End User License Agreement (EULA)

Blog PostJune 4, 2026

Cav End User License Agreement (EULA)

This End User License Agreement (the “EULA” or “Agreement”) is entered into between Caveonix, Inc. (“Seller”) and the entity that is identified as the buyer at the time of placement of an order (“Order”) for the purchase of a Subscription (“Buyer”), and sets forth the terms and conditions applicable to the licensing of the Software, whether deployed via an installable image or as Software-as-a-Service (“SaaS”), purchased through an Order via Seller’s website, available at: https://cavhq.ai/blog/eula (“Website”). This EULA is effective on the date that the Order is placed for Buyer’s purchase of the Subscription (“Effective Date”), and by placing an Order or otherwise agreeing to this EULA (including via clickthrough acceptance), Buyer agrees to be bound by this EULA.
Please note that this EULA is subject to change by Seller in its discretion at any time. When changes are made to this EULA, Seller will make a copy of the updated EULA available to Buyer via email or on the Website. If Seller makes material changes to this EULA, Seller will provide written notice of such material changes and attempt to notify Buyer by sending an email notice to Buyer. Any changes to the EULA will be effective upon Buyer’s consent to and acceptance of the updated EULA if Seller provides a mechanism for Buyer’s immediate acceptance in a specified manner (e.g., clickthrough acceptance), which Seller may require before further access to and/or use of the Software is permitted.
Buyer and Seller may be referred to collectively as the “Parties” or individually as a “Party”.
Definitions.
“Affiliate” means, with respect to a Party, any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with such Party.
“Buyer Data” means all data, records, files, information or other content, including text, sound, video, images and software, that is (a) input or uploaded to, or collected, received, processed, generated or stored by, the Software in connection with this Agreement, or (b) otherwise derived from (a).
“Buyer Materials” means any infrastructure, hardware, systems, property, items or materials made available or furnished by Buyer to Seller for Seller’s use in the performance of its obligations under this Agreement.
“Contractor” means any third party contractor of Buyer or other third party performing services for Buyer, including outsourcing suppliers.
“Documentation” means the user guides, manuals, instructions, specifications, notes, documentation, printed updates, “read-me” files, release notes and other materials related to the Software (including all information included or incorporated by reference in the applicable Agreement), its use, operation or maintenance, together with all enhancements, modifications, derivative works, and amendments to those documents, that Seller publishes or provides under this Agreement.
“Personnel” means a Party or its Affiliate’s directors, officers, employees, non-employee workers, agents, auditors, consultants, contractors, subcontractors and any other person performing services on behalf of such Party (but excludes the other Party and any of the foregoing of the other Party).
“Proprietary Rights” means all intellectual property and proprietary rights throughout the world, whether now known or hereinafter discovered or invented, including, without limitation, all: (a) patents and patent applications; (b) rights associated with works of authorship, including copyrights, moral rights and mask work rights; (c) trade secrets; (d) trademarks and service marks; (e) rights in data and databases; and (f) analogous rights throughout the world.
“SaaS Service” means the hosted, subscription-based service provided by Seller that enables Buyer to access and use the Software via a remote, internet-accessible environment, together with the systems, infrastructure and technology used by Seller to deliver such service to Buyer.
“Services” means Seller’s provision of: (1) Installed Software and/or SaaS Service; and (2) any other services set forth in the applicable Order, including, without limitation, AI Services, Training Services and/or Support Services.
“Software” means the software program identified in the applicable Order and any other software, including any patches, bug fixes, corrections, remediation of security vulnerabilities, updates, upgrades, modifications, enhancements, derivative works, new releases and new versions of the Software that Seller makes available under this Agreement.
“Subcontractor” means any third party subcontractor or other third party to whom Seller delegates any of its duties and obligations under this Agreement.
“Support Services” means the support and/or maintenance services for the Software that Seller provides, or is obligated to provide, as described in in the Agreement or the relevant Order.
“System Data” means data and data elements (excluding Buyer Data) collected by the SaaS Service or Seller’s computer systems regarding configuration, environment, usage and performance of the SaaS Software or SaaS Service that may be used to generate logs, statistics and reports regarding performance, availability, integrity and security of the SaaS Software.
“Training Services” means the instructional and educational services provided by Seller as may be described in an applicable SOW or Order, including training related to the implementation, configuration, administration, and use of the Software or SaaS Service, together with any associated training materials and documentation. Training Services may be delivered remotely or on-site and are limited to the scope expressly set forth in the applicable SOW or Order.
“User” means an employee, non-employee worker or other member of Buyer or any of its Affiliates’ workforces, Contractor of Buyer or any of its Affiliates or other person authorized by Buyer or any of its Affiliates to access and use the Software as permitted under this Agreement.
Provision of Software and Services.
