Esteem Software Product End-User License Agreement

Introduction

READ CAREFULLY: ESTEEM INNOVATION LICENSES THE SOFTWARE AND OTHER LICENSED MATERIALS ONLY ON THE CONDITION THAT LICENSEE ACCEPTS ALL OF THE TERMS CONTAINED OR REFERENCED IN THIS AGREEMENT.

This End-User License Agreement ("EULA") is a legal agreement between you (the Licensee), and ESTEEM INNOVATION (ASIA) SDN. B.H.D. (henceforth call "ESTEEM INNOVATION") for the ESTEEM SOFTWARE PRODUCT which includes your License, software installer, software application, materials (soft copy and printed), ESTEEM dongle and other third party software components or materials that may be distributed with the software.  Parts of the Software Product may include third-party software that have their own license terms, which you will have to agree to separately in order to install and use it.

By selecting the “I accept the terms of the agreement” button or other button or mechanism designed to acknowledge agreement to the terms of an electronic copy of this Agreement, or by installing, downloading, accessing, or otherwise copying or using all or any portion of the ESTEEM INNOVATION Materials, (i) you accept this Agreement on behalf of the entity for which you are authorized to act (e.g., an employer) and acknowledge that such entity is legally bound by this Agreement (and you agree to act in a manner consistent with this Agreement) or, if there is no such entity for which you are authorized to act, you accept this Agreement on behalf of yourself as an individual and acknowledge that you are legally bound by this Agreement, and (ii) you represent and warrant that you have the right, power and authority to act on behalf of and bind such entity (if any) or yourself. You may not accept this Agreement on behalf of another entity unless you are an employee or other agent of such other entity with the right, power and authority to act on behalf of such other entity.

By installing, copying, distributing or using the ESTEEM SOFTWARE PRODUCT, you accept and agree to be bound by all the terms and conditions of this EULA. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS EULA, DO NOT, INSTALL, USE OR KEEP THE SOFTWARE PRODUCT.

DEFINITIONS

“You” or "Customer" means any individual, firm, or legal entity that has duly executed and returned the Invoice or Subscription Agreement, along with the necessary payments to be made to ESTEEM INNOVATION.

“Agreement” collectively means (a) the Invoice; (b) these Terms and Conditions of Software License; and (c) the End-User License Agreement (EULA) applicable to the respective Software installed and/or used by the Customer.

“Authorised Distributor” means any distributor and/or reseller of the ESTEEM Software as authorised by ESTEEM INNOVATION, and/or any individual or corporation authorised to provide Technical Support and/or Maintenance Services on behalf of ESTEEM INNOVATION.

“Intellectual Property (IP) Rights” means all intellectual property rights of any kind whatsoever, including but not limited to:

• Marks: Trade names, trademarks, service marks, and domain names.
• Patents: Patents, patent applications, and rights in respect of utility models or industrial designs.
• Copyrights: Whether registered or unregistered, including drawings, interfaces, plans, specifications, designs, source codes, or object codes.
• Trade Secrets: Know-how, inventions, methodologies, formulae, algorithms, technical data, and proprietary information that derives value from not being generally known.
• Other Rights: Any other proprietary or industrial property rights, including rights to prevent passing off or unfair competition in any jurisdiction worldwide.

“License” means a physical standalone/network dongle, cloud subscription provided by ESTEEM INNOVATION to the Customer to allow access to the Software.  

“Licensing Term” means the licensing period granted by ESTEEM INNOVATION to the Customer as specified in the Invoice (e.g., Perpetual or Annual Subscription).

“Maintenance Services” means the services for the Software provided by ESTEEM INNOVATION to the Customer, including scheduled or routine updates, bug fixes, and minor improvements to the Software.

“Software Maintenance” means the services for the Software provided by ESTEEM INNOVATION through the right to access to Esteem Download Center for latest Esteem releases (relating to scheduled or routine updates and upgrades; bug fixes; or minor improvements) and the provision of Technical Support, the scope of which is governed by the terms set forth in Esteem Software Maintenance Policy.

“Software Maintenance Contract” means the period during which the Customer is entitled to receive services for the license(s) under Software Maintenance, as subscribed to and described in the Invoice.

