Datacor Terms & Conditions

These Terms govern the purchase, license and use of all Datacor Products and Services.  Capitalized terms used herein are defined in Section 1 below. 

1.       DEFINITIONS

“Affiliate” means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, a Party.

“Agreement” means these Terms, any Order(s), any Statement(s) of Work, and any attachments, exhibits and annexes hereto or to an Order or a Statement of Work, as each may be amended or supplemented from time to time in accordance with these Terms.

“Authorized User(s)” means individual user(s) authorized by the Customer to access and use the Software who have been supplied with user credentials by Customer or by Datacor at Customer’s request.

“Business Day(s)” means the standard days of business of Datacor, excluding local and national holidays.

“Business Hours” means standard open hours for business during Business Days, typically 9:00 a.m. to 5:00 p.m.

“Concurrent User License” means a License that is based on a maximum number of Concurrent Users.

“Concurrent User(s)” refers to the number of Authorized Users of Customer who may access and use the Software at the same time under such Customer’s License.

“Customer” means the customer that has purchased Datacor Products and/or Services.

“Customer Data” means the Customer’s business and/or personal data that is provided by Customer to Datacor in connection with the Products and Services.

“Datacor” means Datacor, Inc. and its wholly-owned subsidiaries, including but not limited to, Applied Flow Technology LLC; Baytek LLC; Chemcad LLC; Format Solutions, Inc.; and TrackAbout, Inc.

“Documentation” means official Product information manuals containing operating instructions and performance specifications that Datacor makes available to Customer, whether in print or online. Documentation does not include marketing materials.

“Intellectual Property” means all intellectual property, including without limitation, know-how, inventions, patents, copyrights, trade secrets, and any other intellectual property and any tangible embodiments thereof.

“Intellectual Property Rights” means rights recognized by any jurisdiction with respect to Intellectual Property, such as patent rights (including priority rights), design rights, copyrights (including moral rights), mask work rights, trade secret rights, trademarks, service marks, know-how and domain name rights.

“License” means a license to use the Software, including an Academic License, Subscription License, or Trial License, as applicable.

“Named User License” means a License that is based on a maximum number of Named Users.

“Named User(s)” refers to the number of individual named Authorized User(s) of the Customer that are authorized to access and use the Software under such Customer’s License.

“Order” means an Order Form, Quotation or Purchase Order for Datacor Products and/or Services.

“Party” or “Parties” means Datacor and the Customer.

“Products” means Datacor’s products, including Software, as specified on Customer’s Order.

“Services” means Datacor’s services, including maintenance, support, implementation and other professional services, as specified on Customer’s Order or Statement(s) of Work.

“Software” means Datacor’s proprietary commercial software, as specified on Customer’s Order.

“SOW” or “Statement of Work” means a statement of work for the provision of Services.

“Subscription License” means a license to use the Software for a period of time and subject to payment of the fees set out in the Order.

“Terms” means these Terms and Conditions.

“Third-Party Product” means any product (e.g., software), tool (e.g., integration or development tools) or service (e.g., implementation, configuration, development, or accounting) provided by a party other than Datacor (a “Third-Party Provider”).  This includes, without limitation, any applicable third-party payment(s) solutions; cloud and hosting services; the DIPPR Database; third-party content regarding ingredients, recipes, formulations or calculations; and any other third-party products included in, or made available in connection with, the Products and Services.

“Trial License” means a license to use the Software for a limited time only for the purpose of evaluating and testing the Software for purchase, excluding any competitive, commercial or production use.

Other capitalized terms have the respective meanings given to them elsewhere in this Agreement.

2.                 LICENSE TERMS

2.1     License. Subject to the restrictions set forth in Section 2.3, Datacor grants Customer a personal, non-sublicensable, non-exclusive, non-transferable license to use the Software and Documentation solely for Customer’s internal business purposes. Except for the limited license rights expressly granted in this Agreement, Datacor reserves all rights, title, and interest in and to the Software and Documentation and any modifications thereto.  Unless otherwise specified in the Order, the license is a Concurrent User License. For any Concurrent User License, the maximum number of Concurrent Users allowed to use the Software at any time may not exceed the quantity indicated in the Order. For any Named User License (as specified in the Order), (i) the quantity in the Order refers to Named Users, and the Software may not be accessed by more than that number of Named Users, (ii) each Named User’s credentials may not be shared with any other individual, and (iii) a user identification may only be reassigned to a new named individual replacing a Named User who will no longer use the Software.

