END-USER LICENSE AGREEMENT FOR DECISIONEERING, INC. SOFTWARE
This END-USER LICENSE AGREEMENT FOR DECISIONEERING, INC. SOFTWARE ("EULA") is a legal agreement between you (either an individual or a single entity) ("Licensee") and Decisioneering, Inc., a Colorado corporation ("Decisioneering"), for the Decisioneering software that accompanies this EULA (the "Software"). Collectively, Decisioneering and Licensee may be called the "parties." An amendment or addendum to this EULA may accompany the Software. BY INSTALLING, COPYING, SELECTING "YES" OR "ACCEPT" ON THE DIALOG, OR USING THE SOFTWARE, LICENSEE AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. IF LICENSEE DOES NOT AGREE, DO NOT INSTALL, COPY OR USE THE SOFTWARE, AND SELECT "CANCEL", "NO", OR "DO NOT ACCEPT" ON THE DIALOG. This EULA shall be of no force and effect if there is a written and signed document by the parties expressly stating that such agreement, and not this EULA, shall govern the use of the Software.
1.0 LICENSE
1.1 Subject to Licensee’s ongoing compliance with the terms of this EULA (including without limitation Licensee’s obligation to pay all License Fees when due), Decisioneering grants Licensee a perpetual (unless otherwise set forth below), personal, non-exclusive and non-transferable limited right and license for an Authorized User to possess and to make In-House Use of the Software on a single computer, workstation, terminal, or other digital electronic device (a "Computer") as further described in Section 1.3. .As used in this EULA:
1.1.1 In the case where Licensee is an entity, "Authorized User" means (i) an employee of Licensee, but only while such employee is acting within the scope of such employee's employment by Licensee; and (ii) the primary user of the single Computer on which the Software is installed. In the case where Licensee is an individual, "Authorized User" means the Licensee. Except as provided in this EULA, the Authorized User may not be changed after the installation of the Software on the single Computer. At Decisioneering’s sole discretion, the single Computer in section (ii) above may be increased to include a single home Computer for the same Authorized User.
1.1.2 "In-House Use" means the internal activities forming part of the ordinary course of Licensee’s business or organization, including, but not limited to, access, installation, downloading, copying or otherwise benefiting from using the functionality of the Software in accordance with the Documentation.
1.1.3 "License Fees" means Decisioneering’s fees for the license of Software. “Maintenance Fees” means Decisioneering’s fees for the provision of Maintenance, as set forth in Section 2.0 below. “Fees” means the License Fees and the Maintenance Fees, collectively.
1.2 All rights associated with the Software that are not expressly granted to Licensee in this EULA are (as between Licensee and Decisioneering) reserved to Decisioneering. Licensee shall be responsible for all obligations of each Authorized User under this EULA.
1.3 The following sets forth the type of license granted to an Authorized User:
1.3.1 If the license file generated by Decisioneering and purchased by Licensee is for a single Authorized User’s use, in no event shall there be more than one Authorized User on the single Computer where the Software is originally installed; e.g. there shall be no common sharing of a "Crystal Ball computer." Each Authorized User must have its own separate license to use any Decisioneering software on its Computer. No concurrent use is allowed with this type of license.
1.3.2 If the license file generated by Decisioneering and purchased by Licensee is for concurrent use, each concurrent license for the Software may be used by no more than 10 unique Authorized Users; provided, that, the number of Authorized Users using a copy of the Software at any one time does not exceed the number of concurrent license(s) purchased and not terminated. In the concurrent license type provided by this Section 1.3.2, the Software may be installed on a single network server to be accessed by Authorized Users in compliance with the above restrictions.
1.3.3 If the license file generated by Decisioneering and purchased by Licensee is for subscription use, notwithstanding the above, Licensee shall not have a perpetual license in the Software. Such license shall be time-sensitive and will expire in one year from the date of purchase, regardless of when any particular Authorized User activates it. After expiration, further use is prevented without paying additional License Fees and being issued an appropriate license file from Decisioneering.
1.4 Licensee acknowledges that the Software and its structure, organization, and source code constitute valuable trade secrets of Decisioneering and its licensors. Licensee agrees that Licensee and any Authorized User shall not, nor shall permit, assist or encourage any third party to: (i) copy, modify, adapt, alter, translate, or create derivative works from the Software or the user manuals provided to Licensee with respect to the Software (the "Documentation"); (ii) merge the Software with other software; (iii) sublicense, distribute, sell, lease, rent, loan, use the Software in the operation of a service bureau or otherwise transfer or allow access to the Software or the Documentation to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software, except and only to the extent that such activity is expressly permitted by applicable law; (v) provide access to the Software as a service (with or without a fee) to others; (vi) defeat, disable or circumvent any security measures Decisioneering may use to prevent unauthorized use or copying; or (viii) otherwise exercise any rights in or to the Software or the Documentation except as expressly permitted under this EULA. An Authorized User may copy the Software for backup or archival purposes.
