MASTER PRODUCTS AND SERVICES END USER LICENSE AGREEMENT (“EULA”)
This Agreement (the “Agreement”) is made by and between Plexos Software S.A.S. a Colombian corporation, located at Bogotá - Colombia (“Plexos”) and User, (“User”) (referred to collectively herein as “the Parties”) and contains the terms and conditions governing User’s procurement of Plexos’ Software. This Agreement shall become binding when User downloads and installs Plexos’ Software.
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS.
“Plexos’ Software” is an application designed under the Lean Construction principles for a collaborative and multidisciplinary workflow, available for download by User. This includes all fixes and new releases provided by Plexos (or its authorized representative) to User, as well as all copies thereof.
“Trial Version” A version of Plexos’ Software, to be used as a trial of Plexos’ Software for one User for a 30 day period. The Trial Version has limited features when the trial period is expired.
“Purchased Version” A version of Plexos’ Software that includes all features, upgrades, updates, support and operates itself by default.
“License period” Period of time in which the User can use the Purchased Version.
“Beta Version” A version of Plexos’ Software, to be used only to review and debug the software for a limited period of time.
“Academic Version” A total functionality version of the Plexos’ Software (Professional Enterprise Version), to be used in an academic setting for educational purposes only.
“Professional Version” The User may purchase any of the offered Version types for Plexos’ Software which may be changed or amended by Plexos without prior announcement to User or further potential customers:
o“Professional Enterprise Version” A standard version of Plexos’ Software with the most common functions for personal and professional purposes.
o“Professional Portfolio Version” A full version of the Plexos’ Software with advanced enterprise functions for personal and professional purposes.
•“New Release.” Any enhanced or modified version of Plexos’ Software issued by Plexos or its authorized partners.
•“Days” or “day(s)” shall mean calendar days.
•“Documentation” means the Plexos published or online user manuals that Plexos makes available for the Products.
•“Computer” hardware, servers, networks on which Plexos’ Software shall be downloaded, operate regardless of whether the Computer is operated by User or by a third party.
“Service(s)” Maintenance Support Services, Professional Services as defined below, all as hereinafter defined, provided to User in the Territory.
“Schedule” means a Territory-specific, Product-specific or Service-specific attachment to this Agreement, as set forth in Section 11 or, subsequent to the Effective Date of this Agreement, which is mutually executed by the Parties.
“Support Policies” means Plexos’ then current maintenance and support policies and procedures, which may be updated by Plexos’ available online to Plexos’ Users that have procured Maintenance Support Services.
“Territory” means the countries listed on the applicable Schedule.
“Use or Download” Means the benefit from using/downloading the functionality of the Plexos’ Software in accordance with this EULA1.
“Upgrade License” Allows the users who have purchased Plexos’ Software license to upgrade Plexos’ Software to its newer free versions during the period of validity of the license. Once the license period expires, the Users can upgrade to newer versions of Plexos’ Software only if they purchase an Upgrade License for the expired initial Plexos’ Software license.
2. SOFTWARE LICENSE.
(a) License Grant. Plexos hereby grants to User, and User hereby accepts from Plexos, a restricted, non-exclusive, non-transferable, and non-assignable right to use the licenses of Plexos’ Software in accordance with the version purchased or downloaded by the User for User’s own internal business operations consistent with the limitations and conditions set forth in this Agreement. The versions of Plexos’ Software may be modified or amended by Plexos without announcing the User or further potential customers. User is authorized to: i) use all releases while subscription is active (Software support is not available when the License Period is expired); ii) use all releases and Maintenance Support Services while the Purchased Version is active.
