End User License Agreement
- 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 “Cloud Offerings” means the proprietary ModusBox web-based products and services that may be set forth on an Order Form and subsequently made available by ModusBox (through Partner, pursuant to this Agreement) via the End Customer login link designated by ModusBox, including associated offline components, as described in the Documentation (but excluding Third Party Solution Components or infrastructure).
- 1.3 “Confidential Information” means all code, inventions, know-how, business, 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, documentation or technical information provided by ModusBox (or its agents), performance information relating to the Software, shall be deemed Confidential Information of ModusBox without any marking or further designation.
- 1.4 “End Customer” means the entity to whom Software or Cloud Offers are licensed on a subscription basis for its internal business purposes, or to whom Services are provided (by ModusBox or Partner).
- 1.5 “End Customer Data” means End Customer’s electronic data other than Log Data.
- 1.6 “Documentation” means the technical specification documentation generally made available by ModusBox to its subscription customers with regard to the Software.
- 1.7 “Materials” means any materials provided by ModusBox to End Customer in connection with the provision of Services.
- 1.8 “Order Form” means the relevant ordering document referencing or incorporating this Agreement and reflecting the Software, Cloud Offerings, Services, and Support and Maintenance (as applicable), purchased by End Customer from Partner.
- 1.9 “Services” means professional consulting services purchased by End Customer in the applicable Order Form and SOW and relating to training and assistance with Software or Cloud Offerings installation, deployment, or usage.
- 1.10 “Software” means (i) the proprietary ModusBox 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).
- 1.11 “SOW” means a Statement of Work between ModusBox and End Customer or Partner and End Customer with respect to Services.
- 1.12 “Subscription” means the End Customer’s right to access and use the relevant Software or Cloud Offerings and Support and Maintenance on a subscription basis, as and to the extent listed on an Order Form.
- 1.13 “Subscription Term” means the duration of a Subscription as set forth on an Order Form.
- 1.14 “Support and Maintenance” means the applicable support and maintenance services as provided for in the following link: https://www.modusbox.com/legal/support-maintenance-terms.
- 1.15 “Term” means the period commencing as of the Effective Date and expiring on the day that the last Subscription Term under this Agreement terminates.
- 1.16 “Third Party Solution Components” means online applications and offline software that are provided by entities or individuals other than ModusBox and that interoperate with the Software or Cloud Offerings.
- 1.17 “Users” means the End Customer’s employees and contractors which are authorized by End Customer to access and use Software or Cloud Offerings purchased under an Order Form.
- 1.18 “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; Access to Cloud Offerings. 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. If and to the extent that the relevant Subscription covers Cloud Offerings, then the terms and conditions of Attachment 2 to this Agreement shall govern End Customer’s access to and use of the Cloud Offerings. With respect to the rights granted under either Attachment 1 or Attachment 2, End Customer covenants that it will comply with all applicable laws and regulations in the exercise of such rights.
- 2.2 Ownership
- 2.2.1 Software and Cloud Offerings. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided under a fully paid Subscription, ModusBox and its suppliers have and will retain all right, title and interest in and to the Software and the Cloud Offerings (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 or Cloud Offerings 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, ModusBox 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 or Cloud Offerings.
- 2.2.2 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 ModusBox, solely for its internal business purposes and solely in connection with (as the case may be) the Software or Cloud Offerings regarding which the Services were commissioned, and (without limiting the foregoing) End Customer shall not license, sell or offer the Software or Cloud Offerings on a service bureau basis. Other than the limited license described in the prior sentence, ModusBox shall retain all right, title and interest in and to any such Materials and Services work product delivered by ModusBox 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 ModusBox), and the exercise of a termination right (or of any remedy under this Agreement) will be without prejudice to any other remedies Partner or ModusBox 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, ModusBox 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 ModusBox 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) Cloud Offerings or Software, and destroy all copies of the latter and so certify to ModusBox or Partner in writing; (c) End Customer will return to Partner or ModusBox, ModusBox’s Confidential Information that it obtained during the course of this Agreement; and (d) End Customer must certify in writing to ModusBox or Partner that it has returned or destroyed all ModusBox Confidential Information.
