Cercle X - End User License Agreement
BY INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS PUBLISHED ON Cercle X’S WEBSITE AT www.cerclex.com. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU AND IS LEGALLY BINDING BETWEEN YOU AND Infinite Cercle Inc., (“Cercle X”). IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT INSTALL THE SOFTWARE. IF YOU WISH TO USE THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO DO SO.
This End User License Agreement (“Agreement”) is between Cercle X and the individual or entity that has downloaded or otherwise procured the licensed Software or Appliance (as those terms are defined below) for use as an end user (“you” and “your”).
1.1 “Affiliate” means, with respect to a party, any legal entity (such as a corporation, partnership, or other legal entity) that controls, is controlled by, or is under common control with such party. For purposes of this definition, “control” means the legal power to direct or cause direction of the general management of the corporation, partnership, or other legal entity. Affiliates are “Your Affiliates” and Affiliates of Cercle X are “Cercle X Affiliates.”
1.2 “Authorized Partner” means a third-party reseller authorized by Cercle X to sell Software licenses and related Professional Services.
1.3. “Confidential Information” means: (a) the Software (which is Cercle X’s Confidential Information); (b) any information of a party that is disclosed in writing or orally and designated confidential at the time of disclosure (and, for oral disclosures, summarized in writing within 30 days of initial disclosure and delivered in written summary form to the receiving party), or that, due to the nature of the information or circumstances of disclosure, the receiving party should reasonably understand to be the disclosing party’s confidential information; and (c) the terms of this Agreement, any Order Form, any SOW, and any amendment or attachment to any of these (which will be deemed Confidential Information of both parties).
1.4. “Documentation” means the then-current, published installation and operating instructions, user manuals, and help files made available by Cercle X to you intended for use in connection with the Software.
1.5. “Effective Date” means the date of your first Order Form or the initial delivery date of the Software or Appliance (whichever is earlier).
1.6. “Intellectual Property Rights” or “IPR” means all intellectual property or other proprietary rights worldwide, including patent, trademark, service mark, copyright, trade secret, know-how, moral right, and any other intellectual and intangible property rights, including all continuations, continuations in part, applications, renewals, and extensions of any of the foregoing, whether registered or unregistered.
1.7. “Law” means all applicable laws, rules, statutes, decrees, decisions, orders, regulations, judgments, codes, and requirements of any government authority (federal, state, local, or international) having jurisdiction.
1.8. “License Term” means the period of authorized use of the Software as set forth in an Order Form.
1.9 “Order Form” means an ordering document signed by you and Cercle X or an Authorized Partner that specifies: (a) Software licenses purchased, their prices, and their License Term; and (b) the scope and price of Professional Services purchased (if any).
1.10. “Professional Services” means consulting, implementation, configuration, integration, or training services provided by Cercle X or its authorized service providers.
1.11. “Software” means any computer code provided by Cercle X to you under this Agreement pursuant to an Order Form.
1.12. “SOW” means a statement of work that describes the scope of Professional Services signed by you and Cercle X or an Authorized Partner.
1.13. “Support” means technical support and maintenance for the Software, as set forth in the Support Guide.
1.14. “Support Guide” means the Cercle X Support and Maintenance Program Guide at www.cerclex.com/legal.
1.15. “Your Data” means all data of any kind or nature that is loaded on the Software by or on your behalf.
2.1 Cercle X Orders. If you have signed an Order Form directly with Cercle X, then Cercle X will provide the Software or Professional Services identified in an Order Form or SOW pursuant to the terms of this Agreement. If you have purchased from an Authorized Partner of Cercle X, see Section 2.6 (Reseller Orders) below. Upon execution by you and Cercle X, each Order Form is non-cancellable and, except as otherwise provided in this Agreement, non-refundable. Prices stated in each Order Form are final, and Professional Services are separately ordered from (and not required for use of) Software. Support is purchased as part of the licensed Software as set forth in an Order Form.
