BY EXECUTING THE ORDERING DOCUMENT WHICH INCORPORATES THESE TERMS AND CONDITIONS AND THE STATEMENT OF WORK (COLLECTIVELY THE “AGREEMENT”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT . IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY.
Terms Regarding Oracle Cloud Services:
In Your use of CPI’s Quiq Implementation Services (“Services”), You will be accessing Oracle Service Cloud. You, therefore, are bound by the terms and conditions of Oracle’s Cloud Service Agreement found at: http://www.oracle.com/us/corporate/contracts/index.html
Terms Regarding CPI’s Quiq Implementation Services:
By using CPI’s Quiq Implementation Services and any resulting derivative thereof (“Work Product”), You agree that this Agreement is a legally binding and valid contract and agree to be bound by it. You agree to abide by the intellectual property laws and all of the terms and conditions of this Agreement. Your use of CPI’s Quiq Implementation Services indicates Your acceptance of this license agreement and warranty. Subject to the terms of this Agreement, CPI grants to You a limited, non-exclusive, non-transferable license, without right to sub-license, to use the Work Product in accordance with this Agreement. CPI does not transfer the title of any Work Product to You.
Except to the extent expressly provided otherwise, in this Agreement:
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars;
“Effective Date” means the date upon which You give Your express consent to this Agreement, following the issue of this Agreement by CPI;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, utility models, semi-conductor topography rights and rights in designs;
Work Product and the license herein granted shall not be copied, shared, distributed, re-sold, offered for re-sale, transferred or sub-licensed in whole or in part.
4. USER AGREEMENT
4.1 Your license to use the Work Product is limited to the number of licenses purchased by You. You shall not allow others to use, copy, or evaluate copies of the Work Product.
4.2 You shall use the Work Product in compliance with all applicable laws and not for any unlawful purpose.
4.3 The Work Product contains copyrighted material, trade secrets and other proprietary material. You shall not, and shall not attempt to, modify, reverse engineer, disassemble or decompile the Work Product. Nor can You create any derivative works or other works that are based upon or derived from the Work Product in whole or in part. Except to the extent that such restriction is not permitted under applicable law, You are not permitted and You agree not to reverse engineer, decompile, disassemble or create derivative works of or modify the Work Product. Nothing contained herein shall be construed, expressly or implicitly, as transferring any right, license or title to You other than those explicitly granted under this Agreement. CPI reserves all rights in its intellectual property rights not expressly agreed to herein. Unauthorized copying of the Work Product or failure to comply with the restrictions in this Agreement or other breach of the license herein will result in automatic termination of this Agreement and You agree that it will constitute immediate, irreparable harm to CPI for which monetary damages would be an inadequate remedy, and that injunctive relief will be an appropriate remedy for such breach.
CPI’s name, logo and graphics file that represents Quiq Implementation shall not be used in any way to promote products developed with Quiq Implementation. CPI and the Quiq Implementation developer retain sole and exclusive ownership of all right, title and interest in and to the Work Product and all intellectual property rights relating thereto.
Copyright law and international copyright treaty provisions protect all parts of the Quiq Implementation products and services. No program, code, part, image, audio sample, or text may be copied or used in any way by the user except as intended within the bounds of the single user program. All rights not expressly granted hereunder are reserved for CPI.
5. LIMITATION OF RESPONSIBILITY
You will indemnify, hold harmless, and defend CPI, its employees, agents and distributors against any and all claims, proceedings, demand and costs resulting from or in any way connected with Your use of CPI’s Quiq Implementation Services or Work Product.
In no event including, without limitation, in the event of negligence will CPI, its employees, agents or distributors be liable for any consequential, incidental, indirect, special or punitive damages whatsoever including, without limitation, damages for loss of profits, loss of use, business interruption, loss of information or data, or pecuniary loss, in connection with or arising out of or related to this Agreement, Quiq Implementation Services or the use or inability to use Quiq Implementation Work Product or the furnishing, performance or use of any other matters hereunder whether based upon contract, tort or any other theory including negligence.
Except as expressly stated in writing, CPI makes no representation or warranties in respect of the Implementation Services and/or Work Product and expressly excludes all other warranties, expressed or implied, oral or written, including, without limitation, any implied warranties of merchantable quality or fitness for a particular purpose.
