Version Number: 2.0. Effective starting: 1 July 2024
This Curiosity Software End User Licence Agreement together with the DPA, and Curiosity Group Policies (collectively the “Agreement”) is between you, being the legal entity, government, individual or otherwise, that is entering into an Order, or otherwise using the Software or Additional Services (“you”, “your” or “Customer”) and the applicable Curiosity Group legal entity that is entering into an Order (“Curiosity”, “We”). Each of you and Curiosity are a “Party” and together the “Parties”. Curiosity may modify this Agreement from time to time, subject to the terms in Clause 22 (Changes to this Agreement) below.
This Agreement governs your installation and use of the version of the Software identified in the applicable Order, or if not acquired via an Order, your installation or use of the Software constitutes acceptance of this Agreement. Entering into this Agreement does not constitute a sales transaction. The sale of a Licence(s) to the Software takes place under an Order which (unless otherwise stated in the Order) incorporates the terms of this Agreement.
The terms and conditions of this Agreement may be different from the agreement(s) that accompanied earlier releases of the Software. Please read this Agreement carefully before proceeding, as it may contain additional restrictions on your use of the Software and Additional Services. This Agreement supersedes and controls over any other terms provided to you regarding your use of the Software and Additional Services, whether written or oral, as part of a signed agreement (including, but not limited to, master agreements and portfolio terms, unless a different agreement is expressly referenced in an Order or executed by Curiosity and you specifying that it applies to the version of the licenced Software to which this Agreement relates), a click-wrap agreement provided with the Software or otherwise (such terms referred to as the “other agreement”), even if such other agreement was embedded within previously licenced Software, except for the DPA, and Curiosity Group Policies, which shall control for their specific subject matter.
The “Effective Date” of this Agreement is the date which is the earlier of (a) your initial access to, or use of, the Software (as defined below) or (b) the effective date of the first Order referencing this Agreement.
By using or accessing the Software, you indicate your assent to be bound by this Agreement. If you do not agree to this Agreement, do not use or access the Software.
1. Definitions
Unless otherwise defined elsewhere in this Agreement, the terms below shall have the following definitions:
1.1 “Acceptable Use Policy” means the Acceptable Use Policy here.
1.2 "Additional Services” means any Professional Services, Support and Maintenance Services, Adoption Assurance Program or other services related to the Software provided to you by Curiosity, the Curiosity Group, or an authorised service provider, as identified in an order.
1.3 “Adoption Assurance Program”, “AAP” means an annually renewable service, comprising the provision of a technical success manager and customer success manager to assist with Software adoption within the customer.
1.4 “Affiliate” means any entity that, directly or indirectly, controls, is controlled by, or is under common control with a Party; and “control” means the direct or indirect possession of the power to direct or cause the direction of the management and policies of another entity, whether through the ownership of voting securities, by contract, or otherwise.
1.5 “Authorised Users” means the specific individuals whom you designate to use the applicable Software and for whom you have paid the required fees. Authorised Users may be your or your Affiliates’ employees, representatives, consultants, contractors, agents or other third parties who are acting for your or your Affiliates’ benefit or on your or your Affiliates’ behalf.
1.6 “Curiosity Group” shall mean any entity that Curiosity owns, that owns Curiosity, or that is under common ownership with Curiosity, from time to time, collectively form part of the Curiosity Group. For the purpose of this definition “Ownership” means direct or indirect control of 50% or more of the allotted shares able to vote for members of the board of directors or (ii) for an entity without shares, 50% or more of the ownership interest able to make decisions for the entity, or other third party at any time.
1.7 “Curiosity Technology” means the Software (including all No-Charge Software), their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including any incorporated feedback, owned by the Curiosity Group.
1.8 “Designated Use” means the use restriction set out in the Order and the Curiosity Group’s Acceptable Use Policy.
1.9 “Documentation” means the user guides and operating manuals supplied by Curiosity whether in print or machine-readable form.
1.10 “DPA” means the Curiosity Group Data Processing Addendum here.
1.11 “Error” shall mean a failure of the Software to function or perform in accordance with the Documentation that is reproducible by Curiosity.
1.12 “Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.
1.13 “Licence Fee” means the Software licence fee set out in the Order.
1.14 “Licence Term” means the permitted licence term or, in relation to AAP or Professional Services, the term, as set out in the Order.
1.15 “On-Prem Solution” means Software that is installed and operated within the environment owned, leased, or otherwise controlled by the Customer.
1.16 “Order” means the order form entered into by you and Curiosity for, where applicable, you and the Reseller through which you purchased the software.
1.17 “Policies” means the Acceptable Use Policy, Privacy Policy, Service Level Agreement, and any additional Curiosity Group policies detailed in this Agreement.
1.18 “Professional Services” means any professional services related to the Software provided to you by Curiosity, the Curiosity Group, or an authorised service provider and as set out in an Order (or SOW as applicable).
1.19 “Reseller” means a third party reseller or partner authorised by Curiosity to resell Curiosity’s Software.
1.20 “SaaS Solution” means Software which is remotely hosted and managed by Curiosity as part of an ongoing service.
1.21 “Service Level Agreement” means the Service Level Agreement here.
1.22 “Software” means Curiosity Software Ireland Limited’s commercially available, proprietary, software products, including all Updates and applicable Documentation, and including both SaaS Solutions and On-Prem Solutions. Your Order will specify the Software that you may install and use.
1.23 “Support and Maintenance” means Curiosity’s support and maintenance services for the Software, as further described in Curiosity’s Service Level Agreement.
1.24 “Update(s)” means any subsequent revision, update, improvement, modification, enhancement, correction or new release to, the Software which is made available to all Customers subject to an active Order for licences to the Software.
1.25 “Working Day” means a day other than a Saturday, Sunday, US federal holiday or UK bank holiday.
2. Scope of Agreement
2.1 This Agreement governs your initial purchase of the Software as well as any future purchases made by you that reference this Agreement, and also your access to and use of No-Charge Software as set out in Clause 6 (No-Charge Software). This Agreement includes each Order, and any other referenced Curiosity Group Policies and terms. The Software and its Designated Use are further described in the Order and associated Documentation.
3. Licence and Restrictions
3.1 Licence Grant. Subject to your compliance with the terms of this Agreement, Curiosity grants to you a non- sublicensable, non-exclusive, non-transferable, limited licence to:
3.1.1 in relation to On-Prem Solutions, install and use the Software for the Designated Use, and for Authorised Users only, during the Licence Term subject to the terms and conditions in this Agreement, the Documentation, and all Laws;
3.1.2 in relation to SaaS Solutions, to permit the Authorised Users to access and use the Software during the Licence Term, for the Designated Use, and subject to the terms and conditions in this Agreement, the Documentation, and all Laws; and
3.1.3 use and display the Documentation in connection with your Licence to the Software as set forth in this Clause 3.