2.2 Invoices and Payment. Cercle X will issue the initial Software invoice to you corresponding with each Order Form upon the later of: (a) when Cercle X notifies you that the Software is available for download; or (b) such Software is actually available for download. Each License Term is a non-divisible, continuous commitment, regardless of the invoice schedule, and pricing is based on a purchase of the entire License Term. Unless otherwise indicated in an Order Form, fees for Professional Services performed on a fixed fee basis are invoiced at the time of availability of the Software as provided in this Section, and fees for Professional Services performed on a time and materials basis are invoiced monthly in arrears. You will pay each invoice in full, within 15 days after the invoice date. Late payments will accrue interest at a rate of 1.5% per month or the legal maximum, whichever is lower. Cercle X may suspend the delivery of Professional Services while any payment is delinquent. You will make payments free of any currency controls or other restrictions, by check or wire transfer, to the address or bank account designated by Cercle X. You may not reduce any amount payable to Cercle X under this Agreement due to any counterclaim, set-off, adjustment, or other claim you might have against Cercle X, any other party, or otherwise.
2.3 Taxes. All payments, fees, and other charges payable by you to Cercle X under this Agreement are exclusive of all federal, state, local, and foreign taxes, levies, tariffs, duties, value-added taxes, export and import fees, withholding, and all other taxes or government assessments (collectively, “Taxes”). You will pay all Taxes arising out of the transactions contemplated by this Agreement (except Taxes based on Cercle X’s net income, property, or employees) or will provide Cercle X with a tax exemption certificate acceptable to the applicable taxing authorities.
2.4 Reseller Orders. If you received Software or an Appliance under an Order Form and agreement with an Authorized Partner (“Reseller Purchase Agreement”) and not Cercle X, then notwithstanding anything to contrary in this Agreement: (a) your use of the Software or Appliance is subject to any additional terms in the Reseller Purchase Agreement, including any limitations on use of the Software or Appliance in conjunction with third-party applications; and (b) Sections 2.2 and 2.3 will not apply to such Order Form, provided that you agree to pay the Authorized Partner the fees agreed in the Reseller Purchase Agreement associated with the Software licensed, Appliance, and any Professional Services purchased, and you have no direct payment obligations to Cercle X for such purchase. Any licensing, support, warranty, and other terms provided for the Software, Appliance, and Professional Services shall be exclusively as stated in this Agreement, and any additional or conflicting terms offered by the Authorized Partner shall be of no effect between you and Cercle X. Notwithstanding anything in this Agreement to the contrary: (i) the Reseller Purchase Agreement does not modify any of the terms of this Agreement; and (ii) the Reseller Purchase Agreement is between you and the Authorized Partner and is not binding on Cercle X. Cercle X may terminate this Agreement (including your right to use the Software or Appliance) in the event Cercle X fails to receive payment for your use of the Software or Appliance from the Authorized Partner or if you breach any term of this Agreement.
3. Support and Maintenance.
3.1 Program. During the License Term, Cercle X will provide Support for the Software pursuant to the Support Guide.
3.2 No Data Processing. To enable Cercle X to provide technical assistance in connection with Support, you may elect to provide Cercle X with temporary remote access to view your Software environment pursuant to instructions you provided to Cercle X and subject to the confidentiality provisions of Section 6 (Confidentiality) of this Agreement. The parties agree that Cercle X does not want or need, and you will not transmit to Cercle X or require that Cercle X receive your data.
4. License; Permitted Use; Restrictions.
4.1 Software. Subject to the terms and conditions of this Agreement and payment of all fees due, during the applicable License Term Cercle X grants to you a limited, revocable, non-exclusive, non-sublicensable, non-transferable, worldwide license to install, use, and execute the Software on a hardware device or in a software environment authorized by Cercle X in the Documentation (or in a separate writing provided by Cercle X to you), to the extent expressly specified in the applicable Order Form (including with regard to number of copies of the Software and permitted memory cache or other licensing metric), and solely during the License Term and solely for your internal business operations. Notwithstanding the foregoing, to the extent that Software is identified in an Order Form as “non-production,” “beta,” “test,” “pre-release,” “sandbox,” or any other non-production designation, then such Software will be used solely in a non-production environment. To the extent that you grant access to the Software to any third party (including Your Affiliate), you will be wholly responsible for compliance with this Agreement as if such third party were you.
