personal, non-transferable, non-exclusive license to use or Access the Software and Documentation solely for the purposes specified in the Documentation. Only you, your employees or authorized independent contractors, and your end users, as applicable, may use or Access the Product or Documentation. The Software is licensed, not sold. You have no ownership rights, express or implied, or any other rights in the Software or Documentation other than those specified in this Agreement. You shall not relicense, sublicense, copy, modify, enhance, make errors corrections to, create derivative works based on, decompile, decrypt, reverse engineer, or disassemble the Software (including any database) or Documentation, or permit any third party to do so. You shall not rent, lease, lend, or otherwise distribute or use the Software or Documentation in any time-sharing, service bureau, or similar arrangement, or in any manner that may cause the Software or Documentation in whole or in part to become subject to any Excluded License. Additional terms and conditions may be provided with new Products or with an update, release, or upgrade.

(b). Perpetual License. If you are being granted a perpetual License, your License is revocable by EPS if you discontinue Maintenance for the Software for any two (2) consecutive annual Maintenance terms. You may install only the number of copies of the Software at the Site Location(s) for which you have been granted a License for use by you, your employees or authorized independent contractors. You may make and retain one additional copy for backup purposes only and may transfer the location of any Site Location if you obtain EPS’s prior written consent.

(c). Term License. If you are being granted a term License, except as otherwise specified on the Purchase Documentation, such License has an Initial Term of three (3) years from the Start Date. If you do not provide written notice of termination to EPS at least 90 days before the end of the Initial Term or any Renewal Term, the term will automatically renew at EPS’s then-current Fees. Only you, your employees or authorized independent contractors, and your end users, as applicable, may Access the Product, and only for your business. You are solely responsible for ensuring that data entry is timely, accurate, and reflects your requirements. You shall indemnify and hold EPS harmless from any liability, damages, or costs arising from data entered by you or your end users or on your behalf.

(d). Third-Party Materials. If you are being granted a term License, except as otherwise specified on the Purchase Documentation, such License has an Initial Term of three (3) years from the Start Date. If you do not provide written notice of termination to EPS at least 90 days before the end of the Initial Term or any Renewal Term, the term will automatically renew at EPS’s then-current Fees. Only you, your employees or authorized independent contractors, and your end users, as applicable, may Access the Product, and only for your business. You are solely responsible for ensuring that data entry is timely, accurate, and reflects your requirements. You shall indemnify and hold EPS harmless from any liability, damages, or costs arising from data entered by you or your end users or on your behalf.

(e). Unauthorized Use. THE PRODUCT MAY CONTAIN A LICENSE KEY TO PREVENT UNAUTHORIZED USE AND EPS MAY EXECUTE OR DEACTIVATE THE LICENSE KEY UPON TERMINATION OF YOUR LICENSE. YOU ACKNOWLEDGE THAT THE LICENSE KEY IS NOT A VIRUS, AND THAT EXECUTION OR DEACTIVATION OF THE LICENSE KEY MAY RENDER THE PRODUCT OR A PORTION OF IT INOPERABLE. IF THE LICENSE KEY IS EXECUTED OR DEACTIVATED AS SPECIFIED IN THIS AGREEMENT, YOU MAY BE OBLIGATED TO PAY EPS’S THEN-CURRENT FEE TO REACTIVATE THE PRODUCT.

2. Installation and Professional Services.

(a). Installation. Unless specified in the Purchase Documentation, the installation and implementation of the Product is your exclusive responsibility. EPS has no responsibility to modify the Product to cause it to function or operate on any particular hardware system, configuration, or platform or with any other software.

(b). Professional Services. You may purchase Professional Services from EPS, and statement(s) of work may be created to more fully describe the scope, duration, and/or Fees for the Professional Services, which will be governed by this Agreement. All pre-paid Professional Services must be used within twenty-four (24) months of the Start Date

(c). Compensation and Expenses. On-site Professional Services days are based on a standard 8-hour work day. Additional hours will be billed at EPS’s then-current applicable rate unless a different rate is mutually agreed. Customer shall reimburse EPS for all reasonable out-of-pocket expenses (including travel, lodging and meals) incurred in connection with on-site Professional Services session(s). Professional Services scheduled and/or performed (i) during after-hours on a weekday or (ii) on a Saturday will be invoiced at 150% of EPS’s then-current Professional Services Fees. Professional Services scheduled and/or performed on a Sunday or a government-recognized holiday will be invoiced at 200% of EPS’s then-current Professional Services Fees.

