Terms and Conditions
Agreement
These license terms and conditions are an agreement between Chicago Omni Solutions LLC d/b/a Adroit North America LLC (“Adroit”) and you, as and identified as the Licensee in this Software Agreement (“Agreement”).
By paying the License via the Microsoft AppSource platform and using the software you accept and are bound by the terms and conditions of this Agreement.
License
This Agreement relates to one or more Adroit software products (“Software”) made available via the Microsoft AppSource platform. The Software operates in conjunction with one or more current or future third party products, such as MS D365 Business Central, Microsoft Machine Learning Studio Classic, Microsoft Teams, Microsoft Power Platform, or other product supplied by Microsoft or other third parties (collectively, the “Platform”). Adroit may supply one or more aspects of the Platform through a separate agreement, or Customer may be responsible for licensing the Platform from a third party through a separate agreement. “Software” as used in this Agreement, also includes instructions and any other documentation provided by Adroit relating to the Adroit’s software. Adroit grants Customer a nonexclusive, non-transferable right to use the Software during the Term on a subscription basis, including any new versions or updates supplied to Customer by Adroit during the Term.
The Platform is provided and hosted by third parties and Customer agrees that: Customer obtains no right to use of the Platform through this Agreement; to use the Software, Customer must purchase and maintain one or more licenses to the Platform; and Adroit has no responsibility for the Platform, including its operability, availability or any changes to the Platform that may affect the operation of the Software. The Software is designed to be used in connection with other software of Adroit and third parties, which must be licensed separately.
Term
The term of this Agreement (“Term”) shall be as set forth in the Microsoft AppSource Marketplace, or if no Term is set in the Order Form, it shall be one (1) year from the date that Customer receives access to the Software. This agreement will automatically renew unless one party provides notice to the other of non-renewal at least 60 days prior to the end of the then current Term. If the Agreement is not renewed or is otherwise terminated, Customer will cease use of the Software, and Adroit and Microsoft may terminate access to the Software.
Restrictions on Use
Customer agrees not to, and to take reasonable measures so that others will not: (i) transmit, distribute, modify, adapt, alter, translate, or create derivative works of the Software; (ii) sublicense, lease, rent, loan, assign or otherwise transfer, grant the right to use or grant any license to the Software to any third-party or use the Software on behalf of any third-party; (iii) host, upload, use or access the Software via a time sharing, service bureau, virtualization, hosting or other remote access arrangement, except for Customer’s single authorized instance through the Platform; (iv) reverse engineer, decompile or disassemble the Software or otherwise attempt to derive the source code of the Software except and only to the limited extent that Adroit provides such source code or that such activities are expressly permitted by applicable law notwithstanding this limitation; (v) remove, alter, or obscure any confidentiality or proprietary notices (including copyright or trademark notices); (vi) reproduce or use the Software except as expressly authorized under this Agreement; (vii) circumvent, or provide or use a program intended to circumvent, technological measures to control access to or use of the Software; or (viii) use the Software in any high risk environment, including but not limited to aircraft or automobile safety devices or navigation, life support systems or medical devices, nuclear facilities, or weapon systems.
Ownership
The Software is owned by Adroit and is protected by copyrights and other intellectual property rights. Customer agrees that all worldwide copyrights and other intellectual property rights in the Software, and all copies of the Software however made, are the exclusive property of Adroit. All rights in and to the Software not expressly granted in this Agreement are reserved by Adroit. The parties agree that there are no implied licenses under this Agreement or in connection with the Software.
Governing Law
THIS AGREEMENT AND USE OF THE SOFTWARE HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY LITIGATION WILL BE BROUGHT EXCLUSIVELY IN COOK COUNTY, ILLINOIS, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of this Agreement more than one (1) year after the cause of action has arisen. The rights and remedies provided Adroit under this Agreement are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
Services
This Agreement is solely for access to the Software and not for the provision of any goods or services. If Customer requires the services of Adroit, whether related or unrelated to the Software, those services will be provided under a separate agreement.
Payment
Customer agrees to pay the amounts listed in the Microsoft AppSource Platform (“Payment”), at the times specified in the Microsoft AppSource Platform, for access to the Software during the Term. For each renewal Term, Adroit may raise the prices for licensing the Software, by providing at least thirty (30) days’ notice before the beginning of the Renewal Term. All Payments are non-refundable and non-cancelable except as set forth in this Agreement. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law. Customer will pay for, and will indemnify and hold Adroit harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges, imposed on, in respect of or otherwise associated with the Software. In the event of a payment default, Customer will be responsible for all of Adroit’s costs of collection, including, but not limited to, court costs, filing fees and attorneys’ fees. In addition, if payments are not received as described above, Adroit reserves the right to suspend access to the Software until payment is received.
Export Regulation
If this transaction involves Software subject to the Export Administration Regulations, Customer agrees that it will not divert, use, export or re-export such items contrary to United States law. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. The list of such countries subject to United States economic sanctions or embargoes may change from time to time but currently includes Cuba, Iran, Sudan, and Syria. Customer also expressly acknowledges and agrees that it will not export, re-export, or provide access to such items to entities and persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List.
No Warranties
SUBJECT TO APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ADROIT HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY RELATING TO THIRD PARTY PRODUCTS OR SERVICES. THERE IS NO WARRANTY BY ADROIT OR BY ANY OTHER PARTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE OR THE RESULTS OBTAINED FROM THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE SOFTWARE FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ASSUMES ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE ITS INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM IT.
