TORERO END USER LICENSE AGREEMENT

This End User License Agreement (this “Agreement”) is a binding agreement between Itential, Inc. (“Licensor”) and the Person downloading, accessing or otherwise using the Software (“Licensee”).

LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.  BY INSTALLING, USING AND/OR ACCESSING THE SOFTWARE, LICENSEE (A) ACCEPTS THIS AGREEMENT AND AGREES THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT LICENSEE HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BE BOUND BY TO ITS TERMS.

  1. Definitions. For purposes of this Agreement and in addition to any capitalized terms defined herein, the following terms have the following meanings:

“Documentation” means user manuals, technical manuals, guides, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.

“Software” means Licensor’s proprietary software program in compiled binary form made available to Licensee pursuant to this Agreement, including all Third-Party Licensed Materials incorporated therein.

  1. License Grant and Scope. Subject to and conditioned upon Licensee’s compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, perpetual license to install and use the Software. Licensee may download or otherwise make copies of the Software and Documentation as reasonably necessary for Licensee’s use of such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Software and Documentation made by Licensee: (i) will be the exclusive property of Licensor; (ii) will be subject to the terms and conditions of this Agreement; and (iii) must include all trademark, copyright, patent and other Intellectual Property Rights notices contained in the original.
  2. Term and Termination. Subject to Licensee’s compliance with the terms of this Agreement, the license granted herein pursuant to Section 2 is perpetual, and this Agreement shall continue in effect for so long as Licensee continues to use the Software or Documentation. Licensee may discontinue its use at any time, provided this Agreement shall continue to govern all prior or future use of the Software or Documentation.
  3. Third-Party Licensed Materials. The Software may include software, content, or data, including related documentation, that are owned by Persons other than Licensor, including open source software, and that are provided to Licensee on license terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licensed Materials”). Notwithstanding the foregoing, this Agreement applies to Licensee in lieu of any end user license agreements Licensor makes available on its website, and any such end user license agreements do not apply to Licensee.  Licensee will not be responsible for royalties or fees related to such Third-Party Licensed Materials, if any.
  4. Restrictions. Licensee shall not, and Licensee shall take commercially reasonable efforts so that any other Person will not: (a) exceed the license and use rights regarding the Software granted and detailed in this Agreement; (b) disassemble, decompile, decrypt, or reverse engineer, or in any way attempt to discover or reproduce source code for, any part of the Software or adapt, modify, or prepare derivative works based on the Software; (c) use the Software to create any computer program or other material that performs, replicates, or utilizes the same or substantially similar functions as the Software; (d) other than as authorized herein, disclose the Software or its operation to third parties, or use the Software in a service bureau or time sharing environment; (e) alter, remove, or suppress any copyright, trademark, confidentiality, or other proprietary notices or legends placed on, embedded in, or otherwise appearing in or on the Software or tangible reports prepared using the Software; or fail to ensure that all such notices on legends appear on any related material; or (f) except as permitted herein, sell, resell, sublicense, lease, assign, delegate, transfer, distribute, redistribute, or encumber the Software or any Intellectual Property Rights embodied therein.
  5. No Support. Licensor has no obligation to provide any support, maintenance or similar services with respect to the Software.
  6. Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Licensor and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Software, Documentation and all Intellectual Property Rights arising out of or relating to the Software and Documentation, except as expressly granted to Licensee in this Agreement. Licensee hereby grants Licensor a perpetual, irrevocable, worldwide, royalty-fee, non-exclusive license to copy, reproduce, display, perform, modify, distribute, and otherwise use any ideas, feedback, or suggestions submitted by Licensee, including without limitation for software updates, enhancements, and other use cases.
  7. Warranty Disclaimer. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE.
  8. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS AFFILIATES BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES OR COSTS (INCLUDING BUT NOT LIMITED TO LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL, OR PROCUREMENT COSTS OF SUBSTITUTE GOODS OR SERVICES), WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) AMOUNTS IN EXCESS OF $100. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF EITHER PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
  9. Export Regulation. The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation.  Licensee shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or Documentation available outside the US.
  10. Miscellaneous.

(a) This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Georgia without regard to its conflicts of law principles.  The U.S. federal courts and state courts sitting in the jurisdiction of Fulton County, Georgia, United States of America, shall have sole and exclusive jurisdiction over a claim or dispute brought by Licensee or Licensor, which may arise out of or in connection with this Agreement, and both Licensee and Licensor consent to those forums.  The parties agree that The United Nations Convention on Contracts for the International Sale of Goods shall not apply hereto in any respect to this Agreement.

(b) Neither party will be responsible or liable to the other, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or equipment, loss and destruction of property or any other circumstances or causes beyond a party’s reasonable control.

(c) Licensee may not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without Licensor’s prior written consent.

(d) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

(e) This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.  No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

(f) If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.