THE TERMS OF THIS END-USER SERVICE AGREEMENT SHALL GOVERN YOUR USE OF THE SOFTWARE. BY CLICKING ON THE APPROPRIATE BUTTON, OR BY ACCESSING AND/OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT ACCESS, OR USE THE SOFTWARE.
“Affiliate” means an entity that controls, is controlled by or shares common control with SOVA, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock, by contract, or otherwise, equal to that provided by direct or indirect ownership of more than 50%.
“Application” means the computer application developed by the Customer through the use of the Software.
“Confidential Information” refers to non-public information that You may obtain or have access to by virtue of using the Software, including, but not limited to, SOVA data and proprietary software and computer operations, all code, inventions, algorithms, business concepts, workflow, marketing, financial, business and technical information, authentication credentials associated with the use of the Software, Personal Data and all information either clearly identified as confidential or that is of a nature that a reasonable person would understand to be confidential.
“Customer” means the Party which acquired the Subscription and executed the Agreement on the basis of which access to the Software is being provided.
“Customer Content” means software (including machine images), online services, features, technology, data, text, audio, video, images or other content supplied by Customer or by third-parties on behalf of Customer in connection with an Application.
“Documentation” means the online user guides, and help and training manuals, made available by SOVA.
“End-User” or “You” means the entity (Customer) or natural person executing and accepting this EUSA.
“EUSA” means this agreement.
“Intellectual Property” means any patents, patent rights, design rights, copyrights, database rights, trade secrets, know-how, trademarks, trade names, service marks and other intellectual property embodied in the foregoing, and all applications and rights to apply for registration or protection rights pertaining thereto, in existence at the date hereof or created in the future. Rights regarding Intellectual Property shall be referred to as “Intellectual Property Rights”.
“Personal Data” has the meaning as described in the applicable data protection laws and shall include, without limitation, any data or information (regardless of the medium in which it is contained and whether alone or in combination) that relates to an identified or identifiable natural person.
“Software” means the SOVA platform described in the Documentation, and all updates to the “Software” provided as part of Support and Updates and Documentation.
“Subscription” means the joint provision of Software services and Support and Updates services.
“Subscription Term” means the period of time for which the Customer has acquired the service Subscription from SOVA.
“Support and Updates” means any Software support and updates services provided by SOVA.
2.1 Aim and Acceptance. This EUSA applies to Your use of the Software. By accessing and/or using the Software, each End-User agrees to accept and abide by this legally binding EUSA and any updated versions which may occur from time to time. The End-User acknowledges that any act of accessing or using the Software will bind the End-User to this EUSA.
2.2 Relationship with other documents. The clauses established herein are applicable in as much as they are compatible with any other written agreement entered between SOVA and the Customer. In such case, that agreement shall prevail over any clause of this EUSA. When Your Subscription is acquired through a SOVA partner, in case of inconsistency between the agreement executed with such third party and the EUSA, the EUSA shall prevail.
3.1 Service. This Software is provided as a service, not sold. By accessing and using the Software, you are agreeing to the terms of this EUSA, and you can access and/or use the Software. Your rights are determined by those granted to the Customer and are subject to the usage limits identified. The rights of use granted shall not include any rights to the source code of the Software.
3.2 Restrictions of Use. Unless otherwise authorized under this EUSA or with S2K2’s prior written consent, You may not (and will not allow any third party to): (i) sell, rent, lease, service, subservice, distribute, pledge, assign or otherwise transfer in whole or in part the Software or any interest in them to another party; (ii) provide, disclose, divulge or make available to, or permit use of the Subscription in whole or in part by, any third party other than those that support Customer with developing Applications; (iii) install or use the Software in a manner that circumvents or interferes with the operation of the technological measure that controls the access to the Software; (iv) modify, translate, adapt or create derivative works based on the Software; (v) remove or modify any Software markings or any notice of S2K2’s proprietary rights; (vi) use the Software to provide third party training; (vii) disclose results of any Subscription benchmark tests to any third party without S2K2’s prior written consent; or (viii) use the Software in any way that violates applicable law or the terms and conditions of this EUSA. In addition, unless Customer and S2K2 have agreed to additional terms to this EUSA, You may not (and will not allow any third party to), with respect to any Applications deployed under this Subscription: (ix) sell, rent, lease, service, subservice, distribute, offer as a paid or free subscription, or include in a service bureau or outsourcing offering, such Applications; or (x) develop, test, host, or run and operate such Applications on behalf of third-parties to this Agreement. Except to the extent expressly permitted by applicable law You may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part. If You violate any of these restrictions, You may be subject to prosecution and liable for damages.
