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End User Agreement

Client agrees that its access and use of the Software is subject to the following terms and conditions (the “EUA”). This EUA applies to any use of the Software at any time.

1. Licensing & Rights.

A. LICENSE GRANT

Client may license access to the Software; the Software is not available for sale. Subject to Client’s payment of applicable fees and compliance with all other terms and conditions of this EUA, Propio grants to Client a non-exclusive, non-sublicensable, and non-transferable license to access and use the Software and Documentation solely for the Permitted Use during the Term; provided, however, that this EUA may be transferred in connection with an assignment permitted by this EUA. This license may be revoked due to Client’s non-compliance with this EUA.

B. Scope of Licensed Access and Use restrictions

Client may access the Software, including Client Data, using Client’s credentials via a method designated by Propio or as specified in the Documentation. There is no limitation on the number of Users that may access the Software. Client may permit authorized third parties to access the Software, including its customers, consultants, contractors or others. Client is responsible for the use of the Software by any of its Users, and a breach of this EUA by a User may constitute a breach by Client. Users can only use the Software for a Permitted Use.

Except as this EUA expressly permits, Client shall not, and shall not permit any other person to:

  1. allow an unauthorized user to access the Software;
  2. access the Software in any manner other than using a method designated by Propio, bypass any security controls applied to the Software or Documentation, or disrupt the confidentiality, integrity, and availability of the Software;
  3. modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Software;
  4. copy, reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;
  5. rent, lease, sell, sublicense, assign, distribute, publish, transfer, use the Software as a component of a service bureau offering, or otherwise make available the Software to any third party except as permitted in this EUA;
  6. remove, alter, obscure, combine, supplement, or otherwise change any proprietary markings or other symbols relating to the Software or Documentation;
  7. use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right, privacy right, or right of publicity of any person, or that violates any applicable Law;
  8. use the Software for benchmarking or competitive analysis,
  9. develop, use, or provide a competing product or service or for any other purpose that is to Propio’s detriment or commercial disadvantage;
  10. use the Software in connection with any use or application where such use could lead to personal injury or property damage; or
  11. use the Software or Documentation other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by this EUA.

This EUA does not apply to Propio’s delivery of language services, which shall be subject to a separate written agreement between the parties, even if the Software is used to deliver such services.

C. Upgrades

During the Term, Client shall have access to future upgrades, updates, enhancements and other extensions of the Software’s functionality within the scope of Client’s license as they become generally available to Propio’s customers. Such upgrades shall be considered Software under this EUA. No such upgrades shall materially depreciate existing features, functionality or security controls.

D. Trials, Evaluations and Pre-release Software

Propio may permit Client access to the Software for a limited duration at no cost. Propio may permit Client access to a beta version of the Software. In either case, Client’s use of such Software is at its own discretion and risk, and Propio does not provide any warranties, indemnification, service level commitment or support for such use.

2. Intellectual Property.  As between Client and Propio, Propio and its licensors are the sole and exclusive owners of all right, title, and interest in and to the Software, Documentation, and all related Intellectual Property Rights. Client is licensing access to the Software and Documentation and Client does not have any ownership interest in the Software, Documentation or any related Intellectual Property Rights, which remain subject to the terms and conditions of this EUA at all times. Client’s access is subject only to the limited license granted to it under this EUA, and there are no implied rights granted by waiver, estoppel, or otherwise.

E. Client Cooperation and Notice of Infringement

During the Term, Client shall:

  1. take commercially reasonable measures to safeguard the Software and Documentation (including any copies) from infringement, misappropriation, misuse, or unauthorized access;
  2. reasonably assist Propio in maintaining the validity, enforceability and Propio’s ownership of the Intellectual Property Rights in the Software and Documentation at Propio’s expense; and
  3. promptly notify Propio in writing if Client becomes aware of (i) any actual infringement, misappropriation or other violation of Propio’s Intellectual Property Rights in or relating to the Software or Documentation, or (ii) any claim that the Software or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any person.