3. Hosted Solutions.

If EPS or its designated third-party providers are hosting the Software, the following additional terms and conditions apply:

(a). Access. EPS or its designated provider will provide those services necessary to allow you Access, including a password(s).

(b). Data Entry. All data generated by and through your Access will reside on servers of EPS or its third party providers.

(c). Password Security. You are solely responsible for (i) ensuring that only authorized individuals have access to passwords to Access the Product, (ii) assigning roles and authority levels for your Access, (iii) the conduct of individuals with Access, and (iv) maintaining the confidentiality and integrity of passwords and authority levels. You shall indemnify and hold EPS harmless from any liability, damages, or costs arising from your failure to comply with this section.

(d). Scheduled Downtime and Upgrades. Downtime is required from time-to-time for regular maintenance of the technology that supports the Product. EPS shall use commercially reasonable efforts to perform scheduled downtime outside of normal business hours. EPS may also install new or updated software from time to time, including supporting software and firmware, in addition to the Software, to aid in providing ongoing stability and security of the hosted solution. You shall facilitate commercially reasonable upgrades and operations without undue delay or objection.

(e). Unexpected Outages. EPS shall use commercially reasonable efforts to avoid unexpected outages and to restore Access as soon as possible. If you do not have Access for more than two (2) consecutive hours within any 24-hour period because of an unexpected outage caused by EPS, you may request credit for one day of the applicable Fees (based on an average of that month’s invoice). THIS IS YOUR SOLE AND EXCLUSIVE REMEDY AND EPS’S ENTIRE LIABILITY FOR UNSCHEDULED DOWNTIME OR OUTAGES, AND EPS WILL NOT BE LIABLE FOR ANY DAMAGES RELATED TO ANY UNSCHEDULED DOWNTIME OR OUTAGES.

(f). Self-Hosting. You at all times retain the right to self-host the Product from another location and, if you are being granted a term license, continue to pay the Term License Fees for the Software. Any Professional Services performed by EPS in migrating a hosted solution to a self-hosted solution are billable at EPS’s standard rates.

(g). Maintenance.If you are being granted a perpetual License as a hosted solution, you must remain on Maintenance for the period that EPS or its designated third-party provider is providing the hosting services to you.

4. Fees and Delivery.

(a). Fees. You shall pay all applicable Fees.

(b). Title and Risk of Loss. Title and risk of loss for any media or hardware for the Product transfers to you at EPS’s designated manufacturing plant(s) or warehouse(s). If the Product is delivered electronically, risk of loss transfers to you when the Product or Access is made available to you.

(c). Hardware Delivery.Unless otherwise specified in the Purchase Documentation, where you are purchasing hardware: (i) EPS shall act as agent for you and procure insurance against risk of loss and/or procure and prepay for shipment, (ii) you shall reimburse EPS for all charges relating to the shipment of hardware upon EPS providing an invoice for such charges. EPS shall use commercially reasonable efforts to ship hardware as soon as practicable following execution of this Agreement and EPS’s receipt of any required deposits. If you request a delay in delivery or otherwise cause a delay in the transportation process, EPS reserves the right to separately charge you for any costs it incurs for paying the logistics company to store and warehouse hardware on your behalf.

5. Product Maintenance.

(a). Subject to your timely payment of all applicable Fees, EPS or its designated provider will provide you with annual Maintenance for the Product. Maintenance terms automatically renew for consecutive 12-month periods unless cancelled by either party with written notice at least 30 days before the Maintenance Renewal Date. Notwithstanding the foregoing, Maintenance for certain Products (e.g., individual Software modules that are part of the EPS Software solution) may only be cancelled in the event that you are no longer using those certain Products; please first consult with EPS in the event you desire to cancel Maintenance for any Product.

(b).You must possess a valid License to use any upgrade or update. By using an upgrade or update, your license to any previous version of the Product automatically terminates. If you (i) have an out-of-date version of the Product or (ii) are not current on Maintenance due to your failure to timely pay Maintenance Fees and wish to update your version of the Product, you must pay any unpaid Fees and may be subject to additional fees to transfer or convert any old data. EPS reserves the right to discontinue Maintenance for all out-of-date versions of the Product.

