Equo - End User License Agreement (EULA)

1. Definitions

   • 1.1 “Affiliate” means any entity that End Customer, directly or indirectly, controls; an entity that controls End Customer; or an entity that is under common control with End Customer. For purposes of this provision, “control” means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity.

   • 1.2 “Confidential Information” means all inventions, code, business, know-how, technical and financial information that one party (“Receiving Party”) obtains from the other party (“Disclosing Party”); provided that such information is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure; and provided further that any software, technical information or documentation provided by Equo (or its agents), performance information relating to the Software, shall be deemed Confidential Information of Equo without any marking or further designation.

   • 1.3 “End Customer Data” means End Customer’s electronic data.

   • 1.4 “Documentation” means the technical specification documentation generally made available by Equo to its subscription customers with regard to the Software.

   • 1.5 “Materials” means any materials provided by Equo to the End Customer in connection with the provision of Services.

   • 1.6 “Order Form” means the relevant ordering document referencing or incorporating this Agreement and reflecting the Software licenses, Services, and Support and Maintenance (as applicable), purchased by the End Customer from Equo or its Partner.

   • 1.6A “Partner” means Equo’s authorized reseller or channel partner with whom End Customer is ordering Software licenses, Services, or Support and Maintenance as applicable.

   • 1.7 “Services” means professional consulting services purchased by End Customer in the applicable Order Form and SOW and relating to training and assistance with the Equo Software, deployment, or usage.

   • 1.8 “Software” means (i) the proprietary Equo software products that are deployed on End Customer’s premise and that are specified in an Order Form; and (ii) all related Documentation for and any Support and Maintenance releases of the same Software (but excluding Third Party Solution Components).

   • 1.9 “SOW” means a Statement of Work between Equo and the End Customer or Partner and End Customer with respect to Services.

   • 1.10 “Subscription” means the End Customer’s right to access and use the relevant Software, Support and Maintenance on a subscription basis, as and to the extent listed on an Order Form.

   • 1.11 “Subscription Term” means the duration of a Subscription as set forth on an Order Form.

   • 1.12 “Support and Maintenance” means the applicable support and maintenance services as stated in the order form.

   • 1.13 “Term” means the period commencing as of the Effective Date and expiring on the day that the last Subscription Term under this Agreement terminates.

   • 1.14 "Third Party Solution Components" means online applications and offline software that are provided by entities or individuals other than Equo and that interoperate with the Software.

   • 1.15 “Users” means the End Customer’s employees and contractors which are authorized by End Customer to access and use Software purchased under an Order Form.

   • 1.16 “Warranty Period” means a period of thirty (30) days following the commencement of the relevant Subscription Term.

2. License(s); ownership

   • 2.1 License to Software. If and to the extent that the relevant Subscription covers Software, then the terms and conditions of Attachment 1 to this Agreement shall govern End Customer’s access to and use of that Software. With respect to the rights granted under either Attachment 1, End Customer covenants that it will (and will cause its Affiliates and Users to) not use or run on any of Customer’s computers, or have deployed for use, a copy of the Community Edition version of the Software and will comply with all applicable laws and regulations in the exercise of such rights.

   • 2.2 Ownership.

     • (a) Software. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided under a fully paid Subscription, Equo and its suppliers have and will retain all right, title and interest in and to the Software (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof. End Customer acknowledges that it is obtaining only a limited license right to access and use (as the case may be) the Software and that irrespective of any use of the words “purchase,” “sale,” or like terms hereunder no ownership rights are being conveyed to End Customer under this Agreement or otherwise. In addition, Equo will have a royalty-free, worldwide, irrevocable, perpetual license to use for any purpose any suggestions, enhancement requests, recommendations or other feedback provided by End Customer, including Users, relating to the Software.

     • (b) Services Work Product. End Customer shall have a license right to use or access any work product or Materials delivered as part of the Services provided by Partner or Equo, solely for its internal business purposes and solely in connection with (as the case may be) the Software regarding which the Services were commissioned. Other than the limited license described in the prior sentence, Equo shall retain all right, title and interest in and to any such Materials and Services work product delivered by Equo and any derivative, enhancement or modification thereof and End Customer maintains ownership of its Confidential Information.

   • 2.3 Subscription Term and Renewals. Unless otherwise designated in the Order Form, the term of any Subscription shall be one (1) year commencing on the Effective Date of the applicable Order Form. Each Subscription Term shall automatically renew for subsequent periods of the same length as the initial Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.

3. Term and Termination

   • 3.1 Term and Termination. This Agreement is effective during the Term. Partner may terminate this Agreement (including all related Order Forms) if End Customer fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach. Termination is not an exclusive remedy for Partner (or Equo), and the exercise of a termination right (or of any remedy under this Agreement) will be without prejudice to any other remedies Partner or Equo may have under this Agreement, by law, or otherwise. Either Partner or End Customer may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days thereafter)). For clarity, as a third party beneficiary to this Agreement, Equo shall have the right to enforce all rights of Partner hereunder.

