Tenfold End User License EULA
This Tenfold End User License EULA (this “EULA”) is between Callinize, Inc. a Delaware corporation doing business as Tenfold, having an office at 2222 Rio Grande St., Austin, TX 78705 (“Tenfold”) and the person (“End Customer”) who purchases a license or subscription to products that include the Tenfold Solution from a Tenfold authorized distributor (a “Distributor”). This EULA is a direct agreement between Tenfold and the End Customer and applies in addition to, and not in lieu of any agreement between the End Customer and the Distributor, (the “Distributor Agreement”). If there is a conflict between the terms of this EULA and the Distributor Agreement, this EULA controls.
End Customer may not use the Tenfold Solution unless it indicates its acceptance of this EULA in accordance with the Distributor’s signing instructions.
1. DEFINITIONS. Capitalized terms used in this EULA have the meaning given in the Section where they are first used, or the following meanings: Confidential Information means information disclosed by one party to the other party, on any media, whether before or after the effective date of the EULA that: (i) the recipient should reasonably understand to be confidential, such as (A) for End Customer, End Customer Data, and (B) for Tenfold, unpublished prices and other terms of service, audit and security reports, product development plans, network configuration, vendors, and other proprietary information or technology, or (ii) is marked or otherwise conspicuously designated as confidential by the disclosing party. Information that is independently developed by a party without reference to the other party’s Confidential Information, or that becomes available to a party, other than through violation of this EULA or applicable law, is not “Confidential Information” of the other party. Confidential Information includes information disclosed by making tangible objects or premises available for inspection; End Customer Data means the data that End Customer and its authorized users transmit, modify, or store using the Solution; Software means the general release executable version of Tenfold’s software that may be provided for End Customer’s installation on End Customer’s equipment as part of the Solution, as it may be updated by Tenfold during the Term; Supported Third Party Services means End Customer’s telecommunications systems and the third party services or technologies identified in the Distributor Agreement for which Tenfold enables an integration with the Tenfold Solution. Supported Third Party Services may include those for which Tenfold offers an integration feature as part of the general release Tenfold Solution offering, or those for which Tenfold or Distributor create a custom integration at End Customer’s request, or both; Tenfold Solution or Solution means the Tenfold online application service, any related interfaces, and a license for Software, if applicable based on the Third Party Services covered by the Distributor Agreement; and Tenfold Technology means: (i)the Tenfold Solution, and all related interfaces, portals, tools, and other information, materials, content, software and services that Tenfold provides for End Customer’s use or that Tenfold uses to provide the Tenfold Solution, (ii) all related documentation, (ii) all modifications to or derivative works of any of the foregoing, and (iv) all intellectual property rights embodied by or related to any of the foregoing.
2. TENFOLD SOLUTION. The Distributor is responsible for the implementation and delivery of the Tenfold Solution to End Customer in accordance with the Distributor Agreement, and Tenfold has no responsibility to the End Customer for any failure to implement or provide the Tenfold Solution. The Solution includes software features that enable End Customer to import data from Supported Third Party Services (the “Integration Features”). End Customer acknowledges that Tenfold’s Integration Features may be unavailable or may not work properly if the service provider’s API is unavailable or if the service provider modifies its API or services in a way that impacts the Tenfold Integration Feature. Tenfold does not endorse any service for which it offers an Integration Feature, and makes no commitments to End Customer regarding any Supported Third Party Services.
3. TENFOLD TECHNOLOGY. If the Solution includes Software, the Software is licensed to End Customer on a non-exclusive, limited term basis, solely for End Customer’s use in interacting with the online application service that is part of the Solution, and subject to the restrictions and conditions stated in this EULA that are applicable generally to the Tenfold Technology. The license may not be assigned except as part of an assignment of the Distributor Agreement that is permitted by the Distributor Agreement; End Customer may permit the use of the Software by individuals it is permitted to name as an authorized Solution users under the Distributor Agreement, subject to all terms, conditions and restrictions applicable to the license, but may not otherwise sublicense the Software; the license is worldwide, subject to applicable export laws; the license automatically terminates on expiration or earlier termination of the Distribution Agreement and on End Customer’s breach of the license. Tenfold retains all right, title and interest in and to the Tenfold Technology. End Customer may not use the Tenfold Technology except as expressly stated in the Distributor Agreement and such use is subject to the terms, conditions and restrictions of thisEULA. Specifically, but without limitation, End Customer may not: (i) rent, lease, lend, sell, redistribute, or sublicense the Tenfold Technology; (ii) modify, disassemble, de-compile, reverse engineer, attempt to derive the source code of the Tenfold Technology, use the Tenfold Technology separately from the online service platform operated by Tenfold, create any derivative works of the Tenfold Technology, or knowingly permit or encourage any third party to do so (except as and only to the extent that this restriction is prohibited by applicable law), (iii) use the Tenfold Technology in any manner to provide service bureau, time-sharing or other computer services to third parties, (iv) resell, distribute or otherwise transfer the Tenfold Technology, (v) use the Tenfold Technology to develop competing products or services, or (vi) publish any “benchmark” or other performance analysis of the Tenfold Technology. Notwithstanding anything to the contrary, if Software includes any code that is covered by an open source software license, the open source license controls over any conflicting term of the EULA. Tenfold will include with Software download files information regarding open source licenses, such as attributions and the location of the source code covered by the open source license.
