MERCHANT END USER LICENSE AGREEMENT (“EULA”)
By checking the acceptance box or installing or using all or any portion of the software, you are accepting all of the terms and conditions of this end user license agreement. This agreement is enforceable like any written agreement signed by you and legally binding between you and GuestMetrics, LLC, or any and all applicable GuestMetrics affiliate (“The Company”). If you do not agree to all of these terms and conditions, do not install or use the software. If you use the software as an employee, contractor, or agent of a corporation, partnership or similar entity, then you must be authorized to enter into this agreement on behalf of the entity to accept the terms of this agreement, and you represent and warrant that you have the right and authority to do so.
The Company may change, update, or add or remove provisions of this agreement, at any time by posting the updated terms on this site or by notifying you via email. By using this site after GuestMetrics has updated this agreement, you are agreeing to all the updated terms; if you do not agree with any of the updated terms, you must stop using the software and related services.
This end user license agreement (“agreement”) is between The Company and the customer (individual or entity) that has downloaded, accessed, or otherwise obtained access to the software (as defined below) for use as an end user (“you”). This agreement covers all software, support, and professional services.
“documentation” means any supporting product help and technical specifications documentation made available by The Company to you for use in connection with the software.
“ordering document” means any order from The Company which references this agreement. Each ordering document which references this agreement will be deemed a part of this agreement.
“authorized user” means those uniquely identified individuals authorized to use the software on your behalf, as stated on the ordering document, regardless of whether those individuals are actively using the programs at any given time.
“software” means The Company’s proprietary software product(s) made available as a service (SaaS – Software as a Service) in connection with this agreement in object code form (or as otherwise specified in any related ordering document). “software” also includes any maintenance releases or updates provided to you under this agreement, and applies whether you access the software via a browser or other remote means, or install the software on your systems, or any combination of access methods. Unless otherwise noted, the software and documentation are referred to collectively herein as “software.”
“affiliate” means each legal entity that is directly or indirectly controlled by you on or after the effective date (defined below) and for so long as such entity remains directly or indirectly controlled by you (where “controlled” means the ownership of, or the power to vote, directly or indirectly, a majority of any class of voting securities of a corporation or limited liability company, or the ownership of any general partnership interest in any general or limited partnership).
“contractor” means those independent third parties who perform services related to this agreement for you.
“customer data” means data generated by you or your authorized user and used by or imported into the software.
2. COMPANY PRODUCTS
2.1. In order to use the software under this agreement, you may be required to activate and/or register your copy of the software with a license key or activation code provided to you by The Company (“product key”) as further set forth in this section 2 of this agreement. In addition, each authorized user must use his or her own login or other permitted credentials to use the software (such credentials, along with the product key, being the “credential controls”).
2.2. Each authorized user must provide The Company with complete and accurate information when registering for credential controls, and keep such information up to date. Each authorized user must protect his or her credential controls and is solely responsible for activities that occur under or through such credential controls. In any case, you are responsible for all activities of authorized users, including activities initiated by third parties, whether or not such activities are authorized by you or any authorized user. If you allow an authorized user to access The Company on your behalf, you shall ensure that such authorized user is bound by, and abides by, the terms of this agreement. You agree to notify The Company immediately of any unauthorized use of your account or any other breach of security relating to your account or your use of Company software. The Company may access your account, or information associated with your account, to provide support, for security-related reasons, or any other business purpose. You acknowledge and consent to such access.
2.3. Except as otherwise specifically provided in ordering documents, you are required to provide hardware and services necessary to access and use the software, including, without limitation (i) obtaining, deploying and maintaining the your internal website(s), servers and other equipment and software used in the conduct of your business (”customer system”), and all computer hardware, software, modems, routers and other communications equipment necessary for you and your authorized users to access and use the software via the internet; (ii) contracting with third party ISP, telecommunications and other service providers to access and use the software via the internet; and (iii) paying all third party fees and access charges incurred in connection with the foregoing.