3.3 Manner of Use. Subject to the terms of this EUSA, You agree not to use or permit the use of the Software to display, store, process or transmit any Customer Content that may (i) menace or harass any person or cause damage or injury to any person or property, (ii) involve the publication of any material that is false, defamatory, harassing or obscene, (iii) violate privacy rights or promote bigotry, racism, hatred or harm, (iv) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters, (v) constitute an infringement of intellectual property or other proprietary rights, (vi) be PHI Data, PCI Data or ITAR Data or (vii) otherwise violate applicable laws, ordinances or regulations. If S2K2 receives information that You are in violation of any of the foregoing restrictions, S2K2 will notify Customer, and Customer will promptly take appropriate action to resolve such violation. If Customer does not take the required action in accordance with the above, S2K2 reserves the right, but has no obligation, to take remedial action if Customer violates the foregoing restrictions. S2K2 shall have no liability to Customer in the event that S2K2 takes such action.
3.4 End-User’s Content and Applications. As necessary for S2K2 (i) to provide Customer with the Support and Updates; and (ii) to operate, manage and improve the Software, you grant to S2K2 the right and approval to host, copy, transmit and display End-User’s Content and Applications in accordance with this EUSA and limited to such purposes only.
4. INTELLECTUAL PROPERTY RIGHTS, OWNERSHIP AND TITLE
4.1 Intellectual Property in the Software. All Intellectual Property Rights in and to the Software are owned by S2K2 Holdings Pte Ltd and shall, notwithstanding the terms of this EUSA, remain vested in S2K2 Holdings Pte Ltd. The Software is protected by copyright laws and international treaties. Except as and only to the extent permitted by applicable law, or by SERVICE terms governing use of open-sourced components included with the Software, You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Software or Software updates, or any part thereof. Any attempt to do so is a violation of this EUSA and the rights of S2K2 Holdings Pte Ltd and/or its licensors. If You violate this restriction, You may be subject to prosecution and liable for damages.
4.2 Intellectual Property in the Applications. All Intellectual Property Rights in and to Applications and Customer Content are owned by Customer, and shall, subject to the terms of this EUSA, remain vested in Customer. Unless otherwise expressly provided in this EUSA, S2K2 Holdings Pte Ltd shall not acquire any proprietary right, title or interest in or to any Intellectual Property Rights in the Applications.
The Software and all manuals, data, Documentation, and other materials provided by S2K2, contain Confidential Information. You agree to use the Software only as expressly set forth herein, not to disclose the Software to any third party and to maintain adequate procedures to prohibit the unauthorized disclosure, duplication, misuse or removal of the Software.
6. EFFECT OF TERMINATION
Upon termination of the Subscription, this EUSA shall be automatically canceled, and You shall no longer have access to the Software or the Applications.
7. DISCLAIMER OF WARRANTIES
S2K2 DOES NOT WARRANT THAT THE SOFTWARE OR SUPPORT WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE FROM MALICIOUS ATTACKS BY THIRD-PARTIES. END-USER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF END-USER’S PRIVACY, CONFIDENTIAL INFORMATION AND/OR CUSTOMER CONTENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SOVA PROVIDES THE SOFTWARE AND SUPPORT “AS IS”, WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO, EXPRESS, IMPLIED STATUTORY OR OTHER WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. CUSTOMER SHALL HAVE SOLE RESPONSIBILITY FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, APPROPRIATENESS AND OWNERSHIP OF ALL CUSTOMER CONTENT AND APPLICATIONS.
