XCELPROS, LLC. (“XCELPROS”), with registered address at 4580 Weaver Parkway, Suite 202, Warrenville, IL 60555 has developed, owns, markets, licenses and distributes Integrated Quality Management and Integrated Chemical Management (together “Software”) for the Chemical, Pharmaceutical, Biotech, Life Sciences and other highly-regulated industries.
A.This End User License Agreement (EULA) consists of terms and conditions that govern licensing, distribution, delivery, installation, implementation of the Software and the Customer Order Form (Schedule A). By installing, having installed, or using the Software and service, END USER accepts the terms in this EULA. If the END USER does not accept them, do not install, have installed or use the Software.
B.XCELPROS licenses, distributes, delivers, implements and installs the software solely (only) on the basis of this EULA. Handwritten annotations or verbal agreements are invalid.
C.The END USER wishes to enter into an End User License Agreement (EULA) with XCELPROS in order to use the Software and to obtain from XCELPROS and / or the Reseller (as defined below) implementation, technical support, maintenance and / or services related thereto;
D.XCELPROS reserves the right to change the EULA at any time without prior notice. In the event that any changes are made, the revised EULA shall be posted on the website and will be shared with the END USERS immediately;
In light of the above, it is hereby agreed as follows:
1.1. Documents: means the documents related to the Software;
1.2. Maintenance: means standard maintenance services in connection with Software malfunctions not arising from the incorrect use made by the END USER, which are made available by XCELPROS – either through the Reseller or Direct Sale – pursuant to XCELPROS’ then applicable Technical Support and Maintenance policies;
1.3. Reseller: means the company or legal entity that – upon authorization by XCELPROS – sells the Software to the END USER;
1.4. Direct Sale (“Directly”): means the software sale made directly by XcelPros to the END USER;
1.5. Software: means the software application/s owned and developed by XCELPROS on the basis of Microsoft’s software applications (such as, without limitation, Microsoft Dynamics 365 Finance, Microsoft Dynamics 365 Supply Chain, Microsoft Dynamics 365 for Finance and Operations, Microsoft Dynamics 365 Business Central, Microsoft Dynamics AX, Microsoft Visual Studio, Microsoft SQL Server, Microsoft SharePoint), as listed in Schedule A hereto; this definition includes any patches, modifications, improvements (also subsequent to inputs by the END USER), new releases, updates, upgrades and revisions of the application/s concerned, which XCELPROS may choose to make available, directly and / or through the Reseller, to the END USER from time to time;
1.6. Technical Support: means standard technical support services in connection with implementation, problem solving in relation to the software, developing new releases, updates or upgrades of the Software, which XCELPROS may make available from time to time – either directly or through the Reseller – pursuant to XCELPROS’ then applicable Technical Support and Maintenance policies.
1.7. Customization: A customization is a feature, extension, or modification that requires custom coding and/or some form of special implementation within the Software.
1.8. LCS: means Microsoft Lifecycle Services. LCS is a Microsoft application management portal that provides tools and services for managing the application lifecycle of your Microsoft Dynamics 365 for Finance or Supply Chain implementations in the cloud and on-premises. LCS features, such as software deployment and patching are used by XCELPROS to help support deployments of the Software.
2.1. In consideration of the price separately agreed upon and paid by the END USER to XCELPROS or the Reseller, XCELPROS hereby grants to the END USER a non-exclusive, non-assignable and non-transferable license, for the whole term of the licensed rights, for the use of the Software and Documents by the END USER and any affiliated company listed in Customer Order Form (Schedule A), limited to the number of licensed users indicated in Schedule A hereto.
2.2. The END USER agrees that any affiliated company listed in Schedule A hereto shall accept to be bound by all terms and conditions of this EULA; accordingly, the END USER shall be directly liable towards XCELPROS for any breach hereof by any such affiliated company.
2.3. Software shall be licensed per user per month within one Microsoft Dynamics 365 licensing organization. The number of users using the particular functions either in part or in whole is relevant.
2.4. There are different tiers available for licenses – Enterprise, Functional and Task Users.
2.5. The number of users to be licensed can be equal to or less than the amount of Microsoft Dynamics 365 users.
2.6. Minimum License Purchase Requirement: To activate subscription, the END USER must purchase a minimum quantity of 10 Enterprise (Full) user qualifying licenses.
2.7. Any right in the Software and the Documents which is not expressly licensed to the END USER hereunder shall be reserved to XCELPROS, which – together with its licensor/s, as applicable – shall remain the sole owner of any and all intellectual property rights of the Software (including the relevant source code) and Documents.