4. SECURITY. On request, Tenfold will make available its materials describing its security safeguards and related audit and compliance reports (the “Security Materials”). End Customer acknowledges that the Security Materials are Tenfold’s sensitive Confidential Information and may be shared only with its personnel and professional advisors and consultants on a need-to-know basis. Neither of Tenfold or the Distributor is responsible to End Customer for any harm or damage resulting from a breach of Tenfold Solution securityexcept to the extent the breach resulted from Tenfold’s failure to provide the security safeguards described in the Security Materials. End Customer is responsible for determining if Tenfold’s security safeguards meet any regulatory requirements applicable to End Customer, and otherwise meet its security requirements.
5. WARRANTY DISCLAIMER. The Distributor is solely responsible for any service level commitments or warranties made in the Distributor Agreement. Tenfold makes no representations or warranties to the End Customer whatsoever and Tenfold hereby disclaims any implied warranties, such as a warranty of merchantability, fitness for a particular purpose, and non-infringement, and any representation or warranty that may arise through a course of dealing. End Customer acknowledges that the Solution may not be uninterrupted, error free, or completely secure.
6. CUSTOMER OBLIGATIONS. End Customer may not use the Tenfold Solution to collect or manage data from any third party service other than the Supported Third Party Services. End Customer represents and warrants that: (i) it has all necessary rights and licenses for the integration of the Supported Third Party Services with the Tenfold Solution as contemplated by this EULA, and (ii) its account with each provider of a Supported Third Party Service is in good standing as of the effective date of the Distributor Agreement and shall remain in good standing for the term of the Distributor Agreement. End Customer must use the Solution in compliance with applicable laws, including export laws. End Customer may not use the Tenfold Solution in a way that causes Tenfold to be in violation of the export laws of the United States or other jurisdiction from which the Tenfold Solution is provided. For example, End Customer may not authorize any person to use the Tenfold Solution that is on the list of Specially Designated Nationals and Blocked Persons issued by the U.S. Treasury Department’s Office of Foreign Asset Control (OFAC) or who is located in or is a national of any country that is embargoed under United States export laws, or use or permit the use of the Solution to process or store any data that is subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State.
7. CUSTOMER DATA. As between End Customer and Tenfold, End Customer owns and retains ownership and all rights in End Customer Data. Tenfold may use End Customer Data only to provide the Solution to End Customer or as otherwise expressly permitted by the EULA. End Customer acknowledges that “End Customer Data” does not include (i) data about End Customer’s use of the Solution, such as resource utilization and user behavior, or (ii) Aggregate Data as defined below. End Customer represents and warrants to Tenfold that: (i) any personal data that is included in the End Customer Data was collected in accordance with applicable law, and that End Customer has all necessary rights and authority to use and process the personal data, and to authorize Tenfold to use and process the personal data as contemplated by the EULA, including any required consents from individuals under applicable privacy laws, (ii) the End Customer Data does not include any data that is covered by special regulatory protections such as data regarding an individual’s race, religious beliefs, or political affiliations, or any financial account information, personal data about children covered by the Children’s Online Privacy Protection Act, cardholder data covered by the Payment Card Industry Data Security Standard, or “protected health information” or “PHI” as defined under the Administrative Simplification Subtitle of the Health Insurance Portability and Accountability Act of 1996, as amended by Subtitle D of the Health Information Technology for Economic and Clinical Health Act, and their implementing regulations. If the End Customer Data includes personal data that is covered by the European Union’s General Data Protection Act, End Customer has given Tenfold notice of this fact. Tenfold may aggregate End Customer Data with similar data from public or private data sets, including aggregate data of Tenfold’s other customers, and use and commercialize the resulting data sets and insights derived from the analysis of the resulting data sets (“Aggregate Data”), provided that: (i) if the data used to create the Aggregate Data includes any personal data, Tenfold either excludes this data from the data set, or de-identifies the data, and (ii) Tenfold removes from the data set any information that identifies End Customer. End Customer acknowledges that Tenfold may publish insights derived from its analysis of data sets created in accordance with this Section that involve disclosure of the geographies, organization types, and other attributes of the customers whose data is included in the data sets.