6. Warranty and Disclaimer.

(a). Limited Warranties. EPS warrants to you that (i) EPS has the right to grant the License, (ii) subject to your timely payment of all applicable Fees, the Products as delivered to you will perform materially in accordance with EPS’s then-current, applicable specifications if all available updates, upgrades, and bug-fixes are properly installed, and (iii) any Professional Services you purchase will be provided in good and workmanlike manner consistent with generally accepted industry standards. This warranty does not apply to defects attributable to (A) any equipment or software not provided or approved for use by EPS, (B) any modification of the Product by you, your employees, or any third party acting on your behalf, (C) any accident, neglect, misuse, or abuse by you, your employees, or any third party acting on your behalf, or (D) exposure of the Product to conditions outside the range of environmental, power, and operating specifications provided by EPS. You shall cooperate fully and promptly with EPS’s attempts to identify the cause of any claimed breach of this limited warranty.

(b). Security of Your Systems. You are solely responsible for (i) ensuring the confidentiality, security, and integrity of your network connectivity, data, and servers, (ii) preventing and bearing the risk of any loss or damage to any data on your servers, and (iii) maintaining archive and backup copies of any data.

(c). WARRANTY DISCLAIMER AND REMEDIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES AND REMEDIES IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES. EPS, ITS SUPPLIERS, AND LICENSORS SPECIFICALLY DISCLAIM ANY OTHER WARRANTIES AND REMEDIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; ANY WARRANTIES RELATING TO SECURITY; AND ANY WARRANTIES THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED, OR ERROR-FREE. EPS MAKES NO WARRANTY, IMPLIED OR OTHERWISE, REGARDING THE PERFORMANCE OR RELIABILITY OF ANY OTHER THIRD PARTY PRODUCTS, OR SERVICES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOLE AND EXCLUSIVE REMEDY TO WHICH YOU ARE ENTITLED FOR BREACH OF THESE LIMITED WARRANTIES, AND THE ENTIRE LIABILITY OF EPS AND ITS SUPPLIERS RELATING TO BREACH OF THESE LIMITED WARRANTIES, IS, AT EPS’S OPTION, TO (1) REPAIR OR REPLACE THE PRODUCT OR RE-PERFORM THE SERVICE THAT DOES NOT MEET THE LIMITED WARRANTY, OR (2) PROVIDE A REFUND OF THE THEN-CURRENT REASONABLE COMMERCIAL VALUE (IF ANY) FOR THE PRODUCT OR SERVICE THAT DOES NOT MEET THE LIMITED WARRANTY. EXCEPT AS PROVIDED IN THIS AGREEMENT, THERE ARE NO REFUNDS, RETURNS, EXCHANGES, OR REPLACEMENTS.

7. Infringement Indemnification.

EPS shall indemnify you from IP Claims and reimburse you for damages paid by you to the party bringing the IP Claim pursuant to a final, non-appealable judgment that the Product directly infringes any Third Party IP Rights. If you do not notify EPS in writing within 10 business days of learning of the IP Claim, and give EPS proper and full information, assistance, and exclusive authority to defend or settle the IP Claim, EPS will be relieved of its obligations under this Section. If the Product or any part of it is in EPS’s opinion likely to become the subject of a claim of infringement of Third Party IP Rights, or if it is adjudicatively determined that the Product or any part of it infringes Third Party IP Rights, EPS may at its option (i) obtain for you a license or right to use the Third Party IP Rights so you can continue to use the Product, or (ii) replace or modify the Product with other suitable and reasonably equivalent non-infringing technology or parts, or (iii) if it is not commercially reasonable to take the actions described in clauses (i) or (ii) in this sentence, terminate your License and, if you return the Product to EPS, refund a portion of the license fee paid by you equal to the then-current reasonable commercial value (if any) of the Product. EPS shall not be responsible, liable, or obligated to indemnify or reimburse you if the alleged infringement arises out of (i) compliance with your requirements or specifications that are outside EPS’s standard specifications for the Product, (ii) any addition or incorporation to or modification of the Product at your request, (iii) any combination of the Product with any product or software not provided by EPS, or (iv) use of the Product in the practice of a process or system other than that for which it was intended. In any event as described in the preceding sentence, you shall defend and/or settle any claim brought against EPS at your own expense, and shall indemnify EPS against any costs, legal fees, other expenses, and damages required for the defense or settlement of the claim.

THE RIGHTS GRANTED TO YOU IN THIS SECTION ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY ALLEGED INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

8. LIMITATION OF LIABILITY.

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL EPS OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, RELIANCE, EXEMPLARY, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EPS IS NOT RESPONSIBLE FOR ANY LOST PROFITS OR REVENUE, LOSS OF USE OF THE PRODUCT, LOSS OF DATA, OR THE COST OF RECOVERING ANY DATA. EXCEPT FOR INSTANCES INVOLVING EPS’S WILLFUL MISCONDUCT, EPS WILL NOT BE LIABLE FOR DAMAGES ARISING FROM ANY BREACH, UNAUTHORIZED ACCESS, MISUSE, OR INTRUSION RELATED TO YOUR DATA ON EPS’S OR ITS SUPPLIERS’ SERVERS OR ANY NETWORK YOU USE IN CONNECTION WITH THE PRODUCT.