3.2 Authorised Users. Only Authorised Users may access and use the Software. Some Software may allow you to designate different types of Authorised Users, in which case pricing and functionality may vary according to the type of Authorised User and will be as set out and agreed in an Order. You are responsible for compliance with this Agreement by all Authorised Users, including what Authorised Users do with your data, and for all fees incurred by Authorised Users (or from adding Authorised Users). All use of Software must be solely for the benefit of you or your Affiliate Users and must be within the Designated Use.
3.3 Licence Restrictions. Unless otherwise expressly set forth in an Order, you will not: (a) use the Software beyond the number of Authorised Users (and where installed as an On-Prem Solution, the number instances) each as specified in an Order; (b) rent, lease distribute, sell, sublicence, transfer, provide or otherwise make the Software available to any third party (except as expressly provided for under this Agreement, e.g., under Clause 3.7 (Affiliate Use)), in whole or in part, through any medium or process, or (c) use the Software for the benefit of any third party; (d) interfere with any licence key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit your use; (e) copy, reverse engineer, disassemble decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Software except to the extent expressly permitted by applicable law (and then only upon advance notice to Curiosity); (f) remove or obscure any proprietary or other notices contained in the Software; (g) use the Software for competitive analysis or to build competitive products; (h) publicly disseminate information regarding the performance of the Software; or (i) encourage or assist any third party to do any of the foregoing.
3.4 System Requirements. You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation. Curiosity will have no obligations or responsibility under this Agreement for issues caused by your use of any third party hardware or software not provided by Curiosity.
3.5 Additional Licences for other Software products. From time-to-time you may purchase additional Licences for other Software products, offered by Curiosity or Reseller by entering into additional Orders incorporating this Agreement. Each such additional Order shall have a unique reference. Each Order must be signed by the authorised representatives of both Parties, or you and the Reseller, and must specifically reference this Agreement, in order to be effective. Any such additional software products shall be deemed “Software” as defined in this Agreement.
3.6 Contractors. Notwithstanding anything herein to the contrary, you may use third party contractors and service providers to assist with your permitted use of the Software hereunder; provided that any use by a third party contractor shall be solely for the benefit of you, and you remain fully responsible and liable to Curiosity for any non-compliance by such third party contractors with the relevant terms and conditions of this Agreement. Any contractors must be expressly named as such in an Order and you must not exceed your Authorised Users or number of instances of the Software, each as specified in an Order.
3.7 Affiliate Use. “Affiliate User” means your Affiliates that are expressly named as such in an Order. You are hereby authorised to provide access to the Software that is listed in the Order on which the Affiliate User is named to the Affiliate User for the sole purpose of Affiliate User utilizing such Software for the Designated Use, to the same extent that you are permitted to do so under this Agreement (but not including the right for the Affiliate User to have its own Affiliate User), subject to the terms and conditions of this Agreement, including but not limited to, any export restrictions, scope of use, and quantitative product restrictions, all further provided that: (i) the number of Licences and/ or instances of the Software, each as stated in an Order is not exceeded in aggregate use by you and Affiliate User; (ii) you have a written confidentiality agreement with Affiliate User, that applies by its own terms to information that would include Curiosity Group’s Confidential Information, including but not limited to the Software, and that includes substantially the same obligations of confidentiality, non-disclosure, and use restriction as are imposed on you in this Agreement (each an “Affiliate User Agreement”); (iii) such use is not for the benefit of any other third party; (iv) you shall ensure that Affiliate User complies with all restrictions and conditions of this Agreement, including but not limited to export restrictions and scope of use; (v) you shall be fully liable for any breach of this Agreement by Affiliate User as if Affiliate User were you and a party to this Agreement, including but not limited to, for any improper use by Affiliate User of the Curiosity Group’s Confidential Information (including the Software), and misuse of the Software, and; (vi) Affiliate User is not a competitor of Curiosity Group. If a breach of any Affiliate User Agreement occurs that involves, in any manner, Curiosity Group Confidential Information, including but not limited to the Software, or otherwise affects Curiosity Group’s interests, you shall immediately notify Curiosity, in writing, and you shall take, prompt, appropriate corrective action to remedy the breach. You shall also promptly notify Curiosity, in writing, of the corrective action taken and otherwise keep Curiosity advised, in writing, of the status of such breach and your corrective efforts. In the event any Affiliate User is no longer authorised by you to the use the Software for any reason, you shall commence action within ten (10) calendar days and use its best efforts to retrieve all copies of the Software, and all other Curiosity Group Confidential Information, from Affiliate User. In the event that you fail to take such action against the Authorised User, at Curiosity’s sole option, all rights that you have against such Affiliate User, including those for breach of such Affiliate User Agreement, shall be automatically transferred to Curiosity or any other entity within the Curiosity Group, in Curiosity’s discretion. You agree to fully cooperate with Curiosity in any proceeding against the Affiliate User in breach of the Affiliate User Agreement. Curiosity and any entity within the Curiosity Group as in Curiosity’s discretion, is an intended third party beneficiary under the Affiliate User Agreement.
3.8 Reseller. If you order Software through a Reseller then you are solely responsible and liable for (i) any access by Reseller to your account and (ii) any related rights or obligations in your applicable agreement with the Reseller.
3.9 Multi-Product Purchases. You acknowledge that the Software and Additional Services referenced in an Order are being purchased separately from any other Software, Additional Services, or any other products or services. Payment obligations for any Software, Additional Services, products or services are not contingent on the purchase or use of any other Curiosity Software, Additional Services, products or services (and for clarity, any purchases of Software and Additional Services are separate and not contingent on each other, even if listed on the same Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Software beyond the current Licence Term or any Updates), or dependent on any oral or written public comments made by the Curiosity Group regarding future functionality or features.
3.10 Licence Certifications and Audits. At Curiosity’s request, you agree to provide a signed certification that you are using all Software pursuant to the terms of this Agreement, including the Designated Use. You agree to allow Curiosity, or a Curiosity authorised agent, to audit your use of the Software (including that of your Authorised Users). We will provide you with at least ten (10) calendar days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Designated Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Designated Use, we may invoice you for any past or ongoing excessive use, and out out-of-pocket costs incurred for the audit and you will pay the invoice promptly (and in any event within 30 calendar days) after receipt. This remedy is without prejudice to any other remedies available to Curiosity at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with specific Curiosity third party licensors or assign the audit rights specified in this Clause 3.10 to such licensors.
