DTEX End User License Agreement (EULA/MSLA)

2.1 Provision. During the Subscription Term, Dtex will provide Customer with Support Services for the Software in accordance with Dtex’s support services policy set forth at dtexsystems.com/support-policy/ , as the same may be reasonably modified by Dtex from time to time (“Support Services Policy”).

2.2 Support Services Policy. Dtex reserves the right to reasonably modify the Support Services Policy during the Subscription Term. However, Dtex agrees not to materially diminish the level of Support Services during the Subscription Term. The effective date of each version of the Support Services Policy will be stated therein. The Support Services Policy is hereby incorporated into these terms and conditions by this reference.

2.3 Restriction. Support Services are provided to Customer solely for Customer’s internal use, and Customer may not use the Support Services to supply any consulting, support or training services to any third party. Customer agrees and acknowledges that Customer is not obtaining any intellectual property right in or to the Support Services or any Dtex materials other than the rights of use specifically granted in this Agreement.

3.1 Invoicing and Payment. Customer agrees to pay Dtex, or, if applicable, the Authorized Reseller, the fees for the Subscription and/or any Services stated on the applicable Order Form. Invoices for Software Subscriptions will be issued upon execution of an Order Form. Invoices for Professional Services will be issued every two weeks, in arrears. Unless otherwise specified on an Order Form, all invoices will be paid in U.S dollars and are due within thirty (30) days of receipt. Payments will be made without right of set-off or chargeback. If Customer does not pay the invoices when due, Dtex may charge interest at the rate of one percent (1%) per month on the unpaid balance, or the highest rate permitted under applicable law, whichever is less.

3.2 Taxes. In addition, Customer will pay Dtex, or, if applicable, the Authorized Reseller, all sales, use, and excise taxes that are levied upon the delivery or use of the Software and/or Support Services; unless Customer provides Dtex, or, if applicable the Authorized Reseller, a valid state sales/use/excise tax exemption certificate or Direct Pay Permit. Customer will pay all import, export, value added or other tax or duty, and all government permit, withholding or license fees, and custom or similar fees, that are levied upon the delivery or use of the Software and/or Support Services.

3.3 Audit Rights. At all times during the Term, and for at least three (3) years after any termination of this Agreement, Customer will maintain complete and accurate records of all equipment on which it uses the Software and ensure that the Software is used in accordance with the terms and conditions of this Agreement.  Dtex will have the right, during normal business hours and upon at least ten (10) business days prior notice, to have a reputable independent accounting firm selected by Dtex, which is subject to reasonable confidentiality obligations, audit Customer’s records relating to Customer’s use of the Software in order to verify that Customer has complied with the terms of this Agreement.  The audit will be conducted at Dtex’s expense, unless the audit reveals that Customer has underpaid Fees owed to Dtex by five percent (5%) or more, in which case Customer will reimburse Dtex for all reasonable and actual costs and expenses incurred by Dtex in connection with such audit.  Customer will promptly pay to Dtex any amounts shown by any such audit to be owing, as reasonably determined by Dtex, plus interest as provided in Section 3.1 above.  Such audits will be conducted no more than once in any period of six (6) consecutive months.

4.1 Software Performance.  During the applicable Subscription Term (the “Software Warranty Period”), Dtex warrants that the Software, when used as permitted by Dtex and in accordance with the instructions in the Documentation, including use on Certified Operating Systems identified therein, will operate substantially as described in the Documentation.

4.2 Exclusions. The warranty set forth in Section 4.1 does not apply if the applicable Software or any portion thereof: (i) has been altered, except by or on behalf of Dtex; (ii) has not been used, installed, operated, repaired, or maintained in accordance with this Agreement and/or the Documentation; (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (iv) is used on equipment, products, or systems not meeting specifications identified by Dtex in the Documentation. Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to Dtex within the applicable warranty period specified herein and do not apply to any bug, defect or error caused by or attributable to software or hardware not supplied by Dtex. Dtex is not responsible for problems caused by changes in, or modifications to, the operating characteristics of any computer hardware or operating system for which the Software is procured, nor is Dtex responsible for problems with the Software that occur as a result of third party software or hardware that is incompatible with the operating system for which Customer procured the Software.

4.3 Exclusive Remedy. In the event of a breach of the warranty set forth in Section 4.1 above, Dtex will, as its sole obligation and entire liability and the exclusive remedy of Customer, use commercially reasonable efforts to correct any reproducible or reasonably documented errors in the Software reported to Dtex by Customer in writing during the Software Warranty Period.

