EULA

This End User License Agreement For Bizney Erply Platform for Enterprise (“EULA” or this “Agreement”) is a binding contract between you and Bizney Ltd a company incorporated in England, UK (“Bizney”) which governs your use of Bizney Erply Platform for Enterprise and services provided therewith (collectively, the “Software”).

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SOFTWARE BECAUSE IT CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN YOU AND BIZNEY. IF YOU ARE AN EMPLOYEE OF OR CONSULTANT OR CONTRACTOR TO AN ENTITY SUBSCRIBING TO THE SOFTWARE (“CUSTOMER”), YOUR AGREEMENT TO THIS EULA WILL BE DEEMED TO BE THE AGREEMENT BETWEEN THAT CUSTOMER AND BIZNEY AND YOU AND THE CUSTOMER REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY OR HAVE BEEN PROVIDED THE AUTHORITY TO BIND THE CUSTOMER TO THE TERMS AND CONDITIONS OF THIS EULA.

BY ACCESSING OR USING THE SOFTWARE, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTOOD THIS AGREEMENT, AND CUSTOMER AGREES TO COMPLY WITH AND BE BOUND BY ITS TERMS. IF CUSTOMER IS NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE SOFTWARE.

NOTWITHSTANDING ANYTHING ELSE STATED HEREIN, IF CUSTOMER AND BIZNEY HAVE EXECUTED A WRITTEN AGREEMENT FOR THE ACCESS TO OR USE OF THE SOFTWARE (“SIGNED AGREEMENT”), THEN THE TERMS OF THE SIGNED AGREEMENT SHALL GOVERN AND CONTROL AND THIS AGREEMENT SHALL HAVE NO EFFECT.

CUSTOMER ACKNOWLEDGES THAT CUSTOMER REPRESENTATIVE (AS DEFINED BELOW) MAY NEED TO ACCEPT ADDITIONAL TERMS AND CONDITIONS THAT MAY POP UP ON THE SCREEN OF HIS OR HER MOBILE DEVICE WHICH RELATE TO DATA COLLECTION, PRIVACY PRACTICES, FUNCTIONING OF THE SOFTWARE AND BIZNEY’S LIABILITY DIRECTLY TO CUSTOMER REPRESENTATIVES (“POP UP AGREEMENT”) TO ACCESS TO OR USE THE SOFTWARE. IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF THE POP UP AGREEMENT AND THIS EULA, THIS EULA SHALL GOVERN AND CONTROL AND THE CONFLICTING TERMS OF THE POP UP AGREEMENT SHALL HAVE NO EFFECT TO CUSTOMER OR CUSTOMER REPRESENTATIVE.

 

This EULA includes the following attachments which are incorporated herein by reference:

A Local Terms & Conditions (as applicable)

1. LICENSE

1.1 Grant of License

Subject to the terms and conditions of this EULA, during the applicable license term, Bizney hereby grants to Customer, and any employee or contractor of Customer whom Customer authorizes to access and use the Software on behalf of and for the benefit of Customer (“Customer Representative”) a limited, non-exclusive, non-transferable and non-sublicensable license for Customer and Customer Representatives to use the object code form of the Software for Customer’s purposes only and , solely in accordance with the applicable documentation provided by Bizney for use of the Software (“Documentation”). Customer may use the Documentation for internal purposes only. Customer may not use the Software for any purpose or in any way, not expressly permitted by this EULA. The Software is licensed, not sold. All references to the Software includes all related graphics, user interfaces, scripts and services provided by Bizney for use of the Software, and any updates, upgrades, enhancements, modifications, revisions or additions to the Software made available to Customer by Bizney. However, Bizney is under no obligation to provide any updates, upgrades, enhancements, modifications, revisions or additions to the Software except if Customer has purchased maintenance services from Bizney or a Bizney Erply authorized reseller.

