Process BI EULA
Clear Process Solutions End User License Agreement
1. LICENSE TO PROCESS BI
This Clear Process Solutions End User License Agreement (“EULA”) is incorporated into the Clear Process Solutions quote attaching this EULA (“Quote”) and is a binding agreement between the entity identified in the Quote (“Customer” “You” or “Your”) and Clear Process Solutions, LLC (“CPS”) (each a “Party” and together the “Parties”). This EULA governs Customer’s and its Authorized Users’ (defined below) use of the Process BI software solution identified in the quote (“Process BI“) and is effective upon the Parties’ mutual execution of any Quote. Process BI is developed, owned by, and sub-licensed to Customer by CPS or with authority from CPS’ licensors. Process BI contains or incorporates proprietary software owned by QlikTech, Inc. and its licensors (“Qlik Products”). Customer is prohibited from using the Qlik Products it obtains from CPS in any way other than integrated with the data structures of Process BI. Customer gains no license or any other right to Qlik Products, and may under no circumstance whatsoever use the Qlik Products independently or separated from the OEM Product. QlikTech Inc. is an intended third party beneficiary of this EULA and may enforce applicable terms of the EULA. For the avoidance of doubt, this EULA does not restrict Customer’s use of any Qlik Products Customer has obtained independently of CPS.
Subject to Customer’s and its Authorized Users’ compliance with this EULA, CPS hereby grants Customer a limited, nonexclusive, non-transferable, non-sublicensable, non-assignable, royalty-bearing and revocable right and license to the object code of Process BI for use by as many Authorized Users as identified in the Quote only for Customer’s internal business purposes.
2. RESTRICTIONS
Except as this EULA expressly permits, Customer shall not permit any other person that is not an Authorized User to use or access Process BI. “Authorized User” means the individual employees of Customer authorized to use Process BI pursuant to the Quote. Customer may not designate more Authorized Users than permitted in the Quote. Customer’s and its Authorized User’s use of Process BI may be limited by the types and quantities of license keys it purchases in the Quote.
Customer may not (directly or indirectly): (i) sell, rent sublicense, publish display, loan, distribute or lease Process BI; (ii) transfer to any other person or entity any of its rights to use Process BI except as expressly permitted hereunder; (iii) reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of Process BI or underlying ideas or algorithms of Process BI or any Process BI components contained therein, or create derivative works from Process BI, unless explicitly permitted by applicable and mandatory law; (iv) remove, delete or modify any copyright notices or any other proprietary notices or legends on, in or from Process BI; or (iv) use Process BI in any manner not authorized by this EULA.
With respect to Qlik Products obtained from CPS specifically, Customer shall ensure that: (i) any copy of a Qlik Product is produced only in accordance with the terms of this EULA and for Customer’s own benefit; (ii) any such copy is clearly marked subject to copyright and confidentiality restrictions; and (iii) a written list is maintained of the number of copies and place of storage. Customer shall discontinue use and destroy any and all copies of Qlik Products upon termination or expiration of the EULA.
3. INTELLECTUAL PROPERTY
CPS and its licensors, or their respective suppliers or licensors where applicable, own and retain all right, title and interest in and to Process BI, and their respective patents, trademarks (registered or unregistered), trade names, service marks, logos, designs, copyrights, trade secret and confidential information. Customer does not acquire any right, title or interest in or to Process BI or any intellectual property rights contained therein.
4. TERM AND TERMINATION
This EULA is effective as of the date the Quote is signed by both CPS and Customer and shall continue to be in effect for a period of one (1) year thereafter (the “Initial Term”), upon expiration of which this EULA shall automatically renew for successive additional one (1) year periods (each a “Renewal Term” and together with the Initial Term the “Term”) unless Customer or CPS provides written notice to the other party of its intent to terminate the EULA at least thirty (30) days prior to the expiration of the then current Initial Term or Renewal Term.
Notwithstanding anything to the contrary, CPS may terminate this EULA (i) immediately upon written notice to Customer in the event Customer breaches any provision of this EULA; or (ii) upon thirty (30) days’ written notice to Customer without cause.
