End User License Agreement
Terms and Conditions of Purchase and Sale
This Agreement is a Master Order Agreement between Digital Creations LLC Cybersecurity Solutions. Digital Creations LLC Cybersecurity Solutions, which includes Digital Creations LLC SDS, (“Digital Creations LLC”) and the customer which has accepted and agreed to this Agreement (“Customer”). The Customer may agree and become bound to this Agreement by either (i) signing and returning a hard copy prior to purchase order submission, or (ii) Customers submission of a purchase order to Digital Creations LLC. The Customer agrees that, regardless of its method of agreeing, it is bound by the terms of this Agreement with Digital Creations LLC, and Digital Creations LLC agrees that, upon acceptance by Customer, Digital Creations LLC is bound by this Agreement. The exact identity of Customer is entered, by Digital Creations LLC, in its account registration on the Digital Creations LLC Customer portal.
This Agreement governs the sale by Digital Creations LLC and the purchase and license by Customer of the Digital Creations LLC products (“Products”) as described on the Digital Creations LLC website.
Transactions under this Agreement shall be initiated by Customer issuing a hard-copy or electronic purchase order (the “Order”), and the parties shall become bound to such transaction when Digital Creations LLC accepts the Order. The terms of this Agreement shall also govern the sale of Products by Digital Creations LLC that Customer orders indirectly, via a Digital Creations LLC reseller. If Customer places an order with a reseller, the reseller is responsible for placing an accurate Order with Digital Creations LLC. In order to place an Order and receive delivery of a Product, the Customer must be registered as an account on the Digital Creations LLC portal (“Portal”) and accept the terms of this Agreement.
Upon acceptance of an Order, Digital Creations LLC shall deliver software Products (“Software”) by providing a license key and making the Software available for download by the Customer, all via the Portal. Software Orders shall memorialize the scope of the license, including the identity and number of instances of each Software Product that the Customer may install, the license term duration and “Entitlement” details.
Upon acceptance of an order for hardware Products (“Hardware”), Digital Creations LLC shall promptly ship the Hardware from its warehouse location in Massachusetts to the “ship to” location designated by Customer in the Order. All Hardware is shipped FOB origin and Customer is responsible for the costs of shipment.
Subject to payment of all applicable fees, Digital Creations LLC grants to Customer a term-limited, non-exclusive and non-transferable license to use the Software, in object code form, in accordance with and limited by the Entitlement. The license term, as specified in the Entitlement, begins on the date that the Software is made available for download. Customer may install the Software and use the number of copies of the Software as described in the Entitlement.
Digital Creations LLC does not transfer or convey any ownership rights in or to the Software. Customer may make copies of the Software in object code form, for archival and backup purposes only. Title to all Software shall remain and vest solely with Digital Creations LLC or its li censors. Customer acknowledges Digital Creations LLC’s claim that the Software contains its trade secrets and shall treat it as such. Customer will not attempt to disassemble, de-compile, reverse-engineer or otherwise endeavor to discover or disclose the source code or the methods and concepts embodied in the Software. Except as expressly allowed under this Agreement, Customer shall not use, copy, modify, transcribe, store, translate, sell, lease, transfer or distribute any of the Software in whole or in part. Customer shall not remove or destroy any copyright, patent, trademark or other proprietary mark or notice on any Software and shall reproduce any such marks on any copies that Customer makes hereunder.
The Software may contain certain components that are so-called Free and Open Source Software, that are subject to separate licenses between the copyright owner and Customer. Copies of such licenses are available upon request from Digital Creations LLC
Prices and Payments
The price for Products purchased or licensed hereunder shall be that provided in Digital Creations LLC’s quotation, or, if no quotation is valid and existing, then the price listed in Digital Creations LLC’s standard price list. Prices shall be memorialized in an accepted Order, and shall be exclusive of taxes and shipping charges, which shall be added to the invoice as separate line items.
Customer shall pay for Products ordered under this Agreement within thirty (30) days from the date of invoice, which shall be issued on the date that the Software component of the Order is made available for download. Payment of other charges invoiced separately shall be made within thirty (30) days of invoice date. Customer agrees to pay Digital Creations LLC interest of one and one half percent (1.5%) per month or the maximum legal rate in effect, whichever is less, on the balance remaining unpaid, beyond the payment due date(s) set forth above.
Hardware: Digital Creations LLC warrants that Customer shall acquire good and clear title to the Hardware being purchased hereunder free and clear of all liens and encumbrances. Digital Creations LLC further warrants that the Hardware delivered hereunder shall be free from defects in material and workmanship for a period of one year from date of shipment. Digital Creations LLC shall honor this warranty on a return to factory basis at an authorized Digital Creations LLC warranty service area in the United States. As a condition of this warranty, Customer must notify and obtain shipping instructions from Digital Creations LLC prior to returning any defective Hardware and must ship the Hardware transportation prepaid. Transportation charges for the return of the Hardware or a replacement(s) to Customer within the 48 contiguous United States and the District of Columbia shall be paid by Digital Creations LLC. Digital Creations LLC’s sole responsibility under this warranty shall be, at Digital Creations LLC’s option, to either repair or exchange any component which fails during the warranty period due to a defect in workmanship and/or material. All exchanged Hardware or parts shall become the property of Digital Creations LLC.