4. Your Information
4.1 You must provide up to date contact information of a key representative, and keep this updated with Curiosity, in order to place Orders and / or access or receive Software. Your contact information must be accurate, current and complete. You must keep your contact information current so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your account, including Orders made (which may incur fees). If you order Software through a Reseller, then you are solely responsible for (i) any access by Reseller to your account and (ii) any related rights or obligations in your applicable agreement with the Reseller.
5. On-Prem Solution
5.1 This Clause 5 is applicable where the Software is an On-Prem Solution only.
5.2 Number of Instances. Unless otherwise specified in your Order, for each Software Licence that you purchase, you may install one (1) instance of the Software on systems owned or operated by you or one of your Authorised Users. You may not install the Software on a network or other multi-user computer system in a manner that would make the Software available in a greater quantity than as specified in your Order.
6. No-Charge Software
6.1 Curiosity may offer certain Software to you at no charge, which may include free trial use including through trial licences, access to beta versions of the Software, and free user accounts (collectively the “No-Charge Software”). Your use of No-Charge Software is subject to any additional terms that we specify and is only permitted during the Licence Term that Curiosity designate or, if not designated, until terminated in accordance with this Agreement, or, as terminated in accordance with this Agreement. Except as otherwise set forth in this Clause 6, the terms and conditions of this Agreement governing Software including Clause 3.3 (Licence Restrictions), fully apply to No-Charge Software. We may terminate your right to use No-Charge Software at any time and for any reason in Curiosity’s sole discretion, without liability to you. No-Charge Software is provided without any contractual obligation of Support and Maintenance.
6.2 Trial licences may be used solely for your internal evaluation and testing purposes and not for development, commercial, or production purposes, and such No-Charge Software provided shall be deemed to be provided for such aforementioned purposes only. Your results of benchmark or other performance tests run on or using the Software may not be disclosed to any third party without Curiosity’s prior written consent. At any time during the Licence Term, you may, upon written notification to Curiosity, mutual entry into a separate Order by both Parties, and payment of the applicable Licence Fee, replace a trial licence with a licence to use the Software that is not restricted to evaluation purposes. In the absence of such notification by you, the trial licence shall automatically terminate at the end of the Licence Term, designated by Curiosity. Upon your written request, Curiosity may, in its sole discretion, grant you an extension for the trial licences, in writing prior to the expiration of the Licence Term.
6.3 You understand that any pre-release and beta versions of Software, and any pre-release and beta features within generally available Software, that we make available (collectively, “Beta Versions”), are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Software. We make no promises, guarantees or warranties that (i) any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee for you to use Beta Versions, but the Beta Versions will still remain subject to this Clause 6.
6.4 All information regarding No-Charge Software, including Beta Versions, including the characteristics, features or performance of any No-Charge Software, constitutes the Curiosity Group’s Confidential information.
6.5 To the maximum extent permitted by applicable law, No-Charge Software is provided “as is” without warranties, implied or express, of any kind, including any Support and Maintenance and indemnity obligations.
7. Additional Services – Support, Maintenance, Training
7.1 During the period for which you have paid the applicable Licence Fee for the Software, Curiosity will provide Support and Maintenance for the Software in accordance with Curiosity’s Service Level Agreement, as may be updated from time to time. Support and Maintenance for Software includes, but is not limited to, access to bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that Curiosity makes available to you as part of Support and Maintenance.
7.2 Training. Your purchase, and Curiosity’s provision, of training in relation to the Software is subject to additional fees, the amount of which, and nature and scope of any training, shall be as set out in an Order.
8. Additional Services - Adoption Assurance Program & Professional Services
8.1 Adoption Assurance Program. Purchases of the Adoption Assurance Program are for annual terms (unless otherwise stated in an Order), and are subject to additional fees, the amount of which, and nature and scope of the Adoption Assurance Program, shall be as set out in an Order. Fees shall be invoiced by Curiosity at the start date of the Order. Purchases of the Adoption Assurance Program are renewable annually. Fees, including where due and payable, for the Adoption Assurance Program are non-refundable.
8.2 Professional Services. Your purchase, and Curiosity’s provision of Professional Services is subject to additional fees, the amount of which, and nature and scope of any Professional Services, shall be as set out in an Order (or SOW as applicable). Fees shall be invoiced by Curiosity at the timing as set out in the Order. Professional services do not include the Adoption Assurance Program.
9. Additional Services
9.1 Where you place an order for Additional Services, pursuant to an Order (or SOW as applicable), the following terms shall apply. You will cooperate reasonably and in good faith with Curiosity in the execution of Additional Services by, without limitation: (i) allocating sufficient resources and timely performing any tasks reasonably necessary to enable Curiosity to perform its obligations under each Order; (ii) timely delivering any materials and other obligations specifically required under each Order; (iii) timely responding to Curiosity’s reasonable inquiries related to the Additional Services; (iv) actively participating in relevant scheduled meetings; (v) providing information, data and feedback that is complete, accurate and timely in all material respects. You acknowledge that in the course of performing any Additional Services, Curiosity may provide reports, analyses, templates, technology, or other deliverables (collectively “Work Product”). Subject to your rights in Customer Confidential Information, Curiosity shall own all right title and interest in such Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to you pursuant to or in connection with the performance of Services (a “Deliverable”), except for any products made available under a separate licence, Curiosity grants to you an irrevocable, perpetual, nonexclusive, worldwide, royalty-free right and licence to use, execute, reproduce, display, perform, distribute (internally and externally), transfer, exploit and make derivative works of any such Deliverables. Subject to your rights in the Customer Confidential Information, Curiosity and/or its successors and assigns shall be considered, forever and for all purposes throughout the universe, the author of the Work Product and the sole copyright owner thereof, and the owner of any rights therein, whether or not copyrightable, all proceeds derived therefrom.
10. Licence Term and Renewals
10.1 Licence Term. The Licence Term, Support and Maintenance period, and period for any other services will be indicated in the Order (as applicable). The Licence Term and any applicable service periods will commence on the Order date (unless a different start date is designated in the Order) and expire on the expiration date also stated in the Order. Unless earlier terminated in accordance with this Agreement, each right to use Software will expire at the end of the applicable Licence Term. Renewals must be mutually agreed upon by the Parties in writing and pricing will be charged at then-current rates. All renewals are further subject to the applicable Software or Support and Maintenance continuing to be offered.