Software Subscription. Seller will supply and sell to Buyer, and Buyer will license and purchase, respectively, an offer for the Software defining a term, licensed Software components, unit definition and quantity, deployment method, price, and metering method (a “Subscription”). A Subscription, as described in the applicable Order, may be for Software deployed via an installable image (“Installed Software”) or Software deployed via SaaS Service (“SaaS Software”), and may be referred to as the “Subscribed Software” or as the “Licensed Materials”. Software may be targeted for specific geographic regions, and Support Services may vary by geography. A Subscription may be provided on a Metered Pricing, Time Period Pricing or other basis through the functionality available through the order and fulfillment Services. The fee or rate for the Subscription is set forth in the applicable Subscription. For Subscriptions provided on a Metered Pricing basis, upon request by Buyer, Seller will provide sufficient documentation from its books and records to allow Buyer to verify the metered usage charged to Buyer for the Subscription.
SaaS Service. If Buyer purchases a SaaS Subscription, Seller will provide the SaaS Service to Buyer in accordance with the Subscription promptly following purchase of the Subscription and continuing until completion of the Subscription. Seller will provide Buyer all license keys, access credentials and passwords necessary for access and use of the Software and SaaS Service (“Keys”) as set forth in the Subscription.
Support Services. Seller will provide sufficient Documentation to allow a reasonably competent user to access and use the Software. Seller will provide Support Services to Buyer in accordance with the support plan set forth or incorporated into the Subscription.
Training Services. Where the Parties have agreed to Seller’s provision of Training Services, the details of such Training Services will be set out in an Order or a mutually executed statement of work (“SOW”). The Order or SOW, as applicable, will include: (a) a description of the Training Services; (b) the schedule for the performance of the Training Services; and (c) the fees applicable for the performance of the Training Services. Each Order or SOW, as applicable, will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order or SOW, as applicable, expressly states that it supersedes specific language in the Agreement. Except as otherwise set forth on the applicable Order or SOW, all deliverables, work product, and other results and proceeds of any Training Services will be owned and retained by Seller.
AI Services. Seller may offer Buyer, from time to time, various services, features, tools, functionalities or capabilities in connection with the Subscription that utilize artificial intelligence or similar technologies (“AI Services”). Notwithstanding anything to the contrary in this Agreement, any access to, or use of, the AI Services by Buyer is and shall be subject to the CavAI Terms, available at https://cavhq.ai/blog/aipolicy (the “CavAI Terms”). Buyer may, at its sole discretion, opt into or out of accessing or using the AI Services at any time.
License Grant and Other Rights.
Licensed Materials.
If the Subscription is for Installed Software, Seller hereby grants to Buyer, subject to Section 3.1.3, a nonexclusive, worldwide (subject to Section 13.6), nontransferable (except in connection with an assignment permitted under Section 13.2 or a divestiture permitted under Section 13.3), non-terminable (except as provided in Section 11) license to deploy, operate and use the Installed Software in Buyer’s own environment or on an environment that it subscribes to such as for a cloud service provider or public cloud account.
If the Subscription is for SaaS Software, Seller hereby grants to Buyer, subject to Section 3.1.3, a nonexclusive, worldwide (subject to Section 13.6), nontransferable (except in connection with an assignment permitted under Section 13.2 or a divestiture permitted under Section 13.3), non-terminable (except as provided in Section 11) license to access and use the SaaS Software.
Buyer may use the Software only in support of the internal operations of Buyer’s and its Affiliates’ business(es) or organization(s), in connection with Buyer’s and its Affiliates’ products and services (but, for clarity, not as a stand-alone product or service of Buyer or its Affiliates), and in connection with Buyer’s and its Affiliate’s interactions with Users.
Buyer may make a reasonable number of copies of the Documentation as necessary to use such Software, and as applicable, the Installed Image, in accordance with the rights granted under this Agreement, provided that Buyer includes all proprietary legends and other notices on all copies. Seller retains all rights not expressly granted to Buyer under this Agreement.
Users. Buyer may permit Users to use the Installed Software and/or SaaS Software as contemplated by this Agreement. With respect to Users: (a) Buyer remains primarily responsible for the acts and omissions of its Users and their use of the Licensed Materials; and (b) Buyer agrees to be directly liable for any act or omission by such User to the same degree as if the act or omission were performed by Buyer such that a breach by a User of the provisions of this Agreement will be deemed to be a breach by Buyer. The performance of any act or omission under this Agreement by a User for, by or through Buyer will be deemed the act or omission of Buyer.
Restrictions. Except as may be expressly permitted by applicable law, Buyer agrees that it will not, and any other User of any Licensed Materials, in whole or in part, will not: (a) copy the Licensed Materials, in whole or in part; (b) distribute copies of Licensed Materials, in whole or in part, to any third party; (c) modify, adapt, translate, make alterations to or make derivative works based on Licensed Materials or any part thereof; (d) except as permitted by Law, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software; (e) use, rent, loan, sublicense, lease, distribute or attempt to grant other rights to any part of the Licensed Materials to third parties; (f) use the Licensed Materials to act as a consultant, service bureau or application service provider; (g) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Licensed Materials; or (h) permit access of any kind to the Licensed Materials to any third party, other than Users.
