This End User License Agreement (“Agreement”) is between Data Dwell, Inc., (“Data Dwell,” “we”) and the Customer (“you,” “your”). The person signing this Agreement on your behalf has been duly authorized and empowered to execute and deliver this Agreement. In consideration of the mutual promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. ACCESS TO THE SOFTWARE. Subject to the terms and conditions of this Agreement, Data Dwell hereby grants you a limited, non-exclusive, non-transferrable, non-sublicense able license to use (in object code only) the Data Dwell App that you have selected and paid for pursuant to Section 9 below (the “Software”) for your own internal business purposes, and not for the use or benefit of any third party. You agree that Data Dwell owns all right, title, and interest in and to the Software and all intellectual property rights related thereto, including without limitation all related written materials and associated documentation (“Documentation”). All rights not expressly granted herein are reserved and retained by Data Dwell and its suppliers and/or licensors. Data Dwell may choose to provide upgrades or enhancements to the Software to you free of charge in its sole discretion.
2. YOUR CONTENT. During the term of the Agreement, you may use the Software to upload, display, share, manage, or otherwise use certain information or content provided by you (“Content”). Under no circumstances will Data Dwell be liable in any way for any Content, including, but not limited to, any loss or damage of any kind to the Content. You hereby represent and warrant that all Content will be your original work and will not infringe any right of any third party (including without limitation intellectual property rights), and that you possess all rights necessary to use such Content in connection with the Software. You will indemnify and hold Data Dwell, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys' fees) from any claim or demand made by any third party due to or arising out of your breach of the previous sentence. Data Dwell reserves the right to remove any Content from the Software at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
3. LICENSE RESTRICTIONS. You warrant, represent and agree that you will not (and will not allow any third party or User (as defined below) to): (i) decompile, reverse engineer, or otherwise attempt to obtain the source code of the Software; (ii) provide, lease, lend, license, sublicense, sell, or use the Software for timesharing or service bureau purposes, or otherwise use or allow others to use the Software for the benefit of any third party; (iii) use the Software in any manner that violates any law, statute, ordinance or regulation (including without limitation any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other U.S. or foreign government agency); (iv) copy, modify, or create derivative works of the Software or the Documentation; (v) alter or remove any copyright, trademark, or other proprietary notice from the Software, the Documentation, or any portion thereof; (v) use the Software in any manner that violates the security of any computer network, including without limitation by using the Software to transmit a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program; and (vi) use any device, software or routine to interfere or attempt to interfere with the proper working of the Software or any other person or entity’s use of the Software.
4. SUPPORT. Data Dwell offers technical support via email at support@datadwell.com. Data Dwell will use commercially reasonable efforts to respond to your requests for support; however, Data Dwell does not make any representations or warranties that it will respond to a request for support within a certain amount of time, or that it will be able to remedy any problem you may be having.
5. WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6. PRIVACY POLICY. For information regarding Data Dwell´s treatment of personally identifiable information (including without limitation your Content), please review Data Dwell´s current Privacy Policy at https://datadwell.datadwell.com/public/privacy_policy, as such policy may be changed from time to time, which is incorporated herein by reference. Your acceptance of this Agreement constitutes your acceptance and agreement to be bound by Data Dwell´s Privacy Policy. It is your responsibility to ensure that you understand the terms of the Privacy Policy, so you should periodically check the current version of the Privacy Policy for changes.
7. INDEMNITY. Data Dwell will indemnify and hold you harmless (including, without limitation, from all damages, liabilities, settlements, and costs payable to a third party) from a claim made by a third party that the Software infringes the intellectual property rights of such third party. Data Dwell´s obligations hereunder do not apply with respect to infringement claims that arise as a result of (i) combination of the Software with anything not provided to you by Data Dwell; (ii) modification of the Software by someone other than Data Dwell; (iii) your continued use of the Software after being notified that the Software may be infringing; (iv) your use of a the Software in a manner not permitted by this Agreement. Data Dwell´s indemnity obligations hereunder are conditioned upon your giving Data Dwell (a) prompt notification of any potentially indemnifiable claim (“Claim”); (b) sole control of the defense and settlement of any Claim; and (c) reasonable assistance, at Data Dwell´s request and expense, in the defense and settlement of any Claim.