1.2 Restrictions

As a condition of the license granted in Section 1.1, Customer shall not: (i) use the Software or any portion thereof, except as expressly authorized by this EULA; (ii) use the Software or any portion thereof on equipment, products, or systems not identified in Documentation; (iii) modify the Software or any portion thereof or create derivative works based upon any Software or any portion thereof; (iv) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software or any portion thereof to human-readable form; (v) use the Software or any portion thereof in any way that is in violation of any applicable laws; (vi) distribute, sell, license or otherwise provide the Software or any portion thereof to any third parties; (vii) use the Software or any portion thereof to perform services for third parties except as otherwise expressly provided herein; (vii) release, publish, and/or otherwise make available to any third party the results of any performance, functional or security evaluation of the Software or any portion thereof without the prior written approval of Bizney; (viii) alter or remove any proprietary notices or legends contained on or in the Software or any portion thereof; or (ix) use the Software for emergency, life saving, life support, nuclear energy equipment, air traffic control, the operation of critical communication system, public transportation control or other ultra-hazardous uses where failure of the Software to perform would be reasonably expected to cause deaths, injuries or severe physical property or environmental losses. Any attempt to do any of the foregoing shall be deemed as a material breach under this Agreement.

2. INTELLECTUAL PROPERTY, LICENSES

2.1 Ownership

The Software is proprietary to Bizney or its licensors, and protected under applicable copyright, patent, trademark and trade secret laws. Customer further acknowledges and agrees that, as between Customer and Bizney, Bizney owns and shall continue to own all right, title and interest in and to the Software, including associated intellectual property rights under the applicable laws. This EULA does not grant Customer any ownership interest in or to the Software, but only a limited license to use that is revocable in accordance with the terms of this EULA.

2.2 Open Source Software

The Software may contain or be provided with open source libraries, components, utilities and other open source software (collectively, “Open Source”), which Open Source may have applicable license terms as identified on a website designated by Bizney or otherwise provided with the applicable Documentation. Notwithstanding anything to the contrary herein, use of the Open Source shall be subject to the applicable Open Source license terms and conditions to the extent required by the applicable licensor (which terms shall not restrict the license rights granted to Customer hereunder but may contain additional rights).

3. SPECIAL PROVISION: USE OF BIZNEY Bizney Erply CONTAINER

3.1 Container

The Software provides additional security by creating a separate Bizney Bizney Erply Container (“Container”), which is designed to isolate Customer’s or Customer Representative’s data and applications from certain attacks including data leakage, malware & malicious attacks such as vicious virus infection (“Malicious Attacks”). (For further information, please visit: http://www.Bizney.com)

3.2 Third Party Applications

Bizney will not be responsible for any failure of performance, deterioration, or malfunction of third party applications that may be downloaded, included in, or installed in the Container. Bizney will not be responsible if such applications do not effectively isolate data within the container or protect against Malicious Attacks. Because Bizney has no control over such third party applications, Customer acknowledges and agrees that Bizney is not responsible for the availability of such third party applications and is not responsible or liable for any content, advertising, products, services, or other materials on or available through the third party applications. Customer expressly acknowledges and agrees that use of third party applications is at Customer’s sole risk and that the entire risk of unsatisfactory quality, performance, accuracy and effort is with Customer. It is up to Customer to take precautions to ensure that whatever Customer selects to use is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. References to any names, marks, products, or services of any third parties are provided solely as a convenience to Customer, and do not constitute or imply an endorsement, sponsorship, or recommendation of, or affiliation with the third party or its products and services. Customer agrees that Bizney shall not be responsible or liable, directly or indirectly, for any damage or loss, including but not limited to any damage to the mobile device or loss of data, caused or alleged to be caused by, or in connection with, use of or reliance on any such third party content, products, or services available on or through any such third party application. Customer acknowledges and agrees that the use of any third party application is governed by such third party provider’s terms of use, license agreement, privacy policy, or other such agreement and that any information or personal data Customer provides, whether knowingly or unknowingly, to such third party application provider, will be subject to such third party privacy policy, if such a policy exists. BIZNEY DISCLAIMS ANY RESPONSIBILITY FOR ANY DISCLOSURE OF INFORMATION OR ANY OTHER PRACTICES OF ANY THIRD PARTY APPLICATION PROVIDER. BIZNEY EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING WHETHER CUSTOMER’S PERSONAL INFORMATION IS CAPTURED BY ANY THIRD PARTY APPLICATION PROVIDER OR THE USE TO WHICH SUCH PERSONAL INFORMATION MAY BE PUT BY SUCH THIRD PARTY APPLICATION PROVIDER.