Open Source Software. Software may contain or be provided with components that are subject to the terms and conditions of “open source” software licenses (“Open Source Software”). To the extent required by the license to which the Open Source Software is subject, 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 attribution, access to source code, modification and reverse-engineering.
High-Risk Activities. The Software is not developed or intended for use in high-risk, hazardous environments requiring fail-safe performance, including without limitation in the operation of nuclear facilities, aircraft navigation or control systems, air traffic control, or weapons systems, or any other application in which the failure of the Software could lead to severe physical or environmental damages (“High Risk Activities”). Buyer will not use the Software for High Risk Activities.
Payment.
Fees. Buyer shall pay to Seller, without offset or deduction, the fees and expenses as determined under any Orders and this Agreement. Seller reserves the right to increase the fees under each Order following the Initial Subscription Term, and each Renewal Subscription Term thereafter, but must provide notification of such increases at least thirty (30) days prior to the end of the Initial Order Term or then-current Renewal Subscription Term. Except as otherwise set forth on an Order, all such fees shall be due and payable within thirty (30) calendar days after an invoice is issued by Seller.
Taxes. Each Party will be responsible, as required under applicable Law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest and other additions thereto) that are imposed on that Party upon or with respect to the transactions and payments under this Agreement. Applicable taxes and duties may be due in addition to the fees or rates payable by Buyer. Seller may charge and Buyer will pay, where applicable, national, state or local sales or use taxes, or value added or goods and services tax, or withholding or other taxes (“Taxes”). Where required by local legislation, a partner of the Seller may charge for Taxes in its own name for Subscriptions made by Buyers on that partner’s marketplace, and Buyer will pay such Taxes. Buyer will receive a compliant tax invoice, where required. Seller will be responsible for all other taxes or fees arising (including interest and penalties) from transactions and the documentation of transactions under this Agreement. Upon request, Buyer will provide such information to Seller as reasonably required to determine whether Seller is obligated to collect Taxes from Buyer. Seller will not collect (or will refund to Buyer), and Buyer will not be obligated to pay (or will be entitled to a refund from Seller), any such Tax or duty for which Buyer furnishes Seller a properly completed exemption certificate or a direct payment permit certificate or for which Seller claims an available exemption from Tax. Seller will provide Buyer with any forms, documents or certifications as may be required for Buyer to satisfy any information reporting or withholding tax obligations with respect to any payments under this Agreement.
Ownership.
Licensed Materials. Subject to the licenses granted herein, Seller will retain all right, title and interest it may have in and to the Licensed Materials, including all Proprietary Rights therein. Nothing in this Agreement will be construed or interpreted as granting to Buyer any rights of ownership or any other proprietary rights in or to the Licensed Materials.
Feedback. If Buyer or any of its Users provides any suggestions, ideas, enhancement requests, recommendations or feedback regarding any of Seller’s intellectual property, including, without limitation, the Licensed Materials (“Feedback”), Seller is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Buyer hereby assigns to Seller on Buyer’s behalf, and on behalf of its Users, all right, title, and interest in, and Seller is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Proprietary Rights contained in the Feedback, for any purpose whatsoever, although Seller is not required to use any Feedback.
Warranties.
Mutual Warranties. Each Party represents and warrants that: (a) it will comply with all applicable international, national, state and local laws, ordinances, rules, regulations and orders, as amended from time to time (“Laws”) applicable to such Party in its performance under this Agreement; (b) it has full power and authority to enter in and perform this Agreement and that the execution and delivery of this Agreement has been duly authorized; and (c) this Agreement and such Party’s performance hereunder will not breach any other agreement to which the Party is a party or is bound or violate any obligation owed by such Party to any third party.
Buyer Warranties. Buyer represents and warrants that it will not intentionally use the SaaS Software or SaaS Service to: (a) store, download or transmit infringing or illegal content, or any viruses, “Trojan horses” or other harmful code; (b) engage in phishing, spamming, denial-of-service attacks or fraudulent or criminal activity; (c) interfere with or disrupt the integrity or performance of the Software or data contained therein or on Seller’s system or network; or (d) perform penetration testing, vulnerability testing or other security testing on the Software or Seller’s systems or networks or otherwise attempt to gain unauthorized access to the Software or Seller’s systems or networks.
Limited Seller Warranty. Seller represents and warrants that: (a) the Software, and as applicable, the SaaS Service, will conform, in all material respects, to the Documentation, in the case of SaaS Software for the term of the Subscription and, in the case of Installed Software, until ninety (90) days after Buyer’s license of such Installed Software or the commencement of a Subscription; and (b) the Services will be performed in a professional manner with a level of care, skill and diligence performed by experienced and knowledgeable professionals in the performance of similar services.
Remedies. If any Software or Services fails to conform to the warranty in Section 6.3, Seller shall, at its option and expense, promptly correct the Software and re-perform the Services as necessary to conform to the warranties. If Seller does not correct the Software or re-perform the Services to conform to the warranties within a reasonable time, not to exceed thirty (30) days, as Buyer’s sole remedy and Seller’s exclusive liability (except as provided in Section 10), Buyer may terminate the Subscription and this Agreement and receive a refund of any prepaid fees prorated for the unused portion of the Subscription Term; and the portion of the Subscription’s nonconformance, as measured from the time Buyer reports the noncompliance to Seller through Seller’s support channel.
