Important - please read this Agreement carefully before accepting its terms. This Agreement, along with the privacy notice (as defined below), sets forth the terms and conditions governing your use of the hosted services (as that term is defined below). If you do not agree to this Agreement and privacy notice, please close this browser window immediately.

 

By installing, copying, downloading or otherwise using the software, or by clicking a box indicating your acceptance, you represent that the information provided is complete and accurate, that you have the authority to enter into this Agreement on behalf of the Customer (as that term is defined below) and that the terms and conditions of this Agreement have been accepted.

 

This End User Licence Agreement (the "Agreement") is entered into effective as of the date that you click the "I Accept / Agree" at the end of this Agreement ("Effective Date").

 

This Agreement is a legal Agreement:

 

Between: Anitech Solutions, (The “Company”) with its principal place of business at 32 Shanganagh Vale, Loughlinstown, Co. Dublin, Ireland.

 

And: You, (“The Customer” or “User” or “End-User”), either acting as an individual or as the representative of the legal entity on whose behalf you are acting.

 

The Agreement governs The Customer’s use of the version of the Company’s proprietary product and service, along with any documentation and any patches, fixes and updates to such services provided to The Customer by The Company from time to time (collectively, the "Hosted Services").

 

The terms of this Agreement govern The Customer's access and use of the Hosted Services, except to the extent there is a separate signed Agreement between the Customer and the Company governing The Customer's access and use of the Hosted Services. To the extent of a conflict between the provisions of the foregoing documents, the order of precedence will be (1) the signed Agreement, and (2) this End User Licence Agreement.

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1. Licence Grant

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1.1 When the Customer lawfully accesses the Hosted Services, whether through purchase or other lawful means, subject to the terms and conditions set forth in this Agreement, the Company grants said Customer a non-exclusive, non-transferable, non-sublicensable, limited, revocable licence to access the Hosted Services. Any use of the Hosted Services shall be in accordance with the documentation for the Hosted Services that may be provided to The Customer, in electronic format or otherwise, for use only within The Customer’s internal business operations. This licence extends to the use of the documentation, data, or information developed by the Company, and other materials which may assist in the use of the Hosted Services.
 

2. Permitted Use

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1.1 The Customer will ensure that neither The Customer nor any of The Customer’s employees, contractors or agents allow any person or entity other than the person entering into this Agreement on The Customer’s behalf access to Hosted Services. The Customer shall immediately notify the Company upon its knowledge or belief that such Hosted Services are or may be being used in violation of this Section 1.1 or is otherwise being used in connection with a breach of this Agreement.

 

2.2 The Customer guarantees the performance of and will be fully responsible for any failure by The Customer or its employees, contractors, or agents to comply with the terms of this Agreement.

 

2.3 If The Customer makes any suggestions, comments, enhancement requests, recommendations or provides any other feedback to the Company regarding the Hosted Services or any other matter, the Company has and will have the right, without any requirement to compensate The Customer, to use and to permit others to use any such suggestions, enhancement requests, comments, recommendations or other feedback for any purpose including, but not limited to, incorporating them into the Hosted Services, which shall be the property of the Company.

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3. Restrictions

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3.1 The Customer will ensure that neither The Customer nor any of The Customer’s employees, contractors shall, neither itself nor permit others, either directly or indirectly:

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3.1.1 Log in through The Customer’s account or share the admin account login or password.

 

3.1.2 Rent, lease, sub-licence, display, or make or distribute copies of the Hosted Services, or charge a royalty for use of the Hosted Services or otherwise use the Hosted Services in any manner or for any purpose not expressly authorised by this Agreement. This includes any connection with a service bureau, time sharing, ASP or similar arrangement.

 

3.1.3 Download or copy all or any portion of the Hosted Services (including without limitation the underlying code) or create derivative works of or otherwise adapt, modify, or translate the Hosted Services.

 

3.1.4 Reverse engineer, decompile, translate, or disassemble the Hosted Service.

 

3.1.5 Alter, remove, obscure, erase, deface, or hide from view any copyright, trademark, or other proprietary rights notice contained in or incorporated into the Hosted Service.