3.3 Back-Up

Customer and Customer Representative may not pull out the data or information stored in the Container. Customer and Customer Representative are strongly advised to back-up any data and information before storing or using them in the Container. Bizney shall not be liable for any loss of data or information arising from Customer’s or Customer Representative’s failure to back-up.

4. SUPPORT AND MAINTENANCE SERVICES

Support and Maintenance Services (“Maintenance Service”) may be delivered by Bizney in accordance with Bizney’s Support Services for Bizney Erply Products Policy at https://www.Bizney.com/ support (“Bizney’s Support Policy”), which may be changed from time to time by Bizney’s sole discretion. If Bizney provides Maintenance Services to Customer on behalf of a Bizney Erply authorized reseller (“Authorized Reseller”), Bizney’s Support Policy will be applicable. If Customer has paid an Authorized Reseller the relevant fees to obtain support and/or maintenance services directly from such Authorized Reseller, Customer should contact such Authorized Reseller for such support and/or maintenance and relevant sections under this EULA and Bizney’s Support Policy shall not apply.

5. INFORMATION; PRIVACY

Customer agrees that the following information will be provided to Bizney by Customer and/or Customer Representative in encrypted form for the sole purpose of validation and activation of the Software, improving the Software or for statistical or demographic analysis:

Bizney License Key, unique mobile device identifier, MODEL description of mobile device, Android OS Version, Build Number, Bizney Bizney Erply-SDK version, MCC (Mobile Country code) / MNC (Mobile network code), Country ISO code, CSC code (customer software configuration), Bizney Bizney Erply Container ID, Activation time for container, Customer Representative’s e-mail address in hashed form, Customer Representative’s e-mail domain, Bizney Bizney Erply Login frequency, Bizney Bizney Erply usage time.

Unless stated otherwise herein, the above information will be collected, processed and used in accordance with Bizney’s Privacy Policy at [https://www.Bizney.com/privacy-policy] (“Privacy Policy”), which is hereby incorporated by this reference. The Privacy Policy governs how Bizney collects, processes, stores and uses information provided by Customer and/or Customer Representative or relating to Customer’s or Customer Representative’s use of the Software. Bizney may update the Privacy Policy from time to time, so please periodically review the Privacy Policy.

6. TERM; TERMINATION

6.1 Term

The license granted herein with respect to the Software shall remain effective until terminated or until the applicable license term expires, whichever is earlier. This EULA is entered into as of the earlier of the date that Customer accepts the terms herein or first accesses or uses any Software (the “Effective Date”).

6.2 Termination by Bizney

If Customer fails to comply with any of the provisions of this EULA, without limiting Bizney’s other rights and remedies, all of which are expressly reserved, at its sole discretion, Bizney may provide Customer written notice of breach and if Customer fails to cure within thirty (30) days of such notice, Bizney may immediately discontinue Customer’s and Customer Representative’s access to the Software and terminate this EULA. Upon termination of this EULA, Customer and Customer Representative shall cease use of all Software in its possession or control. Section 9 and 10 and all liabilities that accrue prior to termination or expiration shall survive any termination or expiration of this EULA.

7. LIMITED WARRANTIES; DISCLAIMER

7.1 Limited Warranties

For a period of ninety (60) days from the date of initial delivery of the Software to Customer, Bizney warrants that such Software materially conforms to the specifications described in the relevant Documentation. Customer’s sole and exclusive remedy and the entire liability of Bizney and its licensors under this limited warranty will be, at Bizney’s option, repair or replacement of such Software, or if repair or replacement is not possible, to refund the license and any associated support and maintenance fees paid for such non-conforming Software upon the return and removal (as applicable) of all such Software from servers and devices. Bizney represents and warrants to Customer that Maintenance Services, if provided by Bizney, shall be professional, workmanlike and performed in a manner conforming to generally accepted industry standards and practices for similar services. Bizney’s entire liability and Customer’s sole and exclusive remedy for any breach of the preceding warranty for Maintenance Services will be for Bizney to re-perform the nonconforming services, provided that Bizney must have received written notice of the non-conformity from Customer no later than ninety (90) days after the original delivery of the services by Bizney. The express warranties specified above do not apply if the Software or any portion of the foregoing: (i) has been altered, except by Bizney; (ii) has not been used, installed, operated, repaired, or maintained in accordance with this EULA and/or Documentation; (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (iv) is used on equipment, products, or systems not meeting specifications identified by Bizney in the applicable Documentation. Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to Bizney within the applicable warranty period specified herein and do not apply to any bug, defect or error caused by or attributable to software or hardware not supplied by Bizney.

