Terms & Conditions

Version 2017-1

Exivity Licensees are bound by these software license terms & conditions. All references to the Quote shall be deemed to also refer to, without limitation, these Terms and the other documents referenced in the Quote.

1. License Grants.

  1. Application and Documentation. Subject to payment in full by Customer (“Licensee”) and these Terms, Exivity grants to Licensee a non-exclusive, non-transferable license to install and use the Application solely on computers or servers located within the Licensee’s premises (“Licensee Site”) and solely for Authorized Users. The license shall be a subscription license unless otherwise stated in the Sales Quote (“Quote”). Exivity further grants to Licensee a non-exclusive, non-transferable license to access and use Application Documentation within the Licensee Site by Authorized Users.

  2. Licensee shall use the Application only in a manner consistent with the licenses granted. Except as set forth herein, Licensee shall not distribute, sublease, transfer, copy, reproduce, download, display, modify or timeshare the Application or any portion thereof, or use such as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. Licensee shall not itself, or cause or permit any employee, independent contractor or third party to translate, reverse engineer, decompile or disassemble the Application or attempt to discover or reproduce the source code for the Application. Exivity reserves all rights in the Application not expressly granted to Licensee hereunder. Licensee agrees to protect the Application and the Documentation from unauthorized access, copying or use.

2. Installation of Application.

  1. Delivery of the Application occurs when Exivity sends Licensee a download hyperlink to the Application via email. Documentation shall be made available to Licensee by electronic means.

  2. Installation. Based upon mutually agreed implementation arrangements, the Application may be installed by Licensee or by Exivity or its designee. In the event Exivity or its designee installs and configures the Application, the implementation price will be stated in the Quote prepared by Exivity and signed by Licensee. The implementation activities will be detailed in the Implementation Terms and in the associated implementation Statement of Work (“SOW”). The Quote, Implementation Terms and SOW are hereby incorporated into these Terms by reference and shall be subject to these Terms.

3. Licensee Obligations.

  1. Authorized Users. Licensee is responsible for designating and allowing only those Authorized Users permission to access and use the Application

  2. Compliance with Applicable Laws. Licensee agrees to comply with all laws, rules, orders or regulations in utilizing the Application and Charge Back Services. Licensee agrees to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which Licensee resides.

4. Support, Downtime and Exclusions.

  1. Support and Downtime. Licensee shall be entitled to the level of Support and Maintenance paid for and specified in the Exivity Support and Maintenance Terms. The Support and Maintenance Terms are subject to periodic updating by Exivity and are incorporated into these Terms by reference. The Application may be down and inaccessible for reasonable periods of time on a schedule posted by Exivity (typically during period of lowest anticipated usage).

  2. Exclusions. Exivity shall not be responsible for or have any liability with respect to any Application failures caused by; (i) use by Licensee in a manner not authorized in these Terms or the Documentation accompanying Application, (ii) Licensee or third party equipment and/or software not provided or authorized by Exivity in writing, (iii) Licensee’s third party acts or systems; or (iv) general internet problems, force majeure events, or other factors outside of Exivity’s reasonable control.

5. Professional Services.

  1. Professional Services. Exivity may provide implementation or post-implementation engineering, consulting and other services to Licensee (“Professional Services”) pursuant to the Exivity implementation terms located at and at and associated SOW or by separate Professional Services Agreement executed by the Parties. Training for the Application shall be provided to Licensee by remote session unless otherwise agreed by the Parties.

  2. Title. Exivity shall own all right title and interest, including without limitation, all Intellectual Property Rights, in and to any work product resulting from the Professional Services (the “Work Product”); provided, however, Licensee shall have the right to use such Work Product in accordance with the license set forth in Section 1 of these Terms.

6. Proprietary Rights; Audit Rights; Updates and Upgrades.

  1. Proprietary Rights. Excepting only the licenses granted in Section 1 (License Grants), all right, title and interest (including, without limitation, Intellectual Property Rights) in and to the Application, the Exivity Solution and the Work Product (including any corrections, Updates, Upgrades, adaptations, enhancements or copies of the foregoing) shall remain exclusively with Exivity. Though not authorized to do so, should Licensee or any party acting on behalf of Licensee create any derivative works of Application, Licensee hereby assigns, agrees to assign and shall cause such third party to assign any and all right, title and interest (including, without limitation, Intellectual Property Rights) in such derivative works to Exivity or Exivity’s designee.

  2. Audit Rights. Exivity or its designee may, upon reasonable notice of at least forty-eight (48) hours, inspect or cause the inspection of all Licensee systems (whether or not located on the License Site) and other records of Licensee for the sole purpose of verifying compliance with these Terms. All such audits will be conducted during reasonable business hours and in a manner that does not unreasonably interfere with Licensee’s business activities.