8. LIMITATION OF LIABILITY. IN NO EVENT SHALL DATA DWELL OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE SOFTWARE, THE DOCUMENTATION, OR THE SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF THE FEES PAID BY YOU THEREFOR OR $100 (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND DATA DWELL´S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
9. FEES AND PAYMENT.
9.1 Subscriptions, as descriped below. You shall pay all fee due in connection wiht the subscription you purchase, and you access to the Software will be terminated if you do not pay those amounts in full as required under such subscription plan. We reserve the right to change the fees we charge for a subscription upon the expiration of each Subscription Period (as defined below). We will give you forty-five (45) days notice before the end of your Subscription Period of a price change for the subsequent Subscription Period.
9.2 Subscription Plans.
(a) The „Standard user license“ includes access to the following tool Data Dwell Sale Athlete an AppExchange product, The Standard User Subscription costs 10 per month, per user accessing and/or utilizing the Software, (a “User”). You shall not allow more than one individual to use a single User account.
(b) The “Premium User Subscription” includes access to the following tool Data Dwell Sale Athlete an AppExchange product and phone support, The Standard User Subscription costs 10 per month, per user accessing and/or utilizing the Software, (a “User”). You shall not allow more than one individual to use a single User account. You must purchase and maintain at least fifty (50) Users for the Premium User Subscription.
(c) You may choose a subscription term of one (1), two (2), or three (3) years (each, a “Subscription Period”). The Subscription Period shall begin on the date any one of your Users accesses or utilizes the Software. If you choose a two (2) year Subscription Period, you will receive a ten percent (10%) discount off the prices quoted above for all Users under your subscription plan (including those Users who are added after the start of your subscription plan, as set forth in Section 9.2(e) below). If you choose a three (3) year Subscription Period, you will receive a twenty percent (20%) discount off the prices quoted above for all Users under your subscription plan (including those Users who are added after the start of your subscription plan, as set forth in Section 9.2(e) below).
(d) You may not remove Users from your subscription plan during any Subscription Period. You will advise Data Dwell of the number of Users you select in advance of the start of your Subscription Period.
9.3 Payment Terms.
(a) All subscription fees will be charged in advance at the start of your then-current Subscription Period (and upon the addition of additional User(s) to your subscription, as applicable) to the credit card you provided to Data Dwell. If the credit card information you have provided is incorrect or incomplete, or Data Dwell is otherwise unable to complete a transaction due to your error or omission, any amounts not paid will bear a late fee of one and one half percent (1.5%) per month until paid, or the maximum rate permitted by law, whichever is lower. All subscription fees will be charged in advance at the start of your then-current Subscription Period (and upon the addition of additional User(s) to your subscription, as applicable). You will be invoiced in advance with payment due with 30 days of the invoice date. If the invoice is not paid in full by the due date, any amounts not paid will bear a late fee of one and one half percent (1.5%) per month until paid, or the maximum rate permitted by law, whichever is lower. If your payment transaction cannot be completed for forty five (45) days or more after the start of your Subscription Period, Data Dwell reserves the right to immediately terminate this Agreement and/or suspend your use of the Software. All fees paid hereunder are non-refundable. For avoidance of doubt, if you opt to remove Users from your subscription, no refunds or discounts will be granted.
(b) You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the Software.
10. TERM AND TERMINATION. This Agreement shall remain in full force and effect while you use the Software. Data Dwell will notify you via email at least forty-five (45) days prior to the end of your then-current Subscription Period of the pending expiration of your Subscription Period. If you do not notify Data Dwell of your intent to terminate your subscription or your desire to change the terms of your subscription within fifteen (15) days prior to the end of your then-current Subscription Period, your subscription will be automatically renewed on its then-current terms. You may terminate your use of the Software or your membership at any time, provided, however, that no refunds will be granted. Data Dwell may terminate or suspend your access to the Software at any time, without notice, if you breach any of the terms or conditions of this Agreement. Upon expiration or earlier termination of this Agreement, your right to use the Software will immediately cease. The following provisions shall survive termination of this Agreement: Section 2, 3, and Sections 5-12 (inclusive).
11. MISCELLANEOUS. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Data Dwell shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Data Dwell´s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub licensable by you except with Data Dwell´s prior written consent. Data Dwell may transfer, assign or delegate this Agreement and its rights and obligations hereunder without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Data Dwell in any respect whatsoever.
12. PRESS RELEASE, ETC. Upon execution of this Agreement, each Party may issue a press release that is mutually agreed to by both Parties announcing the relationship under this Agreement. The Parties may collaborate on other promotional activities as mutually agreed to.
13. GOVERNING LAW. This Agreement is governed by the law of England and Wales and the parties submit to the exclusive jurisdiction of the English courts.
