End User License Agreement (EULA)
THIS END USER AGREEMENT (“AGREEMENT”) (“EULA”) IS A LEGAL
AGREEMENT BETWEEN THE USER OR ANY ASSOCIATED ORGANIZATION THAT
HAS LICENSED THIS SOFTWARE OR SERVICE ("YOU" OR “CUSTOMER” OR
“Buyer” OR “USER”) AND ITHENA ("ITHENA" or “Seller”). PLEASE READ THE
TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE
CONTINUING WITH THE SOFTWARE (“SOFTWARE”) INSTALLATION PROCESS
OR USING THE SOFTWARE OR SERVICE (“SERVICE”). BY INSTALLING OR
USING THE SOFTWARE OR SERVICE, YOU ARE AGREEING TO BECOME BOUND
BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY
THESE TERMS, OR DO NOT HAVE AUTHORITY TO BE BOUND TO THESE TERMS
DO NOT INSTALL OR USE THE SOFTWARE OR SERVICE. IF YOU DO NOT AGREE
TO ALL OF THE TERMS OF THE AGREEMENT, THEN ITHENA IS UNWILLING TO
LICENSE THE SOFTWARE OR SERVICE TO YOU. THE CUSTOMER AND ITHENA
HENCEFOURTH ARE REFERRED TOGETHER AS “Parties”.
These general terms and conditions of sale only apply to purchases of ITHENA branded
products, and related services made directly from ITHENA. This EULA is subject to
change by the Seller at any point in the future. The Buyer agrees to comply with the
terms of the agreement within 10 days of such a change or discuss with Seller any
concerns related to the EULA. After that time, it will be deemed accepted by the Buyer.
Sales outside of North America, as well as sales of other ITHENA products and
services, may be subject to separate or supplemental terms and conditions of sale. For
further information, please consult your nearest ITHENA sales office.
These general terms and conditions of sale are as in effect at the time of publication
and are subject to change at any time without any notice.
1. General
These general terms and conditions of sale (along with any associated written
specification, quotation and/or supplemental terms and conditions provided by Seller)
exclusively will govern the sale or licensing by Seller of all goods and services (including
without limitation, software products, training, programming, maintenance, engineering–
hereinafter, "Products") furnished to Buyer hereunder, whether such sale or licensing is
effected by paper-based transactions or via facsimile or other forms of electronic data
interchange (“EDI”) or electronic commerce, and represents the entire agreement
between Buyer and Seller with respect thereto. Buyer's receipt or acceptance of
delivery of any of the Products ordered or purchased hereunder will constitute its
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End User License Agreement (EULA)
acceptance of these terms and conditions. The customer bears responsibility for and
has ownership of any data generated by them for the purpose of use by their affiliates.
ITHENA will not assume any responsibility for any data loss or security breaches under
any circumstances. No addition or modification to these terms and conditions will be
binding on Seller unless agreed to in writing signed by an authorized representative at
Seller's headquarters. Seller objects to and rejects other terms and conditions that
may be proposed by Buyer or that appear on or are referenced in Buyer's purchase
order or requisition that are in addition to or otherwise not consistent with the terms and
conditions set forth or referenced herein.
2. Support Terms
To receive support, the customer must have a valid license agreement for the use of the
software and be in good standing at the time of the request.
3. Delivery Terms
Buyer is responsible for all shipping and handling charges if any. In all cases title
transfers to Buyer upon the earlier of Seller's delivery to Buyer or receipt by the first
carrier for transport to Buyer, except that title to all intellectual property rights associated
with the Products remains with Seller or its suppliers and licensors. Seller disclaims all
liability for late delivery. Where applicable, prepaid shipping and handling charges will
be billed as a separate invoice item.
4. Warranty
1. Software: Unless otherwise provided in a Seller or third-party license, Seller
warrants that standard software or firmware Products furnished hereunder, when
used with Seller-specified hardware and software specifications, will perform in
accordance with published specifications prepared, approved, and issued by
Seller for a period of one (1) year from the date of invoice from Seller, as the
case may be. Seller makes no representation or warranty, express or implied,
that the operation of the software or firmware Products will be uninterrupted or
error free, or that the functions contained therein will meet or satisfy Buyer's
intended use or requirements.
