This is a legal agreement ("AGREEMENT") between you, the Licensed User, and BPM Group Inc. Your location of receipt of this product (hereinafter "PRODUCT") or software maintenance (hereinafter "MAINTENANCE") determines the providing entity hereunder (the applicable entity is hereinafter referred to as "ODESSO"). BPM Group Inc., licenses this PRODUCT and provides MAINTENANCE in the Americas. BY INSTALLING AND/OR USING THE PRODUCT, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL AND/OR USE THE PRODUCT. This AGREEMENT covers licenses for cloud, perpetual Odesso PRODUCT, SERVICES, and SUPPORT.
1. GRANT OF LICENSE. This PRODUCT contains software that provides cloud data storage services on a computer called a server ("Server Software"). This PRODUCT is licensed under a user model ("User Model"). The Server Software is activated by licenses that allow use of the Server Software in increments defined by the license model (" Licenses"). Under the User Model, a "User" is an individual authorized by you to use any mobile device(s) to access instances of the Server Software through your assignment of a single user ID, regardless of whether or not the individual is using the PRODUCT at any given time. You may deploy network architectures that use hardware or software to reduce the number of Users that directly access the Server Software. This is referred to as multiplexing or pooling. This does not reduce the number of Licenses required to access or use the Server Software. A License is required for each User that is connected to the multiplexing or pooling software or hardware front end. You must acquire and assign a License to each User that accesses instances of the Server Software directly or indirectly, frequently or infrequently, even if the authorized User is an automaton. Licenses for other ODESSO PRODUCTS or other editions of the same PRODUCT may not be used to increase the allowable use for the PRODUCT. Licenses are version specific for the PRODUCT. They must be the same version or later than the PRODUCT being accessed. ODESSO grants to you the following worldwide and non -exclusive rights to the PRODUCT and accompanying documentation (collectively called the "SOFTWARE"): a. License. You may install the Server Software on an unlimited number of servers. You may use the Server Software to provide data storage services for internal users or third parties up to the number of Licenses purchased. Each License that is installed in both a production and disaster recovery environment may be used only in one of the environments at any one time, except for duplicate use during routine testing of the disaster recovery environment. b. Perpetual License. The SOFTWARE is licensed on a perpetual basis. c. Partner Demo. If this SOFTWARE is labeled "Partner Demo," notwithstanding any term to the contrary in this AGREEMENT, your License permits use only if you are a current ODESSO authorized distributor or reseller and then only for demonstration, test, or evaluation purposes in support of your customers. Partner Demo SOFTWARE may not be used for customer training. Note that Partner Demo SOFTWARE disables itself on the "time-out" date identified on the SOFTWARE packaging. d. Evaluation. If this SOFTWARE is labeled "Evaluation," notwithstanding any term to the contrary in this AGREEMENT, your License permits use only for your internal demonstration, test, or evaluation purposes for ninety (90) days with NO RIGHT TO MAINTENANCE, A WARRANTY OR INFRINGEMENT INDEMNIFICATION. Note that Evaluation SOFTWARE may disable itself upon License expiration. e. Archive Copy. You may make one (1) copy of the SOFTWARE in machine-readable form solely for back-up purposes, provided that you reproduce all proprietary notices on the copy.
2. MAINTENANCE. You must purchase MAINTENANCE with new licenses. Your initial MAINTENANCE shall begin on the date the Licenses are delivered to you by email. Maintenance shall continue for a one (1) year term subject to your purchase of annual renewals (the "Maintenance Term"). During the initial or a renewal MAINTENANCE Term, ODESSO will provide a technical support and Updates. For the purposes of this AGREEMENT, an "Update" shall mean a generally available release of the same SOFTWARE which Odesso makes available from time to time. Updates shall be considered SOFTWARE under the terms of this AGREEMENT, except they are not covered by the Limited Warranty applicable to SOFTWARE, to the extent permitted by applicable law. MAINTENANCE may be purchased for the SOFTWARE until it is no longer offered in accordance with the ODESSO PRODUCT Support Policy posted at www.odesso.com. You acknowledge that ODESSO may develop and market new or different computer programs or editions of the SOFTWARE that use portions of the SOFTWARE and that perform all or part of the functions performed by the SOFTWARE. Nothing contained in this AGREEMENT shall give you any rights with respect to such new or different computer programs or editions. You also acknowledge that ODESSO is not obligated under this AGREEMENT to make any Updates available to the public. Any deliveries of Updates shall be electronic. Technical support includes unlimited Incidents, unlimited named contacts and worldwide coverage. You may also purchase technical relationship management coverage and consulting services as part of MAINTENANCE. The offering you purchase determines your entitlement. A technical support "Incident" is defined as a single technical support issue and reasonable effort(s) needed to resolve it. An Incident may require multiple telephone calls and offline research to achieve final resolution. The Incident severity will determine the response levels for the SOFTWARE. MAINTENANCE may be purchased for the SOFTWARE until it is no longer offered in accordance with the ODESSO PRODUCT Support Policy posted at www.odesso.com. Technical support will be provided remotely from ODESSO to your locations. Where on-site visits