2.4. Some products delivered by the Company may require you to download and install certain software on your system(s). Such software may include “website tags” or other technology that may, among other functions, identify and transmit certain data to The Company. The Company may store cookies on customer systems and may use other tracking mechanisms to collect data for use by The Company in connection with the software and related services. Such technology may collect certain analytics data, including, without limitation, ip address and location information, website URL, referring URL, pages viewed (including page address, name and title, data and time of access, and length of time spent on each page), activities on each page (including links clicked and search terms entered), operating system, browser type, authorized user header information, web page performance information, campaign information, java version, flash version, resolution and screen information, and language information.
2.5. Evaluation version (“evaluation version”). If you ordered a license to an evaluation version, you may install and use one copy of evaluation version software solely for the purpose of evaluating the software to determine whether to purchase a non-evaluation version copy of the software. You may not use the evaluation version for any other purposes, including but not limited to competitive analysis, commercial, professional, or for-profit purposes. Unless otherwise specified in ordering documents, you may only use the evaluation version for 7 days from the date of delivery (“evaluation period”). The evaluation version software may become inoperable and, in any event, your right to use the evaluation version software automatically expires at the end of the evaluation period. Notwithstanding any other provision of this agreement, the evaluation version software is provided “as is” without warranty of any kind, express or implied. The Company may terminate your license to the evaluation version software upon written notice at any time for any reason and without liability of any kind.
3.1. Grant of license. Subject to all of the terms and conditions of this agreement, and except as set forth in section 6 (term and termination), The Company grants you a limited, worldwide, non-transferable, non-sub licensable (except as permitted under section 3.5), non-exclusive license to access and use the software, but only in accordance with: (i) the documentation; and (ii) the restrictions in section 2 (The Company products), section 3.6 (license restrictions), and any restrictions on the applicable ordering document. Subject to the foregoing, you may allow your contractors and affiliates to use the software in accordance with this agreement, provided you remain liable for the acts and omissions of your affiliates and contractors. Licenses granted on an authorized user basis may be reassigned between uniquely identified individuals over time, but may not be reassigned so frequently as to enable the sharing of a single license between multiple authorized users.
3.2. Sample code. Subject to the terms and conditions of this agreement, The Company grants you a limited, worldwide, non-transferable, non-sub licensable, non-exclusive license to modify any sample source code from the software provided by The Company to you (“sample code”) solely for internal use for the purposes of designing, developing, testing and otherwise facilitating your use of the software under this agreement.
3.3. Archive/disaster recovery copies. For installed software only, you may make a reasonable number of copies of the software for archival and disaster recovery purposes.
3.4. Third-party code. The software may contain or be provided with components which are licensed from third parties (“third party code”), including components subject to the terms and conditions of “open source” software licenses (“open source software”). Open source software may be identified in the documentation, or in a list of the open source software provided to you upon your written request. To the extent required by the license that accompanies the open source software, the terms of such license will apply in lieu of the terms of this agreement with respect to such open source software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
3.5. Electronic delivery. All software and documentation will be delivered by electronic means unless otherwise specified on the applicable ordering document. Software will be deemed delivered when it is first made available for access and use or download by you (“delivery”).
3.6. License restrictions. You may not (and may not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the software or third party code or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the software or third party code by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, or as permitted by an applicable open source software license); (b) distribute, sell, sublicense, rent, lease or use the software, third party code or sample code (or any portion thereof) for time sharing, hosting, service provider or like purpose; (c) remove any product identification, proprietary, copyright trademark, service mark, or other notices contained in the software, third party code or sample code; (d) except as permitted in section 3.2, modify any part of the software, third party code or sample code, create a derivative work of any part of the software, third party code, or sample code, or incorporate the software, third party code or sample code into or with other software, except to the extent expressly authorized in writing by The Company or as permitted by an applicable open source software license; (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the software; (f) utilize any equipment, device, software, or other means designed to circumvent or remove any form of credential controls or copy protection used by The Company in connection with the software; (g) use the software to develop a product which is competitive with any The Company product offerings; (h) use unauthorized credential controls; (i) enable access to the software for a greater number of authorized users than the sum quantity of licenses purchased on the applicable ordering document(s); or (j) as applicable, reassign license rights between authorized users so frequently as to enable a single license to be shared between authorized users.