IN NO EVENT WILL EPS’S TOTAL LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATED TO THE PRODUCTS, SERVICES, ACCESS, AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, UNDER STATUTE, OR OTHERWISE) EXCEED THE TOTAL AMOUNT OF THE FEES ACTUALLY PAID BY YOU IN THE 12 MONTHS PRECEDING THE CLAIM FOR THE EPS PRODUCT, SERVICES, OR ACCESS GIVING RISE TO THE CLAIM. YOU AGREE THAT THIS AMOUNT IS SUFFICIENT TO SATISFY THE ESSENTIAL PURPOSE OF THIS AGREEMENT AND THAT THE PRICE OF THE PRODUCT, PROFESSIONAL SERVICES, OR ACCESS REFLECTS THIS ALLOCATION OF RISK.

THE FOREGOING LIMITATIONS OF LIABILITY AND DISCLAIMERS FORM AN ESSENTIAL ELEMENT OF THIS AGREEMENT, WITHOUT WHICH EPS WOULD NOT HAVE LICENSED OR SOLD THE PRODUCT TO YOU OR PROVIDED YOU WITH ACCESS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS OF LIABILITY IN THIS AGREEMENT, SOME OR ALL OF THEM MAY NOT APPLY TO YOU.

9. Proprietary Rights and Confidential Information.

(a). No Implied Conveyance of Proprietary Rights. The Product, Documentation, and any Work Product are the valuable, confidential, and proprietary property of EPS, its suppliers and licensors. EPS is not conveying any of its Intellectual Property Rights, except the limited rights specified in this Agreement. You shall maintain and reproduce all copyright, trademark, patent, and other proprietary notices on the Product in the same form and manner as delivered by EPS.

(b). Protection of Information.You shall not disclose any of EPS’s Confidential Information, and shall take precautions with respect to EPS’s Products and Confidential Information that are at least as protective as you take to protect your own confidential information and proprietary rights of the greatest sensitivity. You shall advise your employees and authorized independent contractors of the confidential and proprietary nature of the Product and EPS’s Confidential Information and of the restrictions imposed by this Agreement, and confine access to the Product and EPS’s Confidential Information to those individuals who need it in the ordinary course and scope of their employment or relationship with you. Except as specified in this Agreement, you shall not directly or indirectly disclose any part of the Product, EPS’s Confidential Information, or Documentation to any third party.

(c). Termination; Injunctive Relief. Your violation of the confidentiality obligations or of EPS’s Intellectual Property Rights may cause irreparable damage that cannot be fully remedied by money damages. In the event of any actual or threatened violation, you agree that EPS will be entitled, in addition to any other remedy available to it, to (i) terminate this Agreement, retake possession of the Product, execute the License Key, and/or terminate Access, and/or (ii) obtain injunctive or other equitable relief from any court of competent jurisdiction to prevent any further violation.

(d). Use of Your Trademarks and Logos. Subject to any reasonable use guidelines, you grant EPS a non-exclusive, worldwide, royalty-free license to use Customer Marks in connection with this Agreement, for use with the Product, for promoting EPS’s Products in marketing materials, print, or on-line advertising, and for identifying you as an EPS customer. You shall also secure for EPS any rights or sublicenses required for EPS’s use of the trademarks or service marks of your Affiliates. EPS acknowledges that (i) Customer Marks are owned solely and exclusively by you or your Affiliates, (ii) EPS has no other rights, title, or interest in or to Customer Marks, and (iii) all use and goodwill of Customer Marks by EPS inures to the benefit of you and your Affiliates.

10. Termination.

(a). This Agreement may be terminated immediately upon written notice to the other party (i) by EPS, if you fail to make any required payment other than Maintenance Fees, (ii) by the non-breaching party, if you or EPS fails to cure a material breach within 30 days after written notice from the non-breaching party, or (iii) by EPS, if you cease doing business as a going concern, become the object of voluntary or involuntary bankruptcy or liquidation proceedings that are not dismissed within 60 days after the initial filing, or if a receiver is appointed with respect to a substantial portion of your assets.

(b). Upon termination, you shall promptly (i) pay EPS all unpaid fees accrued before the termination, (ii) return all EPS Confidential Information and the Product, and (iii) return any materials, programs, manuals, and other items related to or derived from the Product in your possession or control. EPS shall use commercially reasonable efforts to provide you with any proprietary data belonging to you in the format in which it is stored by EPS at the time of termination.