are mutually agreed, you will be billed for reasonable travel and living expenses in accordance with your travel policy. ODESSO performance is predicated upon the following responsibilities being fulfilled by you: (i) you will designate a Customer Support Manager ("CSM") who will be the primary administrative contact; (ii) you agree to perform reasonable problem determination activities and to perform reasonable problem resolution activities as suggested by ODESSO; (iii) you are responsible for implementing procedures necessary to safeguard the integrity and security of SOFTWARE and data from unauthorized access and for reconstructing any lost or altered files resulting from catastrophic failures; (iv) you are responsible for procuring, installing, and maintaining all equipment, telephone lines, communications interfaces, and other hardware at your site and providing ODESSO with access to your facilities as required to operate the SOFTWARE and permitting ODESSO to perform the service called for by this AGREEMENT; and (v) you are required to implement all currently available and applicable hotfixes, hotfix rollup packs, and service packs or their equivalent to the SOFTWARE in a timely manner. ODESSO is not required to provide any technical support relating to problems arising out of: (i) your or any third party’s alterations or additions to the SOFTWARE, operating system or environment that adversely affects the SOFTWARE (ii) Odesso provided alterations or additions to the SOFTWARE that do not address Errors or Defects; (ii) any functionality not defined in the PRODUCT documentation published by ODESSO and included with the PRODUCT; (iii) use of the SOFTWARE on a processor and peripherals other than the processor and peripherals defined in the documentation; (iv) SOFTWARE that has reached End-of-Life; and (v) any consulting deliverables from any party. An "Error" is defined as a failure in the SOFTWARE to materially conform to the functionality defined in the documentation. A "Defect" is defined as a failure in the SOFTWARE to conform to the specifications in the documentation. In situations where ODESSO cannot provide a satisfactory resolution to your critical problem through normal technical support methods, ODESSO may engage its product development team to create a private fix. Private fixes are designed to address your specific situation and may not be distributed by you outside your organization without written consent from ODESSO. ODESSO retains all right, title, and interest in and to all private fixes. Any hotfixes or private fixes are not SOFTWARE under the terms of this AGREEMENT and they are not covered by the Limited Warranty or Infringement Indemnification applicable to SOFTWARE, to the extent permitted by applicable law. With respect to consulting services, all intellectual property rights in all reports, pre -existing works and derivative works of such pre-existing works, as well as installation scripts and other deliverables and developments made, conceived, created, discovered, invented, or reduced to practice in the performance of the assessment are and shall remain the sole and absolute property of ODESSO, subject to a worldwide, non-exclusive License to you for internal use.
3. DESCRIPTION OF OTHER RIGHTS, LIMITATIONS, AND OBLIGATIONS. With respect to SOFTWARE licensed hereunder, you may not transfer, rent, timeshare, grant rights in or lease it except to the extent such foregoing restriction is expressly prohibited by applicable law. If you purchased Licenses for the SOFTWARE to replace other ODESSO Licenses for other ODESSO SOFTWARE and such replacement is a condition of the transaction, you agree to destroy those other ODESSO Licenses and retain no copies after installation of the new Licenses and SOFTWARE. You shall provide the serial numbers of such replaced Licenses and corresponding replacement Licenses to the reseller, and upon request, directly to ODESSO for license tracking purposes. In the event you make a transfer of the SOFTWARE permitted by law, you must uninstall the SOFTWARE and Licenses, transfer them to the transferee and retain no copies. The transferee must accept the terms of this AGREEMENT upon installation. All warranty, MAINTENANCE and infringement indemnification rights will terminate upon such transfer and such programs will not be available to the transferee. You must comply with applicable export laws with respect to such a transfer. You may not modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, or copy the SOFTWARE except as specifically licensed herein or to the extent such foregoing restriction is expressly prohibited by applicable law. You may not remove any proprietary notices, labels, or marks on any SOFTWARE. To the extent permitted by applicable law, you agree to allow ODESSO to audit your compliance with the terms of this AGREEMENT upon prior written notice during normal business hours. Notwithstanding the foregoing, this AGREEMENT shall not prevent or restrict you from exercising additional or different rights to any free, open source code, documentation and materials contained in or provided with the SOFTWARE in accordance with the applicable free or open source license for such code, documentation, and materials. ALL RIGHTS IN THE SOFTWARE NOT EXPRESSLY GRANTED ARE RESERVED BY ODESSO OR ITS SUPPLIERS. You hereby agree, that to the extent that any applicable mandatory laws (such as, for example, national laws implementing EC Directive 91/250 on the Legal Protection of Computer Programs) give you the right to perform any of the aforementioned activities without the consent of ODESSO to gain certain information about the SOFTWARE, before you exercise any such rights, you shall first request such information from ODESSO in writing detailing the purpose for which you need the information. Only if and after ODESSO, at its sole discretion, partly or completely denies your request, shall you exercise your statutory rights.
