END USER LICENSE AGREEMENT (EULA)

SOFTWARE LICENSE AGREEMENT

Last Updated: [November 6, 2026]

This Software License Agreement, including any Order Form(s) which by this reference is incorporated herein (this “Agreement”), is a binding agreement between the applicable NedGraphics contracting entity determined in accordance with Section 16(l) below (“Provider”) and the person or entity identified on the Order Form as the client of the Software (“Client”). Provider provides the Software and related services solely on the terms and conditions set forth in this Agreement. 

By clicking the “Accept” button, executing the Order Form, or by installing, copying, or otherwise using the Software, Client (a) accepts this Agreement and agrees to be legally bound by its terms; and (b) represents and warrants that: (i) the individual accepting this Agreement is of legal age and has the capacity to enter into a binding legal agreement; and (ii) if Client is a corporation, governmental organization, or other legal entity, the individual accepting has the right, power, and authority to enter into this Agreement on behalf of Client and bind Client to its terms. 

If Client does not agree to the terms of this Agreement, Provider will not and does not license the Software to Client, and Client must not download, install, copy, access, or use the Software and/or Documentation. Notwithstanding anything to the contrary in this Agreement or Client’s acceptance of the terms and conditions of this Agreement, no license is granted (whether expressly, by implication, or otherwise) under this Agreement, and this Agreement expressly excludes any right, concerning any Software that Client did not acquire lawfully or that is not a legitimate, authorized copy of Provider’s Software.

Provider may update or modify this Agreement from time to time by posting the revised terms on Provider’s website, in the Software, or by providing notice to Client. For material changes that adversely affect Client’s rights, Provider will provide at least thirty (30) days’ prior notice before such changes become effective. Client’s continued use of the Software after the effective date of any modification constitutes Client’s acceptance of the modified terms. If Client does not agree to any modification, Client’s sole remedy is to cease use of the Software and terminate this Agreement in accordance with Section 15. No other amendment or modification of this Agreement by Client shall be effective unless in writing and signed by Provider.

1. Definitions.

In this Agreement, the following terms have the following meanings:

“Access” means the connection to and use of the Software by Client via an Internet web browser or other remote access method under the terms of this Agreement.

“Affiliate” means, with respect to any entity, any other entity directly or indirectly controlling, controlled by, or under common control with such entity, where “control” means the right to control, or actual control of, management of such entity, whether by ownership of voting securities, by agreement, or otherwise.

“Authorized Users” means solely those individuals authorized to use the Software by Client, or by Provider on Client’s behalf, pursuant to the license granted under this Agreement.

“Client Marks” means Client’s name, logo, trademarks, service marks, or other identifying marks.

“Confidential Information” means any and all non-public information disclosed by either Party or its Affiliates to the other Party during the term of this Agreement, including business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information includes any written information marked as confidential or proprietary, and any non-public information disclosed orally or visually. Confidential Information shall not include information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to disclosure without breach of any obligation of confidentiality; (iii) is received from a third party without breach of any obligation of confidentiality; or (iv) was independently developed by the Receiving Party, without use of or reference to the Disclosing Party’s Confidential Information.

“Documentation” means Provider’s user manuals, handbooks, installation guides, and other information relating to the Software made available by Provider to Client.

“Fees” means the fees, including all taxes thereon, paid or required to be paid by Client for the license and/or access rights granted under this Agreement, as set forth in the Order Form.

“Initial Term” means the initial term as set forth in the Order Form.

“Intellectual Property Rights” 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 rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“License” means the license granted to Client for the Software obtained under this Agreement.

“License Key” means a unique key, programming code, or other authentication method provided to Client to activate (and remotely deactivate) the Software. The License Key may include a USB dongle or hardware key, or a software-based activation key, as specified in the Order Form.

“Maintenance” means software maintenance services, as set out in the Order Form, which may include (i) correction of material defects so that the Software will operate materially in conformity with the warranties in this Agreement, (ii) periodic updates that incorporate corrections of material defects and fixes of minor bugs (“Updates”), (iii) telephone or email consultation services regarding use of the Software during Provider’s standard support hours, and (iv) enhancements and/or revisions to software components (which may be subject to additional charge unless provided at no charge to substantially all other licensees).

“Order Form” means an ordering document entered into by Provider and Client that references this Software License Agreement.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Professional Services” means any training, installation, implementation, customization, and/or other professional services provided by Provider to Client pursuant to an Order Form or Statement of Work.

“Provider” means the applicable NedGraphics contracting entity determined in accordance with Section 16(l), or such other Provider Affiliate designated in accordance with Section 16(l).

“Renewal Term” means the period following the Initial Term or another Renewal Term, as specified in the Order Form. 

“SLA” means Provider’s standard service level agreement that Provider may provide to Client from time to time as set forth in an Order Form.

“Software” means the NedGraphics software product(s) described in the Order Form, in object code format, including any Updates provided to Client pursuant to this Agreement.

“Start Date” means the effective date of the Order Form or the date the Software is made available to Client, whichever is later.

“Term” means the Initial Term and any Renewal Terms.

“Third Party” means any Person other than Client or Provider.

“Work Product” means any and all ideas, concepts, and Intellectual Property Rights in and related to the Software, including techniques, knowledge, and processes of the Software, services, deliverables, and integrations, whether or not specifically developed for Client.