1.5 If Licensee is an entity, then Licensee may make a one-time internal transfer per year of the Software to a different single Computer and/or to a new Authorized User; provided, that, if the installation is to a new Computer, the Software must be completely removed from the former Computer. This transfer must include all of the Software (including all component parts, the Documentation, any upgrades, and this EULA). Prior to the transfer, the new Authorized User receiving the Software must agree to all the terms and conditions of this EULA and register such transfer with Decisioneering. Notwithstanding the above, if the purpose of the transfer is due to the (i) termination of the Authorized User's employment with Licensee, (ii) Authorized User changing a Computer configuration or substituting another Computer, or (iii) concurrent use, then all of the foregoing terms shall apply other than the limitation of only one transfer per year.
1.6 If the Software or license type is identified as one of the following, other rights and limitations apply as follows:
1.6.1 Academic License. If the Software is and license is identified as Academic Edition ("AE Software"), only a Qualified Educational Licensee may use the AE Software. "Qualified Educational Licensee" shall mean (i) an accredited higher educational institution (an "AHEI"); (ii) a teacher or professor of an AHEI; or (iii) a current full- or part-time student of an AHEI with proof of enrollment. Proof of enrollment must either be a copy of an official photo identification card from the AHEI or official documentation from the AHEI's registration office verifying that the individual is an enrolled student at the institution at the time of license. If the official identification card does not include a photograph of the student, the copy of the identification card must be accompanied by a second source photo identification. Any user that is not a Qualified Educational Licensee and is using AE Software has no rights under this EULA. AE Software may only be used in conjunction with the classes or work related to the AHEI or enrollment in the AHEI and shall not be used for any commercial purposes. Decisioneering shall resolve any issues relating to the eligibility or determination of a Qualified Educational Licensees in its sole discretion. The AE Software may be time-sensitive and, if so, will expire in the number of days set forth on the invoice from Decisioneering. After expiration, further installations will be prevented without an appropriate license file issued from Decisioneering.
1.6.2 Academic Lab License. Only Qualified Educational Licensees may obtain an Academic Lab License. Any user that is not a Qualified Educational Licensee and is using an Academic Lab License has no rights under this EULA. If a Qualified Educational Licensee has obtained an Academic Lab License, such Qualified Education Licensee may install and use the Software on as many Computers as Qualified Educational Licensee has purchased licenses for as indicated on the invoice from Decisioneering. The Academic Lab License is not a perpetual license, but is time-sensitive and may either expire in (i) 1-Year from installation, or (ii) a number of days as determined by Decisioneering upon issuance of the license file.
1.6.3 Textbook License. If the Software is identified as Textbook Edition or the Software license is pursuant to the purchase of a textbook ("TB Software"). The Textbook License is not a perpetual license, but is time-sensitive and may either expire in (i) 140 days from the date of installation, or (ii) as otherwise set forth in the documentation accompanying the TB Software. After expiration, further installations are prevented without an appropriate license file issued from Decisioneering.
1.6.4 Corporate Training License. If Licensee has purchased a Corporate Training License, Licensee may install and use the Software on as many Computers as Licensee has purchased licenses for as indicated on the invoice from Decisioneering. The use of the Software with respect to a Corporate Training License shall be limited to the sole purpose of training Licensee’s employees to use the Software. The Corporate Training License is not a perpetual license, but is time-sensitive and may either expire in (i) one year from installation, or (ii) a number of days as determined by Decisioneering upon issuance of the license file.
1.6.5 Evaluation License. If the Software was activated pursuant to an evaluation license ("Evaluation Software"), the Evaluation Software is not a perpetual license, but is time-sensitive, and may either expire in (i) seven days from installation, or (ii) a number of days as determined by Decisioneering upon issuance of the license file. After expiration, further installations are prevented without an appropriate license file issued from Decisioneering. Only one Evaluation Software license will be issued per user, unless otherwise provided by Decisioneering. Decisioneering may revoke the use of Evaluation Software at any time and for any reason. Evaluation Software shall be only used for purposes of evaluating the Software, and shall not be used for any other purpose, including, but not limited to, training of the Software or for commercial purposes.
