EPAM SYSTEMS, INC.
TDSPORA END USER LICENSE AGREEMENT
Last updated: January 03, 2022
This end user license agreement ("Agreement") between you ("User") and EPAM Systems, Inc. ("EPAM") governs the User's use of EPAM's proprietary TDspora software (the "Software"). BY INSTALLING, COPYING, DOWNLOADING OR OTHERWISE USING ANY PORTION OF THIS SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, COPY, DOWNLOAD OR OTHERWISE USE THE SOFTWARE.
- Definitions. For the purpose of this Agreement: "Documentation" means the instructions and explanatory material (if any) provided with the Software electronic form; "Download Key" means the download key provided with the Software to enable downloading a copy of the Software for the Permitted Use; "Permitted Use" means the permitted use of the Software as described in the Agreement.
- Proprietary Rights. EPAM is the sole and exclusive owner of all rights, title, and interests in and to the Software, including any and all source code, developments, modifications, enhancements, improvements, and trade secretes made thereto (including any and all customization of the Software). This Agreement is not an assignment of any intellectual property rights in the Software to the User, other than Permitted Use. For the avoidance of doubt, all rights to the Software not expressly granted to the User under this Agreement are reserved by EPAM or its suppliers and distributors. To the extent User uploads or submits any information on or through the Software ("User-Provided Materials"), User shall retain all right, title, and interest in such User-Provided Materials. User hereby grants EPAM (i) a limited, non-exclusive, royalty-free right and license to use and store the User-Provided Materials as necessary for EPAM to perform under this Agreement; (ii) a perpetual, non-exclusive, royalty-free right and license to use and store the User-Provided Materials in a de-identified, aggregated or otherwise anonymized basis, for purposes of benchmarking, research and analysis, and to improve EPAM's products and services. User represents and warrants that: (i) User owns or controls all rights in and to the User-Provided Materials and has the right to grant the license granted above to EPAM and our affiliates and service providers, and each of their respective licensees, successors, and assigns; and (ii) all User-Provided Materials do and will comply with this Agreement.
- Permitted Use of the Software. The User is hereby permitted to use the Software solely in compliance with the terms of this Agreement and subject to the restriction mentioned below and any additional restrictions set forth in the User's company's commercial agreement with EPAM (the "Commercial Agreement").
- Terms of License. Provided that the User complies with the terms and conditions of this Agreement, EPAM hereby grants the User a limited, non-exclusive, non-transferable license to use the Software and the Documentation, subject to the following restrictions:
- Installation and Permitted Use of Software. The User may install and use one (1) copy of the Software solely for the User's or User's company's own internal business purposes in accordance with the Permitted Use and only during the license term set forth in the Commercial Agreement.
- Additional Actions. In order to use the Software outside the scope of the Permitted Use, or to deploy additional business applications of the Software, (collectively "Additional Actions"), the User's company must contact EPAM representatives and acquire a written permit. Acquisition of such additional permit provides the User only with the right to take the Additional Actions specifically enabled by such additional permit and the associated Download Keys. The acquisition of such additional permits will in no way alter the terms and conditions (including without limitation rights and restrictions with respect to use of the Software) set forth in this Agreement. Any attempt to take any Additional Action without the requisite permit, or to otherwise defeat or circumvent the restrictions on use built into the Software, is prohibited and constitutes a material breach of this Agreement.
- Restrictions. The User's license to use the Software is solely for the User's internal data computing and processing needs in accordance with the Permitted Use and in accordance with the Documentation. The User may not: (i) prepare derivative works based on the Software, (ii) reproduce the Software except as explicitly provided herein, (iii) modify or attempt to modify any of the Software or decompile, reverse engineer, create or recreate any related source code, (iv) remove or modify any copyright or other proprietary notice contained in any of the Software, (v) sell, assign, transfer, license, sublicense, publish, disclose, display, or otherwise make available the Software or copies thereof in any form whatsoever to any third parties (including but not limited to the User's company's own customers, suppliers, partners, or any related entities), or use the Software for any third party's data processing, computing, or other needs, or (vi) allow others to do any of the following.