2. License Grant and Scope.

(a) Grant of License. Subject to Client’s payment of the Fees and compliance with all terms of this Agreement, Provider grants Client a limited, non-exclusive, non-sublicensable, non-transferable  license, during the Term, to: (i) install the Software in accordance with the Documentation on no more than the number of computers set forth on the Order Form, at the site location(s) and in the region(s) specified in the Order Form; (ii) access and use the Software for no more than the number of Authorized Users set out in the Order Form (unless the Order Form expressly states Client is purchasing a network, floating user, or enterprise license); and (iii) use the Software solely as set forth in the Documentation and for Client’s internal business purposes only.

(b) Software Licensed, Not Sold. The Software is licensed, not sold. Client does not acquire any ownership interest in the Software or Documentation under this Agreement. Provider, its Affiliates, and its and their suppliers and licensors reserve and retain their entire right, title, and interest in the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to Client herein.

(c) Third-Party Materials. The Software may include or be distributed with third-party software, libraries, components, or materials (“Third-Party Components”). Such Third-Party Components may be subject to separate license terms, which are typically found in a “Read Me” file, “About” section, or separate license agreement accompanying the Software. Client acknowledges that Third-Party Components are provided “AS IS” without any warranty of any kind from Provider. Provider makes no representations or warranties regarding Third-Party Components and shall have no liability whatsoever for any Third-Party Components. Client is responsible for complying with any terms and conditions applicable to Third-Party Components.

(d) License Key. CLIENT ACKNOWLEDGES THAT THE SOFTWARE MAY CONTAIN A LICENSE KEY TO PREVENT UNAUTHORIZED USE, THAT THE LICENSE KEY IS NOT A VIRUS, THAT EXECUTION OR DEACTIVATION OF THE LICENSE KEY MAY RENDER THE SOFTWARE INOPERABLE, AND THAT PROVIDER MAY EXECUTE OR DEACTIVATE THE LICENSE KEY UPON TERMINATION, BREACH OF THIS AGREEMENT, AND/OR CLIENT’S FAILURE TO PAY APPLICABLE FEES. IF THE LICENSE KEY IS EXECUTED OR DEACTIVATED, CLIENT MAY BE OBLIGATED TO PAY PROVIDER’S THEN-CURRENT REACTIVATION FEE PLUS ANY OTHER APPLICABLE FEES.

3. Use of AI Tools and Technologies.

(a) Scope of AI Integration. Provider may utilize artificial intelligence tools, technologies, and models including but not limited to large language models, image-generation models and similar AI technologies, to deliver certain features, functionalities, or services within the Software or as part of ancillary services provided to Client and its Authorized Users (“AI Tools”). The AI Tools may include image-interpretation, design-generation, and pattern-extraction capabilities. AI Tools may be updated, supplemented, or replaced by Provider in accordance with Section 3(h). Client acknowledges that AI Tools may be leveraged for tasks such as natural language processing, data analysis, user support, and content generation. The AI Tools may rely on third-party open-source or open-weight models and frameworks, the use of which is subject to their respective license terms.

(b) Data Input and Ownership. The use of AI Tools may involve the processing of data provided by Client and its Authorized Users, including images and related design information,  to enable features, functionalities, and outputs tailored to such data. All outputs generated by the AI Tools from data provided by the Client, including generated design images and extracted pattern files (“AI Outputs”) shall, as between Provider and Client, be owned by Client or its Authorized Users, as applicable. Client is solely responsible for ensuring the accuracy, legality, and appropriateness of all data submitted to the AI Tools and all outputs generated.

(c) Restrictions and Personal Data. The Software and associated AI Tools are not designed to receive, store, or process personal data or personally identifiable information as defined under applicable data protection laws (“PII”). Client agrees not to input any PII, including without limitation images containing identifiable individuals, in connection with its use of the AI Tools. Provider disclaims all responsibility and liability for the processing of any PII submitted by Client or its Authorized Users and does not accept the role of a data controller, processor or sub-processor under any applicable data protection laws in respect of such data. Client shall indemnify and hold Provider harmless from any claims, damages, or liabilities arising from Client’s input of PII into the AI Tools in breach of this Section.

(d) AI Tools Disclaimer. CLIENT ACKNOWLEDGES AND AGREES THAT: (I) ANY DATA, CONTENT, OR INFORMATION INPUT INTO THE AI TOOLS IS PROVIDED AT CLIENT’S OWN RISK; (II) AI OUTPUTS ARE GENERATED BY AUTOMATED PROCESSES AND MAY NOT ALWAYS BE ACCURATE, COMPLETE, OR SUITABLE FOR CLIENT’S PURPOSES; (III) PROVIDER DOES NOT WARRANT OR GUARANTEE THE ACCURACY, RELIABILITY, COMPLETENESS, OR FITNESS FOR PURPOSE OF ANY AI OUTPUTS; (IV) PROVIDER DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY CONSEQUENCES RESULTING FROM CLIENT’S OR ITS AUTHORIZED USERS’ USE OF OR RELIANCE ON AI OUTPUTS, INCLUDING ANY DECISIONS OR ACTIONS TAKEN BASED ON SUCH OUTPUTS; AND (V) CLIENT IS SOLELY RESPONSIBLE FOR REVIEWING, VALIDATING, AND VERIFYING ALL AI OUTPUTS BEFORE USE, PUBLICATION, OR DISTRIBUTION.