1.6.6 Government License. If the Software is acquired by or on behalf of a unit or agency of the U.S. government, this provision shall apply. The Software is (i) existing computer software, and was developed at private expense, (ii) is a trade secret of Decisioneering for all purposes of the Freedom of Information Act, (iii) is "commercial computer software" subject to limited utilization as expressly stated in this EULA, (iv) in all respects is proprietary data belonging to Decisioneering, and (v) is unpublished and all rights are reserved under the copyright law of the U.S. The Software is licensed only with "Restricted Rights" as set forth in FAR 52.227-19 or with "Limited Rights" as set forth in FAR 252.227-7013, and use, duplication, or disclosure is subject to such restrictions, as applicable.
1.6.7 Remote Access Technologies. Licensee may use remote access technologies, such as Microsoft ® Windows ® terminal server or Citrix ® Metaframe ®, for an Authorized User to make In-House use of the Software, provided that only the Authorized User of the Computer hosting the remote access session accesses and uses the Software with a remote access Computer. These remote access rights do not permit Licensee to use the Software on both the Computer hosting the remote access session and the Computer accessing the Software at the same time.
1.7 This EULA does not grant Licensee or Authorized User any rights in connection with any trademarks of Decisioneering.
1.8 Licensee acknowledges that the Software contains or includes third-party components ("Third-Party Software") that embody valuable trade secrets proprietary to Decisioneering's suppliers ("Suppliers"). Licensee covenants to treat all Third-Party Software as Software, including, but not limited to, the restrictions on use set forth in Section 1.0 et al and Licensee shall not use any Third-Party Software for development purposes. For any Third-Party Software that is licensed under an open source software license, the terms of the applicable license will apply. Nothing in this EULA limits Licensee’s rights under, or grants Licensee rights that supersede, the terms of any applicable open source license.
1.9 Licensee acknowledges that the Software may be accompanied by unsupported and untested software identified as ‘beta’ software provided as a convenience for Licensee (“Beta Software”). Beta Software may include additional features or functionality currently under development for inclusion in the Software, but is not currently tested or supported by Licensor. Licensee covenants to treat all Beta Software as Software, including, but not limited to, the restrictions on use set forth in Section 1.0, et al., and Licensee shall not use any Beta Software for development purposes. In general the license to Beta Software is provided at no charge, and Decisioneering reserves the right to charge for such software at a later date when such software has been tested, will be supported and has been made commercially available. Licensee’s rights with respect to the Beta Software will terminate upon the earlier of (i) the initial commercial release by Decisioneering of a generally available version of the Beta Software (whether as a stand-alone product or feature) or (b) automatic expiration of the Beta Software based on the system date and license file. Either party may terminate the license for Beta Software at any time for any reason or no reason by providing the other party advance written notice thereof. Upon any expiration or termination of the Beta Software license, the rights and licenses granted to Licensee under this EULA relating to the Beta Software shall immediately terminate, and Licensee shall immediately cease using, and will return to us (or, at our request, destroy), the Beta Software and all other tangible items in Licensee’s possession or control that are propriety to or contain confidential information.
2.0 MAINTENANCE
2.1 Licensee is entitled to Decisioneering English telephone and email help desk support services and Updates ("Maintenance") when Licensee is in compliance with obligations in this EULA, current with payment of Maintenance Fees, and has registered with Decisioneering. As used in this EULA:
2.1.1 "Error" shall mean a reproducible defect in the Software when operated on a Supported Environment, which causes the Software not to operate substantially in accordance with the Documentation.
2.1.2 "Support Hours" shall mean 8:00 a.m. to 5:00 p.m. (Mountain Time), Monday through Friday, excluding Decisioneering holidays.
2.1.3 "Supported Environment" shall mean any hardware, software, and operating system platform that Decisioneering supports for use with the Software as set forth in the Documentation.
2.1.4 "Update" shall mean a subsequent release of the Software that Decisioneering generally makes available for Software licensees at no additional Fees other than shipping and handling charges. The term Update shall not include any release, option or future product that Decisioneering licenses as a separate product. Any Update shall be limited to the same language as the original version, unless otherwise specified in another written agreement.