2.2        Authorized Users. Authorized Users must be employees of Customer; provided, that Customer may designate a third-party contractor or other non-employee representative as an Authorized User with the advance written consent of Datacor.  Any Authorized User may operate the Software on the Customer’s behalf provided that: (i) the Customer is responsible for ensuring that such Authorized User abides by and fully complies with the terms of this Agreement, (ii) such use is only in relation to Customer’s directly beneficial internal business purposes and will terminate when such user is no longer an Authorized User; and (iii) Customer is fully liable for any and all acts or omissions by such Authorized User.  Authorized Users shall be located in the United States and other countries authorized by Datacor in writing. 

2.3     License Restrictions.  Customer shall not, except with Datacor’s prior written consent or as expressly permitted by this Agreement or the Documentation: (i) decompile, disassemble, or reverse engineer the Software; (ii) alter, modify or create any derivative works based on the Software or Documentation; (iii) combine, merge or integrate the Software with any other software, including any open source software; (iv) use, copy, sell, resell, license, distribute, disclose, sublicense, lease, rent, transfer, or otherwise make available, the Software or Documentation to or for the benefit of any third party; (v) allow any service provider or other third party to use or execute any software commands that cause the Software to perform functions that facilitate the maintenance or repair of the Software; (vi) gain access to or the use of the Software or any part thereof without authorization from Datacor, including via remote tools, cloud technology, virtual systems, distributed systems, component object model (COM) interfaces, automation services, or other resources that would allow access to the Software by third parties; (vii) interfere with or bypass features that limit or monitor the number of active users; (viii) enable or activate, or cause, permit or allow others to enable or activate any logins reserved for use by Datacor; (ix) frame or mirror the Software or any part thereof; (x) access the Software or Documentation or any Product or part thereof to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics, (c) copy any ideas, concepts, features, functions or graphics, or (d) determine whether the Software or any Product is within the scope of any patent; or (xi) permit or encourage any Authorized User or third party to do any of the foregoing. In no event shall Customer (i) input all or any part of the Software or Documentation or any Datacor Confidential Information into any machine learning or artificial intelligence tools, (ii) modify or disable or otherwise “crack” any feature incorporated in the Software, including security features; or (iii) use the Software in a manner or for any purpose that is illegal or results in violation of applicable laws or regulations, or infringes the rights of any third party.  To the fullest extent permitted by law, Datacor reserves the right to employ security and other measures to monitor the usage of the Software and to review such usage to ensure compliance with these Terms. During the term of the Agreement and for a period of two years thereafter, at Datacor’s expense and upon reasonable prior written notice to Customer, not more than once per year, Datacor may conduct a third-party audit of Customer’s related books and records to confirm such compliance. Customer shall indemnify, defend and hold harmless Datacor from and against any claims, damages, losses, expenses, or costs resulting from non-compliance with this Section 2.3. In addition, notwithstanding anything to the contrary contained herein, Datacor may, with immediate effect, suspend or terminate the License and exercise all available rights and remedies if Customer breaches the foregoing license limitations or restrictions and such breach (if curable) remains uncured after five (5) days’ notice.

2.4     Additional Restrictions for Trial and Academic Licenses.  Notwithstanding the foregoing, for Trial Licenses, the Software may only be used for the purpose of testing and evaluating the Software for purchase, and not for competitive, commercial, or monetary purposes. If the License is an Academic License (as defined below), the Software may only be used for educational purposes and Authorized Users must be Academic Users (as defined below). Neither Customer nor any Academic User may use the Software for any circumstances under which an Academic User or the Customer is compensated in any way, including by means of a professor’s consulting engagement or a graduate student’s paid project, with the exception of projects where (i) the totality of work will be non-confidential and published to the public domain, and (ii) Datacor has given its prior written approval. Subject to certain limitations set forth by Datacor in writing, professors may distribute software installation files provided by Datacor to students in order to download the Software installation file. When a student ceases to be an Academic User, Customer shall promptly notify Datacor and make reasonable efforts to require that such installation files be disabled or deleted.  “Academic License” means a license to use the Products for non-commercial purposes in an academic setting. “Academic User” means a then-currently enrolled student (graduate or undergraduate, part-time or full time), instructor, associate professor, assistant professor, or professor of a customer with an Academic License.

