NEWBERRY SOLUTIONS LLC
END USER LICENSE AGREEMENT
This End User License Agreement (the “Agreement”) is hereby entered into and agreed upon by the user (“You” or “User”) accessing or using the Software (defined below) and Newberry Executive Solutions LLC (“Newberry Solutions”). This Agreement sets forth the obligations of each party with respect to the Software.
BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE, BY EXECUTING AN AGREEMENT THAT REFERENCES THIS AGREEMENT, OR BY DOWNLOADING, INSTALLING AND/OR UTILIZING THE SOFTWARE (DEFINED BELOW), YOU AGREE TO THIS AGREEMENT. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND NEWBERRY SOLUTIONS AND SETS FORTH THE TERMS THAT GOVERN THE LICENSE PROVIDED TO YOU HEREUNDER. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THIS AGREEMENT WILL NOT BE ACCEPTED AND WILL NOT BE A PART OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
1.1 Computer means the hardware, if the hardware is a single computer system, whether physical or virtual, or means the computer system with which the hardware operates, if the hardware is a computer system component.This definition also includes any mobile devices including but not limited to smartphones, cell phones, pad computing devices, wearables, or any other computing device where the Software can be executed or used.
1.2 Documentation means the official user documentation prepared and provided by Newberry Solutions to You on the use of the Software.
1.3 Personal Data means information that may be used to readily identify an individual person.
1.4 Sensitive Data means the first and last name of a person combined with at least one of the following pieces of information about that person: (a) driver’s license or credit card or social security number; or (b) bank account combined with any necessary access code; or (c) health care information.
1.5 Software means any on-demand training materials provided by Newberry Solutions via a designated website controlled by Newberry Solutions or via a mobile application provided by Newberry Solutions.
1.6 User(s) mean an individual authorized to use the Software and Documentation. User(s), and may include a company, its employees, consultants, and/or contractors.
1.6 Your Data or Data means data, files, or information, including data, files, or information that include Personal Data, accessed, used, communicated, stored, or submitted by You or other Users related to the use of the Software.
2. GRANT OF LICENSE.
a) Newberry Solutions grants You a non-transferable, non-exclusive software license to use the Software for your own purposes. Nothing herein shall prohibit Newberry Solutions from licensing or granting other rights in and to the Software to other parties. Unauthorized use of the Software including, but not limited to, unauthorized access, sharing of logins, misuse of passwords, or misuse of any information or Software elements, tools or functions, is strictly prohibited. For avoidance of doubt, downloads of certain content including video, text, or audio that are expressly permitted by the Software are not considered a prohibited actions.
b) Integration with Other Services. Newberry Solutions may integrate the Software with third party services and APIs as needed for the operation of the Software or at otherwise required by you (the “Third Party Apps”). Newberry Solutions has no responsibility or liability to you or any third parties with respect to any such Third Party Apps.
c) Hosting Services. The Software is hosted and accessible via a third-party hosting service, Amazon Web Services or a similar hosting provider (“Cloud Provider”). Newberry Solutions can provide you with the technical specifications of its hosting services and shall notify you of any change in the hosting provider or such technical specifications. Newberry Solutions has no responsibility or liability to you or any third parties with respect to Cloud Provider or any other hosting services.
2.2 Software Evaluation or Beta License. If the Software is provided to You for evaluation, beta, or test release purposes, Newberry Solutions grants to You a nonexclusive, limited, royalty-free, nontransferable evaluation license to use the Software solely for evaluation prior to purchase or implementation (an “Evaluation License”). You shall not use the Evaluation License as substitution of a full license for commercial use of the Software. The Evaluation License shall terminate on the end date of the pre-determined evaluation period or immediately upon notice from Newberry Solutions at its sole discretion. Notwithstanding any other provision contained herein, Software provided pursuant to an Evaluation License is provided to You “AS IS” without indemnification, support, or warranty of any kind, express or implied. Except to the extent such terms conflict with the specific Evaluation License terms set forth in this Section, all other terms of this Agreement shall apply to Software licensed under an Evaluation License.