8. TERM, TERMINATION AND SUSPENSION. This is a limited term EULA that terminates on expiration or earlier termination of your license or subscription for the Distributor products that include the Tenfold Technology. Tenfold may terminate this EULA, on written notice if the End Customer is in material violation of any term of this EULA. Tenfold may suspend the Tenfold Solution during any period that End Customer in in material breach of the EULA or End Customer’s access to the Solution creates a material security vulnerability for Tenfold or any other Tenfold customer. All sections of this EULA survive expiration or earlier termination of the EULA.
9. INDEMNIFICATION. 9.1 Claims Against End Customer. Tenfold will defend, at its expense, any claim brought against End Customer or End Customer’s officers, directors or personnel (“End Customer’s Indemnitees”) by a person who is not affiliated with any of them to the extent that the claim: (i) arises from or is based on Tenfold’s violation of law, gross negligence or intentional misconduct, or (ii) asserts that End Customer’s use of the Solution as permitted by the EULA infringes the intellectual property rights of the third party recognized in the United States, the European Economic Area, Japan or Australia and (“IP Claim”); and will pay any resulting final award of damages, costs, and expenses (including court costs and reasonable attorney fees) entered by a court or other tribunal with jurisdiction. Notwithstanding anything in this subsection to the contrary, Tenfold’s obligations under this subsection do not extend any claim of intellectual property infringement to the extent the claim is based on End Customer’s combination of the Solution with technology not provided by Tenfold, End Customer’s unauthorized change to the Solution, or Tenfold’s compliance with End Customer’s specific directives that are not standard for Tenfold (the “Exclusions”). 9.2 Claims Against Tenfold. End Customer will defend, at its expense, any claim brought against Tenfold, its officers, directors or personnel (the “Tenfold Indemnitees”) by a person who is not affiliated with any of them to the extent the claim: (i) arises from or is based on End Customer’s violation of the law, gross negligence or intentional misconduct, or (ii) is brought by or on behalf of a data subject whose personal data is included in End Customer’s Data, except to the extent such claim arises from Tenfold’s breach of its obligations to End Customer under this EULA, or (iii) is an Exclusion defined in 12.1; and will pay any resulting final award of damages, costs, and expenses (including court costs and reasonable attorney fees) entered by a court or other tribunal with jurisdiction. 9.3 Procedures. The indemnified party must give notice of the indemnified claim to the indemnifying party within 10 days of the date the claim is made, provided that failure to give notice within the 10 day period does not relieve the indemnifying party of its obligations under this Section except to the extent the delay prejudices the defense of the matter. The indemnifying party has the right to select counsel to defend the indemnified claim, and has the right to control the defense of the claim, except that the indemnified party may participate in the defense of the claim at the indemnified party’s option and expense, with counsel of its choice. The indemnified party must comply with the indemnifying party’s request for information or cooperation regarding the defense of the claim. The indemnifying party may settle any indemnified claim, in its discretion, provided that the settlement fully resolves the indemnified party’s and its Indemnitees’ liability and does not require the indemnified party or its Indemnitees to make an admission of culpability.
10. LIMITS ON LIABILITY. End Customer agrees that none of Tenfold or its affiliates, licensors, suppliers or subcontractors is liable to End Customer for any lost profits, lost revenue, lost business opportunity, or any indirect, special, incidental, punitive, or consequential loss or damage of any kind arising in connection with End Customer’s purchase of the Distributor product that includes the Tenfold Solution, the use of the Tenfold Solution, or any activity contemplated by or performed in connection with the Distributor Agreement or this EULA, even if Tenfold has been advised of or should be aware of the possibility of such damages, and that in no event shall the maximum aggregate liability of Tenfold and its affiliates, licensors, suppliers and subcontractors to End Customer or any person claiming by, through, or under End Customer exceed Ten Thousand Dollars ($10,000.00). For clarity, the maximum aggregate monetary limit stated in this Section is not “per incident” but is an aggregate limitation applicable to all claims covered by this paragraph. End Customer acknowledges that Tenfold has permitted the use of the Tenfold Solution and the license of any Software in reliance on the limitations of remedies and liability stated in this EULA, and that these limitations reflect an agreed allocation of risk between the parties. The limitations stated in this Section apply to any liability arising from any cause of action whatsoever, whether in contract, tort, commercial code, strict liability or otherwise, even if a limited remedy fails of its essential purpose.