11. Audit Rights.

EPS may audit your use of or Access to the Product. Any audit will take place after prior notice to you, during regular business hours, and in a manner that does not unreasonably interfere with your normal business. If the audit shows that you are using or accessing the Product in a way that violates this Agreement, EPS may invoice you for such use or Access, including late fees, interest, and expenses associated with the audit. If you do not timely pay that invoice, EPS may exercise its termination rights and pursue any other rights or remedies available to it.

12. Consent to Use Data.

EPS may collect and use technical data and related information to facilitate providing and/or confirming authorized use of Products, Access, Professional Services, and/or Maintenance to and by you. Subject to EPS’s then-current privacy policy (available at https://eproductivitysoftware.com/privacy/) and applicable laws and regulations, EPS may (i) use this information to improve its products, to provide customized services or technologies to you, and/or to confirm authorized use, (ii) transfer this information to EPS’s affiliates, agents, and partners, and (iii) transfer this information to the United States and/or any other country where EPS or its affiliates, agents, and partners maintain facilities.

13. Compliance with Laws.

(a). Export Law Compliance.The Product and related technology, information, and materials are subject to the export laws and regulations of the United States. You shall comply with those and any other applicable export laws or regulations. You are solely responsible for obtaining any necessary export licenses and exemptions. The Product and related technology, information, and materials may not be exported or re-exported to any U.S.-embargoed country, to any person or entity on any list of prohibited parties designated by the U.S. government, or otherwise in violation of any export law or regulation.

(b). Compliance with Laws.You may only use the Product in compliance with all applicable laws and regulations. Upon written notice to you, EPS may modify or suspend your use of or Access to the Product as necessary to comply with any law or regulation. Both parties acknowledge their responsibilities and commitments to abide by and comply with international anti-corruption laws, including but not limited to the United States Foreign Corrupt Practices Act and the United Kingdom Anti-Bribery Act, and any amendments and regulations relating to those laws, in addition to each of our own ethical guidelines (EPS’s Code of Conduct is available online at https://eproductivitysoftware.com/code-of-conduct/). Specifically, for example, no employee, or any individual or entity acting on behalf of or for the benefit of either EPS or Customer, may give or receive anything of value, or anything that may be perceived as valuable, to or from a government official or any other individual for the purpose of influencing any act, securing any improper advantage, or obtaining or retaining business.

14. General Provisions.

(a). Taxes. Except with respect to income recognized by EPS, you are liable for all tariffs, duties, and taxes, however designated or levied, based on your possession, use of, or Access to the Product, this Agreement, and/or any Professional Services, including but not limited to sales, use, value added, excise, services, personal property, or other taxes.

(b). Governing Law. This Agreement is not governed by the 1980 UN Convention on Contracts for the International Sales of Goods or any other international treaty or convention. Rather, this Agreement is governed in all respects by the laws of the State of California, USA, without regard to conflicts of laws principles. For all disputes related to this Agreement, the Product, Access, or any services provided under this Agreement, each party consents to the exclusive personal jurisdiction and venue of the state and federal courts in and for Santa Clara County, California, USA.

(c). Severability; Interpretation.If any provision of this Agreement is held to be illegal, invalid, or unenforceable by any court of competent jurisdiction, that provision will be fully severable and this Agreement will be construed and enforced as if it were not included. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor or against either party. The captions are for convenience only and do not affect the scope, intent, or meaning of the provisions. Any failure or delay to enforce any provision of this Agreement will not be deemed a waiver of EPS’s right to do so.

(d). No Assignment. Assignment or transfer of this Agreement in its entirety, including all Licenses purchased, whether voluntarily, by operation of law, or otherwise, requires EPS’s prior written consent, which may be withheld, delayed, or conditioned in EPS’s sole discretion, and may require payment of a License transfer fee. Partial assignment or transfer of this Agreement, including a portion of Licenses purchased, whether voluntarily, by operation of law, or otherwise, is prohibited. Any merger, consolidation or acquisition of Customer or other transfer of all or substantially all of the shares or assets of Customer is deemed to be an assignment under this Agreement. Any attempted assignment or transfer without EPS’s consent is void.

(e). Language.This Agreement is only in English, which is controlling in all respects. If EPS has provided you with a translation, the translation is for your convenience only and the English-language version, not the translation, is legally binding. If there are any conflicts or inconsistencies between the English-language version and a translation, the English-language version controls. Any notices relating to this Agreement must be in writing in English.