(e) No Guarantee of AI Outputs; Limitation of Liability.  WITHOUT LIMITING THE GENERALITY OF SECTION 13 (LIMITATION OF LIABILITY), PROVIDER SHALL NOT BE LIABLE FOR ANY CLAIMS, DAMAGES, OR LOSSES ARISING FROM OR RELATED TO: (I) THE ACCURACY, COMPLETENESS, OR SUITABILITY OF AI OUTPUTS; (II) CLIENT’S OR ANY THIRD PARTY’S RELIANCE ON AI OUTPUTS; (III) ANY INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS ARISING FROM AI OUTPUTS; OR (IV) ANY DECISIONS, ACTIONS, OR OMISSIONS BASED ON AI OUTPUTS. CLIENT ACKNOWLEDGES THAT AI OUTPUTS MAY NOT BE UNIQUE AND THAT SIMILAR OR IDENTICAL OUTPUTS MAY BE GENERATED FOR OTHER USERS OF SIMILAR AI TECHNOLOGIES.

(f) Third-Party AI Providers/Components. Provider may engage third-party service providers to supply or support AI functionalities. The AI Tools incorporate third-party open-source and open-weight software, models, and frameworks (“Third-Party AI Components”), which are subject to their own respective license terms.   Provider does not develop or control the underlying AI models and makes no representations or warranties regarding the Third-Party AI Components, including their accuracy, reliability, security or freedom from defects. Provider disclaims any liability for data breaches, losses, intellectual property infringement, or other damages arising from or related to the actions or omissions of third-party AI providers or Third-Party AI Components. Client acknowledges that Third-Party AI Components may be updated, modified, or discontinued by their respective licensors without notice to Provider or Client.

(g) Consent and Opt-Out. Use of AI Tools is optional. Client may opt out of AI Tools functionality at any time via settings within the Software or by written notice to Provider. Opting out may limit or disable certain features dependent on AI-driven processing but will not affect core non-AI functionality of the Software. Opting out does not affect Client’s other obligations under this Agreement.

(h) Updates and Changes to AI Tools. Provider reserves the right to update, modify, replace, or discontinue any AI Tools or Third-Party AI Components at its sole discretion. Provider will endeavor to notify Client of significant changes that could materially affect the AI Tools functionality. Such changes shall not reduce the core non-AI functionality of the Software.

(i) AI Transparency. Client acknowledges that AI-generated outputs are produced by automated artificial intelligence processes and not by human authors. Client is responsible for complying with any applicable laws or regulations requiring disclosure of AI-generated content to its own end users or customers.

(j) No Model Training. Provider shall not use any AI Inputs or AI Outputs to train, develop, fine-tune, or improve any artificial intelligence or machine learning models, whether owned by Provider or any third party, without Client’s prior written consent. 

(k) Client Responsibilities. Client shall: (i) use AI Tools only in compliance with applicable laws and regulations, including any AI-specific legislation applicable in Client’s jurisdiction; (ii) ensure that Authorized Users are informed that certain features are AI-powered; (iii) review and validate all AI Outputs before reliance, use, publication, or distribution; (iv) not use AI Tools or AI Outputs for any unlawful, discriminatory, or harmful purpose; and (v) not attempt to reverse engineer, extract, or derive the underlying AI models, algorithms, weights, or training data from the AI Tools.

(m) Third-Party AI Providers. Certain AI Tools or features may be powered, in whole or in part, by an AI model or service hosted by a third-party AI provider (a “Third-Party AI Provider”) rather than by infrastructure operated or controlled by Provider. Where an AI Tool or feature uses a Third-Party AI Provider, Provider will identify the applicable Third-Party AI Provider to Client upon request. Provider will use commercially reasonable efforts to ensure that its agreement with each Third-Party AI Provider (i) prohibits the Third-Party AI Provider from using AI Inputs or AI Outputs to train, develop, or improve its models without Provider’s and Client’s prior written consent, and (ii) requires the Third-Party AI Provider to maintain reasonable administrative, physical, and technical safeguards for AI Inputs and AI Outputs. Provider disclaims all liability for any acts, omissions, security incidents, or data breaches caused by a Third-Party AI Provider, except to the extent caused by Provider’s failure to obtain the contractual protections described in this Section 3(m).

(n) Data Processing Location. AI Inputs and AI Outputs may be processed or stored in one or more data center regions selected by Provider or its Third-Party AI Providers in their discretion, which may include the United States, the European Union, or other jurisdictions. Provider will use commercially reasonable efforts to accommodate a Client’s reasonable written request regarding the region in which its AI Inputs and AI Outputs are processed or stored, subject to technical feasibility and cost.

(o) AI Outputs as Starting Point. AI Outputs are intended to serve solely as a preliminary starting point for Client’s own design, development, or manufacturing process. Client acknowledges that AI Outputs are not final, production-ready, or fit for direct commercial use, distribution, or manufacturing without Client’s independent human review, modification, and approval. Client assumes full responsibility for any decision to use, adapt, or incorporate any AI Output into its products, services, or deliverables.4. Use Restrictions.