Software: Digital Creations LLC warrants for a period of ninety (90) days from date of delivery that each Software Product shall conform to the applicable Digital Creations LLC published specifications prevailing at the time of delivery. Digital Creations LLC does not warrant that the functions contained in the Software shall meet Customer’s requirements, or shall operate error-free. Digital Creations LLC’ sole obligation and liability hereunder shall be to use reasonable efforts to remedy any such nonconformance which is reported to Digital Creations LLC in writing within the warranty period.
Limitations: The warranties set forth in this Section 4 shall not apply to defects attributable to (i) use of equipment, software or interfacing not furnished by Digital Creations LLC; (ii) modification of Products without Digital Creations LLC’ approval; (iii) accident, neglect, misuse or abuse; or (iv) exposure to conditions outside the range of the environmental, power and operating specifications provided by Digital Creations LLC.Exclusive Warranty: THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Support and Training
Support is subject to the fees and other terms of the Support Policy and will be provided at the Support level and during the Support term specified in the Customer’s Order. Digital Creations LLC may modify the Support Policy from time to time to reflect process improvements or changing practices. Support for Software includes access to New Releases of the Software, if and when available. “New Releases” means, for purposes of this Section, bug fixes, patches, major or minor Software releases and any other changes, enhancements or modifications to the Software that Digital Creations LLC makes generally commercially available without additional charge. Support and New Releases are accessible via the customer portal.
Limitation of Liability
IN NO EVENT SHALL DIGITAL CREATIONS LLC BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, PROFIT OR BUSINESS, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN AN ACTION OF CONTRACT, TORT OR OTHER LEGAL THEORY. Digital Creations LLC’s LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (in contract or tort), SHALL BE LIMITED TO THE PURCHASE PRICE STATED IN THE PARTICULAR ORDER FOR THE PRODUCT(S) THAT CAUSED THE DAMAGES OR ARE THE SUBJECT MATTER OF THE CAUSE OF ACTION.
During the course of this Agreement each Party may provide to the other information that it considers to be proprietary or confidential (“Confidential Information”). Each party agrees to use reasonable commercial efforts to mark its Confidential Information with a “Confidential” or “Proprietary” legend. Each Party shall hold the other’s Confidential Information in confidence, use it only to further the purposes of this Agreement and not reveal it to any third party. Each Party shall disseminate the other’s Confidential Information only to those of its employees, contractors or consultants who have a need to know such information for the furtherance of this Agreement, and who have executed appropriate agreements requiring them to maintain the confidentiality of such Confidential Information. Each Party’s obligations shall not extend to information generally available to or known to the public, known prior to its disclosure by the other party, independently developed, or lawfully disclosed to it by a third party. The foregoing shall not restrict any disclosure by either party required by law or government authority, provided that it gives the other party reasonable notice and opportunity to seek a protective order or other method of limiting the scope of such disclosure.
The parties acknowledge that the License Manager function on the Portal provides both parties with detailed information regarding the scope of Customer’s use of the Software and Customer’s compliance with its Entitlement. If Customer does not use the License Manager function, then Digital Creations LLC shall have the right, upon ten days’ notice, to either (i) require Customer to promptly conduct a self-audit and certify, in writing, that it is complying with the scope of its Entitlement or (ii) allow Digital Creations LLC, or its designee, to conduct an audit of Customer’s facility and/or network, to determine if Customer is complying with the terms of this Agreement and its Entitlement. Such audit shall be conducted during business hours and in a manner designed to minimize any disruption to Customer’s business. Should the audit reveal that Customer has exceeded the scope of its Entitlement, then Customer shall immediately pay Digital Creations LLC an amount necessary to expand its Entitlement to match its maximum use, and Customer shall bear the cost of the audit.
Intellectual Property Indemnity
Digital Creations LLC shall defend any claim, suit or proceeding brought against Customer to the extent it is based on a claim that any Product supplied hereunder infringes a patent, copyright or trade secret of any third party, and shall pay all damages and costs finally awarded therein against Customer, provided that Digital Creations LLC is notified promptly in writing of the claim and given full authority, information and assistance for the defense of such claim. If a claim has occurred, or in Digital Creations LLC’s opinion is likely to occur, Customer agrees to permit Digital Creations LLC, at its option and expense, either to procure for Customer the right to continue using the Product or to replace or modify the same so that it becomes non-infringing, or, if neither of the foregoing alternatives is reasonably available, remove the Product, and refund Customer the Software license fee for the balance of the license term and the cost of any Hardware that is rendered unusable. Digital Creations LLC has no liability for any claim to the extent that it is based upon (i) the combination, operation or use of any Product supplied hereunder with equipment, devices or software not supplied by Digital Creations LLC, (ii) alteration or modification of any Product supplied hereunder, or (iii) Digital Creations LLC’s compliance with Customer’s designs, specifications or instructions. The foregoing states the entire obligation of Digital Creations LLC with respect to infringement or the like.