2. Third-party Software: To the best of its knowledge, Seller warrants that third-party
software used in the Seller’s applications will be free from defects for a period of
one (1) year from the date of invoice from Seller. Repaired or replacement
software provided as a result of this warranty subparagraph are warranted for a
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period of thirty (30) days from the date of shipment to Buyer or the remainder of
the original warranty term, whichever is longer.
3. Services: Seller warrants that Products comprised solely of services (e.g.,
training, engineering, and custom application programming services) will be
performed by appropriately skilled personnel employed or retained by Seller.
4. Buyer Specifications/Compatibility: Seller does not warrant and will not be
liable for any design, materials, construction criteria or goods furnished or
specified by Buyer (including that sourced from other manufacturers or vendors
specified by Buyer). Any warranty applicable to such Buyer-specified items will
be limited solely to the warranty, if any, extended by the original manufacturer or
vendor directly or indirectly to Buyer. Seller does not warrant the compatibility of
its Products with the goods of other manufacturers or Buyer's application except
to the extent expressly represented in Seller's published specifications or written
quotation.
5. Remedies: Remedies under the above warranties will be limited, at Seller's
option, to the replacement, repair, re-performance or modification of, or
issuance of a credit for the purchase price, of the Products involved, and where
applicable, only after the return of such Products pursuant to Seller's
instructions. Replacement Products may be new, remanufactured,
refurbished or reconditioned at Seller's discretion. Buyer requested on-site
warranty service (consisting of time, travel and expenses related to such
services) will be at Buyer's expense. The foregoing will be the exclusive
remedies for any breach of warranty or breach of contract arising therefrom.
6. General: Warranty satisfaction is available only if (a) Seller is provided prompt
written notice of the warranty claim and (b) Seller's examination discloses that
any alleged defect has not been caused by misuse; neglect; improper
installation, operation, maintenance, repair, alteration or modification by other
than Seller; accident; or unusual deterioration or degradation of the Products or
parts thereof due to physical environment or electrical or electromagnetic noise
environment.
7. THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES
AND CONDITIONS, WHETHER EXPRESSED, IMPLIED OR STATUTORY,
INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR USE, OR PERFORMANCE OR APPLICATION
WARRANTIES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW. Rights under the above warranties (subject to noted limitations) extend to
Buyer's customers if Buyer is a Seller-appointed distributor for the Products.
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5. Disclaimer and Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SELLER WILL NOT
BE LIABLE FOR ANY BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE,
MATERIALS, ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL OR THE LIKE
(WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND.
SELLER'S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS
AND LIABILITIES, INCLUDING OBLIGATIONS UNDER ANY INDEMNITY,
WHETHER OR NOT INSURED, WILL NOT EXCEED THE COST OF THE
PRODUCT(S) GIVING RISE TO THE CLAIM OR LIABILITY. SELLER DISCLAIMS
ALL LIABILITY RELATIVE TO GRATUITOUS INFORMATION OR ASSISTANCE
PROVIDED BY, BUT NOT REQUIRED OF SELLER HEREUNDER. ANY ACTION
AGAINST SELLER MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS
AFTER THE CAUSE OF ACTION ACCRUES. THESE DISCLAIMERS AND
LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER
CONTRARY PROVISION HEREOF AND REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND
STRICT LIABILITY) OR OTHERWISE, AND FURTHER WILL EXTEND TO THE
BENEFIT OF SELLER'S VENDORS AS THIRD-PARTY BENEFICIARIES. EACH
PROVISION HEREOF WHICH PROVIDES FOR A LIMITATION OF LIABILITY,
DISCLAIMER OF WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES
IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE
ENFORCED AS SUCH.
