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END USER LICENSE AGREEMENT

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 License 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") and is a legal agreement between you (either as an individual or as the representative of the legal entity on whose behalf you are acting) (the "Customer") and Tempo Software Inc., a Delaware Corporation with a principal address of 31 St. James Ave. Boston, MA 02116 ("Tempo"), governing Customer’s use of the version of Tempo’s proprietary  products and services purchased by Customer, along with any documentation and any patches, fixes and updates to such services provided to Customer by Tempo from time to time (collectively, the "Hosted Services").

The terms of this Agreement govern Customer's access and use of the Hosted Services, except to the extent there is a separate signed agreement between Customer and Tempo governing 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 License Agreement.

 

1. License Grant, Rights and Restrictions
 
1.1.     Subject to the terms and conditions set forth in this Agreement, Tempo grants Customer a non-exclusive, non-transferable, non-sublicensable, limited right to (i) access the Hosted Services and (ii) use the Hosted Services only in accordance with the documentation for the Hosted Services that may be provided to Customer, in electronic format or otherwise, in each case for use only within Customer’s internal business operations.

 

1.2.     Customer will ensure that neither Customer nor any of Customer’s employees, contractors or agents allow any person or entity other than the person entering into this Agreement on Customer’s behalf access to Hosted Services. Customer shall immediately notify Tempo upon its knowledge or belief that such Hosted Services are or may be being used in violation of this Section 1.2 or is otherwise being used in connection with a breach of this Agreement.

 

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

 

1.4.     If Customer makes any suggestions, comments, enhancement requests, recommendations or provides any other feedback to Tempo regarding the Hosted Services or any other matter, Tempo has and will have the right, without any requirement to compensate 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 Tempo.

 

1.5.     Customer will not directly or indirectly (a) copy, display, distribute, or otherwise use the Hosted Services in any manner or for any purpose not expressly authorized by this Agreement; (b) 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; (c) reverse engineer, decompile, translate or disassemble the Hosted Service; (d) 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; (e) use, rent, or lend the Hosted Services license in connection with a service bureau, time-sharing, ASP or similar arrangement; (f) use the Hosted Services in any way that violates any individual's privacy; (g) modify, incorporate into or with other software or services any part of the Hosted Services; (h) create or disseminate performance information or analysis (including, without limitation, benchmarks) relating to the Hosted Services; (i) upload or download any software, data or information except as may be expressly permitted under Section 1.1; (j) 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 Tempo’s services; (k) use or rely on the Hosted Services, including any reports generated by the Hosted Services, in connection with the development by Customer of any programs, writings, or works, or in connection with the production of products or the performance of services for third parties; or (l) 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.  Customer will promptly notify Tempo of any complaints or objections to Customer’s use of the Hosted Services.

 

1.6.     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 license rights expressly granted to Customer in Section 1.1, and except as provided in Section 1.7, Tempo and its licensors (if any) retain all ownership rights in and title to the Hosted Services.

 

1.7.     The Hosted Services may include certain open-source software and other freely available software and material ("Excluded Components").  Tempo 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 license and/or notice provided by the third party authors, contributors and suppliers of the Excluded Components (the “Suppliers”), and Tempo has no responsibility or liability of any kind related to such Excluded Components.  The Suppliers' licenses and other notices (including instructions for obtaining source code for certain Excluded Components), may be available in the documentation accompanying the Hosted Services.  Customer agrees to comply with all such licenses and other notices. Further, and notwithstanding any of the terms of this Agreement or any other agreement Customer may have with Tempo:

 

(a) 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
 
(b) 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.

 

1.8.     Tempo may collect usage data and information regarding Customer’s use of the Hosted Services including, IP Address, location data, browser information, etc. (collectively, “Usage Data”). All Usage Data shall be owned by Tempo. Usage Data shall be maintained pursuant to Tempo’s Privacy Notice available at https://www.tempo.io/privacy-policy (“Privacy Notice”). If Customer is subject to EU Data Protection Law (e.g., the General Data Protection Regulation (GDPR)), Customer agrees to execute the Data Processing Amendment available at: https://www.tempo.io/data-processing-agreement.

 

1.9.     Tempo 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 Customer by Tempo will be considered “Hosted Services” subject to the provisions of this Agreement; provided that Tempo may, in its sole discretion, license any Improvements (including but not limited to a new version of Hosted Services) on separate, different or additional terms (including for an additional fee).

 

1.10.     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.

 

2. Term and Termination
 
2.1.     This Agreement will commence on the Effective Date and will continue until the earlier of (a) termination pursuant to the terms of this Agreement, or (b) Tempo and Customer entering into a further agreement that expressly supersedes this Agreement.

 

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

 

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

 

2.4.     Upon termination of this Agreement, (a) Customer will immediately cease all use of the Hosted Services; and (b) Tempo will delete any confidential information of Customer then on Tempo’s servers; provided that, if termination occurs for any reason other than Customer’s breach, Tempo may retain such information subject to Tempo and Customer agreeing separately on the terms under which Tempo would retain such information. Termination of this Agreement will not prevent either party from pursuing all available legal remedies that accrued prior to termination, nor will it relieve Customer of any obligation to make payments that accrued prior to termination. The parties' rights and obligations under Sections 1.2, 1.3, 1.4, 1.5, 1.6, 1.10, 2.4, 3, 5, 6, 7, 8, 9 and 10 of this Agreement will survive termination of this Agreement.

 

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

 

3. Payments

Customer agrees to pay Tempo all amounts required to be paid (a) upon placing an electronic order for a license, or (b) under the terms of any signed agreement between Customer and Tempo governing Customer's use of the Hosted Services. No failure by Tempo to request any payment or to demand any performance will be deemed a waiver by Tempo or a waiver of Tempo’s right to terminate this Agreement in accordance with its terms.