4.4 Services Warranty. Dtex warrants that it will perform the Services in a professional, workmanlike manner, consistent with generally accepted industry practice. In the event of a breach of the foregoing warranty, Dtex’s sole obligation, and Customer’s exclusive remedy, shall be for Dtex to re-perform the applicable Services.

4.5 Disclaimers. THE EXPRESS WARRANTIES IN SECTIONS 4.1 AND 4.4 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE, SERVICES AND SUPPORT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  Dtex does not warrant that the functions contained in the Software will meet the requirements of Customer or authorized users or that the operation of the Software will be uninterrupted or error free.  CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES PROVIDED HEREIN AND THAT NO WARRANTIES ARE MADE HEREIN BY ANY OF DTEX’S SUPPLIERS.

5.1 Obligation. Dtex will, at its expense (i) defend, or at its option settle, a claim brought against Customer by an unaffiliated third party alleging that Customer’s use of the Software during the Subscription Term infringes such party’s patent registered in the United States, or any copyright or trademark of such party registered in the jurisdiction of Customer’s use of the Software, or makes intentional, unlawful use of such third party’s trade secret (each an “Infringement Claim”) and (ii) pay, hold harmless and indemnify Customer against any (1) amount agreed to be paid as settlement of such Infringement Claim consented to by Dtex or (2) damages finally awarded to such third party by a court of competent jurisdiction as the result of such Infringement Claim.

5.2 Certain Remedies. If an Infringement Claim occurs, or in Dtex’s opinion is reasonably likely to occur, Dtex, at its expense and at its sole discretion, may, in addition to its obligations under Section 5.1, either: (i) procure the right to allow Customer to continue to use the applicable Software; or (ii) modify or replace the applicable Software or infringing portions thereof to become non-infringing; or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer’s Subscription to the applicable Software and refund to Customer any pre-paid, unused fees paid by Customer to Dtex for such Subscription.

5.3 Exclusions. Dtex will have no obligation to Customer under this Section 5 to the extent any Infringement Claim or resulting award is based upon or results from: (i) Customer’s use of any version of the Software not obtained directly from Dtex; (ii) the failure of Customer to use an update of the Software made available by Dtex that would have avoided the Infringement Claim; (iii) a modification of the Software that is not performed by Dtex; (iv) the combination, operation, or use of the Software with any other products, services or equipment not provided by Dtex; (v) specifications Customer provides to Dtex for any services or (vi) any third party software. Customer will reimburse Dtex for any expenses, costs and/or damages that result from any of the actions or situations described in 6.3(i) – (v) above.

5.4 Conditions. The obligations of Dtex in Section 5 are conditioned upon Customer (i) notifying Dtex promptly of any threatened or pending Infringement Claim, provided that failure to provide such notice will only relieve Dtex of its obligations under this Section 5 to the extent its ability to defend or settle an applicable Infringement Claim is prejudiced by such failure to provide notice (ii) tendering to Dtex sole control over the defense and settlement of the Infringement Claim and (iii) giving Dtex, at Dtex’s expense, reasonable assistance and information requested by Dtex in connection with the defense or settlement of the Infringement Claim. Customer’s counsel will have the right to participate in the defense of the Infringement Claim, at Customer’s own expense. Customer will not, without the prior written consent of Dtex, make any admission or prejudicial statement, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Infringement Claim.

5.5 Exclusive Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 5 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF DTEX, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE AND/OR THE SERVICES.

IN NO EVENT SHALL CUSTOMER OR DTEX BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL DTEX’S TOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO DTEX OR AN AUTHORIZED RESELLER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY.THE ALLOCATIONS OF LIABILITY IN THIS SECTION 6 REPRESENT THE AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THE COMPENSATION OF DTEX FOR THE SERVICES PROVIDED HEREUNDER REFLECTS SUCH ALLOCATIONS. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.

7.1 Confidential Information.  Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business of the Disclosing Party and its suppliers, including business or financial affairs, such as financial results, business methods, pricing, competitor and product information, marketing, technical, employee, planning and all other information designated as confidential or proprietary.  (“Confidential Information”).  Any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party will be considered Confidential Information of the Disclosing Party.  The Software, including without limitation any routines, subroutines, directories, tools, programs, or any other technology included therein, shall be Dtex’s Confidential Information.

