End User License Agreement (EULA)

PLEASE READ CAREFULLY: THIS END-USER LICENSE AGREEMENT (“EULA” or “Agreement”) is a legal agreement between you and/or the business entity you represent (collectively “You”) and the licensor, the EIP Contracting Party (together with its affiliates, collectively “EIP”), each a “Party” and jointly the “Parties” to this Agreement.

1. You and EIP

“EIP Contracting Party” refers to the EIP entity mentioned in the applicable Order, if any, or to (i) EfficientIP, société par actions simplifiée, with its principal place of business located at 90, boulevard National La Garenne Colombes – 92250 La Garenne-Colombes (“EfficientIP France”), if Your registered address is located in the European Union (excluding Germany), Africa, the Middle East or America (excluding the USA and Canada); or (ii) EFFICIENT IP GmbH, a company with its registered office located Lebacher Strasse 4, 66113 Saarbrücken (“EfficientIP Germany”) if Your registered address is located in Germany, (iii) EfficentIP, UK Ltd, with its registered office located Tenbury 1 - Brenchley House, School Road, Charing, Kent, United Kingdom, TN27 0JW (“EfficientIP UK”), if Your registered address is located in the United Kingdom ; or (iv) EfficientIP, Inc. with its principal place of business located at 1 South Church Street, Suite 400, West Chester, PA 19382] (“EfficientIP USA”), if Your registered address is located in the United States of America; or (v) EfficientIP Canada LTD with its registered office located 1200 Waterfront Centre, 200 Burrard Street, P.O. BOX 48600, Vancouver BC V7X 1T2 (“EfficientIP Canada”), if Your registered address is located in Canada, or (vi) EfficientIP PTE Ltd, a company  with its registered address at 73 UPPER PAYA LEBAR ROAD #08-01L, CENTRO BIANCO, SINGAPORE 534818 (“EfficientIP Asia”), if Your registered address is located in the Asia-Pacific region.

 

The provisions of this EULA govern i) any EIP software which is the subject of an Order (as defined below) and is initially provided to You by a Distributor (the “Software”), including any varied forms of the Software which may contain new features, malfunction fixes and other enhancements to the Software and its operating procedures and which may be made available to You while holding a current Support Services subscription (collectively, “Updates”) thereto (the Software and such Updates, collectively, (the “Licensed Software") for use, as the case may be, with an EIP hardware product (the “Hardware”) or, on a virtual machine or other authorized hardware platform,  ii) any documentation for the Licensed Software and if applicable, Hardware, that may include user manuals, operation instructions, installation guides, release notes, data sheets and on-line help files regarding use of the Licensed Software  and if applicable, Hardware, as updated by EIP (collectively, the “Documentation”); and (iii) any maintenance and support services related to the Licensed Software and/or Hardware made available by EIP to You via a qualified and entitled third party service provider (the “Support Services”). The Support Services are described in EIP’s Global Technical Support Guide and any other specific provisions applicable to the Support Services as may be amended from time to time and accessible on EIP’s website and downloadable by You being assigned a contract number in the maintenance or software subscription contract issued by EIP upon its acceptance of an Order (“the Support Policies”). A “Software Subscription” combines a license to use the Licensed Software, the Documentation and the associated Support Services for the License Term (as defined below). Any provisions not provided herein are governed by the contract entered into by and between You and the Distributor (as defined below). EIP cannot be held liable for the acts of any Distributor, which always acts in its own name and not in the name of EIP.