 

3.1.6 Use the Hosted Services in any way that violates any individual's privacy.

 

3.1.7 Modify, incorporate into or with other software or services any part of the Hosted Services.

 

3.1.8 Create or disseminate performance information or analysis (including, without limitation, benchmarks) relating to the Hosted Services.

 

3.1.9 Upload or download any software, data, or information except as may be expressly permitted under Section 1.1.

 

3.1.10 Use, or permit anyone else to use, the Hosted Services in ways that violate laws, infringe, or violate the rights of others including, but not limited to third party intellectual property rights, privacy, and publicity rights, or interfere with other users of the Company’s services.

 

3.1.11 Use or rely on the Hosted Services, including any reports generated by the Hosted Services, in connection with the development by the Customer of any programs, writings, or works, or in connection with the production of products or the performance of services for third parties.

 

3.1.12 Introduce in or to the Hosted Services any virus or implement a denial-of-service attack or introduce or implement any other code or routine which results in disruption or damage to the Hosted Services, alter, damage, or delete any data or retrieve or record information about the Hosted Services or its uses. The Customer will promptly notify Anitech Solutions of any complaints or objections to The Customer’s use of the Hosted Services.

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4. Intellectual Property

 

4.1 The Customer acquires no ownership rights in or title to the Hosted Services and will not at any time have physical access to any facility providing the Hosted Services. Except for the licence rights expressly granted to The Customer in Section 1.1, and except as provided in Section 5, the Company, and its licensors (if any) retain all ownership rights in and title to the Hosted Services. This includes all copyrights, trademarks, trade secrets, patents, and other intellectual property (“Company IP”).

 

4.2 Neither party will take any action intended to appropriate or perfect rights in the intellectual property of the other, including, without limitation, the filing of patent, trademark, or service mark applications or copyright registrations.

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5. Excluded Components

 

5.1 The Hosted Services may include certain open-source software and other freely available software and material ("Excluded Components"). The Company will identify Excluded Components included in the Hosted Services upon request for a proper purpose consistent with this Agreement. Notwithstanding anything to the contrary in this Agreement, the Excluded Components are governed by the terms and conditions of the applicable licence and/or notice provided by the third-party authors, contributors and suppliers of the Excluded Components (the “Suppliers”), and the Company has no responsibility or liability of any kind related to such Excluded Components. The Suppliers' licences and other notices (including instructions for obtaining source code for certain Excluded Components), may be available in the documentation accompanying the Hosted Services. The Customer agrees to comply with all such licences and other notices. Further, and notwithstanding any of the terms of this Agreement or any other Agreement the Customer may have with the Company:

 

5.1.1 The Suppliers provide the Excluded Components WITHOUT WARRANTIES OF ANY KIND AND SUCH SUPPLIERS DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE EXCLUDED COMPONENTS; and

 

5.1.2 In no event are the Suppliers liable for any direct, indirect, incidental, special, exemplary, punitive, or consequential damages, including, but not limited to lost data, lost savings, and lost profits, with respect to the Excluded Components.

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6. Collection of Data

 

6.1 The Company may collect usage data and information regarding the Customer’s use of the Hosted Services including, IP Address, location data, browser information, etc. (collectively, “Usage Data”). The Company shall own all Usage Data. Usage Data shall be maintained pursuant to the Company’s Privacy Notice, available at. www.knowportfolio.com/privacy-policy (“Privacy Notice”). If the Customer is subject to EU Data Protection Law (e.g., the General Data Protection Regulation (GDPR)), the Customer agrees to execute the Data Processing Amendment available at: knowportfolio.com/knowcost/data-processing-agreement

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7. Improvements

 

7.1 The Company may, but will not be required to, decide in its sole discretion to modify, enhance, or otherwise change the Hosted Services. Any and all bug fixes, updates, upgrades, modifications and new releases of the Hosted Services (collectively, “Improvements”) provided to The Customer by the Company will be considered “Hosted Services” subject to the provisions of this Agreement; provided that The Company may, in its sole discretion, licence any Improvements (including but not limited to a new version of Hosted Services) on separate, different or additional terms (including for an additional fee)

 

8. Term and Termination

 

8.1 This Agreement will commence on the Effective Date and will continue until the earlier of termination pursuant to the terms of this Agreement, or The Company and The Customer entering into a further Agreement that expressly supersedes this Agreement.