3. LICENSE RESTRICTIONS; OBLIGATIONS.
3.1 License Restrictions.
3.1.1 General. You may not: (i) provide, make available to, or permit other individuals to use the Software or Documentation, except under the terms listed herein, either in whole or part; (ii) modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code based upon the Software or Documentation; (iii) copy, reproduce, republish, upload, post, or transmit the Software or Documentation; (iv) license, sell, rent, lease, transfer, sublicense, distribute, or otherwise transfer rights to the Software or Documentation; (v) remove any proprietary notices or labels on the Software or Documentation; (vi) license the Software if You are a direct competitor of Newberry Solutions or for the purposes of monitoring the Software’s availability, performance, or functionality or for any other benchmarking or competitive purposes; (vii) use the Software to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of third party rights, including privacy rights; or (viii) use the Software in a manner that results in excessive use or circumvention of the technical limitations or usage limits of the Software. Any such forbidden use shall immediately terminate Your license to the Software. The Software is intended only for use with You and properly licensed third-parties. All responsibility for obtaining such a license is Yours, and Newberry Solutions shall not be responsible for Your failure to do so. For avoidance of doubt, downloads of certain content including video, text, or audio that are expressly permitted by the Software are not considered a prohibited action.
3.2 License Obligations.
3.2.1 You acknowledge, agree, and warrant that: (i) You will be responsible for Your activity and compliance with this Agreement; (ii) You are legally able to process Your Data and provide Your Data to Newberry Solutions, including obtaining appropriate consents or rights for such processing, as outlined further herein and have the right to access and use Your infrastructure, including any system or network, to obtain or provide the Software and will be solely responsible for the accuracy, security, quality, integrity, and legality of the same; (iii) You will keep your registration information, passwords and technical data accurate, complete, secure and current; and (iv) You shall use the Software and Documentation solely in a manner that complies with all applicable laws in the jurisdictions in which You use the Software and Documentation, including, but not limited to, applicable local, state, federal, and international laws, including intellectual property and data privacy and security laws.
4. RIGHTS RESERVED. THE SOFTWARE IS LICENSED, NOT SOLD.
4.1 Use herein of the word “purchase” in conjunction with licenses, license keys, or the Software shall not imply a transfer of ownership. Except as provided herein, this Agreement does not grant You any ownership rights, title, or interest in or to Software, Documentation, trade secrets, or corresponding intellectual property (including without limitation any images, photographs, animations, video, audio, music, and text incorporated into the Software, the accompanying printed materials, and any copies of the Software) of Newberry Solutions or its suppliers, and all rights, title, and interest in and to the Software, Documentation, and corresponding intellectual property shall remain the property of Newberry Solutions, its suppliers, or are publicly available. All rights not expressly granted under this Agreement are reserved by Newberry Solutions or related third parties. All title, rights, and interest in and to content, which may be accessed through the Software, is the property of the respective owner and may be protected by applicable laws and treaties, including intellectual property laws. This Agreement gives You no rights to such content, including use of the same.
4.2 User Provided Data. Newberry Solutions may collect, use, and store data concerning the operation of the Software and such may identify the job function or other categories of identifying information related to the User, which is not Personal Data. All Data provided by Users in connection with the use of the Software will exclusively belong to Newberry Solutions, which hereby grants to the providing User a fully-paid, irrevocable and non-exclusive license in and to such Data during the term of this Agreement. Without limiting the above, Newberry Solutions will not share any Sensitive Data with any third party without the advance written consent of the User.
5. CONFIDENTIALITY; PERSONAL DATA.
5.1 Confidential Information means any nonpublic or proprietary information, in tangible or intangible form, that a party to this Agreement (“Disclosing Party”) designates as being confidential by legends or other markings or in a separate writing provided contemporaneous with the disclosure to the party that receives such information (“Receiving Party”). Without limiting the above, Confidential Information includes the Software, Documentation and any other intellectual property or proprietary rights thereto of Newberry Solutions.
5.3 Protection of Confidential Information. Receiving Party may use Confidential Information of Disclosing Party to exercise its rights and perform its obligations under this Agreement; in connection with the parties’ ongoing business relationship; or as otherwise set forth herein. Receiving Party will not use any Confidential Information of Disclosing Party for any purpose not permitted by this Agreement and will disclose the Confidential Information of Disclosing Party only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality respecting the protection of Confidential Information substantially similar to those of this Agreement. Receiving Party will utilize commercially reasonable efforts to protect Confidential Information from unauthorized or unlawful processing by maintaining appropriate technical and organizational measures that help to provide an appropriate level of security for Confidential Information. The parties will each be responsible for any breach of this Agreement by their consultants or agents. Confidential Information shall remain at all times the property of the Disclosing Party. Except as provided herein, no rights to use, license or otherwise exploit the Confidential Information are granted to the Receiving Party or its agents, by implication or otherwise.
