Article II: License
Article II.1 - License Grant
(a) ActiveCollab grants to User a non-exclusive, non-transferable license to install, download, and use one copy of the Software, as follows:
(i) for its internal business purposes, one copy of the Software may be downloaded to only one computer or workstation to be accessible at a single website location (URL);
(ii) if User desires to move the Software to a different computer or workstation, it must provide ActiveCollab written notice prior to the movement to a new computer or workstation except in emergency situations, in which case immediate post-move notification is required, and must delete the Software from the old computer or workstation;
(iii) only by User for its internal use, and the Software is not transferable from User to any parent, subsidiary, affiliated entity, or third party except by written agreement between the parties;
(iv) only for User’s benefit and not for the benefit of any third party, including, without limitation, commercial timesharing or service bureau or other rental or sharing arrangements, data processing, or management information or services;
(v) only in the country in which the Software is first installed and may only be moved to another country with the prior written permission of ActiveCollab;
(vi) User may make one copy of the Software for archival or backup purposes only, so long as all titles, trademark, copyright, and restriction notices are reproduced; and
(vii) User may install one additional copy of the Software on a separate URL, for development and testing purposes only. No other uses are granted hereunder.
(b) User may not:
(i) use the Software in contravention of Section II.1.a.i. above;
(ii) reproduce or otherwise make copies of any portion of the Software, except as provided in Section II.1.a.vi. and/or Section II.1.a.vii. above;
(iii) create derivative works based upon the Software or any part of the Software or modify the Software;
(iv) distribute, sell, assign, license, sublicense, rent, lease, lend out, or otherwise transfer any part of the Software, or permit any third parties to do so;
(v) remove the patent, copyright, trade secret, or other proprietary protection legends or notices that appear on or in the Software; or
(vi) remove or alter the ActiveCollab name, logo, or other marks from the Software.
Article II.2 - Ownership
ActiveCollab retains all title, copyright, and other proprietary rights in the Software and any modifications, enhancements, or changes thereto, including, but not limited to, any Support Modifications, Software Updates, and Software Upgrades, and any feedback or suggestions provided by User with respect to the Software or with respect to any such modifications, enhancements, or changes thereto. User does not acquire any rights, express or implied, in the Software, other than those expressly specified in this Agreement.
Article II.3 - Wrongful Possession or Access
Upon knowledge of any unauthorized possession, use of, or access to, any Software, User shall promptly notify ActiveCollab and furnish ActiveCollab with full details of such knowledge, assist in preventing any recurrence thereof, and cooperate with ActiveCollab (if unauthorized use is through no fault of User, at ActiveCollab’s expense) in any litigation or other proceedings reasonably necessary to protect the rights of ActiveCollab.
Article II.4 - Verification
Upon ActiveCollab’s written request, User will certify in writing that User is using the Software in compliance with this Agreement and forward such certification to ActiveCollab. This certification must be signed by an appropriate officer of User. If ActiveCollab has reason to believe that User is not in compliance with this Agreement, ActiveCollab may audit, at ActiveCollab’s expense, User’s use of the Software as reasonably necessary. Such audit will be conducted during regular business hours at User’s facilities and shall not unreasonably interfere with User’s business activities. Notwithstanding the foregoing, if an audit reveals that User has underpaid fees to ActiveCollab, User agrees that it will promptly pay any such underpaid fees upon receipt of ActiveCollab’s invoice, in addition to reimbursing ActiveCollab for the cost of the audit.
Article II.5 - Trademarks
User may not use ActiveCollab’s name or trademarks without the prior written permission of ActiveCollab. ActiveCollab may use User’s name, logo, and/or trademarks to identify User as a user of ActiveCollab.
Article II.6 - Use of the Software
Article IV: General
Article IV.1 - Establishment and Maintenance of Accounts
(a) User understands that User must register and establish an account with ActiveCollab in order for User to license, download and use the Software and receive Support. User represents and warrants to ActiveCollab that it will provide, and maintain and update promptly when necessary, true, accurate, complete, and up-to-date information (“Account Data”) when prompted during the registration process. If ActiveCollab believes in its reasonable business discretion that Account Data provided by User is inaccurate, incomplete, and/or not up-to-date, ActiveCollab has the right, in its sole and absolute discretion, to (i) suspend or terminate User’s account, (ii) suspend or terminate this Agreement, and/or (iii) reject any current or future access to and use of the Software and refuse to provide Support unless and until the affected Account Data is corrected and/or made complete.