THE SOFTWARE RUNS ON A THIRD-PARTY CLOUD SERVICE (EG. AMAZON WEB SERVICES) AND S2K2 DOES NOT WARRANT THAT THE SOFTWARE WILL CONTINUE TO FUNCTION AND BE AVAILABLE FOR USE IN CASE SUCH THIRD-PARTY CLOUD SERVICES BECOME UNAVAILABLE OR FAIL TO OPERATE DUE TO ANY CIRCUMSTANCES.
8. LIMITATION OF LIABILITY
8.1 MUTUAL EXCLUSIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF USE, LOST OF DATA, INTERRUPTION OF BUSINESS, OR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL OR MARKET CAPITALIZATION, OR COST OF PROCUREMENT OF REPLACEMENT GOODS OR SERVICES) ARISING FROM THIS EUSA, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2 S2K2 EXCLUSION OF LIABILITY. S2K2 WILL NOT BE LIABLE FOR: (i) YOUR INABILITY TO USE THE SUBSCRIPTION AS A RESULT OF ANY VALID TERMINATION OR SUSPENSION OF THE SUBSCRIPTION PURSUANT TO THE TERMS OF THIS EUSA; OR (ii) ANY UNAUTHORIZED ACCESS TO, DAMAGE OR ALTERATIONTODELETION OR DESTRUCTION OF, OR FAILURE TO STORE OR BACKUP, YOUR CONTENT DUE TO YOUR NEGLIGENCE AND OR MISCONDUCT; (iii) THE SOFTWARE NOT BEING AVAILABLE FOR USE OR BECOMING UNOPERATIONAL IN THE CASE OF THE FAILURE OR SERVICE DISRUPTION OF THE SOFTWARE’S CLOUD SERVICE PROVIDER(S).
8.3 S2K2’S TOTAL AGGREGATE LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION IN THIS EUSA, S2K2’S TOTAL AGGREGATE LIABILITY UNDER THIS EUSA AND THE END-USER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER SHALL BE LIMITED TO DIRECT DAMAGES CAUSED BY S2K2’S NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE AMOUNTS DUE OR PAID TO SOVA UNDER THIS EUSA DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
8.4 EXCLUSIONS. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 WILL NOT APPLY TO DIRECT DAMAGES DUE AS A RESULT OF EITHER PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
9. GENERAL PROVISIONS
9.1 Entire Agreement. This EUSA, as varied from time to time, constitutes the entire agreement in respect of the End-User’s access to and/or use of the Software or Support. The terms of any purchase order or similar Customer document are excluded; such terms will not apply to SOVA and will not supplement or modify this EUSA.
9.2 Interpretation. References to a provision, clause or section are to a provision, clause or section of this EUSA. References to this EUSA include reference to information contained in a URL and/or referenced policies and/or guides. Words importing the singular include the plural and vice versa. Words importing a gender include every gender. The words and phrases “other”, “such as”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
9.3 Headings. The caption and the headings to clauses, sections, parts and paragraphs are inserted for convenience only and shall be ignored in interpreting this EUSA.
9.4 Contracting company, governing law and jurisdiction. Based on where Customer is domiciled: (a) the S2K2 entity with which Customer is contracting under this EUSA; (b) the governing law applicable to this EUSA, including any lawsuit or disputes arising out of or in connection with it, without giving effect to any choice or conflict of law provision or rule; and (c) which courts can adjudicate any such lawsuit. The Parties agree that neither the Uniform Computer Information Transaction Act nor the United Nations Convention for the International Sale of Goods will apply to this EUSA.
9.5 Compliance with Laws. You agree that Your use of the Software will comply with all laws applicable to Your specific performance under this EUSA, including without limitation all applicable anti-corruption laws, anti-money laundering laws, antitrust laws, economic sanctions laws, export control laws, data protection and data privacy laws, and modern slavery and human trafficking laws. SOVA shall have the right to terminate this EUSA, without notice and without liability, for any perceived or actual breach of this clause.