Client shall not, and shall ensure that its Authorized Users do not, directly or indirectly:

(a) use the Software or Documentation beyond the scope of the license granted under Section 2;

(b) provide access to the Software or Documentation to any Person who is not an Authorized User (including any subcontractor, independent contractor, affiliate, or service provider);

(c) copy, modify, translate, adapt, enhance, or create derivative works of the Software or Documentation, or permit any third party to do so;

(d) combine or incorporate the Software into any other programs, other than where the Software is designed and permitted by Provider to integrate with such programs;

(e) embed or nest the Software, or any part thereof, including any functionality, feature, or technology, in any other software or platform;

(f) decompile, decrypt, reverse engineer, disassemble, decode, or otherwise attempt to derive or gain access to the source code of the Software;

(g) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property notices on the Software or Documentation;

(h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any Third Party, whether over a network or on a hosted basis, including via time-sharing, service bureau, cloud, or similar arrangements;

(i) use the Software in any manner that may cause it to become subject to any license that requires, as a condition of use, modification, or distribution, that the Software or other software combined or distributed with it be disclosed or distributed in source code form, licensed for making derivative works, or redistributable at no charge;

(j) use the Software or Documentation in violation of any law, regulation, or rule;

(k) use the Software for competitive analysis, development of competing software, or any other purpose to Provider’s commercial disadvantage;

(l) interfere with, disrupt, or attempt to gain unauthorized access to the internal operations, processes, or security features of the Software; or

(m) input, upload, or otherwise introduce into the Software any content, data, or materials that infringe or misappropriate any third party’s intellectual property or other rights.

Client is responsible and liable for all uses of the Software and Documentation through access thereto provided by Client, directly or indirectly. Client is responsible and liable for all actions and failures to take required actions with respect to the Software by its Authorized Users or by any other Person to whom Client or an Authorized User may provide access, whether such access or use is permitted by or in violation of this Agreement.

5. Compliance Measures.

(a) Copy Protection. The Software may contain technological copy protection or security features designed to prevent unauthorized use. Client shall not remove, disable, circumvent, or create any workaround to any such features.

(b) Compliance Certification. On Provider’s written request, Client shall conduct a review of its and its Authorized Users’ use of the Software and certify in a written instrument signed by an officer of Client that it is in full compliance with this Agreement. If Client discovers any noncompliance, Client shall immediately remedy such noncompliance and provide Provider with written notice thereof.

(c) Audit Rights. During the Term and for one (1) year thereafter, Provider may audit Client’s use of the Software to ensure compliance with this Agreement. Any audit will be conducted on not less than ten (10) days’ prior written notice, during regular business hours, and in a manner that does not unreasonably interfere with Client’s business. No more than one (1) audit may be conducted in any six (6) month period except for good cause or where a prior audit revealed material non-compliance. Provider may also audit Client’s systems within three (3) months after the end of the Term to ensure Client has ceased use and removed all copies of the Software. Client shall reasonably cooperate with such audits and provide all reasonable access to records, systems, equipment, information, and personnel, including remote access to systems on which the Software is installed for verification of license usage.

(d) Audit Remedies. If the audit determines Client’s use exceeds the permitted use: (i) Client shall, within five (5) days, pay retroactive Fees for such excess use at Provider’s then-current rates (without any discount) and obtain a valid license to bring use into compliance; and (ii) if the excess use exceeds ten percent (10%), Client shall also pay Provider’s audit costs, and Provider may terminate this Agreement immediately upon written notice. Provider’s remedies under this Section are cumulative and in addition to all other remedies at law or in equity.

6. License Key, Installation, and Professional Services.

(a) License Key; Installation. Upon execution of the Order Form, Provider will provide Client with a License Key required to activate the Software. If Client fails to pay applicable Fees within thirty (30) days of the due date, Provider may deactivate the License Key until all Fees, including any reactivation fee, have been paid. Unless specified in the Order Form, installation and implementation is Client’s exclusive responsibility. Provider has no responsibility to modify the Software to function on any particular hardware system, configuration, or platform.

(b) Lost or Stolen Hardware Key. If a Hardware Key (Dongle) is lost or stolen, Client should contact the applicable Provider Account Manager to clarify the replacement policy and process.

(c) Professional Services. Client may purchase Professional Services from Provider. Statements of work may be created to describe the scope, duration, and fees for Professional Services and shall be governed by this Agreement. All pre-paid Professional Services must be used within twelve (12) months of the Start Date.

(d) Compensation and Expenses. On-site Professional Services are based on a standard eight (8) hour work day. Additional hours will be billed at Provider’s then-current rate. Client shall reimburse Provider for all reasonable out-of-pocket expenses (including travel, lodging, and meals). Professional Services performed during after-hours or on Saturday will be invoiced at 150% of the standard rate. Professional Services performed on Sunday or a government-recognized holiday will be invoiced at 200% of the standard rate.

(e) System Requirements. Client is solely responsible for ensuring that Client’s hardware, operating system, network infrastructure, and other technical environment meet the minimum system requirements specified in the Documentation. Provider shall have no liability for any failure of the Software to perform where Client’s environment does not meet such requirements.

7. Hosted Solutions.

If Provider or its designated third-party providers are hosting the Software, the following additional terms apply:

(a) Provider or its designated provider will provide those services necessary to allow Client Access, including password(s).

(b) Data Entry. All data generated through Client’s Access will reside on servers of Provider or its third-party providers. Client is solely responsible for ensuring data entry is timely, accurate, and reflects Client’s requirements. Client shall indemnify and hold Provider harmless from any liability, damages, or costs arising from data entered by Client or on Client’s behalf.