3.       SERVICES

3.1.   Standard Maintenance and Support.  The License includes standard maintenance and support for the Software, including access to general releases and technical support during Business Hours (“Standard Maintenance”). Standard Maintenance does not include customized application development, software programming support, step by step instructions for software configuration, or implementation support above and beyond general usage questions. Such add-on services may be available pursuant to a separate Order or SOW. Customer is responsible to timely implement any updates to the Software provided or made available by Datacor.  Datacor will have no obligation to provide Standard Maintenance, or any other Services in connection with the Software, if: (i) the Software is provided under a Trial License; (ii) any payment from Customer is past due; (iii) Customer is in breach of this Agreement; (iv) Customer’s version of the Software is a version other than the most current version; (v) the Software has been modified by or on behalf of Customer by anyone other than Datacor; (vi) Customer is using the Software other than in accordance with the applicable Documentation or this Agreement; or (vii) if providing maintenance or other Services would constitute a violation of applicable law, including United States export regulations. For Academic Licenses, only Customer’s designated maintenance point of contact may contact Datacor in connection with maintenance requests.

3.2       Additional Services. Datacor will provide implementation, customization, and additional Services beyond Standard Maintenance as described in a SOW (“Add-on Services”). If the terms related to any Add-on Services as set forth in an SOW are in conflict with these Terms, then the terms of the SOW shall control with respect to such conflict. Customer will cooperate with Datacor as reasonably necessary for Datacor’s performance of Add-on Services, including, if applicable, providing Datacor with interface and other information regarding access to Customer’s network, access to competent and responsive personnel, and any necessary third-party consents and licenses to enable Datacor’s performance under the SOW.  If Customer fails to meet its cooperation obligations under this Section 3.2 or as otherwise provided in the SOW, Datacor may delay or suspend its delivery of Products or performance of Services relating to such failure upon written notice to Customer.

3.3     Service Warranties.  The warranty period for Add-on Services will be thirty (30) days from the performance of the Add-on Service (the “Warranty Period”). During the Warranty Period, Datacor warrants to Customer that the Add-on Services (i) will be carried out in a professional and workmanlike manner by qualified personnel; and (ii) will conform in all material respects to the specifications contained in the SOW.  If Datacor has not performed the Add-on Services in conformance with the above warranty, and Datacor receives written notice from Customer within the Warranty Period that identifies the non-conforming Add-on Services in reasonable detail and requests Datacor cure the non-conformity, Datacor will re-perform the applicable non-conforming Add-on Services. If Datacor is unable to re-perform the applicable Add-on Services or determines that re-performance is not commercially reasonable, either (i) for pre-paid Add-on Services, Datacor will refund to Customer any unearned prepaid fees for the non-conforming Add-on Services, less any reimbursable expenses incurred by Datacor; or (ii) in the case of Services provided on a time and materials basis, Customer may cancel the affected Add-on Services, subject to payment of fees for the Add-on Services already performed, plus any reimbursable expenses incurred by Datacor. THE REMEDIES SET FORTH IN THIS SECTION 3.3 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, AND WILL BE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES CUSTOMER MAY HAVE AGAINST DATACOR, WITH RESPECT TO NON-CONFORMANCE OF ANY SERVICES. Notwithstanding the foregoing, the Warranty Period shall terminate upon written acceptance by Customer of any Services.  If requested by Datacor, Customer agrees to promptly sign and return an acceptance certificate or other document evidencing acceptance upon successful completion of Add-on Services.

3.4 NO OTHER SERVICE WARRANTIES; DISCLAIMERS.  DATACOR PROVIDES NO OTHER WARRANTIES RELATED TO THE SERVICES EXCEPT AS SET FORTH IN SECTION 3.3.  WITHOUT LIMITING THE FOREGOING, SERVICES PROVIDED TO ENHANCE NETWORK SECURITY ARE NOT A GUARANTY AGAINST MALICIOUS CODE, DELETERIOUS ROUTINES, AND OTHER TECHNIQUES AND TOOLS EMPLOYED BY COMPUTER “HACKERS” AND OTHER THIRD PARTIES TO CREATE SECURITY EXPOSURES. NEITHER DATACOR NOR ITS SUPPLIERS MAKE ANY WARRANTY, EXPRESS OR IMPLIED, THAT ALL SECURITY THREATS AND VULNERABILITIES WILL BE DETECTED OR THAT THE SERVICES WILL RENDER CUSTOMER’S NETWORK OR ANY PARTICULAR NETWORK ELEMENTS SAFE FROM INTRUSIONS AND OTHER SECURITY BREACHES.