(f). Entire Agreement and Modification. With respect to the subject matter or any term of this Agreement: (i) this Agreement constitutes the entire understanding of the parties; (ii) this Agreement supersedes all prior and contemporaneous communications and understandings (including but not limited to discussions, representations, warranties, inducements, promises, and agreements); (iii) there are no such communications or understandings not explicitly contained herein; (iv) neither party has relied on any such communications or understandings except as explicitly contained in this Agreement; and (v) any waiver, modification, or amendment will be effective only if in a writing signed by the parties, where email does not constitute a signed writing.

(g). Orders and Acceptance.All orders for Products or Professional Services made pursuant to this Agreement are non-cancelable, non-refundable and must be submitted at least fifteen (15) days prior to the requested order delivery date. For any given order, you shall make the order and corresponding payment to EPS or its subsidiary or Affiliate depending upon which company is making the sale of Products or Professional Services for that order. Orders are not binding without written notification of acceptance from EPS. This Agreement governs all subsequent orders, and nothing contained in Customer’s purchase orders or other communications will in any way modify this Agreement.

(h). Independent Contractors. You and EPS, and our respective employees and representatives, are and will be independent contractors with respect to the other party. Neither party by virtue of this Agreement has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.

(i). Survival. The provisions of this Agreement that relate to fees and payment terms, ownership of intellectual property and proprietary rights, export law compliance, termination, confidentiality, infringement indemnification, warranty disclaimers, limitation of liability, governing law, survivability, force majeure, severability and interpretation, definitions, modification and use of software products owned or distributed by Microsoft or Oracle included in an EPS Product will survive termination of this Agreement.

(j). Force Majeure. Except for payment of monies, no party will be liable for its failure to perform any obligations on account of strikes, shortages, failure or acts of suppliers, riots, insurrection, fires, flood, storm, explosions, acts of God, war, military operations, acts of terrorism whether actual or threatened, acts of a public enemy, epidemics, quarantines, governmental action, labor conditions, earthquakes, material shortages, or any cause that is similar to those enumerated or beyond the reasonable control of the affected party.

(k). U.S. Government Restricted Rights.Use, duplication, or disclosure of the Product by the United States Government is subject to restrictions as set forth in FAR 12.212 or DFARS 227.7202-3 - 227.7202-4 and, to the extent required under U.S. federal law, the minimum restricted rights as set out in FAR 52.227-14, Restricted Rights Notice (June 1987) Alternate III(g)(3) (June 1987) or FAR 52.227-19 (June 1987). To the extent any technical data is provided pursuant to the Agreement, such data is protected per FAR 12.211 and DFARS 227.7102-2 and to the extent explicitly required by the U.S. Government, is subject to limited rights as set out in DFARS 252.227.7015 (November 1995) and DFARS 252.227-7037 (September 1999). If any of the above-referenced agency regulations are modified or superseded, the subsequent equivalent regulation shall apply. The name of the Contractor is EPS US, LLC.

15. Product-Specific and Third Party Provisions.

If you have obtained a License for certain Products, some of the following terms and conditions might apply to you.

(a). Products that include Microsoft Software (such as Windows or SQL Server).

(i). The term “Product” as used in this Agreement includes certain Microsoft software and related documentation, associated media, “online” or electronic documentation, upgrades and updates. EPS does not own these products and the use thereof is subject to certain rights and limitations.

(ii). Microsoft is not responsible for any support services for the Product. Notwithstanding the foregoing, in the event any support issues arise related to the Microsoft software that cannot be resolved by EPS, support to you may be provided by Microsoft pursuant to the Microsoft Premier support services agreement, or a similar type agreement, between EPS and Microsoft.

(iii).The Product is not fault-tolerant. The Product is not designed or intended for use in any situation where failure or fault of any kind of the Product could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”). You are not licensed to use the Product in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, and Class III medical devices under the Federal Food, Drug, and Cosmetic Act. You shall not use the Product in, or in connection with, any High Risk Use. You are responsible for taking all appropriate measures to ensure the safe use of the Product if used for such purposes and EPS and its suppliers, including Microsoft, will not be liable for any claims or damages arising from such use.