10.2 Delivery. All deliveries under this Agreement will be electronic (for a SaaS Solution) or on-premises (for an On-Prem Solution), as stated in your Order. For a SaaS Solution, we, or the Reseller where authorised, will deliver the applicable Licence keys to your account no later than when we have received payment of the applicable fees. For delivery of an On-Prem Solution, we will provide the Software to you in a media form. For the avoidance of doubt, you are responsible for installation of the Software, and you acknowledge that Curiosity has no further delivery obligation with respect to the Software after delivery of the Licence keys or, where the Software is to be installed on premises, on delivery of the media on which the Software is provided to you.
10.3 Increased Scope of Use. During your Licence Term, you may increase your scope of use (e.g., adding Authorised Users, Licences, copies or instances, or requesting additional features) by placing a new Order. Any increases to your scope of use will be subject to additional fees, as set forth in the applicable Order.
11. Payment
11.1 Fees General. You agree to pay Curiosity all fees in accordance with each Order, by the due dates and in the currency as specified in the Order, as follows:
11.1.1 the applicable Licence Fees as set forth in the applicable Order;
11.1.2 any other fees and charges detailed in this agreement or that are mutually agreed between you and Curiosity in writing that arise from this Agreement; and,
11.1.3 VAT or other sales taxes as applicable as described in Clause 11.6 (Taxes) below.
11.2 If a purchase order number is required in order for an invoice to be paid, then you must provide such purchase order number to Curiosity promptly.
11.3 For Additional Services provided, unless otherwise specified in your Order, you will reimburse Curiosity for its travel, lodging and meal expenses, which Curiosity may charge as incurred, where they have been pre-approved with you. Other than as expressly set forth in Clause 13.3 (Software Warranty), Clause 14.6 (Curiosity Indemnification), Clause 16.2 (Termination for Cause), and Clause 22.3 (Changes for paid licences to the Software), all amounts are non-refundable, non-cancellable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, additional Authorised Users, expenses and unpaid fees, as applicable, in accordance with the terms of this Agreement.
11.4 Invoices. Curiosity shall invoice you for the applicable Licence Fee upon delivery of the Software, or anytime on or after the Order date, whichever is sooner. Unless specified in an Order, invoices must be paid within 30 calendar days of the date of invoice.
11.5 Invoice Contact. Curiosity will send invoices via email only to the contact address designated in the Order, or as later updated by you in writing to Curiosity, and where such update is acknowledged by Curiosity.
11.6 Taxes. All amounts payable by you to Curiosity under this Agreement are exclusive of any tax, levy or similar governmental charge that may be assessed by any jurisdiction where the payment is either made or received, and on any amounts due under this Agreement, including tariffs, customs fees, VAT, GST, consumption, sales and use taxes (collectively, “Taxes”). You will pay all Taxes, except solely to the extent you provide Curiosity with a certificate of exemption to avoid or reduce the Taxes, which is accepted by the applicable taxing authority. You warrant and represent that any such exemption or other tax arrangement complies with all applicable Laws. You shall indemnify Curiosity for any charges or penalties incurred by Curiosity as a result of any such exemption or tax arrangement, except to the extent such charges or penalties are due to the acts or omissions of Curiosity. If, under applicable Laws, you are required to withhold any tax on any payments hereunder, then the amount of the payment automatically will be increased to totally offset such tax, so that the amount actually remitted to Curiosity, net of all taxes, equals the amount invoiced or otherwise due. You will promptly furnish Curiosity with the official receipt of payment of these taxes to the appropriate taxing authority. Curiosity shall reasonably cooperate with and assist you in connection with the recovery of such taxes and pass on to you any tax refunds it receives relative to your previous payment of Taxes. For the avoidance of doubt, you will not be required to pay or reimburse Curiosity for any taxes based upon the net worth, capital, net income or franchise of Curiosity.
11.7 Software Licence Fees are non-refundable, except as provided in Clause 13.3 (Software Warranty), Clause 14.6 (Curiosity Indemnification), Clause 16.2 (Termination for Cause), and Clause 22.3 (Changes for paid licences to the Software) and shall be paid without any deduction or tax withholding.
11.8 Reseller Orders. This Clause 11.8 applies if you purchase the Software through a Reseller:
11.8.1 With purchases from a Reseller, the applicable pricing and payment terms are as set out in the separate agreement between Customer and the Reseller, and any terms in this Agreement related to Curiosity pricing and payments shall not apply. Instead of paying Curiosity, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller. Curiosity may suspend or terminate your rights to use Software if Curiosity does not receive the corresponding payment from the reseller.
11.8.2 Instead of an Order with Curiosity, your order details (e.g., Software, Designated Use and Licence Term) will be as stated in the order placed with Curiosity by the Reseller on your behalf, and the Reseller is responsible for the accuracy of any such order as communicated to Curiosity.
11.8.3 If you are entitled to a refund under this Agreement, then unless otherwise specified by Curiosity, Curiosity will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.
11.8.4 Resellers are not authorised to modify this Agreement or make any promises or commitments on Curiosity’s behalf, and Curiosity is not bound by any obligations to you other than as set forth in this Agreement.
11.8.5 The amount paid or payable by the Reseller to Curiosity for your use of the applicable Software under this Agreement will be deemed the amount actually paid or payable by you to Curiosity under this Agreement for purposes of calculating the liability cap in Clause 14 (Limitation of Liability). Curiosity and the Curiosity Group is not responsible for the acts or omissions of the Reseller, or for any other products or services that it supplies to Customer.
11.8.6 This Agreement, including, but not limited to, Clause 13 (Warranties) and Clause 14 (Limitation of Liability) will not apply to any additional services performed by a Reseller or where performed by any third party other than the Curiosity Group.
12. Ownership
12.1 The Software is made available on a limited licence or access basis, and is not sold to you, nor is any ownership right conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. As between you and Curiosity, all rights, title and interest in and to the Software and any other Curiosity Technology, including but not limited to, patents, patent rights, copyrights, trade secrets, trademarks, and other proprietary, industrial, or intellectual property rights, are and will remain the exclusive property of Curiosity, the Curiosity Group or its licensors, whether or not specifically recognized or perfected under applicable law. Curiosity, the Curiosity Group, or its licensor will own all rights in any copy, translation, modification, adaptation, or derivative work of the Software, Curiosity Technology, and Curiosity and / or Curiosity Group marks, including any improvement or development thereof. You shall use reasonable efforts to safeguard the Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorised access. You shall promptly notify Curiosity if you become aware of any infringement, or misappropriation of the Software and shall fully cooperate with Curiosity, at Curiosity’s expense, in any legal action taken by Curiosity or the Curiosity Group to enforce its intellectual property rights.