F. Rights to Feedback and Usage Data

Client grants Propio a perpetual, irrevocable, worldwide, transferrable, sublicensable, and royalty-free license to use, reproduce, distribute, and commercially exploit any comments, suggestions for improvement, or other feedback made by a User regarding the Software. Propio and its Representatives may collect, process, use, retain and disclose diagnostic, technical, usage and other data related to a User’s operation and use of the Software for the purposes of operating, analyzing, improving, marketing, and other business purposes related to the Software, provided that any such data shall not contain any Client Data, personal data, protected health information, or similar sensitive information. If such data is shared, it will be shared without identifying the User or any individual user of the services. The User retains all rights to any Client Data in accordance with the Policy.

3. Confidentiality, Privacy & Security.  A Party may disclose or make available Confidential Information to the other Party in connection with this EUA. The Software and its Documentation are Propio’s Confidential Information. Client Data is Client’s Confidential Information. A Party may not access or use Confidential Information other than as necessary to perform an obligation or exercise a right in connection with this EUA. A Party shall not disclose or permit access to the other Party’s Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for a Party to perform its rights and obligations; (ii) are aware the information is confidential and the related obligations; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms of this EUA. Each Party shall ensure its Representatives comply with this EUA, and a Party shall be responsible and liable for any of its Representative’s non-compliance with the terms of this EUA. A Party shall safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its own confidential information and in no event less than a reasonable degree of care. Notwithstanding any other provisions of this EUA, a Party’s obligations with respect to any Confidential Information that constitutes a trade secret under applicable law will continue until such Confidential Information ceases to qualify for trade secret protection under applicable law other than as a result of breaching the terms of this section.

A. Compelled Disclosures.

To the extent permitted by applicable law, if a Party or its Representative is compelled by law to disclose any Confidential Information or Client Data, the compelled Party will: (i) prior to providing any Confidential Information or Client Data in response to such request, promptly notify the other Party in writing of such compelled disclosure; and (ii) upon request of the owner of such Confidential Information or Client Data, provide reasonable assistance in seeking a protective order or other limitations on disclosure at the sole expense of the owner of such Confidential Information or Client Data. Any Confidential Information or Client Data disclosed in response to legal process shall be limited to only the portion that a Party is required to disclose by Law on the advice of legal counsel.

B. Equitable Relief

Each Party acknowledges and agrees that a breach or threatened breach by such Party of its confidentiality obligations of this EUA would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

C. Security Measures

The Software may contain technological measures designed to prevent unauthorized or illegal use of the Software. Client acknowledges and agrees that: (i) Propio may use measures to verify Client’s compliance with the terms of this EUA and enforce Propio’s rights, including all Intellectual Property Rights, in and to the Software; and (ii) Propio may deny any individual access to and/or use of the Software if Propio, in its sole discretion, believes that person’s use of the Software would violate any provision of this EUA, regardless of whether Client designated that person as a User. This information will be treated in accordance with Propio’s privacy policy located at Propio-ls.com/privacy-policy/ which may be updated from time to time. Propio will employ reasonable and appropriate administrative, organizational and technical measures to protect Client Data from unauthorized access or disclosure.

  1. Warranties.

A. Mutual Representations and Warranties

Each Party represents, warrants, and covenants to the other Party that this EUA constitutes a binding obligation enforceable against each Party in accordance with its terms, and that each Party is duly organized and in good standing as a business entity that, with respect to this EUA, is authorized to agree to its the terms, perform as obligated by it, and grant the rights it is required to grant.

B. Limited Warranty

The Software will substantially conform in all material respects with the Documentation when used as recommended in the Documentation and in accordance with this EUA. This warranty does not apply to the extent Client’s use of the Software is (i) with any technology or service not specified by Propio; (ii) other than as specified in the Documentation or modified by Client except as directed by Propio in writing; (iii) used in combination with open source components, if any, which shall only be warranted as specified in the underlying open source license; (iv) custom modifications to Client’s specifications, a beta version, or for testing or demonstration purposes; or (v) gross negligence or intentional misuse. Client is solely responsible for its own computing environment, networking equipment or services necessary to access the Software or Documentation, including telecommunication or Internet service providers. Client’s sole remedy and Propio’s sole liability for any breach of warranty shall be, as applicable, (i) Propio’s replacement, repair, restoration, or a work-around for any defective functionality; (ii) amendment of any materially incomplete or incorrect Documentation. Any warranty claim is dependent on Client timely notifying Propio of the defect and Client’s compliance with the terms and conditions of this EUA.