(b). Products that include Software Products Owned or Distributed by Oracle

(i).The term “Product” as used in this Agreement includes certain software products provided by EPS that are owned or distributed by Oracle USA, Inc. (“Oracle”) and related program documentation (the “Oracle Programs”); EPS does not own the Oracle Programs and the use thereof is subject to certain rights and limitations. The Oracle Programs included herein are subject to a restricted use license and can only be used in conjunction with the Product. Oracle or its licensors retain all ownership of intellectual property rights to the Oracle Programs. You are hereby notified that Oracle is a supplier of EPS and a third-party beneficiary to this Agreement to the extent that this Agreement contains provisions which relate to your use of the Oracle Programs. Such provisions are made expressly for the benefit of Oracle and are enforceable by Oracle in addition to EPS.

(ii).You acknowledge and agree that you are prohibited from (a) publishing any results of benchmark tests run on the Oracle Programs, (b) using the Oracle Programs for rental, timesharing, subscription service, hosting, or outsourcing, and (c) removing or modifying any program markings or notice of Oracle’s or Oracle’s licensors’ proprietary rights.

(iii). To the extent not prohibited by law, in no event will Oracle be liable for (a) any damages, whether direct, indirect, incidental, special, punitive or consequential, and (b) any loss of profits, revenue, data or data use, arising from the use of the Oracle Programs.

(iv).You hereby permit EPS to (a) report any audit results obtained pursuant to this Agreement to Oracle to the extent such results are related to the Oracle Programs, or (b) assign such rights to audit your use of the Oracle Programs to Oracle.

(v). You are hereby notified that some Oracle Programs may include source code that Oracle may provide as part of its standard shipment of such programs, which source code is governed by the terms of this Agreement.

(vi). The Computer Information Transactions Act does not apply to this Agreement

(vii). You acknowledge and agree that in the event a third party technology may be appropriate or necessary for use with some Oracle Programs, it will be specified in the Product package documentation or as otherwise noted, and such third party technology is licensed to you only for use with the Product under the terms of the third party license agreement specified in the Product package documentation or as otherwise noted, and not under the terms of this Agreement.

(c).E-commerce Applications.

(i). Use at Site Location. You may use or Access the Product only for production activity at the Site Location. If you have more than one production facility, you may not use or Access the Product for production activity at any facility other than the Site Location(s) for which you have been granted a license.

(ii). Links. If you have obtained a License for EPS e-Commerce Software, you represent and warrant that you have the right to create and maintain, or to allow EPS to create and maintain, all Links to the Product and any other websites mutually agreed upon between you and EPS. You shall incorporate EPS’s “Powered by EPS” logo on any website utilizing EPS e-commerce Software.

(ii). Relationships with Third Parties. Use of or Access to the e-Commerce Product does not create a contract or other obligation between you and any of your customers or between EPS and any of your customers or vendors. EPS cannot and does not guarantee the performance of any of your customers, vendors, or other third parties. EPS will have no liability in connection with any dispute between you and any third party, and any third party dispute will not relieve you of any obligation to EPS under this Agreement.

(d). Open Source Software. Some versions of the Products contain open source software. Open source software is licensed to you under that software’s own license terms, which can be found in the “Help,” “About,” “Read Me,” or other specified portion of the Product. You are responsible for complying with any terms and conditions applicable to any open source software. To the extent that this Agreement imposes greater restrictions on you than the open source software license terms, the open source software license terms control, but solely with respect to the open source software.

16. Definitions.

“Access” means the connection to and use of a Product by Customer via an Internet web browser under the terms of this Agreement.

“Affiliate” means any entity directly or indirectly controlling, controlled by, or under common control with a party.

“Agreement” means this License and Purchase Agreement.

“Confidential Information” means any information that you have been informed or have a reasonable basis to believe is confidential to EPS, whether provided to you before, on, or after this Agreement, including, for example, ideas, programs, data, software, systems configurations, reports, projections, initiatives, customer data, or other business or technical information. Confidential Information includes any written information marked as confidential or proprietary, and any information disclosed orally or visually that is identified as confidential or proprietary at or around the time of its disclosure. All EPS Intellectual Property Rights and technical information related to the Product are Confidential Information whether or not marked as confidential or proprietary.

“Customer Marks” means your name and logo or other trademarks, service marks, or other marks.

“Documentation” means user’s guides, manuals, and other information related to the Product or Professional Services.

“EPS” means EPS US, LLC, EProd Software B.V., EProd Software UK Limited, Metrics Sistemas De Informacao Ltda., alphagraph Team GmbH, or another EPS subsidiary or Affiliate referred to in the Purchase Documentation.

“Excluded License” means any license that requires as a condition of use, modification, and/or distribution of software subject to the Excluded License, that such software or other software combined and/or distributed with such software be (i) disclosed or distributed in source code form, (ii) licensed for the purpose of making derivative works, or (iii) redistributable at no charge.