(b) User understands that it is solely responsible for maintaining the confidentiality and security of account passwords, account numbers, login information, and any other security or access information used by User to access the Software (collectively, “Login Information”), as well as preventing unauthorized access to or use of the information, files, and/or data that User houses or uses in or with the Software.
(c) User understands and acknowledges that ActiveCollab assumes that any communication it receives through use of Account Data was received and/or authorized by User.
Article IV.2 - Mutual Nondisclosure
(a) The parties agree that all information, including, without limitation, the Software and Documentation, and all information concerning either party’s business, including, without limitation, information pertaining to either party’s marketing plans, finances, research and development, information technology, competition, users, and personnel data exchanged by the parties under this Agreement and reasonably to be considered confidential by the Discloser under the circumstances (collectively, “Confidential Information”) shall be maintained in confidence by the Recipient, and the Recipient shall use the Confidential Information of the Discloser only as authorized by this Agreement and for no other purpose (it being understood, however, that either party may disclose the Confidential Information to its employees and contractors who have a need to know, provided that same are subject to substantially similar obligations of confidentiality as those herein). In the event the Confidential Information is disclosed visually or orally, the information shall be identified as confidential at the time of such disclosure.
(b) Each party further agrees to take the same measures it uses to protect its own Confidential Information, to prevent the unauthorized disclosure and use of the Confidential Information of the other party to third parties (except as permitted herein), and to prevent such unauthorized disclosure by its employees, agents, and independent contractors who are otherwise permitted access to the information.
(c) The obligations of Recipient with respect to any particular portion of Confidential Information shall terminate or shall not attach, as the case may be, when such information:
(i.) was in the public domain at the time of Discloser’s communication thereof to Recipient;
(ii) entered the public domain through no fault of Recipient subsequent to the time of Discloser’s communication thereof to Recipient;
(iii) was in Recipient’s possession free of any obligation of confidence at the time of Discloser’s communication thereof to Recipient;
(iv) was independently developed by Recipient as demonstrated by written records; or
(v) is required to be disclosed by court or government order and Discloser has been given notice of such order.
(d) The parties agree that a breach of the confidentiality obligations by Recipient shall cause immediate and irreparable monetary damage to Discloser and shall entitle Discloser to injunctive relief in addition to all other remedies.
Article IV.3 - Disclaimer of Warranties
THE SOFTWARE AND SUPPORT IS PROVIDED ON AN “AS-IS” BASIS, WITHOUT ANY WARRANTY OF ANY KIND. ACTIVECOLLAB MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THE QUALITY, SUITABILITY, AVAILABILITY, OR ADEQUACY OF THE SOFTWARE, AND ACTIVECOLLAB MAKES NO EXPRESS, STATUTORY, OR IMPLIED REPRESENTATIONS OR WARRANTIES, AT LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANT-ABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, NO ENCUMBRANCES, AND WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OR TRADE, AND ACTIVECOLLAB HEREBY EXPRESSLY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES.
Article IV.4 -Exclusive Remedies
The Software provided pursuant to this Agreement is provided on an “as-is” basis. If User is dissatisfied for any reason with the Software during the first thirty (30) days following purchase thereof, User should notify ActiveCollab via email and request a full refund. Upon payment of the refund to User, the License to use the Software shall be immediately revoked. User shall certify to ActiveCollab upon receipt of the refund that all Software and supporting materials have been returned to ActiveCollab or destroyed and documentation supplied to ActiveCollab certifying destruction, including written certification by an appropriate officer of User. The foregoing is User’s exclusive remedy with respect to dissatisfaction with the Software.