C. Disclaimer of Warranties

EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY PROVIDED IN THIS EUA, CLIENT’S USE OF THE SOFTWARE, DOCUMENTATION AND ANY RELATED PRODUCTS, INFORMATION, MATERIALS, AND SERVICES PROVIDED BY PROPIO ARE PROVIDED “AS IS” AND “AS AVAILABLE.” PROPIO DISCLAIMS ALL OTHER WARRANTIES, INCLUIDNG (1) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (2) THAT PROPIO ONE, THE DOCUMENTATION, OR ANY RESULTS OF THE USE THEREOF, WILL MEET ANY SPECIFIC REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT; (3) BE INTEROPERABLE WITH ANY OTHER SYSTEMS OR SERVICES; OR (4) BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ANY OPEN- SOURCE COMPONENTS OR THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” WITHOUT WARRANY BY PROPIO AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN YOU AND THE APPLICABLE THIRD PARTY.

  1. Indemnity.

A. Propio Indemnification

Propio shall indemnify, defend, and hold harmless Client its Indemnitees resulting from any third-party claims that the Software or Documentation infringes or misappropriates such third party’s Intellectual Property Rights, US patents, copyrights, or trade secrets. Propio’s indemnity does not apply to the extent that the alleged infringement arises from:

  1. Client’s use or incorporation of third-party services or materials, or the combination, operation, or use of the Software with any technology or service not provided by Propio or specified in the Documentation;
  2. modification of the Software or Documentation other than by Propio;
  3. custom modification of the Software or Documentation to Client’s specifications;
  4. use of the Software after Propio’s notice to Client that its use violates the terms of this EUA or other violation of a third party’s rights;
  5. negligence, abuse, or misuse of the Software or Documentation by or on behalf of Client, Client’s Representatives, or a third party;
  6. use of the Software or Documentation by or on behalf of Client outside the purpose, scope, or manner of use authorized by this EUA or in any manner contrary to Propio’s instructions;
  7. Open-Source Components, if any;
  8. events or circumstances outside of Propio’s commercially reasonable control, including any third-party hardware, software, or system bugs, defects, or malfunctions; or
  9. Third-party claims or losses for which Client is obligated to indemnify Propio.

B. Mitigation.

If the Software, or any part of the Software, is claimed to infringe, misappropriate, or otherwise violate any third party Intellectual Property Rights, Propio may, at its option and sole cost and expense, (i) obtain the right for Client to continue to use the Software with the same material functionality; or (ii) modify or replace the Software, in whole or in part, in a manner that makes the Software or Documentation non-infringing, while providing materially equivalent features and functionality. If Propio’s commercially reasonable efforts described in this section fail, Client may terminate this EUA effective immediately on written notice to Client. Upon such termination, Client shall immediately cease all use of the Software and Documentation and promptly provide Client a pro rata refund of any fees prepaid by Client for any remaining but unused part of the Term after such termination.

THIS SECTION SETS FORTH CLIENT’S SOLE REMEDIES AND PROPIO’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

ClIent Indemnification

Client shall indemnify, defend, and hold harmless Propio and its Indemnitees from and against any and all third-party claims arising from or relating to:

  1. Client’s use that violates, infringes or misappropriates the Intellectual Property Rights, privacy rights, or rights of publicity of any third party or violates applicable law;
  2. Client’s use or combination of the Software by or on behalf of Client with any technology not provided by or authorized by Propio;
  3. information, materials, or technology directly or indirectly provided or directed by Propio to be installed, combined, integrated, or used with, as part of, or in connection with the Software or Documentation;
  4. a breach by Client of any representation, warranty, covenant, or obligation under this EUA;
  5. relating to gross negligence or willful misconduct by or on behalf of Client with respect to the Software or Documentation or otherwise in connection with this EUA; or
  6. relating to use of the Software or Documentation by or on behalf of Client that is not authorized by this EUA, the Documentation, or contrary to Propio’s other written instructions.

D. Indemnification Procedure

Each Party shall promptly notify the other Party in writing of any claim for which such Party believes it is entitled to be indemnified and/or defended. The indemnifying Party shall not be obligated with respect to any claims where notice is not provided in a timely manner. The Party seeking indemnification shall cooperate with the other Party at its own sole cost and expense. The indemnifying Party shall promptly assume control of the defense and investigation of such claim and shall employ counsel of its choice for such claim. The indemnified party may engage its own counsel to participate in and observe the proceedings at its own cost and expense. The indemnifying Party shall not settle any claim without the Indemnitee’s prior written consent, not be unreasonably withheld or delayed. The indemnified Party’s failure to perform any obligations under this section will not relieve the indemnifying Party’s obligations except to the extent that the indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure.