Warranty Exclusions. Seller will have no liability or obligation with respect to any warranty to the extent attributable to any: (a) use of the Software by Buyer in violation of this Agreement or applicable Law; (b) unauthorized modifications to the Licensed Materials made by Buyer or its Personnel; (c) use of the Software in combination with third-party equipment or software not provided or made accessible by Seller or contemplated by the Agreement or Documentation; or (d) use by Buyer of Software in conflict with the Documentation, to the extent that such nonconformity would not have occurred absent such use or modification by Buyer.
Disclaimer. EXCEPT FOR THE WARRANTIES SPECIFIED IN THIS AGREEMENT, SELLER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE LICENSED MATERIALS OR THE SERVICES, AND SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. SELLER DOES NOT WARRANT: (A) THAT THE LICENSED MATERIALS WILL MEET BUYER’S REQUIREMENTS; OR (B) THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
Confidentiality.
Confidential Information. “Confidential Information” means any nonpublic information directly or indirectly disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) or accessible to the Receiving Party pursuant to this Agreement that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential, including without limitation technical data, trade secrets, know-how, research, inventions, processes, designs, drawings, strategic roadmaps, product plans, product designs and architecture, security information, marketing plans, pricing and cost information, marketing and promotional activities, business plans, customer and supplier information, employee and User information, business and marketing plans, and business processes, and other technical, financial or business information, and any third party information that the Disclosing Party is required to maintain as confidential. Confidential Information will not, however, include any information which: (a) was publicly known or made generally available to the public prior to the time of disclosure; (b) becomes publicly known or made generally available after disclosure through no fault of the Receiving Party; (c) is in the possession of the Receiving Party, without restriction as to use or disclosure, at the time of disclosure by the Disclosing Party; (d) was lawfully received, without restriction as to use or disclosure, from a third party (who does not have an obligation of confidentiality or restriction on use itself); or (e) is developed by the Receiving Party independently from this Agreement and without use of or reference to the Disclosing Party’s Confidential Information or Proprietary Rights. Except for rights expressly granted in this Agreement, each Party reserves all rights in and to its Confidential Information. The Parties agree that the Licensed Materials are Confidential Information of Seller.
The Parties will maintain as confidential and will avoid disclosure and unauthorized use of Confidential Information of the other Party using reasonable precautions. Each Party will protect such Confidential Information with the same degree of care that a prudent person would exercise to protect its own confidential information of a like nature, and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof or access thereto. Each Party will restrict Confidential Information to individuals who need to know such Confidential Information and who are bound to confidentiality obligations at least as protective as the restrictions described in this Section 7. Except as necessary for the proper use of the Software, the exercise of a Party’s rights under this Agreement, performance of a Party’s obligations under this Agreement or as otherwise permitted under this Agreement or the CavAI Terms, neither Party will use Confidential Information of the other Party for any purpose except in fulfilling its obligations or exercising its rights under this Agreement or as expressly authorized pursuant to the CavAI Terms. Each Party will promptly notify the other Party if it becomes aware of any unauthorized use or disclosure of the other Party’s Confidential Information, and reasonably cooperate with the other Party to limit disclosure.
Compelled Disclosure. If and to the extent required by law, including regulatory requirements, discovery request, subpoena, court order or governmental action, the Receiving Party may disclose or produce Confidential Information but will give reasonable prior notice (and where prior notice is not permitted by applicable Law, notice will be given as soon as the Receiving Party is legally permitted) to the Disclosing Party to permit the Disclosing Party to intervene and request protective orders or confidential treatment therefor or other appropriate remedy regarding such disclosure. Disclosure of any Confidential Information pursuant to any legal requirement will not be deemed to render it non-confidential, and the Receiving Party’s obligations with respect to Confidential Information of the Disclosing Party will not be changed or lessened by virtue of any such disclosure.
NDA. Buyer and Seller may agree that a separate nondisclosure agreement between Buyer and Seller (or the respective Affiliates of Buyer and Seller) (“NDA”) will apply to the Subscription, in which case the terms and conditions thereof are incorporated herein by reference and will apply instead of Sections 7.1 through 7.3 of this Section 7.
Remedies. Each Party agrees that in the event of a breach or threatened breach of this Section 7, the non-breaching Party will be entitled to injunctive relief against the breaching Party in addition to any other remedies to which the non-breaching Party may be entitled. Either Party may terminate this EULA immediately upon written notice to the other Party if the other Party breaches any of the provisions set forth in this Section 7.
Data Rights. This Section 8 applies to Subscriptions for SaaS Software and SaaS Service only:
Buyer Data.