 

4. Equipment

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 Tempo’s documentation. Customer shall also provide, at its own cost and expense, all connections from its computer systems to the Hosted Services.

 

5. Confidentiality

The Hosted Services contain certain information that Tempo considers either proprietary, confidential, or both (collectively, "Confidential Information").  In addition, during the term of this Agreement Tempo may also disclose to Customer certain other Confidential Information. Customer will hold Tempo’s Confidential Information in confidence and will use its best efforts to protect it. Customer will use such Confidential Information for the sole purpose of performing its obligations under this Agreement.  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 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 Customer that is no less protective of such Confidential Information than this Agreement.  Upon request of Tempo, Customer will provide Tempo with reasonable evidence of such written confidentiality agreement.  Upon termination of this Agreement, Customer will either return to Tempo all Confidential Information in its possession (including all copies) or will, at Tempo’s direction, destroy all Confidential Information (including all copies) and Customer (or in the case of a Customer that is an entity, an officer of Customer) will certify its destruction to Tempo.  The foregoing obligations of confidentiality and non-use will not apply to any Confidential Information that Customer can show, by competent evidence: (a) is publicly known at the time of disclosure or enters the public domain following disclosure through no fault of Customer; or (b) Customer can demonstrate was already in its possession without restriction prior to disclosure under this Agreement.  Customer may disclose Confidential Information upon the order of any competent court or government agency, provided that, prior to such disclosure Customer will, unless prohibited by law, inform Tempo of such order and provide Tempo with reasonable assistance to prevent or limit such disclosure. Customer agrees that its obligations under this Article are necessary and reasonable in order to protect Tempo and its business, and that monetary damages would be inadequate to compensate Tempo for any breach by Customer of such obligations.  Accordingly, Customer agrees and acknowledges that any such breach or threatened breach will cause irreparable injury to Tempo and that, in addition to any other remedies that may be available at law, in equity or otherwise, Tempo will be entitled to seek injunctive relief against the continued breach or threatened breach of Customer's obligations under this Section 5 without the necessity of proving actual damages.

 

6. Customer Representations and Warranties

Customer represents and warrants to Tempo that:

6.1.     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

 

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

 

7. Disclaimer of Representations and Warranties
 
7.1.     Tempo 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 Tempo’s documentation for the Hosted Services in place as of the Effective Date when used as specified in that documentation. Tempo shall have no obligations under this warranty if the nonconformity is not reported to Tempo during the Warranty Period. Customer’s sole remedy and Tempo’s sole obligation with respect to any breach of the foregoing warranty is to use commercially reasonable efforts to repair the Hosted Services. If Tempo is unable to remedy the nonconformities within a reasonable time, Customer may terminate the license and this Agreement (subject to the survival of the provisions set forth in Section 2.4). Tempo 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 Customer’s systems or any hardware. 

 

7.2.     EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 7.1, THE HOSTED SERVICES AND ANY MATERIALS PROVIDED BY OR ON BEHALF OF TEMPO ARE PROVIDED ON AN "AS IS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TEMPO DISCLAIMS ALL WARRANTIES, ORAL OR WRITTEN, WHETHER EXPRESS OR IMPLIED.  NEITHER TEMPO NOR ANY OF ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR LICENSORS WARRANTS THAT THE HOSTED SERVICES WILL MEET CUSTOMER'S NEEDS, THAT ALL ERRORS WILL BE CORRECTED OR THAT DATA WILL NOT BE LOST.  TEMPO 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, (a) Customer’s use of the Hosted Services is at Customer’s sole risk, (b) 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 (c) Tempo cannot guarantee and does not guarantee said accuracy.

 

8. Limits of Liability
 
8.1.     THE CUMULATIVE AGGREGATE LIABILITY OF TEMPO TO CUSTOMER RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE FEES, IF ANY, PAID TO TEMPO FOR THE HOSTED SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.  IN NO EVENT WILL TEMPO BE LIABLE TO 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 TEMPO 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.

 

8.2.     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.

 

9. Notices

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: (a) immediately, if delivered personally; (b) one (1) business day after dispatch by nationally recognized overnight courier; or (c) five (5) business days after dispatch by certified U.S. mail, postage prepaid and return receipt requested.  All notices will be sent to Customer at the email address entered in the registration form. Notices to Tempo will be sent to:                                 

Tempo Software Inc.

31 St. James Ave.

Boston, MA 02116

 

10. General

10.1.     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.
 
10.2.     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 Tempo.  Any purported assignment or transfer that does not conform to the provisions hereof will be void.
 
10.3.     This Agreement will be governed by the laws of the Commonwealth of Massachusetts, without regard to any conflicts-of-law principle that would require or permit the application of the substantive law of any other jurisdiction.  Sole and exclusive jurisdiction and venue over any action, suit or proceeding arising out of or relating to this Agreement in any manner will lie in the United States District Court for the District of Massachusetts, Boston Division, or the Suffolk County Superior Court, Superior Court Department of the Trial Court of Massachusetts.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.  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 Tempo for any violation thereof.
 
10.4.     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.
 
10.5.     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.
 
10.6.     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.
 
10.7.     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.
 
10.8.    Neither party will be deemed to have waived any term, condition, or other provision hereof or to have consented to any breach hereof by the other party unless such waiver or consent is in writing and executed by a duly authorized 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 express or implied, will constitute a consent to, waiver of or excuse for any different or subsequent breach.
 
10.9.     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.
 
10.10.    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.
 
10.11.     The terms of this Agreement may be enforced by license registration and other software or hardware tools.