PLEASE READ This QUEUE END USER LICENSE agreement (THE "EULA") CAREFULLY. THIS EULA IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AS AN INDIVIDUAL OR A SINGLE ENTITY) ("You", "Your" or "Subscriber") AND QUEUE SOFTWARE INC. ("Queue") (PROVIDER OF The DROPSOURCE® software), LOCATED AT 311 SOUTH HARRINGTON STREET, SUITE 100, RALEIGH, NORTH CAROLINA 27603.
BY CLICKING THE "I ACCEPT" BUTTON, ACCESSING OR OTHERWISE USING THE DROPSOURCE® software, YOU AGREE THAT YOU HAVE READ THIS EULA, UNDERSTAND IT AND AGREE TO BE LEGALLY BOUND BY IT. IF YOU ARE ENTERING INTO THIS EULA ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY TO THIS EULA AND, accordingly, all references to "you" shall be deemed to refer to The company.
Definitions. For purposes of this EULA, the following capitalized terms have the meanings set forth below. Other capitalized terms are defined in context.
Grant of Rights to You.
Grant of Rights to Queue.
Similar Uses. You agree that (i) the Dropsource® Software generates software applications based on user-provided input and that users (other than You) may provide input that is the same as, or substantially similar to, Your Subscriber Input (the "Similar Input"), and (ii) based on the Similar Input provided by other users, the Dropsource® Software may generate a software application (including Output Code) that is the same as, or substantially similar to, Your Subscriber Application (each, a "Similar Application"). Notwithstanding anything to the contrary, You agree that You shall not challenge, threaten to challenge, sue, threaten sue or otherwise take any action against (or encourage or assist any third party) Queue based on any Similar Input or Similar Application, or the Dropsource® Software's functionality, and (b) contractually ensure that any third party that You provide any right, title or interest in and to Your Subscriber Input or Subscriber Application agrees to not to challenge, threaten to challenge, sue, threaten sue or otherwise take any action against (or encourage or assist any third party) Queue based on any Similar Input or Similar Application, or the Dropsource® Software's functionality.
Support Services. During the Subscription Term, Queue shall use commercially reasonable efforts to make the Dropsource® Software available to You without significant interruption or material deviations of the Dropsource® Software from its applicable Documentation (each, an "Error"). If the Dropsource® Software experiences material Errors that are not due to scheduled or intended downtime or as a result of events beyond Queue's control, Queue shall use commercially reasonable efforts to restore the intended functionality. You may contact Queue technical support during its operating business hours to report Errors. In addition to taking reasonable steps that Queue deems appropriate in response to reproducible Errors that Queue determines to be commensurate with the severity of the Error, Queue may also provide You with information regarding the availability of the Dropsource® Software.
Custom Services. If You desire Queue to develop software, computer code or other services not available through the Dropsource® Software (the "Custom Services"), You may present a written request to Queue outlining such work. The Parties shall then negotiate in good faith a written statement of work that includes a detailed description of the Custom Services, an estimated delivery schedule and associated fees. If both Parties agree to the statement of work, they shall enter into a separate agreement relating to the Custom Services.
Monitoring. You agree that Queue may monitor and audit Your use of the Dropsource® Software to confirm Your compliance with this EULA and for Queue's other business purposes, including analyzing and improving the Dropsource® Software.
Payment Terms; Taxes. You shall pay the fees in accordance with the payment terms included in the Order Terms. All fees are exclusive of all applicable taxes and You agree to pay all taxes (including, but not limited to, sales, use, excise and value-added taxes), tariffs, duties, customs fees or similar charges imposed or levied on Queue or You arising out of this EULA, except for taxes on Queue's net income.
Your Representations and Warranties. You represent and warrant to Queue that: (i) the Subscriber Assets do not and shall not infringe the Intellectual Property Rights of a third party; (ii) You shall not upload any virus or malicious code to the Dropsource® Software or otherwise use the Dropsource® Software to develop a virus or malicious code; (iii) You have the full power and authority to enter into this EULA and to carry out Your obligations under this EULA; and (iv) Your performance under this EULA does not violate any existing agreement between You and any other person or entity.
WARRANTY DISCLAIMER. QUEUE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE QUEUE ASSETS and THE SUBSCRIBER APPLICATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. QUEUE DOES NOT REPRESENT OR WARRANT THAT THE QUEUE ASSETS OR SUBSCRIBER APPLICATIONS ARE ERROR FREE, WILL OPERATE IN AN UNINTERRUPTED MANNER, ARE COMPLETELY SECURE OR WILL INTEROPERATE WITH THIRD PARTY SOFTWARE OR SERVICES. The QUEUE ASSETS AND SUBSCRIBER APPLICATIONS ARE PROVIDED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS AND ARE SUBJECT TO CHANGE OR TERMINATION AT ANY TIME AND FOR ANY REASON WITHOUT NOTICE. The QUEUE ASSETS AND SUBSCRIBER APPLICATIONS ARE NOT DESIGNED OR MANUFACTURED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN The OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT SYSTEMS OR WEAPON OR COMBAT SYSTEMS, IN WHICH THEIR FAILURE COULD LEAD TO PERSONAL INJURY, DEATH OR PROPERTY OR ENVIRONMENTAL DAMAGE. QUEUE DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES.
Limit of Liability. IN NO EVENT SHALL QUEUE BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR OTHER ECONOMIC LOSS, EVEN IF QUEUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL QUEUE'S LIABILITY, IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT OF PAYMENTS MADE TO Queue BY YOU OVER THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE CLAIM.