2.8. Under this EULA, if source code of the Software is compiled, the END USER shall have no right to receive, review or otherwise use or have access to the source code/s of the Software.
2.9. The END USER may make copies of the Software only for archival or backup purposes, and to the extent permitted by the applicable law. The use of such permitted copies shall be governed by this EULA.
2.10. The END USER is permitted to configure the Software to suit their processes.
2.11. The END USER is not permitted to customize or otherwise modify the Software (refer to the definition of a “Customization” in 1.7). To ensure proper functioning of the Software, customizations are required to be performed only by XCELPROS. Customizations require an extensive assessment of the overall impact on the Software, Microsoft Product updates and customer ecosystem.
2.12. The END USER shall not reverse engineer, disassemble, decompile or translate in any language the Software.
2.13. If, during the term of this EULA, XCELPROS – either through the Reseller or directly – makes available to the END USER any new release, update or upgrade of the Software without entering into a specific license agreement, the license for such new release, upgrade or module shall be governed by this EULA.
2.14. This EULA grants to the END USER no right whatsoever on any trademark, trade name, domain name or other distinctive sign owned or used by XCELPROS in its business.
3. Usage Rights and Limitations
3.1. Ownership and restrictions. END USER retains all ownership and intellectual property rights in and to its data. XCELPROS retains all ownership and intellectual property rights to the Software and services. The Software may contain Microsoft programs or components. If separate license terms accompany those components, the license terms with those components apply to your use of the components instead of these license terms.
3.2. Integrated Chemical Management and Integrated Quality Management are computer Software, designed to be an add-ons to Microsoft Dynamics 365 or other Microsoft Software. Hence the Software shall only function in conjunction with a Microsoft license and in accordance with the Microsoft Online Service Terms (OST). In order to be able to use the Software, you shall ensure to have a valid Microsoft license in place. The Microsoft license and the Software license may have a different duration and different contractual terms. If the Microsoft license is terminated this does not automatically also terminate the Software Solution license and vice versa.
3.3. END USER may make multiple Instances of the Software for backup, development, and testing purposes, so long as such Instances are not used in a Production environment. Instances for backup, development and testing are for END USER internal business purposes only.
4.1. Subscription : Subscription can be procured on an annual contract (12 months). Subscription fees can be paid in advance on an annual basis (or) monthly.
4.2. Automatic Annual Renewal: Subscripion will be automatically renewed if not cancelled at least 30 days prior to the renewal date of the Software.
4.3 Termination: Subscription can be terminated prior to the renewal date of the subscription with at least one month written notice. Termination letters or E-Mails are valid forms of correspondence.
5. Returns & Refunds
5.1. All returns for installed software must be pre-authorized by XCELPROS as described below. Your right to obtain a refund for software lasts for 14 days from the date the software was installed or made available to you (“Purchase Date”). XCELPROS needs to receive a fully completed and signed Affidavit of Software Destruction within 20 days of Purchase Date. Refund for the Software will be made only after the Affidavit has been received by XCELPROS. XCELPROS is not responsible for lost or misdirected mail, delays, or other communication system delays.
5.2. XCELPROS does not offer any refunds on Services.
6. Choice of Software
6.1. The END USER acknowledges that it has chosen the Software in consideration of its own requirements and of the computer infrastructure on which it is to be used.
6.2. The END USER shall be solely responsible for the correctness of the evaluations made and, consequently, for the suitability of the Software to meet its requirements as well as of its compatibility with the computer terminals on which it is to be used.
7. Maintenance, Technical Support and/ or related Services
7.1. Maintenance, Technical Support and / or related Services shall be provided to the END USER, upon its request, by XCELPROS or the Reseller. In case of failure by the Reseller to provide such services, XCELPROS will deliver services at conditions to be determined between the END USER and XCELPROS
7.2. It is understood that Technical Support shall be provided subject to the issue by XCELPROS, in its sole discretion, of new releases, updates or upgrades of the Software. XCELPROS does not give any warranty to the END USER as to suitability for the END USER’s purposes of such new releases, updates or upgrades of the Software.
7.3. The provision of Maintenance, Technical Support and related Services to the END USER shall in any case be subject to the END USER granting to the Reseller and/or XCELPROS the necessary co-operation and access to the END USER’s environments, premises, personnel, equipment and systems, as reasonably requested by the Reseller and/or XCELPROS
8. Warranties by XCELPROS
8.1. XCELPROS warrants that the Software will operate substantially in compliance with its description included in the Documents. Any minor discrepancies between the functions of the Software and the Documents shall not be considered material. This warranty is void if the Reseller or the END USER modify the Software made available by XCELPROS.