   • 3.2 Effects of Termination. Upon expiration or termination of this Agreement for any reason: (a) any amounts owed to Partner or Equo under this Agreement before such termination will be immediately due and payable; (b) End Customer shall cease any and all use of the (as the case may be) Software, and destroy all copies of the latter and so certify to Equo or Partner in writing; (c) End Customer will return to Partner or Equo, Equo’s Confidential Information that it obtained during the course of this Agreement; and (d) End Customer must certify in writing to Equo or Partner that it has returned or destroyed all Equo Confidential Information.

   • 3.3 Survival. Sections 2.2, 2.3, 3.2, 6, shall survive any termination or expiration of this Agreement.

4. Warranties

   • 4.1 Limited Warranties. The limited warranties and remedies applicable to the Software, are as expressly set out in Attachment 1, respectively. With respect to Services, Partner or Equo warrant only that the relevant Services will be performed consistent with generally accepted industry standards. If the Services performed do not conform to such warranty, Partner or Equo will re-perform the non-conforming Services. The remedies in Attachment 1, and 4.2 are End Customer’s sole and exclusive remedies for breach of the relevant warranty and are Equo’s sole and exclusive liability for breach of such warranty.

   • 4.2 Warranty Exclusions. The warranties (if any) in Attachment 1, and Section 4.2 are made to and for the benefit of End Customer only. The warranties will apply only if (a) the relevant Equo product has been properly installed and used in accordance with the instructions in the applicable Documentation; (b) no modification, alteration or addition has been made to the relevant Equo product by anyone other than Equo or Partner; and (c) Equo receives written notification of the breach during the Warranty Period, and in the case of Services provided by Partner or Equo, within ten (10) days following the performance of the relevant Services. The above warranties shall not apply: (i) to defects in the Equo product due to negligence, abuse or improper use by End Customer; or (ii) items provided on a no charge or evaluation basis.

   • 4.3 DISCLAIMER OF WARRANTIES. THe warranties (if any) listed in attachment 1, and section 4.2 are LIMITED WARRANTies AND EXCEPT AS EXPRESSLY SET FORTH IN attachment 1, and section 4.2, THE SOFTWARE, documentation, all services PROVIDED BY EQUO and work product resulting from services PROVIDED BY EQUO, all materials, and support and maintenance are all PROVIDED “AS IS” without warranty of any kind. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, EQUO DOES NOT WARRANT THAT THE SOFTWARE (i) WILL OPERATE UNINTERRUPTED, (ii) WILL BE FREE FROM DEFECTS, OR (iii) HAVE BEEN DESIGNED TO MEET END CUSTOMER’S SPECIFIC BUSINESS REQUIREMENTS. NEITHER EQUO NOR ITS suppliers MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.

5. Support & Maintenance

   • 5.1 Support and Maintenance. During the time that End Customer has paid the applicable Subscription fees, Equo or Partner shall provide Support and Maintenance during the Subscription Term in accordance with Equo’s then-current standard support policies. End Customer agrees to provide Partner and Equo with such cooperation, materials, information, access and support which Equo deems to be reasonably required to allow Equo or Partner to successfully provide the Software, Support and Maintenance. End Customer understands and agrees that Equo’s obligations hereunder are expressly conditioned upon End Customer providing such cooperation, materials, information, access and support.

   • 5.2 End Customer Use of Third Party Solution Components. Under this Agreement Equo provides only the Software, Services and Support and Maintenance with respect to each of the Software. Equo does not provide any warranty on, and does not provide Support and Maintenance on Third Party Solution Components.

6. Indemnification

   • 6.1 Indemnity by Equo. Subject to the remainder of this Section 6, Equo shall defend End Customer against any third party claim that the Software infringes such third party’s patent or copyright (an “Infringement Claim”), and indemnify End Customer from the resulting costs and damages awarded against End Customer to the third party making such Infringement Claim, by a court of competent jurisdiction or agreed to in settlement; provided that End Customer: (i) notifies Equo promptly in writing of such Infringement Claim, (ii) grants Equo sole control over the defense and settlement thereof, and (iii) reasonably cooperates in response to a Equo request for assistance. Equo will have the exclusive right to defend any such Infringement Claim and make settlements thereof at its own discretion, and End Customer may not settle or compromise such Infringement Claim, except with prior written consent of Equo.