- 3.3 Suspension of Cloud Offerings. In addition to its other rights under this Section 3, ModusBox or Partner may suspend or terminate End Customer’s access to the Cloud Offerings upon written notice in order to: (a) prevent damage to or degradation of, the Cloud Offerings caused by End Customer; or (b) comply with any law, regulation, court order, or other governmental request or order which requires immediate action. If suspended, ModusBox will promptly restore use of the Cloud Offerings to End Customer as soon as the event giving rise to the suspension has been resolved to ModusBox’s satisfaction.
- 3.4 Survival. Sections 1, 2.2, 3.2, 3.4, 4.3, 6, 7, and 8 shall survive any termination or expiration of this Agreement.
- 4.1 Limited Warranties. The limited warranties and remedies applicable to the Software or Cloud Offerings, are as expressly set out in Attachment 1 and Attachment 2, respectively. With respect to Services, performed by Partner or ModusBox, the respective performing party warrants 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 ModusBox will re-perform the non-conforming Services. The remedies in Attachment 1, Attachment 2 and 4.1 are End Customer’s sole and exclusive remedies for breach of the relevant warranty and are ModusBox’s sole and exclusive liability for breach of such warranty.
- 4.2 Warranty Exclusions. The warranties (if any) in Attachment 1, Attachment 2 and Section 4.2 are made to and for the benefit of End Customer only. The warranties will apply only if (a) the relevant ModusBox 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 ModusBox product by anyone other than ModusBox; and (c) ModusBox (or Partner if it performed Services) receives written notification of the breach during the Warranty Period, and in the case of Services provided by Partner or ModusBox, within ten (10) days following the performance of the relevant Services. The above warranties shall not apply: (i) to defects in the ModusBox 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, Attachment 2, and section 4.1 are LIMITED WARRANTIES AND EXCEPT AS EXPRESSLY SET FORTH IN Attachment 1, Attachment 2, and section 4.1, THE SOFTWARE, DOCUMENTATION, CLOUD OFFERINGS, ALL SERVICES PROVIDED BY MODUSBOX AND WORK PRODUCT RESULTING FROM THE SERVICES PROVIDED BY MODUSBOX, ALL MATERIALS, AND SUPPORT AND MAINTENANCE ARE ALL PROVIDED “AS IS” WIHTOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, MODUSBOX DOES NOT WARRANT THAT THE SOFTWARE OR CLOUD OFFERINGS (i) WILL OPERATE UNINTERRUPTED, (ii) WILL BE FREE FROM DEFECTS, OR (iii) HAVE BEEN DESIGNED TO MEET END CUSTOMER’S SPECIFIC BUSINESS REQUIREMENTS. NEITHER MODUSBOX 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
- 5.2 Support and Maintenance. During the time that End Customer has paid the applicable Subscription fees, ModusBox on behalf of Partner shall provide Support and Maintenance during the Subscription Term in accordance with ModusBox’s then-current standard support policies. End Customer agrees to provide Partner and ModusBox with such cooperation, materials, information, access and support which ModusBox deems to be reasonably required to allow ModusBox to successfully provide the Software, the Cloud Offerings, and Support and Maintenance, as purchased from Partner. End Customer understands and agrees that ModusBox’s obligations hereunder are expressly conditioned upon End Customer providing such cooperation, materials, information, access and support.
- 5.3 End Customer Use of Third Party Solution Components. Under this Agreement ModusBox provides only the Software, the Cloud Offerings, Services and Support and Maintenance with respect to each of the Software and Cloud Offerings. ModusBox does not provide any warranty on, and does not provide Support and Maintenance on Third Party Solution Components. ModusBox may provide End Customer with links and instructions for obtaining Third Party Solution Components or provide access to them, but it is End Customer’s sole responsibility to properly license and install any required Third Party Solution Components from the relevant third party providers. ModusBox will have no liability with respect to any Third Party Solution Components. If applicable, prior to ModusBox starting any Services that require the use of Third Party Solution Components, End Customer will provide documentation to ModusBox confirming that End Customer can provide the rights necessary to allow ModusBox to modify the Third Party Solution Component software if necessary.
- 6.1 Indemnity by ModusBox. Subject to the remainder of this Section 6, ModusBox shall defend End Customer against any third party claim that the Software or Cloud Offerings 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 ModusBox promptly in writing of such Infringement Claim, (ii) grants ModusBox sole control over the defense and settlement thereof, and (iii) reasonably cooperates in response to a ModusBox request for assistance. ModusBox 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 ModusBox.