4.         FEES AND PAYMENTS

4.1        Fees. Unless otherwise provided in the Order, Customer has purchased a Subscription License for the initial subscription period specified in the Order, and if no multi-year period is specified in the Order, the initial subscription period is one year, payable in advance. After the initial subscription period, the License will automatically renew for one year renewal periods until terminated in accordance with these Terms.  The initial fees are set forth in the Order. From time to time, Datacor may change its fees. Customer will be notified at least thirty (30) days in advance of any fee changes. Unless otherwise set forth in an Order, such changes will not affect the prices during the then-current subscription term and will become effective upon the next renewal term that commences at least thirty (30) days after notification of the fee change.  One-time and Add-on Service fees will be as set forth in the Order or SOW.  All fees are non-refundable except as otherwise expressly provided herein.

4.2 Invoicing.   Datacor will invoice the Customer as provided in the applicable Order or SOW. Unless otherwise provided in the Order, payment of invoices is due within thirty (30) days of the date of Datacor’s invoice. Customer will pay all bank charges, taxes, duties, levies and other costs and commissions associated with other methods of invoicing and payment. Customer is responsible for providing complete and accurate billing and contact information to Datacor and providing timely notice of any changes to such information.

4.3       Overdue Payments. Datacor may immediately suspend the License, use of any Products and/or performance of any Services for which payment is overdue until the overdue amount is paid in full. Overdue payments will be subject to a late payment charge of the lesser of one and one half percent (1.5%) per month or the maximum rate allowed by applicable law. Customer will reimburse Datacor for reasonable attorneys’ fees and any other costs associated with collecting overdue payments.

4.4    Taxes. Unless Customer provides Datacor with a current tax exemption certificate, Customer is solely responsible for paying all legally required taxes, including without limitation any sales, excise or other taxes and fees which may be levied upon the sale, transfer of ownership, license, installation, or use of the Products, except for any income tax assessed upon Datacor. If applicable, VAT will be reverse charged to the Customer. In the event Datacor must initially pay such assessments, the Customer will reimburse Datacor within thirty (30) days after receipt of an invoice.

4.5      Changes. If, during a subscription term, (i) Customer adds licenses, such increased volume will be billed at a pro-rated amount at the price of the underlying preexisting subscription, and (ii) Customer adds new Products, such Products will be billed at a prorated amount at the then-current list price.  To reduce licenses or Products, Customer must provide Datacor with notice at least ninety (90) days in advance of the commencement of the next renewal term.  Such reduction will take effect upon commencement of the next renewal term and may result in a price adjustment for the remaining licenses or Products.  Changes to Services provided under an SOW must be made in accordance with the change control procedure in the SOW.  If there is no procedure in the SOW: (i) Datacor will respond promptly to Customer’s change requests by identifying the impact of the proposed change on resources, schedules and pricing; (ii) Datacor may identify a need for a change in scope or schedule and will submit a change request to the Customer which identifies the impact on the schedule and/or the pricing, and (iii) changes will be valid only where agreed in writing by both Parties.

4.6  Reimbursable Expenses. Customer agrees to reimburse Datacor for all out-of-pocket expenses incurred by Datacor in performance of Services provided under an SOW, subject to Customer’s approval in advance. These expenses are agreed to be, but not limited to, the reasonable cost of transportation, meals, and lodging. Customer shall also reimburse Datacor for the labor cost involved in transportation to and from Customer at one half the current applicable billing rate. All such expenses shall be reimbursed within thirty (30) days after receipt by Customer of detailed invoices rendered by Datacor.  

5.     TERM AND TERMINATION

5.1    Term.  These Terms will remain in effect for so long as any Order or SOW hereunder remains in effect.  Any Order or SOW may be terminated only as set forth in Section 5.2.  

5.2.   Termination. Either Party may terminate an Order and/or any SOW: (i) by written notice to the other Party effective immediately upon receipt, if the other Party fails to cure any material breach of this Agreement within a thirty (30) day period after having received a written notice from the non-breaching Party detailing the breach and requesting the breach be cured; or (ii) by written notice to the other Party of non-renewal, effective as of the end of then-current subscription period, delivered at least 90 days prior to the end of the then-current subscription period.  Trial Licenses will terminate on the date set forth in the Order or if no date is set forth in the Order, after thirty (30) days. 