12.2 If, by operation of law or otherwise, you are deemed to own any rights in the Software, as a derivative work or otherwise (other than the limited rights specified in this Agreement), you hereby agree to assign, and upon the creation of any such rights shall be deemed to assign, all such rights, including the right to adapt or create derivative works and the right to exploit such derivative works, to Curiosity, the Curiosity Group, or its licensor on an exclusive, perpetual, irrevocable, worldwide, and royalty-free basis, without the right to claim or receive any additional consideration. If you or any of your employees are deemed under applicable law to retain any rights in the development of the Software, including any moral rights, you grant, and will cause your employees to grant, to Curiosity, the Curiosity Group, or its licensor, the exclusive, perpetual, transferable, sublicensable, irrevocable, worldwide, and royalty-free Licence to use, modify, and market the Software and any derivative works based thereon, and in the case of moral rights, you waive, and covenant that you shall have your employees waive, all such moral rights. At Curiosity’s request, you will execute, or obtain the execution of, any instrument that may be appropriate to assign these rights to you or its licensors or perfect these rights in Curiosity’s, the Curiosity Group’s, or its licensors’ name. All rights (including all intellectual property rights) not expressly granted to you hereunder, are expressly and exclusively retained by Curiosity, the Curiosity Group and its licensors. For the avoidance of doubt, you will retain all right, title, and interest in any data and/or files of yours that are processed or converted by the Software (“Customer Files”) and Customer Files shall not be considered a derivative work prepared from the Software.
13. Warranties
13.1 General Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. If you are an entity, you represent and warrant that this Agreement and each Order is entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of this Agreement.
13.2 Virus Warranty. Curiosity further represents and warrants that it shall take reasonable commercial efforts to ensure Software, when and as provided by Curiosity to you, does not and will not contain any viruses, malware or other harmful code. For any breach of the foregoing warranty, your sole and exclusive remedy, and Curiosity’s sole obligation, is to provide a replacement copy of the Software promptly upon notice.
13.3 Software Warranty. Curiosity warrants during the Licence Term that the Software as delivered will substantially conform to the Documentation. If there is a breach of such warranty as set out in this Clause 13.3, that is reported by you to Curiosity (or Reseller where applicable, who in turn shall notify Curiosity) in writing within 30 calendar days of discovering the issue, during the Licence Term, then your sole and exclusive remedy shall be the repair or replacement of the Software by Curiosity free of charge so that it substantially conforms to the Documentation or, if Curiosity reasonably determines that such remedy is not economically or technically feasible, you shall be entitled to either a pro-rata refund from the date of non-conformance of the Software to the Documentation, or a full refund should the non-conformance be from the date of delivery of the Software, of the Licence Fee paid for such Software. Upon such refund, your Licence to use such Software will immediately terminate. The warranty set out in this Clause 13.3 shall not apply to (a) Software that has been altered or modified by a party other than Curiosity (unless authorised by Curiosity in writing), (b) failure to properly and promptly install or use the Software in accordance with the Documentation and / or this Agreement, (c) failure or malfunctioning of your operating environment, equipment, network, hardware, or any other reason external to the Software, (d) accident, neglect or abuse, (e) service by any unauthorised person, (f) third party software (g) other software used by you that is not provided by Curiosity, or for which the Software is not designed or licenced as such (h) failure to promptly install a new version of the Software provided by Curiosity that would have eliminated the non-conformity, or (i) the combination of the Software with items not provided by Curiosity or approved for combination with the Software in the Documentation, or (j) any other cause occurring after initial delivery of the Software to you, unless caused directly by Curiosity. Curiosity and the Curiosity Group has no responsibility for any claims made outside of the Licence Term or in accordance with this Agreement.
13.4 The warranties set out in Clauses 13.1, 13.2 and 13.3 shall not apply with respect to: i) any No-Charge Software; ii) any third party software; iii) where the extent the issue or non-conformity is caused by Customer’s unauthorised use or modification of the Software; and (b) unsupported releases of the Software.
13.5 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT INCLUDING AS SET OUT IN CLAUSES 13.1 TO 13.4, ALL SOFTWARE, SUPPORT AND MAINTENANCE AND ANY ADDITIONAL SERVICES IS PROVIDED “AS IS,” AND CURIOSITY, THE CURIOSITY GROUP, AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND WHICH ARE HEREBY VOID, OVERRIDDEN, EXCLUDED. CURIOSITY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE, OR WORK IN COMBINATION WITH ANY OTHER SOFTWARE, APPLICATIONS OR SYSTEMS, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. CURIOSITY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CURIOSITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER CURIOSITY, THE CURIOSITY GROUP, NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SOFTWARE (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) EXCEPT AS EXPRESSLY SET FORTH IN CLAUSE 13.2 (VIRUS WARRANTY), THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION AND/OR USE OF, AND RESULTS OBTAINED FROM, THE SOFTWARE. The remedies stated in Clause 13.3 (Software Warranty) set forth Curiosity’s exclusive liability and Customer’s exclusive remedy for breach of the warranties in Clause 13.3 (Software Warranty). The charges contemplated in an Order are based upon the limited warranties, disclaimers, and limitations of liability, contained in this Clause 13 (Warranties) and Clause 14 (Limitation of Liability) and such charges would be substantially higher absent any of these provisions.
14. Limitation of Liability
14.1 Waiver of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR EXCLUDED CLAIMS (AS SET OUT IN CLAUSE 14.3) NEITHER PARTY INCLUDING ITS SUPPLIERS AND AFFILIATES WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOSS OF PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
14.2 Liability Cap. EXCEPT FOR EXCLUDED CLAIMS (AS SET OUT IN CLAUSE 14.3), AND SUBJECT TO CLAUSE 14.1, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO CURIOSITY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST CLAIM. REFERENCE TO LIABILITY IN THIS CLAUSE 14.2 SHALL INCLUDE EVERY KIND OF LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT INCLUDING BUT NOT LIMITED TO LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, RESTITUTION OR OTHERWISE.
14.3 Excluded Claims. Excluded claims shall mean: i) amounts owed by you under any Orders (or SOWs), ii) either Party’s express indemnification obligations as set out in this Agreement; and, iii) your breach of Clause 3 (Licence and Restrictions), or Clause 12 (Ownership).
14.4 No-Charge Software. If Curiosity provides you with any No-Charge Software, to the extent permitted by law, Curiosity shall have no liability, and shall not be responsible for any loss or damage, to you, your customers, or any third parties caused by the No-Charge Software that Curiosity makes available to you.