7. Warranties; Exclusive Remedies.

  1. Warranty. The Exivity warranty applies to Application releases that are no more the one release Upgrade behind the current release. Exivity warrants that the Application will operate in substantial conformity with the Documentation provided for a period of ninety (90) days from the Effective Date; however, Exivity does not warrant that Licensee’s use of the Application will be uninterrupted or error-free. In the event of a material breach of the foregoing warranty, Licensee will notify Exivity in writing within ten (10) days of such breach. Upon receipt of such notice, Exivity agrees to use commercially reasonable efforts for no less than thirty (30) days, to cure the non-conforming Application, or if such cure is not commercially reasonable, terminate these Terms and refund to Licensee the pro rata portion of any unallocated fees paid to Exivity under these Terms. THE REMEDIES SET FORTH IN THIS SECTION SHALL BE LICENSEE’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF A BREACH OF THE WARRANTY SET FORTH IN THIS SECTION.

  2. Exclusions. Exivity makes no representation or warranty regarding third party services, or any software or hardware acquired by Exivity from a third party, and all such third party services, software and hardware is provided “AS IS” and “WITH ALL FAULTS.” The warranty set forth in Section 7.1 shall not apply (i) if the Application is used with hardware or software not specified in the Documentation (ii) if any modifications are made to the Application by the Licensee or its agents or (iii) with respect to defects caused by unauthorized or improper use by the Licensee.



8. Confidential Information.

  1. Definition. For the purposes of these Terms, “Confidential Information” means the Application and any and all (i) technical and non-technical information including, but not limited to, patented, non-patented, trade secret and proprietary information, techniques, development roadmaps, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment and algorithms related to the application, and related Documentation, (ii) information relating to costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how of Exivity, (iii) all non-public information of Exivity. Notwithstanding the foregoing, “Confidential Information” shall not include information that: (1) is or becomes generally known or available through no fault of Licensee; (2) is lawfully obtained from a third party who has the right to make such disclosure; or (3) is publicly released for publication in writing by Exivity.

  2. Nondisclosure and Nonuse Obligation. Each Party ensures that it and its employees, agents and contractors will not disseminate, or in any way disclose, any Confidential Information of the other Party, any person, firm or business, except as necessary to perform obligations set forth in these Terms and then only under a written confidentiality agreement no less restrictive than this Section 8 (Confidential Information). Each Party will treat such Confidential Information with the same degree of care as it accords to its own confidential information of like sensitivity, but in no event less than a reasonable level of care. Each Party further ensures that it and its employees, agents and contractors will use the other Party’s Confidential Information only for the purposes contemplated by these Terms.

9. Indemnity.

  1. Indemnification by Exivity. Exivity, at its expense, shall defend, indemnify and hold Licensee harmless from and against any loss, damages or liability to the extent arising out of, or related to, a claim, suit or proceeding (each a “Claim,” and collectively, the “Claims”) that the use by Licensee of Application in the manner provided in these Terms, infringes a United States patent or the United States copyright of any third party, provided that Licensee: (i) promptly notifies Exivity of such Claims; (ii) provides Exivity with full control of the defense and settlement of each such Claim; (iii) cooperates with Exivity in such defense and settlement, and (iv) does not settle any such Claim or suit without Exivity’s prior written consent. Licensee may participate in the defense and settlement of any Claim with counsel of its choice at its own expense provided that Exivity shall continue to have sole control of such defense or settlement.

  2. Exclusions. The following exclusions apply: (1) if the Application or Work Product is modified by any party other than Exivity, but solely to the extent the alleged infringement is caused by such modification; (2) the Application or Work Product is combined with third-party hardware or software not authorized in writing by Exivity, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Application or Work Product; (4) to any unsupported release of the Application, that being a release that is more than one released Upgrade behind current Exivity release; or (5) to any third-party code provided separately with the Application or Work Product.

  3. Enjoinment. If Licensee’s use of Application or Work Product under these Terms is, or in Exivity’s opinion is likely to be, enjoined based on a Claim for which Exivity is obligated to provide indemnification under Section 9.1, then Exivity may, at its sole option and expense, either: (i) procure for Licensee the right to continue using Application and Work Product under these Terms; (ii) replace or modify such Application or Work Product so that it is non-infringing and substantially equivalent in function to the enjoined application; or (iii) if options (i) and (ii) above cannot be accomplished despite Exivity’s commercially reasonable efforts, then Exivity may terminate Licensee’s rights and Exivity’s obligations under these Termswith respect to the Application and Work Product.