Article IV.5 -Infringement Indemnity
(a) If User is prevented from using the Software due to an actual or claimed infringement of any U.S. patent, copyright, or other intellectual property right (that is not as a result of
(i) any misuse, improper use, alteration, or damage of the Software by User;
(ii) any version of the Software not made or authorized in writing by ActiveCollab;
(iii) the combination of the Software with other programming or equipment to the extent such combination has not been approved in writing by ActiveCollab; or
(iv) any version of the Software other than the then current version), ActiveCollab may remedy the infringement by:
(x) procuring for User, at ActiveCollab’s expense, the right to continue to use the Software(s);
(y) replacing or modifying the Software(s) at ActiveCollab’s expense so that the Software(s) become non-infringing, but substantially equivalent in functionality; or
(z) in the event that neither x. nor y. are reasonably feasible, terminating the Agreement as to the infringing Software and returning any License Fees paid by User for the infringing Software(s).
(b) This Article IV.5 states ActiveCollab’s entire obligation to User with respect to any claim of infringement.
Article IV.6 -Payment
(a) LICENSE FEES. In consideration for the License granted in Article II, User agrees to pay to ActiveCollab the License Fee.
(b) SUPPORT FEES. In consideration for the Support to be provided hereunder, User shall pay the Annual Support and Upgrade Fee. The first year of Support is included in the License Fee. Thereafter, Support is discretionary. ActiveCollab may increase Annual Support and Upgrade Fees for renewal terms upon written notice to User.
(c) TAXES. The fees listed in this Agreement do not include taxes. If ActiveCollab is required to pay any sales, use, property, excise, value added, gross receipts, withholding, or other taxes levied on the Software, Services, or Support under this Agreement or on User’s use thereof, then such taxes shall be billed to and paid by User. This Section does not apply to taxes based on ActiveCollab’s net income, franchise taxes, or ActiveCollab’s employer contributions and taxes.
(d) PAYMENT PROCESS. User understands that ActiveCollab uses a third party paying agent to process all payments. User understands that until payment is received and verified by the paying agent, User shall not be permitted to download the Software or receive Support.
(e) All payments made hereunder are nonrefundable, except for relief to which User may be entitled under the Exclusive Remedies provision and Infringement provisions of this Agreement. User may not withhold or set off any amounts due under this Agreement. Failure to pay any fee when due shall constitute a material breach of this Agreement. In addition, if the User fails to make any payments when due for Support, upon written notice to User, ActiveCollab shall cease providing Support.
Article IV.7 - Limited Liability
(a) VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR THE USE RESTRICTIONS HEREIN,
(b) FAILURE TO COMPLY WITH THE MUTUAL NONDISCLOSURE PROVISION, OR
(c) THE INFRINGEMENT AND OTHER INDEMNITY PROVISIONS CONTAINED HEREIN, IN NO EVENT SHALL ACTIVECOLLAB OR ACTIVECOLLAB’S THIRD PARTY SUPPLIERS BE LIABLE TO USER FOR A MONETARY AMOUNT GREATER THAN THE AMOUNTS PAID PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE CAUSING THE LIABILITY AND (B) IN NO EVENT SHALL EITHER PARTY OR ACTIVECOLLAB’S THIRD PARTY SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OR INJURIES TO EARNINGS, PROFITS, DATA, OR GOODWILL, OR FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY PERSON OR ENTITY WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. The provisions of this Agreement allocate the risks between ActiveCollab and User. ActiveCollab’s pricing reflects this allocation of risk and the limitation of liability specified herein.
Article IV.8 - Recruiting
User acknowledges that ActiveCollab’s employees and contractors are critical to its business. Therefore, User agrees not to knowingly solicit any of ActiveCollab’s employees or contractors without ActiveCollab’s prior written consent while such employee or contractor is employed or engaged by ActiveCollab and for a period of twelve (12) months following that employee’s or contractor’s last date of employment or engagement by ActiveCollab. The parties further agree that in the event of any actual or threatened breach of any of the provisions of this section, ActiveCollab shall be entitled (in addition to any and all other rights and remedies at law or in equity for damages or otherwise, which rights and remedies are and shall be cumulative) to specific performance, a temporary restraining order, or an injunction to prevent such breach or contemplated breach.
