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 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 HENCEFORTH 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.
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 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.
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.
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.
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.
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 period of thirty (30) days from the date of shipment to Buyer or the remainder of the original warranty term, whichever is longer.
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.
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.
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.
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.
Rights under the above warranties (subject to noted limitations) extend to Buyer's customers if Buyer is a Seller-appointed distributor for the Products.
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.
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 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.
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.
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.
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.
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.
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 delay, Seller's performance date(s) will be extended for such length of time as may be reasonably necessary to compensate for the delay.
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.
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.
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.
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.
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.
The parties acknowledge that they have required that the agreement evidenced hereby be drawn up in English.