END USER LICENCE AGREEMENT
Throughout this End User License Agreement (“License”), use of the term OmniData is deemed to refer to OmniData Insights or OmniData Insights C-Corp., depending upon the entity with which you have contracted, as stated in the applicable Statement of Services, Sales Contract, online sales form, email order form or quote (“Software Documentation”) provided to You separately.
By downloading, installing or using the OmniData Insights’ Software (“the Software”), You agree to be bound by the terms and conditions contained herein. If you do not agree with the terms and conditions, you are not authorized to install or use the Software. If you are accepting this License on behalf of a company or entity, you represent and warrant that you have the authority to bind such company or entity to the terms of this License, in which case the terms “You” and “Your” refer to your company. If You do not have such authority, or if You or Your company does not agree with the terms of this License, then neither You nor Your company has the right to use the Software.
2. The Software
The Software is being licensed to You by OmniData Insights for use with Power BI and Microsoft Dynamics AX 2012 R2 & R3. The Software is a product of OmniData Insights and is not sponsored by Microsoft.
3. License Grant and Use of Software
3.1 In exchange for consideration, including fees (“License Fees”) to be paid to OmniData Insights in accordance with the terms set forth in Your Software Documentation, and subject to all other terms and conditions set forth herein, OmniData Insights hereby grants You a non-exclusive, revocable, non-transferable, limited right to use the Software, solely in accordance with the terms and conditions of this License. All rights not expressly granted are hereby reserved by OmniData Insights.
3.2 Depending upon the Software provided, you may be issued with a unique license key (“License Key”) which will grant access to the Software in accordance with the type of License granted in Your Software Documentation.
3.3 If a License Key is provided, OmniData will employ a usage tracking tool which will report back to OmniData on the number of users consuming the Software under the License. Activity will not routinely be blocked if the number of users exceeds the number of purchased Licenses, but instead OmniData will be entitled to collect additional License Fees from You, calculated on a pro rata basis, for such additional use.
3.4 Notwithstanding section 3.3 above, OmniData Insights reserves the right to revoke Your License Key if that License Key is used by more users than Licenses purchased under Your Software Documentation.
3.5 If the usage tracking tool determines that an invalid License Key has been used by You, or if Your Software is revoked under section 3.4, the Software will perform a silent fail. This will not produce a visual error, and there will be no loss of functionality to the existing environment.
3.6 OmniData Insights reserves the right to audit Your usage of the Software to determine whether the number of users consuming the Software is in line with the terms of Your License.
4. Term and Termination
4.1 This License is available on a subscription, perpetual or trial basis. The type of License granted to You and the corresponding term of that License will be set out in Your Software Documentation.
4.2 You may terminate this License at any time by notifying OmniData Insights, without refund of any License or Software Assurance Fees paid, and without release from any License or Software Assurance Fees owed.
4.3 In the event that You breach any term or condition of this License, OmniData Insights may immediately terminate this License without notice.
4.4 Upon termination of this License:
(i) if a License Key has been provided, OmniData Insights will cause the Software to silently fail, with no loss of functionality; or
(ii) if a License Key has not been provided. You agree to immediately delete the Software together with any back-up copies. Failure to do so will be deemed to be a breach of Your License.
5. Restrictions and Prohibitions
5.1 You shall not:
(i) analyze, decompile, “unlock,” decode, disassemble, reverse engineer, reverse translate or attempt to discover or reconstruct any source code of the Software for any purpose, nor shall You cause a third party to do so;
(ii) attempt to disable, tamper with or bypass the License Key system or any other license enforcement technology incorporated into the Software;
(iii) copy, reproduce, modify, adapt, improve, enhance, translate or create derivative works based on the Software or any accompanying materials;
(iv) violate any applicable laws, rules or regulations in connection with Your use of the Software, or use the Software other than in accordance with the instructions or documentation provided by OmniData Insights;
(v) remove, alter or obscure any watermark or proprietary notice (including any notice of copyright or trademark) of OmniData or its affiliates and partners;
(vi) use the Software for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by OmniData Insights; or
(vii) distribute, resell or permit access to the Software by any third party.
5.2 The Software may be installed on any number of computers, provided that the number of users You allow to use the Software does not exceed the number of Licenses granted from OmniData Insights, as stated in Your Software Documentation.
5.3 Confidentiality: You agree not to disclose, duplicate, publish, release, transfer or otherwise make available any Confidential Information belonging to OmniData Insights in any form to, or for the use or benefit of, any person or entity without the prior written consent of OmniData Insights. “Confidential Information” means any financial, technical or business information that becomes known to You, or that You reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. The specific features of the Software and documentation provided to You under this License are Confidential Information. Confidential Information does not include any information that
(i) is or becomes generally known to the public without breach of Your confidentiality obligation under this License;
(ii) You can demonstrate by written record was independently developed by You without breach of Your confidentiality obligation under this License and without reference to the Confidential Information; or
(iii) is received from a third party who obtained such Confidential Information without breach of any obligation owed to OmniData Insights.