Buyer is responsible for obtaining all necessary consents, authorizations and rights and providing all necessary notifications in order to provide Buyer Data to Seller and for Seller to use Buyer Data in the performance of its obligations in accordance with the terms and condition of this Agreement. Buyer will not collect, process, store or transmit through the Software or Services, and Buyer Data must not include or contain data that subjects Buyer or Seller to data privacy Laws based on the storage or processing of Buyer Data by the SaaS Service (where compliance with such Laws is not addressed by this Agreement).
Buyer hereby grants to Seller a nonexclusive, nontransferable (except in connection with an assignment permitted under Section 13.2), revocable license, to reproduce and use Buyer Materials and Buyer Data solely for the purpose of, and to the extent necessary for, performing Seller’s obligations under this Agreement. Buyer is and will continue to be the sole and exclusive owner of all Buyer Materials, Buyer Data and other Confidential Information of Buyer, including the results of processing or manipulating any Buyer Data by Seller and any aggregated data, de-identified data or other data derivatives developed, prepared or created by or through the Software or any Services. Except as expressly authorized by Buyer pursuant to the CavAI Terms or otherwise in writing, in no event will Seller access, use or disclose to any third party any Buyer Data or any Buyer Materials for any purpose whatsoever (including, without limitation, the marketing of Seller’s other products or services) other than as necessary for the purpose of providing the Software and Services to Buyer and performing its obligations under this Agreement. Except as expressly authorized by Buyer pursuant to the CavAI Terms or otherwise in writing, Seller will not aggregate, anonymize or create any data derivatives of Buyer Data other than as necessary to provide the Software or Services and to perform its obligations in accordance with the terms and conditions of this Agreement.
Buyer will have full access to, and has the right to review and retain, the entirety of Buyer Data contained in the Software. At no time will any computer or electronic records containing Buyer Data be stored or held in a form or manner not readily accessible to Buyer through the ordinary operation of the Software. Seller will provide to Buyer all passwords, codes, comments, keys and documentation necessary for such access and use of the Software. Buyer will be entitled to delete, or have Seller delete, Buyer Data as expressly specified by Buyer.
System Data. Seller may collect and use System Data internally to provide and improve the Software and Services and Seller’s other products and services, provided that (a) Seller will not target any data analysis at, or otherwise use System Data to derive or attempt to derive information regarding, Buyer and its Affiliates, their businesses, operations, finances, users, customers, prospective customers, suppliers or other persons interacting with Buyer and its Affiliates; and (b) Seller will not target any development efforts, marketing, communications or promotions at Buyer and its Affiliates or any other person on the basis of the intended recipient’s relationship with Buyer or any of its Affiliates. Seller will not use or disclose System Data for any other purpose unless otherwise agreed in writing by the Parties.
Use of Other Data. Notwithstanding the foregoing, nothing in this Agreement will restrict: (a) Seller’s use of statistics and aggregate data derived from System Data where the derived data does not identify or permit, alone or in conjunction with other data, identification, association, or correlation of or with (i) Buyer, its Affiliates, Users, customers, suppliers or other persons interacting with Buyer and its Affiliates; or (ii) any device (e.g. computer, mobile telephone, or browser) used to access or use the Software as originating through Buyer or its Affiliates or interacting with Buyer or its Affiliates; or (b) either Party’s use of any data, records, files, content or other information related to any third party that is collected, received, stored or maintained by a Party independently from this Agreement.
Security of Buyer Data. Seller will, consistent with industry standard practices, implement and maintain physical, administrative and technical safeguards and other security measures designed to: (a) maintain the security and confidentiality of Buyer Data; and (b) protect Buyer Data from known or reasonably anticipated threats or hazards to its security, availability and integrity, including accidental loss, unauthorized use, access, alteration or disclosure. Seller will safeguard Buyer Data with at least the degree of care it uses to protect its own sensitive information of a like nature and no less than a reasonable degree of care.
Business Continuity. Seller will establish, implement, invoke when needed, and comply with a business continuity plan (“Business Continuity Plan”) that incorporates Seller’s contingency plans, recovery plans (including recovery point objective and recovery time objective) and risk controls designed to enable Seller’s continued performance under this Agreement consistent with any applicable recovery time objective specified therein and to recover Buyer Data consistent with the recovery point objective specified therein in the event that any of Seller’s hardware, software networks, systems or other facilities experience a security breach or any significant interruption or impairment of operation or any loss, deletion, corruption or alteration of data.
Limitations of Liability.
Disclaimer; General Cap. SUBJECT TO SECTION 9.2, IN NO EVENT WILL (a) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (b) EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT OR OTHER LEGAL THEORY, EXCEED THE FEES AND OTHER AMOUNTS PAID BY BUYER UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE DAMAGES.
Exceptions. THE EXCLUSIONS OF OR LIMITATIONS ON LIABILITY SET FORTH IN SECTION 9.1 WILL NOT APPLY TO: (a) A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD OR VIOLATION OF LAW; (b) A PARTY’S DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 10; AND (c) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7.
Indemnification.