2.2 Decisioneering will provide English telephone and email help desk support during Support Hours; provided that all Qualified Educational Licensees defined in Section 1.6.1 (iii), or if you have TB Software as set forth in Section 1.6.3, shall only receive email support. Telephone and email support will include the following: (i) clarification of functions and features of the Software; (ii) clarification of the Documentation; (iii) guidance in operation of the Software; (iv) assistance in identifying and verifying the causes of suspected Errors in the Software; and (v) advice on bypassing identified Errors in the Software, if commercially reasonable. Telephone and email help desk support does not include consulting services, including, but not limited to, assistance on how the Software may be applied to Licensee's model or project.
2.3 Decisioneering will provide support services only for the most current and immediately preceding release of the Software. Decisioneering will not provide support services for Beta Software. Decisioneering shall have no responsibility under this EULA to fix any Errors arising out of or related to the following causes: (a) Licensee's modification or combination of the Software (in whole or in part), including, but not limited to, custom install scripts; (b) use of the Software in an environment other than a Supported Environment; (c) use of Beta Software; or (d) accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure or fluctuation of electric power, air conditioning or humidity control; failure of media not furnished by Decisioneering; excessive heating; fire and smoke damage; operation of the Software with other media and hardware, software or telecommunication interfaces not meeting or not maintained in accordance with the manufacturer's specifications; or causes other than ordinary use.
2.4 Decisioneering will provide Licensee Updates for the Software (excluding Beta Software) as and when developed for general release in Decisioneering's sole discretion, provided that Licensee is current with Maintenance Fees and has legally licensed the prior version. After installation of the Update, the prior version of the Software must be completely removed.
2.5 Once Maintenance has been terminated by Licensee, it can only be reinstated if Decisioneering is still offering Maintenance for such Software and Licensee pays (i) if reinstatement is within 12 months of the lapsed Maintenance, Maintenance Fees equal to 150% of the Maintenance Fees that would have been payable for the period of time during which the Maintenance was terminated for such Software, plus an additional year of Maintenance Fees, or (ii) if reinstatement is more than 12 months after the date which Maintenance was terminated, Maintenance Fees equal to the current upgrade pricing which shall include a year of Maintenance.
3.0 OWNERSHIP AND NON-ASSIGNABILITY
3.1 The Software, all property rights associated with the Software, the Documentation, and all other materials supplied by Decisioneering concerning the Software shall be and shall remain Decisioneering’s sole and exclusive property. The license granted hereunder does not constitute a transfer or sale of ownership rights in or to the Software or Documentation. Neither Licensee nor any Authorized User may transfer, sublicense, assign, or deliver, directly, indirectly, by operation of law, or otherwise (e.g. by merger, acquisition, or dissolution), any Software (or any portion or copy or image of the Software) or such license to any other person or entity without Decisioneering’s prior written consent. Any such assignment or transfer (i) shall be null and void, and (ii) shall not release Licensee or any Authorized User from the obligations this EULA imposes upon Licensee and each Authorized User.
3.2 Even where consent has been given so as to allow assignment or transfer, in no event may this EULA, the Software, the Documentation, and/or any other related information be further assigned or transferred without further prior written consent.
4.0 CONFIDENTIALITY
4.1 Licensee understands and agrees that the Software is the proprietary, confidential, and/or trade secret information of Decisioneering or of the Suppliers. Licensee agrees to maintain the Software in strict confidence. Licensee agrees to take all reasonable steps to ensure that no unauthorized persons shall have access to the Software and that all authorized persons having access to the Software shall refrain from any disclosure, duplication, or reproduction. Licensee agrees not to remove any copyright notice or other proprietary markings from the Software.
4.2 Licensee acknowledges and agrees that the Software is unique and that any failure to comply with the provisions of this Section 4 will result in irreparable harm to Decisioneering and the Suppliers, and that in the event of the breach or threatened breach by Licensee or by any Authorized User of the obligations imposed by this Section 4 on Licensee or on any Authorized User, Decisioneering may bring suit in equity and shall be entitled to enjoin any such actual or threatened breach without the posting of bond or other security.
5.0 LIMITED WARRANTY AND DISCLAIMER
5.1 Decisioneering warrants that when the Software is delivered that the Software (excluding any Third-Party Software or Beta Software) has been prepared or compiled in a professional and workmanlike manner. Decisioneering warrants that the Software (excluding any Third-Party Software or Beta Software) will perform substantially in accordance with the Documentation for a period of 90 days from the invoice date. The Software shall be considered accepted upon delivery.