(c) Password Security. Client is solely responsible for (i) ensuring only authorized individuals have access to passwords, (ii) assigning roles and authority levels, (iii) the conduct of individuals with Access, and (iv) maintaining the confidentiality and integrity of passwords and authority levels. Client shall indemnify and hold Provider harmless from any liability arising from Client’s failure to comply with this Section.

(d) Scheduled Downtime. Provider will use commercially reasonable efforts to notify Client of any scheduled downtime for regular maintenance.

(e) Unexpected Outages. Provider will use commercially reasonable efforts to avoid unexpected outages and restore Access as promptly as practicable. Any service level commitments and associated remedies shall be as set forth in the applicable SLA, if any, attached to the Order Form. IN THE ABSENCE OF AN SLA, PROVIDER’S ENTIRE LIABILITY FOR UNSCHEDULED DOWNTIME SHALL BE LIMITED TO COMMERCIALLY REASONABLE EFFORTS TO RESTORE ACCESS, AND PROVIDER WILL NOT BE LIABLE FOR ANY DAMAGES RELATED TO UNSCHEDULED DOWNTIME.

8. Fees and Payments.

(a) Client agrees to pay all applicable Fees. All Fees are payable in advance in the manner set forth in the Order Form and are non-refundable. Unless otherwise specified, payments must be made within thirty (30) days of the date of the invoice. Any amount not paid when due shall be subject to a service charge equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount permitted by law. Provider may defer provision of Software and/or services until all overdue payments are received. If Provider is required to take legal action to collect unpaid amounts and is successful, Client will reimburse Provider’s costs and reasonable attorneys’ fees. Fees for any Renewal Term will be increased to Provider’s then-current fees.

(b) Title and Risk of Loss. Title and risk of loss for any media or hardware transfers to Client at Provider’s designated facility. If the Software is delivered electronically, risk of loss transfers when the Software is made available to Client.

(c) Taxes. Except with respect to income recognized by Provider, Client will be liable for all tariffs, duties, and taxes, however designated or levied, based on Client’s possession, use of, or Access to the Software, including sales, use, value added, excise, services, personal property, or other taxes.

(d) Orders and Acceptance. All orders are non-cancelable and non-refundable and must be submitted at least fifteen (15) days prior to the requested delivery date. Orders shall not be deemed accepted without written notification from Provider. This Agreement governs all orders, and nothing in Client’s purchase orders or other communications shall modify this Agreement.

9. Maintenance and Support.

(a) Subject to Client’s timely payment of all applicable Fees, Provider or its designated provider will provide Client with Maintenance for the Software as set out in the Order Form. Maintenance subscription terms automatically renew annually unless cancelled by either party with written notice at least thirty (30) days before the renewal date.

(b) Client must possess a valid License to use any upgrade or update. By using an upgrade or update, Client’s license to any previous version of the Software automatically terminates. If Client (i) has an out-of-date version of the Software or (ii) is not current on Maintenance due to failure to timely pay Maintenance Fees and wishes to update, Client must pay any unpaid fees and may be subject to additional fees to transfer or convert any old data. Provider reserves the right to discontinue Maintenance for all out-of-date versions of the Software.

10. Collection and Use of Information.

(a) Client acknowledges that Provider may collect and store information regarding use of the Software and about equipment on which the Software is installed, including through: (i) provision of maintenance and support services; (ii) security measures in the Software; and (iii) Internet-based services components. Client acknowledges that Provider may verify the version of the Software and that collected data may be sent to Provider’s servers.

(b) Provider may use such information for: (i) improving the Software or developing Updates; (ii) verifying Client’s compliance with this Agreement and enforcing Provider’s rights; (iii) providing customized services or technologies; and (iv) transferring this information to Provider’s Affiliates, agents, and partners, including to the United States and other countries where Provider or its Affiliates maintain facilities.

11. Warranty and Disclaimer.

(a) Limited Warranties. Solely with respect to Software developed by Provider or its Affiliates for which Provider receives a Fee (excluding any Third-Party Components), Provider warrants that: (i) Provider has the right (whether as owner or under license from its Affiliates or licensors) to grant the License with respect to such Software; (ii) for ninety (90) days following the Start Date, any media on which the Software is provided will be free of material damage and defects under normal use, and the Software (excluding Third-Party Components) will substantially perform in accordance with the Documentation when properly installed and operated; and (iii) any Professional Services will be provided in a professional and workmanlike manner consistent with generally accepted industry standards. THE FOREGOING WARRANTIES DO NOT APPLY TO ANY THIRD-PARTY COMPONENTS, WHICH ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.

(b) SLA Remedies. To the extent Provider has provided an SLA in an Order Form, Provider shall provide the remedies listed therein. Such remedies will be Client’s sole remedy for any Software failure, and Client agrees that if the SLA does not list a remedy for a given failure, Client has no remedy. Credits issued pursuant to any SLA apply to outstanding or future invoices only and are forfeit upon termination. Provider is not required to issue refunds or make payments against credits under any circumstances.

(c) Warranty Exclusions. The warranties in Section 11(a) shall not apply if Client materially breaches this Agreement, or if Client or any Authorized User: (i) installs or uses the Software with hardware or software not specified in the Documentation; (ii) modifies or damages the Software; (iii) misuses the Software; (iv) uses equipment or software not provided or approved by Provider; or (v) experiences any accident, neglect, misuse, or abuse.