7.2 Protection of Confidential Information.  The Receiving Party will only use Confidential Information of the Disclosing Party for the purpose of obtaining the authorized benefits of the Software or providing Support or professional services, as applicable, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for such purposes and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder.  The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

7.3 Exceptions  The Receiving Party’s obligations under Section 7.2 with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already known without restriction to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.  In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.

7.4 Return of Confidential Information.  Upon the expiration or termination of the Agreement, the Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party.  The Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 4.

7.5 Confidentiality of Agreement.  Neither party will disclose any terms of the Agreement to anyone other than its attorneys, accountants, and other appropriate personnel except (a) as required by law, (b) pursuant to a mutually agreeable press release, or (c) in connection with a contemplated transfer of such party’s business permitted by Section 9.1 (provided that any third party to whom the terms of the Agreement are to be disclosed signs a confidentiality agreement reasonably satisfactory to the other party).

8.1 Subscription Term. The initial term of Customer’s Subscription shall be as set forth in the applicable Order Form. Thereafter, the term of Customer’s Subscription shall automatically renew for additional one (1) year periods unless either party gives written notice to the other of its intention not to renew the Subscription at least thirty (30) days prior to the expiration of the then-current term.  The initial term of a Subscription, plus any subsequent renewal term a Customer’s Subscription, shall be the “Subscription Term”.

8.2 Termination.  Either party may terminate the Agreement if the other party breaches any material provision of the Agreement and does not cure such breach within thirty (30) days after receiving written notice in accordance with Section 6 thereof.

8.3 Effects of Termination.  Upon termination of the Agreement for any reason: (a) any amounts owed to Dtex under this Agreement before such termination or expiration will be immediately due and payable; (b) all license rights granted in the Agreement will immediately cease to exist; and (c) Customer must promptly discontinue all use of the Software, erase all copies of the Software from Customer’s computers, and return to Dtex or destroy all copies of the Software and Documentation on tangible media in Customer’s possession.

8.4 Survival. Upon the expiration or termination of this Agreement, (i) Customer shall immediately cease use of the Software and have no further rights to receive the Support Services; and (ii) all payment obligations as well as Sections 1.2, 1.5, 1.6, 3.3, 4, 5, 6, 7, 8.4, 8.5 and 9 of this Agreement will survive.

9.1 Assignment  Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, except that either party may assign this Agreement in its entirety to a successor in interest in connection with a merger, acquisition or sale of all or substantially all of a party’s assets.  Any assignment in violation of this Section 9.1 shall be void, ab initio, and of no effect.  Subject to the foregoing, this Agreement is binding upon, inures to the benefit of, and is enforceable by, the parties and their respective permitted successors and assigns.

9.2 Fees. In any judicial proceeding between Customer and Dtex arising out of or relating to this Agreement, the prevailing party shall be entitled to recover all reasonable expenses incurred as a result of the proceeding, including reasonable attorneys’ fees.

9.3 Force Majeure. Except with respect to payment obligations, neither party will be liable for, or be considered to be in breach of, or in default under, this Agreement, as a result of any cause or condition beyond such party’s reasonable control.

9.4  Governing Law, Jurisdiction and Venue. 

• Customers in California. If Customer is located in California (as determined by the Customer billing address on the applicable Order Form), this Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles, and all suits hereunder will be brought solely in Federal Court for the Northern District of California, or if that court lacks subject matter jurisdiction, in any California State Court located in Santa Clara County.
• Customers Outside of California. If Customer is located anywhere other than California (as determined by the Customer address on the applicable Order Form), this Agreement will be governed by the laws of the State of Delaware, without regard to its conflict of laws principles, and all suits hereunder will be brought solely in Federal Court for the District of Delaware, or if that court lacks subject matter jurisdiction, in any Delaware State Court located in Wilmington, Delaware.
• All Customers. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable courts set forth in (a) or (b) above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
• Equitable Relief. A breach or threatened breach, by either party of Section 9 may cause irreparable harm for which the non-breaching party shall be entitled to seek injunctive relief without being required to post a bond.

9.5 Language This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding to the parties hereto.  All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

9.6 Notices. Any notice or other communication under this Agreement given by either party to the other will be deemed to be properly given if given in writing and delivered in person or facsimile, if acknowledged received by return facsimile or followed within one day by a delivered or mailed copy of such notice, or if mailed, properly addressed and stamped with the required postage, to the intended recipient at its address specified below the signatures on this Agreement. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section 9.6.

9.7 Non-waiver.  Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance.

9.8 Severability If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to give effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.