14.5 Nature of Claims and Failure of Essential Purpose. The Parties agree that the waivers and limitations specified in this Clause 14 (Limitation of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
14.6 Curiosity Indemnification. We will defend you against any claim brought against you by a third party alleging that the Software, when used as authorised under this Agreement, infringes any third party patent, copyright or trademark (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by Curiosity or the Curiosity Group (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for Curiosity to respond without prejudice); (b) reasonable assistance in the defence and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defence, and settlement (if applicable) of the Claim. If your use of the Software is (or in Curiosity’s opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at Curiosity’s option and in Curiosity’s discretion: (i) procure the right or Licence for your continued use of the Software in accordance with this Agreement; (ii) substitute substantially functionally similar Software; or (iii) terminate your right to continue using the Software and refund any Licence fees pre-paid by you for use of the Software for the terminated portion of the applicable Licence Term. Curiosity’s indemnification obligations above do not apply: (1) if the Software is modified by any party other than Curiosity or the Curiosity Group, but solely to the extent the alleged infringement is caused by such modification; (2) if the Software is used in combination with any non-Curiosity Group product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (3) to unauthorised use of Software; (4) to any Claim arising as a result of (i) circumstances covered by your indemnification obligations in Clause 14.7 (Indemnification by You) or (ii) any third party deliverables or components contained with the Software; (5) to any unsupported release of the Software; or (6) if you settle or make any admissions with respect to a Claim without Curiosity’s prior written consent. THIS CLAUSE 14 STATES CURIOSITY’S SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SOFTWARE OR OTHER ITEMS PROVIDED BY CURIOSITY UNDER THIS AGREEMENT.
14.7 Indemnification by you. You will defend, indemnify and hold harmless Curiosity and the Curiosity Group from and against any loss, cost, liability or damage (including attorney’s fees) arising from or relating to any claim brought against Curiosity and / or the Curiosity Group (1) arising from or related to any claims or disputes brought by a third party relating to any non-Curiosity Group content or data used by you in connection with the Software, (2) where the Software is modified by any party other than Curiosity or the Curiosity Group, but solely to the extent the alleged infringement is caused by such modification; (3) where the Software is used in combination with any non-Curiosity Group product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defence, or settlement of such claim; and (iii) all reasonably necessary cooperation of Curiosity at your expense.
14.8 Nothing in this Agreement excludes or limits a Party’s liability for: death or personal injury caused by negligence; or fraud or fraudulent misrepresentation.
15. Confidentiality
15.1 Except as otherwise set forth in this Agreement, each Party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such Party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Curiosity Technology, any performance information relating to the Software, and any information about the Curiosity Group will be deemed Confidential Information of Curiosity without any marking or further designation. Except as expressly authorised herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Clause 15 (Confidentiality) and that the Receiving Party remains responsible for compliance by them with the terms of this Clause 15 (Confidentiality). The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
15.2 The Parties acknowledge that any unauthorised use or disclosure of the Disclosing Party’s Confidential Information may cause irreparable damage to the Disclosing Party and that the Disclosing Party shall be entitled to equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this Clause 15 (Confidentiality). Such remedies shall not be deemed to be the exclusive remedies for a breach of this Clause 15 (Confidentiality) but shall be in addition to all other remedies available at law or in equity.
16. Term and Termination
16.1 Term. This Agreement is effective as of the Effective Date and shall continue until expiration of all Licence Terms of Orders entered into by you and Curiosity, unless earlier terminated in accordance with this Agreement.
16.2 Termination for Cause. Each Party may at any time terminate this Agreement, including all related Orders by giving the other Party prior written notice, if the other Party (a) materially breaches this Agreement and has failed to remedy such breach within 90 calendar days of its receipt of notice to the effect that it is in breach and reasonable details regarding the nature of such breach; (b) is unable to pay its debts as they fall due or if the other Party ceases or threatens to cease to do business; (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, makes an assignment for the benefit of, or a composition with its creditors or other arrangement of similar import or a receiver, administrative receiver, administrator or a similar offices is appointed over all or a substantial part of its assets, or if a petition is presented or an order is made or an effective resolution is passed for winding up the other Party otherwise than for the purpose of a bona fide reconstruction or amalgamation.
16.3 Other Termination Rights. You may choose to stop using the Software and terminate this Agreement (including all Orders) at any time for any reason upon written notice to Curiosity, however, unless you are exercising your right to terminate early pursuant to Clause 13.3 (Software Warranty) upon any such termination (a) you will not be entitled to a refund of any Licence Fees or any other pre-paid fees; and (b) if you have not already paid for all applicable fees for the Licence Term (or then-current Licence Term if applicable), any such Licence Fees that are outstanding will become immediately due and payable.
16.4 Consequences of Termination. Upon the expiration or termination of this Agreement for any reason, your licence to the Software will terminate (even if the Licence Term is identified as “perpetual” or if no expiration date is specified in your Order) and you must cease using the Software. All rights granted to you hereunder will immediately cease, and you will promptly comply with the termination obligations specified below and otherwise cooperate with Curiosity to terminate relations in an orderly manner:
16.4.1 You will pay Curiosity all overdue and outstanding amounts;
16.4.2 You will delete from your computer systems, storage media, and other files and, at Curiosity’s option, destroy or deliver to Curiosity or its designee, all copies of the Software within your possession or control, including on any third party systems operated on your behalf, except to the minimum extent that retention of any such materials is required by law. In the event that you retain any such materials under this Clause 16.4.2 then such materials shall be considered the Curiosity Group’s Confidential Information;
16.4.3 You will destroy or deliver to Curiosity or its designee all items within Customer’s possession or control, including on any third party systems operated on your behalf that contain any Curiosity Confidential Information or bear a mark associated with the Licence granted hereunder, except to the minimum extent that retention of any such materials is required by law; and
16.4.4 You will, at Curiosity’s option, deliver to Curiosity a certificate, on which Curiosity may rely, which certifies that you have complied with all of its termination obligations set forth in this Agreement.
16.5 If this Agreement is terminated by you in accordance with Clause 16.2 (Termination for Cause), Curiosity will refund you any prepaid Licence Fees covering the remainder of the then-current Licence Term after the effective date of termination. If this Agreement is terminated by Curiosity in accordance with Clause 16.2 (Termination for Cause), you will pay any unpaid Licence Fees or any other fees covering the remainder of the then-current Licence Term after the effective date of termination. In no event will termination relieve you of its obligation to pay any Licence Fees or any other fees payable to Curiosity for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either Party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
16.6 Survival. Clauses that by their nature are intended to survive termination or expiration of this Agreement shall do so, including but not limited to the following Clauses: 3.3 (Licence Restrictions), 3.6 (Contractors), 3.7 (Affiliate Use), 3.8 (Reseller), 3.10 (Licence Certifications and Audits), 6 (No-Charge Software) (disclaimers and use restrictions only), 11 (Payment), 12 (Ownership), 13.5 (Warranty Disclaimer), 14.1 to 14.5 (Limitations of Liability), 14.6 (Curiosity Indemnification) (but solely with respect to claims arising from your use of the Software during the Licence Term), 14.7 (Indemnification by you), 15 (Confidentiality), 16 (Term and Termination), 20 (Dispute Resolution), 21 (Export Restrictions), and 23 (General).