4.2 Restrictions. You and your Affiliates will not (and have no license to): (a) use the Software or Documentation except as permitted in this Agreement; (b) disassemble, decompile, port, reverse compile, reverse engineer, translate, or otherwise attempt to separate any of the components of the Software or reconstruct any Software, or attempt to derive or obtain any source code, structure, algorithms, processes, techniques, technologies, know-how, or ideas embodied by, underlying, or contained in the Software; (c) sell, license, sublicense, rent, lease, encumber, lend, distribute, transfer, or provide a third party with access to the Software, on a hosted basis, as a managed service provider, or otherwise (except as expressly set forth in an Order Form); (d) alter, modify, or create derivative works of the Software (including the underlying source code) in any way, including through customization, translation, or localization; (e) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in the Software or Documentation; or (f) publicly disseminate any performance or security vulnerability test (including penetration test) results or analysis related to or derived from the Software. You will not cause, encourage, or permit any other person or entity under its control from taking any actions that you are prohibited from taking under this Agreement.
4.3 Open Source Software. Software may use or include one or more of the open source software components listed in the Cercle X open source attribution file, which Cercle X will make available to you on request. The open source attribution file contains open source license disclosures and pertinent terms.
5. Intellectual Property.
5.1 Ownership. As between the parties, Cercle X, Cercle X Affiliates, and its and their suppliers and licensors own all right, title, and interest in and to all IPR in (and in all copies of) the Software and Documentation, regardless of the form or media in or on which the original or other copies may subsequently exist. Except for the limited licenses expressly granted in this Agreement, Cercle X reserves all, and does not grant any other rights (express, implied, by estoppel, through exhaustion, or otherwise).The Software is licensed and not sold.
5.2 Feedback. Cercle X encourages you to provide suggestions, proposals, ideas, recommendations, or other input regarding the Software (collectively, “Feedback”). To the extent that you provide such voluntary Feedback to Cercle X, Cercle X may use it for any purpose without obligation of any kind.
5.3 Marketing. Neither party will issue any press releases or announcements, or any marketing, advertising, or other promotional materials, related to this Agreement, or referencing the other party, nor use the other party’s logo, trademarks and service marks, without the other party’s prior written approval.
6.1 Use of Confidential Information. For the term of this Agreement, and surviving expiration or termination of this Agreement for up to three (3) years after disclosure of the Confidential Information, the party receiving Confidential Information (the “receiving party”) from the other party (the “disclosing party”) will use it solely to perform the rights and obligations provided under this Agreement, and not for any other purpose without the disclosing party’s prior written consent. Subject to Section 6.2 (Exceptions), the receiving party will hold in confidence, and not disclose to any third party, any of the disclosing party’s Confidential Information. The receiving party will use at least the same degree of care in handling the disclosing party’s Confidential Information as it uses to protect its own Confidential Information, but no less than reasonable care. The receiving party will notify the disclosing party immediately on becoming aware of any unauthorized use or release of the disclosing party’s Confidential Information. The receiving party may disclose the disclosing party’s Confidential Information to those of its Affiliates, directors, advisors, employees, or contractors (collectively, “Representatives”) who have a need to know such Confidential Information to perform under or in relation to this Agreement, but only if such Representatives are subject to a binding, written agreement no less protective of disclosing party than the confidentiality terms of this Agreement. The receiving party will, at the disclosing party’s request or on termination of this Agreement, return all originals, copies, and summaries of Confidential Information and other tangible materials and devices provided to receiving party as Confidential Information, or at the disclosing party’s option, certify destruction of same (although nothing in this sentence may be construed to require Cercle X to purge archived backup media). Nothing under this Agreement or trade secret Law may be construed to restrict or limit Cercle X’s right to perform (or assign any personnel to perform) Professional Services for any other party or to use any information incidentally retained in the unaided memories of its personnel providing Professional Services.
