Current Version: 17.3.9
Last Revised: 3/22/2022
“Documentation” means the published and generally available on-line user and administrator materials Gistic delivers or makes available with the Software, including on-line help, as updated from time to time.
“Maintenance and Support” means end-user support services and software update services provided by Gistic.
“Maintenance Period” means for all Subscription licenses of the Software, the number of years of such Subscription set forth in the applicable Order.
“On-Premise” means that the Software must be installed on a server, desktop, virtual machine or container on site at Your facility; all Software licensed under the terms of this Agreement is for On-Premise deployments only.
“Order” means quote or other document for placing orders entered into between You and Gistic and identifies the Software (including the applicable Gistic product(s), license type, license model (Subscription), quantity) ordered by You and any required access information.
“Reseller” means an authorized reseller or distributor who may sell the Software to You.
“Software” means the Gistic software licensed pursuant to the applicable Order and Updates provided by Gistic.
“Subscription” means Our grant of a license of the Software for the period of time set forth in the Order (the “Subscription Term”).
“Update” means any subsequent release of the Software that Gistic generally makes available to its customers who are enrolled in, and have fully paid for, Maintenance and Support. Updates do not include any Software that is marketed and priced separately by Gistic.
“User” means an individual who is authorized by You to use the Software in accordance with this Agreement and the applicable license type set forth herein, and who has been supplied usage credentials. A User may include, but is not limited to, your employee, consultant, contractor and any agent with which You transact business.
“You” means the company or othert legal entity for which you are accepting this Agreement.
2. Who We Are.
“We”, “Us”, “Our” or “Gistic” means Gistic Research, Inc., an Arizona corporation with its principal place of business at 2033 E Warner Rd, Ste 105, Tempe, AZ 85284 and its licensors.
3. On-Premise Subscription License
Subject to the terms of this Agreement, for all licenses of the Software that are granted on a Subscription basis, as indicated on the applicable Order Gistic grants You a non-exclusive, non-transferable, non-sublicensable, limited license to install and use the Software on compatible devices during the applicable Subscription Term. You may install and use the Software solely as permitted by the license type purchased, which license type is (i) specified in the applicable Order and (ii) subject to the further terms below applicable to the relevant Software product.
4. License Types.
The licenses granted in Section 4 are subject to all terms and conditions set forth in this Agreement, including the following applicable terms (as specified in the applicable Order):
Concurrent License: all Software licensed under these terms can be activated for different users and machine combinations, but only one at a time and has a floating license key. The number of running instances of the Software or the number of individuals simultaneously having access to the Software may not exceed at any one time the number of floating seats licensed.
5. Software Delivery.
Delivery of the Software to You shall be made by electronic means and deemed to have occurred when the Software has been made available to You for download or by providing You with a key for such usage. Gistic is expressly authorized by You to ship the Software upon completion of the applicable Order.
6. License Restrictions.
Your use of the Software is limited to the number of units, duration and such other usage restrictions as are set forth on an Order and herein. Gistic and its licensors and suppliers reserve any and all rights, implied or otherwise, which are not expressly granted to You hereunder, and retain all rights, title and interest in and to the Software. You shall not (i) modify, adapt, distribute, resell, rent, lease or loan the Software or create or prepare derivative works based upon the Software or any part thereof; (ii) use the Software in a service bureau, or application service provider environment, or in any commercial timeshare arrangement; (iii) use the Software in contravention of any applicable laws or government regulations; (iv) use the Software in order to build a competitive product or service; (v) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights.
Export. You may not export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder.
The Term of this Agreement shall be determined based on the License Model and License Type as described herein.
Subscription License – This term of this Agreement shall commence upon delivery of the Software and shall end on the last day of the Subscription Term as set forth in an Order.
Notwithstanding anything contained herein to the contrary, this Agreement, an Order or an individual license granted hereunder may be terminated (a) by mutual agreement of Gistic and You, (b) by either party if the other party is adjudicated as bankrupt, or if a petition in bankruptcy is filed against the other party and such petition is not discharged within sixty (60) days of such filing, or (c) for all breaches that are remediable, by either party if the other party materially breaches this Agreement and fails to cure such breach to such party’s reasonable satisfaction within thirty (30) days following receipt of written notice thereof; or (d) for all breaches that are not remediable, immediately by delivery of written notice thereof to the other party. Without limiting its other rights or remedies, Gistic may terminate this Agreement, an Order or an individual license granted hereunder with immediate effect by giving written notice to You if You fail to pay any amount due on the due date for payment. Upon any termination of this Agreement, an Order or a license granted hereunder, all applicable licenses are revoked and You shall immediately cease use of the applicable Software and certify in writing to Gistic within ten (10) days after termination that such Software and all copies thereof have been destroyed, purged or returned to Gistic. Termination of this Agreement, an Order or a license granted hereunder shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve You of your obligation to pay all fees that have accrued or become payable hereunder.