7.2 Disclaimer

EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 7, THE SOFTWARE IS PROVIDED “AS IS”, “WHERE IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND. BIZNEY AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OR GUARANTEES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, AND SPECIFICALLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE PREVIOUS DISCLAIMER, BIZNEY AND ITS LICENSORS DO NOT REPRESENT, WARRANT OR GUARANTEE THAT THE SOFTWARE WILL (i) OPERATE IN AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE MANNER, (ii) WILL ALWAYS BE AVAILABLE OR FREE FROM ALL HARMFUL COMPONENTS OR ERRORS OR (iii) WILL BE SECURE OR IMMUNE (INCLUDING THE CONTENT DELIVERED TO CUSTOMER OR THE INFORMATION CUSTOMER PROVIDED) FROM UNAUTHORIZED ACCESS OR MALICIOUS ATTACKS.

8. LIMITATION OF LIABILITY

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BIZNEY OR ITS LICENSORS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE DAMAGES OR LOST PROFITS, EVEN IF BIZNEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BIZNEY ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE USE OF OR INABILITY TO USE SOFTWARE, ASSOCIATED SERVICES, OR OTHERWISE, EXCEED THE FEES CUSTOMER PAID FOR THE SOFTWARE OR MAINTENANCE SERVICE. THIS LIMITATION WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER BREACH OF CONTRACT, NEGLIGENCE, INFRINGEMENT OR ANY OTHER THEORY REGARDLESS OF WHETHER OR NOT BIZNEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS CUSTOMER MAY BRING AGAINST ANY OTHER PARTY TO THE EXTENT THAT BIZNEY WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SET FORTH IN THIS SECTION.

9. CONFIDENTIALITY

The Software (and any performance data, benchmark results, security assessments and all other technical information relating to the Software), the Documentation, the terms and conditions of this EULA and any other information provided by Bizney in connection with the Software shall be deemed the confidential information of Bizney (“Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information that Customer can evidence in writing: (a) is already known to Customer without restriction as to disclosure prior to disclosure by Bizney; (b) becomes publicly available without fault of Customer; (c) is rightfully obtained by Customer from a third party without restriction as to disclosure; or (d) is independently developed or created by Customer without use of the Confidential Information. Except as otherwise expressly authorized herein, Customer agrees to: (i) use the Confidential Information only to perform hereunder or exercise rights granted to it hereunder; (ii) treat all Confidential Information in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care; and (iii) disclose the Confidential Information only to Customer’s employees and agents who have a need to know such information for the purposes of this EULA, provided that any such employee or agent shall be subject to obligations of non-use and confidentiality with respect to the Confidential Information at least as restrictive as the terms of this EULA, and Customer shall remain liable for any non-compliance of such employee or agent with the terms of this EULA. Nothing in this EULA shall prevent Customer from disclosing information to the extent Customer is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, Customer shall: (i) assert the confidential nature of the information to the agency, (ii) immediately notify Bizney in writing of the agency’s order or request to disclose, and (iii) cooperate fully with Bizney in protecting against any such disclosure and obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality. The confidentiality obligations under this Section shall survive any expiration or termination of this EULA and be effective for a period of three (3) years after the expiration or termination of this EULA

10. GENERAL TERMS

10.1 Choice of Law

Except as otherwise set forth in Attachment A(if applicable), of this EULA, including all revisions and amendments thereto, is governed by and construed in accordance with the laws of England United Kingdomthe , without regard to its conflict or choice of law principles. Notwithstanding any choice of law provision or otherwise, and the United States Uniform Computer Information Transactions Act the United Nations Convention on the International Sale of Goods shall not apply.