- DISCLAIMER. UNLESS OTHERWISE AGREED TO BY EPAM IN WRITING, EPAM AND ITS SUPPLIERS AND AUTHORIZED RESELLERS/DISTRIBUTORS MAKE NO, WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EPAM AND ITS SUPPLIERS AND AUTHORIZED DISTRIBUTORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. EPAM AND ITS SUPPLIERS AND AUTHORIZED RESELLERS/DISTRIBUTORS DO NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. THE USER ASSUMES THE RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND HARDWARE TO ACHIEVE THE INTENDED RESULTS AND FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM THE SOFTWARE.
- LIMITATION OF LIABILITY. IN NO EVENT EPAM OR ITS SUPPLIERS OR AUTHORIZED RESELLERS/DISTRIBUTORS WILL BE LIABLE FOR ANY LOSS OF DATA, LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, OR COST OF RECOVERY, OR FOR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM THE USE OF THE SOFTWARE, OR ACCOMPANYING DOCUMENTATION, CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF EPAM, ITS SUPPLIERS, OR AUTHORIZED DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL EPAM'S LIABILITY EXCEED THE LESSER OF (1) THE AMOUNT PAID BY USER DURING THE IMMEDIATELY PRECEDING TWELVE MONTHS FOR THE LICENSED SOFTWARE AT ISSUE; AND (2) THE LIMITATION OF LIABILITY SET FORTH IN THE COMMERCIAL AGREEMENT. THE USER ACKNOWLEDGES THAT THE LICENSE FEE REFLECTS THIS ALLOCATION OF RISK.
- Indemnification. User agrees to defend, indemnify and hold harmless EPAM, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to User's violation of this Agreement or use of the Software, including, but not limited to, User-Provided Materials, or User's use of any information obtained from the Software.
- Export Restriction. The User agrees not to export or re-export the Software in any form without the written consent of EPAM and complying with all appropriate United States and foreign government licenses. The User will not, directly or indirectly, export or transfer the Software to any country to which transmission is prohibited by the applicable statute. Failure to comply with this provision is a material breach of this Agreement.
- Term and Termination. Either party may terminate this Agreement without cause on 30 days' prior written notice to the other party. Either party may terminate this Agreement if the other party materially defaults in the performance of any of its obligations hereunder and fails to cure such default within 20 days after written notice from the non-defaulting party. Upon expiration or termination of this Agreement for any reason (a) User's right to access the Software and all licensed rights granted will immediately terminate and cease to exist, and (b) User must (i) promptly discontinue all use of any Software provided under the Agreement, (ii) erase all copies of Software from User's computers and return to EPAM or destroy all copies of such Software and related Documentation on tangible media in User's possession, and (iii) return or destroy all copies of the Documentation in User's possession or control, and (iv) each party shall promptly discontinue all use of the other party's Confidential Information disclosed in connection with the Agreement and return to the other party or, at the other party's option, destroy, all copies of any such Confidential Information in tangible or electronic form.
- Changes to These Terms. EPAM may revise and update the terms of this Agreement from time to time in its sole discretion and without prior notices, except that EPAM will notify User of any material changes to this Agreement, including, but not limited to, changes to the dispute resolution, governing law and jurisdiction provisions set forth herein ("Material Changes"). All changes are effective immediately when posted by EPAM. However, Material Changes will not apply to any disputes that arise prior to the date that the User has actual notice of such Material Changes. User's continued use of the Software following the posting of any revisions to this Agreement means that User accepts and agrees to the changes.
- Miscellaneous. This Agreement represents the complete agreement concerning the License of the Software from EPAM. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be amended only to the extent necessary to make it enforceable. This Agreement and the rights under this Agreement may not be assigned by the User without the prior written consent of EPAM. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania, excluding its conflict of laws provisions. Each party agrees that any dispute shall be brought exclusively in the state or federal courts sitting within the judiciary district of the United States District Court in the Eastern District of Pennsylvania, Philadelphia County and that it will submit to the jurisdiction of the state or federal courts therein, and to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.