(b) License Restrictions. Subject to the terms set forth herein, User may use Plexos’ Software on its Computer up to the number of licenses specified on the downloaded version, within the Territory, solely for its own internal business use. User shall not re-sell, transfer, publish, disclose, display, modify, copy, decompile, in whole or in part in any way, or remove any trade or other marks of the software or otherwise make available to others any source code, object code or executive, documentation, or other material relating to the software without expressed written approval by Plexos or unless arranged to do it so under the terms and conditions of this Agreement. User shall not rent, lease, or sublicense the software to any third party; except User’s agent(s) and/or Affiliate(s) that may access the software installed at User’s site solely in furtherance of User’s business and provided that User remains liable for the acts and omissions of any such agent(s) and/or Affiliate(s) and for ensuring their compliance with the License and confidentiality terms set forth herein. User shall not, and shall not permit any third party to distribute, make available to the public, transfer, install, or otherwise make use of the software outside the Territory. User shall not at any time remove, modify, obscure, or otherwise alter in full or in part any trademark, slogan, claim, trade dress, copyright or other proprietary notice(s) of Plexos or a third party. Plexos may terminate the License by written notice with immediate effect (i) if User infringes or misappropriates any Plexos Intellectual Property rights (as defined in Section 7 hereof), (ii) as provided in Section 5(b) and Section 6(b) herein; or (iii) if User fails to cure any other material breach of this Agreement within thirty (30) days after receipt of written notice from Plexos. In the event of a License termination, User shall immediately return or destroy Plexos’ Software and all copies thereof as directed by Plexos and, upon request of Plexos, a duly authorized officer of User shall certify in writing to Plexos as to the destruction or return of the software and all copies thereof. User shall indemnify, defend, and hold Plexos harmless, from and against any claim, loss, cost, or other expense resulting from User’s non-compliance with the license restrictions set forth in this section, including but not limited to violation of any applicable export and intellectual property laws. To the extent Plexos does not enforce against User any of the provisions of this Section 2, Universidad de los Andes the third party which licenses Plexos’ Software to Plexos, may enforce such Section 2 obligations against User.
(c) Usage Verification. Plexos reserves the right to conduct an audit of User’s records and operations related to Plexos’ Software solely for purposes of ensuring User’s compliance with this Agreement. Any audit shall be conducted at a mutually agreed upon date and time during User’s standard business hours. If Plexos discovers through the results of an audit performed hereunder or through any other means that User is using more licenses of the software than it has procured hereunder, User shall immediately pay Plexos the then-current list License fee, including reasonably estimated arrears for Maintenance Support Services fees, for any such additional unauthorized licenses. The limitation of liability set forth in Section 10 shall not apply to User’s unauthorized use or misappropriation of the software. In the event such an audit results in the determination that the User’s usage exceeds 5% more than User’s licensed usage rights, then User shall be required to reimburse Plexos for the reasonable fees associated with the performance of such audit.
3. PURCHASE AND PAYMENT
(a) Purchase. For each of User’s purchases of any version, services or license hereunder, including, without limitation, for each renewal of Maintenance Support Services under Section 4 hereof, User shall execute the required information and accept the terms of this Agreement.
(b) Currency. All Product or Service fees or other charges payable by User hereunder shall be paid in USD Dollars.
(c) Taxes. All fees and other charges quoted or provided pursuant to this Agreement shall be exclusive of any sales, use, value added, or other taxes, fees, or costs which may be imposed, levied, or assessed against the sale, licensing, configuration, delivery, or use of Plexos’ Software. User shall pay all taxes that may become due as a result of this Agreement, excepting only Plexos’ income and payroll related taxes.
(d) Refund Policy. Once User has purchased Plexos’ Software, which ever version chose, User will receive an e-mail with a purchase code to activate the software. Once User receives this activation code, no refunds will be accepted by Plexos.
4. PLEXOS’ SERVICES
(a) Maintenance Support Services. If purchased by User in accordance with Section 3 of this Agreement, Plexos’ standard Maintenance Support Services (“MSS”) for Plexos’ Software shall be rendered in accordance with this Section 4. No support or maintenance of the software, including, without limitation, technical support, telephone inquiries, upgrades, or code fixes, is available to User unless User has procured Maintenance Support Services from Plexos. In accordance with Support Policies, Maintenance Support Services consists of Plexos: i) undertaking commercially reasonable efforts to resolve problems or bugs of the purchased software in a period of time depending on the severity of the case and determining by Plexos. ii) providing new releases of the software for which User has procured Licenses hereunder, which releases may contain code fixes, improvements or enhancements. Plexos will not provide MSS if User has failed to: i) use the software in accordance to the Documents, ii) has modified or attempted to modify the software, or iii) has failed to upgrade the purchased software when recommended by Plexos.