Federal Government Terms and Conditions; Exportation. If You are the U.S. Government or any agency or instrumentality of the U.S. Government, the Dropsource® Software is commercial computer software provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government (including any agencies and instrumentalities) and its contractors or subcontractors is subject to the restrictions set forth in this EULA and as provided in FAR 12.211 and 12.212 (48 C.F.R. §12.211 and 12.212) or DFARS 227.7202 (48 C.F.R. §227-7202), as applicable. Consistent with the above as applicable, Commercial Computer software and Commercial Computer Documentation is licensed to U.S. government end users only as commercial items and only with those rights as are granted to all other end users under the terms and conditions set forth in this EULA. You agree not to use or otherwise export or re-export the Dropsource® Software except as authorized by United States law and that the Dropsource® Software is subject to U.S. government sanctions and export control laws and regulations, including, but not limited to, the Export Administration Regulations (15 C.F.R. Part 730 et seq.), the Office of Foreign Assets Control regulations (31 C.F.R. Part 500 et seq.) (including the list of Specially Designated Nationals), and the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.) (collectively, the "U.S. Export Regulations"). You shall not: (i) export or re-export the Dropsource® Software (a) into (or to a national or resident of) any U.S. embargoed country, or (b) to any third party on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders, or (ii) otherwise engage in any activity involving the Dropsource® Software that would violate U.S. Export Regulations. You represent and warrant that You are not located in, under control of, or a national or resident of any such country or on any such list.
Your Indemnification. You shall defend, indemnify and hold Queue and its affiliates and their respective officers, directors, employees and agents harmless from and against any third party claim, action, suit or proceeding resulting from: (i) Your breach of Your representations and warranties set out in this EULA; (ii) any injury to persons caused by Your failure to exercise reasonable care or Your willful misconduct; (iii) any other breach of Your obligations under this EULA; (iv) Your use or exploitation of the Queue Assets and Subscriber Assets; and (v) Queue's use of the Subscriber Assets. You shall indemnify Queue for all losses, damages, liabilities and all reasonable expenses and costs incurred by Queue in any such claim, action, suit or proceeding. Queue shall: (a) give You reasonable written notice of any claim, action, suit or proceeding for which Queue is seeking indemnification; (b) granting control of the defense and settlement to You; and (c) reasonably cooperate with You at Your expense. Queue is entitled to participate in any defense at its own expense with counsel of its own choosing.
Confidentiality. Confidential Information under this EULA shall consist of all non-public information disclosed by Queue, whether oral or in writing (including electronic transmission): (i) that is designated as "Confidential" or "Proprietary" by Queue at the time of disclosure or within a reasonable period thereafter; (ii) that concerns the customers, finances, methods, research, processes or procedures of Queue; or (iii) that by the nature of the circumstances surrounding disclosure, or the information itself, should in good faith be treated as confidential (collectively, the "Confidential Information").
Term and Termination. Unless earlier terminated pursuant to this Section 16 (Term and Termination), this EULA shall come into force and effect on the Effective Date and shall continue for the period selected by You pursuant to the Order Terms (the "Subscription Term"), and shall automatically renew under the same terms and conditions as further explained in the Order Terms. If either Party is in material breach of any obligation under this EULA, the non-breaching Party may terminate this EULA for cause upon written notice after first (i) providing the other Party with written notice of the breach (a "Notice of Breach"), and (ii) providing thereafter a thirty (30) day opportunity to cure beginning on the date of receipt by the alleged breaching Party of the Notice of Breach. You agree that, notwithstanding anything to the contrary, upon termination or expiration of this EULA for any reason, Your rights to the Dropsource® Software and Documentation shall immediately terminate and You shall immediately stop accessing or otherwise using the Dropsource® Software and Documentation.
General. This EULA shall be governed and construed in all respects in accordance with the laws of the State of North Carolina without regard to any conflict of laws principles. The exclusive venue and jurisdiction for any action or proceeding arising out of this EULA shall be the state and federal courts located in Raleigh, North Carolina. The Parties accept the personal jurisdiction of such courts. This EULA is not assignable by You. Queue reserves the right to assign the rights and obligations under this EULA for any reason and in Queue's sole discretion. Queue shall not be liable hereunder by reason of any failure or delay in the performance of its obligations due to any other cause which is beyond its reasonable control. Any provision of this EULA determined to be unenforceable or invalid by applicable law or court decision shall not render this EULA unenforceable or invalid as a whole and, in such event, such provision shall be changed and interpreted so as to best accomplish its objectives within the limits of applicable law or court decision. Queue's failure to require Your performance of any obligation herein shall not affect the full right to require such performance at any time thereafter. Queue's waiver of Your breach of any obligation under this EULA shall not be taken or held to be a waiver of the obligation itself or of any past or subsequent breaches of the same obligation. This EULA and the Other Agreements (which are incorporated into this EULA for all purposes), sets forth the entire understanding and agreement of the Parties and supersedes any and all oral or written agreements or understandings between the Parties as to the subject matter of this EULA. In the event of a conflict between this EULA and the Other Agreements, the conflict shall be resolved in favor of this EULA. Accept as otherwise set out in the Other Agreements, this EULA may be changed only by a writing signed by both Parties. Neither Party is relying on any warranties, representations, assurances or inducements not expressly set forth herein. In addition to any other right or obligation that by its nature is intended to survive any termination or expiration, the following Sections shall survive any termination or expiration of this EULA: (i) Section 3.2 (Contributions); (ii) Section 4 (Ownership); (iii) Section 12 (Limit of Liability); (iv) Section 14 (Your Indemnification); (v) Section 15 (Confidentiality); and (vi) Section 17 (General).