THE SERVICES AND THE ACCOMPANYING WORK PRODUCT ARE SOLD “AS IS” AND WITHOUT WARRANTIES AS TO PERFORMANCE OR MERCHANTABILITY OR ANY OTHER WARRANTIES WHETHER EXPRESSED OR IMPLIED. YOU AGREE THAT THE USE OF THE SERVICES AND WORK PRODUCT IS AT YOUR SOLE RISK AS TO SATISFACTORY QUALITY PERFORMANCE, ACCURACY AND EFFORT. Use of the Services and Work Product may adversely affect the operation of other software and devices. To the maximum extent permitted under applicable law, the Services and/or Work Product is offered on an “AS-IS” basis and CPI does NOT warrant that the functions contained in the Services and/or Work Product will meet Your requirements or that the operation of the Services and/or Work Product will be uninterrupted or error free or that such errors will be corrected. Computer software is inherently subject to bugs and potential incompatibility with other computer software and hardware. You should not use the Services and/or Work Product for any applications in which failure could cause any significant damage or injury to persons or tangible or intangible property.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CPI OR A CPI AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. Some states/jurisdictions do not allow exclusion of implied warranties or limitations on the duration of implied warranties, so the above disclaimer may not apply to You in its entirety. To the extent applicable law requires CPI to provide warranties, You agree that the scope and duration of such warranty shall be to the minimum extent permitted under such applicable law.
IN NO EVENT DOES CPI PROVIDE ANY WARRANTY OR REPRESENTATIONS WITH RESPECT TO ANY THIRD PARTY HARDWARE OR SOFTWARE WITH WHICH THE SOFTWARE PRODUCT IS DESIGNED TO BE USED, AND CPI DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY FAILURES THEREOF.
7. GOVERNING LAW
This Agreement shall be governed by the law of the United States, State of Indiana applicable therein. You hereby irrevocably attorn and submit to the non-exclusive jurisdiction of the courts of United States therefrom. If any provision shall be considered unlawful, void or otherwise unenforceable, then that provision shall be deemed severable from this License and not affect the validity and enforceability of any other provisions.
Each party will have a ten day cure period to rectify any failure to comply with the terms and conditions of this Agreement. Upon termination of the Agreement for any reason, You agree to immediately cease use of any Work Product. The termination of this Agreement shall not affect the accrued rights of either party.
9. CONSENT OF USE OF DATA
You agree that CPI may collect and use information gathered in any manner as part of the product support services provided to You, if any, related to the Quiq Implementation. CPI may also use this information to provide notices to You which may be of use or interest to You.
10. ACKNOWLEDGEMENTS AND WARRANTY LIMITATIONS
10.1 You acknowledge that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, CPI gives no warranty or representation that the Services and/or Work Product will be wholly free from defects, errors and bugs.
10.2 You acknowledge that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, CPI gives no warranty or representation that the Services and/or Work Product will be entirely secure.
10.3 You acknowledge that the Services and/or Work Product is only designed to be compatible with that software specified as compatible; and CPI does not warrant or represent that the Services and/or Work Product will be compatible with any other software.
11.1 You shall indemnify and shall keep indemnified CPI against any and all liabilities, damages, losses, costs and expenses including legal expenses and amounts reasonably paid in settlement of legal claims suffered or incurred by CPI and arising directly or indirectly as a result of any breach by You of this Agreement.
11.2 CPI will not be liable to You in respect of any losses arising out of a Force Majeure Event.
11.3 CPI will not be liable to You in respect of any loss of profits or anticipated savings.
11.4 CPI will not be liable to You in respect of any loss of revenue or income.
11.5 CPI will not be liable to You in respect of any loss of business, contracts or opportunities.
11.6 CPI will not be liable to You in respect of any loss or corruption of any data, database or software.
12.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
12.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted.
12.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
12.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
12.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
12.6 Nothing in this Agreement shall exclude or limit any liability of a party for fraud or fraudulent misrepresentation, or any other liability of a party that may not be excluded or limited under applicable law.
12.7 This Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
This Agreement shall be automatically renewed for successive one (1) year terms thereafter (each a Renewal Term) until and unless either Party provides the other Party with ten (10) days prior written notice to the end of the Initial Term or the Renewal Term. Notice shall be sent to the address found herein.