- 6.2 Options. Should any Software or the Cloud Offerings become, or in ModusBox’s opinion be likely to become, the subject of such an Infringement Claim, ModusBox shall, at its option and expense, (a) procure for End Customer the right to make continued use of the Software or Cloud Offerings, (b) replace or modify such so that it becomes non-infringing, or (c) request return of the Software or termination of the access to the Cloud Offerings and upon such request the corresponding licenses under Attachment 1 or 2 shall be terminated and ModusBox 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. ModusBox will have no obligation for claims of infringement resulting from (i) any modification of the Software by a party other than ModusBox 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 or Cloud Offerings provided by ModusBox; (iii) any combination, operation, or use of the Software or Cloud Offerings with any products, equipment, software, hardware, data, or business processes not supplied by ModusBox, 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 or Cloud Offerings were not designed, (v) any intellectual property right owned or licensed by End Customer, excluding the Software or Cloud Offerings, or (vi) End Customer using the Software or Cloud Offerings after ModusBox notifies End Customer to discontinue using due to such a claim.
- 6.4 Indemnity by End Customer. End Customer shall defend ModusBox against any third party Infringement Claim to the extent that they arise from any combination of Software or Cloud Offerings provided by ModusBox with products, data or business processes not supplied by ModusBox, and indemnify ModusBox for any damages, attorney fees and costs finally awarded against ModusBox as a result of, or for any amounts paid by ModusBox under a court-approved settlement of, an Infringement Claim against ModusBox; provided that ModusBox (a) promptly gives End Customer written notice of the Infringement Claim against ModusBox; (b) gives End Customer sole control of the defense and settlement of the Infringement Claim against ModusBox (provided that End Customer may not settle any Infringement Claim against ModusBox unless the settlement unconditionally releases ModusBox of all liability); and (c) provides to End Customer all reasonable assistance, at End Customer’s expense.
- 6.5 Limitation. THIS SECTION 6 STATES END CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND MODUSBOX’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
7. Limitation of Remedies and Damages
- 7.1 MODUSBOX 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, MODUSBOX’S TOTAL AGGREGATE LIABILITY RELATING TO END CUSTOMER’S LICENSE OF MODUSBOX PRODUCTS, MODUSBOX’S PROVISION OF SUPPORT AND MAINTENANCE OR SERVICES PROVIDED BY MODUSBOX, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY MODUSBOX’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE FEES ACTUALLY PAID BY PARTNER TO MODUSBOX 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 ModusBox relating to End Customer’s sublicense of ModusBox products. ModusBox’s fees for the Software, Cloud Offerings, Services and Support and Maintenance reflect this allocation of risks and limitation of liability.
- 7.4 END CUSTOMER SHALL NOT BRING ANY CLAIM AGAINST MODUSBOX BASED ON OR ARISING OUT OFTHIS AGREEMENT (INCLUDING WITHOUT LIMITATION, CLAIMS RELATING TO THE SOFTWARE OR THE CLOUD OFFERINGS) 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.
License Grant: Software
- Grant of License. Subject to all of the terms and conditions of this Agreement, during the relevant Subscription Term, ModusBox 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, 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.
- 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.
- 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 ModusBox 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 other unlimited quantity) licenses unless Affiliate usage is specifically designated in the applicable Order Form.
- 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 ModusBox with thirty (30) days prior written notice and provide all reasonably requested information to allow ModusBox to assess End Customer’s claim and, at ModusBox’s sole discretion, to provide alternatives that reduce any adverse impact on ModusBox’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 ModusBox 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 ModusBox via product documentation, notification, and/or policy change posted at http://www.modusbox.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.
- 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. ModusBox covenants that during the Subscription Term it is compliant with such open source license conditions.
- Limited Software Warranty. ModusBox 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, ModusBox’s sole liability (and End Customer’s sole and exclusive remedy) for any breach of this warranty shall be for ModusBox 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, ModusBox may make changes to the Software and that in such event, ModusBox will update the Documentation accordingly.