  5. Indemnification by Licensee. Licensee shall indemnify, defend and hold harmless Exivity, its affiliates and service providers and each of their respective officers, directors, managers, members, stockholders, employees and agents (collectively, the “Indemnitees”) from and against any and all liabilities, claims, demands, losses, damages, costs and expenses, including reasonable attorneys’ fees, related to or arising out of (a) any breach of these Terms by Licensee, (b) use of the Application or Work Product by Licensee (except for claims for which Exivity is to provide indemnification under Section 9.1); (c) the Licensee Content or the Licensee systems; (d) specifications or modifications requested by Licensee; (e) the use of Application or Work Product in combination with products not provided by Exivity; (f) failure to use updated or modified versions of an application provided by Exivity; or (g) use of Application other than as specified in the Documentation by Exivity; or (h) any conduct, acts or omissions of any Authorized User; provided that Exivity: (1) promptly notifies Licensee of such Claims; (2) provides Licensee with full control of the defense and settlement of each such Claim; (3) reasonably cooperates with Licensee in such defense and settlement, and (4) does not settle any such Claim without Licensee’s prior written consent. Exivity may participate in the defense and settlement of any Claim with counsel of its choice at its own expense provided that Licensee shall continue to have sole control of such defense or settlement.

10. Payment Obligations.

  1. Fees for License and Support. Licensee shall pay Exivity the fees (“License Fees”) in the time period set forth in the Quote and these Terms as consideration for the license and support to the Application provided under these Terms. License Fee billing by Exivity shall occur upon delivery of the Application per Section 2.1. License Fees shall be due Net thirty (30) days from the date of the Exivity invoice unless otherwise stated in the Quote or these Terms.

  2. Fees for Professional Services. Fees for Professional Services and related expenses shall be invoiced and due as set forth in the Quote. Professional Services Fees shall be due Net thirty (30) days from the date of the Exivity invoice unless otherwise stated in the Quote.

  3. Late Payments. If any fees, expenses or charges are not paid when due under these Terms, Licensee shall pay to Exivity interest on the unpaid balance computed on a daily basis from the date of the invoice at the lower of one percent (1%) per month or the maximum allowed by applicable law. All interest shall be immediately due and payable. Late payment of any fees may disrupt Licensee’s utilization of the Application and Work Product, at Exivity’s sole discretion.

  4. Taxes. Licensee shall be responsible for all sales taxes, use taxes, withholdings and any other taxes and charges of any kind imposed by any federal, state or local governmental entity on the transactions contemplated by these Terms, excluding only U.S. taxes based solely upon Exivity’s gross or net income.

  5. Disputes. In the event of a payment dispute, the party raising the dispute shall document their dispute and notify the other party in writing within five (5) days of payment due date, the “Dispute Date”. Parties agree to work together in good faith to resolve such disputes within ten (10) days of the Dispute Date. Any disputes not resolved within ten days shall be escalated to Senior Management of both Licensee and Exivity for immediate resolution. If the dispute is not resolved by Senior Management, Exivity reserves the right to immediately suspend all access to the Application, Work Product and its Support, terminate these Terms and declare all sums due and immediately payable. In the event a Exivity invoice contains both disputed and undisputed amounts due, Licensee shall pay the undisputed portion of such invoice per these Terms.

11. Term and Termination.

  1. These Terms shall commence on the date Exivity signs the Quote (the “Effective Date”) and shall continue for a period of three (3) years unless otherwise indicated on the Quote (the “Initial Term”). Thereafter, these Terms shall renew for successive one (1) year terms (each a “Renewal Term”), unless either Party gives sixty (60) days written notice of its intention not to renew prior to the end of the Initial Term or the then-current Renewal Term. Licensee shall remain obligated for the payment of all fees accrued through the effective date of the termination.

  2. These Terms shall terminate as set forth in Section 11.2.

    1. If Licensee fails to make any undisputed payment due to Exivity per the payment terms herein (including, without limitation, the Quote) and fails to cure such breach within ten (10) days after receiving written notice from Exivity. In the event of such breach, Exivity reserves the right to immediately turn off all access to the Application, Work Product and its Support, terminate these Terms and declare all sums due and immediately payable.

  3. (b) Except as set forth in the preceding subsection, if either party materially breaches any term or condition herein and fails to cure such breach within thirty (30) days after receiving written notice of the breach, the non-breaching party may, terminate these Terms on written notice at any time following the end of such five (5) day period.