 

8.2 The Customer may terminate use of the Hosted Services at any time for any reason or no reason by ceasing to use the Hosted Services.

 

8.3 The Company may terminate this Agreement upon written notice to The Customer if the Customer breaches a material provision of this Agreement and fails to cure the breach within thirty (30) days following such notice. Notwithstanding the above, The Company may terminate this Agreement immediately after providing written notice to The Customer if The Customer makes an un-curable provision of this Agreement such as, but not limited to, the provisions regarding reverse engineering, disassembly, decompilation or confidentiality.

 

8.4 Upon termination of this Agreement, The Customer will immediately cease all use of the Hosted Services; and The Company will delete any confidential information of The Customer then on The Company’s servers; provided that, if termination occurs for any reason other than The Customer’s breach, The Company may retain such information subject to The Company and The Customer agreeing separately on the terms under which The Company would retain such information.

 

8.5 Termination of this Agreement will not prevent either party from pursuing all available legal remedies that accrued prior to termination, nor will it relieve The Customer of any obligation to make payments that accrued prior to termination. The parties' rights and obligations under Sections 2, 3, 4, 5, 6, 7, 9, 11, 12, 13, 14, 15 and 16 of this Agreement will survive termination of this Agreement.

 

8.6 In addition to the Company’s rights to terminate this Agreement, The Company may suspend the Customer’s right to access the Hosted Services at any time if The Company determines, in its sole discretion, that The Customer’s use of the Hosted Services is interrupting or interfering with the normal operation of the Hosted Services.

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9. Payments

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9.1 The Customer agrees to pay The Company all amounts required to be paid upon placing an electronic order for a licence, or under the terms of any signed Agreement between The Customer and The Company governing the Customer's use of the Hosted Services.

 

9.2 No failure by the Company to request any payment or to demand any performance will be deemed a waiver by the Company or a waiver of The Company’s right to terminate this Agreement in accordance with its terms.

 

10. Equipment

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10.1 The Customer shall, at its own cost and expense, provide all equipment, operating systems, and software (including Web browser) needed to use and access the Hosted Services in accordance with the technical requirements in The Company’s documentation. The Customer shall also provide, at its own cost and expense, all connections from its computer systems to the Hosted Services.

 

11. Confidentiality

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11.1 The Hosted Services contain certain information that The Company considers either proprietary, confidential, or both (collectively, "Confidential Information"). In addition, during the term of this Agreement The Company may also disclose to The Customer certain other Confidential Information. The Customer will hold The Company’s Confidential Information in confidence and will use its best efforts to protect it. The Customer will use such Confidential Information for the sole purpose of performing its obligations under this Agreement. The Customer will not disclose Confidential Information to any person other than, in the case of a Customer that is an entity, employees and independent contractors of The Customer who need to know such Confidential Information in order to carry out the terms of this Agreement and who are bound by a written confidentiality Agreement with The Customer that is no less protective of such Confidential Information than this Agreement. Upon request of The Company, The Customer will provide The Company with reasonable evidence of such written confidentiality Agreement. Upon termination of this Agreement, The Customer will either return to the Company all Confidential Information in its possession (including all copies) or will, at The Company’s direction, destroy all Confidential Information (including all copies) and The Customer (or in the case of a Customer that is an entity, an officer of The Customer) will certify its destruction to the Company. The foregoing obligations of confidentiality and non-use will not apply to any Confidential Information that The Customer can show, by competent evidence:

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I. Is publicly known at the time of disclosure or enters the public domain following disclosure through no fault of the Customer; or

II. The Customer can demonstrate was already in its possession without restriction prior to disclosure under this Agreement.

