EAP End User License Agreement

This End User License Agreement (“Agreement” or “EULA”) shall apply to any end user, individual or organization (hereinafter “Licensee”) who participates in Soroco’s Early Adopter Program (“EAP”). These terms shall be effective on the earlier of the Licensee: (a) checking a box or clickwrap indicating acceptance, (b) executing an order form, statement of work or similar ordering document that references this Agreement (“Order”), or (c) using any software or services provided under the EAP Program by Soroco (“Effective Date”).

In the event the Licensee has signed separate terms under a master software license agreement or such similar framework agreement with Soroco (“Master Agreement”), this Agreement shall control and prevail, solely as it relates to the Licensee participation and use of the Software or service provided under the EAP Program. In the event of any inconsistencies between this Agreement and an Order between the Licensee and Soroco, this Agreement shall take precedence over the Order, unless expressly indicated otherwise in such Order. Any terms included in the Licensee’s purchase order, general terms of business or such other document will not be binding on Soroco.

1. Definitions

Affiliate” means, with respect to either party, all entities directly or indirectly controlling, controlled by or under common control with such party, where control may be by either management authority, contract or equity interest.

Confidential Information” means with respect to Soroco information, the Documentation, Software, any results of any testing or analysis of the Software or Documentation by any party, and with respect to either party’s information, all information that: (a) is marked as confidential or proprietary; (b) is disclosed verbally and identified as confidential or proprietary at the time of disclosure; or (c) by its nature is normally and reasonably considered confidential.

Documentation” means the manuals, handbooks, and other written materials related to the Use of the Software, whether in hard copy or soft copy form, that are provided by Soroco along with the Software, and as may be updated by Soroco from time to time.

Software” means Soroco’s proprietary software in machine-readable, object code form only, related Documentation, and all modifications made thereto by Soroco, and any updates or upgrades that Soroco provides to Licensee under this Agreement. 

Use” means the installation, accessing, displaying, and operation of the Soroco Software, as authorized by Soroco.

2. License

Subject to the terms and conditions of this Agreement, Soroco grants Licensee a limited, non-exclusive, non-transferable license to Use the Software only for Licensee’s internal Use in connection with its ordinary business operations, during the license or subscription term agreed under the applicable Order. Licensee may (a) reproduce and install the Software as authorized by Soroco; and (b) reproduce and install up to the number of Licenses Soroco has issued for Licensee. Licensee’s third-party service providers may Use the Software on Licensee’s behalf, provided that Licensee shall be responsible for the acts or omissions of such third-party service providers as if Licensee had acted or failed to act, and provided such third-party service providers are not direct or indirect competitors of Soroco.  

3. Intellectual Property

The Software is licensed, not sold.  Title to the Software and all associated intellectual property rights, including any improvements, modifications or derivative works thereof, whether or not created as result of provision of services to Licensee, are retained by Soroco. All rights in the Software not expressly granted hereunder are reserved. Licensee shall not directly or indirectly modify, enhance, translate, supplement, create derivative works from, reverse engineer, reverse compile or otherwise reduce the Software to human readable form, except as specifically authorized by Soroco in writing.  Except as expressly permitted in this Agreement (and in the case of sub-section (b), as expressly permitted in a writing signed by an authorized officer of Soroco), Licensee shall not cause or permit:  (a) competitive analysis, benchmarking, or the Use, evaluation or viewing of the Software or Documentation for the purpose of designing, modifying, or otherwise creating any software program, or any portion thereof, that performs functions similar to the functions performed by the Software; or (b) any of the following: (i) copying (except as set forth herein), (ii) sublicensing, or (iii) providing access or other dissemination of the Software, in whole or in part, to any third party. No right, title or interest in or to any Soroco trademark, service mark, trade name, or logo of Soroco or its licensors in granted under this Agreement.  

4. Confidentiality

Each party acknowledges and agrees that in performing its obligations, it may have access to valuable trade secrets and Confidential Information of the other party. Neither party shall disclose confidential information to a third party without written consent, except to its or its Affiliates’, officers, employees, directors or subcontractors who are bound by a duty of confidentiality at least as stringent as set forth herein. Each party agrees that it shall take steps reasonably necessary to preserve and protect the confidentiality of the Confidential Information. In addition, confidential information shall include the terms of this EULA and any associated documentation thereto.

Upon request, the receiving party shall destroy or return to the disclosing party all materials containing any of the Confidential Information. A party’s obligation to return or destroy Confidential Information does not apply to the extent: (i) required by applicable law or regulation, or (ii) contained in archived computer system backup made in accordance with the receiving party’s security or disaster recovery procedures, provided in each case that any retained Confidential Information shall remain subject to the confidentiality obligations of this Agreement until so returned or destroyed. The parties acknowledge that unauthorized disclosure of Confidential Information may cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure, the disclosing party shall be entitled to seek appropriate equitable relief, in addition to whatever other remedies it might have at law.