9.6 Export Laws. You agree that Your use of the Software (including related Documentation) will comply with all applicable export control and trade sanctions laws, rules and regulations, including the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Laws”). You represent and warrant that You are not (i) located or resident in a country or territory that is subject to comprehensive U.S. trade sanctions or other significant trade restrictions (including, without limitation, Cuba, Iran, North Korea, Syria, and the Crimea region, Donetsk People’s Republic region, and Luhansk People’s Republic region of Ukraine) (collectively, the “Sanctioned Countries”); or (ii) identified on any U.S. government restricted party lists (including without limitation the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by OFAC, and the Denied Party List, Entity List and Unverified List, administered by BIS) (collectively, the “Restricted Party Lists”). You further certify that You will not, directly or indirectly, export, re-export, transfer or otherwise use the Software (nor any direct product thereof) in violation of the Export Laws, or with any purpose prohibited by the same Export Laws, in any Sanctioned Country, to any person or entity on a Restricted Party List, or for any nuclear, chemical, missile or biological weapons-related end uses. You acknowledge that the Software, or any feature or part thereof, may not be available for use in all jurisdictions and that You are responsible for complying with applicable Export Laws wherever You use the Software. S2K2 shall have the right to terminate this EUSA, without notice and without liability, for any perceived or actual breach of this clause.
9.7 Usage Data. The Parties agree that S2K2 and its Affiliates may collect and use technical data related to the use of the Software, its performance, configuration and environment (“Usage Data”) for statistical purposes, to improve the Software, and for compliance verification.The confidentiality obligation set forth in Section 5 (“Confidentiality”) shall apply to the collection and use of such data.
9.8 Personal Data. In the event S2K2 has access to Personal Data through the execution of this EUSA, it shall act as End-User’s data processor for the processing thereof, and shall process any Personal Data at all times in full compliance with the applicable data protection laws.
9.9 Suggestions, Ideas and Feedback. You and Your respective employees, contractors and other agents, may, in Your sole discretion, choose to provide suggestions, ideas and/or feedback (collectively, “Feedback”) to S2K2 with respect to the Subscription. S2K2 may use the Feedback perpetually and irrevocably for the purpose of improving its products and services, without compensation or accounting to You, provided that the Feedback (i) does not contain Personal Data, (ii) does not constitute Your Confidential Information, and (iii) does not identify You as the source of the Feedback. Any Feedback is provided by You “as is” without warranty of any kind.
9.10 Relationship of Parties. The Parties are independent contractors, not agents, employees or joint ventures of one another, and do not have any authority to bind the other Party, by contract or otherwise, to any obligation. Neither Party will represent to the contrary, either expressly, implicitly, by appearance or otherwise.
9.11 Force Majeure. No Party is responsible for failure to fulfill any obligations due to acts of God, fires, floods, storms, explosions, earthquakes, acts of war or terrorism, riots, insurrection, pandemics, the intervention of any government or authority, or any other reason where the failure to perform is beyond its reasonable control.
9.12 Severability. If for any reason a court of competent jurisdiction finds any provision of this EUSA or portion thereof, to be unenforceable, that provision of the EUSA will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this EUSA or of the provision will continue in full force and effect, except to the extent such invalid provision or part of provision relates to essential aspects of the EUSA. The Parties agree that such provision or portion thereof shall be substituted by a provision with an equivalent legal and economic effect.
9.13 Waivers of Rights. No waiver will be implied from conduct or failure to enforce or exercise rights under this EUSA.
9.14 Third Party Rights. Other than as expressly set out in this EUSA, this EUSA does not create any rights for any person who is not a party to it, and no person who is not a party to this EUSA may enforce any of its terms or rely on any exclusion or limitation contained in it.
9.15 Survival. Clauses and/or sections 3.2 (“Restrictions of Use”), 4 (“Intellectual Property Rights, Ownership and Title”), 5 (“Confidentiality”), 7 (“Disclaimer of Warranties”), 8 (“Limitation of Liability”), and 9 (“General Provisions”) of this EUSA shall survive termination, without prejudice to other obligations that, pursuant to the applicable law or to this EUSA, shall also remain in force after the termination date.
9.16 Language. This Agreement as well as any additional agreement (both present and future) are made in English. Any other language translation is provided as a convenience only. In the case of any inconsistency or discrepancy between original English texts and their translation into any other language, as the case may be, original versions in English will prevail.