17. Publicity Rights
17.1 Curiosity and the Curiosity Group may identify you as a customer and may also use your name and logo for business development and marketing purposes, including in the Curiosity Group’s online and printed sales and promotional materials, including on the Curiosity Group’s website. We will promptly stop doing so on your request by emailing info@curiosity.software and your account manager, but you acknowledge and agree that nothing in this Clause 17 shall require the Curiosity Group to remove your name or logo from any online or printed materials published or otherwise released prior to the date of your request.
18. Third Party Code
18.1 The Software includes code and libraries Licenced to Curiosity and / or the Curiosity Group by third parties, including open source software. See Curiosity’s list of third party components here.
18.2 Open Source Components in the Software. The Curiosity Group Software includes third party technologies that are subject to separate open source or source available licences that govern Customer’s use, replication, modification or creation of derivative works and redistribution of such third party technologies (“Open Source Software”). Where required, Curiosity provides attribution for the Open Source Software distributed with Curiosity Group Software in accordance with the applicable open source or source available licence(s).
18.3 Commercial Third Party Code in the Software.
18.3.1 Commercial Components. The Software also includes components that the Curiosity Group licences commercially from third parties (“Commercial Components”). Customer may use Commercial Components only in conjunction with and through the Software as provided by Curiosity, and the restrictions for the Software in the Agreement also apply to Commercial Components. Commercial Components are also subject to the remainder of this Section 18.
18.3.2 Restrictions. Customer must not (and must not permit anyone else to): (a) install, access or attempt to access, configure or use any Commercial Component (including any APIs, tools, databases or other aspects of any Commercial Components) separately from the rest of the Software, whether for production, technical support or any other purpose or (b) modify any Commercial Component (even where provided in source code form).
18.3.3 Commercial Component Licensors. The applicable third party licensor (“Commercial Component Licensor”) retains all ownership and intellectual property rights to the Commercial Component. Commercial Component Licensors (and any other third party licensors of any components of the Software) are intended third party beneficiaries of the Agreement with respect to the items they licence and may enforce the Agreement directly against Customer with respect to those items. Customer is responsible to the applicable Commercial Component Licensor for any breach of the Agreement (including this Section 18) with respect to the applicable Commercial Component(s). However, Commercial Component Licensors do not assume any of Curiosity and / or the Curiosity Group’s obligations under the Agreement. To the maximum extent permitted by Law, no Commercial Component Licensor will be liable to Customer for any damages whatsoever.
19. Privacy
19.1 Curiosity and the Curiosity Group may collect certain data and information from you: i) in connection with your use of the Software; ii) in order to comply with a legal obligation to which Curiosity or the Curiosity Group is subject; iii) as is necessary for the performance of this Agreement; and iv) where necessary for the purposes of Curiosity’s and the Curiosity Group’s legitimate interests, except where such interests are overridden by the interests or fundamental rights and freedoms of you or your users which require protection of personally identifiable information. All such data and information will be collected and used by Curiosity and the Curiosity Group in accordance with the Curiosity Group’s DPA and privacy policy which you acknowledge.
19.2 Responsibility and Compliance with Laws. You are solely responsible for and assume all liability with respect to your own collection, processing, storage, and transfer of any user data, including, but not limited to, personally identifiable information and personal health and financial information (collectively, “Personal Information”). You shall be solely responsible for notifying your users of proper use of such data. Each Party is responsible for complying with its respective obligations under all applicable Laws, regulations, and industry standards regarding data collection and data privacy applicable for the use of the Software by the relevant Party. You shall not provide any Personal Information to Curiosity or the Curiosity Group for processing by Curiosity or the Curiosity Group on your behalf, unless otherwise agreed by the Parties in writing in an applicable agreement with applicable privacy terms. If the Parties agree that processing Personal Information is necessary for the performance of this specific transaction, and when such Personal Information processing falls within the scope of the General Data Protection Regulation (EU) 2016/679 (“GDPR”), or where relevant the UK GDPR as defined in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018, or any applicable international data Laws, before any Personal Information is made available to Curiosity or the Curiosity Group, the Parties agree that you will be the data controller and Curiosity and the Curiosity Group will be the joint data processors, and when Curiosity and / or the Curiosity Group are processing Personal Information on your behalf, such processing shall be governed by terms that comply with Article 28 of the GDPR or where relevant the UK GDPR including standard contractual clauses or where relevant a UK International Data Transfer Agreement to be included in such transaction agreement, or other applicable international data Laws and regulations. Curiosity and the Curiosity Group will not have access to protected health information unless the Parties have an executed business associate agreement in place for this transaction. You are solely responsible for assessing the Software, Additional Services, or any related product or service for compliance with any industry requirements applicable to you.
19.3 DPA. The DPA applies to Customer’s use of Software and related Additional Services and forms part of this Agreement.
19.4 Consent to Use of your Information. To the extent required or permitted by law, you hereby expressly consent to:
19.4.1 receiving information from Curiosity from time to time advertising the Curiosity Group’s Software, Additional Services, and / or other products and services;
19.4.2 the use of your name in the Curiosity Group’s customer lists, promotional materials, and press releases; and
19.4.3 the collection and use of information about the computer system on which the Software is installed (e.g. product version, serial number), or other information as may reasonably be required by Curiosity, for internal security and licensing purposes.
20. Dispute Resolution
20.1 Informal Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) calendar days, either Party may pursue relief as may be available under this Agreement pursuant to Clause 20.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Clause 20.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
20.2 Governing Law and Jurisdiction. This Agreement as well as any claims or causes of action, whether in contract, tort or statute, based on, arising under or relating to this Agreement, will be governed by and construed in accordance with applicable laws as follows:
- If Customer is located in North America, Canada, Central America or South America, all matters arising out of or relating to this Agreement are governed by the laws of the state of Delaware, U.S.A.
- If Customer is located in Ireland, Europe, Australia, New Zealand, or Asia, all matters arising out of or relating to this Agreement are governed by the laws of Ireland.
- If the Customer is located in the United Kingdom all matters arising out of or relating to this Agreement are governed by the laws of England.
- For Customers located in the rest of the world, the laws of Ireland govern all matters arising out of or relating to this Agreement.