6. Limitation of Liability.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, HARM TO GOODWILL OR REPUTATION, OR COST OF REPLACEMENT GOODS OR SERVICES, AND REGARDLESS OF WHETHER SUCH CLAIM ARISES FROM CONTRACT, TORT, STRICT LIABILITY, IN EQUITY, OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THIRD-PARTY CLAIMS ARISING FROM OR RELATING TO A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CLIENT TO PROPIO RELATED TO THE SERVICE IN THE TWELVE MONTH PERIOD IMMEDIATELY PROCEEDING THE LAST TRANSACTION OR OCCURRENCE THAT GAVE RISE TO A CLAIM. NEITHER PARTY SHALL BE LIABLE FOR MORE THAN ITS PROPORTIONATE SHARE OF FAULT.

7. Terms and Termination.  The duration of Client’s subscription to access the Software is set forth in the applicable Order Form. This EUA may be terminated by either Party, effective on written notice to the other Party, if the other Party materially breaches this EUA and such breach is either is incapable of cure, or remains uncured for 30 days after the non-breaching Party provides the breaching Party with written notice of such breach. Propio may immediately terminate this EUA effective immediately if Client (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property. Upon the expiration or termination of this EUA, all rights, licenses and authorizations granted to Client under this EUA will immediately terminate and Client will cease all use and exploitation of the Software and Documentation, and immediately pay any outstanding amounts due and payable to Propio. Propio may terminate Client’s access to the Software if Client fails to timely pay any sums due and owing under this EUA and such arrearage persists after Propio’s written notice to Client. Propio may temporarily suspend or deny any access to or use of the Software that Propio reasonably believes that violates any provision of this EUA or threatens the security, availability or confidentiality of the Software until such violation or threat is resolved to Propio’s reasonable satisfaction. The provisions set forth in the following sections, and any other right, obligation or provision under this EUA that, by its nature, should survive termination or expiration of this EUA, will survive any expiration or termination of this EUA: sections 2 (Intellectual Property), 3 (Confidentiality, Privacy & Security), 5 (Indemnity) and 6 (Limitation of Liability).

8. Fees and Payment.  Fees and payment terms for using the Software are set forth in the applicable Order Form accepted by Client. An Order Form accepted by Client is non-cancellable and prepaid fees, if any, are non-refundable. Fees and other amounts payable, if any, are exclusive of sales, use and other related taxes. All amounts payable under this EUA shall be paid in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Propio’s income.

9. Export Restrictions.  The Software may be subject to US export control laws, including the US Export Control Reform Act and its associated regulations. Client will not directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction or person to which export, re-export, or release is prohibited by applicable Law. Client will comply with all applicable laws and complete all required undertakings, including obtaining any necessary export license or other governmental approval, prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.

10. Government Use.  Each of the software components that constitute the Software and the Documentation is a “commercial product” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Accordingly, if Client is an agency of the US Government or any contractor therefor, Client only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

11. Miscellaneous

A. Entire Agreement

This EUA and any Order Forms constitute the sole and entire agreement of the Parties with respect to the subject matter of this EUA and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between this EUA and an Order Form, the terms of the Order Form shall prevail.

B. Force Majeure

Neither Party will be liable or responsible for any failure or delay in fulfilling or performing any term of this EUA caused by any circumstances beyond a Party’s reasonable control (a “Force Majeure Event”). Either Party may terminate this EUA if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of 30 days or more. The affected Party will give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

C. Further Assurances

On a Party’s reasonable request, a Party shall execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this EUA at its sole cost and expense.

D. Independent Parties

The Parties are independent contractors, and nothing in this EUA will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

E. Public Announcements

Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this EUA or, unless expressly permitted under this EUA, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party, which shall not be unreasonably delayed or withheld.

F. License Audit

Client acknowledges and agrees that Propio may reasonably verify Client’s compliance with the terms of this EUA and enforce Propio’s rights, including all Intellectual Property Rights in and to the Software. Client shall reasonably cooperate with Propio’s requests for information from Client.