5.2 OTHER THAN SECTION 5.1, THE SOFTWARE, THE DOCUMENTATION, MAINTENANCE, AND ANY OTHER MATERIALS THAT MAY BY BE PROVIDED BY DECISIONEERING ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND. DECISIONEERING, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SOFTWARE, THE DOCUMENTATION, MAINTENANCE, AND ANY OTHER MATERIALS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR COURSE OF PERFORMANCE. DECISIONEERING DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE ERROR-FREE, UNINTERRUPTED, VIRUS-FREE (OTHER THAN UPON DELIVERY) OR SECURE. LICENSEE ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES AND NO WARRANTIES ARE MADE HEREIN BY DECISIONEERING OR THE SUPPLIERS.
6.0 LIMITATION OF LIABILITY
6.1 DECISIONEERING SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT MAY BE RELATED TO THE FURNISHING, PERFORMANCE, OR USE BY LICENSEE OR BY ANY AUTHORIZED USER OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC, LOST PROFIT, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER; PROVIDED, THAT, DECISIONEERING SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND RELATING TO ANY DECISION MADE OR ACTION TAKEN OR NOT TAKEN BY LICENSEE IN RELIANCE UPON, OR INTERPRETATION OF, ANY OF THE RESULTS, INFORMATION, OR OUTPUT FROM THE SOFTWARE. DECISIONEERING’S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER THIS EULA SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE LICENSE, IF ANY.
7.0 INDEMNIFICATION
7.1 Decisioneering will, at its own expense, defend Licensee from and against any and all claims, costs, fees (including reasonable attorneys' fees), damages, liabilities and expenses arising from any third-party claim, action, suit or proceeding to the extent based upon a claim that the Software (excluding any Third-Party Software or Beta Software) infringes any U.S. patents or any copyrights or misappropriates any trade secrets of a third party. If the Software becomes, or in Decisioneering’s opinion is likely to become, the subject of an infringement claim, Decisioneering may, at its option and expense, either (i) procure for Licensee the right to continue using the Software, (ii) replace or modify the Software so that it becomes non-infringing, or (iii) accept return of the Software, terminate this EULA upon written notice and refund a prorated portion of the License Fees paid to Decisioneering, as depreciated on a 36-month straight-line amortization schedule beginning on date of the invoice from Decisioneering. Any refund of License Fees under this Section 7.1 shall be Licensee’s sole and exclusive remedy against Decisioneering for infringement actions relating to such Software. Notwithstanding the foregoing, Decisioneering shall have no obligations under this Section 7.1 or otherwise with respect to any infringement claim based upon: (i) use of the Software not in accordance with this EULA, Documentation or for purposes not intended by Decisioneering; (ii) the use or combination of the Software with other products, equipment, software or data not supplied by Decisioneering; (iii) use of any release of the Software other than the most current release made available to Licensee; (iv) use of any Third-Party Software or Beta Software; (v) modification of the Software by any person or entity other than Decisioneering or its authorized agents or subcontractors; or (vi) any activities of Licensee or its representatives after Decisioneering has notified Licensee that such activities may result in the infringement of the intellectual property rights of any third party. THIS SECTION 7.1 STATES DECISIONEERING'S ENTIRE LIABILITY AND LICENSEE'S EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT.
7.2 Licensee shall, at its own expense, indemnify, defend and hold Decisioneering harmless from and against any and all claims, costs, damages, liabilities, fees and expenses (including reasonable attorneys' fees) arising from any third-party claim, action, suit or proceeding to the extent such claim, action, suit or proceeding arises out of or relates to any act or omission of the Licensee or an Authorized User that would constitute a breach of this EULA.
7.3 The obligation of the indemnifying party to indemnify the indemnified party hereunder is predicated upon the indemnified party: (i) providing the indemnifying party prompt written notice of any such claim; (ii) allowing the indemnifying party to control the defense and any settlement of any such claim, provided that the indemnified party may, at its own expense, participate in such defense and settlement negotiations with counsel of its own choosing; and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party's request and expense, in the defense and settlement of such claim.
8.0 TERM AND TERMINATION
8.1 This EULA may be terminated for a material breach of the terms herein with 30-days written notice to the other party to cure such breach. If the EULA is terminated for breach of a material term by the Licensee, the license granted hereunder shall automatically terminate. Such license may also be terminated at Decisioneering’s option and without notice if Licensee becomes bankrupt or insolvent, avails itself of legislation designed to benefit insolvent debtors, or breaches any provision of this EULA and fails to remedy any such breach within 30 days of notice describing such breach. Even if Licensee’s license terminates, Sections 1.4, 3, 4, 6 and 9 shall survive such termination, and Licensee shall remain liable for the payment of all costs and expenses incurred by Decisioneering in the enforcement of its rights under this EULA. All remedies set forth in this EULA are cumulative and in addition to all other remedies available to Decisioneering in law or in equity.