(d) Warranty Remedies. If, during the warranty period, covered Software fails to substantially perform in accordance with the Documentation, Provider will, at its sole option: (i) repair or replace the Software; or (ii) refund the Fees paid for such Software, subject to Client ceasing all use and returning all copies. If Provider repairs or replaces the Software, the warranty continues from the original date, not from receipt of the repair or replacement. These are Client’s sole remedies and Provider’s sole liability under the limited warranty.

(e) Security. Client agrees to be solely responsible for (i) ensuring the confidentiality, security, and integrity of Client’s network connectivity, data, and servers, (ii) preventing and bearing the risk of any loss or damage to data on Client’s servers, (iii) maintaining archive and backup copies of any data, (iv) implementing and maintaining appropriate access controls, firewalls, and security measures for the systems on which the Software is installed, and (v) promptly applying any security patches or updates provided by Provider. 

(f) WARRANTY DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 11(a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY THAT THE SOFTWARE WILL MEET CLIENT’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE WITH ANY OTHER SOFTWARE OR SYSTEMS, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE STANDARDS, OR BE ERROR FREE, OR THAT ANY ERRORS CAN OR WILL BE CORRECTED. PROVIDER MAKES NO WARRANTY REGARDING ANY THIRD PARTY PRODUCTS.

12. Infringement Indemnification.

(a) Provider will indemnify Client from lawsuits filed against Client by a third party (other than a patent assertion entity or non-practicing entity) and reimburse Client for damages paid pursuant to a final, non-appealable judgment that the Software developed by Provider or its Affiliates (excluding any Third-Party Components) directly infringes any third party’s intellectual property rights. Client shall give Provider proper and full information, assistance, and exclusive authority to defend or settle the claim.

(b) If the Software is likely to become the subject of an infringement claim, or if it is determined that the Software infringes a third party’s intellectual property rights, Provider may at its option: (i) obtain a license for Client to continue using the Software; (ii) replace or modify the Software with non-infringing technology; or (iii) if neither is commercially reasonable, terminate Client’s License and refund a portion of the license fee equal to the then-current reasonable commercial value of the Software.

(c) Indemnification Exclusions. Provider shall not be responsible if the alleged infringement arises from: (i) any Third-Party Components included in or distributed with the Software; (ii) compliance with Client’s requirements or specifications outside Provider’s standard specifications; (iii) any modification of the Software at Client’s request; (iv) combination of the Software with any product not provided by Provider; (v) use of a version that was not the current unaltered version at the time the claim arose, including failure to install updates; or (vi) use of the Software in a process or system other than that for which it was intended.

(d) Client Counter-Indemnity. In any event described in Section 12(c), Client shall defend and/or settle any claim brought against Provider at Client’s expense, and shall indemnify Provider against any costs, legal fees, expenses, and damages. Client shall defend, indemnify, and hold harmless Provider from and against any third party claims arising from or related to the exclusions in Section 12(c).

(e) THE RIGHTS GRANTED IN THIS SECTION 12 ARE CLIENT’S SOLE AND EXCLUSIVE REMEDIES FOR ANY ALLEGED CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

13. LIMITATION OF LIABILITY.

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL PROVIDER OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR: (A) ANY CLAIMS, DAMAGES, OR LOSSES ARISING FROM OR RELATED TO ANY THIRD-PARTY COMPONENTS INCLUDED IN OR DISTRIBUTED WITH THE SOFTWARE; (B) ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; SYSTEM FAILURE OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; SYSTEM INCOMPATIBILITY; BREACHES IN SYSTEM SECURITY; THE COST OF RECOVERING DATA; THE COST OF SUBSTITUTE SOFTWARE; BUSINESS INTERRUPTION; OR (C) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, RELIANCE, OR PUNITIVE DAMAGES, WHETHER ARISING FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT WILL PROVIDER’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CLIENT PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE SUBJECT OF THE CLAIM FIRST AROSE. CLIENT AGREES THAT THIS AMOUNT IS SUFFICIENT TO SATISFY THE ESSENTIAL PURPOSE OF THIS AGREEMENT, THAT THIS AMOUNT IS A FAIR AND REASONABLE ESTIMATE OF ANY LOSS AND DAMAGE LIKELY TO BE SUFFERED, AND THAT THE PRICE OF THE SOFTWARE REFLECTS THIS ALLOCATION OF RISK. THE FOREGOING LIMITATIONS OF LIABILITY AND DISCLAIMERS FORM AN ESSENTIAL ELEMENT OF THIS AGREEMENT, WITHOUT WHICH PROVIDER WOULD NOT HAVE LICENSED THE SOFTWARE TO CLIENT. THE LIMITATIONS IN THIS SECTION 13 SHALL APPLY EVEN IF CLIENT’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

14. Proprietary Rights and Confidential Information.

(a) No Implied Conveyance of Proprietary Rights. The Software, Documentation, and any Work Product are the valuable, confidential, and proprietary property of Provider, its Affiliates, and their respective suppliers, and licensors. Provider is not conveying any of its Intellectual Property Rights except the limited rights specified in this Agreement. Client must maintain and reproduce all copyright, trademark, patent, and other proprietary notices on the Software in the same form and manner as delivered by Provider. Client shall use reasonable efforts to safeguard all Software from infringement, misappropriation, theft, misuse, or unauthorized access. Client shall promptly notify Provider if Client becomes aware of any infringement of Provider’s Intellectual Property Rights and fully cooperate with Provider in any legal action to enforce such rights.