  4. Obligations on Termination. If these Terms are terminated hereunder, all of Licensee’s rights to the Application, Work Product, Documentation and Support including, but not limited to, use and access, shall automatically terminate. Licensee shall immediately cease any use of the Application and Work Product upon such termination or expiration, terminate Authorized User access to the Application, and remove the Application from Licensee systems. Licensee shall return, or at Exivity’s option, destroy, all of Exivity’s Confidential Information and provide written certification of its compliance with this requirement. Licensee shall certify such return or destruction to Exivity within thirty (30) days of the termination date.

12. General Provisions.

  1. Export Regulations. Licensee shall not export, directly or indirectly, any Application or other information acquired under these Terms or any products utilizing any such information to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.

  2. Notice. Any notice or reports required or permitted to be given under these Terms shall be given in writing and shall be delivered in person or by certified or registered mail, postage prepaid, return receipt requested, and shall be deemed given upon personal delivery or five (5) days after deposit in the mail. Notices shall be sent to the individuals signing the Quote.

  3. Injunctive Relief. The parties agree that in the event of any use or transfer of the Application, Work Product or portions thereof by Licensee in a manner that is not expressly permitted herein, or in the event of any breach or threatened breach of Section 1 and Section 8 by Licensee, Exivity will suffer an irreparable injury, such that no remedy at law will afford Exivity adequate protection or appropriate compensation for such injury. Accordingly, in addition to remedies available at law, Licensee hereby agrees that Exivity shall be entitled to specific performance of Licensee’s obligations under these Terms, without bond, as well as such further injunctive relief granted by a court of competent jurisdiction.

  4. Waiver or Delay. Any waiver of any kind or character by either party of a breach of these Terms must be in writing, shall be effective only to the extent set forth in such writing, and shall not operate or be construed as a waiver of any subsequent breach by the other party. No failure of either party to insist upon strict compliance by the other with any obligation or provision hereunder, and no custom or practice of the parties at variance with the terms hereof, shall constitute a waiver of either party’s right to demand exact compliance with the Agreement. Nor shall either party’s delay or omission in exercising any right, power or remedy upon a breach or default by the other party impair any such right, power or remedy. The exercise of any right or remedy provided in these Terms shall be without prejudice to the right to exercise any other right or remedy provided by law or equity.

  5. Force Majeure. If by reason of labor disputes, strikes, lockouts, riots, war, acts of terrorism, inability to obtain labor or materials, earthquake, fire or other action of the elements, accidents, governmental restrictions, appropriation or other causes beyond the control of a party hereto, either party is unable to perform in whole or in part its obligations as set forth in these Terms, then such party shall be relieved of those obligations (other than the payment of money) to the extent it is so unable to perform and such inability to perform shall not make such party liable to the other party. Neither party shall be liable for any loss, injury, delay or damages (other than failure to receive monies when due) suffered or incurred by the other party due to the above causes.

  6. Survival of Obligations. The parties agree that their respective obligations and duties under Sections 1.2 (Restrictions), 4.2 (Exclusions), 5.4 (Liability), 5.5 (Title), 6.1 (Proprietary Rights), 6.2 (Audit Rights), 7.2 (Exclusions), 7.3 (No Other Warranty; Disclaimer), 7.4 (Limited Liability), 8 (Confidential Information), 9 (Indemnity), 11.3 (Obligations on Termination), 12 (General Provisions) and 13 (Definitions) and any claims by Exivity for amounts due, and any antecedent claims for breach of contract, shall survive any expiration or termination of these Terms.

  7. Severability. If any provision of these Terms shall be found by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that these Terms shall otherwise remain in effect.

  8. Arbitration. Except as to claims or disputes arising out of or relating to Sections 1.2, 6 and 7 (the “Non-Arbitrable Claims”), any controversy, claim or dispute arising out of or relating to these Terms, shall be determined by arbitration in The Netherlands before a sole arbitrator. If the parties are unable to agree on an arbitrator within thirty (30) days of the filing of the demand for arbitration, an arbitrator shall be selected pursuant to the Commercial Arbitration rules and procedures of the European Law. The parties hereto shall be entitled to reasonable discovery (both documentary and depositions) in any such arbitration. The non-prevailing party shall bear all costs and expenses, including reasonable attorneys’ fees, administrative costs and the fees of the arbitrator in connection with such arbitration. The arbitration award shall be in writing and, shall specify the factual and legal basis for the award and shall be conclusive and final.