6.1 Except for the License expressly granted in Section 3, OmniData Insights reserves all right, title and interest in and to the Software, the technology used to provide the Software, any documentation provided with the Software, and all intellectual property and proprietary rights in the foregoing. You understand and agree that You do not acquire any ownership rights in or to the Software through this License.
6.2 You hereby grant to OmniData Insights a worldwide, non-exclusive, perpetual, irrevocable, royalty-free license to fully use and exploit in any manner any ideas, feedback or suggestions for enhancement concerning the Software that You provide to OmniData Insights or which OmniData becomes aware of during the course of providing the Software.
7. Trial License
7.1 If the Software has been made available to You on a trial basis (as stipulated in Your Software Documentation, this Trial License will allow You to evaluate the functionality of the Software with a view to purchasing a full License for the Software.
7.2 The Trial License will grant you a non-exclusive right to use the Software solely for evaluation purposes, and for the number of trial users and the duration of the term set out in Your Software Documentation.
7.3 Limited guidance on installation and usage will be provided to You as part of the Trial License. Software Assurance (as set out in section 8) is not available for Software provided under a Trial License.
7.4 Depending upon the Software provided, the Trial License may impose a visual watermark on the Software which will highlight that the Software is being used on a trial basis.
7.5 The Trial License will be free of all charges and Fees for the duration of the term set out in Your Software Documentation.
7.6 OmniData Insights reserves the right to revoke the Trial License at any time without notice.
7.7 The Trial License will be revoked at the end of the term set out in Your Software Documentation, with no loss of functionality to the environment.
7.8 Unless stipulated to the contrary in individual sections of this License, all terms, conditions and obligations set out in this License will apply to any Trial License granted.
8. Software Assurance
8.1 A maintenance service for the Software (“Software Assurance”) is available for the Software and, if purchased, will be provided by OmniData Insights in accordance with the terms set forth in Your Software Documentation and for as long as the Software Assurance Fee is paid (or, if included as part of Your License, for the duration of the term of the License).
8.2 As part of the purchased Software Assurance, OmniData Insights will investigate issues raised by You to determine if the problem is a Software bug or user support issue. If a Software bug is identified, OmniData Insights will use reasonable endeavors to investigate a workaround, patch or version update in order to correct the issue.
8.3 Software Assurance will not cover problems arising as a result of Your incorrect use of the Software or failure to follow installation advice. If the issue raised by You is a configuration or implementation issue requiring user support, this will not be covered by Software Assurance and must be handled via the purchase of separate OmniData Insights’ consultancy time.
8.4 In the event that product improvement upgrades and/or updates of the Software are developed (“Upgrades and/or Updates”), OmniData Insights will make such Upgrades and/or Updates available to You only as part of Your Software Assurance, provided all License Fee and Software Assurance Fee payments are up to date. For the avoidance of doubt, the provision of Updates and/or Upgrades is only available to You whilst You continue to pay the License Fee and Software Assurance Fee, and provided no invoices are outstanding at the time that the Update and/or Upgrade is released. If You have not paid Your License Fee and Software Assurance Fee, you are not entitled to receive any Update and/or Upgrade. If you have purchased Software Assurance, you commit to moving to the new version within twelve (12) months of release.
8.5 Security hotfixes will be covered as part of the License Fee, regardless of whether Software Assurance has been purchased.
8.6 Software Lifecycle. OmniData Insights provides hotfix and rollup updates for a period of twelve (12) months following the release of a new version of the Software. For further information please refer to the OmniData Insights’ Software Lifecycle.
8.7 OmniData Insights may, at their discretion, provide advice to You about recommended hardware for on-premise deployment; however, support of such hardware is not deemed to be included in the License Fees unless additional support terms and costs specific to that hardware have been agreed in writing between OmniData Insights and You.
8.8 Software Assurance under section 7 is not available for Software provided under a Trial License.
9. Transfer and Assignability
9.1 You shall not sublicense, assign, or transfer this License or the Software to another party (regardless of whether the other party agrees to accept the terms and conditions herein) unless otherwise expressly permitted in writing by OmniData Insights. Any attempt otherwise to sublicense, assign, or transfer any of the rights, duties, or obligations hereunder renders this License void.
9.2 In the event of a consolidation or merger of OmniData Insights with or into another company or entity, or the sale of all or a substantial part of the assets of OmniData Insights, OmniData Insights may assign this License to any successor in interest and upon such assignment, OmniData Insights shall have no further liability hereunder and the successor in interest shall be subject to all obligations and be entitled to enforce all rights of OmniData Insights under this License.
9.3 Subject to the foregoing, this License shall bind and inure to the benefit of the parties and their respective successors and assigns.