Article IV.9 - Termination
If either party materially breaches this Agreement, the other party may give written notice of its desire to terminate and the specific grounds for termination and, if such default is capable of cure and the party in default fails to cure the default within thirty (30) days of the notice, the other party may terminate this Agreement. If such default is incapable of cure, the other party may terminate this Agreement immediately upon written notice of its desire to terminate. Upon termination, the License to use the Software shall be immediately revoked and all Software and supporting materials will be returned to ActiveCollab or destroyed and documentation supplied to ActiveCollab certifying destruction. Unless this Agreement is terminated pursuant to this paragraph, it shall continue in full force and effect. Sections II.1.b., II.2 – II.5, IV.1, IV.2, IV.5 - IV.10, and V. shall survive any termination of this Agreement.
Article IV.10 - Export Administration; U.S. Government Rights
User agrees to comply fully with all relevant export laws, anti-boycott laws, and regulations (and similar laws and regulations) of the United States and Serbia (“Export Laws”) to assure that neither the Software nor any direct product thereof are:
(a) exported, directly or indirectly, in violation of Export Laws; or
(b) intended to be used for any purposes prohibited by Export Laws.
User will indemnify ActiveCollab for any losses, costs, liability, and damages, including reasonable legal fees, incurred by ActiveCollab as a result of failure by User to comply with this Section. ActiveCollab may, from time to time, deny User the right to license in certain countries in order to protect ActiveCollab’s interests.
The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) (or an equivalent provision, e.g., in supplements of various U.S. government agencies, as applicable), all U.S. Government users acquire the Software with only those rights set forth herein.
Article IV.11 - General
(a) WAIVER. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach. No amendments, modifications, or supplements to this Agreement shall be binding unless in writing and signed by the parties.
(b) NOTICES. All notices shall be in writing and delivered: personally; by fax or email; by overnight delivery service with a nationally recognized service that maintains a record of delivery; or sent by certified mail, postage prepaid, return receipt requested, to the address as notified by one party to the other party, and such notice shall be deemed to be made:
(i) if by fax or email, when it is sent and confirmed,
(ii) if delivered personally or by overnight mail, when received and
(iii) if mailed, on the fifth (5th) day after such mailing.
To expedite order processing, User agrees that ActiveCollab may treat documents faxed by User to ActiveCollab as original documents. However, either party may require the other to exchange original signed documents.
(c) GOVERNING LAW. This Agreement, and all matters arising out of or related to this Agreement, except actions arising under the patent and copyright provisions of the U.S. Code, shall be governed by the laws of the State of New York. The parties agree that this Agreement is not subject to and shall not be interpreted by the United Nations Convention on Contracts for the International Sale of Goods. No action arising out of this Agreement, regardless of form, may be brought more than two (2) years after the claiming party knew or should have known of the cause of action. For Users located in the European Economic Area, this Agreement is also subject to the General Data Protection Regulation (EU) 2016/679 (“GDPR”), more fully described in Article V below.
(d) DISPUTES. The parties will use reasonable efforts to resolve amicably any disputes that may relate to or arise under this Agreement. Any disputes that cannot be resolved will be settled exclusively by arbitration, conducted in English, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) in New York, New York (the “Arbitration”); however, either party may seek injunctive relief from any court of competent jurisdiction. The following specific provisions will also apply to the Arbitration:
(i) the proceedings will be held before one arbitrator mutually selected by the parties (or if not agreed by the parties within thirty (30) days of the filing of the complaint for arbitration, then appointed in accordance with AAA rules);
(ii) the arbitrators will apply the law chosen above;
(iii) the prevailing party will be entitled to recover, in addition to any other amounts awarded, its reasonable attorney’s fees, costs, and expenses;
(iv) the costs of the Arbitration (other than the parties’ costs and expenses) will be allocated among the parties in the discretion of the arbitrators; and
(v) the decision of the arbitrators will be in a writing stating the facts and law upon which the decision rests and will be given no later than ten (10) days following the conclusion of the necessary hearings. The Arbitration award will be final, nonappealable, and bind the parties, and any court having jurisdiction can enter judgment upon the award.
(e) ASSIGNMENT. This Agreement is not assignable or otherwise transferable (including by operation of law, merger, or other business combination) by User without the prior written consent of ActiveCollab; provided, however, no consent of ActiveCollab shall be required for a transfer or assignment by User to any Affiliate of User or to any person or entity that acquires all or substantially all of the equity or assets of User (including by operation of law, merger, or other business combination), provided that, in order for such assignment to be effective, User shall provide ActiveCollab with written notice of such assignment or transfer as soon as practicable following the closing of such assignment or transfer.