“Invoice Date” means the date of execution of the Invoice by the Customer, which shall also be the effective date of the Agreement.

“Invoice” means the document(s) completed and executed by the Customer detailing the products and services purchased or subscribed to, including relevant pricing.

“Parties” means the Customer and ESTEEM INNOVATION, collectively.

“ESTEEM INNOVATION” means ESTEEM INNOVATION (ASIA) SDN BHD [Company No.: 201201001279 / (974803-A)], a company incorporated in Malaysia and having its business address at No. 7A, Jalan Kenari 10, Bandar Puchong Jaya, 47100 Puchong, Selangor, Malaysia, and shall include its subsidiaries or assigned agents.

“Services” means any services related to the Software performed by ESTEEM INNOVATION, including but not limited to all Maintenance and Technical Support Services.

“Sub-releases” means a modification to the Software that incorporates error corrections (bug fixes) and/or minor functional enhancements. A Sub-release does not include a new major version or "Main Release" of the Software unless specified by ESTEEM INNOVATION.

“Technical Support” provided by ESTEEM INNOVATION for the License under Software Maintenance, including assistance with installation, technical difficulties, and reparative software fixes.

 “Software” means any proprietary software of ESTEEM INNOVATION licensed by the Customer. This includes any data, manuals, or documentation derived from the Software.  

“Software License” means the right to use the Software granted to the Customer by ESTEEM INNOVATION pursuant to this Agreement.  

“Territory” means the country or countries set forth in the Invoice where the Software License is authorised for use.

1.     COPYRIGHT
The SOFTWARE PRODUCT (the software, including any images, "applets", photographs, animations, video, audio, music, text incorporated into it, documentation, and the dongle) is protected by copyright laws and international treaty provisions and all other applicable national laws. Therefore, you must treat the SOFTWARE PRODUCT like any other copyrighted material. (e.g. a book or musical recording)

Using the SOFTWARE illegally i.e. using the SOFTWARE, services, or any materials accompanying it without being licensed by ESTEEM INNOVATION will result in infringement on the intellectual property rights of ESTEEM INNOVATION.

Furthermore, in the event that a third-party claim that your use of the Software infringes any third party’s intellectual property rights. You will be responsible for the investigation, defence, settlement and discharge of any such claim of intellectual property infringement. You will, however promptly notify ESTEEM INNOVATION in writing of such a claim.

2.    GRANT OF LICENSE

2.1.  MAIN LICENSING

The SOFTWARE PRODUCT License is a non-exclusive, non-transferable, non-sublicensable License, with the right to install and use the Software License solely for your own business purposes during the software license period strictly in accordance to the terms and conditions of the License.

If your License is under a Personal License, only the named user can use the Software Product. If your License is under a Company/Organization License, only those belonging to the company/organization (i.e. employed by the organization or owners of the organization) can use the Software Product.

You are permitted to use/run a single Esteem software on a single computer at a time for a single Software License. The Software is in "use" on a computer when it is loaded into temporary memory (i.e. RAM) or into permanent memory (e.g., hard-disk, CD-ROM, or other storage device) of that computer.

Software Installations on your computer(s) within a company/organization for the sole purpose of internal distribution shall not constitute "use" for which a separate license is required. For a single Personal Standalone License only up to three (3) computers can have the Software installed. For a single Company/Organization Standalone and Cloud License, only up to three (3) computers can have the Software installed. For a single Network License, only up to ten (10) computers can have the Software installed.
You may make not more than 5 copies of the SOFTWARE PRODUCT per license solely for your own backup or archival purposes only. The Esteem dongle shall be restricted to one (1) per license for a standalone license.

The loss of dongle or tampering with the dongle, using the Software illegally (not using the genuine License purchased from ESTEEM INNOVATION), attempting to pirate the Software shall make Your License, any warranties, ongoing and future services and support, and this EULA void.