2. Acceptance of terms

Installation and use of EIP Licensed Software and Hardware are subject to You having submitted a purchase order via an EIP authorized distributor and/or reseller (“Distributor”) that is consistent with an EIP quotation (if any) and is accepted by EIP, in order to acquire or renew the relevant Software Subscription, Hardware and/or Support Services subject to the payment of the applicable fees (an “Order”). If You have not submitted such Order, then You must neither install nor use the Licensed Software and/or Hardware. IN ADDITION, BY CLICKING ON THE “I AGREE” BUTTON BELOW DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE LICENSED SOFTWARE AND/OR HARDWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA AND/OR THE SUPPORT POLICIES, DO NOT INSTALL OR USE THE LICENSED SOFTWARE AND/OR HARDWARE AND PROMPTLY CONTACT EIP OR THE DISTRIBUTOR FROM WHICH YOU OBTAINED THEM. In the event of any inconsistency or contradiction between this EULA and the provisions of the Order, the provisions of this EULA shall prevail. If there is a discrepancy, inconsistency or contradiction between the Support Policies and this EULA, the provisions of the Support Policies shall prevail. No general or purchasing terms and conditions, other document, exhibit or addendum, shrink-wrap agreement, clickwrap agreement or any handwritten or typewritten text even if purporting to modify or supplement the text of this EULA will add to or vary the terms of this EULA. This EULA and the Support Policies constitute the complete agreement between the Parties regarding the subject matter hereof, and they supersede and replace any prior or concurrent oral or written agreement, understanding, or communications between the Parties on the same subject matter.

 

3. License

Subject to Your compliance with all terms and conditions of this EULA, EIP grants You a non-exclusive, non-assignable and revocable right, for the License Term (as defined below) for Your internal business purposes, to install and permit Your “Authorized Users” to use the Licensed Software and the related Documentation in machine-readable, object code form solely on a single virtual machine or, as applicable, a single hardware platform (whether Hardware or not),   owned or leased by You and using only one Activation Key (as defined hereafter) according to the provisions of this EULA and the Documentation and subject to any other license metric specified in the Order (if any).  You agree to ensure that Your Authorized Users comply with this EULA. You are therefore solely liable for the use by Your Authorized Users of any Activation Key, Licensed Software, Documentation and/or Hardware.  “Authorized Users“ shall mean Your employees and third-party service providers. An “Activation Key” shall mean the unique identifier generated by EIP that enables the Licensed Software to be activated on a given hardware platform or virtual machine. The “License Term” corresponds to the term of each Software Subscription You purchase in an Order and begins upon EIP’s delivery of the Licensed Software listed in such Order and lasts for the term specified in such Order subject to any earlier termination of said Order or this EULA.

 

You agree to use the Licensed Software and/or Hardware only as authorized in this EULA and any applicable Order. Subject to any other license metric specified in the Order (if any),  Licensed Software is licensed to be installed and used on only one virtual machine or, as applicable, hardware platform, and, (i) when the Licensed Software is provided for certain Hardware, only on  the Hardware model specified in the Order or in the Documentation) (ii) when the Licensed Software is provided for use on a hardware platform other than Hardware, only on a single hardware platform whose characteristics are recommended by EIP in the sizing requirements recommendations found in the Documentation. A valid license must be purchased for each virtual machine, or, when applicable, Hardware or other hardware platform on which the Licensed Software is installed.

 

Except as expressly set forth in this EULA, You may not, whether for valuable consideration or otherwise:

1. copy, modify, adapt, merge, embed, sell, lease, assign, distribute, sublicense or without EIP’s prior written consent, transfer in any manner or form, in whole or in part, the Licensed Software, Hardware, Documentation or Activation Key except as otherwise required by law; or
2. use the Licensed Software or Documentation to create derivative works of the Licensed Software, or develop or distribute any product that competes in the marketplace with the Licensed Software, or any other tool, system or library developed or marketed by EIP; or
3. use the Licensed Software to process data of third parties in any manner whatsoever, including in facilities management or any other computer-based services business, or publicly display visual output of the Licensed Software; or
4. reverse engineer, decompile or disassemble the Licensed Software or attempt in any manner whatsoever to recreate the Licensed Software source codes or equivalent, provided that information necessary to achieve interoperability of the Licensed Software with another computer program will be made available by EIP to You on request); or
5. repair or have the Hardware repaired by any other person than EIP authorized suppliers; or
6. open the Hardware casing or alter the Hardware in any manner whatsoever; or
7. correct errors, defects, and other operating anomalies on the Licensed Software; or
8. communicate to any third party your Activation Keys or credentials to access the Licensed Software or the Support Services.