11. CONFIDENTIALITY. Neither party may use the other party’s Confidential Information except in connection with the performance or use of the Solution, as applicable, the exercise of the party’s legal rights under this EULA, or as may be otherwise permitted under this EULA or required by law. Each party agrees not to disclose the other party’s Confidential Information to any other person except as follows: (i) to the party’s respective service providers, agents and representatives, provided that such service providers, agents or representatives are bound by written confidentiality measures that are at least as stringent as these terms; (ii) in response to a subpoena or other compulsory legal process, provided that each party shall give the other advance written notice of at least seven (7) days prior to disclosing Confidential Information under this subparagraph (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law or a reasonable interpretation of it, forbids such notice; or (iii) as required by law, such as a requirement under a data privacy regulation that a notice of data breach be given to a supervisory authority or regulatory agency. On expiration or earlier termination of the EULA, each party will return or destroy the other party’s Confidential Information. Tenfold’s obligations to safeguard End Customer Data are stated in Section 4 (Security). For Confidential Information other than End Customer Data, Tenfold will use commercially reasonable care to prevent the unauthorized use, disclosure, corruption and deletion of the Confidential Information. End Customer will use commercially reasonable care to protect Tenfold’s Confidential Information. Each of End Customer and Tenfold is responsible for a breach of this Section by its service providers, agents and representatives to whom it has disclosed the other party’s Confidential Information.
12. INTERPRETATIONS. The use of the word “including” should be read to mean “including, without limitation.” The word “personnel” refers to the employees and individual contractors of the person referred to. The term “parties,” either in lower- or upper-case form, refers to the signatories to this EULA. For notice purposes, the words “business day,” “business hours,” or the like means Monday – Friday, 9:00 a.m. – 5:00 p.m., United States Central Time, excluding federal public holidays in the United States. A reference to “day” shall mean a calendar day, unless expressly designated as a “business” day. All software and other technology provided for End Customer’s use is licensed and not sold; any references to a sale or purchase of software or other technology means the sale or purchase of a subscription license. Any requirement in this EULA that a statement be written, in writing, or a like requirement is satisfied by an email or other digital form of writing unless expressly stated otherwise. Nouns stated in the singular imply the plural as indicated by the context, and pronouns that are gender specific refer to either gender. The Section captions in this EULA are for convenience only; they are not part of this EULA and may not be used to interpret the terms of this EULA.
13. GENERAL. The EULA is governed by and should be interpreted under the laws of the State of Texas, and the United States of America, as applicable, without giving effect to any conflicts of law principles that would require the application of the law of a different jurisdiction. The parties expressly and irrevocably disclaim and waive the application of the United Nations Convention on Contracts for the International Sale of Good and the Uniform Computer Information Act. Each party agrees that it shall bring any lawsuit or other legal action related to this EULA in the State or Federal courts sitting in Travis County, Texas. Neither party shall dispute the personal jurisdiction of such courts, and each party waives any objection it may have as to the venue of such courts. If End Customer provide any feedback, comments, or suggestions for the improvement of the Tenfold Solution (“Suggestions”), End Customer hereby license the Suggestions and all related intellectual property to Tenfold on a non-exclusive, worldwide, fully paid, perpetual, irrevocable basis for Tenfold to use, disclose, modify, reproduce, license, distribute, commercialize and otherwise freely exploit without restriction of any kind, without obligation to account for or share revenue or profits. Except for the rights expressly granted in the EULA, each party retains all right, title and interest in and to its intellectual property, and the parties agree that no rights in intellectual property are conferred by implication or estoppel. End Customer’s notices to Tenfold must be submitted by electronic mail to email@example.com. Tenfold’s notices to End Customer must be given to End Customer’s primary account contact at the email address provided to Tenfold by End Customer or the Distributor, and if available to Tenfold, copied to the physical address for the primary contact for End Customer. Notices are deemed given, received and effective as of the time transmitted by electronic mail, or if that time does not fall on a business day, as of the beginning of the first business day following the time transmitted. Notices must be given in the English language. A party may change its address for notice by giving notice in the manner stated in this Section. To the extent permitted by applicable law, each party waives the right to a trial by jury in respect of any litigation arising out of this EULA and the parties’ activities regarding this EULA. There are no other third-party beneficiaries under this EULA. In the event one or more of the terms of this EULA are adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret this EULA as if such terms had not been included, or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the EULA. No modification, amendment, or waiver of any provision of this EULA or an Order will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any preprinted term or condition stated in any business form is void.
This EULA is the entire agreement between End Customer and Tenfold regarding End Customer’s use of the Tenfold Solution and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.