• a) Perpetual License
  The Customer shall pay a one-off fee or otherwise specified in the Invoice to ESTEEM INNOVATION and this license shall continue in perpetuity, subject to clause 4 of these Terms and Conditions; or
  
  
• b) Subscription License
  The Customer shall pay a recurring subscription fee to ESTEEM INNOVATION, for such duration and for a fixed period of usage as stipulated on the Invoice, subject to Clause 4 of these Terms and Conditions
  
  

2.2.     OTHER LICENSE VERSIONS

Notwithstanding the above, in the event the Software is identified as the following version(s), the following relevant sub-clauses shall apply:

• a) Beta and Trial Version License 
  The Customer is permitted to download, install, access and use the Software on a single computer for a period of fifteen (15) days for evaluation purpose only or unless otherwise specified by ESTEEM INNOVATION in writing. The Software may not be used for commercial, professional, or other for profit or business purposes. Your rights to use beta or trial software are limited to the time period specified by Vendor. BETA AND TRIAL SOFTWARE IS LICENSED "AS-IS".

• b) Academic License.
  Academic Licenses may be used strictly for non-commercial teaching, lesson planning, and research purposes only. Academic licenses are identified as such on the Invoice confirmation.

2.3.     RESTRICTIONS ON USE

You shall use the SOFTWARE strictly in compliance with the terms of the Related Agreements and shall not 

• a) decompile, disassemble, reverse engineer, attempt to derive the source code of, decrypt the SOFTWARE, or pirate the SOFTWARE PRODUCT or dongle 
• b) make any alterations, modification, adaptation, enhancement, change to the SOFTWARE or dongle 
• c) violate any applicable laws, rules, regulations with Your access or use of the Software or dongle 
• d) add, remove, modify or obscure any proprietary notice which includes any trademark or copyright notice in the Software 
• e) use the Software or dongle for any purposes for which it is not designed or intended or licensed for 
• f) use a License on more than one computer at the same time 
• g) distribute the SOFTWARE PRODUCT, dongle or License to any other users unless those users are from within your organization that owns the License
• h) make the Software available over a network or any other environment allowing access or use by multiple Computers at the same time per License 
• i) use the SOFTWARE PRODUCT for creating a software or service that is directly or indirectly competitive with or in any way a substitute for any software or service offered by ESTEEM INNOVATION 
• j) use the Software to send automated queries to any website or to send any unsolicited email 
• k) use any interfaces, propriety information or any other intellectual property of the Software to design, develop, manufacture, license or distribute any applications, or devices for use in conjunction with the Software unless given permission and legal agreement from ESTEEM INNOVATION to do so.
  
  

2.4.     DISTRIBUTION AND TRANSFER OF SOFTWARE

You are not allowed to distribute Your License or the SOFTWARE PRODUCT to any other users, unless if Your Software License is licensed under an organization then distribution is restricted to users within that organization.

You may not sub-license, rent, lease or sell your Software License and the SOFTWARE PRODUCT. However, you may request to transfer your License and the SOFTWARE PRODUCT on a permanent basis to another user or organization provided on four(4) conditions:

1) You and the Transferee/Recipient get an official License Transfer Permission Letter or in the Invoice stating otherwise from ESTEEM INNOVATION and

2) uninstall all versions of the Software from your computer(s) that have the Software installed and 

3) remove all copies of the SOFTWARE PRODUCT on your computer(s)/harddisk(s)/usb drive(s) and 

4) the Transferee/Recipient agrees to the terms of this EULA. Your License or Software Product transfer to another user or organization will not be valid Otherwise.

2.5.     COMPLIANCE

You agree that ESTEEM INNOVATION may, upon reasonable notice to you, audit your use of the Software to ensure compliance with the terms and conditions of this Agreement. The audit may be conducted by ESTEEM INNOVATION or its designated agents and may include an inspection of your records, systems, and other materials related to the use of the Software. The audit will be conducted during normal business hours and will not unreasonably interfere with your business operations.

As part of any such verification, ESTEEM INNOVATION or its authorized representative will have the right, on 15 days' prior notice to you, to inspect your records, systems, and facilities, including machine IDs, serial numbers and other related information. Furthermore, you agree that upon the request of ESTEEM INNOVATION or its authorized representative that you will promptly document and certify in writing to ESTEEM INNOVATION You or Your employees' compliance in regards to the terms and conditions of this Agreement in using the Software Product.