Seller Indemnity. Seller will, at its expense, indemnify, defend and hold harmless Buyer and its Affiliates and their respective officers, directors, employees, agents and representatives (collectively “Buyer Indemnified Parties”) from and against any and all claims, actions, proceedings and suits brought by a third party, and any and all liabilities, losses, damages, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees) (“Claims”), to the extent arising out of or relating to an allegation of any infringement, misappropriation or violation of any Proprietary Rights by the Licensed Materials or Buyer’s exercise of its rights under this Agreement. Notwithstanding the foregoing, Seller will have no liability or obligation under this Section 10.1 with respect to any infringement Claim to the extent attributable to any: (a) modifications to the Licensed Materials not provided by Seller or its Personnel; (b) use of the Software in combination with third-party equipment or software not provided or made accessible by Seller or not contemplated by the Agreement or Documentation; or (c) use of the Licensed Materials by Buyer in breach of this Agreement (excluding over-deployment of Software which is subject to Section 11.3), in each case where such infringement Claim would not have arisen absent such modification or use (each, an “Exclusion”). This Section 10.1 states the sole and exclusive remedy of Buyer, and entire liability of Seller, with respect to infringement of Proprietary Rights of third parties by any Licensed Materials or any part thereof or by its operation by Buyer.
Buyer Indemnity. Buyer will, at its expense, indemnify, defend and hold harmless Seller and its Affiliates and their respective officers, directors, employees, agents and representatives (collectively “Seller Indemnified Parties”) from and against any and all Claims to the extent arising out of or relating to an allegation of: (a) any Exclusion; (b) any violation of any Proprietary Rights by the Buyer Materials or Buyer Data or Seller’s use thereof as permitted under this Agreement; and (c) Buyer’s breach of Section 3.3.
Process. The Party(ies) seeking indemnification pursuant to this Section 10 (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) will give the other Party (the “Indemnifying Party”) prompt notice of each Claim for which it seeks indemnification, provided that failure or delay in providing such notice will not release the Indemnifying Party from any obligations hereunder except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Parties will give the Indemnifying Party their reasonable cooperation in the defense of each Claim for which indemnity is sought, at the Indemnifying Party’s expense. The Indemnifying Party will keep the Indemnified Parties informed of the status of each Claim. An Indemnified Party may participate in the defense at its own expense. The Indemnifying Party, without the Indemnified Parties’ prior written consent, (a) will not enter into any settlement that (i) includes any admission of guilt or wrongdoing by any Indemnified Party, (ii) imposes any financial obligations on any Indemnified Party that Indemnified Party is not obligated to pay under this Section 10, (iii) imposes any non- monetary obligations on any Indemnified Party, and (iv) does not include a full and unconditional release of any Indemnified Parties; and (b) will not consent to the entry of judgment, except for a dismissal with prejudice of any Claim settled as described in (a). The Indemnifying Party will ensure that any settlement into which it enters for any Claim is made confidential, except where not permitted by applicable Law.
Infringement Remedy. If the Software or other Licensed Materials is held, or in Seller’s opinion is likely to be held, to infringe, misappropriate or violate any Proprietary Rights, or, if based on any claimed infringement, misappropriation or violation of Proprietary Rights, an injunction is obtained, or in Seller’s opinion an injunction is likely to be obtained, that would prohibit or interfere with Buyer’s use of the Licensed Materials under this Agreement, then Seller will at its expense either: (a) procure for Buyer the right to continue using the affected Licensed Materials in accordance with the license granted under this Agreement; or (b) modify or replace the affected Licensed Materials so that the modified or replacement Licensed Materials are reasonably comparable in functionality, interoperability with other software and systems, and levels of security and performance and do not infringe, misappropriate or violate any third-party Proprietary Rights. If, in such circumstances, Seller does not successfully accomplish any of the foregoing actions on a commercially reasonable basis, either Party may terminate the Subscription and this Agreement and Seller will refund to Buyer all prepaid, unused amounts for the Subscription as well as fees paid for the Subscription attributable to the period of actual or alleged infringement. For clarity, Seller’s indemnification and defense obligations under this Section include infringement Claims based on use of the Licensed Materials by Buyer Indemnified Parties following an initial infringement Claim except that, if Seller responds to an infringement Claim by accomplishing the solution in (b), Seller will have no obligation to defend and indemnify Buyer for infringement Claims arising from Buyer’s use after the accomplishment of (b) of the infringing Licensed Materials for which Seller provided modified or replacement Licensed Materials.

Term and Termination.
Term. This term of this Agreement will commence on the Effective Date and will continue in full force and effect, unless earlier terminated in accordance with the Agreement (“Term”). Unless otherwise stated in the applicable Order, the Subscription will continue in full force and effect for one (1) year (“Initial Subscription Term”), unless earlier terminated in accordance with the Agreement. Thereafter, the Order will automatically renew for additional terms of one (1) year (each, a “Renewal Subscription Term”), unless either party gives written notice of non-renewal to the other party no later than ninety (90) days prior to the expiration of the then-current Initial Subscription Term or Renewal Subscription Term.
