BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS END USER LICENSE AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS.
IF YOU DO NOT AGREE TO THESE TERMS:
DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THE SOFTWARE.
END USER LICENSE AGREEMENT (“EULA”)
TERMS AND CONDITIONS
- SOFTWARE LICENSE
- License Grant. Hummingbirds AI Inc. (the “Company”) hereby grants to End User, and End User hereby accepts from Company, a non-exclusive, non-sublicensable, non-transferable license (the “License”) to use the software included in End User’s applicable software subscription package and all updates thereto as may be provided (collectively, with respect to each offering made available and licensed to End User, the “Software”), which use may, for the avoidance of doubt, also be governed by a certain Master Services Agreement, Order Form, and the Company’s Terms of Use, and/or other written or electronic agreements, as may be applicable and as such agreements may be updated from time to time (“Documentation”). Company shall provide to Customer all Documentation required to allow End User to use and operate the Software in accordance with, and subject to, all of the terms, conditions and provisions of this EULA.
- Ownership. As between the parties, Company shall retain all rights, title and interest in and to the Software, Documentation, and support services, including all modifications, updates, maintenance releases, derivative works or improvements, and all related intellectual property rights. End User unconditionally and irrevocably assigns to Company its entire right, title, and interest in any intellectual property rights that End User may have currently or in the future relating to the Software or Documentation, including any derivative works or patent improvement rights, however held or acquired.
- Restrictions. End User shall not (and shall not allow any third party to) (i) decompile, disassemble, or otherwise reverse engineer the Software or attempt to discover any source code or underlying ideas or algorithms of the Software, (ii) remove any product identification, copyright or other notices embedded within the Software, (iii) modify or create a derivative work of the Software (except as otherwise expressly authorized by Company in writing), (iv) remove or export any Software from the United States in violation of applicable laws or regulations, (v) relicense, provide, lease or lend the Software to any third party, (vi) copy the Software or any portion thereof except as provided herein, or (vii) disclose any performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.
- Security Measure Disclosure. The Software may contain security features that prevent unauthorized or illegal use of the Software. End User acknowledges and agrees that Company may use these features and other lawful measures to verify End User’s compliance and to enforce Company’s rights under this EULA. End User further acknowledges and agrees that Company may, from time to time at Company’s sole discretion, gather End User’s technical, usage, and other related information without disruption to End User’s use and for the sole purpose of improving the Software’s performance, developing maintenance releases, and developing new versions and updates.
- Term. The license is effective for a limited period of time set forth in applicable Documentation binding End User’s obligations hereunder, and the Company may terminate this EULA in accordance with the terms set forth therein; provided, in any case, that such term shall not commence until such time that the Company has delivered a license key to End User for purposes of accessing and operating the Software.
- AUDIT
End User agrees that Company or its designee may audit End User’s use of the Software for compliance with this EULA, upon reasonable notice. End User agrees to cooperate fully with Company and its authorized agents in any such audit to assist in accurately determining End User’s compliance with this EULA. Company and its authorized agents will comply with End User’s reasonable security regulations while on End User’s premises. In the event that such audit reveals any use of the Software by End User other than in full compliance with the terms of this EULA, End User shall reimburse Company for all reasonable expenses related to such audit in addition to any other liabilities End User may incur as a result of such non-compliance.
- REPRESENTATIONS, WARRANTIES AND INDEMNITIES
- End User’s Warranties. End User hereby represents and warrants to Company as follows:
- Export Regulation. End User acknowledges that the Licensed Software may be subject to applicable United States export Laws, including the United States Export Administration Act and its associated regulations. End User agrees to comply with provisions of such export laws. Compliance may include, but is not limited to, obtaining any and all necessary export license or other governmental approval. End User shall not itself or permit any third party to directly or indirectly export, re-export, or release the Software, or use the Software, in any country prohibited or restricted under United States export laws.
- Indemnity. End User agrees to indemnify, and hold Company and its affiliates, employees, directors, officers and agents harmless against any liability from and against any third party suit or claim made or proceedings brought against Company arising directly or indirectly out of (a) End User’s or its employees’ or agents’ negligence, willful misconduct; (b) breach of any term of this EULA and/or any ordering document, or (c) injury to person (including death) or damage to property caused by End User, its employees or agents.
2. Company’s Warranties. Company hereby represents and warrants to End User as follows:
- Company makes no representation or warranty, express or implied, that the operation of the Software will be uninterrupted or error free, or that the functions contained in the Software will meet or satisfy End User’s intended use or requirements; End User assumes complete responsibility for decisions made or actions taken based on information obtained using the Software.
