This End-User License Agreement (referred to as the “EULA”) is a legally binding agreement between you, the Client, an individual customer or entity, and MaxQ Analytics, LLC (“MaxQ”), the company and the author of MaxQ Analytics, the Software. This agreement is a legally binding contract that includes terms that limit your legal rights and MaxQ’s liability to you and shall govern all access to and use of this Software. You hereby agree, without limitation or alteration, to all terms and conditions contained herein.
Client agrees to use the Software only for purposes that are permitted by (a) this agreement, and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.
1. License. Subject to the terms of this agreement, MaxQ hereby grants Client a non- exclusive, non-transferable license to (a) access and use the Software and (b) download data associated with the entity's use of the Software. Client rights to use the Software are limited to those expressly granted under this agreement and no other licenses are granted whether by implication, estoppel or otherwise. MaxQ reserves all rights in and to the Software not expressly granted.
2. As consideration for the services provided by MaxQ, Client shall pay MaxQ in accordance with the attached Fee Schedule and Subscription Terms.
3. Limitations. The following license limitations apply to Client use of the Software:
3.1 Client may not reverse engineer, decompile, disassemble, or separate parts of the Software as packaged to use its component parts separate from the other parts.
3.2 Client may not modify or create derivative works of the Software.
3.3 Client may not remove copyright or other proprietary notices from any portion of the Software or copies of the Software.
3.4 Client may not use, distribute or provision the Software elsewhere or for a different purpose or authorize others to do this.
3.5 Client may not bypass, disable, or circumvent any encryption, security, digital rights management or authentication mechanism in the Software.
3.6 Client may not use the Software in any manner that would cause it to become subject to an open-source software license. As examples, licenses that require as a condition of use, modification, and/or distribution that the Software be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
3.7 Client agrees to defend, indemnify and hold harmless and its affiliates, and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, fines, restitutions and expenses (including but not limited to attorney’s fees and costs incident to establishing the right of indemnification) arising out of or related to Client use of the Software outside of the scope of this agreement, or not in compliance with its terms.
4. Ownership. The Software, and the respective intellectual property rights therein, are owned by MaxQ or its licensors and are licensed to Client as described in this agreement. MaxQ licensors are intended third-party beneficiaries with rights to enforce this agreement with respect to their intellectual property rights.
5. Feedback. Client may provide to MaxQ a suggestion, feature request or other feedback regarding the Software, including possible enhancements or modifications to the Software. For any feedback that is voluntarily provided, Client hereby grants MaxQ and its affiliates a perpetual, non-exclusive, worldwide, irrevocable license to use, reproduce, modify, license, sublicense (through multiple tiers of sublicensees), and distribute (through multiple tiers of distributors) it without the payment of any royalties or fees to Client. MaxQ will use feedback at its choice.
6. No Warranties. THE SOFTWARE IS PROVIDED BY MAXQ “AS IS” AND “WITH ALL FAULTS.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE.
7. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MAXQ AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL, OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY. IN NO EVENT WILL MAXQ AND ITS AFFILIATES TOTAL CUMULATIVE LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT EXCEED THE NET AMOUNTS RECEIVED BY MAXQ FOR CLIENT USE OF THE PARTICULAR SOFTWARE DURING THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE. THE NATURE OF THE LIABILITY OR THE NUMBER OF CLAIMS OR SUITS SHALL NOT ENLARGE OR EXTEND THIS LIMIT. THESE EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS IF MAXQ OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER A REMEDY FAILS ITS ESSENTIAL PURPOSE.
8. Termination. This agreement terminates: (i) automatically without notice if Client is in breach of any term of this agreement or if Client commences or participates in any legal proceeding against MaxQ with respect to the Software during the pendency of such legal proceeding. Upon any termination of this agreement, Client must promptly discontinue use of the Software. Upon written request, Client will certify in writing that Client has complied with commitments under this section. Upon any termination of this agreement all provisions survive except for the licenses granted to Client.
9. General. If Client wishes to assign this agreement or their rights and obligations, including by merger, consolidation, dissolution or operation of law, contact MaxQ to ask for permission. Any attempted assignment not approved by MaxQ in writing shall be void and of no effect.
This agreement will be governed in all respects by the laws of the United States and of the State of California as those laws are applied to contracts entered into and performed entirely within California, without regard to the conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. Client agrees to all terms of this agreement in the English language.
During the term of this agreement and for a period of three (3) years thereafter, Client agrees to cooperate with MaxQ requests for information to verify compliance with the terms of this agreement or payment of license fees (where applicable).
If it turns out that any provision of this agreement is not enforceable, such provision will be construed as limited to the extent necessary to be consistent with and fully enforceable under the law and the remaining provisions will remain in full force and effect.
Each party acknowledges and agrees that the other is an independent contractor in the performance of this agreement.
The Software has been developed entirely at private expense and is “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions in this agreement pursuant to DFARS 227.7202-3(a) or as set forth in subparagraphs (b)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, as applicable. Contractor/manufacturer is MaxQ Analytics, LLC, 3857 Birch St, Newport Beach, CA 92660.
Any notice delivered by MaxQ to Client under this agreement will be delivered via first-class mail, postage prepaid, email or fax to Client address on file. Client agrees that any notices that MaxQ sends electronically will satisfy any legal communication requirements. Please direct legal notices or other correspondence to MaxQ Analytics, LLC, 3857 Birch St, Newport Beach, California 92603, Attention: Legal Department.
This agreement constitutes the entire agreement of the parties with respect to the subject matter of this agreement and supersedes all prior negotiations, conversations, or discussions between the parties relating to this subject matter. Any additional and/or conflicting terms on documents issued by Client are null, void, and invalid. This agreement may be executed in counterparts, each of which shall be deemed an original and all of which taken together form one and the same agreement. A signed copy or signed counterpart of this agreement delivered by facsimile, email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of a signed original or signed copy of this agreement. Any amendment or waiver under this agreement shall be in writing and signed by representatives of both parties.