Termination for Cause. Either Party may terminate the Subscription or this Agreement if the other Party materially breaches this Agreement and does not cure the breach within thirty (30) days following its receipt of written notice of the breach from the non-breaching Party. However, Seller’s exclusive remedy for Buyer’s over-deployment of the Software is payment of the applicable incremental fees for such use, provided that Buyer pays such incremental fees within 30 days of being invoiced by Seller for such amounts. Termination by Seller pursuant to this Section does not prejudice Buyer’s right, and Seller’s obligation, to extract or assist with the retrieval or deletion of Buyer Data as set forth in Section 11.3.2 following such termination.
Effect of Termination.
Upon termination or expiration of the Subscription or this Agreement, Buyer’s right to use the Software licensed under such Subscription will terminate, and Buyer’s access to the Software and Service provided under such Subscription may be disabled and discontinued. Termination or expiration of any Subscription purchased by Buyer from Seller will not terminate or modify any other Subscription purchased by Buyer from Seller.
Within 30 days following termination or expiration of any SaaS Subscription for any reason and on Buyer’s written request at any time before termination or expiration, if Buyer is able directly to retrieve or delete Buyer Data from the SaaS Service, then for a period of thirty (30) days following termination or expiration of this Agreement for any reason, Buyer may retrieve or delete Buyer Data itself with support from Seller as reasonably requested by Buyer. If Buyer retrieves or deletes Buyer Data itself, Seller will assist Buyer, as reasonably requested by Buyer, in validating whether the retrieval or deletion was successful. Buyer Data must be provided or extractable in a then- current, standard nonproprietary format. Notwithstanding anything herein to the contrary, Seller’s duty to enable Buyer’s retrieval or deletion of the Buyer Data pursuant to this Section 11.3.2 will not be discharged due to the occurrence of any Force Majeure event. Following Buyer’s retrieval or deletion of Buyer Data and Seller’s validation thereof, Seller will permanently delete and remove Buyer Data (if any) from its electronic and hard copy records and will, upon Buyer’s request, certify to such deletion and removal to Buyer in writing. If Seller is not able to delete any portion of the Buyer Data, it will remain subject to the confidentiality, privacy and data security terms of this Agreement.
Upon termination or expiration of the Subscription or this Agreement, each Receiving Party shall, at the Disclosing Party’s election, promptly return to the Disclosing Party or destroy (and permanently delete from all electronic media) all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control, including all copies of the Documentation, and shall, upon request, certify such return or destruction in writing to the Disclosing Party; provided, however, that (a) the Receiving Party may retain one (1) archival copy of such Confidential Information solely to the extent required to comply with the Receiving Party’s applicable document retention policies or legal or regulatory obligations, and any such retained copy shall remain subject to the confidentiality obligations set forth in Section 7 for so long as it is retained; and (b) the retrieval, deletion and removal of Buyer Data from the SaaS Service shall be governed exclusively by Section 11.3.2.
Sections 1 (Definitions), 3.3 (Restrictions), 4 (Payment), 5 (Ownership), 6.6 (Disclaimer), 7 (Confidentiality), 9 (Limitations of Liability), 10 (Indemnification), 11.3 (Effect of Termination), 12 (Insurance), and 13 (General) and any perpetual license granted under this Agreement, together with all other provisions of this Agreement that may reasonably be interpreted or construed as surviving expiration or termination, will survive the expiration or termination of this Agreement for any reason; but the nonuse and nondisclosure obligations of Section 7 will expire five (5) years following the expiration or termination of this Agreement, except with respect to, and for as long as, any Confidential Information constitutes a trade secret.

Insurance.
Seller shall, at its own expense, obtain and maintain in full force and effect throughout the Term, commercially reasonable insurance coverage, including (i) Commercial General Liability, (ii) Professional Liability (Errors and Omissions to include Cyber Liability), each with limits of not less than $1,000,000 per claim or occurrence and in the aggregate; and Workers Compensation Coverage as required by applicable law. Insurance shall be written by a carrier having an A.M. Best rating of A- or better, or an equivalent rating by another rating agency.
Upon reasonable request, Seller shall provide Buyer with a certificate of insurance evidencing such coverage. Seller may satisfy the foregoing requirements through a combination of primary and excess or umbrella policies or through self-insurance, provided that the overall level of coverage is consistent with the requirements set forth herein.
General.
Applicable Law. This Agreement will be governed and interpreted under the laws of the State of Delaware, excluding its principles of conflict of laws. The Parties agree that the exclusive forum for any action or proceeding will be in Kent County, Delaware, and the Parties consent to the jurisdiction of the state and federal courts located in Kent County, Delaware. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Assignment. Neither Party may assign or transfer this Agreement or any rights or delegate any duties herein without the prior written consent of the other Party, which will not be reasonably withheld, delayed or conditioned. Notwithstanding the foregoing, and without gaining the other Party’s written consent, either Party may assign this Agreement, in whole or part, and delegate its obligations to its Affiliates or to any entity acquiring all or substantially all of its assets related to the Agreement or the assigning Party’s entire business, whether by sale of assets, sale of stock, merger or otherwise. Any attempted assignment, transfer or delegation in contravention of this Section 13.2 will be null and void. This Agreement will inure to the benefit of the Parties hereto and their permitted successors and assigns.