3.7. Data Privacy. The Company reserves the right, subject to applicable law, to use, analyze, license the information that is created or collected through the Service and the Software; provided, however, that GuestMetrics may not sell, license or provide any such information to any third party without first removing or concealing personal identifiable information (PII) or sensitive personal information (SPI). However, in the event that the Merchant is willing to exchange its PII or elements of its SPI to the Company (in exchange for a to be negotiated benefit to the Merchant), the Company will be able to monetize also this type of information. These rights shall extend to GuestMetrics subsidiaries, related companies, authorized distributors and partners (collectively “Related Entity (ies)” as long as each Related Entity shall use the data in the manner as contemplated in this Agreement. Similarly, during the term of this agreement, the Merchant will not provide any information that is created, collected or used through the Service and the Software to any third party, without the express written consent of the Company. The rights in this Section shall survive termination of this Agreement.
Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, The Company and its licensors have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the software, sample code, third party code, and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, feedback or suggestions). You acknowledge that you are obtaining only a limited license right to the software, sample code, third party code and that, notwithstanding any use of the words “purchase”, “sale” or like terms in this agreement or in any ordering documents, no ownership rights are being conveyed to you under this agreement or otherwise.
You must pay all fees associated with the software licensed and any services purchased hereunder as set forth in the applicable ordering document. All payments must be made in the currency noted on the applicable ordering document within thirty (30) days of the delivery of the software to you, or on such other date specified in the applicable ordering document. Except as expressly set forth herein, all fees are non-refundable once paid. Unless timely provided with a valid certificate of exemption or other evidence that items are not taxable, The Company will invoice you for all applicable taxes including, but not limited to, VAT, GST, sales tax, consumption tax and service tax. You will make all payments free and clear of, and without reduction for, any withholding or other taxes; any such taxes imposed on payments by you hereunder will be your sole responsibility. Unpaid fees will accrue interest at the rate of 1% per month, or, if lower, at the maximum rate permitted by applicable law without any special filings.
6. TERM AND TERMINATION
6.1. Term. This agreement is effective as of the delivery of the software (or other date, as specified in the ordering documents, in either case, the “effective date”) and expires at such time as all license and service subscriptions hereunder have expired in accordance with their own terms (the “term”). The term of your license under this agreement may be perpetual, limited for evaluation version, or designated as a fixed-term license in the ordering document, and must be specified at the time of purchase (or at time of account activation of merchant/end user account). The term for the base service is one year from the effective date or activation date, while add on modules and or services will be provided on a monthly, annual or perpetual basis, as determined at time of purchase. Additional terms for add on modules may apply. Either party may terminate this agreement (including all related ordering documents) if the other party: (a) fails to cure any material breach of this agreement within thirty (30) days after written notice of such breach including without limitation your failure to pay, provided that The Company may terminate this agreement and the software license(s) (including termination of the software license(s) if the agreement has already expired or has been terminated) immediately upon any breach of section 3.6 (license restrictions) or if you exceed any other restrictions contained in section 2 (The Company products); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). Termination is not an exclusive remedy and the exercise by either party of any remedy under this agreement will be without prejudice to any other remedies it may have under this agreement, by law, or otherwise.
6.2. Renewal of term licenses. Unless otherwise provided in the ordering document, term licenses will renew automatically for successive 1-year terms unless either party notifies the other of its intent not to renew no less than 90 days in advance of the next-applicable renewal date.
6.2 Termination. Upon any expiration or termination of this agreement, you must cease any and all use of any software, destroy all copies thereof and so certify to The Company in writing.
6.3 survival. Sections 3.6 (license restrictions), 4 (ownership), 5 (payment), 6 (term and termination), 7.3 (disclaimer of warranties), 11 (limitation of remedies; indemnification and damages), 12.2 (indemnification by you), 13 (confidential information), 14 (export compliance), and 15 (general) will survive any termination or expiration of this agreement.
