END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (“EULA”) is entered into between Armanino LLP (“Armanino”) on the one hand, and you and your company (collectively, “You” or “Your”) on the other hand.
If You accept this EULA, You will be granted access to Armanino’s Private Education Financial Framework Toolkit (the “Toolkit”) online. BY CLICKING THE “I ACCEPT” BUTTON, OR BY ACCESSING, ENTERING DATA INTO OR OTHERWISE USING THE TOOLKIT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA AND AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS EULA AND DO NOT AGREE TO BE BOUND BY THIS EULA, DO NOT ACCESS OR USE THE TOOLKIT.
If You agree to these terms on behalf of an organization, You hereby represent and warrant to Armanino that You are authorized to accept these terms and this EULA on its behalf.
- License. Upon Your acceptance of this EULA, Armanino hereby grants You a non-assignable, non-transferable, free of charge, term-based and non-exclusive (without right to sub-license) right to use the Toolkit to create financial metrics and reports (collectively, the “Reports”) for Your internal use. You may provide access to the Toolkit only to Your employees or contractors which have been authorized by You to use the Toolkit (“Authorized Users”), however You remain responsible for all Authorized Users’ compliance with this EULA.
- Prohibited Activities. You shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Toolkit available to any third party other than Authorized Users; (ii) download, reproduce or install the Toolkit, or make any use of the Toolkit other than through the web server access provided by Armanino; (iii) use the Toolkit in violation of applicable Law; or (iv) reverse engineer or decompile any portion of Toolkit. You agree to comply with all export laws and restrictions and regulations of any United States or foreign agency or authority, and not to export or re-export any portion of the Toolkit in violation of any such restrictions, laws or regulations, or without all necessary approvals.
- Proprietary Rights. Armanino owns all right, title and interest in and to the Toolkit. Armanino reserves all rights in and to the Toolkit, and any documentation therein, including all related intellectual property rights, that are not expressly granted to You herein.
- No Warranty. ARMANINO DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT. ARMANINO DOES NOT WARRANT THAT THE TOOLKIT WILL BE ERROR FREE OR UNINTERRUPTED OR THAT THE FUNCTIONS OF THE TOOLKIT AND/OR THE REPORTS WILL MEET YOUR REQUIREMENTS. ARMANINO SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY MODIFICATIONS TO THE TOOLKIT AND/OR THE REPORTS OR ANY SERVICE AND SUPPORT OF THE TOOLKIT PERFORMED BY YOU. FURTHER, ARMANINO SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY DEFECTS WHICH ARE A CONSEQUENCE OF EXTERNAL FACTORS, INCLUDING OTHER PROGRAMS, OR A CONSEQUENCE OF THE INTEGRATION OF OR INTERACTION BETWEEN THE TOOLKIT AND YOUR OWN HARDWARE AND SOFTWARE ENVIRONMENTS. THE TOOLKIT PROVIDED IN AN “AS-IS” FORM.
- Indemnity. You shall defend, indemnify and hold harmless Armanino and its affiliates, employees, agents, successors and assigns from any from any losses, liabilities, judgments, damages, claims, actions, proceedings, demands, costs and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) arising from or related to (a) the breach of this EULA or applicable laws by You, Your Authorized Users, or anyone acting on Your behalf; (b) the use of the Toolkit or any output therefrom, including any reliance on the Reports; and (d) Your negligence, willful misconduct, or other acts or omissions related to or arising from this EULA.
- Confidentiality. You acknowledge and agree that the Toolkit is the confidential information of Armanino (the “Confidential Information”). You shall use reasonable diligence, and in no event less than that degree of care that you use in respect to your own confidential information of like nature, to prevent the disclosure or reproduction of the Toolkit, except as authorized by Armanino in writing prior to such disclosure. Without limiting the generality of the foregoing, to the extent that this EULA permits the copying of Confidential Information, all such copies shall bear the same confidentiality notices, legends, and intellectual property rights designations that appear in the original versions and You shall keep detailed records of the location of all Confidential Information. You will not disclose the Confidential Information to any third parties, or any employee or individual contractor otherwise permitted to use the Confidential Information that is not bound to You by confidentiality obligations no less restrictive than those set forth herein.
- Usage Right. You hereby grant Armanino a perpetual, non-exclusive, royalty free, transferable, irrevocable, worldwide, sub-licensable license to the data input by You or Your Authorized Users to the Toolkit, to allow Armanino to use such data and information for the purposes of benchmarking and analysis (including statistical, data and trend analysis), creation of data models, and for any other lawful purposes. You authorize Armanino to include Your anonymized data in aggregations that may be shared publicly, including, without limitation, on Armanino’s website, with its clients, with other users of the Toolkit, and with other third parties. Armanino may also transfer the information from the U.S. to other countries, which may have less stringent data protection laws. Any of Your raw data collected will only be accessible by Armanino staff or contractors who need to process this information and are subject to non-disclosure obligations.
- LIMITATION OF LIABILITY. YOU AGREE, THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ARMANINO HAVE ANY LIABILITY TO YOU ARISING FOR ANY REASON UNDER THIS EULA, THE TOOLKIT OR THE REPORTS, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE. ADDITIONALLY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ARMANINO HAVE ANY LIABILITY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS EULA, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE TOOLKIT, THE REPORTS, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF ARMANINO HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Term and Termination. Unless otherwise provided under a separate agreement between Armanino and You, You are granted access to the Toolkit for a period of 90 days following Your acceptance of this EULA, at no charge to You, after which time Your access to the Toolkit will terminate automatically. You may purchase a continued license to the Toolkit by entering into a separate agreement with Armanino.
- General. The parties are independent contractors, and this EULA shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties. No party has the power to bind the other or incur obligations on the other's behalf. This EULA sets forth the entire understanding between the parties and supersedes any and all oral or written agreements or understandings between the parties as to its subject matter. This EULA shall be governed by the laws of the State of California, without reference to its conflicts of laws. Each party submits to the exclusive jurisdiction of the courts of the State of California, County of Contra Costa with respect to any dispute arising out of or related to this EULA, and each party expressly waives any and all objections such party may have to venue, including, without limitation, the inconvenience of such forum, in any of such courts. This EULA may not be amended, modified or superseded, unless expressly agreed to in writing by both parties. All notices, requests or other communications required or permitted to be given hereunder shall be sent by registered mail, postage prepaid, facsimile, or electronic mail to the other party at its address set forth below or to such other address as may from time to time be notified by either party to the other. Notices shall be deemed received upon actual receipt.
V1 Updated: April 30, 2020