8.2. XCELPROS shall not be liable for functioning limitations or defects of the Software, if the same have been caused, in whole or in part, by any unauthorized behavior carried out by the Reseller and/or END USER, any use of the Software which is inconsistent with the relevant Documents and/or specifications, any alteration of the Software deriving from the relevant production environment and/or test environment or from software or any other products which are not supplied by XCELPROS. If the malfunctioning derives from any defect in the Software functionality which is attributable to XCELPROS, the END USER shall immediately notify such defect to the Reseller. Any errors and/or defects caused by erroneous installation, configuration or testing of the Software or hardware, by any incorrect use of the Software or any use inconsistent with the relevant Documents, are excluded from the warranty. The END USER hereby agrees (i) that Reseller’s and/or XCELPROS’ specialized personnel will have access to the Software installed at END USER’s premises and (ii) to cooperate with Reseller’s and/or XCELPROS’ specialized personnel, if expressly requested to do so, in order to remove the defect or the error.
8.3. Without prejudice to the warranty in this Clause 5, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTIES, CONDITIONS, OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. XCELPROS DOES NOT WARRANT THE OPERATION OF ITS SOFTWARE WILL BE ERROR FREE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE LICENSE AGREEMENT. XCELPROS DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE IN TERMS OF ACCURACY, PERFORMANCE OR OTHERWISE.
8.4. Apart from the provisions of this Clause 8, XCELPROS makes no other warranties to or for the benefit of the END USER.
8.5. In all cases, to the extent representations, warranties or commitments are extended by the Reseller to END USERs, such representations, warranties, and commitments will be those of the Reseller alone and will not be attributed to XCELPROS, therefore the latter will not have any liability vis-à-vis the END USER in connection with such representations, warranties and commitments by the Reseller.
9. Infringement of third party rights and indemnification by XCELPROS
9.1. The END USER shall promptly notify the Reseller of (a) any claims, allegations or notification that the marketing, licensing or use of the Software and/or Technical Support and Maintenance does or may infringe any copyright, trademark, patent or other intellectual property right of any other person or entity; (b) any determination or discovery that any person or entity is or may be infringing any copyright, trademark, patent or other intellectual property right owned by XCELPROS.
9.2. XCELPROS shall defend and hold the END USER harmless from all claims, suits, damages and expenses (including reasonable attorneys’ fees) arising from a claim against the END USER that the Software infringes a copyright, provided that the END USER provides to the Reseller and/or XCELPROS (a) prompt written notice of any such claim (within 10 working days), (b) all available information and assistance, and (c) the opportunity to exercise sole control of the defence and all negotiations pertaining to such claim. XCELPROS shall also have the right, at its expense and as END USER’s sole remedy, either to procure the right for the END USER to continue to use the Software or to replace or modify it so that it becomes non-infringing. If neither of the foregoing alternatives is available on terms that XCELPROS, at its sole discretion, deems desirable, the END USER shall, upon written request from XCELPROS, return the infringing Software in its possession, in which event the Reseller or XCELPROS, as applicable, shall refund to the END USER the price paid, if any, by the END USER for such returns, provided that it is in original condition. This provision shall not apply to software products that are not developed and owned by XCELPROS or if the alleged infringement is due to combination, operation or use of the Software with other software, hardware or other products that does not originate from XCELPROS or from modifications or developments of the Software by the END USER, the Reseller or any third party.
10. Limitation of liability
10.1. To the maximum extent permitted by the applicable law, in no event shall XCELPROS be liable towards the END USER, for any reason (including any contractual breach and any breach of warranties), for an amount exceeding the aggregate amounts of fees paid by the END USER to the Reseller to purchase the Software and/or to XCELPROS for any other services for the deficient Software or Technical Support and Maintenance giving rise to liability under this Agreement.
10.2. In no event shall XCELPROS be liable towards the END USER for any incidental, special, punitive or consequential damages or losses of any kind arising under or in connection with this agreement, regardless of legal theory, including any such damages or losses resulting from business interruption or lost profits, even if it has been advised of the possibility of such damages.
11. Termination clause
11.1. XCELPROS shall be entitled to immediately terminate this EULA by sending a written termination notice to the END USER if any of the following events occurs:
a). the END USER fails to pay any amount due to the Reseller and/or XCELPROS for the supply of Software and/or Maintenance;
b). the END USER exceeds the limits of the license granted under this EULA, as agreed to in Schedule A.
c). the END USER breaches the confidentiality obligation under Clause 9 below.