If the audit reveals that you have underpaid fees or breached any other material term of this Agreement, you will promptly pay the underpaid fees or remedy the breach, as applicable, through purchase of 3-year subscription license(s) to bring Your usage into compliance, and pay the reasonable costs of the verification. ESTEEM INNOVATION reserves the right to seek any other remedies available at law or in equity. If the underpaid fees or breach is not resolved within thirty (30) days of YOUR receipt of written notice of the underpaid fees or breach, ESTEEM INNOVATION may, in addition to any other remedies available to it, terminate this Agreement (which is inclusive of terminating your License) immediately upon written notice.

3.     DELIVERY

3.1   Delivery
The Software is made accessible to the Customer through License(s) by ESTEEM INNOVATION or its Authorised Distributor. Software can be download from Esteem Download Center during the License Software Maintenance Contract.

3.2   Third Party Installations
In the event a third party (including any Authorised Distributor) is appointed for the installation of the Software, ESTEEM INNOVATION shall in no event be held liable for the non-performance or non-delivery of services provided by such third party and the Customer shall not be entitled to delay any payments due and owing to ESTEEM INNOVATION as per the Invoice.

3.3   Title and Risk
The title and risk to the Software shall pass to the Customer on delivery of the Software. In the event the Software or any equipment in which the Software is installed is lost or stolen, the Customer shall within three (3) days by way of written notification inform ESTEEM INNOVATION of the occurrence of such event, so that ESTEEM INNOVATION may suspend the licence for the use of the Software. In such event, ESTEEM INNOVATION may agree to allow the Customer to continue using the Software by granting another Licence to the Customer subject to the payment of Fees based on ESTEEM INNOVATION’s standard price list at the date of delivery.

4.     TERM AND TERMINATION

This Agreement is effective until terminated. If You fail to comply with any of the terms and conditions of this EULA, then your License and any rights afforded with it such as warranties, any ongoing and future services and support shall terminate automatically without any prior notice. You may terminate this Agreement at any time by ceasing to use the Software. ESTEEM INNOVATION may terminate this Agreement immediately upon Your breach of any provision of this Agreement. Upon termination of your License, you shall cease all use of the Software, services, and any accompanying material, remove, uninstall, and deactivate the Software on any computer(s) that the Software was previously installed or kept on, and destroy all copies of the Software Product in your possession.

5.     CONFIDENTIALITY
The Customer acknowledges and agrees that the Software and any documents associated with the Software are confidential and proprietary to ESTEEM INNOVATION and/or its licensors (as the case may be). The Customer agrees to keep all information obtained from ESTEEM INNOVATION in relation to the Software confidential by exercising all such care as may be reasonably required to prevent any unauthorised disclosure of the same. Notwithstanding the above, the Customer shall not disclose, divulge, distribute, publish, transmit or transfer any information related to the Software to any third party or use the Software for any purpose whatsoever other than as expressly authorised by these Terms and Conditions. The Customer shall make its best efforts to ensure that the Software is kept secure and prevent unauthorised access thereto and/or any copying or use thereof. The Customer further agrees to immediately notify ESTEEM INNOVATION in the event it becomes aware of any unauthorised possession, use, transfer or sale of the Software by any person or entity without a valid license. This Clause 5 shall survive the termination, for any reason, of the License granted under these Terms and Conditions and/or Invoice.

6.     DATA COLLECTION
6.1 The Customer hereby acknowledges and agrees that during the Licensing Term or for the period of time that the Software is installed on or used on any device and/or machine and/or equipment belonging to the Customer or whenever the Customer is connected to any of ESTEEM INNOVATION’s online servers, to the extent permitted by law ESTEEM INNOVATION may monitor and/or collect and/or store certain data for the following purposes:

• a) to detect unauthorised and/or unlicensed use of the Software and/or for the protection of the Intellectual Property Rights of ESTEEM INNOVATION;
• b) to improve the user experience of the Software in the provision of future updates and/or enhancements to the Software by ESTEEM INNOVATION; and/or 
• c) for reporting and invoicing purposes.
  
  

6.2 This data includes but is not limited to the MAC Address of the device and/or machine and/or equipment the Software is installed on, the IP address of the server used to access the Software, machine IDs, domain names, project names, user names and logs, License information used to access the Software and any other data and/or information which is deemed necessary and/or permitted for ESTEEM INNOVATION’s collation for the aforesaid purposes.