6.2 Exceptions. The receiving party’s obligations under this Section 6 (Confidentiality) will not apply, and the receiving party will have no further obligations, with respect to any of the disclosing party’s Confidential Information that is: (a) generally known to the public at time of disclosure or becomes generally known through no wrongful act of receiving party; (b) rightfully in the receiving party’s possession, or otherwise rightfully known by the receiving party, at time of disclosure by the disclosing party and not subject to a confidentiality obligation; (c) required to be disclosed by the receiving party to comply with a court order or Law, but only if the receiving party promptly notifies disclosing party to enable the disclosing party to seek a protective order or other appropriate remedy, and takes commercially reasonable and lawful actions to avoid or minimize the extent of, and to obtain confidential treatment for, any such disclosure; or (d) independently developed by the receiving party without use of, reference to, or reliance on the disclosing party’s Confidential Information.
7.1 Software. Cercle X warrants that the Software will, under normal use, substantially conform to the specifications in the Documentation for 60 consecutive days from the date of the initial download. To submit a warranty claim, you must request Support and reference this Section 7.1. Cercle X will use commercially reasonable efforts to cause the Software to conform to the specifications in the Documentation at no charge to you, or if Cercle X determines such remedy to be impracticable, either party may terminate this Agreement and the applicable Order Form and you will receive a refund of any unused prepaid Software fees covering the remaining License Term following the effective date of termination. This warranty will not apply to: (a) use of the Software other than as described in the Documentation; (b) modification or use of an unsupported version of the Software by anyone but Cercle X; or (c) failure caused by a product not provided or expressly approved by Cercle X or its agents. This Section 7.1 sets forth your exclusive rights and remedies (and Cercle X’s entire liability) in relation to the warranty in this Section 7.1.
7.2 Professional Services. Cercle X warrants that it will perform Professional Services in a professional manner using reasonable care and skill in accordance with industry standards. You will notify Cercle X of any material breach within 30 days after performance of the non-conforming Professional Services. On receipt of such notice, Cercle X will use commercially reasonable efforts to re-perform the Professional Services in substantial conformance with these warranty requirements, and if Cercle X is unable to correct the reported non-conformity after two attempts, either party may terminate the applicable Order Form for Professional Services or SOW and you will receive a refund of any unused fees you have pre-paid for the Professional Services purchased thereunder. This Section 7.2 sets forth your exclusive rights and remedies (and Cercle X’s entire liability) in relation to the warranty in this Section 7.2.
7.3 Disclaimers. EXCEPT FOR THE LIMITED WARRANTIES UNDER SECTIONS 7.1 (SOFTWARE) AND 7.2 (PROFESSIONAL SERVICES) AND TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, Cercle X (ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS) AND Cercle X AFFILIATES: (A) DO NOT MAKE, AND EXPRESSLY DISCLAIM, ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SOFTWARE, SUPPORT, AND PROFESSIONAL SERVICES (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE), INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF Cercle X KNOWS OR SHOULD HAVE KNOWN SUCH PURPOSE), PERFORMANCE, AND NON-INFRINGEMENT; (B) PROVIDE THE SOFTWARE, SUPPORT, AND PROFESSIONAL SERVICES “AS IS” AND “AS AVAILABLE”; AND (C) WITHOUT LIMITING THE FOREGOING CLAUSES (A) AND (B), MAKE NO (AND EXPRESSLY DISCLAIM) ANY WARRANTY THAT THE SOFTWARE AND ANY USE THEREOF, WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, COMPATIBLE WITH ANY PARTICULAR ENVIRONMENT, OR FREE FROM DEFECTS, VIRUS, OR ERRORS (OR THAT ANY ERRORS WILL BE CORRECTED).
