PLEASE READ THIS LICENSE AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE.
BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE SOFTWARE.
1. Definitions
“TDS” means Trusted Data Solutions LLC, including its subsidiaries and affiliates, with principal offices at 15 West 26th Street, New York, NY 10010.
“Software” means the Evolve™ software program(s) in object code form, including any updates, upgrades, or modifications provided by TDS.
“Documentation” means the user guides, manuals, and other materials provided with the Software.
“You” or “Licensee” means the individual or entity that has agreed to this License and is authorized to use the Software.
“Licensed Units” means the number of authorized installations, users, or accounts specified in your purchase order or license certificate for which you have paid the applicable license fee.
“Data Volumes” means the maximum amount of data, including but not limited to the number of data records, items, transactions, storage capacity, or other data-related metrics, that you are authorized to process, store, or manage using the Software, as specified in your purchase order or license certificate.
“Product License Key” or “PLK” means the unique code provided by TDS that enables your use of the Software.
2. License Grant
The Software is intended solely for business and commercial use. By entering into this Agreement, you represent and warrant that you are acquiring the Software for business purposes and not as a consumer for personal, domestic, or household use.
Subject to the terms of this Agreement, payment of applicable fees, and compliance with your Licensed Units and Data Volumes, TDS grants you a non-exclusive, non-transferable license to:
(a) Install and use the Software on devices owned or controlled by you, up to the Licensed Units for which you have received a valid Product License Key;
(b) If the Software is configured for network use, install the Software on a server for access by authorized users, provided the number of concurrent users does not exceed your Licensed Units; and
(c) Make one (1) archival copy of the Software, provided you retain all copyright and proprietary notices on such copy.
3. License Restrictions
You shall not:
(a) Copy, modify, or create derivative works of the Software or Documentation, except as expressly permitted;
(b) Reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of the Software;
(c) Rent, lease, lend, sell, sublicense, or transfer the Software to any third party;
(d) Remove or alter any proprietary notices, labels, or marks on the Software or Documentation;
(e) Use the Software in any manner that exceeds your Licensed Units or Data Volumes; or
(f) Use the Software for any unlawful purpose or in violation of any applicable laws or regulations in the jurisdiction(s) of use.
4. Intellectual Property
The Software and Documentation, including all intellectual property rights therein, are and shall remain the exclusive property of TDS. This Agreement does not grant you any ownership interest in the Software, but only a limited right of use revocable in accordance with the terms of this Agreement.
You acknowledge that the Software contains valuable trade secrets and confidential information belonging to TDS. You agree to maintain the confidentiality of the Software and not to disclose it to any third party without TDS’s prior written consent. You shall implement reasonable security measures to protect the Software from unauthorized access or use.
5. Audit Rights
TDS may, upon at least thirty (30) days’ prior written notice and no more than once per twelve (12) month period, audit your use of the Software to verify compliance with this Agreement, including your Licensed Units and Data Volumes. Such audit shall be conducted during your normal business hours and in a manner that minimizes disruption to your operations.
If an audit reveals that you have exceeded your Licensed Units or Data Volumes, you shall promptly pay to TDS the applicable license fees for such excess usage. If such excess usage exceeds five percent (5%) of your Licensed Units or Data Volumes, you shall also reimburse TDS for the reasonable costs of conducting the audit.
6. Limited Warranty
TDS warrants that for a period of three (3) months from the date of your first activation of the Software, or the duration of your license period, whichever is shorter (“Warranty Period”):
(a) The Software will substantially conform to the applicable Documentation; and
(b) Any physical media on which the Software is provided will be free from defects in materials and workmanship under normal use.
Your sole remedy for any breach of this warranty is, at TDS’s option: (i) repair or replacement of the non-conforming Software; or (ii) a refund of the license fees paid for the non-conforming Software, provided you return all copies to TDS.
This warranty does not apply if the Software: (a) has been modified by anyone other than TDS; (b) has not been used in accordance with the Documentation; (c) has been subjected to misuse, neglect, accident, or abnormal conditions; or (d) is beta, evaluation, or not-for-resale software provided without charge.
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS.” TDS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
7. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TDS OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, DATA, BUSINESS OPPORTUNITIES, OR GOODWILL, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF THE SOFTWARE, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF TDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL TDS’S TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF LICENSE FEES PAID BY YOU TO TDS FOR THE SOFTWARE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, TDS’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
8. Term and Termination
This Agreement is effective until terminated. You may terminate this Agreement at any time by destroying all copies of the Software and Documentation in your possession.
TDS may terminate this Agreement immediately upon written notice if you breach any provision of this Agreement and fail to cure such breach within thirty (30) days after receiving notice thereof.
Upon termination, you must immediately cease all use of the Software and destroy all copies in your possession. Sections 4, 7, 9, 10, and 11 shall survive termination of this Agreement.
9. Export Compliance
The Software is subject to U.S. export control laws, including the Export Administration Regulations, and may be subject to export or import regulations in other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you are responsible for obtaining any necessary licenses to export, re-export, or import the Software.
10. U.S. Government Rights
The Software is provided to U.S. Government end users with “RESTRICTED RIGHTS” as defined in FAR 52.227-19 and DFARS 252.227-7015. Use, duplication, or disclosure by the Government is subject to the restrictions set forth in this Agreement and applicable law. Manufacturer is Trusted Data Solutions LLC, 15 West 26th Street, New York, NY 10010.
11. Governing Law and Dispute Resolution
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles.
Any dispute arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in the County of New York, New York, and each party consents to the personal jurisdiction of such courts.
Before initiating any legal action, the parties agree to attempt in good faith to resolve any dispute through informal negotiation for a period of at least thirty (30) days.
EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE.
12. General Provisions
Entire Agreement. This Agreement constitutes the entire agreement between you and TDS regarding the Software and supersedes all prior agreements, representations, and understandings, including all prior versions of this End User License Agreement. In the event of any conflict between this Agreement and any previous version, the terms of this Agreement shall prevail.
Amendment. TDS may amend this Agreement at any time by posting the revised terms on its website or by providing notice to you. Your continued use of the Software after such amendment constitutes your acceptance of the revised terms.
Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.
Waiver. The failure of either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
Assignment. You may not assign or transfer this Agreement or any rights hereunder without TDS’s prior written consent. TDS may assign this Agreement without restriction.
Trusted Data Solutions LLC
15 West 26th Street, New York, NY 10010 | (212) 279-7600