- CONFIDENTIALITY AND PROPRIETARY RIGHTS
- Confidential Information. The parties hereby acknowledge and agree that each party shall be provided with or given access to or learn information, verbally or in written or other tangible form, that is proprietary and confidential to the other party (“Confidential Information”) including, without limitation, information relating to a party’s software, management, business operations and plans, organizational structure, policies, procedures, business relationships, patients and clients. The recipient shall employ the same degree of care in preventing the disclosure of the Confidential Information to a third party (or parties) as it uses with regard to its own confidential information of similar importance, provided that in no event shall the recipient employ less than a reasonable degree of care. The recipient shall disclose Confidential Information of the other party only to third parties who have a need to know the Confidential Information for purposes of performing or exercising the rights granted under this EULA and shall use Confidential Information of the other party only for such purposes. The term “Confidential Information” shall not include, and neither party shall have any obligation of confidentiality with respect to, information to the extent that it (a) is in, or comes into the public domain (except as a result of a breach of this provision); (b) is received without obligation of confidentiality by the recipient from a third party not under an obligation of confidentiality with respect thereto; or (c) is independently developed by the recipient without access to the Confidential Information of the discloser. Recipient may, if ordered to do so by a regulatory authority with jurisdiction over it or if it is required to be disclosed by the recipient under operation of law, court order, or other valid legal process, disclose Confidential Information of the other party to such regulatory authority or other recipient, provided sufficient written notice is given to the discloser prior to such disclosure to enable discloser to seek an order limiting or precluding such disclosure. If the recipient becomes aware of any unauthorized use or disclosure of the discloser’s Confidential Information, the recipient will promptly notify the discloser and reasonably cooperate with the discloser’s efforts to investigate such unauthorized use or disclosure. Notwithstanding any other provisions in this EULA, the recipient is obligated to protect any Confidential Information that constitutes as trade secrets under any applicable law until such Confidential Information ceases to qualify for trade secret protection by operation of law.
- Return of Confidential Information. Promptly upon termination of this EULA, or at any time upon discloser’s request, recipient shall promptly, at discloser’s option, either return or destroy all or any part of the Confidential Information, and all copies thereof and other materials containing such Confidential Information, and recipient shall certify in writing its compliance with the foregoing.
- Injunctive Relief. The parties acknowledge that in the event of a breach of this Section, damages may not be an adequate remedy and Company shall be entitled to seek injunctive relief to restrain any such breach, threatened or actual, in addition to any other rights and remedies available thereto under this EULA or at law or in equity.
- LIMITATION OF LIABILITY
- LIMITATION OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS) ARISING OUT OF OR RELATED TO THIS EULA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- GENERAL LIMITATION. IN NO EVENT SHALL COMPANY'S TOTAL LIABILITY TO END USER IN ANY ONE OR MORE CAUSES OF ACTION FOR ANY AND ALL DAMAGES INCURRED RELATING TO THIS EULA OR THE SOFTWARE EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER.
5.3 Remedies. In the event of Company’s breach of its obligations set forth hereunder, Company’s sole obligation, and End User’s sole remedy, shall be for Company to use commercially reasonable efforts to (i) fix or replace the defective Software; (ii) identify or make available a work-around or alternative approach that achieves substantially the same result or functionality; or, if Company fails to resolve as described in (i) or (ii) above, then Company may terminate this EULA with regard to the non-conforming Software and refund to End User the prorated portion of any pre-paid fees for the non-conforming Software. In such event, your License to use the relevant Software will immediately terminate.
- GENERAL
- Assignment. End User shall not assign this EULA in whole or in part without the prior written consent of the Company.
- Notice to U.S. Government End Users. The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government shall be governed solely by the terms of this EULA and shall be prohibited except to the extent expressly permitted by the terms of this EULA.