8. Limitations of Liability.
8.1 Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, EACH PARTY’S TOTAL, CUMULATIVE LIABILITY ARISING IN ANY WAY OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL BE LIMITED TO DIRECT DAMAGES INCURRED IN REASONABLE RELIANCE IN AN AMOUNT NOT EXCEEDING: (A) FOR ANY GIVEN CLAIM, THE AMOUNTS PAID OR PAYABLE BY YOU UNDER THIS AGREEMENT FOR THE SOFTWARE AND PROFESSIONAL SERVICES GIVING RISE TO THE CLAIM DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE MOST RECENT EVENT GIVING RISE TO THE LIABILITY; AND (B) FOR ALL SUCH CLAIMS IN THE AGGREGATE, US $25,000 OR THE SPECIFIC ORDER VALUE WHICHEVER IS LOWER.
8.2 Exclusions. TO THE EXTENT PERMITTED BY LAW, NEITHER Cercle X NOR YOU WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, MULTIPLE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR OTHER INDIRECT DAMAGES, OR FOR DAMAGES RELATING TO: (A) LOSS OR INACCURACY OF, OR DAMAGE TO, DATA; (B) LOST REVENUE OR PROFITS; (C) LOSS OF BUSINESS; (D) DAMAGE TO GOODWILL; (E) WORK STOPPAGE; (F) IMPAIRMENT OF OTHER ASSETS; OR (G) INDIRECT DAMAGES OF ANY TYPE HOWEVER CAUSED AND WITHOUT REGARD TO THE LEGAL THEORY UNDER WHICH THEY ARE SOUGHT, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, IN TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION, FORESEEABLE OR NOT, AND WITHOUT REGARD TO WHETHER A PARTY HAS BEEN ADVISED SUCH DAMAGES ARE POSSIBLE.
8.3 Applicability. The provisions of Sections 8.1 (Limitation of Liability) and 8.2 (Exclusions) do not apply to: (a) infringement, misappropriation, or other violation by a party of the other party’s IPR; (b) breach by a party of its obligations under Section 6 (Confidentiality) (but excluding claims or liability related to Your Data); or (c) payments to a third party arising from obligations under Section 9 (Third-Party Claims). These limitations and exclusions do, however, apply to and protect Your Affiliates, Cercle X Affiliates, and their respective suppliers and licensors.
8.4 Gross Negligence; Willful Misconduct. As provided by Law, nothing in this Agreement is intended or may be construed to limit a party’s liability in an action in tort (separate and distinct from a cause of action for a breach of this Agreement) for a party’s gross negligence or willful misconduct.
9. Third-Party Claims.
9.1 Obligation. Subject to the limitations in this Section 9 (Third-Party Claims), if a Claim is brought against you, or your subsidiaries, Affiliates, agents, licensees, or successors, or any agents, directors, officers, or employees of any of them, Cercle X will defend the Claim (including by paying litigation costs and reasonable attorneys’ fees) and pay any settlement or any adverse final judgment to the extent arising from the Claim. “Claim” means any suit, claim, action, or demand, in each case solely to the extent brought by an unaffiliated third party that, if true as alleged, reflects that: (a) the Software provided under, and used in accordance with, this Agreement, infringes any IPR of such third party; or (b) Cercle X’s personnel, when onsite at your premises, caused death, bodily harm, or damage to tangible personal property due to their negligence or willful misconduct.
9.2 Mitigation. If any Claim alleges any part of the Software infringes any third-party IPR, Cercle X may: (a) contest the Claim; (b) obtain permission from the claimant for your continued Software use; (c) avoid such Claim by replacing or modifying the Software with substantially similar software; or, if Cercle X determines in its sole discretion (after the exercise of commercially reasonable efforts to perform in accordance with the foregoing options (a), (b), or (c)) that options (a), (b), and (c) are not commercially practicable, then (d) terminate your license to the affected Software on 60 days’ prior notice and refund to you any prepaid license fees covering that part of the applicable License Term for such Software remaining after the effective date of termination.