(b) Protection of Confidential Information. Each party (the “Receiving Party”) agrees to (i) take at least reasonable measures to prevent unauthorized disclosure or use of Confidential Information of the other party (the “Disclosing Party”), and to protect such Confidential Information in a manner no less stringent than it protects its own confidential information, but in no event with less than due care, and (ii) not use any Confidential Information for any purpose outside the scope of this Agreement. Client shall limit access to Provider’s Confidential Information to those employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with protections no less stringent than those herein.

(c) Client Representation Regarding Confidential Information. Client represents and warrants that any Confidential Information it provides to Provider is lawfully owned or licensed by Client, and that Client has authority to disclose such Confidential Information. 

(d) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide prior notice (to the extent legally permitted) and reasonable assistance if the Disclosing Party wishes to contest the disclosure.

(e) Return or Destruction. Upon termination of this Agreement, the Receiving Party shall return or destroy all copies of Confidential Information of the Disclosing Party, at the Disclosing Party’s discretion, and certify in writing that it has complied, except to the extent required to be retained by law or the Receiving Party’s bona fide data retention policies.

(f) Injunctive Relief. Client’s violation of confidentiality obligations or Provider’s Intellectual Property Rights may cause irreparable damage that cannot be fully remedied by money damages. In the event of any actual or threatened violation by Client, Provider will be entitled to (i) terminate this Agreement, retake possession of the Software, execute the License Key, and/or terminate access to the Software, and/or (ii) obtain injunctive or other equitable relief from any court of competent jurisdiction, without the requirement of proving actual damages or posting any bond or other security.

(g) Use of Client Marks. Subject to any reasonable use guidelines provided by Client, Client grants Provider a non-exclusive, worldwide, royalty-free license to use Client Marks in connection with this Agreement, for use with the Software, for promoting Provider’s products in marketing materials, print, or online advertising, and for identifying Client as a Provider customer. Client shall secure for Provider any required rights or sublicenses for Provider’s use of Client’s trademarks. Provider acknowledges that (i) Client Marks are owned solely by Client or its Affiliates, (ii) Provider has no other rights in Client Marks, and (iii) all use and goodwill of Client Marks by Provider shall inure to the benefit of Client.

(h) Feedback. If Client provides any suggestions, ideas, enhancement requests, recommendations, or other feedback regarding the Software or Documentation (“Feedback”), Client hereby assigns to Provider (or such Provider Affiliate as Provider may designate) all right, title, and interest in and to such Feedback, and Provider and its Affiliates may use, implement, and commercialize such Feedback without restriction or obligation to Client.

15. Termination.

(a) Term. This Agreement and the license granted hereunder shall remain in effect for the Term or until earlier terminated as set forth herein.

(b) Termination for Cause. This Agreement may be terminated: (i) immediately upon written notice by Provider, if Client fails to make any required payment within thirty (30) days of the due date; (ii) by the non-breaching party, if the other party materially breaches this Agreement and such breach is incapable of cure or, if capable of cure, remains uncured thirty (30) days after written notice; or (iii) immediately upon written notice by Provider, if Client ceases doing business as a going concern, files or has filed against it a petition for voluntary or involuntary bankruptcy, makes a general assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee, receiver, or custodian for a substantial part of its property, and such proceeding is not dismissed within sixty (60) days.

(c) Suspension. Provider may immediately suspend Client’s access to the Software without liability if: (i) Client fails to pay any Fees when due; (ii) Client breaches Section 4 (Use Restrictions) or Section 14 (Proprietary Rights and Confidential Information); (iii) Provider reasonably believes Client’s use poses a security risk to the Software or other customers; or (iv) suspension is required by law or by a governmental authority. Provider will use reasonable efforts to provide notice before or promptly after any suspension.

(d) Termination for Convenience. Provider may terminate this Agreement by providing ninety (90) days advance written notice to Client.

(e) Effect of Termination. Upon expiration or termination, the license granted hereunder shall terminate, and Client shall, within thirty (30) days, cease using and destroy or return all copies of the Software and Documentation, and permanently delete the Software from all computers and storage media. Client shall certify such destruction or deletion in writing signed by an officer of Client. Client must promptly (i) pay Provider all unpaid Fees accrued before termination, (ii) return or destroy all Provider Confidential Information and the Software, and (iii) return any materials, programs, manuals, hardware keys, and other items related to the Software. No expiration or termination shall affect Client’s obligation to pay all Fees that became due before termination, or entitle Client to any refund. Provider may remotely deactivate the License Key upon termination.

(f) Data Return. Provider shall use commercially reasonable efforts to provide Client with any proprietary data belonging to Client in the format in which it is stored by Provider at the time of termination.

16. General Provisions.

(a) No Assignment. Client shall not assign or transfer any rights or obligations under this Agreement without Provider’s prior written consent, which Provider may withhold in its sole discretion. Any attempted assignment without consent shall be void. Provider may freely assign or transfer its rights and obligations without Client’s consent. This Agreement is binding upon and inures to the benefit of the parties and their permitted successors and assigns.

(b) Governing Law. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sales of Goods. This Agreement shall be governed by the laws of the State of New York, USA, without regard to conflicts of laws principles. For all disputes, each party consents to the exclusive jurisdiction and venue of the state and federal courts in and for New York City, New York, USA. 