G. No Third-Party Beneficiaries

This EUA is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this EUA.

H. Amendment and Modification; Waiver

No amendment to or modification of this EUA is effective unless it is in writing and signed by an authorized representative of each Party. No waiver of any provisions of this EUA is effective unless explicitly set forth in writing and signed by the Party waiving such provision. Except as otherwise set forth in this EUA, no failure or delay in exercising any rights or remedies arising from this EUA will operate or be construed as a waiver of such right or remedy, either in party or in whole. No single or partial waiver will preclude any further exercise of a Party’s rights or remedies.

I. Severability

If any provision of this EUA is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this EUA or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this EUA so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

J. Notices

Any notice or other communication required under this EUA to Propio shall be delivered to:

Propio Language Services

Attn: Legal Dept.

10801 Mastin St. #580

Overland Park, KS 66210

With a mandatory copy to legal@propio.com

Any notice or other communication required under this EUA to Propio shall be delivered to Client’s purchasing agent or to such other address as Client may designate from time to time in writing. Notices sent in accordance with this section will be deemed effectively given: (i) when received, if delivered by hand, with signed confirmation of receipt or if sent by a nationally recognized overnight courier, signature required; (ii) on the date of receipt if mailed by certified or registered mail, return receipt requested; or (iii) when sent by email with confirmation of transmission, if sent during the addressee’s normal business hours, or the next business day if sent after hours.

K. Assignment

Neither Party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this EUA without the other prior written consent, which shall not be unreasonably delayed or withheld, except that a Party may transfer its interest in connection with the sale of all or substantially all of its assets. Any purported assignment, delegation, or transfer in violation of this section is void. Notwithstanding anything to the contrary, this EUA is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.

L. Governing Law & Jurisdiction for Disputes

This EUA shall be governed by the internal laws of the state of Delaware without regard to its choice or conflict of laws provisions. Any legal suit, action, or proceeding arising out of or related to this EUA or the licenses it grants will be instituted in the federal courts or state courts seated in Johnson County, Kansas, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

M. Waiver of Jury Trial

Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this EUA or any Order Forms.

N. Headings

The headings in this EUA are for reference only and do not affect the interpretation of this EUA.

  1. Interpretation

A. Rules of Construction

For purposes of this EUA: (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this EUA as a whole; (iv) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (v) words denoting any gender include all genders. The Parties intend this EUA to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this EUA to the same extent as if they were set forth verbatim herein.

B. Definitions

Client shall mean the person or entity named on the applicable Order Form.

Confidential Information means information in any form or medium that (1) if disclosed in writing or other tangible form or medium, is marked “confidential” or “proprietary” (2) due to the circumstances of its disclosure, is known to be, or would reasonably be understood to be, confidential. Confidential Information does not include information a party can demonstrate (1) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information; (2) is generally known by the public other than by breach of this EUA; (3) was or is received by a third party without obligation to maintain its confidentiality; or (4) was developed independent of reference or use of any Confidential Information.

Documentation means Propio’s training materials, user manuals, handbooks, and installation guides relating to the Software/end user documentation relating to the Software that Propio provides or makes available to Licensee in any form or medium that describes the functionality, components, features, or requirements of the Software.

Indemnitee means a Party’s officers, directors, employees, agents, permitted successors, and permitted assigns.

Intellectual Property Right means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property right laws, and all similar or equivalent rights or forms of protection, in any part of the world.

Order Form means a purchasing document mutually executed by the Parties that describes the payment terms, Term, and other transaction-specific terms and conditions.

Open-Source Component means any software component that is subject to any open-source license agreement.

Permitted Use means use of the Software by a User for the in the ordinary course of Client’s internal business operations.

Propio shall mean Propio LS, LLC and its affiliates.

Representative means, with respect to a Party, that Party’s and its affiliates’ employees, officers, directors, consultants, agents, service providers, sublicensees, and legal advisors.

Software means Propio’s proprietary software-as-a-service accessed via a web browser or supported mobile application, and includes without limitation Propio ONE, Propio Analytics, and WorkforceOS, as the case may be.

Term means the duration of Client’s subscription to the Software as established in the applicable Order Form.

User means a person authorized by Client to use the Software.

Client Data means all electronic data and information submitted by or on behalf of a User and stored in Software, excluding the feedback and usage data described in paragraph 2(B).