 

The Customer may disclose Confidential Information upon the order of any competent court or government agency, provided that, prior to such disclosure The Customer will, unless prohibited by law, inform The Company of such order, and provide The Company with reasonable assistance to prevent or limit such disclosure. The Customer agrees that its obligations under this Article are necessary and reasonable in order to protect The Company and its business, and that monetary damages would be inadequate to compensate The Company for any breach by The Customer of such obligations. Accordingly, The Customer agrees and acknowledges that any such breach or threatened breach will cause irreparable injury to The Company and that, in addition to any other remedies that may be available at law, in equity or otherwise, The Company will be entitled to seek injunctive relief against the continued breach or threatened breach of The Customer's obligations under this Section 11 without the necessity of proving actual damages.

 

12. The Customer Representations and Warranties

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12.1 The Customer has full personal or corporate power and authority to execute and deliver this Agreement, to consummate the transactions contemplated under this Agreement, and that entering this Agreement violates no contractual right of any third party; and

 

12.2 This Agreement has been duly and validly executed and delivered by The Customer and constitutes the valid and binding Agreement of The Customer, enforceable against the Customer in accordance with its terms.

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13. Disclaimer of Representations and Warranties

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13.1 The Company warrants that for sixty (60) days after the Effective Date (the “Warranty Period”) that the Hosted Services (but expressly excluding any and all Improvements) will perform under normal operation substantially in accordance with The Company’s documentation for the Hosted Services in place as of the Effective Date when used as specified in that documentation. The Company shall have no obligations under this warranty if the nonconformity is not reported to the Company during the Warranty Period. The Customer’s sole remedy and The Company’s sole obligation with respect to any breach of the foregoing warranty is to use commercially reasonable efforts to repair the Hosted Services. If The Company is unable to remedy the nonconformities within a reasonable time, The Customer may terminate the licence and this Agreement (subject to the survival of the provisions set forth in Section 8.4). The Company will not be responsible or liable for any failure to meet the foregoing responsibilities or any other responsibilities in this Agreement caused, in whole or in part, by The Customer’s systems or any hardware.

 

13.2 EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 13.1, THE HOSTED SERVICES AND ANY MATERIALS PROVIDED BY OR ON BEHALF OF the Company ARE PROVIDED ON AN "AS IS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, The Company DISCLAIMS ALL WARRANTIES, ORAL OR WRITTEN, WHETHER EXPRESS OR IMPLIED. NEITHER The Company NOR ANY OF ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR LICENSORS WARRANTS THAT THE HOSTED SERVICES WILL MEET The Customer's NEEDS, THAT ALL ERRORS WILL BE CORRECTED OR THAT DATA WILL NOT BE LOST. The Company AND ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, AND LICENSORS MAKE NO WARRANTY, GUARANTEE OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OF THE HOSTED SERVICES, OR ANY MATERIALS PROVIDED UNDER THIS AGREEMENT. Without limiting the generality of the foregoing:

 

I. The Customer’s use of the Hosted Services is at The Customer’s sole risk

II. The Customer is solely responsible for reviewing and evaluating the accuracy and relevance of any information stored on, generated by, or received through the Hosted Services, and

III. The Company cannot guarantee and does not guarantee said accuracy.

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14. Limits of Liability

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14.1 THE CUMULATIVE AGGREGATE LIABILITY OF The Company TO The Customer RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE FEES, IF ANY, PAID TO The Company FOR THE HOSTED SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. IN NO EVENT WILL The Company BE LIABLE TO The Customer FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING ANY DAMAGES FOR LOSS OF DATA, LOSS OF PROFITS, LOSS OF USE, OR INTERRUPTION OF BUSINESS) ARISING OUT OF THIS AGREEMENT, EVEN IF The Company HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AN AGREED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS HELD UNENFORCEABLE FOR ANY OTHER REASON.

