END USER SOFTWARE LICENSE AGREEMENT
sisense ltd (“sisense”) IS WILLING TO LICENSE THE SOFTWARE AND THE DOCUMENTATION TO THE INDIVIDUAL OR
THE COMPANY IDENTIFIED DURING REGISTRATION (“CUSTOMER”) ON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS IN THIS END USER SOFTWARE LICENSE AGREEMENT (THE “AGREEMENT”). BY CLICKING ON THE "I ACCEPT" BUTTON OR DOWNLOADING, INSTALLING, COPYING AND/OR USING THE ACCOMPANYING VERSION OF THE SOFTWARE, CUSTOMER IS CONSENTING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THE PERSON INDICATING CUSTOMER’S ASSENT TO THE TERMS OF THIS AGREEMENT REPRESENTS THAT SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, CUSTOMER MAY CONTACT sisense CUSTOMER SERVICE (support@sisense.COM) TO OBTAIN A REFUND OF FEES PAID DIRECTLY TO sisense. IF CUSTOMER HAS ENTERED INTO A WRITTEN AGREEMENT WITH A RESELLER, OEM, RETAILER OR OTHER DISTRIBUTOR (IN EACH CASE, A “DISTRIBUTOR”) OF THE SOFTWARE THAT CONTAINS TERMS AND CONDITIONS AT LEAST AS PROTECTIVE OF sisense’S RIGHTS AND PROPERTY AS THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN THAT AGREEMENT (AND NOT THIS ONE) WILL GOVERN CUSTOMER’S RIGHTS TO THE SOFTWARE. IF CUSTOMER HAS ENTERED INTO A SEPARATE, PEN-SIGNED AGREEMENT WITH sisense GOVERNING CUSTOMER’S RIGHTS TO THE SOFTWARE, THEN THAT PEN-SIGNED AGREEMENT (AND NOT THIS AGREEMENT) WILL GOVERN CUSTOMER’S RIGHTS TO THE SOFTWARE.
1. DEFINITIONS:
“Accepted Order” means an order submitted by Customer for Software and/or services that has been
accepted by SiSense as evidenced by a written (including email) communication from SiSense.
“Content” means any data or content (such as dashboards or sample charts or data) that is included with the Software or provided by SiSense.
“Documentation” means the information about the Software provided to Customer along with the Software.
“Named User” means a person who has been registered with SiSense and who is authorized to access and use the applicable Software (i.e., either SiSense Viewer or Sisense Author).
“Permitted Number” means, (a) with respect to SiSense Author, the number of Named Users specified on an
Accepted Order to use SiSense Author, and (b) with respect to the SiSense Viewer, the number of Named Users specified on an Accepted Order to use SiSense Viewer.
“Software” means the software provided by SiSense in connection with this Agreement and any Update that SiSense makes commercially available during the time for which Customer has paid applicable license fees, but does not include Content.
“SiSense Author” means Software designated by SiSense as “SiSense Author.”
“SiSense Viewer” means Software designated by SiSense as “SiSense Viewer” or "SiSense Regular".
“Update” means any update or upgrade of the applicable item of Software, if any, which SiSense makes generally commercially available, in its sole discretion.
2. LICENSES:
2.1 SOFTWARE: Subject to the terms and conditions of this Agreement, SiSense grants Customer a limited,
Term (such term as set forth in the Accepted Order, and subject to the term in this agreement), non-exclusive, non-transferable, non-sublicenseable (except as expressly provided in this Section 2.1), non-assignable license for internal purposes only:
(a) SISENSE AUTHOR: to the extent an Accepted Order includes a license to SiSense Author, to reproduce SiSense Author solely as necessary to (A) install SiSense Author on the personal computers that are used by each Named User (including each Named User’s portable or home computer) and (B) enable each Named User to execute and use SiSense Author provided that only one copy of SiSense Author is used by each Named User at any given time (i.e., a Named User may not simultaneously use a copy of SiSense Author on her laptop and a copy of SiSense Author on her workstation computer); and
(b) SISENSE VIEWER:
(i) to reproduce SiSense Viewer solely as necessary to install SiSense Viewer on its personal computers for Customer’s execution and use; (ii) to reproduce SiSense Viewer solely as necessary to install one copy of SiSense Viewer on a network computer server owned and controlled by Customer for the purpose of enabling execution and use of such copy of SiSense Viewer (iii) to email or otherwise transfer SiSense Viewer of SiSense Software files to Named Users or people intended to become Named Users, for so long as their number does not exceed the Permitted Number.