The applicable law shall apply without regard to conflicts of law provisions. Any suit, action, or proceeding arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of the country determining the applicable law, except that the courts of the State of Delaware shall have exclusive jurisdiction in North America, and Curiosity will be allowed to apply for injunctive relief in any jurisdiction. Each party agrees to be subject to the above-described jurisdiction and waives any right it may have to object to such venue, including objections based on personal jurisdiction or inconvenient forum. The prevailing party in any proceeding has the right to recover costs and reasonable attorneys’ fees as awarded by the court or arbitrator.
20.3 Injunctive Relief; Enforcement. Notwithstanding the provisions of Clause 20.1 (Informal Resolution) and Clause 20.2 (Governing Law; Jurisdiction), nothing in this Agreement will prevent Curiosity from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
20.4 Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (“UCITA”) will not apply to this Agreement regardless of when or where adopted.
21. Export Restrictions
21.1 The Software is subject to export restrictions by the Irish, United Kingdom and United States of America governments and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your download of, access to, and use of the Software. You shall not (and shall not allow any third party to) remove or export from Ireland, the United Kingdom or United States of America, or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the denied persons, entity, or unverified Lists or the specially designated nationals and consolidated sanctions list or equivalent as designated by Ireland, the United Kingdom and / or the United States of America; (c) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”) (d) to any country to which such export or re-export is restricted or prohibited, or as to which the Irish, the United Kingdom and / or the United States of America governments or any agency thereof requires an export Licence or other governmental approval at the time of export or re-export without first obtaining such Licence or approval; or (e) otherwise in violation of any export or import restrictions, Laws or regulations of any Irish, the United Kingdom and / or the United States of America or foreign agency or authority. You represent and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Software for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the Irish, the United Kingdom and / or the United States of America government.
22. Changes to this Agreement
22.1 Changes to this Agreement. We may make changes to the terms and conditions of this Agreement, excluding Curiosity Group Policies as referenced in this Agreement changes to which are covered in Clause 22.4, from time to time, with notice, and the effective date of such changes, given to you by email, through the Software, or through the Curiosity Group website.
22.2 No-Charge Software. Where we make changes to this Agreement, you must accept the changes to continue using the No-Charge Software. If you do not agree with the changes, your exclusive remedy is to cease using the No-Charge Software.
22.3 Changes for paid licences to the Software. Typically, when we make modifications to the main body of this Agreement (excluding Curiosity and Curiosity Group Policies), the modifications will take effect at the next renewal of your Licence Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Clause 10 (Licence Term and Renewals). In some cases, for example, to address compliance with Laws, or as necessary for new features, we may specify that such modifications become effective during your then- current Licence Term. If the effective date of such modifications is during your then-current Licence Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to Curiosity, and we will refund to you any fees you have pre-paid for use of the affected Software for the terminated portion of the applicable Licence Term. To exercise this right, you must provide Curiosity with notice of your objection and termination within thirty (30) calendar days of Curiosity providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of this Agreement in effect at the time of the Order.
22.4 Curiosity Group Policies. Curiosity Group Software, Additional Services, and its business are constantly evolving, and we may modify the Curiosity Group Policies from time to time, including during your then-current Licence Term in order to respond to changes in Curiosity Group’s Software, Additional Services, any other products and services, Curiosity’s business, or Laws. In this case, unless required by Laws, we agree not to make modifications to the Curiosity Group Policies that, considered as a whole, would substantially diminish Curiosity’s obligations during your then-current Licence Term. Modifications to the Curiosity Group Policies will take effect automatically as of the effective date specified for the updated Curiosity Group Policies.
23. General
23.1 No Agents. Nothing in the Agreement shall be construed as creating a partnership between the Parties or as constituting either Party as the agent of the other Party and neither Party shall have the authority to bind the other Party.
23.2 Severability. If a court declares any part of this Agreement unenforceable or invalid the remaining provisions will remain in full effect.
23.3 Force Majeure. Neither Party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such Party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a Licence by a government agency.
23.4 Assignment. You may not assign or transfer this Agreement without Curiosity prior written consent. As an exception to the foregoing, you may assign this Agreement in its entirety (including all Orders) to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide Curiosity with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement. Any attempt by you to transfer or assign this Agreement except as expressly authorised above will be null and void. We may assign Curiosity rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit Curiosity Group Affiliates, agents and contractors to exercise Curiosity’s rights or perform Curiosity’s obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement. Subject to the foregoing, this Agreement will inure to the Parties’ permitted successors and assigns.
23.5 Entire Agreement. This Agreement contains the entire agreement and understanding of the Parties and supersedes all prior agreements, understandings or arrangements (whether oral or written) relating to the subject matter of this Agreement and is binding upon the Parties and their permitted successors and assigns. Other than where detailed in this Agreement, only a written instrument that refers to this Agreement and is duly signed by both authorised representatives of both Parties may amend this Agreement or any Order or schedule hereto. This Agreement may not be supplemented, modified, or governed by any shrink-wrap or click-wrap agreement relating to the Software. No terms or conditions stated in your issued purchase order or in any other order documentation (other than the Order) with you shall be incorporated into, or form, any part of this Agreement and all such terms or conditions shall be null and void. In the event of a conflict among the documents making up this Agreement, this Agreement will control, except that the Policies and DPA will control for their specific subject matter.
23.6 Compliance Certification. Upon Curiosity’s request no more than once per calendar year, you shall certify to Curiosity, on which Curiosity may rely, that your use of the Software and Documentation is in accordance with this Agreement.
23.7 Waiver. The waiver or failure of either Party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of the subject right or any further right under this Agreement.
23.8 Non-exclusive. Each Party acknowledges that this Agreement is non-exclusive and either Party may contract with third parties for the procurement or sale of comparable products or services.
23.9 Notice. (a) Except as specified elsewhere in this Agreement, notices under this Agreement must be in writing and are deemed given on: (i) personal delivery, (ii) when received by the addressee if sent by a recognized overnight courier with receipt request, (iii) the third Working Day after mailing, or (iv) the first Working Day after sending by email, except that email will not be sufficient for notices regarding infringement claims (as set out in Section 12.1), alleging breach of this Agreement by Curiosity, or of Customer’s termination of this Agreement in accordance with Section 16.2 (Termination for Cause); (b) Notices to Curiosity must be provided to CSILegal@Curiosity.Software as may be updated from time to time; (c) Notices to Customer must be provided to the billing or technical contact provided to Curiosity, which may be updated by Customer from time to time in Customer’s account portal. However, Curiosity may provide general or operational notices via email, on its website or through the Software.