Term and Termination
This Agreement shall take effect on the date that Customer indicates its acceptance of these terms and shall remain in effect for a minimum period of two years. Thereafter, either party may terminate this Agreement upon notice to the other party. Notwithstanding any termination or expiration, however, the terms of this Agreement shall continue to govern any Software license that remains in effect, until the expiration or termination of such Entitlement.
Either party may terminate this Agreement and any Software Entitlement hereunder if the other party breaches a material term of the Agreement or such Entitlement and does not cure such breach within thirty days’ notice from the non-breaching party. Breach and termination of a particular Entitlement does not constitute breach or termination of any other Entitlements, if the breaching party is not in breach of such other Entitlement.
Digital Creations LLC may, from time to time, offer Products to Customer on a no-charge, limited time, evaluation basis (“Evaluation Product”). Customer may only use the Evaluation Product for the period limited by the license key or otherwise stated by Digital Creations LLC in writing. If no evaluation period is identified by the license key or in writing, then the evaluation license is valid for thirty (30) days from the date the Product is made available to Customer. The Evaluation Product is licensed “AS-IS” without support or warranty of any kind, expressed or implied. Digital Creations LLC does not assume any liability arising from any use of the Evaluation Product. Customer may not publish any results of benchmark tests run on the Evaluation Product without first obtaining written approval from Digital Creations LLC.
U.S. Government End Users
The Software and Documentation are “commercial items,” as defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and Defense Federal Acquisition Regulation Supplement (“DFAR”) 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this EULA may be incorporated, Government end users will acquire the Software and Documentation with only those rights set forth in this EULA. Any license provisions that are inconsistent with federal procurement regulations are not enforceable against the U.S. Government.
Feedback and Analytics
Customer authorizes Digital Creations LLC to use any feedback or ideas it provides to Digital Creations LLC in connection with its use of the Product, without restriction. In addition, Digital Creations LLC shall have the right to measure, analyze and aggregate how users interact with Products, such as usage patterns and characteristics of the user base. Confidentiality.
To the extent required by applicable law, Digital Creations LLC shall provide Customer with the interface information needed to achieve interoperability between the Software and another independently created program. Digital Creations LLC will provide this interface information at Customer’s written request after Customer pays Digital Creations LLC’s licensing fees (if any). Customer shall keep this information in strict confidence and strictly follow any applicable terms and conditions upon which Digital Creations LLC makes such information available.
Any controversy between the parties to this Agreement involving the construction or application of this Agreement, shall on written request of either party served on the other, be submitted first to mediation for a minimum period of thirty days, and then, if still unresolved to binding arbitration. Said mediation and arbitration shall comply with and be administered by the American Arbitration Association under its Commercial Arbitration Rules unless the Parties stipulate otherwise and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The attorneys’ fees and costs of arbitration shall be borne by the losing party, unless the Parties stipulate otherwise, or in such proportions, as the arbitrator shall decide. Notwithstanding the foregoing, either party may, at any time, apply to any court of competent jurisdiction to obtain interim relief to prevent irreparable harm to such party or to preserve the status quo pending further resolution.
Digital Creations LLC Software, Products, technology and services are subject to US and extraterritorial export control laws and regulations. Customer and Digital Creations LLC each will comply with such laws and regulations governing use, export, re-export, and transfer of Software, Products and technology and will obtain all required local and extraterritorial authorizations, permits or licenses.
Law and Venue
This Agreement will be governed by and construed in accordance with the applicable laws of the State of Minnesota, USA, without giving effect to the principles relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 15, Dispute Resolution must be brought solely and exclusively in the State or Federal courts located in Minneapolis, Minnesota USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of said courts. Notwithstanding the foregoing, Digital Creations LLC may bring a claim for equitable relief in any court with proper jurisdiction.
Customer may not assign this Agreement or any of its rights hereunder without the prior written consent of Digital Creations LLC, which consent Digital Creations LLC may reasonably withhold. Any attempt to assign any of the rights, duties or obligations under this Agreement without such consent shall be void. Any waiver of rights under this Agreement must be in writing, signed by the party waiving such rights. The waiver or failure of either party to exercise in any respect any right provided for herein on one instance shall not be deemed a waiver on any future occasion or of any further right hereunder. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all proposals and all previous negotiations and agreements, written or oral, between the parties with respect to the subject matter hereof.
625 Main Ave
Moorhead, MN 56560