5. WARRANTIES AND REMEDIES
(a) Limited Warranty. Plexos warrants (“Warranty”) that (i) the software shall be free from defects in material and workmanship, and the software shall perform substan¬tially as described in the accompanying Documenta¬tion, for a period of (1) year period from the date of installation of the software. Any supplements, updates or replacement software that User may receive from Plexos during that year are also covered, but only for the remainder of that (1) year period or for thirty (30) days, whichever is longer (“Product Warranty”) and (ii) all services provided to User by or on behalf of Plexos shall be performed in a good and workmanlike manner in accordance with applicable industry standards (“Services Warranty”).
(b) Remedies. For a breach of the Product Warranty, which is reported to Plexos to the e-mail address support@plexosproject.com during the Warranty period, Plexos shall correct or replace the defective software or, if such is not practical in Plexos’ reasonable judgment, Plexos shall refund to User the amount actually paid to Plexos there for with respect to any such returned Product(s). For a breach of Services Warranty, Plexos shall promptly re-perform the defective service at no additional charge, or if such is not practical in Plexos’ judgment, provide to User a refund of the amount actually paid to Plexos for such defective service, provided that User has reported such breach no later than sixty (60) days following Plexos’ performance of such service. Each Product Warranty or Services Warranty breach shall be reported to Plexos in writing. User shall allow Plexos reasonable remote and local access to the Computer to perform Warranty support in accordance with Plexos’s remote access requirements. User hereby waives any other rights that it might otherwise have in connection with the foregoing. THIS SECTION SETS FORTH PLEXOS’ SOLE LIABILITY AND USER’S SOLE REMEDY FOR BREACH OF WARRANTY.
(c) Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 5(a), PLEXOS, ITS AUTHORIZED LICENSORS, DISTRIBUTORS, AUTHORIZED REPRESENTATIVES AND RELATED PERSONS DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, AND GUARANTEES, HOWEVER ARISING, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, AS TO PLEXOS’ PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO THE USE, SUFFICIENCY, OR ACCURACY OF THE PRODUCTS OR OF ANY TELEPHONE NUMBER/TIME ZONE DATA PROVIDED WITH THE SOFTWARE, AND EXPRESSLY EXCLUDE ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NON-INFRINGEMENT, OR ANY WARRANTY THAT OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. NO PLEXOS EMPLOYEE, AUTHORIZED LICENSEE OR DISTRIBUTOR, IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS OR ADDITIONS TO THESE WARRANTY PROVISIONS OR TO THIS AGREEMENT.
(d) Warranty Exclusions. Plexos will have no obligations under this Section 5 if the breach is caused by (i) abuse, misuse, alteration, neglect, accidental damage, unauthorized repair or installation of a software; (ii) User’s hardware, software, networks, or systems; (iii) User’s failure to use Plexos’ Software in accordance with the applicable Documentation, or (iv) Software(s) or Services not purchased directly to Plexos or its Licensors.
6. INDEMNITY
(a) Indemnity. Subject to the provisions of this Section 6, if an action is brought against User claiming that Plexos’ Software when used in accordance with the Documentation and as permitted under this Agreement in the Territory, infringes a valid patent or a trademark registered before, Plexos shall defend User at Plexos’ expense and pay the damages and costs finally awarded against User in relation to the infringement or misappropriation action, but only if (i) User notifies Plexos promptly upon learning that an action has been or might be asserted, (ii) Plexos has sole control over the defense of the action and any negotiation for its settlement or compromise, and (iii) User fully cooperates in Plexos’ defense of such action. Plexos shall have no obligation or liability under this Section 6 if the action results from (i) a modification of Plexos’ Software not performed by Plexos or its authorized representatives, or any such modifications performed by Plexos or otherwise at User’s request, (ii) the failure to promptly install a new maintenance release or version of the software that would have eliminated the actual or alleged infringement or misappropriation, (iii) the use of any non-Plexos product, information, design, specification, instruction, trademark, slogan, copyright, software, data, trade secret, confidential information, material or Intellectual Property Right, in combination with Plexos’ Software where such infringement would not have arisen but for such combination, (iv) Plexos’ or its authorized representative’s compliance with instructions, designs, plans or specifications furnished by or on behalf of User, or (v) any copyrights or patent infringement claims alleging infringement by User-specific processes or methods created by or on behalf of User using Plexos’ Software, but for such User-specific method or process, the patent infringement claim would not have arisen.