6.3 The Customer further acknowledges and agrees that the data collected and processed by ESTEEM INNOVATION may be shared with its Authorised Distributors, to the extent permitted by law.

6.4 ESTEEM INNOVATION’s privacy policy in respect of the processing of personal data may be accessed at the ESTEEM INNOVATION official website and is incorporated herein by virtue of this Clause 6.

7.     SOFTWARE MAINTENANCE
7.1 Subject to the payment of an additional fee for each License as enumerated in the Invoice by the Customer (“Software Maintenance Contract”), the Maintenance Services shall be provided to the Customer, either by ESTEEM INNOVATION directly or by an Authorised Distributor:

• a) hotline support service which includes direct telephone/WhatsApp and email support services that are available during office hours from 8:30 AM to 5:30 PM, Mondays to Fridays (excluding weekends and public holidays in the Territory) from such geographical locations where ESTEEM INNOVATION has its business operations and is able to provide the Services;
• b) correction of any programming errors which are attributed to the Software and which prevent the Software from functioning substantially in accordance with the specification published in the user documentation;
• c) minor program modifications and functionality enhancements to the Software as and when such modification and enhancement are available; and
• d) any updates and/or Sub-releases of the Software as and when such updates and/or Sub-releases are available.
  
  

7.2   SOFTWARE MAINTENANCE CONTRACT
Subject to the payment of the initial Software Maintenance as per the Invoice, the Software Maintenance shall commence from the beginning of the month following the Invoice Date and shall continue until the last date as enumerated in the Invoice. The Support and Maintenance Services provided by ESTEEM INNOVATION shall be deemed to be automatically renewed for a period of one (1) year on each anniversary of the last date as enumerated in the Invoice, unless earlier terminated by either party in writing. In this regard, the party intending to terminate the Support and Maintenance Services shall furnish to the other Party a written notification of its intention to terminate the same at least fourteen (14) days prior to the automatic renewal date as abovementioned.

7.3   SOFTWARE MAINTENANCE PROVIDED BY AUTHORISED DISTRIBUTORS
Where the Technical Support and/or Maintenance Services are provided to the Customer through Authorised Distributors of ESTEEM INNOVATION, the Customer shall liaise or communicate directly with the Authorised Distributor in question for the provisioning of the Technical Support and/or Maintenance Services. Where an Authorised Distributor which was previously providing the Services to the Customer ceases to operate its business for any reason, ESTEEM INNOVATION may take over the provision of the Services to the Customer directly, upon receipt of a written request from the Customer. This may be subject to an additional fee payable to ESTEEM INNOVATION for these Services.

7.4     ACTIVE MAINTENANCE REQUIREMENT
Technical support services (including troubleshooting, file recovery, and remote assistance) are strictly limited to Licensees with a valid and active Software Maintenance agreement.

7.5     PROJECT FILE ORIGIN ("HERITAGE RULE")
Eligibility for technical support is determined by the license status of the environment in which the project file was primarily authored. Support will be declined for any project file created or substantially modified using an ESTEEM INNOVATION license with expired software maintenance. This rule applies regardless of whether the Licensee simultaneously possesses other licenses with active software maintenance, subject to the exceptions in Section 7.9 and Section 7.11. To receive support, the Licensee must reactivate or upgrade the specific license originally used to develop the project.

7.6     LICENSE CONSISTENCY RULE
Technical support is strictly provided on the condition that all perpetual licenses held by the Licensee's organization are under a valid maintenance agreement. Utilizing a single active license to procure support for work generated on other expired licenses held by the same organization is a breach of this Agreement. ESTEEM INNOVATION reserves the right to withhold support services until organizational compliance is met.

7.7     MAINTENANCE REINSTATEMENT ("BACK-MAINTENANCE")
Reactivation of software maintenance after a period of expiry requires the payment of all retrospective maintenance fees due from the date of expiry to the current date ("Back-Maintenance"). This clause applies only to versions that have not reached "Discontinued" status.

7.8     NON-TRANSFERABILITY OF SUPPORT STATUS
The act of opening, saving, migrating, re-running, or re-analyzing an "unsupported-status" project file into a license with active maintenance does not grant support eligibility for that file, subject to the exceptions in Section 7.9 and Section 7.11. Technical support is tied to the historical maintenance status of the project data and the license used for its primary development, not the current license used for viewing or computation.