4. INFRINGEMENT INDEMNIFICATION. ODESSO shall indemnify and defend, or at its option, settle any claim, suit, or proceeding brought against you based on an allegation that the SOFTWARE infringes upon any patent, copyright or trade secret of any third party ("Infringement Claim" ), provided you promptly notify ODESSO in writing of your notification or discovery of an Infringement Claim such that ODESSO is not prejudiced by any delay in such notification. ODESSO will have sole control over the defense or settlement of any Infringement Claim and you will provide reasonable assistance in the defense of the same. Following notice of an Infringement Claim, or if ODESSO believes such a claim is likely, ODESSO may at its sole expense and option: (i) procure for you the right to continue to use the alleged infringing SOFTWARE; (ii) replace or modify the SOFTWARE to make it non-infringing; or (iii) accept return of the SOFTWARE and provide you with a prorated refund on a three (3) year straight line depreciation basis. ODESSO assumes no liability for any Infringement Claims or allegations of infringement based on: (i) your use of any SOFTWARE after notice that you should cease use of such SOFTWARE due to an Infringement Claim; (ii) any modification of the SOFTWARE by you or at your direction; or (iii) your combination of SOFTWARE with non -ODESSO programs, data, hardware, or other materials, if such Infringement Claim would have been avoided by the use of the SOFTWARE alone. THE FOREGOING STATES YOUR EXCLUSIVE REMEDY W ITH RESPECT TO ANY INFRINGEMENT CLAIM.
5. LIMITED WARRANTY AND DISCLAIMER. ODESSO warrants that for a period of ninety (90) days from the date of delivery of the SOFTWARE to you, the SOFTWARE will perform substantially in accordance with the PRODUCT documentation published by ODESSO and included with the PRODUCT. ODESSO and its suppliers’ entire liability and your exclusive remedy under this warranty (which is subject to you returning the SOFTWARE to ODESSO or an authorized reseller) will be, at the sole option of ODESSO and subject to applicable law, to replace the media and/or SOFTWARE or to refund the purchase price and terminate this AGREEMENT. This limited warranty does not cover any modification of the SOFTWARE by you or related issues. ODESSO will provide the Saas control plane, technical support and consulting services requested by you in a professional and workmanlike manner, but as to technical support and consulting services, ODESSO cannot guarantee that every question or problem raised by you will be resolved or resolved in a certain amount of time. Odesso does not warrant in any form the results or achievements of the technical support or consulting services or related deliverables. With respect to all services, ODESSO and its suppliers’ entire liability and your exclusive remedy under this warranty is restoration of or re-performance of the services. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR THE ABOVE LIMITED WARRANTY, ODESSO AND ITS SUPPLIERS MAKE AND YOU RECEIVE NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE; AND ODESSO AND ITS SUPPLIERS SPECIFICALLY DISCLAIM WITH RESPECT TO SOFTWARE AND MAINTENANCE ANY CONDITIONS OF QUALITY, AVAILABILITY, RELIABILITY, SECURITY, LACK OF VIRUSES, BUGS, OR ERRORS, AND ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR DISTRIBUTION WITH ANY EQUIPMENT THE FAILURE OF WHICH COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. YOU ASSUME THE RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND HARDWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE AND HARDWARE.
6. PROPRIETARY RIGHTS. No title to or ownership of the SOFTWARE is transferred to you. ODESSO and/or its licensors own and retain all title and ownership of all intellectual property rights in and to the SOFTWARE, including any adaptations, modifications, translations, derivative works or copies. You acquire only a limited License to use the SOFTWARE.
7. EXPORT RESTRICTION. You agree that you will not export, re -export, or import the SOFTWARE in any form without the appropriate government licenses. You understand that under no circumstances may the SOFTWARE be exported to any country subject to U.S. embargo or to U.S.-designated denied persons or prohibited entities or U.S. specially designated nationals.
8. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER ODESSO NOR ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS SHALL BE LIABLE FOR ANY LOSS OF DATA OR PRIVACY, LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, COST OF RECOVERY, LOSS ARISING FROM YOUR USE OF THE SOFTWARE OR MAINTENANCE, OR DAMAGE ARISING FROM YOUR USE OF THIRD PARTY SOFTWARE OR HARDWARE OR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; OR THE USE OF THE SOFTWARE OR MAINTENANCE; OR YOUR EXPORTATION, REEXPORTATION, OR IMPORTATION OF THE SOFTWARE OR MAINTENANCE, HOWEVER CA USED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF ODESSO, ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF ODESSO, ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS EXCEED THE AMOUNT PAID FOR THE SOFTWARE OR MAINTENANCE AT ISSUE. YOU ACKNOW LEDGE THAT THE SOFTWARE AND MAINTENANCE FEE REFLECTS THIS ALLOCATION OF RISK. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. For purposes of this AGREEMENT, the term "ODESSO AFFILIATE" shall mean any legal entity fifty percent (50%) or more of the voting interests in which are owned directly or indirectly by BPM Group, Inc. Affiliates, suppliers, and authorized distributors are intended to be third party beneficiaries of this AGREEMENT.
9. TERMINATION. This AGREEMENT is effective until terminated. (a) Either party may terminate this AGREEMENT at any time for convenience for any reason or no reason at any time upon notice to the other party (email to suffice); in which case Licensee shall cease all access and use of the service. Licensee must remove the SOFTWARE from your computers, phones, and other devices, and destroying all copies and providing written notice to ODESSO with the serial numbers of the terminated licenses. (b)ODESSO may terminate this AGREEMENT at any time for your breach of this AGREEMENT. Unauthorized copying of the SOFTWARE or the accompanying documentation or otherwise failing to comply with the license grant of this AGREEMENT will result in automatic termination of this AGREEMENT and will make available to ODESSO all other legal remedies. (c) You agree and acknowledge that your material breach of this AGREEMENT shall cause ODESSO irreparable harm for which monetary damages alone would be inadequate and that, to the extent permitted by applicable law, ODESSO shall be entitled to injunctive or equitable relief without the need for posting a bond. (d) Upon termination of this AGREEMENT, the License granted herein will terminate and you must immediately destroy the SOFTWARE and accompanying documentation, and all backup copies thereof.
10. U.S. GOVERNMENT END-USERS. If you are a U.S. Government agency, in accordance with Section 12.212 of the Federal Acquisition Regulation (48 CFR 12.212 (October 1995)) and Sections 227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement (48 CFR 227.7202 -1, 227.7202-3 (June 1995)), you hereby acknowledge that the SOFTWARE constitutes "Commercial Computer Software" and that the use, duplication, and disclosure of the SOFTWARE by the U.S. Government or any of its agencies is governed by, and is subject to, all of the terms, conditions, restrictions, and limitations set forth in this standard commercial license AGREEMENT. In the event that, for any reason, Sections 12.212, 227. 7202-1 or 227.7202-3 are deemed not applicable, you hereby acknowledge that the Government’s right to use, duplicate, or disclose the SOFTWARE are "Restricted Rights" as defined in 48 CFR Section 52.227 -19(c)(1) and (2) (June 1987), or DFARS 252.227-7014(a)(14) (June 1995), as applicable. Manufacturer is BPM Group, Inc., 7083 Hollywood Blvd, 1st Floor, Los Angeles, CA, 90028.
11. AUTHORIZED DISTRIBUTORS AND RESELLERS. ODESSO authorized distributors and resellers do not have the right to make modifications to this AGREEMENT or to make any additional representations, commitments, or warranties binding on ODESSO.
12. CHOICE OF LAW AND VENUE. If provider is BPM Group, Inc., this AGREEMENT will be governed by the laws of the State of California without reference to conflict of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods, and in any dispute arising out of this AGREEMENT, you consent to the exclusive personal jurisdiction and venue in the State and Federal courts within Los Angeles County, California. If any provision of this AGREEMENT is in valid or unenforceable under applicable law, it shall be to that extent deemed omitted and the remaining provisions will continue in full force and effect. To the extent a provision is deemed omitted, the parties agree to comply with the remaining terms of this AGREEMENT in a manner consistent with the original intent of the AGREEMENT.
13. HOW TO CONTACT ODESSO. Should you have any questions concerning this AGREEMENT or want to contact ODESSO for any reason, write to ODESSO at the following address: BPM Group Inc., Customer Service, 7083 Hollywood Blvd, 1st Floor, Los Angeles, CA 90028;