9.3 Limitations. Cercle X will have no obligation or liability for any Claim to the extent arising in whole or in part from: (a) any Software that: (i) is or was used in accordance with your written specifications or instructions, each to the extent set forth or referenced in a SOW, and such specifications or instructions are the source of the alleged infringement; (ii) was modified by any party other than Cercle X (including you), if the alleged infringement relates to such modification; (iii) is or was combined or integrated with other products (hardware or software), processes, or materials (including your Data or other products provided by you or any third party) where the alleged infringement relates to, and would not have arisen but for, such combination; or (iv) is an unsupported version; (b) your continued use of the Software after expiration or termination of this Agreement or the corresponding Order Form (or continued use of the original Software after Cercle X’s provision of a replacement software under Section 9.2(c) (Mitigation); or (c) a claim based on IPR owned by you or Your Affiliates.
9.4 Process. Cercle X’s obligations under Section 9 (Third-Party Claims) are expressly conditioned on you: (a) notifying Cercle X promptly of any actual or threatened Claim; (b) giving Cercle X sole control of the defense of such Claim and any related settlement negotiations; and (c) cooperating and, at Cercle X’s reasonable request and expense, assisting in such defense. Cercle X will not stipulate, acknowledge, or admit fault or liability on your behalf, or publicize any settlement, without your prior written consent (which will not be unreasonably withheld or delayed). This Section 9 (Third-Party Claims) states Cercle X’s entire liability and your exclusive remedy for third-party claims and third-party actions.
10. Term and Termination.
10.1 Term and Termination. This Agreement begins on the Effective Date and continues until terminated under its terms. Either party may suspend performance or terminate this Agreement in its entirety: (a) on 30 days’ prior written notice, if there are no Order Forms then in effect; (b) immediately on written notice if the other becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership, or liquidation, in any jurisdiction, that is not dismissed within 60 days of its commencement or an assignment for the benefit of creditors; or (c) immediately on written notice if the other materially breaches this Agreement and has not cured the breach within 30 days after notice of the breach. In addition, either party may terminate an Order Form or SOW immediately on written notice if the other party materially breaches this Agreement or the applicable Order Form or SOW and has not cured the breach within 30 days after written notice of the breach.
10.2 Effect. On termination of this Agreement for any reason: (a) all licenses granted by Cercle X immediately terminate; (b) you will immediately discontinue use of all Software; (c) you will destroy all copies of Software and Documentation in its possession, custody, or control; and (d) if requested, you will certify such return or destruction to Cercle X in writing. Within 30 days after the effective date of proper termination for Cercle X’s material breach, Cercle X will refund any prepaid fees received by Cercle X covering that part of the License Term for the affected Software, if any, remaining after such effective date. If termination is for your breach, all remaining amounts are accelerated and deemed due and payable as of the termination date.
10.3 Survival. Except as otherwise provided in this Agreement, the following will survive termination of this Agreement: Sections 1 (Definitions), 2.2 (Invoices and Payment), 2.3 (Taxes), 4.2 (Restrictions), 5 (Intellectual Property), 6 (Confidentiality), 7.3 (Disclaimers), 8 (Limitations of Liability), 9 (Third-Party Claims), 10 (Term and Termination), 11 (Proper Conduct), and 12 (General).
11. Proper Conduct.
11.1 Compliance with Law. Each party will comply with all Law in its performance of this Agreement.
11.2 Responsibility for Security and Integrity of Your Data. The Software will be executed by you in your own datacenter environment. You are solely responsible for adequately duplicating, documenting, and protecting its Your Data, and Cercle X assumes no liability for your failure to do so. Cercle X’s access to Your Data in the performance of Professional Services or Support is subject to the following terms: (a) you are solely responsible for both the duration and configuration of the scope of access to Your Data; (b) you are is solely responsible for access control management and must ensure that any access to Your Data that you grant to Cercle X is limited to read-only access (unless otherwise required to perform Professional Services or Support); (c) you will not grant Cercle X access to any non-Cercle X environment; (d) Cercle X may only access Your Data through your secure workstations or networks that are provided, monitored, managed, configured, supported and maintained by you; (e) you must provide unique user credentials to any Cercle X resource that requires access to Your Data as described herein; (f) such credentials noted above will be solely managed by you and you will be responsible for any consumption generated from the supplied credentials; and (g) you will limit access to any of Your Data that is unencrypted or contains personal data and, if such access is granted, you shall use reasonable efforts to mask any personal or sensitive data.