 

This EULA does not grant You any rights to the source code for the Licensed Software, but information necessary to achieve interoperability of the Licensed Software with another computer program will be made available to You on request. Therefore, You undertake not to make any changes to the Licensed Software and not to decompile the Licensed Software for any reason whatsoever unless so authorized by EIP and in accordance with applicable law. EIP has created, and will from time to time create, other computer software programs that may be based upon or related to the Licensed Software and those other programs are not licensed to You under this EULA unless they are the subject of an Order.

 

EIP reserves the right to demand You to provide, in writing, certification of the geographical locations, type and serial number of all computer hardware (including but not limited to Hardware) on which the Licensed Software and/or Hardware is/are being used and on which the Activation Key has been activated, together with confirmation that the Licensed Software and/or Hardware if applicable is/are being used in accordance with the terms of this EULA and/or the Order. Not more frequently than once every twelve (12) months and on reasonable prior notice being given, You shall give EIP physical and/or remote electronic access to Your premises during normal business hours to verify the proper use of the Licensed Software and/or Hardware. You will address any non-compliance identified by the audit by promptly paying any applicable fees for use of the Licensed Software and/or Hardware. You will promptly reimburse EIP for all reasonable costs of the audit if it reveals an underpayment of more than 5% of the fees payable for Your use of the Licensed Software and/or Hardware, or if You have materially failed to maintain accurate records of Licensed Software and/or Hardware use.

 

You understand that The Documentation specifies certain performance limitations and recommendations regarding machine sizing which, if they are reached or exceeded, will trigger warnings in the Licensed Software which You will receive.

 

You understand that the Licensed Software may include an inactive statistics collection feature that will only become active if You request and activate a secure sharing token to join EIP’s product enhancement and cyber security program. By activating this feature in the Licensed Software, You agree that EIP may collect anonymized and non personal data of the type selected by You to verify that the Licensed Software is being used in accordance with its documentation and this EULA as well as, depending on the selection You made and subject to a separate agreement, to provide support diagnostic, product enhancement and/or cyber threat intelligence.

 

4. Term and Termination

This EULA shall be effective on the date You install Licensed Software and/or Hardware or otherwise start using Licensed Software and/or Hardware, whichever comes first, (the “Effective Date”) and will remain in force unless terminated in accordance with the provisions set forth herein. This EULA,  the relevant Order and/or Your access to Licensed Software and/or Hardware may be suspended or terminated by EIP without EIP incurring any liability or penalties (i) in case of material breach of Your obligations that has not been remedied, rectified or cured within thirty (30) days of receiving a written notice of EIP to do so, (ii) immediately upon notice to You in case of a breach of paragraphs 1 to 4 of Section 3 License, a breach of Section 8 Intellectual Property and Confidentiality and/or a breach of Section 13 Sanctions and Export Controls or in case Sanctions and/or Export Controls become applicable to the performance of any transaction under this EULA. EIP's termination of this EULA shall become effective upon notice to You or upon expiration of the cure period specified above.

 

Upon termination of this EULA or any Order for any reason whatsoever and upon expiration of an Order, You will immediately cease to use the Licensed Software and Hardware and the Support Services and shall when applicable, immediately destroy or return all copies of the terminated or expired product and associated Documentation in their entirety and shall no longer have access to Support Services. Expiration or termination of this EULA or any Order shall not relieve You of Your obligation to pay all fees that have accrued or are otherwise owed under this EULA or Order. “Sanctions” means any Sanctions law, regulation, embargo, restrictive measure, or other similar instruments, which restrict dealings with certain individuals, entities or territories and which have been issued under the law of a jurisdiction, country or international organization, including but not limited to the European Union or the United Nations Security Council, as may be applicable to EIP or You. “Export Controls” means the sets of laws, policies, and regulations that govern the export and reexport of items from one jurisdiction to another, such as may be applicable to the Licensed Software, Hardware, Documentation and/or Support Services.

 

5. Delivery

Any Hardware you purchase will be delivered FCA Origin or DAP airport (according to Incoterms 2020) depending on the country of destination as stated (and unless stated otherwise) in the applicable Order. You shall bear all costs related to the shipment of Hardware from the premises of EIP except as otherwise agreed in the Order. Hardware shipping and delivery instructions shall be clearly specified in the Order. EIP shall select the method of shipment and the carrier. If the Hardware is shipped FCA origin, risk of loss or damage to any Hardware in transit is Yours and You will be responsible for filing claims with the carrier. EIP shall arrange for the Licensed Software to be made electronically available to You through a designated portal or other electronic means unless otherwise agreed by the Parties in writing.