Customer expressly waives any claim that it may have against Adroit based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to Software and also waives any right to indemnification from Adroit against any such Claim made against Customer by a third party; provided, however, that Adroit agrees to indemnify Customer for third party claims of infringement of a United States patent or copyright by the Software, subject to other limitations set forth in this Agreement. Customer acknowledges that no employee of Adroit is authorized to make any representation or warranty on behalf of Adroit that is not in this Agreement. If the Software becomes, or Adroit reasonably believes the Software may become, the subject of a Claim, Adroit may, at its own expense and option: (i) procure for Customer the right to continue use of the Software; (ii) replace or modify the Software; or (iii) refund to Customer a pro-rated portion of the applicable Payment for the Software based on a monthly linear depreciation over the Term, in which case Customer will cease all use of the Software. THE FOREGOING STATES ADROIT’S ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PARTY.
Adroit makes no warranties to the Customer and the Customer hereby acknowledges that Adroit makes no warranties regarding the applicability of all laws and regulations affecting, without limitation the creation, performance, sale, and labelling of the Software which are in force within the Customer’s territory.
Adroit will not be responsible for and no liability shall result to Adroit for any delays in delivery or in performance which result from any circumstances beyond Adroit’s reasonable control, including, but not limited to, Software unavailability, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency.
Customer Support
Adroit will provide technical support at its discretion, without any guarantees or declarations. Adroit reserves the right to refuse, suspend or terminate the provision of technical support at its own discretion. Customer shall be solely responsible for daily back-up and other protection of its data, software and program facilities against loss, damage, or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted. ADROIT IS HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM THE SOFTWARE.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL ADROIT BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF ADROIT HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY, EXCEPT FOR CLAIMS OF PATENT OR COPYRIGHT INFRINGEMENT AS SET FORTH ABOVE; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S IMPLEMENTATION OF, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE SOFTWARE; OR (D) ANY UNAVAILABILITY OF THE SOFTWARE FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. EXCEPT FOR CLAIMS RELATING TO CONFIDENTIALITY OR USING THE SOFTWARE BEYOND THE SCOPE PERMITTED UNDER THIS AGREEMENT, THE ENTIRE LIABILITY OF EITHER PARTY FOR DAMAGES FROM ANY CAUSE OR CLAIM WHATSOEVER RELATING TO THIS AGREEMENT WILL NOT EXCEED THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE SOFTWARE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Confidential Information
Adroit may provide Customer with access to information of a confidential nature relating to the Software, including source code, descriptions of Software functionality and information contained in the Documentation (hereinafter referred to as “Confidential Information”). “Confidential Information” includes any information or data in oral, electronic or written form which Customer knows or has reason to know is proprietary or confidential and which is disclosed by Adroit in connection with this Agreement or which Customer may have access to in connection with this Agreement. Confidential Information will not include information which: (a) becomes known to the public through no act of Customer; (b) was known to Customer, or becomes known to Customer from a third party having the right to disclose it and having no obligation of confidentiality to Adroit with respect to the applicable information; or (c) is independently developed by agents, employees or subcontractors of Customer who have not had access to such information. To the extent practicable, Confidential Information will be clearly identified or labeled as such by Adroit at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
Customer agrees to hold Confidential Information confidential for a period of ten (10) years following the date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind but to use no less than a reasonable degree of care. Disclosures of Confidential Information will be restricted (i) to those individuals who are participating in the performance of this Agreement and need to know such Confidential Information for purposes of this Agreement, or (ii) to its business, legal and financial advisors, each on a confidential basis. Customer agrees not to use any Confidential Information for any purpose other than the business purposes contemplated by this Agreement. Upon the written request of Adroit, Customer will either return or certify the destruction of the Confidential Information.
If Customer is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose Confidential Information, Customer will give Adroit prompt notice of such request so that the Adroit may seek an appropriate protective order or similar protective measure and will use reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.
Termination
This Agreement will automatically terminate at the end of the Term if it is not renewed. Either party may terminate this Agreement for cause if the other party fails to cure a material default in the time period specified herein. Any material default must be specifically identified in a written notice of termination. After written notice, the notified party will have thirty (30) days to remedy its performance except that it will only have ten (10) days to remedy any monetary default. Failure to remedy any material default within the applicable time period provided for herein will give cause for immediate termination. Upon termination, Customer will cease using the Software and all rights and obligations of the parties under this Agreement will automatically terminate except for any right of action occurring prior to termination, payment obligations and obligations that expressly or by implication are intended to survive termination (including, but not limited to, limitation of liability, indemnity, confidentiality and this survival provision).
Data Protection
This is Agreement is solely for access to the Software and Customer shall not provide Adroit any access to its data, including any data protected by any municipal, state or national government statute under this Agreement. If Customer wishes to disclose data to Adroit (for instance, for Adroit to perform services for Customer), it must do so only under a separate agreement that contains appropriate data protection provisions.
Feedback
Customer may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Adroit with respect to the Software or its other products and services. Feedback is voluntary and Adroit is not required to hold it in confidence. For avoidance of doubt, Feedback includes both explicit input provided by Customers (such as but not limited to in written or oral format) and that is inferred through Customer’s use of the Software. Adroit may use Feedback for its own business purposes, such as modifying the software or services it provides, creating derivative works, or creating new products or services.
Miscellaneous
Adroit may assign all or any portion of its rights or obligations under this Agreement or assign the right to receive payments, without Customer’s consent. Customer may not assign this Agreement, or any of its rights or obligations herein without the prior written consent of Adroit. Subject to the restrictions in assignment contained herein, this Agreement will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between Adroit and Customer is that of independent contractors and not that of employer/employee, partnership or joint venture. If any term or condition of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement. Notices provided under this Agreement will be given in writing and deemed received upon the earlier of