(f) INDEPENDENT CONTRACTORS. The parties are independent contractors. Nothing contained in this Agreement will be construed or implied to create an agency, partnership, or joint venture between the parties. At no time will either party make commitments or incur any charges or expenses for or on behalf of the other party.
(g) THIRD PARTY BENEFICIARIES. This Agreement is intended to be for the sole and exclusive benefit of the parties hereto, ActiveCollab’s suppliers, and their respective successors and permitted assigns. Nothing contained in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy, or claim under or in respect to this Agreement or any provision herein contained.
(h) SEVERABILITY. If any provision or portion thereof of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force.
Article IV.12 – Age and Competence
By using the Software, User, if an individual, represents and warrants to ActiveCollab that, if an individual, he or she is over the age of 16 or has parental or guardian consent, and that User’s use of the Software will not violate applicable law as a result of User’s age or competence. If ActiveCollab reasonably believes that a User has not accurately represented his or her age, ActiveCollab may suspend such User’s use of the Software and terminate this Agreement unless and until such User has provided ActiveCollab with acceptable proof of age. Any parent or guardian of a User that believes ActiveCollab may have inadvertently collected personal information from his or her child under the age of 16 should notify ActiveCollab immediately at the email address set forth herein detailing the basis of such belief and request. If you are a teacher and want your students who are under the age of 16 to use the Software, you agree that you are responsible for complying with the U.S. Children’s Online Privacy Protection Act and the Family Educational Rights and Privacy Act. In compliance with these acts, you agree to notify the students’ parents or guardians of the personal data ActiveCollab will collect and you agree to obtain parental or guardian consent before your students use any of the Software. If you are located outside of the United States, you agree to obtain any required consents or approvals covered by similar laws of other jurisdiction.
User acknowledges and agrees that, by using the website, ActiveCollab may retain certain information of User, including User’s email address and user ID, IP address, billing information (name and contact information), payment address and payment details (credit card or bank account information) for invoicing and tracking, product functionality, authorization, task access log and reporting, regardless of whether User pays for any Software hereunder. Any User request for ActiveCollab to delete such User’s email address or user identification will materially harm User’s use of the Software. User agrees to inform and receive consent from any employees or other persons if User uses such employee’s or other person’s email address or other identifying information as User’s identification for tracking purposes hereunder. In addition, ActiveCollab may require certain information be disclosed by User for invoicing purposes and in order to comply with applicable law, including, without limitation, Value Added Tax ID numbers and other verification process information, including, without limitation, billing information (name and contact information), payment address and payment details (credit card or bank account information), which information User agrees to make available to ActiveCollab from time to time and authorizes ActiveCollab to use and possess in its sole discretion for invoicing purposes and in order to comply with applicable law. User agrees to provide to ActiveCollab its email and user name for purposes of communication and support. ActiveCollab may request User’s password in order to provide User with support, which password User agrees can be used by ActiveCollab in remedying the problem and deleted within 7 days of ActiveCollab’s resolution of such User request.
In reliance on a legitimate interest, ActiveCollab may request additional information from User during User’s use of the Software in order to create a personalized experience for such User from time to time.
Pursuant to the GDPR, the obligations of data controllers are distinguished from data processors. A data controller means “the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data” and a data processor means “a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.” User acknowledges and agrees that, unless otherwise explicitly provided herein, User is the data controller of all data and information provided by User or associated with User’s use of the Software, including, without limitation, any data imported from any third-party site, application, or software that is integrated with the Software.
Any feedback, comments, or stories posted or submitted by User regarding ActiveCollab or the Software will be published by ActiveCollab with User’s consent. User may withdraw its consent from time to time, and within a reasonable amount of time of such request, ActiveCollab shall delete or destroy any of such information. After termination of this Agreement in accordance with its terms, any discussion or comments, along with tasks and projects, created or submitted by User during use of the Software will be retained. However, such data will undergo an appropriate process of anonymization. Some of the retained data collected while offering Support Services will be used, in anonymized form, for the improvement of the Software.