10.2 Arbitration

Except as otherwise set forth in Attachment A (if applicable), , Customer unconditionally consents and agrees that: (i) any claim, dispute or controversy (whether in contract, tort, or otherwise) Customer may have against Bizney or its officers, directors, agents and employees arising out of, relating to, or connected in any way with the Software or this EULA (including its existence, validity or termination), will be finally resolved by arbitration to be held in London, United Kingdom, and conducted in English under the Rules of Arbitration of the International Chamber of Commerce provided, however, that each party may enforce its or its Affiliates’ (defined below) intellectual property rights in any court of competent jurisdiction, including but not limited to equitable relief. The arbitral award shall be final and binding on the parties. Except to the extent entry of judgment and any subsequent enforcement may require disclosure, all matters relating to the arbitration, including the award, shall be held in confidence. For purposes of this EULA, Affiliate means, any corporation or other entity that is controlled by, or is under common control with a party (a corporation or other entity shall be deemed to control another if it owns or controls more than fifty percent (50%) of the voting stock or other ownership interest of the corporation or entity).

10.3 Independent Contractors

The parties are independent contractors, and this EULA shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.

10.4 Equitable Relief

The parties agree that a material breach of this EULA would cause irreparable injury to Bizney for which there may be no adequate remedy at law. Accordingly, Bizney shall have the right to apply to any court of competent jurisdiction for injunctive relief and specific performance, without prejudice to any remedies available to it at law or in equity.

10.5 Entire EULA; Modifications

This EULA constitutes the entire agreement between the parties with respect to the provision of the Software and Maintenance Services. This EULA supersedes and cancels all previous written and previous or contemporaneous oral communications, proposals, representations, and agreements relating to the subject matter contained herein. This EULA prevails over any pre-printed, conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by Customer, even accepted in writing by both parties.

10.6 Export

Software and Documentation, including any technical data provided by Bizney hereunder, may be subject to export, re-export or import control laws under the country of origin, destination or use, including regulations under such laws. Customer shall comply fully with all international and national laws and regulations that apply to the Software and Documentation and to Customer and Customer Representative’s use thereof, including, but not limited to, the U.S. Export Administration Regulations, end-user, end-use and destination restrictions issued by U.S. and other governments. Without limiting the generality of the foregoing, Customer expressly agrees that Customer shall not, and shall cause Customer Representative to agree not to, export, directly or indirectly, re-export, divert, or transfer the Software and Documentation or any technical data thereof to any destination, company or person restricted or prohibited by U.S. laws or regulations or laws or regulations of any other applicable jurisdiction. Customer represents and warrants that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Customer are not listed on any U.S. Government list of prohibited or restricted parties.

10.7 Severability

If any term or provision of this EULA is held to be void or unenforceable by any judicial or administrative authority, such determination shall not affect the validity of enforceability of the remaining terms and provisions of this EULA. The remaining provisions of this EULA shall remain in effect and shall be construed in accordance with its terms.

10.8 Headings

The headings contained in this EULA are for reference purposes only and shall not affect the meaning or interpretation of this EULA.

10.9 No Waiver

The failure of Bizney to enforce at any time any of the provisions of this EULA, or the failure by Bizney to require at any time performance by Customer of any of the provisions of this EULA, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of Bizney to enforce such provision thereafter. The express waiver by Bizney of any provision, condition or requirement of this EULA shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

10.10 U.S. Government End User Purchasers

All Software, including all components thereof, and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this EULA may be incorporated, Customer may provide to Government end user or, if this EULA is direct, Government end user will acquire, the Software and Documentation with only those rights set forth in this EULA. Use of either the Software or Documentation or both constitutes agreement by the Government that all Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.

10.11 Notice

Any notice required or permitted to be given in accordance with this EULA shall be in writing. Notices to Bizney shall be sent by personal delivery, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to:

Bizney Ltd, Grove Mews, 42 The Grove, London W5 5LH, United Kingdom

For contractual purposes, Customer consents to receive communications from Bizney electronically. Notices sent to Customer shall be sent by personal delivery, electronic mail, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to: the electronic address Customer have provided to Bizney or its Authorized Reseller in connection with licensing Software or invoicing. All notices will be deemed given: (i) when delivered personally; (ii) 24 hours after electronic mail is sent, unless Bizney is notified that the email address is invalid; (iii) five (5) days after having been sent by registered or certified mail, (or ten (10) days for international mail); or (iv) one (1) day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery). Customer or Bizney may change its address for receipt of notice by notice to the other in accordance with this Section.