7.9     EXCEPTION FOR UPGRADED LICENSES
Notwithstanding Sections 7.5 and 7.8, technical support may be provided for project files authored under a license with expired maintenance if said license(s) is upgraded to a new license(s) that is under a valid and active software maintenance period. This exception applies only to versions currently eligible for upgrades as determined by ESTEEM INNOVATION.

7.10     DISCONTINUED VERSIONS ("END-OF-LIFE")
Software versions that have been officially discontinued by ESTEEM INNOVATION (e.g., Esteem 8) are classified as "End-of-Life" (EOL). EOL versions are ineligible for technical support, maintenance reactivation, or standard upgrade paths. Support for project data associated with EOL versions is strictly limited to the investigation of potential software bugs in the current version of the SOFTWARE PRODUCT. Such support is only granted if the reported issue can be clearly reproduced in a fresh project file created natively within the latest software version.

7.11     CLOUD SUBSCRIPTION EXCEPTION
Notwithstanding the Heritage Rule (Section 7.5), technical support (inclusive of remote support) will be provided for Esteem project file(s) authored or created using out-of-software-maintenance Esteem perpetual license(s) if the Licensee has also used Esteem Cloud Subscription license(s) that matches or exceeds the technical capacity and feature set of the Licensee Esteem perpetual license(s) at the time of seeking technical support. This exception grants support eligibility regardless of the historical maintenance status of the perpetual license for the duration of the active subscription.

If You fail to comply with any of the provisions of this Agreement, ESTEEM INNOVATION shall be entitled to withdraw from the terms in the Maintenance Agreement, without prejudice to any entitlement or legal remedy open to ESTEEM INNOVATION in such eventualities.

8.     REPRESENTATION

You may not suggest any affiliation with ESTEEM INNOVATOIN, including any suggestion that ESTEEM INNOVATION sponsors, endorses or guarantees Your Applications and/or BIM content, except for the Interface integration relationship expressly contemplated in this EULA. You may not make any representations, warranties or commitments regarding ESTEEM INNOVATION or ESTEEM INNOVATION products or services or on behalf of ESTEEM INNOVATION.

9.     LIMITED WARRANTY

ESTEEM INNOVATION warrants that the Software and dongle will perform substantially in accordance with the accompanying written materials for a period of at least one year from the License delivery date.

10.     CUSTOMER REMEDIES

ESTEEM INNOVATION's entire liability and your exclusive remedy shall be the options, either (a) return of the price paid, or (b) repair or replacement of the Software that does not meet this Limited Warranty and which is returned with a copy of your receipt. The Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, and usage of pirated Software. Any replacement Software will be warranted for the remainder of the original warranty period or thirty(30) days, whichever is longer.

11.     DISCLAIMER OF WARRANTIES

You agree and acknowledge that the software is provided on an “as is” and “as available” basis that your use of the software and any content and services including those of third party accessed thereby is at your discretion and sole risk. To the maximum extent permitted by applicable law, ESTEEM INNOVATION hereby disclaim any warranties, guaranties and representations either expressed, implied or statutory, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement with regard to the software product, information, content and services including those reliant on third party software.

ESTEEM INNOVATION makes no warranty that:

1) the software, content, information and services including those from third party software will meet your requirements

2) the software, content, information and services including those reliant on third party software will be accurate, reliable, uninterrupted, timely, secure or error-free

3) the quality of the software, services, content, information or other material accessed will be as represented or meet your expectations

4) any errors in the software, content and services will be corrected.

Furthermore, no other advice, suggestion or information, whether oral or written, obtained by you from ESTEEM INNOVATION or from the software product and services shall constitute or form any warranty.

12.     NO LIABILITY FOR CONSEQUENTIAL DAMAGES

In no event shall ESTEEM INNOVATION be liable for any damages (including, without limitation, direct or indirect damages for personal injury, loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use or inability to use the software regardless or not you were advised of the possibility of such damages.

In any case, ESTEEM INNOVATION’S entire liability under any provision of this EULA shall be limited to the amount actually paid by you for the software. Because some countries do not allow the exclusion of limitation of liability for consequential and incidental damages, the above limitation may not apply to you.

