Last updated: November 25th, 2020
PLEASE READ THIS DOCUMENT CAREFULLY. This End-User Agreement ("End-User Agreement") contains the terms and conditions that govern End-User's access to and use of licensed software available in the Accelize Marketplace.
This End-User Agreement is entered into between Accelize Inc. and its affiliates (collectively, "Accelize") and the End-User or the entity End-User represents, and contains reference to the responsibilities of third-party Software Providers. "Party" or "parties" shall mean, individually, Accelize or End-User as the context requires and, collectively, Accelize and End-User.
Further, this End-User Agreement shall coexist with, and shall not supersede, the Accelize Acceptable Use Policy. To the extent that the provisions of this End-User Agreement may conflict with the provisions of the Acceptable Use Policy, the conflicting provisions in the Acceptable Use Policy shall govern.
This End-User Agreement shall take effect when End-User clicks an "I Accept" button or check box presented with these terms or, if earlier, when End-User uses any of the Services (the "Effective Date"). End-User represents to Accelize that End-User is lawfully able to enter into contracts (e.g., End-User is not a minor). If End-User is entering into this End-User Agreement for an entity, such as the company End-User works for, End-User represents that End-User has the legal authority to bind that entity.
2.1 Defined Terms. For purposes of this End-User Agreement the defined terms herein shall have the meanings set forth as below whenever capitalized, or as otherwise set forth herein.
"Accelize Marketplace" shall mean the software distribution platform operated by Accelize located at https://portal.accelize.com, as it may be updated by Accelize from time to time.
"Accelize Site" or "Accelize Sites" shall mean Accelize's websites located at http://www.accelize.com and https://portal.accelize.com, as well as any successor or related site designated by Accelize, as shall be updated by Accelize from time to time.
"Data Controller" shall mean the entity which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
"Data Processor" shall mean the entity which Processes Personal Data on behalf of the Data Controller.
"Data Subject" shall mean an identified or identifiable natural person to which the Personal Data pertain.
"End-User" shall mean a third-party that acquires a Software License from Licensor for its own internal use pursuant to the terms of an End-User Agreement.
"Licensed Software" shall mean any software that is subject to the terms of this End-User Agreement.
"Personal Data" shall mean any information relating to an identified or identifiable natural person, in which an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person, that is collected, disclosed, stored, accessed, or otherwise processed by Accelize for the purpose of providing the Services pursuant to a relevant agreement.
"Processing" or "Processes" shall mean any operation or set of operations which is performed on Personal Data or on sets of Personal Data, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
"Service" or "Services" shall mean each or all of the services made available by Accelize or its affiliates or business partners, including those web services described in the Service Terms, and in particular the Accelize Marketplace.
"Service Attributes" shall mean Service usage data related to End-User's account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics, and analytics.
2.2 Terms Defined in Separate Agreements. Terms capitalized but not defined in this End-User Agreement shall have the meanings as specified in any referenced agreement or other document that accompanies such term.
2.3 Undefined Terms. Those terms, acronyms, and phrases utilized in the relevant industries, including the information technology service industry or other pertinent business contexts, that are not otherwise defined in this End-User Agreement shall be interpreted in accordance with their generally understood meaning in such industries or business contexts.
3.2 End-User Account. To access relevant Services, End-User must have an Accelize account associated with a valid email address and a valid form of payment ("End-User Account"). Unless explicitly permitted by the Service Terms, End-User may only create one (1) account per email address.
3.3 Changes. Acccelize may change or discontinue any of the Services available to End-User from time to time, at Accelize's sole discretion.
4.1 Accelize's Role. In accordance with Accelize Policies applying to Software Providers and End-Users, including the Accelize Data Processing Addendum ("DPA"), Accelize's role is limited to providing Services enabling Software Providers to sell software through the Accelize Marketplace. This includes data rights management, entitlements management, billing and invoicing, online payment processing, and usage monitoring. To the extent Accelize provides such marketplace services, Accelize is acting as Data Processor on behalf of the Software Provider, and the Software Provider acts as Data Controller.
4.2 Software Provider's Role. Software Providers make software and software licenses available to End-Users through the Accelize Marketplace in compliance with the terms and conditions set forth in the Accelize Marketplace Agreement and other relevant Accelize Policies. Software Providers are responsible for all software, software support, and relevant intellectual property considerations, including all liabilities related thereto owed to the End-User. Any questions, concerns, or disputes regarding the use, functionality, and legality of Licensed Software should be directed to the relevant Software Provider.
4.3 Any questions about Accelize and Software Provider's respective roles should be directed to Accelize as set forth in Section 17 ("Contact").
5.1 Generally. End-Users may purchase software from the Accelize Marketplace from Software Providers, who are the seller of record for Accelize Marketplace content.
5.2 End-User Accounts. Except to the extent caused by Accelize's breach of this End-User Agreement, End-User is responsible for all activities that occur under End-User's account, regardless of whether the activities are authorized by End-User or undertaken by End-User, End-User's employees, or a third party (including End-User's contractors or agents). Accelize, and its affiliates and business partners, including Software Providers, are not responsible for unauthorized access to End-User's account.