5.3    Effects of Termination.  Upon termination of any Order or SOW, Customer shall immediately stop using the related Products and/or Services. ANY CUSTOMER DATA AND/OR CUSTOMIZATIONS MAY BE PERMANENTLY LOST UNLESS CUSTOMER CONTINUES TO PURCHASE A SUBSCRIPTION. IF CUSTOMER DISCONTINUES ITS SUBSCRIPTION, CUSTOMER MUST EXPORT ALL DATA BEFORE THE END OF THE SUBSCRIPTION PERIOD OR SUCH CUSTOMER DATA WILL BE PERMANENTLY LOST. The provisions concerning confidentiality and limits on liability (as well as any other terms which, by their nature, are intended to survive termination or expiration) of this Agreement will survive any termination or expiration of this Agreement and/or any related Order or SOW.

6.         INTELLECTUAL PROPERTY RIGHTS

6.1       Customer IP. Customer retains all rights, including, but not limited to, ownership, title, Intellectual Property Rights and all other rights and interest in and to any Intellectual Property that Customer makes available to Datacor as Customer Data (collectively “Customer IP”).  Customer grants Datacor a license to use the Customer IP to provide the Products and Services to Customer, and as otherwise may be expressly authorized by Customer, including as set forth in Section 7 below.

6.2     Datacor IP.  Datacor retains all rights, including, but not limited to, ownership, title, Intellectual Property Rights and all other rights and interest in and to the Software, the Documentation, and any other Intellectual Property that Datacor owned prior to the date of this Agreement, any Intellectual Property that Datacor develops, creates or acquires independently of this Agreement, and any Intellectual Property that Datacor develops, creates or acquires (excluding Customer IP) while providing Products or performing Services under this Agreement.

6.3     Feedback. If Customer provides Datacor with ideas, suggestions, requests, recommendations, or feedback about the Software and/or Services (“Feedback”), Customer grants Datacor a non-exclusive, worldwide, perpetual, irrevocable license to use, reproduce, incorporate, disclose, and sublicense the Feedback for any lawful purpose.

7.   CONFIDENTIALITY; DATA PROCESSING

7.1   Confidentiality.   Each Party will treat all Confidential Information (as defined below) received from the other Party with the same degree of care as it uses to protect its own similar Confidential Information, but in no event with less than a reasonable degree of care. Neither Party will use or disclose the other Party’s Confidential Information except to perform its obligations or exercise its rights under the Agreement and as otherwise may be expressly authorized by the disclosing Party, including in Section 7.2 below.  “Confidential Information” means either Party’s business and/or technical information, pricing, discounts and other information or data, regardless of whether in tangible or other form, that is reasonably understood to be confidential. Confidential Information of Datacor includes, but is not limited to, the Software, the Documentation, and any non-public information and materials contained in any of the foregoing. Confidential Information excludes information that: (i) is publicly available other than by an act or omission of the receiving party; (ii) subsequent to its disclosure was lawfully received from a third party having the right to disseminate the information without restriction on its dissemination or disclosure; (iii) was known by the receiving party prior to its receipt and was not received from a third party in breach of that third party’s confidentiality obligations; (iv) was independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (v) is required to be disclosed by court order or other lawful government action, but only to the extent so ordered, provided the receiving party provides prompt written notification to the disclosing party of the pending disclosure so the disclosing party may attempt to obtain a protective order. In the event of a potential disclosure in the case of subsection (v) above, the receiving party will provide reasonable assistance to the disclosing party should the disclosing party attempt to obtain a protective order.   The confidentiality obligations of each Party will survive expiration or termination of this Agreement.

7.2     Data Processing. Datacor will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data. Datacor’s collection, processing and use of Customer Data is governed by Datacor’s Privacy Policy, and, to the extent required by applicable laws or regulations, the Datacor Data Processing Addendum.  Datacor may use and share Customer Data to provide the Products and Services to the Customer, to facilitate the administration of Customer’s Third-Party Products, and as may be otherwise authorized by Customer. In addition, Datacor may collect aggregated de-identified Customer Data and/or data resulting from Customer’s use of the Software, such as metadata, performance metrics, and usage trends or volume. Datacor may use such de-identified data for lawful business purposes, including product research, development, and AI innovation. Datacor may disclose Customer Data to its employees, consultants, representatives, advisors and contractors who are under a legal obligation to keep the Customer Data confidential in accordance with this Agreement. Any other disclosure or use of Customer Data by Datacor will be in an aggregated form that does not identify or otherwise permit the identification of Customer, or any Authorized Users or other persons, unless Customer consents to or otherwise or initiates the sharing of its Customer Data.  By using the Products and Services, Customer agrees to such collection and use of Customer Data.