  9. Governing Law. These Terms shall be governed in all respects by the laws of the Netherlands, without giving effect to its internal conflict of law provisions. Each party will voluntarily appear before and hereby consents and submits to the exclusive jurisdiction of the Netherlands in connection with any suit, action, proceeding or counterclaim against it arising out of or in any way relating to Non-Arbitrable Claims. In addition, each party consents to venue and hereby waives objections to venue for any such action commenced in such courts related to such Non-Arbitrable Claims and to enforcement of any requirements of Section 12.8 or enforcement of any arbitration decision or award pursuant to Section 12.8. All actions related to or arising out of these Terms must be brought within one (1) year after the cause of action accrued. Each of the parties hereto irrevocably waives all right to trial by jury in any action, proceeding or counterclaims arising out of or relating to these Terms or any other document. The prevailing party in any such litigation or dispute shall be entitled to recover from the other party its costs and fees, including reasonable attorneys’ fees, associated with such litigation or dispute. The parties exclude in its entirety the application to these Terms of the United Nations Convention on Contracts for the International Sale of Goods.

  10. Assignment and Successor Entities. Licensee shall not directly or indirectly sell, transfer, assign, convey, pledge, encumber or otherwise dispose of these Terms, whether by operation of law or otherwise, or in connection with a reorganization, merger, or sale of assets or stock, without the prior written consent of Exivity. Any sales transfer, assignment, conveyance, pledge or disposal in violation of this Section shall be null and void. Exivity may assign these Terms without notice to or consent of Licensee in the event of a merger (by operation of law or otherwise), reorganization, consolidation or sale of all or substantially all of Exivity’s assets.

  11. Relationship of the Parties. Nothing contained in these Terms shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The relationship between the parties shall at all time be that of independent contractors. Neither party shall have authority to contract for or bind the other in any manner whatsoever. These Terms confer no rights upon either party except those expressly granted herein.

  12. Counterparts. These Terms may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

  13. Entire Agreement. These Terms are the complete, entire, final and exclusive statement of the terms and conditions of the license agreement between the parties. These Terms supersede and govern any prior or collateral agreements between the Parties with respect to the subject matter hereof. These Terms may not be modified except in a writing executed by duly authorized representatives of the parties.

  14. Drafting. The Parties agree that the Quote has been fully negotiated and these Terms jointly drafted between them and that no rule of construction shall be applied against either Party in law or equity as the drafter of these Terms.

  15. Attachments or Electronic Links. All attachments or electronic links to these Terms to which reference is made in these Terms are hereby incorporated, in full, into these Terms as an integral part of these Terms.

  16. Signatories. Each signatory of the Quote represents and warrants that it has the authority to bind the Party for whom it is signing.

  17. Application Data. Exivity reserves the right to collect, analyze and utilize Non-Identifiable Data (as such term is defined below) from the Application for internal purposes including research, benchmarking, and developing enhancements to the Application and/or other Exivity products or services. The term “Non-Identifiable Data” shall mean data which has been compiled, extracted, modified, anonymized or aggregated in such a manner that the individual source of the data cannot reasonably be identified.

13. General Provisions.

In addition to the terms defined in these Terms, the terms below shall have the following meanings:

  1. “Application” means the software tools in object code form only, including Updates and Upgrades, also referred to as the Exivity Solution.

  2. “Authorized User” means any employee, independent contractor, consultant, partner or affiliate of Licensee that is authorized by Licensee to access, use or administer the Application under these Terms, either directly or via Virtual Machine.

  3. “Exivity Solution” shall mean the Exivity financial management and analysis software application; provided, however, that if such term shall have a different meaning described in the Quote then the meaning in the Quote shall control.

  4. “Documentation” means any technical specification documentation generally made available by Exivity to its Licensees with regard to the Application.

  5. “Intellectual Property Rights” means any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing throughout the universe (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, design rights, and other industrial property rights, (e) all registrations, applications (including continuations, continuations-in-part, and divisions thereof), renewals, extensions, reissues and re-examinations thereof now or hereafter in force (including all rights in any of the foregoing), and (f) all other intellectual and industrial property rights (of every kind and nature and however designated) (including logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise.

  6. “Licensee Content” means any files, software, scripts, multimedia images, graphics, audio, video, text, data or other objects, including any third party content or materials, originating or transmitted from or through Licensee, and its employees or agents, and/or uploaded or routed to, passed through and/or stored on or within the Application.

  7. “Quote” means the Sales Quote created by Exivity for Licensee, as defined in these Terms.

  8. “Updates” means any updates, revisions, bug fixes or the like with respect to the Application that are provided to Licensee. Updates are those minor revisions designated as “dot” releases

  9. “Upgrades” means new versions of the Application that are provided to Licensee which would typically contain new functionality or features and which may be offered commercially for a separate charge. Upgrades are defined as major “first digit” revision releases (e.g. version 2.4.0 to version 3.0.0).

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