5.4 Termination; Effect of Termination. Unless otherwise agreed in writing, Newberry Solutions may terminate this Agreement and your access to the Software at any time. Upon any termination of this Agreement, the License shall terminate and you shall have no further rights in or to the Software. Upon suspension or termination for any reason, your ability to use the Software will cease. In addition to the inability to access the Software, you will have no access to the Software, nor to the Data you may have stored within the Software. You understand and agree that a termination of your license to any Software may result in the loss of your stored data, and that Newberry Solutions is not responsible, in any way, for any such stored data loss. If both of the parties agree in writing, Newberry Solutions may in its discretion store the stored data upon a lapse or termination of this Agreement and both parties will also agree in writing as to the cost of storing the stored data after a lapse or termination of this Agreement.
6. NO WARRANTY.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEWBERRY SOLUTIONS IS PROVIDING AND LICENSING THE SOFTWARE TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NEWBERRY SOLUTIONS, ITS DIRECTORS, OFFICERS, AGENTS, SUPPLIERS AND NEWBERRY SOLUTIONS, BE LIABLE TO YOU WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE: (I) FOR MORE THAN THE LESSER OF $5,000 OR THE TOTAL AMOUNT OF LICENSE FEES THAT YOU HAVE PAID TO NEWBERRY SOLUTIONS IN THE PRECEDING (12) TWELVE MONTHS FOR THE APPLICABLE SOFTWARE, OR (II) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOSS OF USE OF THE SERVICE OFFERING, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF YOUR DATA, LOST SAVINGS, OR OTHER ECONOMIC DAMAGE, ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF NEWBERRY SOLUTIONS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. THIRD PARTY PROGRAMS AND SERVICES.
To the extent the Software is bundled with third-party software programs; these third-party software programs are governed by their own license terms, which may include open source or free software licenses, and these terms will prevail over this Agreement as to Your use of the third-party programs. Nothing in this Agreement limits an end user’s rights under, or grants the end user rights that supersede, the terms of any such third-party software. The Software is provided via a third-party cloud hosting services such as Amazon Web Services, which is the Cloud Provider. Newberry Solutions has no responsibility or liability to You or any Users with respect to the Cloud Provider services, nor for any failures or issues with the Software that are caused by the Cloud Provider or any third party programs.
9. CHOICE OF LAW AND VENUE.
This Agreement shall be governed by the laws of the State of Texas and of the United States, without regard to any conflict of law provisions, except that the United Nations Convention on the International Sale of Goods shall not apply. The parties agree that the provisions of the Uniform Computer Information Transactions Act shall not apply to this Agreement. You hereby consent to jurisdiction of the courts of both the state and/or federal courts of Texas.
10.1 Notices. All notices must be in writing and shall be mailed by registered or certified mail to ATTN: Newberry Executive Solutions at 14902 Preston Road, Suite 404-118, Dallas, TX 75254 or sent via email to firstname.lastname@example.org (with evidence of effective transmission).
10.3 Modifications. This EULA can be modified or amended at any time by Newberry Solutions, and such amendments will be binding on You if you continue to use the Software after the amended version is delivered to you or otherwise posted in the Software.
10.4 Severability. If any provision of this Agreement is held to be unenforceable, illegal, or void, that shall not affect the enforceability of the remaining provisions. The parties further agree that the unenforceable provision(s) shall be deemed replaced by a provision(s) that is binding and enforceable and that differs as little as possible from the unenforceable provision(s), with considerations of the object and purpose of this Agreement.
10.5 Waiver. The delay or failure of either party to exercise any right provided in this Agreement shall not be deemed a waiver of that right.
10.6 Force Majeure. Newberry Solutions will not be liable for any delay or failure to perform obligations under this Agreement due to any cause beyond its reasonable control, including acts of God; labor disputes; industrial disturbances; systematic electrical, telecommunications or other utility failures; earthquakes, storms, or other elements of nature; blockages; embargoes; riots; acts or orders of government; acts of terrorism; and war.
10.7 Construction. Paragraph headings are for convenience and shall have no effect on interpretation.
10.8 Third Party Rights. Other than as expressly provided herein, this Agreement does not create any rights for any person who is not a party to it, and no person not a party to this Agreement may enforce any of its terms or rely on an exclusion or limitation contained in it.
10.10 Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
10.11 Contact Us. You may contact us at email@example.com if you have any questions regarding this Agreement, the Software or the Documentation.