End User License Agreement
Version Date January 1, 2023
LICENSE: ACOM agrees to grant a conditional license to End User to use the software (the “Software”), along with the associated program(s) data media, user manuals and related materials (collectively, the “Documentation”) on a local area network or on a single computer terminal, or in the specific configuration set out in the End User’s Purchase Agreement. Upon request by End User, ACOM will facilitate the migration of the Software to End User’s upgraded software platform, provided that the parties mutually agree to the associated migration fee due to ACOM and provided further that End User has a then-current Software Maintenance license pursuant to this Agreement. End User agrees to protect the Software from any use, reproduction or distribution that is not authorized herein. Any other application, and any proposed transfer, sublicense or assignment of the Software is prohibited except with the prior written consent of ACOM.
DELIVERY & ACCEPTANCE: Implementation of the Software may require End User to provide ACOM with reasonable access to certain End User data and information, in electronic and/or physical form, and to provide ACOM with reasonable assistance. End User’s failure or refusal to timely provide the required information or assistance will not relieve End User from its financial responsibility under this Agreement.
LIMITED WARRANTY: ACOM warrants that, when operated within the duty cycles prescribed, the Software shall perform in accordance with the Documentation for ninety (90) days from date of delivery. ACOM’s liability pursuant to the foregoing warranty shall be limited to repairing or replacing, at its sole option, the defective Software, without charge.
EXCLUSION OF DAMAGES/LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES, REGARDLESS OF THE NATURE OF THE CLAIM, SHALL ACOM BE LIABLE TO END USER FOR LOSS OF PROFITS, SALES OR BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE OR CORRUPTION OF SOFTWARE, DATA OR INFORMATION, WORK STOPPAGE OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES. ACOM’S TOTAL, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE OR SERVICES PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNT PAID BY END USER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
ASSIGNMENT: Neither party may assign its rights or obligations under this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, ACOM may assign its rights and obligations under this Agreement without End User’s consent in the event of (a) a reorganization or change of control of ACOM or any ACOM affiliate providing software or services pursuant to this Agreement or (b) to a purchaser of substantially all of the assets or business of ACOM or any ACOM affiliate providing software or services pursuant to this Agreement.
FORCE MAJEURE: In the event that ACOM is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, global pandemics, acts of God, telecommunications outage not caused by ACOM, or other similar causes), ACOM’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence.
WAIVER: The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of either party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
SEVERABILITY: If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
DISPUTE RESOLUTION: The laws of the State of Delaware (without giving effect to any conflicts of laws principles) govern all matters arising out of or relating to this Agreement and all of the transactions it contemplates, including its interpretation, construction, performance, and enforcement. In the event of any legal action or proceeding between the parties hereto, the prevailing party will be entitled to an award of reasonable attorneys’ fees and costs. The International Sale of Goods Act and the United Nations Convention on Contracts for the International Sale of Goods have no application to this Agreement. EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS IT CONTEMPLATES; THIS WAIVER APPLIES TO ANY ACTION OR LEGAL PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE.
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