8.       PRODUCT WARRANTIES AND DISCLAIMERS

8.1     Limited Warranty. Subject to the limitations set forth in this Section 8, Datacor warrants that the Products will perform materially in accordance with the applicable Documentation. If a Product is not in conformance with the warranty above and Customer provides Datacor with (i) a written notice describing in reasonable detail how the Product failed to be in conformance, (ii) information in sufficient detail to enable Datacor to reproduce and analyze the failure, and (iii) access to the affected Product, and Datacor cannot bring the Product in conformity with the warranty within thirty (30) days (or such longer period as mutually agreed by the Parties), as Customer’s sole and exclusive remedy, Customer may terminate its Order. THE REMEDIES CONTAINED IN THIS SECTION 8.1 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND WILL BE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES CUSTOMER MAY HAVE AGAINST DATACOR WITH RESPECT TO NONCONFORMING PRODUCTS.

8.2    Exclusions and Disclaimers. The foregoing limited warranty does not extend to any damages, malfunctions, or non-conformities caused by: (i) Customer’s use of Products in violation of this Agreement or in a manner inconsistent with the Documentation; (ii) use of non-Datacor furnished equipment, software, or facilities with the Products (except to the extent provided in the Documentation); (iii) Customer’s failure to follow Datacor’s installation, operation or maintenance instructions; (iv) Customer’s failure to permit Datacor timely access, remote or otherwise, to the Products; (v) failure to implement all new updates in a timely manner; or (vi) Products that have been serviced or modified other than by Datacor. EXCEPT AS REFERENCED AND LIMITED IN THIS SECTION 8, NEITHER DATACOR NOR ITS LICENSORS OR SUPPLIERS MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES WITH REGARD TO ANY PRODUCTS OR SERVICES OR OTHERWISE RELATED TO THIS AGREEMENT. DATACOR DOES NOT WARRANT UNINTERRUPTED OPERATION OF PRODUCTS OR THAT RESULTS WILL BE ACCURATE OR ERROR-FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATACOR DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE WARRANTY AND REMEDIES EXPRESSLY PROVIDED IN THIS AGREEMENT WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES. CUSTOMER WILL NO RELY SOLELY ON, AND EXPRESSLY ASSUMES THE DUTY OF CONFIRMING BY INDEPENDENT MEANS, ANY AND ALL RESULTS OBTAINED FROM USE OF ANY PRODUCTS. SOFTWARE PROVIDED UNDER ANY ACADEMIC LICENSE OR TRIAL LICENSE IS PROVIDED SOLELY AS-IS AND WITHOUT WARRANTIES.

8.3   Third Party and Beta Products. ALL THIRD-PARTY PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITH RESPECT TO ALL THIRD-PARTY PRODUCTS, COMPANY AND ITS LICENSORS AND THIRD-PARTY PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE USE, QUALITY, AND PERFORMANCE OF ANY THIRD-PARTY PRODUCT IS WITH THE CUSTOMER.  From time to time, Datacor may make beta products available to Customer at no charge. Customer may choose to try such beta products or not in Customer’s sole discretion. Beta products are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Products are provided “As-Is” with no warranties or indemnification and are not considered “Products” or “Services” under this Agreement, however, all license restrictions, Datacor’s reservation of rights and Customer’s obligations, shall apply equally to Customer’s use of beta products. Unless otherwise stated, any beta product trial period will expire upon the earlier of one year from the trial start date or the date that a version of the beta product becomes generally available without the applicable beta product designation. Datacor may discontinue beta products at any time in Datacor’s sole discretion and may never make them generally available. Datacor will have no liability for any harm or damage arising out of or in connection with a beta product. 

8.4  Hosting and Cloud Services.  Without limiting the foregoing, for any Software that is hosted or cloud-deployed, the Customer acknowledges that the Software is hosted and/or deployed by a third-party service provider and such Third-Party Services are subject to the terms applicable to such services.  Customer has had an opportunity to request additional information and applicable third party terms.  Datacor is not responsible for any acts or omissions of any third-party service providers.  Customer is responsible for regularly backing up all Customer Data (in a separate environment) in accordance with good business practices and for ensuring that its networks and systems are adequately monitored and secured against unauthorized intrusion.  Customer shall promptly notify Datacor if Customer becomes aware of any such intrusion into its networks or systems.