11.3 High Risk Activity. You shall use the Software within the intended business purposes described in the Documentation, and not for any purpose that requires fail-safe performance including, but not limited to, stock trading, financial transaction processing such as credit card processing, electronic funds transfer, and check clearing, management of hazardous facilities or applications for which failure could result in death, personal injury, or severe physical or environmental damage (“High Risk Activity”). Cercle X, its licensors and suppliers expressly disclaim all warranties of fitness for any such use and you shall release and hold Cercle X, its licensors and suppliers harmless from liability arising out of the use of the Software for High Risk Activity.
11.4 Export Compliance. Each party will comply with local and foreign export control Law, including U.S. export control Law. The Software is subject to U.S. Export Administration Regulations (“EAR”) and you will comply with EAR. Without limiting the foregoing, you represent and warrant that: (a) you are not located in, and will not use any Software from, any country subject to U.S. export restrictions (currently including Cuba, Iran, North Korea, Sudan, Syria, and Crimea Region); (b) you will not use the Software in the design, development, or production of nuclear, chemical, or biological weapons, or rocket systems, space launch vehicles, sounding rockets, or unmanned air vehicle systems; and (c) you are not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. In addition, you are responsible for complying with any local Law that may impact your right to import, export, or use the Software or any of them.
11.5 License Review. Upon reasonable notice to you, you agree to grant Cercle X access to the Software to verify your use. You will reasonably cooperate with Cercle X and will promptly pay directly to Cercle X any underpayments revealed by such review.
12.1 Waiver; Amendment. No delay or failure by either party to exercise any right under this Agreement will waive that or any other right. A waiver of any breach of this Agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party. Any amendment to this Agreement must be in writing and signed by authorized representatives of both parties.
12.2 Assignment. Neither party will assign, delegate, or otherwise transfer this Agreement, or any of its rights or duties under it, to a third party without the other’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed. Any purported transaction in breach of this Section 12.2 is material and is void. Each party is, however, deemed to have consented to any such assignment, delegation, or transfer to: (a) an Affiliate; or (b) any entity that acquires all or substantially all of its capital stock or assets related to this Agreement through purchase, merger, consolidation, or otherwise, but only if such entity is not a direct competitor of the non-assigning party. Subject to the foregoing, this Agreement will bind and benefit the parties, their successors, and permitted assigns.
12.3 Notices. All notices and other communications under this Agreement will be: (a) in writing; (b) in English; and (c) deemed given when delivered (or the first business day after delivery with confirmation of receipt, for notices permitted by email). Notices under this Agreement will be sufficient only if: (i) personally delivered; (ii) delivered by a major commercial rapid delivery courier service with tracking capabilities; (iii) mailed by certified or registered mail, return receipt requested, to a party at the address stated in this Agreement (or at such address as the recipient has notified the other party of, before notice was sent); or (iv) sent via email, if the recipient’s email address is provided in this Agreement (but email will not be sufficient for notices regarding a Claim or alleged breach). All notices except for ordinary business communications will be cc’d to the address stated in this Agreement.
12.4 Security Precautions for Information. Once your information is in our possession we adhere to strict security guidelines, protecting it against unauthorized access. We are in compliance with privacy laws of India and not bound by privacy laws of any jurisdiction other than India. We work to protect the security of your information during transmission by using Secure Sockets Layer (SSL) software, which encrypts information you input in addition to maintaining security of your information as per the International Standards on “Information Technology Security Techniques Information Security Management System-Requirements”. We train and require our employees to safeguard your information. We also use physical, electronic and procedural safeguards by restricting access to personal information to those employees and agents for business purposes only. Additionally, we use internal and external resources to review the adequacy of our security procedures.We assume no liability for any disclosure of information due to errors in transmission, unauthorised third party access to our website and databases or other acts of third parties, or acts or omissions beyond our reasonable control and you shall not be entitled to hold Cercle X responsible for any breach of security. In the event Cercle X becomes aware of any security breach, it will notify you as soon as possible and take appropriate action to the best of its ability to remedy such a breach.