 

14.2 THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION 8 WILL APPLY TO ALL CAUSES OF ACTION, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE, MISREPRESENTATION AND OTHER TORTS, AND LIABILITY BASED UPON THE PROVISIONS OF ANY PART OF THIS AGREEMENT AND ANY FEDERAL, STATE OR LOCAL LAW OR ORDINANCE. THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL TERMS OF THIS AGREEMENT, AND THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THEIR INCLUSION.

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15. Notices

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15.1 Any notice required or permitted to be given under this Agreement will be in writing and deemed received by the party to whom it is addressed:

 

I. Immediately, if delivered personally

II. One (1) business day after dispatch by nationally recognized overnight courier; or

III. Five (5) business days after dispatch by certified mail, postage prepaid and return receipt requested.

 

All notices will be sent to The Customer at the email address entered in the registration form. Notices to the Company Solutions will be sent to:

 

Anitech Solutions

32 Shanganagh Vale

Loughlinstown

Co. Dublin

Ireland

 

16. General

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16.1 Neither party will be liable to the other party for any delay or failure to perform its obligations under this Agreement due to causes beyond its reasonable control. Performance times will be considered extended for a period of time equivalent to the time lost because of such delay.

 

16.2 The Customer may not assign or otherwise transfer its rights, duties, or obligations under this Agreement to any other person, corporation, or other entity without the express prior written approval of The Company. Any purported assignment or transfer that does not conform to the provisions hereof will be void.

 

16.3 The Customer agrees to use the Hosted Services for the use identified in this Agreement and only for proper business purposes in accordance with all applicable federal, state, and local laws and regulations, including, without limitation, all laws and regulations respecting data privacy, international communications, foreign corrupt practices, the transfer of intellectual property, and the export and import of data and Hosted Services and agrees to indemnify and hold harmless The Company for any violation thereof.

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16.4 If any provision of this Agreement is or becomes illegal, unenforceable, or invalid (in whole or in part, for any reason), the remainder of this Agreement will remain in full force and effect without being impaired or invalidated in any way.

 

16.5 The article and section titles and headings in this Agreement are intended solely for convenience of reference and are not intended to explain, modify, or place any construction or limitation upon any provision of this Agreement.

 

16.6 No representations or statements of any kind made by either party that are not expressly stated in this Agreement or in any written amendment to this Agreement will be binding on such party. This Agreement constitutes the complete and exclusive statement of the Agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous proposals, oral or written, and all other communications between the parties relating to such subject matter.

 

16.7 Nothing in this Agreement is intended to, or will, create any third-party beneficiaries, whether intended or incidental, and neither party will make any representations to the contrary.

 

16.8 Neither party will be deemed to have waived any term, condition, or other provision hereof or to have consented to any breach thereof by the other party unless such waiver or consent is in writing and executed by a duly authorised representative of such party. No consent by either party to, or waiver by either party of, a breach by the other party, whether such consent or waiver is expressed or implied, will constitute a consent to, waiver of or excuse for any different or subsequent breach.

 

16.9 Nothing in this Agreement will be construed to make the parties partners, joint venturers, representatives, or agents of each other, and neither party will represent to any third party that the parties have any such relationship. The parties under this Agreement are acting in performance of this Agreement as independent contractors engaged in the operation of their respective businesses. A party's employees, agents, or representatives are not employees or agents of the other party and are not entitled to any benefits offered by the other party, including, without limitation, wages, stock options, or profit sharing. Neither party will be responsible for payment of workers' compensation, disability benefits, or unemployment insurance, or for withholding or paying employment-related taxes, for or with respect to the other party or its employees.

 

16.10 This Agreement is in the English language only, which language will be controlling in all respects, and all versions of this Agreement in any other language will be for accommodation only and will not be binding on the parties to this Agreement. All communications and notices made or given pursuant to this Agreement, and all documentation and support to be provided, unless otherwise noted, will be in the English language.

 

16.11 The terms of this Agreement may be enforced by licence registration and other software or hardware tools.