- General. All notices required or permitted to be given by one party to the other under this EULA shall be sent by email or certified mail, return receipt requested, to the parties at the respective addresses as the party to receive the notice has designated by notice to the other party in accordance with this Section. This EULA, and any claim, controversy or dispute arising under or related to this EULA, the relationship of the parties and/or the interpretation and enforcement of their respective rights and obligations, shall be governed by and construed in accordance with the laws of the State of Florida, without regard to principles of conflicts of law. The parties hereto agree to the exclusive jurisdiction of the courts located in the State of Florida and the exclusive venue of Miami-Dade County. If any provision of this EULA is held invalid or otherwise unenforceable, the enforceability of the remaining provisions of this EULA will not be impaired thereby. The failure by any party to exercise any right or remedy provided for herein will not be deemed a waiver of any right or remedy hereunder. Unless expressly otherwise provided herein, no modification of or amendment to this EULA shall be valid unless in writing and signed by both parties. The rights and remedies of End User set forth in this EULA are not exclusive and are in addition to any other rights and remedies available to it at law or in equity. The relationship between the parties created by this EULA is that of independent contractors and not partners, joint venturers or agents, and neither party shall have the power the bind the other party. This EULA may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. The section and subsection headings used in this EULA are for convenience of reference only and are not to be considered in construing or interpreting this EULA. Neither party will be liable to the other by reason of failure or delay in the performance of this EULA if the failure arises out of any circumstance beyond such party’s reasonable control, including acts of God, flood, fire, natural disaster, war, terrorism, invasion, riot, civil unrest, embargos, national or regional emergency, strikes, labor disruptions, law changes, or power or telecommunication interruptions or shortages. The party failing or delaying in performance of this EULA due to circumstances beyond their control must give prompt written notice to the other party stating the estimated length of time the occurrence is expected to continue. The Company may terminate this EULA if such uncontrollable circumstance continues for longer than thirty (30) days.
- License Grant. Hummingbirds AI Inc. (the “Company”) hereby grants to End User, and End User hereby accepts from Company, a non-exclusive, non-sublicensable, non-transferable license (the “License”) to use the software included in End User’s applicable software subscription package and all updates thereto as may be provided (collectively, with respect to each offering made available and licensed to End User, the “Software”), which use may, for the avoidance of doubt, also be governed by a certain Master Services Agreement, Order Form, and the Company’s Terms of Use, and/or other written or electronic agreements, as may be applicable and as such agreements may be updated from time to time (“Documentation”). Company shall provide to Customer all Documentation required to allow End User to use and operate the Software in accordance with, and subject to, all of the terms, conditions and provisions of this EULA.
- Ownership. As between the parties, Company shall retain all rights, title and interest in and to the Software, Documentation, and support services, including all modifications, updates, maintenance releases, derivative works or improvements, and all related intellectual property rights. End User unconditionally and irrevocably assigns to Company its entire right, title, and interest in any intellectual property rights that End User may have currently or in the future relating to the Software or Documentation, including any derivative works or patent improvement rights, however held or acquired.
- Restrictions. End User shall not (and shall not allow any third party to) (i) decompile, disassemble, or otherwise reverse engineer the Software or attempt to discover any source code or underlying ideas or algorithms of the Software, (ii) remove any product identification, copyright or other notices embedded within the Software, (iii) modify or create a derivative work of the Software (except as otherwise expressly authorized by Company in writing), (iv) remove or export any Software from the United States in violation of applicable laws or regulations, (v) relicense, provide, lease or lend the Software to any third party, (vi) copy the Software or any portion thereof except as provided herein, or (vii) disclose any performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.
- Security Measure Disclosure. The Software may contain security features that prevent unauthorized or illegal use of the Software. End User acknowledges and agrees that Company may use these features and other lawful measures to verify End User’s compliance and to enforce Company’s rights under this EULA. End User further acknowledges and agrees that Company may, from time to time at Company’s sole discretion, gather End User’s technical, usage, and other related information without disruption to End User’s use and for the sole purpose of improving the Software’s performance, developing maintenance releases, and developing new versions and updates.
- Term. The license is effective for a limited period of time set forth in applicable Documentation binding End User’s obligations hereunder, and the Company may terminate this EULA in accordance with the terms set forth therein; provided, in any case, that such term shall not commence until such time that the Company has delivered a license key to End User for purposes of accessing and operating the Software.
