THESE TERMS (the “Agreement”) are entered into by and between Ingram Micro Global Services B.V., a Dutch company, with offices at Structuurbaan 40, Nieuwegein, 3439 MB, the Netherlands (“Odin”) and the service provider or service vendor (“You” or “Your”) (each, a “Party,” and collectively, the “Parties”) as of the date you ‘Click to Accept’ this online Agreement (the “Effective Date”).
1. Term. This Agreement shall commence on the Effective Date and shall continue until Odin announces the general availability of the Products unless terminated earlier pursuant to the provisions of Section 16 below (the “Term”).
2. Products. Odin shall provide You, at no additional charge, with a license to APS Connect and any related technical information and documentation (collectively, the "Products”).
3. Location and Installation. You are entitled to use the Products only within Your own company or facility. The Products shall be installed at such facilities by You in accordance with Odin’s standard installation requirements and conditions, as such are provided to You.
4. Use and Feedback. You may use the Products during the Term for the following purposes:
a. If You are a licensee of Odin software which is governed by a separate license agreement, You may use the Products in accordance with such license agreement for use in a production or a non-production environment.
b. If You are a systems integrator, subcontractor or other Odin service provider partner, You may use the Products for development, evaluation and/or testing of solutions including but not limited to integrations, APS applications, plug-ins or tools, subject to the terms of Odin’s end user license agreement (“EULA”) posted at: http://sp.Odin.com/hcap/legal/eula/.
Odin hereby grants You with a temporary, non-exclusive, non-transferable, license to use the Products solely for the purposes set forth above. Upon Odin’s request, You agree to provide Odin with various feedback as requested by Odin from time to time.
5. Consent to Use of Data. You acknowledge and agree that Odin may collect certain data relating to Your use of the Products pursuant to Your existing license agreement with Odin or the EULA, as applicable.
6. Restrictions on Use. You shall not copy the Products, modify or alter the Products, or reverse engineer, decompile or disassemble the Products.
7. Technical Support and Product Malfunctions. Odin may provide You with the technical support described in the applicable license agreement. Odin shall respond as soon as practical to reported problems, but shall have no obligation to respond within a particular time frame. Notwithstanding the terms of the applicable license agreement, You shall have an unlimited number of support tickets relating to the Products during the Term of this Agreement. You agree to report all Product malfunctions to Odin as soon as reasonably possible.
8. Disclaimer of Warranties. THE PRODUCTS ARE PROVIDED TO YOU “AS IS”, AND ANY USE OF THE PRODUCTS IS AT YOUR OWN RISK. YOU ACKNOWLEDGE THAT THE PRODUCTS MAY HAVE NOT COMPLETED ODIN’S QUALITY ASSURANCE PROGRAM AND MAY HAVE ERRORS OR DEFECTS. ODIN MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WITH RESPECT TO THE PRODUCTS, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGMENT. In the event that You have an existing license agreement with Odin as of the Effective Date, the warranty section in such existing license agreement shall prevail over this section 8.
9. General Availability. Odin reserves the right to alter the general availability date.
10. Limitation of Liability. Odin shall not be responsible for any loss or damage to You, its customers, or any other third parties caused by the Products or by Odin's performance of this Agreement. Odin SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF THE PRODUCTS OR ANY PERFORMANCE OF THIS AGREEMENT. In the event that You have an existing license agreement with Odin as of the Effective Date, the limitation of liability section in such existing license agreement shall prevail over this section 10.
11. Indemnity. You shall defend, indemnify, and hold harmless Odin from all claims, losses, costs, damages, expenses (including attorney's fees), and other liabilities arising out of Your use, operation, or possession of the Products, to the fullest extent permitted by law. In the event that You have an existing license agreement with Odin as of the Effective Date, the indemnity section in such existing license agreement shall prevail over this section 11.
12. Intellectual Property Rights. All right, title, and interest to all intellectual property with respect to the Products, including but not limited to that which may be or become protectable by patent, copyright, trademark, trade secret, or similar laws, shall belong and remain exclusively with Odin. All right, title and interest to all intellectual property which is contained in or derived from use of the feedback and data provided by You to Odin or otherwise produced by You in connection with Your use of the Products, including but not limited to that which may be or become protectable by patent, copyright, trademark, trade secret, or similar laws, shall belong and remain exclusively with Odin. In addition, any alterations made to or suggested for the Products by You shall be the exclusive property of Odin, together with all rights therein. No license or other right of any kind is granted by Odin providing the Products to You, except for the limited right to use, evaluate and test the Products as expressly provided in this Agreement. Except as expressly provided in this Agreement, You shall not use Odin's copyrights, trademarks, trade names, or other intellectual property in any way.
13. Confidentiality of Information. The Products provided hereunder are unannounced and not available to the public. Odin regards all information pertaining to the Products, including the existence of this Agreement and the Product itself, to be of a proprietary and confidential nature. You shall protect the confidentiality of such information until such information becomes public by using the same degree of care, but not less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of such information as You use to protect Your own confidential information of a like nature. You shall not make public in any manner, the existence or terms of this Agreement, any reports or test results obtained from the Products or any feedback or other data generated pursuant to this Agreement. Notwithstanding the foregoing, You are permitted to notify Your end-user customers and/or resellers about new features and functionality of the Products solely for the purpose of facilitating Your end-user customers’ and resellers’ businesses, provided however that You may not specifically disclose to such end-user customers or resellers that the new features and functionality are the result of a new version/upgrade or that such features or functionality have been provided by Odin. For the avoidance of doubt, You may not disclose any information about new features or functionality to any third party other than Your end-user customers or resellers. After the Term of this Agreement ends, You are permitted to share any and all information about the Products as it deems appropriate.
14. No Export. You agree that You will not export or re-export any of the Products except as authorized by United States law and the laws of the jurisdiction in which the Products were obtained. In particular, but without limitation, the Products may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Products, You represent and warrants that You are not located in any such country or on any such list. You also agree that You will not use the Products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, chemical or biological weapons.
15. Assignment. You shall not assign or otherwise transfer any rights or obligations under this Agreement. Any attempted assignment shall be null and void.
16. Termination. In the event You fail at any time to comply with this Agreement, Odin may terminate this Agreement immediately upon written notice to You. Upon the expiration of the Term or earlier termination of this Agreement, all licenses granted under this Agreement will automatically terminate. If, upon termination of this Agreement, You have a separate license agreement which entitles You to use the Products, then such separate license agreement will govern Your continued use of the Products. The rights and responsibilities of the parties pursuant to Sections 6, 8, 9, 10, 11, 12, 17, and 18 of this Agreement shall survive termination of this Agreement.
17. Waiver and Severability. Failure to exercise any rights under this Agreement shall not constitute a waiver or forfeiture of such rights. If any provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the provisions will remain in full force and effect.
18. Governing Law. This Agreement shall be governed in all respects by the laws of the Netherlands, without giving effect to its conflict of law provisions.
19. Entire Agreement. This Agreement contains the entire understanding and agreement of the parties relating to the subject matter hereof. Any representation, promise, or condition not explicitly set forth in this Agreement shall not be binding on either party. Any amendments to this Agreement shall be in writing and signed by authorized representatives of each party. Unless specifically stated otherwise in this Agreement, in the event of a direct conflict, a provision contained in this Agreement shall supersede a provision contained in Your license agreement with Odin or in the EULA, as applicable.