(c) If a username, password, serial number, license key or other security device is provided to the End User for use with the Software, the End User may not share or transfer such security device with or to any other user of the Software or any other third part. Any other use of the Software by any third party, except as provided in this EULA, is strictly forbidden and is a breach of this EULA.
2.2 CONTENT: Subject to the terms and conditions of this Agreement, SiSense grants Customer a limited, term
(as set forth in the Accepted Order), non-exclusive, non-transferable and non-assignable license to (a) reproduce
and create derivative works of the Content, in each case solely by exercising the rights to SiSense Author granted in Section 2.1(a), (b) distribute Content Derivatives. “Content Derivative” means a reasonable subset of the Content
that is materially modified by Customer through the use of the Software or is combined with content provided by Customer through the use of the Software.
Customer's license to use the Software is limited to Named Users and any User to whom they send a SiSense Viewer, for internal purposes only, and cannot be shared with or used by any third party. Customer will not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software or any User Account in any way, including a service bureau; (ii) modify or make derivative works based upon the Software; (iii) create Internet "links" to the Software or "frame" or "mirror" any content on any other server or wireless or Internet-based device except as permitted by the Software; or (iv) disassemble, reverse engineer, analyze, decompile, modify, convert or translate the Software.
Customer may use the Software only for its internal business purposes and will not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws using SiSense Viewer; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (iv) interfere with or disrupt the integrity or performance of the Software or the data contained therein.
2.3 BACKUP COPY: Customer may make backup copies of the Software and Content.
2.4 DISTRIBUTOR PROVIDED SOFTWARE: If Customer obtained the Software from a Distributor, then:
(i) in the case of all Distributors, Section 5 of this Agreement does not apply and SiSense will have no maintenance and support obligations under this Agreement unless Customer’s agreement with Distributor specifically states SiSense will provide maintenance and support services to Customer under the terms of that agreement or Section 5, as the case may be, and (ii) in case that the Distributor distributes the Software bundled or integrated with the Distributor’s software, Customer may exercise the rights granted under this Agreement only with respect to data created by or used with the Distributor’s other software.
2.5 NAMED USERS: Customer will ensure that the total number (not the concurrent number) of Named Users for
each type of Software does not exceed the Permitted Number for such type of Software. Customer will ensure that only a single person uses a Named User account. Customer may transfer a Named User account from one person to another person only when the first person is no longer an employee of Customer or of Customer’s department that uses the Software; provided that Customer may not exceed the number of Named Users for which Customer has paid the applicable fees and, with respect to SiSense Author, Customer will inform SiSense of the name of the person who is the new Named User.
2.6 RESERVED RIGHTS/RESTRICTIONS: SiSense reserves all rights not expressly licensed under this Agreement.
Access or use of SiSense Author by Named Users exceeding the Permitted Number of Named Users for SiSense Author, by any means, is a violation of this Agreement. To avoid doubt, distribution of SiSense Viewer files to Named Users is permitted under this agreement, and also to other users with the intent of them becoming Named Users, so long as their number does not exceed the Permitted Number. In addition:
(a) no network use of any Software is authorized;
(b) Customer shall not modify or create derivative works of the Software, Content, or Sample Code;
(c) Customer shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source
code of the Software;
(d) Customer shall not unbundle the component parts of SiSense Author or of SiSense Viewer;
(e) Customer may not rent, lease, or sublicense Customer’s rights in the Software;
(f) Customer must retain the copyright and other proprietary notices on or in the Software.
3. DELIVERY, INSTALLATION AND ACCEPTANCE: SiSense has given the customer the Software and Documentation for download, via a secure, password-protected website, which shall be deemed delivery of the Software. Customer is responsible for installing the Software on its computers as permitted under this Agreement. The Software will be deemed irrevocably accepted upon delivery.
4. FEES: Customer will pay all applicable license fees identified in the registration process or set forth on an invoice
from SiSense, within thirty (30) days of delivery of the Software to Customer. Fees paid by Customer for the Software are nonrefundable and are not contingent on any additional services (including any professional services) or products to be provided. All payments must be made in U.S. dollars. Unless otherwise provided in an applicable invoice, the fees invoiced by SiSense exclude all applicable use and other taxes and all applicable export and import fees, customs duties and similar charges, and Customer is responsible, and will indemnify and hold SiSense harmless, for payment of all such taxes (other than taxes based on SiSense’s income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the fees hereunder or the delivery, license, maintenance and support services, or installation of the Software or any services.
If Accepted Order contains a per month charge, then the Fees are due and payable to SiSense at the same date each month, and is paid in advance by credit card in the first calendar day of each month. All fees are non-cancellable and non-refundable, in whole or in part, unless agreed otherwise in the Accepted Order. SiSense reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior written notice to you, by email.
5. MAINTENANCE and SUPPORT
5.1 MAINTENANCE: SiSense will provide Updates to the Software, when and if made commercially available,
and will make reasonable efforts to correct errors or deficiencies in the Software reported to SiSense by Customer. Customer acknowledges that SiSense is not required to correct every error or problem that Customer has with the Software.
5.2 SUPPORT: SiSense will provide reasonable technical assistance via telephone or email to Customer’s
designated support representative. Support services do not cover hardware, operating systems, networks or third party software. Customer acknowledges that any obligation SiSense may have to support a version of the Software may end upon availability of the Update. Customer may contact SiSense Customer Support, during any period for which Customer has paid for maintenance and support services, at: http://www.sisense.com/support/.
6. LIMITED WARRANTY: Except as is otherwise specified in this Agreement, SiSense warrants to Customer that the
Software, will perform substantially in accordance with the Documentation for the thirty (30) day period following the date on which SiSense delivers the Software to Customer (“Warranty Period”), when used on the recommended operating system and hardware configuration. Non-substantial variations of performance from the Documentation do not give rise to a warranty claim under this Agreement. To make a warranty claim, Customer must contact SiSense Customer Support (support@sisense.com) within the Warranty Period and, if the license to the Software was purchased from a Distributor, must provide proof of purchase. If the Software does not perform substantially in accordance with the Documentation, the entire liability of SiSense and Customer’s exclusive remedy shall be limited to either,
at SiSense’s option, (i) the replacement of the Software, or (ii) a full refund to Customer of the fees Customer paid to SiSense for the Software, in which case this Agreement shall terminate.
7. DISCLAIMER: EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6 ABOVE, SISENSE
MAKES NO WARRANTIES WITH RESPECT TO THE SOFTWARE, DOCUMENTATION OR CONTENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, INTERFERENCE WITH CUSTOMER’S QUIET ENJOYMENT, SYSTEM INTEGRATION OR WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
8. LIMITATION OF LIABILITY: IN NO EVENT WILL SISENSE OR ITS LICENSORS (IF ANY) BE LIABLE TO
CUSTOMER OR ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE OR
SERVICES, LOST PROFITS, LOST DATA, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT OR CUSTOMER’S USE OF THE SOFTWARE OR DOCUMENTATION, EVEN IF SISENSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS PROVIDED IN SECTION 15 OR FOR SISENSE’S OBLIGATIONS UNDER SECTION 9, SISENSE’S AGGREGATE LIABILITY TO CUSTOMER UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT CUSTOMER PAID TO SISENSE DURING THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
9. INDEMNIFICATION:
9.1 INDEMNITY: SiSense shall defend at its own expense Customer from and against any action brought by a third
party to the extent that the action is based upon a claim that SiSense Author or SiSense Server, as delivered, infringes such third party’s US copyrights or misappropriates any trade secrets recognized as such under the Uniform Trade Secret Law (“Claim(s)”), and SiSense will pay those costs and damages that a court or arbitrator finally awards in any such action that are specifically attributable to such Claim or those costs and damages that SiSense agrees to in a monetary settlement of any such Claim(s).
9.2 CONDITIONS: The foregoing obligations are conditioned on Customer: (i) giving SiSense prompt written notice
of such Claim; (ii) allowing SiSense sole control in the defense thereof and any related settlement negotiations, and (iii) fully cooperating with SiSense, at SiSense’s request and reasonable expense, in such defense and all related negotiations.
9.3 EXCLUSIONS: Notwithstanding the foregoing, SiSense will have no obligation under this Section 9 or
otherwise with respect to any infringement claim based upon (i) any combination of any Software with other products,
equipment, software, or data not supplied by SiSense, (ii) any use or reproduction of any release of any Software other than the most current release made available to Customer, or (iii) any modification of any Software by any person other than SiSense or its authorized contractors.
9.4 MITIGATION: If any Software or any part thereof becomes the subject of an infringement claim, or in SiSense’s
opinion is likely to become the subject of such a claim, then, SiSense may, at its option and expense, (a) replace or modify the Software, with functionally equivalent software, to make it non-infringing, (b) procure for Customer the right to continue using the Software pursuant to this Agreement, or, if “(a)” and “(b)” are not commercially practicable, terminate the license with respect to the infringing Software in which case, SiSense will refund to Customer any payments of license fees made by Customer for the infringing Software, pro rated over three (3) years, plus any unused pre-paid support or maintenance fees attributable to the infringing Software.
10. EXPORT RULES: Customer agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by applicable export rules. All rights to use the Software under this Agreement are granted on the condition that such rights are forfeited if Customer fails to comply with the terms of this Agreement. Customer will indemnify, defend and hold harmless SiSense from and against any claims, penalties, loss or damage arising out of a breach of Customer’s obligations under this Section 10.
11. REGISTRATION INFORMATION: IN CONNECTION WITH CUSTOMER’S INSTALLATION AND
REGISTRATION OF THE SOFTWARE, THE SOFTWARE REPORTS TO SISENSE CERTAIN INFORMATION THAT CUSTOMER PROVIDES DURING THE INSTALLATION OR REGISTRATION PROCESS, AS WELL AS COMPUTER CONFIGURATION INFORMATION.
12. INTELLECTUAL PROPERTY OWNERSHIP: The Software, Content, Documentation and any
copies thereof, and all intellectual property rights therein, are owned by SiSense and its licensors. The structure, sequence, organization and code of the Software constitute valuable trade secrets of SiSense and its suppliers. The Software is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions.
To avoid doubt, the End User has no ownership rights in the Software. The Software, Content, Documentation and the intellectual property rights associated therewith are and will remain at all times the sole and exclusive property of SiSense and the End User has no right, title or interest in or to the Software, Content, Documentation or the intellectual property associated therewith, except as expressly set forth in this Agreement. This EULA does not grant the End User any rights in the trademarks or service marks of SiSense, all of which remain the exclusive property of SiSense. The End User may not alter or remove trademarks, service marks or other markings from the Software, Content, Documentation or their packaging.
This EULA grants the End User the right to use the Software for internal purposes only. The End User may not use the Software to operate a subscription service, service bureau, Software as a Service (SaaS) model, or other similar access fee-based services for the benefit of any third party without the prior express written consent of SiSense. The End User must protect the Software and Documentation in a manner consistent with SiSense’s rights expressed in this EULA. The End User may not sublicense, modify, distribute, or create derivative works based on the Software or any part thereof. The End User may not reverse engineer, decompile, disassemble, translate, or adapt the Software, nor shall the End User attempt to create the source code from the object code of the Software unless explicitly permitted by applicable and mandatory law.
The End User acknowledges and agrees that the intellectual property associated with the Software and the Documentation, and any other nonpublic information of a technical or commercial nature concerning SiSense, the Software and the Documentation disclosed to the End User in connection with this EULA constitute SiSense's proprietary information and trade secrets, and the End User agrees to hold such information in strict confidence.
13. TERM AND TERMINATION: The term of this agreement will be effective upon registration and thereafter will continue on a month-to-month or annual basis, depending upon the Accepted Order until terminated with notice by either party or terminated as specified below, or upon expiration of the term in the Accepted Order without renewal. If an Accepted Order is made, this agreement requires a valid credit card number of the Customer to be in force.
Customer may terminate this Agreement by deleting all copies of the Software and Content installed on Customer’s computers or within Customer’s possession or control and immediately notifying SiSense, for any reason. In this case, billing for the last monthly cycle will remain in force and then the customer shall owe nothing to SiSense. SiSense may terminate this Agreement immediately if Customer (a) breaches any material term of this Agreement and does not cure such breach within ten (10) business days of receiving written notice thereof, or (b) ceases business operations, assigns its assets for the benefit of creditors, becomes bankrupt, or otherwise seeks to dispose of all or substantially all of its assets, or (c) if customer's account falls into arrears (is past due) – SiSense can suspend the account and customer agrees that payments owed will be collected from their credit card . Upon termination, Customer shall immediately cease all use of, and delete or destroy all copies of the Software, Content and the Documentation in Customer’s possession or control. The following provisions shall survive any termination of this Agreement: Sections 1, 2.6, 4, 6, 7, 8, 9, 10, 11, 12, 14 and 15.
14. GENERAL PROVISIONS
14.1 GOVERNING LAW: This Agreement will be governed by and construed in accordance with the laws of the
State of California, without giving effect to any principles that may provide for the application of law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer submits to the exclusive jurisdiction and venue of the federal and state courts located in Santa Clara, California, for any disputes arising out of or related to this Agreement.
14.2 ASSIGNMENTS: Customer may not assign or transfer, by operation of law or otherwise, any of its rights
under this Agreement to any third party without SiSense’s prior written consent, except to the surviving entity in the event of a merger, acquisition, or change of control of Customer provided that such assignment does not result in an increase in use of the Software beyond the authorized and licensed use and Customer notifies SiSense of such assignment. SiSense will have the right to terminate this Agreement upon assignment of this Agreement to a competitor of SiSense. Any attempted assignment or transfer in violation of the foregoing will be void. SiSense will have the right to assign or delegate all or a portion of this Agreement without Customer’s prior written consent in connection with a merger, reorganization, acquisition, or sale of all or substantially all its assets.
14.3 WAIVERS: All waivers must be in writing. Any waiver or failure to enforce any provision of this
Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.4 CONSTRUCTION: The headings of Sections of this Agreement are for convenience and are not to be used
in interpreting this Agreement.
14.5 REMEDIES: Customer acknowledges that the Software contains valuable trade secrets and proprietary
information of SiSense, that any actual or threatened breach of Sections 2 or 3 may constitute immediate, irreparable harm to SiSense for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach, and waives any requirement by SiSense for posting bond. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
14.6 NOTICES: All notices, consents, and approvals under this Agreement must be delivered in writing by
courier, by electronic facsimile (fax), or by certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth beneath such party’s signature, and will be effective upon the earlier to occur of receipt or three (3) business days after being deposited in the mail as required above. Either party may change its address by giving notice of the new address to the other party.
14.7 COMPLIANCE WITH LICENSES: Customer agrees that upon request from SiSense or SiSense’s
authorized representative, Customer will, within thirty (30) days of such a request, fully document and certify that use of any and all Software at the time of the request is in conformity with Customer’s valid licenses from SiSense.
14.8 SEVERABILITY: If any part of this Agreement is found void and unenforceable, it will not affect the
validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms.
15. SPECIFIC PROVISIONS FOR PRE-RELEASE AND TRYOUT SOFTWARE: NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, TO THE EXTENT SISENSE PROVIDES ANY BETA, ALPHA, PRE-RELEASE, TRYOUT, NO-CHARGE, OR PRODUCT SAMPLER SOFTWARE (“GRATIS SOFTWARE”): (A) IT IS PROVIDED TO CUSTOMER “AS-IS” AND WITH ALL FAULTS; (B) SISENSE DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO GRATIS SOFTWARE, (C) SISENSE WILL NOT HAVE ANY LIABILITY WHATSOEVER WITH RESPECT TO GRATIS SOFTWARE, AND (D) SISENSE MAY COLLECT ADDITIONAL REGISTRATION INFORMATION, AS PROVIDED IN THE SISENSE PRIVACY POLICY AVAILABLE AT WWW.SISENSE.COM AND SUBJECT TO PERIODIC REVISION BY SISENSE). Customer acknowledges that SiSense has no express or implied obligation to Customer to announce or introduce the Gratis Software and SiSense may not introduce a product similar to or compatible with the Gratis Software. Accordingly, Customer acknowledges that any research, development or other work that Customer performs regarding the Gratis Software or any product associated with the Gratis Software is done entirely at Customer’s own risk. During the term of this Agreement, if requested by SiSense, Customer will provide feedback to SiSense regarding the Gratis Software, including error or bug reports and Customer hereby assigns to SiSense all right, title and interest in and to such feedback. Customer will discontinue any use of, and destroy any copies of, any and all Gratis Software, upon the earlier of: (a) notice from SiSense, (b) thirty (30) days after SiSense’s first commercial shipment of the commercially released Software replacing the Gratis Software, or (c) the time-out date for the Gratis Software. CUSTOMER ACKNOWLEDGES THAT THE GRATIS SOFTWARE MAY INCLUDE A TIME BOMB THAT CAUSES THE GRATIS SOFTWARE TO CEASE OPERATION AS OF THE TIME-OUT DATE.
If Customer has any questions regarding this Agreement please use the address and contact information included with this product to contact SiSense.
“SiSense” and “SiSense Software” are trademarks of SiSense Ltd