7.1. Limited warranty. The Company warrants to you that, for a period of 30 days from first delivery (the “warranty period”), the software will operate in substantial conformity with the documentation (the “warranty”). The Company does not warrant that your use of the software will be uninterrupted or error-free. The Company’ sole liability, and your exclusive remedy, for any breach of the warranty will be, in The Company’ sole discretion, to use commercially reasonable efforts to provide you with an error correction or work-around which corrects the reported nonconformity, or if The Company determines such remedies to be impracticable within a reasonable period of time, to refund the license fee paid for the applicable software. The Company will have no obligation with respect to a warranty claim unless notified of such claim within the warranty period. For the avoidance of doubt, the warranty applies only to the initial delivery of software under an ordering document and does not renew or reset, for example, with the delivery of (a) software updates or maintenance releases or (b) updated credential controls.
7.2. Exclusions. The warranty does not apply: (i) if the software is used with hardware or software not authorized in the documentation; (ii) if any modifications are made to the software by you or any third party; (iii) to defects in the software due to accident, abuse or improper use by you; or (iv) to any evaluation version or other software provided on a no charge or evaluation basis.
7.3. Disclaimer of warranties. Except as expressly set forth in this section 7, the software, including without limitation the third-party code, and all services are provided “as is.” Neither The Company nor its licensors makes any other warranties, conditions or undertakings, express or implied, statutory or otherwise, including but not limited to warranties of title, merchantability, fitness for a particular purpose or non-infringement. You may have other statutory rights. However, to the full extent permitted by law, the duration of statutorily required warranties, if any, will be limited to the warranty period.
During the applicable term of any term license for use of the software, and at no additional charge, The Company will provide remote support services ("support") by telephone and email only to assist with basic operation of the software. Support is not a substitute for training, and will be made available during The Company normal business hours only (currently, m-f, 9-5 eastern). The Company may limit the number of authorized support contacts who may contact The Company for support. Except for support, described above, The Company has no obligation to provide services in connection with installation or configuration of the software under this agreement.
The Company takes precautions to protect your information. When you submit sensitive information via the website, your information is protected both online and offline by The Company’ systems and policies. Such information is encrypted during transmission to The Company. You can verify this by looking for a closed lock icon at the bottom of your web browser, or looking for "https" at the beginning of the address of the web page.
The Company uses encryption to protect sensitive information transmitted online, and it also takes reasonable steps to protect your information offline. Only The Company personnel who need the information to perform a specific job (for example, billing or customer service) are granted access to personally identifiable information. The computers/servers in which we store personally identifiable information are kept in a secure environment.
10. PROFESSIONAL SERVICES
The Company will provide the number of person-days of professional consulting or training services (“professional services”) purchased in the applicable ordering document. The parties acknowledge that the scope of the professional services provided hereunder consists solely of: (a) assistance with software installation, deployment, and usage; and (b) training in use of the software. The Company hereby grants you a license right to use any deliverables (including any documentation, code, software, training materials or other work product) delivered as part of the professional services (“deliverables”) solely in connection with your permitted use of the software, and subject to all the same terms and conditions as apply to your software license (including in section 3.6 (license restrictions)), and subject to any additional terms and conditions provided with the deliverables or in the applicable ordering document. You may order professional services under a statement of work (“sow”) describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information. Each sow must be signed by both parties before The Company will commence work under such sow, at which point the sow becomes an ordering document. If the parties do not execute a separate sow, the services will be provided as stated on the ordering document. You will reimburse The Company for reasonable travel and lodging expenses as incurred.
11. LIMITATION OF REMEDIES; INDEMNIFICATION AND DAMAGES
11.1. Except for the parties’ indemnification obligations under section 12, a breach of section 13 (confidential information), section 3.6 (license restrictions), or 14 (export compliance), neither party will be liable for any loss of use, lost data, failure of security mechanisms, interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits or costs of cover), regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance.