(b) Opportunity to Cure. If a covered claim described in Section 6(a) may be or has been asserted, User shall permit Plexos, at Plexos’ option and expense, to (i) secure the right for User to continue using Plexos’ Software, (ii) replace, modify, or create a workaround for Plexos’ Software to eliminate the infringement or misappropriation while providing func¬tionally equivalent performance, or (iii) terminate the applicable License and, upon User’s return of the infringing software, refund to User the amount actually paid to Plexos for such software, less depreciation based on a five (5) year straight-line depreciation schedule.
(c) THIS SECTION 6 SETS FORTH PLEXOS’ SOLE LIABILITY AND USER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM.
7. OWNERSHIP
Universidad de los Andes, who is now the sole owner of Plexos’ Software (Smart Schedulling). Universidad de los Andes licensed Plexos’ Software (Smart Schedulling) to Plexos who is in charge of its distribution, management and control. All rights, title or interest to any intellectual property with respect to any patent, copyright (including, without limitation, any derivative works), trademark, service mark, trade name, slogan, claim, trade secret, inventions, work processes, reports, drawings or other rights in any confidential or non-public information owned or legally held by Universidad de los Andes and Plexos, its affiliates, or third-party licensors which are present in or associated with Plexos’Software, Documentation, or other Plexos’ information and proprietary materials, including, without limitation, all computer programs, algorithms, program listings, programming tools, procedures, reports, and drawings (except to the extent that such reports or drawings contain User specific data or information) (“Plexos and Universidad de los Andes’ Intellectual Property”) is and shall remain the exclusive property of Plexos and Universidad de los Andes, its affiliates, and/or its third party licensors. User is not permitted to create derivative works from Plexos and Universidad de los Andes’ Intellectual Property without Plexos’ prior written authorization in the form of an amendment to this Agreement signed by an authorized representative of each party. User’s limited right to use such Plexos and Universidad de los Andes’ Intellectual Property shall be governed by the licensing and confidentiality provisions of this Agreement which relate to, govern, and/or protect the software or other deliverables to which such Plexos and Universidad de los Andes’ Intellectual Property is associated. Notwithstanding anything to the contrary contained in this Agreement, Plexos reserves the right to seek all legal and equitable rights and remedies available to Plexos and Universidad de los Andes against User for any use by User of any Plexos and Universidad de los Andes’ Intellectual Property in violation of this Agreement.
8. CONFIDENTIAL INFORMATION
(a) Confidentiality. Each party acknowledges that (i) this Agreement, any Quotation, and the Products and Services to be provided hereunder incorporate confidential and proprietary information developed or acquired by Plexos and (ii) each party may receive or have access to other proprietary or confidential information disclosed and marked as confidential by the disclosing party (collectively, the 'Confidential Information'). Notwithstanding the foregoing statement, Confidential Information shall automatically include (without obligation for written notification as set forth above) (i) with respect to Plexos: Products, Documentation, financial data, and the results of any benchmark tests performed by User in connection with the Product(s); and (ii) with respect to User: personally identifiable or otherwise sensitive information regarding User’s User(s) which Plexos may receive from or through User, in the course of either party performing its respective obligations hereunder, provided however that User shall use commercially reasonable efforts to prevent or minimize disclosure to Plexos of any such personally identifiable or User-sensitive Confidential Information, except to the extent such disclosure is reasonably necessary in order for Plexos to perform its obligations hereunder. The receiving party shall use the disclosing party's Confidential Information solely to perform i