9. Your Responsibilities.
You shall (i) be responsible for each User’s compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of your data and of the means by which You acquired Your data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and notify Us promptly of any such unauthorized access or use, and (iv) use the Software in accordance with the Documentation and applicable laws and government regulations.
10. Backup of Software.
Notwithstanding anything to the contrary herein, You may make a copy(ies) of the Software for the sole purpose of backing-up and archiving the Software. Any copy of the Software is subject to all terms and conditions of this Agreement and must contain the same titles, trademarks, and copyrights as the original.
11. Maintenance and Support.
For Subscription licenses You receive Maintenance and Support during the Subscription Term.
Any Maintenance and Support purchased through a Reseller shall be subject to this Agreement.
The term of the Maintenance Period shall commence upon the initial delivery of the Software. All fees for Maintenance and Support are included in the subscription.
During a Maintenance Period, Gistic will provide you with technical support services (“Support Services”), including Updates, to the extent such Support Services are provided for in the applicable Order. In addition, as part of the Support Services, Gistic may make available bug lists, planned feature lists, and other supplemental materials. Gistic makes no representations or warranties of any kind for these materials.
12. Fees and Payments.
Fees. You shall pay all fees specified in an Order. Fees are based on the Software purchased. For all Subscriptions, the number of units/modules or time period purchased can be changed (increase or decreased) during the relevant Subscription Term. Unless otherwise stated in an applicable Order, payment is due thirty (30) days from the date of invoice. You shall provide a purchase order or notice that a purchase order is not required for purchase or payment prior to the shipment of the Software.
Overdue Charges. If any payment is not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) for Subscriptions, We may condition future subscription renewals and Orders on payment terms shorter than those specified herein.
Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is ninety (90) or more days overdue, You shall be considered in default of this Agreement and We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
Taxes. You shall be responsible for taxes levied on any transaction under this Agreement, including all federal, state, and local taxes, levies and assessments, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”), excluding any tax based on Gistic’s income. Unless otherwise stated, Our fees do not include any Taxes. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. We are solely responsible for taxes assessable against Us based on Our income, property and employees.
Except as expressly provided in this Agreement, Gistic and its licensors, where applicable, retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software, as an independent work and as an underlying work serving as a basis for any improvements, modifications, derivative works, and applications You may develop, and all copies thereof. All rights not specifically granted in this Agreement, including U.S. and international copyrights, are reserved by Gistic and its suppliers.
Gistic, LinearBench and other trademarks contained in the Software are trademarks or registered trademarks of Gistic Software Inc. in the United States or other countries. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software.
Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors hereunder in or to Your data, including any intellectual property rights therein.
The Software may contain or otherwise make use of software, code or related materials from third parties, including, without limitation, “open source” or “freeware” software (“Third Party Components”). Third Party Components may be licensed under additional or other license terms that accompany such Third Party Components, and you acknowledge and agree that these accompanying license terms govern their use. Nothing in this Terms of Service limits your rights under, or grants you rights that supersede, the license terms that accompany any Third Party Components.
The provision of source code, if included with the Software, does not constitute transfer of any legal rights to such code, and resale or distribution of all or any portion of all source code and intellectual property is strictly prohibited hereunder. All Software and other files remain Gistic’s exclusive property. If source code or modifiable files are provided, regardless of any modifications that You make, You may not redistribute any such source code or modifiable files unless Gistic has expressly designated these as re-distributable in writing.
14. Limited Warranty; Remedies.
Gistic warrants that (a) it has the necessary corporate power and authority and has taken required corporate action on its part necessary to permit it to execute and deliver You this Agreement; (b) it has taken commercially reasonable steps to provide the Software and the medium on which it was originally provided to You is free from any virus at the time of delivery; (c) for a period of ninety (90) days following the initial delivery of the Software to You (the “Warranty Period”), the Software will perform in substantial conformity with the Documentation; and (d) any Services will be provided with reasonable skill and care conforming to generally accepted software industry standards and in accordance with any specifications set forth in the Order in all material respects. Your exclusive remedy and Gistic’s sole obligation for Gistic’s breach of 14(c), is that Gistic will, at its option, and at no cost to (a) provide remedial services necessary to enable the Software to conform to the warranty, or (b) replace any defective Software or media to enable the Software to conform to the warranty without loss of any material functionality, or in the event that Gistic determines that neither of the foregoing are reasonably practicable, (c) terminate this Agreement and refund amounts paid in respect of the defective Software.
EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY, GISTIC AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. GISTIC DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IN ADDITION, ALL THIRD PARTY COMPONENTS ARE PROVIDED “AS IS,” “WHERE IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND. GISTIC AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE THIRD PARTY COMPONENTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE, AND ANY WARRANTIES REGARDING THE SECURITY, QUIET ENJOYMENT, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES.
No oral or written information or advice given by Gistic, its Resellers, dealers, distributors, agents, representatives or employees shall create any warranty or in any way increase any warranty provided herein.
If applicable law requires any warranties other than the foregoing, all such warranties are limited in duration to ninety (90) days from the date of delivery. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to You. The warranties provided herein give You specific legal rights and You may also have other legal rights that vary from jurisdiction to jurisdiction. The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to You only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where You are located.
Gistic will (a) defend indemnify and hold You harmless from and against all any claims and causes of action brought against You by a third party arising out of an allegation that the Software as delivered by Gistic infringes any third party’s intellectual property rights enforceable under United States law or international copyright treaty and (b) pay any accrued costs and damages against You or the amount stated in a written settlement signed by Gistic, provided You: (a) promptly notify Gistic after learning of the suit or claim (provided, however, that Gistic’s obligations under this Section 15 shall only be mitigated to the extent that it is prejudiced by a delay in receipt of such notification); (b) give Gistic the authority to defend or settle the suit or claim (provided that Gistic does not agree to any settlement that requires You to pay money or make any admissions); and (c) give Gistic all available non-privileged information and assistance reasonably requested by Gistic, at Gistic’s expense, concerning the suit or claim.
If the Software is held or is reasonably believed by Gistic to be held to infringe any third party rights, Gistic may, at its expense, modify or replace the applicable Software to be non-infringing with similar functionality, or obtain permission for You to continue using the Software as permitted under the Agreement, or if neither option is commercially feasible, then to terminate this Agreement and refund that portion of the fees paid in respect of the applicable Software, which portion, in the case of Software licensed on a Subscription basis, is equal to the amount of pre-paid fees for the balance of the then-current Subscription Term.
17. Limitations of Liability.
NEITHER GISTIC NOR ITS SUPPLIERS OR LICENSORS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF GISTIC OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. GISTIC’S SUPPLIERS’, AND LICENSORS’ TOTAL AGGREGATE LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU OR RESELLER, IF ORDERED THROUGH A RESELLER, FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.
Governing Law and Venue. This Agreement shall be governed by the internal law of the State of Arizona, U.S.A., without giving effect to principles of conflict of laws.
Publicity. You agree to be identified as a customer of Gistic and agree that Gistic may refer to You by name, trade name and trademark, if applicable, and may briefly describe your business in Gistic’s marketing materials and web site. You hereby grant Gistic a license to use your name and any of your trade names and trademarks solely in connection with the rights granted to Gistic pursuant to this marketing section. You grant us the right to add your name and company logo to our customer list and website.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
Waiver. The failure or delay of Gistic to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach. A waiver by either party of any term or condition of this EULA or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
Force Majeure. Except for failure to make payments when due, neither party shall be liable to the other by reason of any failure in performance of this Agreement by either party if the failure arises out of any cause beyond the reasonable control of that party, including, but not limited to, the unavailability or faulty performance of communication networks or energy sources, any act or omission of governmental or other competent authority, fires, strikes, industrial dispute, riots, war, inability to obtain materials, embargo, refusal of license, theft, destruction, denial of service attacks, unauthorized access to computer systems or records, programs, equipment, data, or services.
Anti-Bribery. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Gistic’s employees or agents in connection with this EULA. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Gistic.
Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this EULA.
Entire Agreement. This Agreement, together with all applicable Orders and the Maintenance and Support terms contain the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by You in relation to the Software licensed hereunder shall be of no effect. No Reseller is authorized to make any amendment to this EULA.
Survival. All provisions of this Agreement which by their nature are intended to survive the expiration or termination of this Agreement.