 

ATTACHMENT A

LOCAL TERMS AND CONDITIONS – United States of America

The following terms apply to Customer with its principal offices within United States of America or is a resident of the United States of America or to the extent that the laws of the United States of America apply to Customer’s use of the Software:

This Agreement and Customer’s relationship with Bizney shall be governed and construed in accordance with the laws of the state of Texas, without regard to its conflict of law provisions. Subject to Bizney’s right to seek injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction, Customer unconditionally consents and agrees that: (1) any claim, dispute, or controversy (whether in contract, tort, or otherwise) Customer may have against Bizney or the officers, directors and employees of Bizney and its subsidiaries or Affiliates (all such individuals and entities collectively referred to herein as the “Bizney Entities”) arising out of, relating to, or connected in any way with the Software or this EULA (including its existence, validity or termination) or the determination of the scope or applicability of this agreement to arbitrate, will be resolved exclusively by final and binding arbitration administered by JAMS or another mutually-acceptable alternative dispute resolution provider (“Arbitration Tribunal”) and conducted in the United States before a sole arbitrator in accordance with the rules of the Arbitration Tribunal; (2) this arbitration agreement is made pursuant to a transaction involving interstate commerce in the United States, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (3) the arbitrator’s decision shall be controlled by this Agreement and any of the other agreements referenced herein that the applicable Customer may have entered into in connection with the Software; (4) the arbitrator shall honor claims of privilege recognized at law; (5) there shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only Customer’s and/or the applicable Bizney Entity’s individual claims; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (6) the arbitrator shall not have the power to award punitive, exemplary, special or consequential damages against Customer or any Bizney Entity; (7) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any Bizney Entity exceed $125 USD, and Customer is unable (or not required under the rules of the Arbitration Tribunal) to pay any fees and deposits that exceed this amount, Bizney agrees to pay them and/or forward them on Customer’s behalf, subject to ultimate allocation by the arbitrator. In addition, if Customer is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Bizney will pay as much of Customer’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (8) with the exception of subparts (5) and (6) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of the Arbitration Tribunal, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (5) or subpart (6) is found to be invalid, unenforceable or illegal, then if Bizney so elects, the entirety of this arbitration provision shall be null and void, and neither Customer nor Bizney shall be entitled to arbitrate their dispute.

LOCAL TERMS AND CONDITIONS – Europe

The following terms apply to any Customer with its principal offices or residence within the European Economic Area (EEA) or European Union, or Switzerland, Iceland, Montenegro, Serbia, Kosovo, Albania, Bosnia & Herzegovina, Macedonia, San Marino, Monaco, Vatican City, the Channel Islands, the Isle of Man, overseas departments of France, or the Faeroe Islands:

1. Despite paragraph 10.1 of this Agreement, this Agreement and Customer’s relationship with Bizney shall be subject to the laws and jurisdiction of the state listed above in which you have your principal offices or, if you are not a business, the state listed above where you are resident.
2. Despite any term of this Agreement in paragraph 1.2 or elsewhere to the contrary, and to the extent required by Directive 91/250/EEC (as amended) on the legal protection of computer programs as implemented in your jurisdiction, for the time while you have the right to use the Software you have the right to:

2.1 make a back-up copy to the extent that it is necessary to do so to use the Software;

2.2 observe, study or test the functioning of the Software in order to determine the ideas and principles which underlie any element of the program if you do so while performing any of the acts of loading, displaying, running, transmitting or storing the program which you are entitled to do; and

2.3 disassemble, decompile, reverse engineer or create derivative works based on the whole, or any part, of the Software but in either case only to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities: (i) is used only for the purpose of achieving inter-operability of the Software with another software program (ii) is not unnecessarily disclosed or communicated to any third party without the Bizney’s prior written consent; and (iii) is not used to develop, produce or market any software which is substantially similar to the Software or for any other act which infringes copyright.

3. Nothing in this EULA (in particular paragraphs 7 and 8) shall exclude or limit, or be taken as seeking to exclude or limit, any liability which the applicable law does not permit to be excluded, or, as the case may be, limited but only to the extent that such exclusion or limitation is not permitted or would make the EULA unenforceable. Depending on the applicable law, this may include willful misconduct, gross negligence, death or injury caused by negligence, fraud, fraudulent misrepresentation or warranties as to ownership which cannot be excluded by law.