Notwithstanding the provisions of this Section 4, Soroco and its partners may generate and collect learnings, logs and other data associated with use of the Software (including any third-party tools included therewith). Licensee agrees that Soroco may use such data in an aggregated and anonymized form (“Aggregated Data”) for any business purpose during or after the term of this Agreement, including without limitation to develop and improve its products and services, provided the Aggregated Data does not: (i) identify any data as belonging to the Licensee; or (ii) include any personally identifiable information of Licensee’s employees or other representatives. Soroco will delete/destroy any such Aggregated Data at the earlier of: (i) 6 months from the end of the applicable license term; or (ii) any shorter data retention period agreed with the Licensee.

5. License Obligations

Licensee shall: (i) be responsible for Licensee’s users’ compliance with this Agreement, the Documentation and any use limitations specified in the applicable Order; (ii) comply with all applicable laws in connection with Licensee’s performance under this Agreement, including without limitation privacy, export control, and sanction laws; (iii) use commercially reasonable efforts to prevent any unauthorized access to or use of the Software and promptly notify Soroco in the event of any such unauthorized access or use; (iv) have sole responsibility for the accuracy, quality, and legality of all data and materials provided by Licensee; (v) be solely liable for uploading Licensee data and making appropriate backups of such data; (vi) obtain any legally-necessary consents and/or provide required privacy notices to any party whose personal data Licensee inputs into the Software or otherwise provides Soroco; (vii) cooperate with Soroco on any matters relating to professional services as set out in an Order and provide Soroco with prompt feedback to Soroco’s requests; and (viii) in the event professional services are provided on Licensee’s premises, provide Soroco with safe and adequate space, power, network connections, materials, CPU time, access to hardware, software and other equipment and information, and assistance from qualified personnel as Soroco may reasonably request from time to time.

Licensee shall not: (i) use the Software for the benefit of anyone other than itself or its Affiliates, unless expressly stated otherwise in an Order; (ii) send, store or transfer infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including material that violates privacy rights or third-party proprietary rights; (iii) upload, input, access, store, distribute or transmit any malware; or (iv) disassemble, reverse engineer, or decompile the Software to build a competitive product or service or one with similar ideas, features, functions or graphics.

Any use of the Software in contravention to the above may result in: (a) termination for breach in accordance with Section 9; or (b) suspension of the Services if, in Soroco’s sole and absolute discretion, such use threatens the security, integrity or availability of the Software. Soroco shall promptly notify Licensee of any such suspension. Where reasonable to do so, Soroco shall (a) provide such notification in advance; and (b) work with Licensee in good faith to cure the breach prior to suspending Licensee’s access.

6. Warranty

THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND (EXPRESS OR IMPLIED), INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND/OR FITNESS FOR PURPOSE. Soroco may at any time, at its sole discretion, update, upgrade, modify or discontinue all or any portion of the Software provided under this Agreement.

7. Indemnification

Soroco will have no liability for any claim, and Licensee will defend and indemnify Soroco against any claim, to the extent that it would not have occurred but for:  (a) modifications to the Software made by Licensee or a party acting on Licensee’s behalf; (b) the combination, operation or Use of the Software with equipment, devices, software or data not supplied or specified by Soroco  (including without limitation the action of the Software to automate Licensee-selected software or processes); (c) Licensee’s failure to use updated or modified Software provided by Soroco; (d) Licensee’s Use of the Software other than in accordance with this Agreement and the Documentation, or (e) compliance by Soroco with designs, plans or specifications furnished by or on behalf of Licensee.

8. Limitation of Liability


9. Term and Termination

This Agreement is effective as of the Effective Date and shall continue in effect until the end of the applicable license term agreed by the Parties unless sooner terminated by either party in accordance herewith (“Term”). Either party may terminate this Agreement for convenience, upon providing the other party with at least ten (10) days written notice.

Notwithstanding the foregoing, this Agreement may be terminated by either party immediately upon written notice if the other party: (a) becomes insolvent and ceases doing business; or (b) materially breaches any of its obligations under this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice.

Upon the effective date of termination of this Agreement: (a) Licensee’s license to the Software ceases, and Licensee shall immediately remove all copies of the Software from all systems owned or controlled by Licensee, and (b) any and all payment obligations of Licensee will immediately become due. Each party will securely destroy all copies of Confidential Information of the other party in its possession except as required to comply with any applicable legal or accounting record keeping requirement.