Upon any expiration or termination of this EULA: (i) Customer’s license to Process BI immediately terminates; (ii) Customer must delete any and all copies of Process BI in its possession; (iii) Customer must pay any outstanding amounts due to CPS; and (iv) Customer must return, or at CPS’ election delete from its systems, any Confidential Information (defined below) in its possession or control.
5. PAYMENT
Customer will be billed annually for Process BI at the amounts set forth in the Quote. Customer will pay all invoices within thirty (30) days of receipt. Customer is responsible for the entire annual amount due to CPS each year of the Term. In the event the EULA is terminated early due to Customer’s breach, 4821-7798-9723.3 Customer shall pay to CPS within fourteen (14) days the balance of all fees payable for the remainder of the Term. Notwithstanding the foregoing, in the event that CPS exercises its right to terminate the EULA early without cause, Customer shall only be liable for the current months’ fees.
Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder.
6. SUPPORT
For any support inquiries regarding Process BI, Customer may contact CPS at its dedicated support e-mail: solutioncare@clearprocesssolutions.com
7. THIRD PARTY RIGHTS
The Process BI may contain third party software programs or components (“Third Party Materials”) subject to various other terms and conditions imposed by the licensors of such Third Party Materials. The applicable license terms and information relation to Third Party Materials in the Qlik Products, including any availability of source code, may be found at www.qlik.com/license-terms. As applicable, Customer’s use of Third Party Materials is subject to and governed by the third party licenses covering such Third Party Materials. Customer agrees to comply with all terms and conditions contained in all Third Party Materials’ licenses. All rights to Third Party Materials belong to and remain with the respective owners of such Third Party Materials. NEITHER CPS NOR QLIKTECH MAKES ANY REPRESENTATION, WARRANTY, OR OTHER COMMITMENT REGARDING THE THIRD PARTY MATERIALS. CPS HEREBY DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO CUSTOMER’S USE OF ANY THIRD PARTY MATERIALS.
8. HOSTING PROCESS BI
Customer is authorized to use a third-party hosting provider to host Process BI on Customer’s behalf; provided, however, (i) Customer shall be responsible for such third-party hosting provider’s compliance with this EULA; and (ii) such third-party hosting provider is restricted to hosting Process BI only on Customer’s behalf and may not use Process BI for any other purpose.
9. LICENSE COMPLIANCE AUDIT
CPS may, on five (5) business days’ notice, inspect and audit Customer’s use of Process BI during the Term and for one (1) year following the termination or earlier expiration of this EULA. All such audits shall be conducted during regular business hours and no more frequently than once in any twelve (12) month period month period. Customer shall make available all such equipment, information, logs and personnel, and provide all such cooperation and assistance, as may reasonably be requested by CPS with respect to such audit. CPS shall only examine information directly related to Customer’s use of Process BI in compliance with this EULA.
10. CONFIDENTIALITY
“Confidential Information” means any proprietary information related to CPS’ technology, products and business activities, including without limitation pricing, trade secrets, computer programs and software, inventions, techniques, product designs, research and development data, and third-party confidential information, whether in written, oral, graphic or electronic form, which is marked or identified at the time of disclosure as confidential or proprietary, or which would reasonably be considered to be confidential.
Customer shall treat as confidential all Confidential Information, and shall not use such Confidential Information except as permitted under this EULA and shall not disclose such Confidential Information to any third party. Customer shall use reasonable precautions to maintain the confidentiality of CPS’ Confidential Information. This Section 10 will not apply to any such Confidential Information that (a) is in the public domain through no fault of Customer, (b) is known to Customer prior to its receipt from CPS hereunder and not subject to a confidentiality obligation, (c) is independently developed by Customer, or (d) is received by Customer from a third party and not subject to a confidentiality obligation. Customer may disclose Confidential Information of CPS as required to be disclosed by court order or decree or in compliance with applicable law, provided that Customer shall give CPS prior notice of such requirement. Whenever requested by CPS, Customer shall immediately return all of CPS’ Confidential Information or destroy all such Confidential Information as CPS may designate.