12.5 Force Majeure. Neither party will be responsible for any delay or failure in its performance of any obligation under this Agreement (other than payment) due to causes beyond its reasonable control, but only if the party invoking this Section 12.5 promptly notifies the other party and resumes performance promptly when conditions allow it to do so.
12.6 Relationship. The parties are independent contractors. Nothing in this Agreement will be construed to create a partnership, joint venture, agency, or other relationship. Neither party has any right or authority to assume or create any obligation of any kind, express or implied, in the other party’s name or on its behalf. There are no third-party beneficiaries to this Agreement. Cercle X’s licensors will have no liability of any kind under this Agreement. Cercle X’s liability with respect to any third-party software embedded in the Software will be subject to Section 8 (Limitations of Liability).12.7 Cercle X’s Customer List. You agree that Cercle X may disclose you as a customer of Cercle X and use your name and logo on Cercle X’s website and in Cercle X’s promotional materials.12.8 Language. Regardless of any language into which this Agreement may be translated, the official, controlling and governing version of this Agreement shall be exclusively the English language version.
12.9 Severability. If any part of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that part will be deemed reformed to effectuate the parties’ intentions, and the rest of this Agreement will remain in full force and effect.
12.10 Execution and Construction. This Agreement is effective only when executed by facsimile, via electronic signature service, or in counterparts, which together will be deemed the entire agreement. Such execution requirement is, without limitation, a material term. Section headings are intended solely for convenience and will not affect the meaning of this Agreement. This Agreement will be interpreted according to its plain meaning without presuming it should favor either party. Unless stated or context requires otherwise: (a) all internal references are to this Agreement and its parties; (b) first-level section references (e.g., “as provided in Section 1”) includes all subordinate subsections (e.g., 1.1, 1.2, etc.) within that section; (c) all monetary amounts are expressed and, if applicable, in U.S. dollars; and payable in customer country’s local currency. (d) “days” means calendar days; (e) “may” means that the applicable party has a right, but not a concomitant duty; (f) “partner,” if used in this Agreement or related documents, is used in its common, marketing sense and does not imply a partnership; (g) “notify” means to give notice under (and “notice” means a notice that complies with) Section 12.3 (Notices); (h) “current” or “currently” means “as of the Effective Date” but “then-current” means the present time when the applicable right is exercised or performance rendered or measured; (i) URLs are understood to also refer to successors, localizations, and information or resources linked from within websites at such URLs; (j) lists of examples following “including”, “e.g.”, “such as”, “excludes”, “for example”, or similar words are deemed to include “without limitation”; (k) the word “or” is deemed to be an inclusive “or”; and (l) a party’s choices under this Agreement are in its sole discretion. Any translation of the English-language version of this Agreement is for convenience only, and the English-language version will govern. If you are domiciled in Canada, the parties expressly wish to execute this Agreement and any associated documentation in English.
12.11 Entire Agreement. This Agreement sets forth the complete and exclusive agreement between the parties relating to its subject matter and supersedes all prior oral and written agreements, understandings, and communications (including any requests for quote, requests for information, requests for proposal, or the like), click-through agreements and embedded end-user license agreements, regarding its subject matter. Purchase orders issued by you will be effective solely to specify the quantities of Software and Professional Services ordered, and, to the extent such purchase orders are based on Cercle X’s Order Forms, the price. Invoices issued by Cercle X will be effective solely to specify the charges for the Software and Professional Services. All other terms and conditions printed or included on, or referenced in, such purchase orders, invoices, and other ordering documents or correspondence, that purport to add to or modify the terms of this Agreement are expressly rejected by Cercle X and will be of no force or effect.