8.2 Upon the termination or expiration of this EULA, Licensee and any Authorized Users shall forthwith: (i) cease to use the Software; (ii) return to Decisioneering all copies of the Software and completely remove the Software from any location owned or controlled by Licensee where the Software or any portion may be found; (iii) render unusable all copies of the Software stored on any hard disk or other form of electronic storage that cannot practically be separated from the Computer; and (iv) deliver to Decisioneering a certificate from one of Licensee’s officers certifying that there are no copies of the Software within Licensee’s custody, possession or control.
9.0 GENERAL
9.1 The terms of this EULA may not be altered by any course of performance between the parties, by any course of dealing, or by any usage of trade. Except as specifically set forth in this EULA, this EULA may be amended or terminated only by a written instrument executed by the parties. Failure to enforce a provision of this EULA shall not be construed as a waiver of any rights to enforce such provision. No terms in any written order or purchase order that vary from the terms of this EULA shall be of any force and effect, whether or not Decisioneering signs the order or otherwise indicates its acceptance, unless expressly referring to the specific variance(s) in question as a modification of this EULA. Licensee may use such forms only for Licensee's own internal reasons.
9.2 Licensee will pay any Fees to Decisioneering in accordance with the payment schedule and payment terms set forth in invoice(s), or other appropriate documents, from Decisioneering. All Fees are non-refundable except as otherwise provided in this EULA. Any portion of the Fees that is not paid when due will accrue interest at 1.5% per month or the maximum rate permitted by applicable law, whichever is less. Licensee will be responsible for the cost of any collection activity, including attorneys’ fees. The Fees exclude all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges, and Licensee will be responsible for payment of all such taxes (other than taxes based on Decisioneering’s net income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the Fees or the delivery or license of the Software to Licensee. Licensee will defend, indemnify, and hold harmless Decisioneering from all claims and liability arising from Licensee’s failure to report or pay any such taxes, fees, duties or charges.
9.3 Regardless of the place of performance, this EULA shall be governed by, and be construed and enforced in accordance with, the laws of the State of Colorado (excluding its choice of law rules). For any dispute that may arise under this EULA, the parties submits to the non-exclusive jurisdiction of the state and federal courts located in Denver, Colorado and waive any jurisdictional, venue, immunity, or inconvenient forum objections to such courts.
9.4 Licensee will permit Decisioneering or its representatives to review Licensee's relevant records and inspect Licensee's facilities to verify compliance with the terms and conditions of this EULA. Decisioneering will give at least ten days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with normal operations. Any such audit will be conducted at Decisioneering’s expense, unless the audit reveals that Licensee has materially breached any provision of this EULA, in which case Licensee will (a) reimburse Decisioneering for all reasonable costs and expenses incurred by it in connection with such audit and (b) pay additional Fees to Decisioneering in an amount equal to the then current retail price of any unauthorized use of the Software or Maintenance.
9.5 In the event that any portion of this EULA is held unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this EULA shall remain in full force and effect.
9.6 Each description of the Software and any written material used to facilitate or promote the Software are for the sole purposes of identification and are not to be construed as warranties.
9.7 Licensee and Authorized User will comply with all applicable laws including but not limited to export and import control laws and regulations in its use of the Software and Documentation, and Licensee and Authorized User will not export or re-export the Software or Documentation without all required U.S. and foreign government licenses. Licensee will defend, indemnify, and hold harmless Decisioneering from and against any violation of such laws or regulations by Licensee or any of its agents, officers, directors, or employees.
9.8 Subject to the first paragraph, this EULA constitutes the entire understanding between the parties concerning the subject matter of this EULA, superseding all prior or contemporaneous proposals, communications, and understandings, oral or written. The entire relationship between the parties shall be governed exclusively by this EULA. No amendment shall be valid unless in writing and signed by both parties.
9.9 Except as required by law, the controlling language of this EULA is English. If the laws of the county in which Licensee is located require that contracts be in the local language in order to be enforceable, the version of this EULA that shall govern is the translated version of this EULA in the local language that is produced by Decisioneering within a reasonable time following Licensee’s written request to Decisioneering.
9.10 Should any questions arise concerning this EULA, or to contact Decisioneering for any reason, please write: Decisioneering, Inc., 1515 Arapahoe Street, Suite 1300, Denver, CO 80202; call 800-289-2550 (U.S.); or visit www.crystalball.com.
DI EULA 10-11-06 V7.3