   • 6.2 Options. Should any Software, or in Equo’s opinion be likely to become, the subject of such an Infringement Claim, Equo shall, at its option and expense, (a) procure for End Customer the right to make continued use of the Software, (b) replace or modify such so that it becomes non-infringing, or (c) request return of the Software and upon such request the corresponding licenses under Attachment 1 shall be terminated and Equo shall refund the price paid by End Customer for the Subscription Term in which the Infringement Claim was asserted, less a pro rata portion of the Subscription fee reflecting that portion of the Subscription Term that was fulfilled prior to termination.

   • 6.3 Exclusions. Equo will have no obligation for claims of infringement resulting from (i) any modification of the Software by a party other than Equo if such infringement would have been avoided in the absence of such modifications; (ii) End Customer’s failure, within a reasonable time frame, to implement any replacement or modification of Software provided by Equo; (iii) any combination, operation, or use of the Software with any products, equipment, software, hardware, data, or business processes not supplied by Equo, including without limitation Third Party Solutions Components and End Customer Data if such infringement would not have occurred without the combination (iv) use for a purpose or in a manner for which the Software were not designed, (v) any intellectual property right owned or licensed by End Customer, excluding the Software, or (vi) End Customer using the Software after Equo notifies End Customer to discontinue using due to such a claim.

   • 6.4 Indemnity by End Customer. End Customer shall defend Equo against any third party Infringement Claim to the extent that they arise from any combination of Software provided by Equo with products, data or business processes not supplied by Equo, and indemnify Equo for any damages, attorney fees and costs finally awarded against Equo as a result of, or for any amounts paid by Equo under a court-approved settlement of, an Infringement Claim against Equo; provided that Equo (a) promptly gives End Customer written notice of the Infringement Claim against Equo; (b) gives End Customer sole control of the defense and settlement of the Infringement Claim against Equo (provided that End Customer may not settle any Infringement Claim against Equo unless the settlement unconditionally releases Equo of all liability); and (c) provides to End Customer all reasonable assistance, at End Customer’s expense.

   • 6.5 Limitation. THIS SECTION STATES END CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND EQUO’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.

7. Limitation of Remedies and Damages

   • 7.1 EQUO SHALL NOT BE LIABLE FOR (I) ANY COST OF COVER OR ANALOGOUS COSTS RELATED TO THE PROCUREMENT OF REPLACEMENT SERVICES; OR (II) ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

   • 7.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EQUO’S TOTAL AGGREGATE LIABILITY RELATING TO END CUSTOMER’S SUBLICENSE OF EQUO PRODUCTS, EQUO’S PROVISION OF SUPPORT AND MAINTENANCE OR SERVICES PROVIDED BY EQUO SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY EQUO’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE FEES ACTUALLY PAID BY PARTNER TO EQUO FOR THE PRODUCTS, SUPPORT AND MAINTENANCE, SERVICES REFERENCED IN THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.

   • 7.3 THE PROVISIONS OF THIS SECTION 7 ALLOCATE RISKS BETWEEN END CUSTOMER AND EQUO RELATING TO END CUSTOMER’S SUBLICENSE OF EQUO PRODUCTS. EQUO’S FEES FOR THE SOFTWARE, SERVICES AND SUPPORT AND MAINTENANCE REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.

   • 7.4 OTHER THAN CLAIMS FOR SUBSCRIPTION FEES AND INTEREST THEREON, END CUSTOMER SHALL NOT BRING ANY CLAIM AGAINST EQUO BASED ON OR ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, CLAIMS RELATING TO THE SOFTWARE) MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.

8. Confidential Information

   • Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). Each party will only disclose Confidential Information to its employees, agents, representatives and authorized contractors (collectively “Representatives”) having a need to know for the purposes of this Agreement. Each party will notify and inform such Representatives of each party's limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information and will obtain or have obtained its Representatives' agreements to comply with such limitations, duties, and obligations with regard to such Confidential Information no less restrictive than those contained herein. Each party is liable for all acts and omissions of the Representatives related to the other party’s Confidential Information. Each party agrees to give notice to the other party immediately after learning of or having reason to suspect a breach of any of the proprietary restrictions set forth in this Section. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

• 1. Grant of License. Subject to all of the terms and conditions of this Agreement, during the relevant Subscription Term, Equo grants to End Customer a non-transferable, non-sublicensable, non-exclusive license to use the Software in object code form for End Customer’s own internal business operations, but only in accordance with (i) the Documentation, (ii) this Agreement, and (iii) and all restrictions set forth in the applicable Order Form, including without limitation restrictions related to servers, users, and number of sub-licensed Cores (i.e., the total number of Cores which are running the Software cannot exceed the number of Cores with respect to which the End Customer has sub-licensed ), computer, website, or field of use. In addition, any third party providing services (“Third Party Service Providers”) to the End Customer may use the Software solely for End Customer’s internal benefit and solely within the scope of the restrictions just described. End Customer shall be liable for all violations of this Agreement by its Third Party Service Providers.