10. Payment

The provision of the EAP Software is free of charge, unless otherwise stated in the applicable Order.

11. Miscellaneous

11.1 Third-Party Software.  The Software may contain or be distributed with open-source software or other third-party software that may be covered by a different license.  Soroco’s obligations set forth in this Agreement do not extend to any such software.  Licensee agrees that all such software shall be and shall remain subject to the terms and conditions under which it is provided.  Any such software, and the notices, license terms and disclaimers applicable to such software shall be identified to Licensee from time to time in writing (email or a notice visible within the Software to suffice).

11.2  Records.  Licensee shall maintain records regarding the Use of the Software and shall make such information available to Soroco upon request. Upon reasonable request, Soroco shall have the right to audit Licensee’s Use of the Software to verify compliance with the terms of this Agreement, and Licensee will promptly pay any underpayment discovered in the course of such audit, based on Soroco’s then-current price list, plus interest.

11.3  Governing Law and Jurisdiction.  This Agreement and will in all respects be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws principles, the United Nations Convention on Contracts for the International Sale of Goods and any implementation of the Uniform Computer Information Transactions Act.  Exclusive jurisdiction for litigation of any dispute, controversy or claim arising out of or in connection with this Agreement shall be only in the Federal or State court with competent jurisdiction located in Suffolk County, Boston, and the Parties hereby submit to the personal jurisdiction and venue therein.

11.4  Injunctive Relief.  The Parties acknowledge that any breach of the confidentiality provisions or the unauthorized use of a party’s intellectual property may result in serious and irreparable injury to the aggrieved party for which damages may not adequately compensate the aggrieved party.   The Parties agree, therefore, that, in addition to any other remedy that the aggrieved party may have, it shall be entitled to seek equitable injunctive relief without being required to post a bond or other surety or to prove either actual damages or that damages would be an inadequate remedy.

11.5  Force Majeure.  A party is not liable under any Agreement for non-performance (other than failure to pay) caused by events or conditions beyond that party’s reasonable control, if the party makes reasonable efforts to perform.

11.6  Assignment.  Except as set forth in this Section, Licensee shall not assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations to a third party without Soroco’s prior written consent. Notwithstanding the foregoing, Licensee may assign, without such consent but upon written notice, its rights and obligations under this Agreement to any entity not a competitor of Soroco that acquires all or substantially all of Licensee’s capital stock or its assets related to this Agreement, through purchase, merger, consolidation, or otherwise.   Any other attempted assignment shall be void. This Agreement shall inure to the benefit of and bind each party’s permitted assigns and successors.

11.7  Subcontracting. Soroco may subcontract all or part of any associated services, including implementation services for the Software provided under this Agreement to implementation partners or resellers of Soroco (“Soroco Partner”). Where such Soroco Partner does not have a separate written agreement with Licensee, Soroco will continue to be fully responsible for the performance by Soroco Partner in accordance with this Agreement.

11.8  Publicity. Soroco may publicly reference that Licensee is a customer of Soroco’s products, and may use Licensee’s name and logo on Soroco’s website or for other marketing purposes, provided however, Soroco shall adhere to any logo usage guidelines provided by Licensee in writing. 

11.9  Notices.  Ordinary day-to-day operational communications may be conducted by email or telephone communications.  Any other notice required by this Agreement shall be made in writing and given by (a) personal delivery, (b) prepaid, first class, certified mail, return receipt requested, (c) email (with a duplicate notice sent promptly by one of the other methods in this Section), or (d) courier service of recognized standing (with confirmation of receipt); in any case to the receiving party, “Attention: Legal” at its address as set forth in the heading to this Agreement, or to a different address of which the addressee party has notified the other in accordance with this Section.  Any notice given in conformance with this Section shall be effective upon actual delivery or refusal of delivery.

11.10  Entire Agreement.  This Agreement, together with the Exhibits referenced herein, constitutes the entire understanding between Licensee and Soroco with respect to the subject matter hereof.  No terms or conditions set forth in any purchase order or other document provided by Licensee to Soroco shall be part of any agreement between Soroco and Licensee unless specifically accepted by Soroco in writing. 

11.11  Amendments, Waivers. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party.  Any express waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non-enforcement.

11.12  Severability. There are no third-party beneficiaries to this Agreement. If any provision of this Agreement shall for any reason be held illegal or unenforceable, such provision shall be deemed severable from the remaining provisions of this Agreement and shall in no way affect or impair the validity or enforceability of the remaining provisions of this Agreement, unless such omission would frustrate the intent of the Parties, in which case this Agreement may be reformed to give effect to the other provisions hereof.