 

EIP reserves ownership of the Hardware until full payment to the Distributor of all applicable charges specified in the Order without prejudice to any other compensatory damages that EIP may claim. However, all risks inherent to the Hardware are Your responsibility upon delivery as set out above. Consequently, You undertake to ensure their proper preservation at Your own expense and to take out insurance to cover the risks of loss, theft, damage or destruction of the Hardware subject to retention of title. In the event of non-payment by You, EIP reserves the right to physically take back the Hardware or the property titles representing them at Your expense, risk and peril. Independently of this retention of title provision, EIP may, at its discretion and without triggering its liability, terminate the EULA as set out above or suspend Your access to the Licensed Software, Hardware and/or Support Services by giving You fifteen (15) days’ prior notice as from the sending by EIP of a formal notice by registered letter with acknowledgement of receipt.

 

6. Orders and Renewals

All Orders are irrevocable, non-cancellable and, except as otherwise expressly agreed to herein, non-refundable for their entire term. If You purchase a Software Subscription and/or standalone annual or multi-year Support Services (whether payable upfront or annually) You agree that payment of the fees corresponding to the entire term of the Software Subscription and/or Support Services purchased is due to EIP via its Distributor and is required regardless of whether or not You or the Distributor elect to use or receive any of the corresponding licenses or support services.

 

Should You decide to renew a Software Subscription, You are requested to submit Your Order to the Distributor 3 to 5 days’ prior to the expiration date of Your Software Subscription.  Except if otherwise expressly agreed by EIP, if You do not submit a renewal order based on available options then in effect and in accordance with EIP’s then current terms at the very latest 72 hours prior to the date of expiration of the current term of your Software Subscription and/or Support Services, You will be deemed to have chosen not to renew such Software Subscription (and/or Support Services), in which case all Your Support Services and, in the case of a Software Subscription, all your licenses, shall end upon expiration of Your then current Software Subscription and/or Support Services subscription.  If upon Your request and reasonable justification, EIP has expressly agreed to exceptionally allow you to continue to use the licenses while granting you extra time to renew, you agree that your annual renewal period shall begin  from the expiration date of Your Software Subscription, irrespective of the date you choose to renew.

 

7. Warranty

EIP warrants that, for the warranty period specified hereafter, the original Software and Hardware initially provided to You will be free of material defects in materials and workmanship under normal use and will substantially conform to their Documentation as published by EIP.  EIP also warrants that it applies industry standard methods designed to ensure that the Software and Hardware when delivered  by EIP are free of viruses, malware, malicious code, trojan horses, or other similar computer software routines designed to damage or destroy software or data  (collectively the “Warranty”). The warranty period applicable to the Software is ninety (90) days and the one applicable to the Hardware is one (1) year, both beginning from the date of their initial shipment to You.

 

This limited Warranty extends only to You. To the maximum extent permitted under applicable law, Your exclusive remedy and the entire liability of EIP under this limited Warranty will be, at EIP’s sole option, that EIP i) repair the defective part of the Software or Hardware or replace it with a Software or Hardware substantially equivalent in terms of functionalities, ii) make commercially reasonable efforts to make the defective Software perform substantially in accordance with its Documentation or iii) refund the  fees paid in advance corresponding to the unused or unsupplied portion of the defective Software and/or Hardware upon its full return .  Repaired, corrected, or replaced Software or Hardware shall be covered by this limited Warranty for the remainder of the original Warranty period.