Divestiture. If Buyer divests a portion of its business to one or more organizations that are not Affiliates of Buyer, or if an entity ceases to be an Affiliate of Buyer (such divested business unit or such entity, a “Divested Affiliate”), Seller agrees to allow such Divested Affiliate to continue to use the Software as if it were a Buyer Affiliate for the remainder of the Subscription, or to transfer to a new Subscription.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof, and there are no other representations, understandings or agreements between the Parties relating to the subject matter hereof. NEITHER PARTY WILL BE BOUND BY, AND EACH SPECIFICALLY OBJECTS TO, ANY PROVISION THAT IS DIFFERENT FROM OR IN ADDITION TO THIS AGREEMENT (WHETHER PROFFERED ORALLY OR IN ANY QUOTATION, PURCHASE ORDER, INVOICE, SHIPPING DOCUMENT, ONLINE TERMS AND CONDITIONS, ACCEPTANCE, CONFIRMATION, CORRESPONDENCE, OR OTHERWISE), UNLESS SUCH PROVISION IS SPECIFICALLY AGREED TO IN A WRITING SIGNED BY BOTH PARTIES.
Force Majeure. Neither Party will be liable hereunder for any failure or delay in the performance of its obligations in whole or in part, on account of riots, fire, flood, earthquake, explosion, epidemics, war, strike or labor disputes (not involving the Party claiming force majeure), embargo, civil or military authority, act of God, governmental action or other causes beyond its reasonable control and without the fault or negligence of such Party or its Personnel and such failure or delay could not have been prevented or circumvented by the non-performing Party through the use of alternate sourcing, workaround plans or other reasonable precautions (a “Force Majeure Event”).
Export Laws. Each Party will comply with all applicable customs and export control laws and regulations of the United States and/or such other country, in the case of Buyer, where Buyer or its Users use the Software or Services, and in the case of Seller, where Seller provides the Software or Services. Each Party certifies that it and its Personnel are not on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s list of Denied Persons. Neither Party will export, re-export, ship, or otherwise transfer the Licensed Materials, Services or Buyer Data to any country subject to an embargo or other sanction by the United States.
Government Rights. As defined in FARS §2.101, the Software and Documentation are “commercial items” and according to DFARS §252.227 and 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation”. Consistent with FARS §12.212 and DFARS §227.7202, any use, modification, reproduction, release, performance, display or discourse of such commercial software or commercial software documentation by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the term of this Agreement.
Headings. The headings throughout this Agreement are for reference purposes only, and the words contained therein will in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
No Third-Party Beneficiaries. This Agreement is solely between Buyer and Seller. Except as specified in Section 10 with respect to Buyer Indemnified Parties and Seller Indemnified Parties, nothing express or implied in this Agreement is intended to confer, nor will anything herein confer, upon any person other than the Parties and the respective successors or assigns of the Parties, any rights, remedies, obligations or liabilities whatsoever.
Notices. To be effective, notice under this Agreement must be given in writing. Each Party consents to receiving electronic communications and notifications from the other Party in connection with this Agreement. Each Party agrees that it may receive notices from the other Party regarding this Agreement: (a) by email to the email address designated by such Party as a notice address in the Order; (b) by personal delivery; (c) by registered or certified mail, return receipt requested; or (d) by nationally recognized courier service. Notice will be deemed given upon written verification of receipt.
Nonwaiver. Any failure or delay by either Party to exercise or partially exercise any right, power or privilege under this Agreement will not be deemed a waiver of any such right, power or privilege under this Agreement. No waiver by either Party of a breach of any term, provision or condition of this Agreement by the other Party will constitute a waiver of any succeeding breach of the same or any other provision hereof. No such waiver will be valid unless executed in writing by the Party making the waiver.
Publicity. Neither Party will issue any publicity materials or press releases that refer to the other Party or its Affiliates, or use any trade name, trademark, service mark or logo of the other Party or its Affiliates in any advertising, promotions or otherwise, without the other Party’s prior written consent.
Relationship of Parties. The relationship of the Parties will be that of independent contractors, and nothing contained in this Agreement will create or imply an agency relationship between Buyer and Seller, nor will this Agreement be deemed to constitute a joint venture or partnership or the relationship of employer and employee between Buyer and Seller. Each Party assumes sole and full responsibility for its acts and the acts of its Personnel. Neither Party will have the authority to make commitments or enter into contracts on behalf of, bind, or otherwise oblige the other Party.
Severability. If any term or condition of this Agreement is to any extent held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement will not be affected thereby, and each term and condition will be valid and enforceable to the fullest extent permitted by law.
Confidential Communication Channel. Buyer may communicate any concerns or complaints or make reports of unethical behavior anonymously through the following URL: https://caveohr.limesurvey.net/438845?lang=en.