• 2. Installation and Copies. End Customer may copy and install on End Customer's computers for use only by End Customer's employees and Third Party Service Providers one (1) copy of the Software for each Subscription designated in the applicable Order Form. End Customer may also make one copy of the Software for archival purposes.

• 3. Use by Affiliates. Subject to the terms and conditions of the Agreement and of this Attachment 1, End Customer’s Affiliates may use the licenses granted to End Customer, provided that: (a) such use is only for the aggregate benefit of End Customer and its Affiliates; (b) End Customer remains responsible for each such Affiliate’s compliance with the terms and conditions of this Agreement and of each Order Form; (c) End Customer provides Equo advance written notice of each such Affiliate usage; (d) subject to the following subsection (e), use of the Software by all Affiliates and End Customer in the aggregate must be within the restrictions in the applicable Order Form; and (e) notwithstanding the foregoing, Affiliates may not use End Customer’s rights under any “enterprise wide” or unlimited Core (or other unlimited quantity) licenses unless Affiliate usage is specifically designated in the applicable Order Form.

• 4. License Restrictions. End Customer shall not (and shall not allow any third party to): (a) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from any encrypted or encoded portion of the Software, in whole or in part, nor will End Customer use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Software or encourage or permit others to do so, except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions (provided, however, before End Customer exercises any rights that End Customer believes to be entitled to based on mandatory law, End Customer shall provide Equo with thirty (30) days prior written notice and provide all reasonably requested information to allow Equo to assess End Customer’s claim and, at Equo’s sole discretion, to provide alternatives that reduce any adverse impact on Equo’s intellectual property or other rights); (b) sell, sublicense, rent, lease, distribute, market, or commercialize for any purpose, including timesharing or service bureau purposes: (i) the Software, (ii) any modified version or derivative work of the Software created by the End Customer or for the End Customer, or (iii) any Equo software, either modified or not, licensed under an open source license; (c) create, develop, license, install, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights that violate the technical restrictions of the Software, any additional licensing terms provided by Equo via product documentation, notification, and/or policy change posted at https://www.equoplatform.com, and the terms of the Agreement; (d) remove any product identification, proprietary, copyright or other notices contained in the Software; (e) modify or create a derivative work of any encrypted or encoded portion of the Software, or any other portion of the Software; or (f) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.

• 5. Open Source Software. The Software may include individual open source software components, each of which has its own copyright and its own applicable license conditions. Equo covenants that during the Subscription Term it is compliant with such open source license conditions.

• 6. Limited Software Warranty. Equo warrants, for End Customer’s benefit only, that during the Warranty Period, the Software shall operate in substantial conformity with the applicable Documentation. If during the Warranty Period the Software does not substantially conform to the description contained in the applicable Documentation, Equo’s sole liability (and End Customer’s sole and exclusive remedy) for any breach of this warranty shall be for Equo to correct the defects in the Software. End Customer acknowledges that the Software is subscription-based and that, in order to provide improved customer experience, Equo may make changes to the Software and that in such event, Equo will update the Documentation accordingly.

• 7. Restrictions on Use of Software Components. The software components, including Equo Chromium (SWT), Middleware, Security Component, Test Selection Component, and Comm API ("Software Components"), are exclusively intended for use in applications developed using the Equo Software Development Kit ("Equo SDK"), within the Equo Integrated Development Environment ("Equo IDE"), or in applications and products for which the entity or individual has obtained a valid commercial subscription from Equo. Users are expressly prohibited from using the Software Components in any applications or products that are not developed with the Equo SDK, or for which a commercial subscription has not been expressly purchased from Equo. The Equo IDE, being an application developed by Equo, integrates these Software Components and is fully sanctioned for use under this Agreement. Users are therefore authorized to use the Equo IDE for developing, testing, and deploying their applications. Any such unauthorized use constitutes a breach of this Agreement and may result in immediate termination of the license granted hereunder, without prejudice to any other rights or remedies available to Equo under law or equity.

• 8. Restrictions on Use of SDK Components. The SDK components, including Middleware, Security Component, Test Selection Component, and Comm API ("SDK Components"), are exclusively intended for use in applications developed using the Equo Software Development Kit ("Equo SDK"), within the Equo Integrated Development Environment ("Equo IDE"), or in applications and products for which the entity or individual has obtained a valid non-expired Equo Chromium commercial license. Users are expressly prohibited from using the SDK Components in any applications or products that are not developed with the Equo SDK, or for which a commercial subscription has not been expressly purchased from Equo. When purchasing a commercial license of Equo Chromium, users can only use the SDK Components with a valid non-expired Equo Chromium commercial license.