 

This Warranty (i) does not apply, if You are not using the most current version of the Licensed Software, provided such current version has been made available to You at no cost other than Your current Software Subscription fee and the warranty claim would have been avoided by the use of said most current version, nor does it apply if the Licensed Software or Hardware (a) is used on or in conjunction with hardware or programs other than the environment(s) supported or recommended by EIP for the Licensed Software or Hardware in question, as specified in the Documentation;  b) has been altered, except by EIP, (c) has not been installed, operated, repaired, or maintained in accordance with instructions provided by EIP, (d) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; (ii) does not cover with respect to the Hardware (a) third party products not provided by EIP with the Hardware; (b) components that are added to the Hardware after it is shipped from EIP’s warehouse or added through custom factory integration services at Your request without specific prior written approval of EIP; (c) any problems caused by such components or third party products; (d) repairs necessitated as a result of alteration or repair by anyone other than the Hardware’s manufacturer or its representatives; or (e) damage or problems due to external causes, including but not limited to accident, abuse, misuse, neglect, problems with electrical power, force majeure event, usage not in accordance with Hardware instructions or any product related to it (but in all cases damage or problems due to normal wear and tear are excepted).

 

THE FOREGOING WARRANTIES ARE IN LIEU AND EXCLUDE ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS FOR LICENSED SOFTWARE AND HARDWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. EIP disclaims all liability for any use or application of any Licensed Software and Hardware or the results or decisions made or obtained by users of the Licensed Software and Hardware. EIP does not warrant that (i) the functions of any Licensed Software and Hardware will meet Your requirements or will enable it to attain Your objectives, (ii) the Licensed Software and Hardware will operate in any combination or environment selected for use by You if it is not an environment supported by EIP for the product in question, as specified in the Documentation, or (iii) the operation of the Licensed Software and Hardware will be uninterrupted or free of errors. In all instances, You shall be solely responsible for ensuring that the results produced by Licensed Software and Hardware comply with quality and safety requirements of Your products or services. You shall have exclusive responsibility for (i) selection of the Licensed Software and Hardware to achieve Your intended results, (ii) installation of the Licensed Software and Hardware, (iii) taking adequate measures to properly test, operate and use each Licensed Software and Hardware and (iv) results obtained therefrom.

 

8. Intellectual property and confidentiality

The Licensed Software incorporates EIP and, as further detailed below, third-party software and technology. EIP and its licensors retain all rights, title and interest, including, but not limited to, all trademarks, copyrights, patent rights, and all other proprietary rights in and to the Licensed Software and the Documentation and in all improvements, enhancements, modifications and derivative works thereof. The Licensed Software and Documentation are licensed only; no title in or to the Licensed Software, Documentation or Support Services is assigned or transferred to You. Use of Updates is limited to Licensed Software and Hardware for which You are the original end-user licensee or authorized transferee. The Licensed Software also incorporates open source and/or publicly available content under separate license; a list of such content and applicable licenses is included in the applicable portion of the Documentation, or available upon request.

 

The Licensed Software and Documentation are confidential in nature and not in the public domain and must therefore not be disclosed except as expressly authorized herein or in writing by EIP prior to any disclosure.

 

You agree not to challenge, directly or indirectly, any right or interest of EIP in the Licensed Software, nor the validity or enforceability of EIP’s rights under applicable law. You agree not to directly or indirectly register, apply for registration or attempt to acquire any legal protection for any of the Licensed Software or any proprietary rights in the Licensed Software or to take any other action which may adversely affect EIP’s rights or interest in the Licensed Software or Documentation in any jurisdiction.

 

You agree to notify EIP immediately and in writing of all circumstances, of which You are aware, surrounding the unauthorized possession or use of the Licensed Software and Documentation by any person or entity. You agree to cooperate fully with EIP, at EIP's expense, in any litigation relating to or arising from such unauthorized possession or use.

 

In the event of a breach of Your obligations under this Section, EIP may, without triggering its liability, immediately terminate this EULA and/or the Order without prejudice to any claim for damages. You will immediately cease to use the Licensed Software, the Hardware and the Support Services.

 

9. Support Services

EIP and its Distributor will provide Support Services relating to the Licensed Software and if applicable, Hardware (the “Support Services”) for the License Term or the term of your Support Services subscription (as applicable) and depending on the level of Support Services You have subscribed, as set out in the Order.  Support Services begin the day of EIP’s delivery of Software or Hardware. Support Policies in effect as of the Effective Date of this EULA are detailed and accessible on EIP’s website and downloadable by You being assigned a contract number by EIP in the maintenance contract or software subscription contract issued by EIP following its acceptance of an Order.