13.     OWNERSHIP
ESTEEM INNOVATION retains all rights, title, and interest in and to the Software, including all intellectual property rights. The Software ownership rights belongs exclusively to Esteem Innovation.

14.     FORCE MAJURE
Neither party shall be liable for any failure or delay in performance under this EULA (except for a failure to pay fees) if the failure or delay is due to causes beyond its reasonable control and unforeseen events, including, but not limited to war, civil unrest, terrorism, natural disasters, fire, labor disputes, or equipment or power failures (a “Force Majeure Event”).

If a Force Majeure Event occurs, the affected party shall give prompt written notice to the other party and shall use commercially reasonable efforts to resume performance as soon as reasonably practicable. During the period of any such delay or inability to perform by the affected party, the other party may elect to either: (a) extend the time for performance for a period equal to the duration of the delay or inability to perform; or (b) terminate this Agreement upon written notice to the affected party.

15.     INDEMNITY

15.1 The Customer agrees to indemnify, hold, harmless and defend ESTEEM INNOVATION and its licensors, their respective officers, directors, members, employees, affiliates, shareholders, agents, successors, representatives, and assigns from and against any claims or suits, including reasonable legal fees, which arise or result from the use of the Software, breach of any terms and conditions of the Agreement, or use of the Software in violation of any applicable law. 

15.2 Similarly, subject to this Agreement, ESTEEM INNOVATION will defend You against any claim brought against You by a third party alleging that the SOFTWARE PRODUCT infringes such third party’s patent, copyright, trademark, or trade secret rights (“IP Claim”), and ESTEEM INNOVATION will pay damages finally awarded against You (or any settlement amount agreed to in writing by ESTEEM INNOVATION) as a result of the IP Claim, provided You (a) promptly notify ESTEEM INNOVATION of the IP Claim, (b) give ESTEEM INNOVATION sole control of the defense and settlement of the IP Claim, and (c) promptly provide ESTEEM INNOVATION with any assistance and cooperation requested by ESTEEM INNOVATION in connection with the defense and settlement. These defense and payment obligations do not apply if (i) the IP Claim arises from, or is based on, the use or combination of the SOFTWARE PRODUCT with any software, hardware, data, material, or service not provided by ESTEEM INNOVATION, (ii) the IP Claim covers any method or process not fully embodied in the SOFTWARE PRODUCT, (iii) there is available an Update or Upgrade that avoids the infringement alleged in the IP Claim, or (iv) You have been in breach of this Agreement. If ESTEEM INNOVATION receives information about an infringement claim related to the SOFTWARE PRODUCT, ESTEEM INNOVATION may, in its discretion, (1) modify or replace the SOFTWARE PRODUCT, (2) obtain a license for Your continued use of the SOFTWARE PRODUCT, and/or (3) terminate Your subscription for the SOFTWARE PRODUCT and refund any prepaid fees covering the remainder of the Licensing Term of the terminated subscription. This Section 15 states ESTEEM INNOVATION’s sole obligations and Your exclusive remedy for any infringement of any third-party intellectual property rights.

16.     COMMUNICATION
Any notice, request, instruction or other document to be given hereunder shall be delivered or sent by pre-paid post, by fax, or other electronic means to the address of the receiving Party, and any such notice or other document shall be deemed to have been served, if delivered by courier, at the time of delivery, or, if sent by mail, two (2) days after dispatch. Any notice or other document sent by fax transmission or other electronic means is deemed delivered upon receipt by the sender of an electronic acknowledgment

17.     GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of relevant jurisdiction without giving effect to its conflict of laws provisions.

18.     ACCEPTANCE
By using the Software, You acknowledge that you have read this Agreement, understand it, and agree to be bound by its terms and conditions. If You do not agree to the Terms and Conditions of this Agreement, You should not install the Software and cease use of the Software immediately.

19.     RESERVATION OF RIGHTS
ESTEEM INNOVATION reserves the right to modify this EULA at any time without notice to You. The continued use of the Software following any such modifications constitutes Your acceptance of the modified EULA.

20.     ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Software.

21.    NO WAIVER
No failure to exercise and no delay in exercising any right, power or remedy under these Terms and Conditions and/or Invoice will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy.