IMPORTANT – READ BEFORE INSTALLING OR OPERATING THIS PRODUCT
YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE BY INSTALLING, HAVING INSTALLED, ACCESING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE SOFTWARE.
This End User License Agreement (“Agreement”) applies to the Product(s) you have licensed from us. This License is a legal agreement between us and the single entity that has licensed the Products from us ("you" or "Customer"). All references to “Aarna,” “we” or “us” in this License will be deemed to be a reference to Aarna.ml, Inc.
1. Products and Services
1.1 Software Products. Aarna will provide Aarna's commercial software products to Customer for use subject to the license and other terms and conditions set forth in this Agreement and as described in an Order Form.
1.2 Services. In addition to the Products, Aarna will provide Support Services and standard training for the Products, as specified in an applicable Order Form. Aarna may also provide Professional Services consisting of consulting and training on the use of Aarna Products, which must be set forth in a detailed Statement of Work. All Products and Services provided by Aarna to Customer are provided subject to the terms and conditions of this Agreement.
2. Order Forms and Statements of Work
2.1 Order Forms and Statements of Work. Products and Support Services provided by Aarna to Customer shall be described in an Order Form setting forth the quantity, pricing, term, and a description of the Products licensed to Customer. Services other than standard Support Services, such as Professional Services and any related Deliverables, shall be set forth, described, and specified in detail in a Statement of Work. Both Order Forms and SOWs shall be in writing and signed by authorized representatives of the parties. The terms and conditions of the Agreement apply to each Order Form and SOW. If an Order Form or SOW contain provisions inconsistent with this Agreement, the provisions of the Order Form or SOW shall prevail with regard to the inconsistency only. This Agreement by itself does not obligate a party to provide any Products or Services or to enter into any Order Form or SOW.
2.2 Amendment. Any modifications to the agreement, Order Form or SOW, must be made by way of a written amendment signed by both parties that describes the changes and any related cost adjustments.
2.3 Completion of Deliverables. All Deliverables provided to Customer as a result of Professional Services will be deemed complete and accepted upon delivery unless, within 5 business days after delivery, Customer gives Aarna written notice describing in detail the aspects of the Deliverables that do not meet the specifications set forth in the applicable SOW. Upon receipt of such written notice, Aarna will use commercially reasonable efforts to correct any deficiencies. If Aarna is unable to correct the deficiencies in the Deliverables within a reasonable period of time, Aarna or Customer may terminate the relevant SOW and Aarna shall provide a refund of any monies paid for the Deliverables that could not be corrected. This Section 1.4 sets forth Customer's sole remedy with regard to any deficiencies in Deliverables.
3. License Grant and Restrictions
3.1 License. Subject to the terms and conditions of this Agreement, Aarna grants to Customer, for the duration of the term designated in the applicable Order Form, a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, license to install, use, access, display and run the Products identified in the applicable Order Form, in Object Code form, for Customer's internal use.
3.2 Documentation. Customer may use the user manuals, technical manuals, and any other materials provided by Aarna, in printed or electronic form, that describe the installation, operation, use or technical specifications of the Products (“Documentation”) solely in support of the licensed use of the Products in accordance with the license.
3.3 Updates; Subscriptions. Use of the Products under is limited to the version of the Product and any specified updates set forth in the applicable Order Form unless Customer has entered into a Subscription. Use of versions or releases of the Software that are not specified in the Order Form is prohibited. Products licensed to Customer for a Subscription term will be provided with updates to the licensed Products during the Subscription term. Upon expiration of an initial Subscription term, Customer's subscription for the Products, if any, will automatically renew for additional one-year terms unless either party provides written notice of non-renewal at least 30 days prior to the end of the then-current term, or unless earlier terminated in accordance with the terms of this Agreement. Unless provided otherwise in the applicable Order Form, licenses and Subscriptions are for the duration of one year.
3.4 Software as a Service. Aarna may provide Customer with access to use Products accessible through a cloud-based computing environment as a service ("SaaS"). SaaS is provided on a Subscription basis and is subject to the terms and conditions of this Agreement along with the Subscription details set forth in an Order Form. SaaS based Products are subject to Customer's acceptance of the terms and conditions of the applicable cloud platform provider. The applicable cloud platform provider is solely responsible for data and network security of the cloud platform.
3.5 Restrictions. Except as expressly provided in this Agreement, Customer shall not itself, or through any parent, subsidiary, affiliate, agent or other third party: (a) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any Products or the Documentation to a third-party; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Products; (c) allow access or permit use of the Products or Documentation by any third party except authorized third-party contractors solely to provide services to Customer, provided that Customer shall be liable for all acts and omissions of such authorized third-party contractors; (d) circumvent any license keys embedded within the Products; (e) modify or create derivative works based upon the Products or Documentation; (f) disclose the results of any benchmark test of the Products to any third-party; or (g) change any proprietary rights notices which appear in the Products or Documentation.
3.6 Open Source Software. The Products and Deliverables may include individual open source software components, each of which has its own copyright and its own applicable license conditions. Open source software components are licensed to Customer under the terms of the applicable open source license and copyright notices that can be found in the applicable open source license file, the Documentation, or other materials accompanying the Products and Deliverables.
4. Compensation and Payment Terms
4.1 Fees. Customer shall pay all amounts specified in the relevant Order Form or SOW, including, without limitation, compensation for Services and all reasonable out-of-pocket expenses incurred in the performance of the Services, and for any non-standard expenses incurred at the written request of Customer.
4.2 Purchase Orders. Customer may issue a Purchase Order (“PO”) equal to the amount specified in the Order Form or SOW. If Customer does not issue a PO, Customer shall provide Customer's billing contact and address. PO's shall be deemed by the parties to be issued for the convenience of the Customer and shall not amend, add, or vary the terms and conditions of this Agreement, any Order Forms, or SOWs.
4.3 Invoicing. Unless otherwise agreed, all fees will be invoiced in full and in advance upon receipt of a signed Order Form from Customer. All travel and living expenses related to the delivery of the Professional Services are to be paid by the Customer and will be invoiced separately at cost.
4.4 Payment. Payment shall be due 30 days from the date of invoice. All payments shall be made in U.S. dollars. Payments made later than the due date will accrue interest from the date due to the date paid at the lesser rate of 1% per month or the maximum allowed by applicable law. If a payment is late, Aarna shall be entitled to suspend performance or, at its option, terminate the relevant license or SOW on written notice.
4.5 Taxes. Payments made by Customer to Aarna are exclusive of applicable taxes. Customer will pay and bear the liability for any taxes associated with the delivery of all Services, including sales, use, excise, and value added taxes (VAT), but excluding: (i) taxes on Aarna’s net income, capital, or gross receipts, or (ii) any withholding tax imposed if such tax is allowed as a credit against U.S. income taxes of Aarna, such as a withholding tax on a royalty payment made by Customer where required by law. If Customer is required to withhold taxes, Customer will furnish Aarna receipts substantiating such payment. If Aarna is required to remit any tax or duty on behalf or for the account of Customer, Customer will reimburse Aarna within 30 days after Aarna notifies Customer in writing of such remittance. Customer will provide a valid tax exemption certificate in advance of any remittance otherwise required to be made by Aarna on behalf or for the account of Customer, where such certificate is applicable.
5. Customer Responsibilities
5.1 Assumptions and Cooperation. Compensation for Professional Services will be based upon information Customer provides to Aarna and upon any assumptions set forth in the SOW. Customer acknowledges that if information provided by Customer related to Professional Services is incomplete or inaccurate, then the parties will modify the applicable SOW pursuant to Section 1.3 above. Customer will provide reasonable cooperation to assist Aarna in Aarna’s performance of the Services.
5.2 Project Managers. Each party shall appoint a project manager (“Project Manager”) for each SOW. Each party may replace its designated Project Manager upon written notice to the other party.
5.3 Customer Systems. Customer is solely responsible for back up to its computer systems, including its computer programs, data, and files, and to take all other actions necessary to protect its systems and data.
5.4 Site Regulations. Aarna employees performing Services on Customer premises shall observe reasonable safety and security protocols of which Aarna is notified in writing.
6. Intellectual Property
6.1 Ownership. Subject to the license to use the Products set forth in this Agreement, Aarna retains all right, title and interest in Aarna's trademarks, patents, copyrights, trade secrets, and other intellectual property rights, including but not limited to all rights, title an interest in and to any Code, Documentation, or other materials developed, delivered and or used by Aarna in the performance of this Agreement.
6.2 Protection of Deliverables. Customer shall protect all Aarna Products and Deliverables provided under this Agreement from unauthorized copying or use.
6.3 Third Party Materials. Nothing in this Agreement or any related agreement shall restrict or limit or otherwise affect any rights or obligations Customer may have, or conditions to which Customer may be subject, under any applicable open source licenses to any open source code contained in Deliverables or any third-party licenses for third-party Code contained in Deliverables.
7. Warranty
7.1 Warranty for Services. Aarna warrants that Professional Services shall be performed in a professional manner in accordance with generally accepted industry standards. Unless otherwise stated in the SOW, this warranty shall be effective for 30 days following completion of the Professional Services in accordance with Section 1.4. Upon receipt of written notice of breach of this warranty, Aarna’s obligation is to correct the Professional Services so that any Deliverables comply with this warranty. If Aarna is unable to correct the Services within a reasonable period of time, Customer’s sole remedy is to terminate the relevant SOW and obtain a refund of the amount Customer paid to Aarna for the Services Aarna is unable to correct.
7.2 Exclusions. This warranty excludes non-performance issues that result from third-party hardware or firmware malfunction or defect; software not developed by Aarna; incorrect data or incorrect procedures used or provided by Customer or a third party; changes to Customer’s environment; or defects which are outside the reasonable control of Aarna. Customer will reimburse Aarna for its reasonable time and expenses for any Services provided at Customer’s request to remedy excluded non-performance issues. This warranty shall immediately cease if Customer or any third party modifies any portion of a Deliverable and/or modifies Customer’s system so that a Deliverable is no longer functional or appropriate.
7.3 Disclaimer of Additional Warranties.
EXCEPT AS EXPRESSLY DESCRIBED IN THIS SECTION 7, AARNA MAKES NO WARRANTY OF ANY KIND. AARNA DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS WITH RESPECT TO SERVICES AND DELIVERABLES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, GOOD TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. AARNA DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES PROVIDED WILL BE FREE OF DEFECTS OR ERRORS.
8. Confidential Information
8.1 “Confidential Information” means (i) the terms of this Agreement, Order Form, and any SOW, (ii) Customer documents, files and data which Aarna has accessed in performing the Services, (iii) Aarna proprietary information including Aarna Code, pricing, and technical information and (iv) any other information that the disclosing party (“Discloser”) desires to protect against unrestricted disclosure by the receiving party (“Recipient”) and that (a) if disclosed in tangible or electronic form, is marked in writing as “confidential” or (b) if disclosed orally or visually, is designated at the time of disclosure as “confidential.”
8.2 Exclusions. Confidential Information will not include any information that is (i) already in possession of Recipient without obligation of confidence; (ii) independently developed by Recipient; (iii) becomes publicly available without breach of this Agreement; (iv) rightfully received by the Recipient from a third party without obligation of confidence; or (v) released for disclosure by the Discloser with its written consent.
8.3 Exceptions. When disclosure may be required by law in connection with a legal proceeding in a court or other governmental authority, Recipient may disclose Confidential Information provided that the Recipient (a) gives Discloser prompt notice of the order; (b) limits the scope of disclosure to what is reasonably required by the applicable authority; and
(c) provides Discloser with an opportunity to challenge the release of the Confidential Information or obtain a protective order prior to disclosure.
8.4 Obligations. The Recipient of Confidential Information agrees to exercise reasonable care to protect Confidential Information from unauthorized disclosure and use, which care shall not be less than the Recipient exercises to protect its own confidential information. The Recipient may disclose Confidential Information only to its employees or agents who need to know such information and shall contractually require such employees or agents to comply with the obligations of confidentiality.
8.5 Expiration of Duty. Recipient's duty to hold Confidential Information in confidence expires five (5) years after termination of the Agreement or, in the case of Confidential Information received under a Statement of Work, the applicable Statement of Work; however, the requirements of this Section 8 shall survive with regard to information consisting or comprised of trade secrets until no longer deemed trade secrets under applicable law and expiration of this duty shall not modify other restrictions on the Recipient or rights of the Discloser, such as any patent or copyright rights or additional obligations with regard to Customer confidential information.
9. Indemnification and Insurance
9.1 Infringement Indemnity. Subject to the limitations in Section 10, Aarna will defend and indemnify Customer against any third party claim that Customer’s exercise of its licensed use rights under this Agreement with respect to a Deliverable infringes upon such third party’s rights under a copyright, trademark, or patent or misappropriates the subject matter of such third party's trade secret, under the laws of the country in which Customer takes delivery of the Deliverable (“IP Infringement Claim”) provided that: (i) Customer promptly notifies Aarna in writing of an IP Infringement Claim such that Aarna is not materially prejudiced by any delay in such notification; (ii) Aarna has sole control of the defense and all related settlement negotiations and (iii) Customer provides Aarna with reasonable assistance (for which Aarna will pay Customer’s reasonable out of pocket costs) in defending the IP Infringement Claim. Subject to the limitations in Section 10, Aarna will pay any damages, costs, and expenses finally awarded (or agreed to by settlement) for any such IP Infringement Claim. If Customer desires separate legal representation in any IP Infringement Claim, Customer will be responsible for the costs and fees of Customer’s separate counsel.
9.1.1 Remedy. Should any Deliverable provided by Aarna under this Agreement, or the operation of any such Deliverable, become, or in Aarna's opinion is likely to become, the subject of infringement of any copyright, patent, trademark, or misappropriation of any trade secret, Aarna’s sole obligation and Customer’s exclusive remedy under this Section shall be, at Aarna’s option and expense, either to procure for Customer the right to continue using the Deliverable, to replace or modify the Deliverable so that it becomes non-infringing, or to grant Customer a refund of the amounts paid by Customer.
9.1.2 Disclaimer. Aarna shall have no responsibility for infringement, including obligations of indemnification under this Section, to the extent the infringement results from (a) compliance with Customer's designs or instructions, (b) a modification not authorized in writing by Aarna, (c) use or combination with third-party software, equipment, or data, (d) non-licensed use, (e) third- party software provided under this Agreement, or (f) open source technology incorporated in or provided with Services or Deliverables.
9.2 General Indemnity. Each party (the “Indemnifying Party”) will indemnify, defend, and hold the other party, its officers, directors, employees, and shareholders, harmless from any final court judgment (or settlement to which the parties have agreed) arising from personal injury or tangible property damage which is determined by a court to be caused by the negligence or willful misconduct of the Indemnifying Party or its authorized employees relating to this Agreement. The Indemnifying Party’s liability under this Section shall be reduced proportionally to the extent that any act or omission of the other party, or its employees or agents, contributed to such liability. “Tangible property” does not include electronic files, data, or other electronic information.
9.3 Insurance. Each party will maintain reasonable amounts of insurance, which shall at least meet any limits required by law, for public liability, property damage, employer’s liability, and workers compensation.
10. Limitation of Liability
10.1 LIABILITY. A PARTY’S LIABILITY FOR ANY CLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY SOW SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE AMOUNT PAID, AND ANY AMOUNTS OWED BUT NOT YET PAID, FOR THE SERVICES. THE LIMITATION IN THIS SECTION 10.1 DOES NOT APPLY TO A PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, VIOLATIONS OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT OR THE WILLFUL MISCONDUCT OF A PARTY.
10.2 DISCLAIMER. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (INCLUDING LOSS OF PROFITS OR BUSINESS) ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY SOW, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Limitation of Action. No action arising out of this Agreement, regardless of the form of action, may be brought by Customer more than one year after the action accrued.
11. Term and Termination
11.1 Term. This Agreement will become effective upon the Effective Date and will remain in effect for two (2) years. This Agreement will be automatically renewed for additional two (2) year terms until either party gives written notice otherwise at least thirty (30) days prior to the end of the then-current term.
11.2 Termination For Cause. Either party may terminate the Agreement or any SOW upon written notice for the substantial breach by the other party of any material term, if such breach is not cured within 30 days following receipt of written notice of breach from the non-breaching party. Termination shall be in addition to any other remedies that may be available to the non-breaching party.
11.3 Effect of Termination. Unless otherwise agreed to in writing, upon termination of the Agreement, any SOW then in effect will immediately terminate.
11.4 Survival of Terms. The provisions of this Agreement and each SOW which by their nature extend beyond termination will survive termination or expiration of this Agreement or the relevant SOW.
12. Definitions
The following definitions apply to this Agreement and any related Order Forms and Statements of Work.
12.1 “Code” means computer-programming code and, unless specifically stated otherwise in the Agreement, use of the term "Code" refers to Binary Code only and does no not mean Source Code. “Binary Code” or "Object Code" means Code that loads and executes without further processing by a software compiler or linker or that results when Source Code is processed by a software compiler. “Source Code” means human-readable form of Code and related system documentation, including comments and any procedural language.
12.2 “Deliverable” means custom development work created and delivered by Aarna to Customer for Customer's use to fulfill Professional Services specified in a SOW, excluding Aarna Products, open source software, third-party software, and any Aarna IP, which remain the property of Aarna or its licensors.
12.3 "Order Form" is a written order document entered into by Aarna and Customer for the purchase of Product licenses and Support Services, which describes the Products, Support Service levels, term, pricing, and related information.
12.4 “Products” means the software products licensed by Aarna to Customer as listed on the applicable Order Form and any Updates to such Products provided to Customer under this Agreement.
12.5 “Professional Services” mean the consulting and training services provided by Aarna under this Agreement as set forth in a Statement of Work.
12.6 "Services" means collectively the Support Services and the Professional Services.
12.7 “Statement of Work” or “SOW” means a written document executed by the parties that includes at least the following information: (a) a description of the Professional Services and Deliverables; (b) the parties’ responsibilities; and (c) the fees and method of calculation.
12.8 "Subscription" means the term license to the Products and Support Services during such term as described in Section 2 and the applicable Order Form.
12.9 “Support Services” mean the standard maintenance and technical support services provided by Aarna under this Agreement as further described in an applicable Order Form.
13 General Provisions
13.1 Notice. Unless otherwise agreed to by the parties, all notices shall be deemed effective when made in writing and received by either (i) registered mail, (ii) certified mail, return receipt requested, (iii) overnight mail, or (iv) fax with confirmation, addressed and sent to the receiving party’s address specified in the introductory paragraph to this Agreement.
13.2 Force Majeure. If either party is prevented from performance of its obligations hereunder by causes beyond its reasonable control, including, but not limited to labor disputes, civil commotion, war, governmental regulations, casualty, inability to obtain materials or services, or acts of God, such defaulting party shall be excused from performance for the period of the delay and for a reasonable time thereafter. This section shall not apply to the payment of fees due.
13.3 Independent Contractor. This Agreement shall not create an employment or agency relationship or a partnership between the parties or their other respective employees or agents. Each party shall be solely responsible for payment of its employees’ wages, including withholding of income taxes and social security, workers compensation, and all other employment benefits.
13.4 Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without reference to rules regarding conflicts of laws. Any dispute arising out of this Agreement shall be submitted to a state or federal court sitting in Santa Clara, California, which shall have the exclusive jurisdiction regarding the dispute and to whose jurisdiction the parties irrevocably submit.
13.5 Attorneys’ Fees. If a party initiates a legal action to enforce any right or obligation under this Agreement, the prevailing party in such legal action will be entitled to recover reasonable attorneys' fees.
13.6 Severability. If any provision or portion of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
13.7 Waiver. No waiver of any breach, condition, right or remedy under this Agreement shall be deemed to be a waiver of any other breach, condition, right or remedy, nor shall such waiver be deemed to constitute a continuing or future waiver.
13.8 Binding Effect; Assignment. This Agreement is binding upon the parties’ respective representatives, successors, and assigns. Neither party shall transfer or assign this Agreement without the prior written consent of the other party. However, neither party shall unreasonably withhold consent to an assignment of this Agreement. Either party may, with written notice to the other party, assign the Agreement to the surviving entity in the case of a merger or acquisition.
13.9 Subcontracting. Aarna may subcontract any portion of the Services provided that Aarna remains fully responsible to Customer for the performance of Aarna's obligations under the Agreement.
13.10 Use of Customer Name. With Customer’s written permission, Aarna may use and publish Customer's name in its customer lists, lists of referrals for other customers or potential customers, and in other promotional information, including, but not limited to, press releases, brochures, reports, letters, white papers, and electronic media such as e-mail or Web pages.
13.11 Export Compliance. Any Products, Documentation, or related technical information (the "Technology") provided to Customer under this Agreement may be subject to U.S. export control laws and regulations and the trade laws of other countries. The parties agree to comply with all export control laws and regulations and to obtain any required licenses and classifications prior to export, re export or import. Customer shall not to export or re-export the Technology to destinations, entities, or persons on any U.S. government export exclusion, embargo, or denied parties list. The parties will not use the Technology for prohibited nuclear, missile, or chemical biological weapons end uses and shall comply with the requirements of the U.S. Export Administration Regulations ("EAR"). Please consult the Bureau of Industry and Security web page www.bis.doc.gov before exporting or re-exporting items subject to the EAR.
13.12 U.S. Government Restricted Rights. Use, duplication, or disclosure of any Deliverables by the U.S. Government is subject to the restrictions in FAR 52.227-14 (Dec 2007) Alternate III (Dec 2007), FAR ' 52.227-19 (Dec 2007), or DFARS 252.227-7013(b)(3) (Nov 1995), or applicable successor clauses.
13.13 Entire Agreement. This Agreement is the entire agreement between the parties with respect to the subject matter and supersedes any prior agreement or communications between the parties relative thereto, whether written or oral. This Agreement, any Order Form, or any SOW, may be modified only by a written addendum or change order signed by authorized signatories of both parties. The terms of any invoice, purchase order or similar document will not modify this Agreement.