- Confidential Information. The parties hereby acknowledge and agree that each party shall be provided with or given access to or learn information, verbally or in written or other tangible form, that is proprietary and confidential to the other party (“Confidential Information”) including, without limitation, information relating to a party’s software, management, business operations and plans, organizational structure, policies, procedures, business relationships, patients and clients. The recipient shall employ the same degree of care in preventing the disclosure of the Confidential Information to a third party (or parties) as it uses with regard to its own confidential information of similar importance, provided that in no event shall the recipient employ less than a reasonable degree of care. The recipient shall disclose Confidential Information of the other party only to third parties who have a need to know the Confidential Information for purposes of performing or exercising the rights granted under this EULA and shall use Confidential Information of the other party only for such purposes. The term “Confidential Information” shall not include, and neither party shall have any obligation of confidentiality with respect to, information to the extent that it (a) is in, or comes into the public domain (except as a result of a breach of this provision); (b) is received without obligation of confidentiality by the recipient from a third party not under an obligation of confidentiality with respect thereto; or (c) is independently developed by the recipient without access to the Confidential Information of the discloser. Recipient may, if ordered to do so by a regulatory authority with jurisdiction over it or if it is required to be disclosed by the recipient under operation of law, court order, or other valid legal process, disclose Confidential Information of the other party to such regulatory authority or other recipient, provided sufficient written notice is given to the discloser prior to such disclosure to enable discloser to seek an order limiting or precluding such disclosure. If the recipient becomes aware of any unauthorized use or disclosure of the discloser’s Confidential Information, the recipient will promptly notify the discloser and reasonably cooperate with the discloser’s efforts to investigate such unauthorized use or disclosure. Notwithstanding any other provisions in this EULA, the recipient is obligated to protect any Confidential Information that constitutes as trade secrets under any applicable law until such Confidential Information ceases to qualify for trade secret protection by operation of law.
- Return of Confidential Information. Promptly upon termination of this EULA, or at any time upon discloser’s request, recipient shall promptly, at discloser’s option, either return or destroy all or any part of the Confidential Information, and all copies thereof and other materials containing such Confidential Information, and recipient shall certify in writing its compliance with the foregoing.
- Injunctive Relief. The parties acknowledge that in the event of a breach of this Section, damages may not be an adequate remedy and Company shall be entitled to seek injunctive relief to restrain any such breach, threatened or actual, in addition to any other rights and remedies available thereto under this EULA or at law or in equity.
- LIMITATION OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS) ARISING OUT OF OR RELATED TO THIS EULA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- GENERAL LIMITATION. IN NO EVENT SHALL COMPANY'S TOTAL LIABILITY TO END USER IN ANY ONE OR MORE CAUSES OF ACTION FOR ANY AND ALL DAMAGES INCURRED RELATING TO THIS EULA OR THE SOFTWARE EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER.
- Assignment. End User shall not assign this EULA in whole or in part without the prior written consent of the Company.
- Notice to U.S. Government End Users. The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government shall be governed solely by the terms of this EULA and shall be prohibited except to the extent expressly permitted by the terms of this EULA.
- General. All notices required or permitted to be given by one party to the other under this EULA shall be sent by email or certified mail, return receipt requested, to the parties at the respective addresses as the party to receive the notice has designated by notice to the other party in accordance with this Section. This EULA, and any claim, controversy or dispute arising under or related to this EULA, the relationship of the parties and/or the interpretation and enforcement of their respective rights and obligations, shall be governed by and construed in accordance with the laws of the State of Florida, without regard to principles of conflicts of law. The parties hereto agree to the exclusive jurisdiction of the courts located in the State of Florida and the exclusive venue of Miami-Dade County. If any provision of this EULA is held invalid or otherwise unenforceable, the enforceability of the remaining provisions of this EULA will not be impaired thereby. The failure by any party to exercise any right or remedy provided for herein will not be deemed a waiver of any right or remedy hereunder. Unless expressly otherwise provided herein, no modification of or amendment to this EULA shall be valid unless in writing and signed by both parties. The rights and remedies of End User set forth in this EULA are not exclusive and are in addition to any other rights and remedies available to it at law or in equity. The relationship between the parties created by this EULA is that of independent contractors and not partners, joint venturers or agents, and neither party shall have the power the bind the other party. This EULA may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. The section and subsection headings used in this EULA are for convenience of reference only and are not to be considered in construing or interpreting this EULA. Neither party will be liable to the other by reason of failure or delay in the performance of this EULA if the failure arises out of any circumstance beyond such party’s reasonable control, including acts of God, flood, fire, natural disaster, war, terrorism, invasion, riot, civil unrest, embargos, national or regional emergency, strikes, labor disruptions, law changes, or power or telecommunication interruptions or shortages. The party failing or delaying in performance of this EULA due to circumstances beyond their control must give prompt written notice to the other party stating the estimated length of time the occurrence is expected to continue. The Company may terminate this EULA if such uncontrollable circumstance continues for longer than thirty (30) days.