Grant of Access and Use: Cloud Offerings
- Provisioning. ModusBox will make the Cloud Offerings available to Users pursuant to this Agreement and the relevant Order Forms during the Subscription Term. End Customer agrees that End Customer’s sublicenses hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by ModusBox regarding future functionality or features. Subject to the terms and conditions of this Agreement in general and this Attachment 2 in particular, and the relevant Order Form(s), ModusBox grants End Customer a limited, worldwide, non-assignable and non-exclusive license during the relevant Subscription Term to access and use the Cloud Offerings. The foregoing access license is for the sole purpose of enabling End Customer to use and enjoy the benefit of the Cloud Offerings as provided by ModusBox, in the manner permitted by this Agreement.
- Subscriptions; Account Limitations. Cloud Offerings are sublicensed as Subscriptions and may be accessed by no more than the specified number of VCores set forth on an Order Form. Cloud Offerings also may be subject to account limitations specified in the Order Form. End Customer is responsible for using the Cloud Offerings to monitor compliance with such account limitations.
- Use by Affiliates. Subject to the terms and conditions of the Agreement and of this Attachment 2, Customer’s Affiliates may use the licenses granted to Customer, provided that: (a) such use is only for the aggregate benefit of Customer and its Affiliates; (b) Customer remains responsible for each such Affiliate’s compliance with the terms and conditions of this Agreement and of each Order Form; (c) subject to the following subsection (d), use of the Cloud Offerings by all Affiliates and Customer in the aggregate must be within the restrictions in the applicable Order Form; and (d) notwithstanding the foregoing, Affiliates may not use Customer’s rights under any unlimited quantity licenses unless Affiliate usage is specifically designated in the applicable Order Form.
- Customer Data. ModusBox does not directly store, monitor, track, or inspect Customer Data, including personally identifiable information (PII), and personal healthcare information (PHI). Customer may configure the appropriate software settings based on Customer’s use and security standards. ModusBox will not (a) modify End Customer Data, (b) disclose End Customer Data except as compelled by law or as expressly permitted in writing by End Customer, or (c) access End Customer Data, except to access to address service or technical problems. Any exchange of data between End Customer and any Third Party Solutions Components (or by End Customer between two or more Third Party Solutions Components), is solely between End Customer and the applicable provider of the Third Party Solutions Components.
- Restrictions. End Customer will not (i) permit any third party to access the Cloud Offerings except as permitted herein and in the relevant Order Form, (ii) create derivate works based on the Cloud Offerings, (iii) copy, frame or mirror any part or content of the Cloud Offerings, (iv) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Cloud Offerings, 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 Cloud Offerings or encourage or permit others to do so (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), (v) access the Cloud Offerings in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Cloud Offerings, (vi) sell, resell, rent or lease the Cloud Offerings, (vii) use the Cloud Offerings to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights (or otherwise use the Cloud Offerings in violation of the Documentation or any ModusBox terms of service), (viii) store or transmit virus or other malicious code through the Cloud Offerings, (ix) interfere with or disrupt the integrity or performance of the Cloud Offerings or third-party products or data contained therein, or (x) attempt to gain unauthorized access to the Cloud Offerings or their related systems or networks. End Customer acknowledges that End Customer is solely responsible for complying with, and covenants to comply with, all laws applicable to End Customer and to End Customer’s use of the Cloud Offerings, including without limitation all laws and regulations relating to the protection and non-disclosure of End Customer Data. Without limiting the generality of the foregoing, the End Customer is solely responsible for using the Cloud Offerings in compliance with, any applicable data privacy or personally identifiable information.
- AWS Terms. ModusBox uses the Amazon Web Service (“AWS”) cloud infrastructure for its Cloud Offering. End Customer acknowledges the use of the Cloud Offerings is subject to the terms and limitations set forth in the AWS Customer Agreement: http://aws.amazon/com/agreement/.
- Warranty. ModusBox warrants, for End Customer’s benefit only, that during the Warranty Period, the Cloud Offerings shall perform materially in accordance with the Documentation. If during the Warranty Period the Cloud Offerings do not perform materially in accordance with the Documentation, ModusBox’s sole liability (and End Customer’s sole and exclusive remedy) for any breach of this warranty shall be for ModusBox to correct the defects in the Cloud Offerings. End Customer acknowledges that the Cloud Offerings is subscription-based and that, in order to provide improved customer experience, ModusBox may make changes to the Cloud Offerings and that in such event, ModusBox will update the Documentation accordingly.