11.2. Except for the parties’ indemnification obligations under section 12, a breach of section 13 (confidential information), section 3.6 (license restrictions), section 5 (payment), or 14 (export compliance), each party’s entire liability under this agreement will not exceed the fees paid or owed by you for the software or service directly causing the damages within the 12 months prior to the accrual of such claim.
11.3. The parties agree that the limitations specified in this section 11 will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.
12.1. The Company indemnification. The Company will defend you from and against any claim by a third party alleging that the software when used as authorized under this agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark and will indemnify and hold you harmless from and against any damages and costs awarded against you or agreed in settlement by The Company (including reasonable attorneys’ fees) resulting from such claim, provided that The Company has received from you: (i) prompt written notice of such claim (but in any event notice in sufficient time for The Company to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement of such claim; and (iii) all reasonably necessary cooperation from you. If your use of the software is (or in The Company’ opinion is likely to be) enjoined, if required by settlement or if The Company determines such actions are reasonably necessary to avoid material liability, The Company may, in its sole discretion: (a) substitute for the software substantially functionally similar programs and documentation; (b) procure for you the right to continue using the software; or if (a) and (b) are not commercially reasonable, (c) terminate the agreement and refund to you: (x) in case of a perpetual license, the license fee paid by you as reduced to reflect a five-year straight-line depreciation from the applicable license delivery date, or (y) in case of a term or subscription license fee, the amount of prepaid license fees for the software at issue, reduced to reflect the period of usage prior to such termination. The foregoing obligations of The Company will not apply: (1) if the software is modified by any party other than The Company, but only to the extent the alleged infringement is caused by such modification; (2) if the software is combined with products or processes not provided or authorized by The Company, but only to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the software; (4) to any unsupported release of the software; (5) to any third party code contained within the software; or (6) if you settle or make any admissions with respect to a claim without The Company’ prior written consent. This section 12.1 sets forth The Company’ and its licensors’ sole liability and your sole and exclusive remedy with respect to any claim of intellectual property infringement.
12.2. Indemnification by you. You will defend The Company from and against all claims, arising out of (a) any claim by third parties resulting from or relating to any breach by you, or anyone acting on your behalf, of the terms and conditions of this agreement; or (b) any claims, penalties, loss or damage arising out of a breach of your obligations under section 14 (export compliance), and will indemnify and hold The Company harmless from and against any damages and costs awarded against The Company or agreed in settlement by you (including reasonable attorneys’ fees) resulting from such claims, provided that you have received from The Company: (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement of such claim; and (iii) all reasonably necessary cooperation from The Company. You may not settle any such claim relating to the software without The Company’ prior written consent, which will not be unreasonably withheld, conditioned or delayed.
13. CONFIDENTIAL INFORMATION
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (as the “receiving party”) from the disclosing party (“disclosing party”) constitute the confidential property of the disclosing party (“confidential information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the receiving party to be confidential information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by The Company or its agents, the software, performance information relating to the software, and the terms of this agreement will be deemed confidential information of The Company regardless of any marking or further designation. Except as expressly authorized herein, the receiving party will hold in confidence and not use or disclose any confidential information. The receiving party’s nondisclosure obligation will not apply to information which the receiving party can document: (a) was rightfully in its possession or known to it prior to receipt of the confidential information; (b) is or has become public knowledge through no fault of the receiving party; (c) was rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the receiving party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the disclosing party, if lawful). The receiving party acknowledges that disclosure of confidential information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have under this agreement or at law.
14. EXPORT COMPLIANCE
You acknowledge that the software is subject to united states export control and economic sanctions laws, regulations and requirements and to import laws, regulations and requirements of certain foreign governments. You may not, and may not allow any third party to, export from the united states or allow the re-export or re-transfer of any part of the software: (i) to any country subject to export control embargo or economic sanctions implemented by any agency of the U.S. Government; (ii) to any person or entity on any of the U.S. Government’s lists of parties of concern (http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern); (iii) to any known end-user or for any known end-use related to the proliferation of nuclear, chemical or biological weapons or missiles, without first obtaining any export license or other approval that may be required by any U.S. Government agency having jurisdiction with respect to the transaction; or (iv) otherwise in violation of any export or import laws, regulations or requirements of any united states or foreign agency or authority.