5.3 End-User Security and Backup. End-User is responsible for properly configuring and using the Services and otherwise taking appropriate action to secure, protect, and backup End-User's account, keys, and any access information in a manner that will provide appropriate security and protection.
5.4 Log-In Credentials and Access Keys. Any Accelize log-in credentials and private keys that may be generated as part of End-User's use of the Services are for End-User's internal use only. End-User shall not sell, transfer, or sublicense log-in credentials or private keys generated by the Services to any other entity or person, except that End-User may disclose End-User's private key to End-User's agents and subcontractors performing work on End-User's behalf.
6.1 Accelize Security. Without limiting the provisions and limitations as set forth in Sections 5 ("End-User's Responsibilities") and 12 ("Warranty and Disclaimer"), Accelize will implement reasonable and appropriate measures, at its sole discretion, designed to help End-User secure use of the Accelize Marketplace and End-User's account against accidental or unlawful loss, access, or disclosure.
6.3 Service Attributes. To provide billing and administration services, Accelize may process Service Attributes in the Accelize regions or regions where End-User utilizes the Services, as well as Accelize regions in the United States. To provide End-User with support services initiated by End-User and investigate fraud, abuse, or violations of this End-User Agreement, Accelize may process Service Attributes where Accelize maintains support and investigation personnel.
End-User shall be responsible for prompt payment of any fees and taxes due as a result of the use of the Services and software purchased from Accelize Software Providers.
8.1 Generally. Accelize may suspend End-User's right to access or use any portion or all of the Services immediately to End-User if Accelize determines:
(a). End-User's use of the Services (i) poses a security risk to the Services or any third party, (ii) could adversely impact Accelize's systems, the Services, or the systems, or any other Accelize Service Provider or End-User, (iii) could subject Accelize, Accelize's affiliates, or any third party to liability, or (iv) could be fraudulent;
(b). End-User is in breach of this End-User Agreement;
(c). End-User is in breach of End-User's payment obligations under Section 7 ("End-User Fees and Payment"); or
(d). End-User is deceased, has ceased to operate, has made an assignment for the benefit of creditors or similar disposition of End-User's assets, or has become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.
8.2 Effect of Suspension. If Accelize suspend End-User's right to access or use any portion or all of the Services, End-User remains responsible for all fees and charges End-User may incur during the period of suspension and shall not be entitled to any refunds or credits.
10.1 End-User Agreement Acceptance. Any Software License is subject to End-User's prior acceptance of either this End-User Agreement, or a custom end-user agreement between End-User and the Software Provider such as an end-user license agreement (a "Custom End-User Agreement"), if one is provided.
10.2 Software License. Software made available through the Accelize Marketplace is licensed, not sold, to an End-User. An End-User's right to use Licensed Software is granted by the Software Provider. Accelize or the Software Provider as applicable ("Licensor") reserves all rights in and to the Licensed Software not expressly granted to an End-User under this End-User Agreement or a Custom End-User Agreement.
10.3 Scope of License. Licensor grants to End-User a nontransferable, non-exclusive license to use the Licensed Software as permitted by the Acceptable Use Policy. The terms of this End-User Agreement will govern any upgrades provided by Licensor that replace or supplement the original Licensed Software, unless such upgrade is accompanied by a Custom End-User Agreement. End-User may not sell, transfer, redistribute, or sublicense the Licensed Software. End-User may not copy (except if and as permitted by an applicable Custom End-User Agreement or the Acceptable Use Policy), reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Software, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Software).
10.4 Consent to Use of Data. End-User agrees that Licensor may collect and use technical data and related information, including but not limited to technical information about End-User's system, devices, application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other services to End-User (if any) related to the Licensed Software. Licensor may use this information, as long as it is in a form that does not personally identify End-User, to improve its products or to provide services or technologies to End-User.
10.5 External Services. The Licensed Software may enable access to Licensor's and/or third-party services and websites (collectively and individually, "External Services"). End-User agrees to use the External Services at End-User's sole risk. Licensor is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by any Licensed Software or External Service, including but not limited to financial and location information, is for general informational purposes only and is not guaranteed by Licensor or its agents. End-User will not use any External Services that violate the terms of this End-User Agreement or that infringe the intellectual property rights of Licensor or any third party. To the extent End-User chooses to use such External Services, End-User is solely responsible for compliance with any applicable laws. Licensor reserves the right to change, suspend, remove, or disable any External Services at any time without notice or liability to End-User.
The End-User Agreement is effective from the earlier of End-User's use of the Accelize Services, including signing up for an account on the Accelize Marketplace, or purchase, download, or use Licensed Software, until terminated according to its terms. End-User and Licensor may terminate this End-User Agreement, at any time, for any reason. Termination by Licensor will be effective upon (a) notice to End-User, (b) termination of the End-User Account (if any), or (c) at the time of Licensor's decision to discontinue offering and/or supporting the software. This End-User Agreement will terminate automatically if End-User fails to comply with any of the terms and conditions of this End-User Agreement. Upon termination for any reason, End-User must immediately uninstall any Licensed Software and destroy all copies in End-User's possession unless otherwise permitted to retain such Licensed Software under a Custom End-User Agreement.