10. Limitation of Liability, Indemnification and Remedies
10.1 Disclaimer of Warranties. You acknowledge and agree that provision of the Software to You is on an “as is” and “as available” basis, and Your use of or reliance upon the Software is at Your sole risk and discretion. You shall assume sole responsibility for the selection of the Software and for the installation, use, and results obtained from the Software. The entire risk as to the quality and performance of the Software is with You. OmniData Insights will have no liability whatsoever for any bug, error, omission, deficiency or defect in the Software. OmniData Insights disclaims all warranties, express, implied or statutory, with respect to the Software, Software Assurance and any related services, including without limitation the implied warranties of merchantability, fitness for a particular purpose, title, non-infringement or results to be obtained. You acknowledge that certain functionality of the Software depends on You
(i) maintaining a license to certain third-party software as described in Your Software Documentation; and
(ii) the ongoing availability of services from the providers of such third-party software. OmniData Insights disclaims any warranty that such third-party software will continue to be compatible with the Software.
Should the Software prove defective, you (and not OmniData Insights) assume the entire cost of all necessary servicing, repair, or correction, except those which may be covered by any Software Assurance purchased as part of Your License.
10.2 Limitation of Liability. Under no circumstances and under no legal theory, tort, contract, or otherwise, shall OmniData Insights or its suppliers or resellers be liable to You or any other persons/entities for any damages, including without limitation, lost profits, lost savings, indirect, special, incidental, or consequential damages of any character including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, arising out of Your use of or inability to use the Software, even if OmniData Insights or its suppliers or resellers shall have been informed of the possibility of such damages, or for any claim by any other party. This limitation of liability shall not apply to liability for death or personal injury to the extent applicable law prohibits such limitation. Furthermore, to the extent any applicable jurisdiction does not allow the exclusion or limitation of incidental or consequential damages, this limitation and exclusion may not apply to You. In the event that any or all of the limitations in this paragraph are deemed invalid or unenforceable, OmniData Insights’ aggregate liability arising out of this License or any use of or inability to use the Software shall be limited to the minimum amount permitted by applicable law.
10.3 Third Party Indemnification. To the best of OmniData Insights’ knowledge, your use of the Software in accordance with its stated purposes will not infringe any third party’s copyright, patent, or other intellectual property rights. OmniData Insights shall indemnify, defend and hold harmless You, Your affiliates, and Your respective officers, directors, employees, representatives, and agents from and against all losses, damages, or expenses of whatever form or nature, including reasonable attorney’s fees and other costs, arising out of or related to any third party claim that the Software violates any patent, copyright or trade secret right of such third party, provided that:
(i) Your use of the Software is in accordance with the terms of this License;
(ii) OmniData Insights is promptly notified in writing of any such claim; and
(iii) OmniData Insights shall have the exclusive right to control the defense of such claim. In no event shall You settle or compromise any such claim without OmniData Insights prior written approval.
OmniData Insights shall either:
(i) obtain for You the right to continue to use the Software; or
(ii) modify the Software so that it becomes non-infringing; or
(iii) only in the event that options (i) and (ii) above are not commercially reasonable, terminate the License with respect to the infringing components of the Software without any further obligation to You. You may, at Your own cost and expense, assist in the defense of any such claim and be represented by counsel of Your choice. This section states the entire liability of OmniData Insights with respect to any of the foregoing.
10.4 You agree that a material breach of this License would cause irreparable injury to OmniData Insights for which monetary damages would not be an adequate remedy, and therefore that OmniData Insights will be entitled to seek equitable relief in addition to any other available remedies.
10.5 You may have other legal rights that vary by jurisdiction.
11. Jurisdiction and Disputes
11.1 The United Nations Convention on Contracts for the International Sale of Goods expressly does not apply.
11.2 United States. If You acquired the Software in the United States, you are contracting with OmniData Insights, a California company registered at 2060D East Avenida De Los Arboles / Ste 711 / Thousand Oaks, CA 91362. This License shall be governed by and construed in accordance with the laws of the State of California without regard to the rules of conflicts of laws, and jurisdiction and venue shall be California. The parties’ consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
11.3 Rest of the world. If You acquired the Software in the rest of the world, you are contracting with OmniData Insights, a California company registered at 2060D East Avenida De Los Arboles / Ste 711 / Thousand Oaks, CA 91362. This License shall be governed by and construed in accordance with the laws of the State of California without regard to the rules of conflicts of laws, and jurisdiction and venue shall be California. The parties’ consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
11.4 If any provision of this License, such as the limitations on warranties or remedies, is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible, and the remaining provisions shall remain in full force and effect.
11.5 The failure of a party to enforce a provision of this License, or the failure to require performance by the other party of any of the provisions of this License, will in no way be construed as a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of this License will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
This License, including terms and conditions specifically incorporated by reference (including the Sales Documentation), constitutes the entire understanding of the parties regarding the License for the Software, and revokes and supersedes all prior agreements, oral or written, between the parties, and is intended as a final expression of their agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this License. This License shall take precedence over any other documents that may be in conflict herewith.