15.1. Assignment. This agreement will bind and inure to the benefit of each party’s permitted successors and assigns. The Company may assign this agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of The Company’ assets or voting securities. You may not assign or transfer this agreement, in whole or in part, without The Company’ written consent except that you may assign your rights and obligations under this agreement, in whole but not in part, without The Company’ written consent in connection with any merger, consolidation, sale of all or substantially all of your assets, or any other similar transaction provided that: (i) the assignee is not a direct competitor of The Company; (ii) you provide prompt written notice of such assignment to The Company; (iii) the assignee is capable of fully performing your obligations under this agreement; and (iv) the assignee agrees to be bound by the terms and conditions of this agreement. Any attempt to transfer or assign this agreement without such written consent or the required written undertakings by you will be null and void. The Company reserves the right to modify/amend the terms of this agreement.
15.2. Severability. If any provision of this agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this agreement will otherwise remain in effect.
15.3. Governing law; jurisdiction and venue. Excluding conflict of laws rules, this agreement is to be governed by and construed under (a) the laws of the commonwealth of Massachusetts, USA. All disputes arising out of or in relation to this agreement must be submitted to the exclusive jurisdiction of the courts located in Middlesex or Suffolk county, Massachusetts. Nothing in this section 15.3 will restrict The Company’ right to bring an action (including for example a motion for injunctive relief) against you in the jurisdiction where your place of business is located, or in any jurisdiction to seek equitable relief. The united nations convention on contracts for the international sale of goods and the uniform computer information transactions act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this agreement.
15.4. Attorneys’ fees and costs. The prevailing party in any action to enforce this agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
15.5. Notices and reports. Any notice or report hereunder must be in writing. If to The Company, such notice or report must be sent to The Company at 1 Rogers St, Cambridge, Massachusetts, USA 02142 to the attention of “legal department.” If to you, such notice or report will be sent to the address you provided upon placing your order. Notices and reports will be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.
15.6. Amendments; waivers. No supplement, modification, or amendment of this agreement will be binding, unless executed in writing by a duly authorized representative of each party to this agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form, including any electronic invoicing portals and vendor registration processes, employed by you will supersede the terms and conditions of this agreement, and any such document relating to this agreement will be for administrative purposes only and will have no legal effect.
15.7. Entire agreement. This agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this agreement. Notwithstanding the foregoing, if you have entered into a separate written license agreement signed by The Company for use of the software, the terms and conditions of such other agreement will prevail over any conflicting terms or conditions in this agreement.
15.8. Independent contractors. The parties to this agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
15.9. Audit rights. Upon The Company’ written request, you must certify in a signed writing that your use of the software is in full compliance with the terms of this agreement (including any applicable volume or usage limitations) and provide, as applicable, a current list of authorized users. With reasonable prior notice, The Company may audit your use of the software, software monitoring system and records, provided such audit is during regular business hours. If such inspections or audits disclose that you have installed, accessed or permitted access to the software in a manner that is not permitted under this agreement, then The Company may terminate this agreement pursuant to section 6 (term and termination) and you will be liable for the reasonable costs of the audit in addition to any other fees, damages and penalties The Company may be entitled to under this agreement and applicable law.
15.10. Force majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
15.11. Government end-users. The software is commercial computer software. If the user or licensee of the software is an agency, department, or other entity of the united states government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this agreement in accordance with federal acquisition regulation 12.212 for civilian purposes and defense federal acquisition regulation supplement 227.7202 for military purposes. The software was developed fully at private expense. All other use is prohibited.
15.12. Third-party beneficiary.
GuestMetrics, LLC, its affiliates and its licensors may be third party beneficiaries of this agreement. No other third party is intended to be a beneficiary of this agreement entitled to enforce its terms directly.
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