6. Intellectual Property Indemnity
Except as excluded herein, Seller will defend any suit or proceeding brought against
Buyer arising out of a claim that the design or construction of the Products sold or
licensed hereunder by Seller infringes any patent, copyright or trademark granted or
registered in the country of Seller's shipping destination, provided (a) Buyer promptly
notifies Seller in writing of any such claim and any suit or proceeding, (b) at Seller's
expense, Buyer gives Seller the sole right to defend, settle and control the defense of
the suit or proceeding, (c) Buyer provides all necessary information and assistance for
such defense or settlement, and (d) Buyer takes no position adverse to Seller in
connection with such claim. In the event Seller is obligated to defend such suit
or proceeding, Seller will pay all costs and damages finally awarded or agreed upon by
Seller that are directly related thereto. Seller's obligations under this paragraph will be
fulfilled if Seller, at its option and expense: (i) procures for Buyer the right to continue
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using such Products, (ii) replaces the same with non-infringing equipment/software
having functionality similar to that of the Products, (iii) modifies the Products to make
them non-infringing while retaining similar functionality, or (iv) if (i)-(iii) are not
commercially practicable, refunds to Buyer the purchase price of the affected Products
in exchange for their return. Seller will have no obligation to defend or for any other
liability with respect to: [a] any suit or proceeding to the extent based on or arising out
of a configuration or modification made, specified or requested by Buyer and
which is incorporated into or constitutes the Products, [b] the use of the Products in a
process or application specified, requested or controlled by Buyer or any third parties, or
[c] the use of the Products in combination with other equipment, software or materials
not supplied by Seller. As used in this paragraph, the term “Products” shall mean only
Seller's standard software that are generally commercially available, and expressly
excludes third party-branded equipment/software. THIS PARAGRAPH IS IN LIEU
OF ALL WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR
IMPLIED, THAT THE PRODUCTS WILL BE FREE OF THE RIGHTFUL CLAIM OF ANY
THIRD PARTY BY WAY OF INFRINGEMENT OR THE LIKE.
7. Resale of Third-Party Branded Products and Services
NOTWITHSTANDING ANY OTHER PROVISION HEREIN, SELLER MAKES NO
REPRESENTATIONS, PROVIDES NO INDEMNITIES (INTELLECTUAL PROPERTY
OR OTHERWISE), AND DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS
OR IMPLIED RELATIVE TO ANY THIRD-PARTY BRANDED PRODUCT OR
SERVICE (INCLUDING TRAINING) WHICH MAY BE RESOLD OR
SUBLICENSED BY SELLER AS A DISCRETE ITEM HEREUNDER.
8. Licensed Software
The use of software-based products may be subject to additional terms and conditions
specified in separate license agreements from the seller or third-party, which will take
precedence in the event of any conflict with the terms and conditions stated or
referenced here. If applicable, any open-source code governed by the MIT or similar
license will be made available upon request. Unless a separate license agreement is
provided by the seller, the buyer is granted a non-exclusive, non-transferable license to
use the seller's software solely in object code form and only in conjunction with the
seller-provided products. The buyer has no rights to sublicense, disclose, disassemble,
decompile, reverse engineer, or modify the software or firmware. To be eligible for use,
the customer must have paid the full annual license subscription fee to ITHENA for the
specific software and be in good standing.
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9. Prices
Prices and other information shown in any Seller publications (including but not limited
to, proposals, product catalogs and brochures) are subject to change without notice and
to confirmation by specific quotation. Such publications are not offers to sell and are
maintained only as a source of general information. Prices do not include sales, use,
excise, customs, value-added or similar taxes. Buyer will pay or reimburse Seller for all
such taxes as may be applicable. Time and material services will be provided in
accordance with Seller's published service rates (including applicable overtime and
travel expenses) in effect as of the date such services are provided, unless otherwise
confirmed by Seller's written quotation or order acknowledgment. Billable service time
includes travel time to and from the job site and all time Seller's representatives are
available for work and waiting (whether on or off the job site) to perform the services.
10. Force Majeure
In no event shall the Seller be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or
indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or
natural catastrophes or declared pandemics or acts of God. It is being understood that
the Seller shall use reasonable efforts which are consistent with accepted practices in
the IT industry to resume performance as soon as practicable under the circumstances.
11. Termination
Seller’s, and its affiliates’ Products are licensed for use on an annual recurring
subscription basis. The term of the subscription is the minimum of 12 months
extendable up to 5 years, or as agreed by the Parties. Buyer can terminate this
Agreement upon completion of the term of the license by giving a forty-five (45) day
notice to the Seller. The Buyer understands that upon termination of this Agreement, all
application features and functionalities of the Seller’s products will cease to function.