11. CUSTOMER WARRANTIES
Customer represents and warrants that (i) it shall comply with all applicable laws, rules and regulations in its performance under this EULA and use of any Process BI provided hereunder; (ii) it has all necessary rights and consent to use any data, information or other content (“Customer Content”) in connection with Process BI; and (iii) its use, collection, processing and disclosure of Customer Content will be in compliance with applicable laws, rules and regulations.
12. DISCLAIMERS
CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT:
(a) CUSTOMER’S USE OF PROCESS BI IS AT ITS SOLE RISK. PROCESS BI IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CPS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT;
(b) CPS MAKES NO WARRANTY THAT (i) PROCESS BI WILL MEET YOUR REQUIREMENTS, (ii) PROCESS BI WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF PROCESS BI WILL BE ACCURATE OR RELIABLE, AND (v) ANY ERRORS IN PROCESS BI WILL BE CORRECTED;
(c) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM CPS OR FROM PROCESS BI SHALL CREATE ANY WARRANTY.
13. LIMITATIONS OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER CPS NOR QLIKTECH SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CPS OR QLIKTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE PROCESS BI; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SYSTEMS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON PROCESS BI; OR (v) ANY OTHER MATTER RELATING TO PROCESS BI.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
14. INDEMNIFICATION
Customer agrees to indemnify, defend and hold harmless CPS and QlikTech from and against any and all damages, fines, costs (including reasonable attorneys’ fees), liabilities and other expenses in connection with and third party claim that arises from or is based upon any violation of this EULA by Customer.
15. CHOICE OF LAW
This EULA shall be governed by and construed in accordance with the laws of the State of Ohio, excluding its conflict of law provisions. You agree to submit to the exclusive jurisdiction of the courts in Ohio. If any provision(s) of this EULA is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the Parties with the other provisions remaining in full force and effect. You agree that any cause of action arising out of or related to Process BI or this EULA must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
16. WAIVER AND SEVERABILITY
No waiver by CPS or QlikTech of any term or condition set forth in this EULA shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of CPS or QlikTech to assert a right or provision under this EULA shall not constitute a waiver of such right or provision.
If any provision of this EULA is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this EULA will continue in full force and effect.
17. NO THIRD PARTY BENEFICIARIES
No right granted to you under this EULA is enforceable by third parties and, except for QlickTech, no third party is an intended beneficiary of any rights and obligations of you under this EULA.
18. NO ASSIGNMENT
Customer may not assign this EULA, or any portion of the EULA, without the CPS’ prior written consent. Assignments in contravention of this Section 18 are void. This EULA will be binding upon any permitted successors and assignees.
19. ENTIRE AGREEMENT
This EULA, together with the Quote, constitutes the complete and entire agreement between the Parties and supersedes all prior oral or written proposals, agreements, or communications between them concerning the subject matters and relationship established under this EULA.
20. RELATIONSHIP OF THE PARTIES
The relationship between the Parties is that of independent contractors. Nothing contained in this EULA shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. NOTICES
Any legal notices required or permitted under this EULA will be considered delivered: (i) when delivered by hand to the party to be notified, (ii) on the next business day after being sent by a reputable overnight courier service for next business day delivery to the party to be notified, or (iii) on the third business day after being sent by prepaid United States mail, return receipt requested to the party to be notified, in each case to the applicable address specified in the Quote, or as otherwise designated in writing by a party.
22. USE OF MARKS
Customer shall not use the trademarks, tradenames, logos or marks of CPS or QlikTech, Inc. in any marketing materials, on its website, or otherwise without the written permission of CPS or QlikTech, Inc. as applicable.
23. SURVIVAL
Provisions of this EULA, which by their nature should apply beyond the Term, will remain in force after any termination or expiration of this EULA including, but not limited to, Sections 4, 7, 9 -17, 19, 20, 22, 23, and 25.
24. AMENDMENT
No amendment to this EULA or any Quote will be valid unless in writing and signed by an authorized representative of each of the Parties.
25. INJUNCTIVE RELIEF
Customer acknowledges and agrees that a breach of this EULA may cause CPS irreparable damages, for which an award of damages would not be adequate compensation and agree that, in the event of such breach or threatened breach, CPS will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which CPS may be entitled at law or in equity. Such remedies will not be deemed to be exclusive but will be in addition to all other remedies available at law or in equity.
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