11.2. In the event of termination of this EULA under Clause 11.1 above, the END USER shall immediately cease to use the Software and the Documents and shall immediately return to XCELPROS or the Reseller all materials related thereto or, if the restitution is not materially possible, shall immediately destroy or delete such materials.
12.1. The END USER shall maintain, for the whole term of the license under this EULA, the confidentiality of all XCELPROS’ business information, Software and Maintenance pricing, technology and confidential documents, including but not limited to agreements, business plans, software, price lists/books and related documentation, technical documentation and other information which is not publicly available. This Clause 9 shall not cover information that is or becomes part of the public domain through no act or omission of the END USER.
13.1. The END USER grants XCELPROS the right to mention and display the END USER’s company name and company logo for marketing purposes.
14. Reference Agreement
14.1. The END USER agrees to become an XCELPROS reference customer on the condition that they are satisfied with the software.
14.2. Becoming a reference customer starts with a customer satisfaction call. A quote of the customer satisfaction call may be published on the XCELPROS website along with the END USER’s company name and company logo. The content will be approved by the END USER prior to publishing.
14.3. Furthermore, XCELPROS’s Marketing Team is entitiled to create a reference story with the END USER. Additionally, other XCELPROS prospects and customers can contact the customer. Such calls will be advised and scheduled between XCELPROS and the customer.
14.4. In case the customer is not satisfied with the software, it can be disagreed any time.
15.1. The END USER may not assign this EULA, or any right licensed to the END USER hereunder, to any third party.
15.2. XCELPROS may freely assign this EULA, or any of its rights or obligations hereunder, to any third party.
16.1. Any amendment to this EULA shall be made by way of a written document executed by both XCELPROS and the END USER.
17. Data Protection
17.1. To protect the END USER’s privacy, XCELPROS hereby informs the END USER that the latter’s personal data which are communicated by the END USER in connection with this EULA may be processed by XCELPROS – as Data Controller – for the following purposes: a) performance of this EULA and management of the contractual relationship with the END USER and the Reseller; b) compliance with the applicable law and with any tax and accounting requirements; c) marketing, market research and promotional purposes.
17.2. The disclosure by the END USER of its personal data necessary for the performance of this EULA is mandatory, since refusal will lead to the impossibility for XCELPROS to enter into this EULA and for the END USER to stipulate a separate agreement with the Reseller.
17.3. The processing of the END USER’s personal data may be carried out by XCELPROS manually or by way of electronic means according to criteria strictly related to the purpose of this EULA.
17.4. The END USER shall at any time be entitled to the following: 1) the right to obtain from XCELPROS a confirmation about the existence of its personal data and a readable communication concerning the same data, and any information in relation to the purposes of the processing; the right to obtain the erasure or the transformation into anonymous form of its personal data, or the block of data which have been processed in breach of the applicable law or whose retention is unnecessary for the purposes of the data collection and subsequent processing; the right to obtain any update, rectification or integration of its personal data; 2) the right to object, in whole or in part, on legitimate grounds, to the processing of its personal data, even though they are relevant for the purposes of the collection, or to object, in whole or in part, to the processing of its personal data, where it is carried out for the purpose of sending advertising materials or direct selling or for the performance of market or commercial interactive communication surveys; 3) the right to obtain from XCELPROS a certification that any possible update or erasure of its personal data, including the content of the same, have been notified to those entities to whom the personal data have been communicated or disseminated, unless such fulfilment is impossible or involves a clearly unreasonable effort compared to the data subject’s right to be protected.
17.5. The personal data of the END USER may be communicated by XCELPROS, for the purposes indicated in Clause 17.1 above, to: (a) those persons to whom access is permitted pursuant to the applicable law or where such communication is necessary for compliance with the applicable law or for the performance of this EULA, (b) XCELPROS’ employees and commercial partners (including the Reseller), professional consultants, clients and suppliers, (c) affiliated companies of XCELPROS.
17.6. The Data Controller and Processor is XCELPROS (whose registered office is indicated in the front page of this Agreement) and the names of the persons in charge of the processing are available, upon simple request, at XCELPROS’ registered office.
18. Applicable law and dispute resolution
18.1. This EULA shall be governed by the laws of the State of Illinois without regard to principles of conflict of laws. Any controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be Naperville, IL. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
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