The Buyer agrees to compensate the Seller of any cost associated to the termination
including the cloud or any additional application features that were developed.
Seller will not be liable for any loss, damage or delay arising out of its failure (or that of
its subcontractors) to perform hereunder due to causes beyond its reasonable control,
including without limitation, acts of God, acts or omissions of Buyer, acts of civil or
military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, acts
of terrorism, delays in transportation, or transportation embargoes. In the event of such
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delay, Seller's performance date(s) will be extended for such length of time as may be
reasonably necessary to compensate for the delay.
12. Export Control
Buyer acknowledges that the products, software, services and Customer
Service-Compatible Application(s) may be subject to various export controls and
regulations. Buyer agrees to comply with all applicable export and re-export laws and
regulations, embargoes and sanctions including, but not limited to, those of the United
States (collectively the “Export Laws”), and represents and warrants that all services
provided hereunder, and any derivatives thereof will not be: (i) used, downloaded,
exported, re-exported or transferred, directly or indirectly, contrary to the Export Laws;
(ii) used for any purpose prohibited by the Export Laws, including but not limited to, the
design, development, manufacture or production of nuclear, missile, chemical or
biological weapons; and/or (iii) delivered to persons/entities otherwise ineligible to
acquire or use the products or services provided hereunder.
Buyer represents and warrants that they are not subject to sanctions or otherwise
designated on any list of prohibited or restricted parties, and are not owned 50% or
more or controlled by such a party, including but not limited to the lists maintained by
the United Nations Security Council, the U.S. Government (e.g., the U.S. Department of
Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list, and
the U.S. Department of Commerce’s Entity List), the European Union or its member
states, or other applicable government authority. Buyer further warrants that no
sanctioned or blocked individual will be involved in the work envisioned under this
agreement, including negotiations, contracting, or any other transactions, and shall
advise Supplier immediately in the event an ownership or other change would violate
any term in this section, in which case Supplier shall be relieved from any further
responsibilities under this agreement.
Buyer understands that certain functionality of Software, such as encryption or
authentication, may be subject to use, import or export restrictions in the event that you
transfer the Software from the country of delivery, and you are responsible for
complying with any such applicable restrictions. Buyer shall be responsible for procuring
all required government authorizations for any subsequent export, import or use of the
Service and any Buyer Service-Compatible Application(s) utilized by Buyer.
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13. Disputes
The parties will attempt in good faith promptly to resolve any dispute arising
hereunder by negotiations between representatives of the parties who have authority
to settle the dispute. If unsuccessful, the parties further will attempt in good faith to
settle the dispute by non-binding third-party mediation, with mediator fees and expenses
apportioned equally to each side. Any dispute not so resolved by negotiation or
mediation may then be submitted to a court of competent jurisdiction in accordance with
the terms hereof. These procedures are the exclusive procedures for the resolution of
all such disputes between the parties.
14. Governing Law and Forum
The agreement evidenced hereby and all disputes arising thereunder will be governed
by Commonwealth of Virginia and interpreted in accordance with the internal laws and
will be subject to the exclusive jurisdiction of the courts of Commonwealth of Virginia.
Should any term or provision hereof be held wholly or partly invalid or unenforceable
under applicable law, the remainder of the agreement evidenced hereby will not be
affected thereby.
15. Assignment
The agreement evidenced hereby may not be assigned by either party without the
written consent of the other (which consent will not be unreasonably withheld).
However, consent will not be required for internal transfers and assignments as
between Seller and its parent company, subsidiaries or affiliates as part of a
consolidation, merger or any other form of corporate reorganization.
16. Addendum and Supplements
Certain ITHENA products or services may be subject to additional terms or addendums
(“Addendum”), including without limitation payment processing, indemnification, or
limitation of liability provisions. All such Addendums are hereby incorporated by
reference into this Agreement and form part of the overall contractual terms between
Buyer and Seller. The current Addendums applicable to your use of ITHENA products
are available at https://eula.ithena.io/addendum
17. Language
The parties acknowledge that they have required that the agreement evidenced hereby
be drawn up in English.
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