9.         INDEMNIFICATION

9.1      Indemnification. Datacor will indemnify and defend Customer, at Datacor’s expense, from and against any judgments, approved settlements and court awarded attorney’s fees resulting from a Claim (as defined below). Datacor’s obligations under this Section 9 are conditioned on the following: (i) Customer promptly notifies Datacor of the Claim in writing upon Customer being made aware of the Claim; (ii) Customer gives Datacor sole authority and control of the defense and (if applicable) settlement of the Claim; and (iii) Customer provides all information and assistance reasonably requested by Datacor to handle the defense or settlement of the Claim. For purposes of this Section 9, “Claim” means any cause of action in a third-party action, suit or proceeding brought against Customer alleging that a Product as of its delivery date under this Agreement infringes a U.S. patent, copyright, or trademark.

9.2 Remedial Measures. If a Product becomes, or Datacor reasonably believes use of a Product may become, the subject of a Claim, Datacor may, at its own expense and option: (i) procure for Customer the right to continue use of the Product; (ii) replace or modify the Product; or (iii) refund to Customer a pro-rated portion of any applicable pre-paid fees, in which case Customer will cease all use of the Product and return it to Datacor.

9.3    Exceptions. Datacor will have no defense or indemnity obligation for any Claim based on Third-Party Products or on: (i) a Product that has been modified by someone other than Datacor; (ii) a Product that has been modified by Datacor in accordance with Customer-provided specifications or instructions; (iii) unapproved use or combination of a Product with Third-Party Products; (iv) a Product that is used or located by Customer in a country other than the country in which or for which it was supplied by Datacor; or (v) possession or use of the Product after Datacor has informed Customer of modifications or changes in the Product required to avoid such Claim and offered to implement those modifications or changes, if such Claim would have been avoided by implementation of Datacor's suggestions and to the extent Customer did not provide Datacor with a reasonable opportunity to implement Datacor's suggestions. Customer will defend Datacor against any Claim, and will indemnify Datacor for any judgments, settlements and reasonable attorney’s fees resulting from a Claim to the extent the Claim is based on subsections (i) through (v) above.

9.4     Sole Remedy.   THE FOREGOING STATES DATACOR’S ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PARTY. THE FOREGOING ALSO IS IN LIEU OF, AND DATACOR DISCLAIMS, ALL WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE PRODUCT.

10.         LIMITATION OF LIABILITY

10.1   Consequential Damages. IN NO EVENT WILL DATACOR HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA, COSTS ASSOCIATED WITH A SECURITY INCIDENT OR DATA BREACH, COST OF COVER, OR SUBSTITUTE GOODS OR PERFORMANCE. DATACOR WILL NOT BE LIABLE FOR THE DAMAGES AS INDICATED ABOVE, EVEN IF DATACOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2    Aggregate Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF DATACOR FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE AFFECTED PRODUCT(S) OR SERVICE(S) IN THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ALSO WILL APPLY TO ANY LIABILITY OF DATACOR’S AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND SUPPLIERS.

11.     GOVERNING LAW AND DISPUTE RESOLUTION

11.1   Governing Law. This Agreement and any disputes arising out of or relating to this Agreement (“Disputes”) will be governed by New Jersey State laws applicable to contracts entered into and performed in New Jersey, excluding conflict of law principles.

11.2    Arbitration. Subject to Section 11.3, all Disputes will be finally resolved by binding arbitration pursuant to the Commercial Rules of the American Arbitration Association. Proceedings will be conducted in Florham Park, New Jersey before one arbitrator selected pursuant to those Rules. The arbitrator: (i) will have the authority to determine issues of arbitrability and to consider and rule on dispositive motions; (ii) will have authority to award compensatory damages only and will not award punitive or exemplary damages; and (iii) will not have the authority to limit, expand or otherwise modify the terms of the Agreement. The Parties, their representatives, other participants, and the arbitrator will hold the existence, content and result of arbitration in confidence. Customer will indemnify and reimburse Datacor for reasonable attorneys’ fees and any other costs associated with enforcing its rights under this Agreement. Any actions on Disputes between the parties must be brought within two years after the cause of action arises.  The Parties expressly waive their right to a jury trial and their right to participate in any class action proceedings, to the fullest extent permitted by law.