END-USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE LICENSED SOFTWARE IS AT END-USER'S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED SOFTWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED SOFTWARE AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED SOFTWARE OR SERVICES PROVE DEFECTIVE, END-USER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO END-USER.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE TO END-USER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF REVENUES, LOSS OF OPPORTUNITIES, LOSS OF GOODWILL OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO END-USER'S USE OF OR INABILITY TO USE THE LICENSED SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO END-USER.
13.1 Damages Cap. EXCEPT FOR OBLIGATIONS ARISING UNDER THIS SECTION 13, ACCELIZE'S AND ACCELIZE'S AFFILIATES' AND LICENSORS' AGGREGATE LIABILITY IN CONNECTION WITH ANY CLAIM UNDER THIS AGREEMENT WILL NOT EXCEED THE LOWER OF (I) THE TOTAL TRANSACTION PROCEEDS ACCRUED BY LICENSOR FROM END-USER UNDER THIS END-USER AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRECEDING SUCH CLAIM, OR (II) ONE HUNDRED THOUSAND DOLLARS ($100,000). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS IN THIS SECTION 13 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
End-User is solely responsible for any damage caused to Accelize, Licensor, and associated service providers and subcontractors, other users of the software, or any other individual or legal entity as a result of End-User's violation of this End-User Agreement. END-USER HEREBY AGREES TO DEFEND, INDEMNIFY, AND KEEP INDEMNIFIED ACCELIZE, LICENSOR, AND ASSOCIATED SERVICE PROVIDERS AND SUBCONTRACTORS AGAINST ANY CLAIM OR ALLEGED CLAIMS, LIABILITIES, LOSSES DAMAGES, AND ALL COSTS (INCLUDING ATTORNEYS' FEES), DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO END-USER'S FAULT AND/OR RESULTING FROM (A) A VIOLATION OF ANY PROVISION OF THIS END-USER AGREEMENT OR (B) END-USER'S USE OR MISUSE OF THE SOFTWARE. Accelize reserves the right to take sole responsibility, at its own expense, for conducting the defense of any claim for which End-User agreed to indemnify Accelize. The provisions of this Section 14 shall remain in force after termination of this End-User Agreement.
Notwithstanding anything in this End-User Agreement to the contrary, Accelize reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of this End-User Agreement for security, legal, best practice, or regulatory reasons. Such changes will be effective with or, as applicable, without prior notice to End-User. End-Users are responsible for checking this End-User Agreement periodically for changes. If any future changes to this End-User Agreement are unacceptable to End-User or cause End-User to no longer be in agreement or compliance with this End-User Agreement, End-User may terminate this End-User Agreement in accordance with Section 11 ("Termination") and must immediately uninstall the software and destroy all copies of the software unless otherwise permitted under a Custom End-User Agreement. End-User's continued use of the software following any revision to this End-User Agreement constitutes End-User's complete and irrevocable acceptance of any and all such changes.
16.1 Export Control. End-User may not use or otherwise export or re-export the Licensed Software except as authorized by United States law and the laws of the jurisdiction in which the Licensed Software was obtained. In particular, but without limitation, the Licensed Software may not be exported or re-exported (a) into any United States-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensed Software, End-User represents and warrants that End-User is not located in any such country or on any such list. End-User also agrees that End-User will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
16.2 Commercial Items. The Licensed Software and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
16.3 Severance. If any court of competent jurisdiction or competent authority finds that any provision of this End-User Agreement is invalid, illegal, or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this End-User Agreement shall not be affected. If any invalid, unenforceable, or illegal provision of this End-User Agreement would be valid, enforceable, and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid, and enforceable to reflect Accelize's initial intentions.
16.4 No Waiver. No failure or delay by Accelize or Licensor to exercise any right or remedy provided under this End-User Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Waiver of a right or remedy may be considered to have taken place only after signing of a written statement to this effect by Accelize or by the End-User.
16.5 Venue and Choice of Law. Except to the extent expressly provided herein, this End-User Agreement and the relationship between End-User and Licensor shall be governed by the laws of the State of California in the United States of America, excluding its conflicts of law provisions. End-User and Licensor agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California, to resolve any dispute or claim arising from this End-User Agreement. If (a) End-User is not a United States citizen, (b) End-User does not reside in the United States, (c) End-User is not accessing the Accelize Marketplace from the United States, and (d) End-User is a citizen of any European Union country or Switzerland, Norway, or Iceland, End-User hereby agrees that any dispute or claim arising from this End-User Agreement shall be governed by the laws and courts of End-User's usual place of residence, without regard to any conflict of law provisions, and irrevocably submits to the non-exclusive jurisdiction of that country's governing law. This End-User Agreement is not subject to, and specifically excluded from application of, the United Nations Convention on the International Sale of Good.
Any questions or comments about the Policy should be directed to Accelize:
2570, North First Street
San Jose, CA 95131-1036
ATTN: Accelize Legal