 

The version of the Support Policies applicable to a specific purchase or renewal Order shall be the one currently in effect as of the date of such purchase or renewal Order. Unless otherwise agreed by EIP, You must first address any support requests to the Distributor.  You understand and agree that anyone submitting a support request to EIP must have previously taken at least the first level training course offered by EIP with respect to the Licensed Software and if that course is not instructor-led but accessed through our eLearning platform, EIP’s DDI certification must have been obtained. Information related to Your account and contract is strictly personal and confidential. Support for Licensed Software or Hardware may not be available for any Licensed Software or Hardware that EIP has declared obsolete or end of life.

 

10. Limitation of Liability

10.1 Except for a Party’s gross negligence, willful misconduct, death or personal injury and as otherwise specified below, neither Party’s aggregate liability to the other for any claims arising out of this Agreement will be more than the annual amount of the Software Subscription(s) which is/are the basis of the cause of action.  

 

10.2 if the  claim concerns Sections 8 (“Intellectual Property and Confidentiality”), 11 (“Indemnification”) or the license restrictions in section 3 (“License”), in no event shall either party’s aggregate liability to the other party exceed ten (10) times the annual amount of the Software Subscription(s) which is/are the basis of the cause of action or five (5) million euros, whichever is lower. 

 

10.3 The above-mentioned limits shall apply to any and all claims, regardless of the legal theory on which they are based, and shall include all costs and fees. It is expressly agreed between the Parties that they can only be held liable for a period of one (1) year from the knowledge of the damage. To the maximum extent permitted by applicable law,  neither Party shall have any liability for any indirect damages including but not limited to loss of use, loss of data, loss of profits, business interruption, or procurement of replacement software or hardware, relating to or arising from the use of the Licensed Software, the Hardware, the Documentation, the Support Services or any related services provided under this EULA, even if such Party has been advised of the possibility of such damages. Either Party undertakes to bear all claims, liabilities, costs and expenses exceeding the above-mentioned caps and accordingly waives its right to any form of recourse against the other Party or its insurers related thereto.

 

11. Intellectual Property Indemnity

EIP undertakes to defend indemnify and hold You harmless against any legal action or claim made by a third party alleging that a Licensed Software and/or Hardware delivered under this Agreement directly infringes the intellectual property rights of such third party (“Claim”) and will pay all costs, damages and expenses (including reasonable legal fees) finally awarded against You by a court of competent jurisdiction or agreed to in a written settlement agreement signed by EIP arising out of such Claim, provided that: i) You have promptly notified EIP upon learning of a Claim or potential Claim; ii) EIP has exclusive control over the defense of such Claim and any related settlement discussions and vi) You provide EIP with reasonable assistance and cooperation in the defense and settlement of such Claim. . Notwithstanding the foregoing, EIP shall have no liability for any claim of infringement based on i) the use of a superseded or altered release of the Licensed Software or Hardware if the infringement would have been avoided by the use of a current unaltered release of the same product, ii) the use of the Licensed Software and/or the Hardware other than in accordance with the provisions of this EULA and the Documentation; iii) the modification of the Licensed Software and/or the Hardware by anyone other than EIP or its authorized agents; or iv) use of the Licensed Software and/or the Hardware (which per-se is not infringing) in combination with any other product or service not delivered by EIP.

 

If such claim is made, or if EIP believes that a claim or legal action, as provided for in this Section, could prevent You from using the Licensed Software and/or the Hardware, EIP may at EIP’s sole option and expense, either (i) obtain the necessary rights for You to continue using the Licensed Software and/or the Hardware,  or (ii) modify or replace the Licensed Software and/or the Hardware, with a Licensed Software and/or Hardware substantially equivalent in terms of functionality. If EIP considers that such options are not feasible, EIP may terminate the Licensed Software and/or require return of the Hardware and will refund You any amount paid in advance by You corresponding to the unused or unsupplied portion of the affected Licensed Software and/or Hardware upon return or destruction of all copies of the affected Licensed Software and/or Hardware as certified by an officer of Yours.

 

This Section 11 states EIP’s entire liability and Your exclusive remedy for any claim of infringement of intellectual property rights.