“Fees” means the fees for the Product, Access, or Professional Services, including any fees set forth in your Purchase Documentation, License fees, hardware fees, Term License Fees, Hosting Fees, Maintenance Fees, or other applicable fees. Unless otherwise specified in the Purchase Documentation, payments for any fees must be made within 30 days of the date of the invoice in the currency listed in the Purchase Documentation. Any amount not paid when due is subject to a service charge equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount permitted by law, and EPS may defer shipments of Products and/or provision of services until all overdue payments are received. Payment of the service charge will not foreclose any other right that EPS may have as a consequence of late payment. In the event that EPS is required to take legal action to collect unpaid amounts, and EPS is successful in such action, Customer shall reimburse all costs and reasonable attorneys’ fees incurred by EPS in such action.

“Hosting Fees” means the hosting fees described in the Purchase Documentation. Unless otherwise specified in the Purchase Documentation, payment obligations for Hosting Fees commence on the first day of the next month following 30 days from the Start Date.

“Initial Term” means the three-year period of time beginning on the Start Date.

“Intellectual Property Rights” means, individually or collectively, any patent, copyright, trademark, service mark, trade secret, trade name, or other intellectual property right.

“IP Claim” means a lawsuit filed against you by a third party that is not a patent assertion entity or non-practicing entity.

“License”means the license granted to you for the Product you have obtained.

“License Key” ” ” means a programming code included in the Product that, if executed or deactivated, renders the Product or portions of it inoperable.

“Link” means a hypertext reference that, when activated, moves users from one website to another on the Internet.

“Maintenance” means (i) correction of material defects so that the Product will operate materially in conformity with the warranties in this Agreement, (ii) periodic updates that incorporate corrections of material defects and fixes of minor bugs in the Product, (iii) telephone or email/electronic consultation services regarding the use of the Product during EPS’s standard support hours, and (iv) enhancements and/or revisions to software components of the Product, which are subject to additional charge unless they are provided at no charge to substantially all other licensees.

“Maintenance Fees” means the support and/or maintenance fees charged by EPS and/or a third party for the Product. Unless otherwise specified in the Purchase Documentation, payment obligations for Maintenance Fees commence on the first day of the next month following 30 days from the Start Date and continue for 12 consecutive months thereafter, subject to any Maintenance renewal term(s). Any use of a virtual private network or other requirement that requires EPS to act outside of its normal processes in order to provide Maintenance to you may be subject to additional fees.

“Maintenance Renewal Date” means the anniversary of the start of the Maintenance coverage period stated on the first Software Maintenance invoice that EPS issued to you, whether issued pursuant to this Agreement or a prior agreement or Purchase Documentation.

“Product” means Software or hardware, and may also include third party software and documentation, downloads, on-line materials, bug fixes, patches, releases, release notes, updates, upgrades, technical support materials, and information related to the EPS software or hardware.

“Professional Service(s)” means any training, installation, implementation, customization and/or other professional services provided by EPS to Customer.

“Purchase Documentation” means the purchase order, investment summary, statement of work, written agreement, or other documentation executed by you by which you agreed to obtain a license, Product, or service from EPS or one of EPS’s partners.

“Renewal Term” means the three-year period following the Initial Term or another Renewal Term unless specified otherwise in your Purchase Documentation. Fees for any Renewal Term may be increased to EPS’s then-current fees.

“Site Location” means the printing plant or facility specified in the Purchase Documentation.

“Software” means the EPS software listed on the Purchase Documentation or licensed to you under this Agreement.

“Start Date” means the Effective Date of the Purchase Documentation or the date the Product is made available to you, whichever is later.

“Term License Fees” means the term license fees for the Product described in the Purchase Documentation, the payment of which entitles you to Maintenance at no additional charge. Unless otherwise specified in the Purchase Documentation, payment obligations for Term License Fees commence on the Start Date.

“Third Party IP Rights” means a third party’s U.S. patent rights.

“Work Product” means any and all ideas, concepts, and Intellectual Property Rights related in any way to the techniques, knowledge, and processes of the Product, Services, and deliverables provided by EPS, including any integration to third party products, whether or not developed for you.

“You”, “you” or “Customer” means the person or entity that obtained the Product under this Agreement and that is agreeing to be bound by this Agreement.

Oracle is a registered trademark of Oracle Corporation.

Microsoft, Windows, and SQL Server are registered trademarks of Microsoft Corporation in the United States and/or other countries.

All other marks are the property of their respective owners.

If you have any questions, see the EFI website at www.efi.com.

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