11.3.   Injunctive Relief. Nothing in this Section 11 will be construed to preclude either Party from seeking provisional remedies, including but not limited to temporary restraining orders and preliminary injunctions from any court of competent jurisdiction in order to protect its rights pending arbitration. Without limiting a Party’s rights otherwise available in law or in equity, the Parties agree that a breach or threatened breach by a party of Sections 2, 6, 7, or 12 would cause the other Party irreparable harm and such Party is entitled to injunctive relief without any bond or security required (or, where a court determines this is unenforceable, a $1,000 bond will be adequate) to bar the offending Party from a breach or threatened breach.

12.       NO SOLICITATION; NON-DISPARAGEMENT

12.1   No Solicitation. During the term of this Agreement and one year thereafter, Customer will not solicit or hire for employment any Datacor employee. In the event that Customer hires any Datacor employee prior to the end of this period either as an employee or independent contractor, Customer will pay Datacor a finder’s fee equal to 100% of the Datacor employee’s last gross annual salary, in addition to any other remedies available to Datacor, at law or in equity.

12.2   Non-Disparagement.  Neither Party will knowingly disparage, criticize, or otherwise make any derogatory statements regarding the other Party, including, but not limited to, in reviews or social media, and in the Parties’ respective official statements, will not and will instruct the members of their respective boards and executive officers not to knowingly disparage, criticize, or otherwise make derogatory statements regarding the other Party. The foregoing will not be deemed to restrict a Party or any of a Party’s current or former officers and/or directors from providing information to any governmental or regulatory agency (or in any way limit the content of any such information) to the extent they are requested or required to provide such information pursuant to applicable law or regulation.

13.           MISCELLANEOUS.

13.1      Marketing.  Datacor may use Customer’s name and logo as a reference for marketing purposes, including disclosing to prospective customers that Customer is a user of the Software; provided, that Datacor will only disclose the name and contact information of Customer’s representative with the written permission of such representative.  Customer may opt out of this provision with written notice to Datacor.

13.2   U.S. Government Matters.  This applies to U.S. Government Customers. The Software and Documentation have been developed at private expense and are licensed subject to RESTRICTED RIGHTS as “commercial items” and according to DFAR are deemed to be “commercial computer software” and “commercial computer software documentation.” Any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

13.3   Force Majeure.  Neither Party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the Party’s reasonable control, including without limitation, pandemics, fire, flood, Act of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute or shortages, government requirement, civil disturbances, civil or military authority, and inability to secure materials or transportation facilities.

13.4   Miscellaneous.  The Parties will observe all applicable laws and regulations, including sanctions, anti-bribery and corruption, export and re-export laws and regulations, related to this Agreement. Datacor may assign this Agreement and any Order or SOW under this Agreement to any of its Affiliates or to any entity to which Datacor may sell, transfer, convey, assign, or lease all or substantially all of the assets, ownership or properties used in connection with its performance under this Agreement. Any other assignment of the Agreement or any rights or obligations under the Agreement without the express written consent of the other Party will be invalid. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof, and supersedes all previous and contemporaneous communications, representations, or understandings, either oral or written, between the Parties relating to that subject matter.  This Agreement will not be contradicted or supplemented by any prior course of dealing between the Parties or any terms and conditions on any customer purchase order that are not expressly set forth in the Order. If any provision of the Agreement is determined to be unenforceable or invalid by court decision, the Agreement will not be rendered unenforceable or invalid as a whole, and the provision will be changed and interpreted so as to best accomplish the objectives of the original provision within the limits of applicable law. The failure of either Party to assert any of its rights under the Agreement, including, but not limited to, the right to terminate the Agreement in the event of breach or default by the other Party, will not be deemed to constitute a waiver by that Party of its right to enforce each and every provision of the Agreement in accordance with its terms. Datacor may modify these Terms by notifying Customer and/or publishing updates to these Terms to its website.  The modified Terms will become effective upon the Customer’s next applicable renewal term or as set forth in the related notice.  Datacor last modified these Terms as of the date set forth below.

Last Updated September 5, 2025

Datacor reserves the right to update these Terms upon providing notice to Customer, which notice may be provided by publishing these Terms to Datacor’s website.  For questions about these Terms, please contact: legal@datacor.com