(c) Severability; Interpretation. If any provision is held invalid, illegal, or unenforceable, such provision will be severed and this Agreement enforced as if it were not included. This Agreement shall be interpreted fairly in accordance with its terms without strict construction in favor of or against either party. Captions are for convenience only and do not affect the scope or meaning of the provisions. Any failure or delay to enforce any provision shall not be deemed a waiver of Provider’s right to do so.

(d) Language. This Agreement is only in English, which shall be controlling in all respects. If Provider has provided a translation, Client agrees that the translation is for convenience only and the English-language version will be legally binding. Any notices shall be in writing in English.

(e) Entire Agreement and Modification. This Agreement, together with the Order Form, constitutes the sole and entire agreement between Client and Provider with respect to the subject matter herein, and supersedes all prior understandings, agreements, representations, and warranties. No waiver shall be effective unless in writing and signed by the waiving party. Email shall not constitute a signed writing for purposes of this Section.

(f) Notices. All notices shall be in writing and shall be deemed given: (i) when delivered by hand; (ii) when received if sent by nationally recognized overnight courier; (iii) on the date sent by email (with confirmation) if sent during normal business hours; or (iv) on the third day after the date mailed by certified or registered mail, return receipt requested. Notices must be sent to the addresses set forth on the Order Form or in Section 16(l) below.

(g) Independent Contractors. Client and Provider, and their respective employees and representatives, are independent contractors. Neither party shall have any right, power, or authority to act or create any obligation on behalf of the other party.

(h) No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties and their respective successors and permitted assigns. Nothing herein is intended to confer on any other Person any legal or equitable right, benefit, or remedy, except that Provider’s Affiliates and licensors are intended third-party beneficiaries of, and may enforce, the provisions of this Agreement relating to Intellectual Property Rights, use restrictions, confidentiality, and limitation of liability.

(i) Survival. The provisions of this Agreement relating to fees and payment terms, ownership of intellectual property, export law compliance, termination, confidentiality, infringement indemnification, warranty disclaimers, limitation of liability, governing law, audit rights, force majeure, severability, definitions, and any other provisions which by their nature should survive termination, shall survive termination of this Agreement.

(j) Force Majeure. Except for payment of monies, no party shall be liable for failure to perform any obligations due to circumstances beyond such party’s reasonable control, including acts of God; flood, fire, earthquake, pandemics, or explosion; war, invasion, hostilities, terrorist threats or acts, riot or civil unrest; government order, law, or actions; embargoes or blockades; strikes, shortages, failure of suppliers; labor conditions; material shortages; or any similar cause.

(k) Compliance With Laws. Client may only use the Software in compliance with all applicable laws and regulations. Upon written notice, Provider may modify or suspend Client’s use to comply with any law or regulation. Both parties acknowledge their commitments to comply with international anti-corruption laws, including the United States Foreign Corrupt Practices Act and the United Kingdom Bribery Act. No employee or individual acting on behalf of Client shall give or receive anything of value to or from a government official or any other individual for the purpose of influencing any act, securing any improper advantage, or obtaining or retaining business.

(l) Contracting Entity. The Provider entity contracting with Client under this Agreement shall be determined based on the country in which Client is located (as indicated by Client’s billing address set forth in the Order Form), as follows:

Provider may, upon written notice to Client, designate an alternative Provider Affiliate as the contracting entity, and each Provider entity is solely responsible for its own obligations under this Agreement.

17. Export Law Compliance.

The Software and related technology, information, and materials may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Client shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings, prior to exporting or re-exporting the Software. Client represents that Client is not named on any U.S. government denied-party list. The Software may not be exported to any U.S.-embargoed country, to any person or entity on any list of prohibited parties designated by the U.S. government, EU-embargoed country, or United Nations-embargoed country.

18. U.S. Government Restricted Rights.

The Documentation and Software are “commercial items” as 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 for the Department of Defense, or (b) 48 C.F.R. § 12.212 for all other US Government Clients.

19. Open Source Software.

Some versions of the Software contain open source software. Open source software is licensed to Client under that software’s own license terms, which can be found in the “Help,” “About,” “Read Me,” or other specified portion of the Software. Client is responsible for complying with any terms and conditions applicable to open source software. To the extent this Agreement imposes greater restrictions than the open source license terms, the open source license terms shall control with respect to such open source software.

20. Data Protection.

Each party shall comply with its respective obligations under applicable data protection laws. Each party shall maintain appropriate administrative, physical, technical, and organizational measures that ensure an appropriate level of security for Confidential Information. 

21. Use of Client Information and Privacy Policy.

Provider may collect and process certain business contact information and other administrative data relating to Client and its personnel (such as names, email addresses, billing details, and support interactions) for account management, invoicing, technical support, software updates, service communications, and marketing. Such data will be processed in accordance with Provider’s Privacy Policy (available at: https://www.nedgraphics.com/privacy-policy/). This provision does not apply to Client Data input into the Software or processed by the AI Tools, which are governed separately under this Agreement. Client may opt out of marketing communications at any time by using the unsubscribe link in emails or by contacting Provider.

22. Construction.

For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein to Sections refer to the Sections of this Agreement. The Order Form shall be construed with, and as an integral part of, this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting.

If you have any questions, see the Provider website or contact us on our Contact Us page.