 

12. Your Indemnity

You undertake to defend indemnify and hold EIP harmless against any legal action or claim made by a third party arising out of Your Use of the Licensed Software or Hardware other than as authorized under this EULA and will pay all costs, damages and expenses (including reasonable legal fees) finally awarded against EIP by a court of competent jurisdiction or agreed to in a written settlement agreement signed by You, to the extent such claim.

 

13. Sanction and Export Control

You hereby confirm that a) You are not the target of any Sanctions and/or Export Controls, including without limitation, the List of Specially Designated Nationals maintained by the US Treasury Department’s Office of Foreign Assets Control; b) You are not owned, directly or indirectly, nor are You controlled, or acting at the direction or in the interest, of an individual or entity targeted by applicable Sanctions and/or Export Controls; and c) None of Your board members, or person[s] signing this Agreement, is directly or indirectly targeted by applicable Sanctions and/or Export Controls.

 

You shall notify EIP immediately if You know or reasonably expect that (i) You or any of the persons referred to in the paragraph above is or will become the target of any Sanctions and/or Export Controls, (ii) if You become or reasonably expect to become owned or controlled, or act at the direction of persons targeted by Sanctions and/or Export Controls. You will, from time to time, at EIP’s request, certify Your compliance with this Section 13.

 

You undertake to fully comply with all applicable Sanctions and Export Controls. You shall not take any action, or refrain from taking any action, the result of which would be to cause EIP to violate any Sanctions or Export Controls. You shall hold harmless EIP in full for any loss arising out of a violation thereof, notwithstanding EIP’s right to terminate this EULA or suspend its obligations thereunder in accordance with the provisions of this Agreement.

 

14. Assignment– Subcontraction

This EULA as well as any Order may not be transferred, in whole or in part, by either Party without the prior written consent of the other Party except that EIP may assign this EULA without Your consent to an Affiliate of EIP or to an acquirer of all or substantially all of EIP’s equity, assets or business. You hereby authorize EIP to subcontract part of the Licensed Software, Hardware, Documentation and/or the Support Services to its Affiliates or other qualified subcontractors provided that EIP remains fully responsible for the proper performance of the subcontracted products and services.

 

15. Applicable law and Jurisdiction

This EULA shall be exclusively construed and governed by and shall be interpreted, without regard to the rules of conflicts of laws, in accordance with (i) the laws of France, if the Contracting Party is EfficientIP, France; (ii) the laws of Germany, should the Contracting Party be EfficientIP Germany, (iii) the Laws of England and Wales, should the Contracting Party be EfficientIP, UK ; (iv) the laws of the Commonwealth of Pennsylvania, should the Contracting Party be EfficientIP USA ; (v) the laws of the Province of British Columbia and the laws of Canada applicable therein, should the Contracting Party be EfficientIP Canada or (vi) the laws of Singapore, should the Contracting Party be EfficientIP Asia. The application of the Vienna Convention on the International Sale of Goods is expressly excluded by the Parties.

If a dispute arises out of or in connection with this EULA, Parties shall in good faith attempt to resolve that dispute promptly and meet within fifteen (15) days following the receipt of a registered letter with acknowledgment of receipt from one of the Party requesting to do so. If the Parties are unable to agree on an amicable solution at the end of the above-mentioned delay, the dispute shall then be submitted to the competent courts indicated herein which shall have exclusive jurisdiction to hear and settle any dispute arising out of or in connection with this EULA without prejudice to Parties’ right to appeal or cassation : (i) the competent court of Paris, if the  Contracting Party is EfficientIP France; (ii) the competent court of Saarbrücken, should the Contracting Party be EfficientIP Germany; (iii) the competent court of London, should the Contracting Party be EfficientIP UK; (iv) the state and federal courts sitting in the Eastern District of Pennsylvania, should the Contracting Party be EfficentIP USA; (v) the competent court of Vancouver, should the Contracting Party be EfficientIP Canada and (vi) the competent court of Singapore, should the Contracting Party be EfficientIP Asia.  Either Party may seek immediate injunctive relief in any court of competent jurisdiction. Each Party waives any objection on the basis of personal jurisdiction, improper venue, forum non conveniens or otherwise.