This End User License Agreement (this "EULA" or "Agreement"), effective as of the date of sign-up (the "Effective Date"), is an agreement between Royal Animal Health University, Inc. (RAHU), the legal owner and operator of the Animal Diet Formulator Software and the User Signing up ("You," "Your" or "User"). If the user is a Corporate Entity, then the sign-up must be in the legal name of the Entity and by an authorized person of the Entity. "Use" or "Using" means to download, install, activate, access, or otherwise use the Software. "Software" includes the Animal Diet Formulator and any and all other RAHU computer programs and any upgrades made available to You by an Approved Source and licensed to You by RAHU pursuant to this Agreement. "Documentation" is the RAHU user or technical manuals, training materials, specifications or other documentation applicable to the Software and made available to You by an Approved Source. "Approved Source" means (i) RAHU or (ii) the RAHU authorized reseller, distributor, or systems integrator from whom you acquired the Software. "Entitlement" means the license detail; including license metric, duration, and quantity provided in a product ID (PID) published on RAHU’s price list, claim certificate, or right to use the notification. "Upgrades" means all updates, upgrades, bug fixes, error corrections, enhancements, and other modifications to the Software and backup copies thereof.
- 1. Acceptance of Terms. Using the Software, You agree to be bound by the terms of the EULA. If you are entering into this EULA on behalf of an entity, you represent that you have authority to bind that entity.
- 2. License. Subject to payment of the applicable fees and compliance with this EULA, RAHU grants You a limited, non-exclusive, and non-transferable license to Use object code versions of the Software and the Documentation solely for Your internal operations and in accordance with the Entitlement and the Documentation. RAHU licenses You the right to Use only the Software You acquire from an Approved Source. In the event that RAHU requires You to register as an end-user, Your license is valid only if the registration is complete and accurate. The Software may contain open source software, subject to separate license terms made available with the RAHU Software or Documentation.
- If the Software is licensed for a specified term, Your license is valid solely for the applicable term in the Entitlement. Your right to Use the Software begins on the date the Software is made available for download or installation and continues until the end of the specified term unless otherwise terminated in accordance with this Agreement.
- 3. Ownership. RAHU retains ownership of all intellectual property rights in and to the Software, including copies, improvements, enhancements, derivative works and modifications thereof. Your rights to Use the Software are limited to those expressly granted by this EULA. No other rights with respect to the Software or any related intellectual property rights are granted or implied.
- 4. Limitations and Restrictions. You will not and will not allow a third party to:
- A. transfer, sublicense, or assign Your rights under this license to any other person or entity (except as expressly provided in Section 12 below) unless expressly authorized by RAHU in writing;
- B. modify, adapt or create derivative works of the Software or Documentation;
- C. produce derivative works from the Software that are subsequently utilized for commercial gain.
- If You have purchased the Individual User Version of the Software: All recipes and/or other derivative products created by the Software (collectively, "Recipes") are solely intended for Your personal use. Utilizing the Software to create Recipes for new products (including pet foods, recipe books, etc.) is expressly prohibited without the advance express written consent of RAHU or the purchase of the Commercial Version of the Software.
- If You have purchased the Professional Version of the Software: All Recipes are solely intended for the use of Your patients and clientele. Utilizing the Software to create Recipes for new products (including pet foods, recipe books, etc.) is expressly prohibited without the advance express written consent of RAHU or the purchase of the Commercial Version of the Software.
- If You have purchased the Commercial Version of the Software: All right title and interest in and to the Recipes, including all intellectual and other proprietary rights (including without limitation trade secrets), are owned exclusively by You and are intended for the use of Your internal and consulting operations including the production of pet foods, treats, or other consumable materials.
- D. reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Software, except as provided in Section 16 below;
- E. make the functionality of the Software available to third parties, whether as an application service provider, or on a rental, service bureau, cloud service, hosted service, or other similar bases unless expressly authorized by RAHU in writing;
- F. Use Software that is licensed for a specific device, whether physical or virtual, on another device, unless expressly authorized by RAHU in writing;
- G. remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks on or within the Software;
- 5. Third-Party Use of Software. You may permit a third party to Use the Software licensed to You under this EULA if such Use is solely (i) on Your behalf, (ii) for Your internal operations, and (iii) in compliance with this EULA. You agree that you are liable for any breach of this EULA by that third party.
- 6. Limited Warranty and Disclaimer.
- A. Limited Warranty. RAHU warrants that the Software will substantially conform to the applicable Documentation for the longer of (i) ninety (90) days following the date the Software is made available to You for your Use or (ii) as otherwise set forth in writing from RAHU. This warranty does not apply if the Software, RAHU product or any other equipment upon which the Software is authorized to be used if the Software; (i) has been altered, except by RAHU or its authorized representative, (ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by RAHU, (iii) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; (iv) is licensed for the beta, evaluation, testing or demonstration purposes or other circumstances for which the Approved Source does not receive payment of a purchase price or license fee; or (v) has not been provided by an Approved Source. RAHU will use commercially reasonable efforts to deliver to You Software free from any viruses, programs, or programming devices designed to modify, delete, damage or disable the Software or Your data.
- B. Exclusive Remedy Disclaimer. Except as expressly set forth above, RAHU and its licensors provide Software "as is" and expressly disclaim all warranties, conditions or other terms, whether express, implied or statutory, including without limitation, warranties, conditions or other terms regarding merchantability, fitness for a particular purpose, design, condition, capacity, performance, title, and non-infringement. RAHU does not warrant that the Software will operate uninterrupted or error-free or that all errors will be corrected. In addition, RAHU does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack
- 7. Limitations and Exclusions of Liability. Except for a party’s breach of confidentiality or indemnification obligations under Section 16 below, in no event will either party or its licensors be liable for the following, regardless of the theory of liability or whether arising out of the use or inability to use the Software: (a) indirect, incidental, exemplary, special or consequential damages; (b) loss or corruption of data or interrupted or loss of business; or (c) loss of revenue, profits, goodwill or anticipated sales or savings. Except for a party’s breach of confidentiality or indemnification obligations under Section 16 below, all liability of each party, its affiliates, officers, directors, employees, agents, suppliers, and licensors collectively, to the other party, whether based in warranty, contract, tort (including negligence), or otherwise, shall not exceed the license fees paid by You to any Approved Source for the Software that gave rise to the claim. This limitation of liability for Software is cumulative and not per incident. Nothing in this Agreement limits or excludes any liability that cannot be limited or excluded under applicable law.
- 8. Upgrades and Additional Copies of Software. Notwithstanding any other provision of this EULA, You are not permitted to Use Upgrades unless You, at the time of acquiring such Upgrade:
- A. already hold a valid license to the original version of the Software, are in compliance with such license, and have paid the applicable fee for the Upgrade; and
- B. limit Your Use of Upgrades or copies to Use on devices You own or lease; and
- C. unless otherwise provided in the Documentation, make and Use additional copies solely for backup purposes, where the backup is limited to archiving for restoration purposes.
- 9. Audit. During the license term for the Software and for a period of three (3) years after its expiration or termination, You will take reasonable steps to maintain complete and accurate records of Your use of the Software sufficient to verify compliance with this EULA. No more than once per twelve (12) month period, You will allow RAHU and its auditors the right to examine such records and any applicable books, systems (including RAHU product(s) or other equipment), and accounts, upon reasonable advanced notice, during Your normal business hours. If the audit discloses the use of Software for commercial gain, You will pay such fees plus the reasonable cost of the audit within thirty (30) days of receipt of written notice.
- 10. Term and Termination. This EULA shall remain effective until terminated or until the expiration of the applicable license or subscription term. You may terminate the EULA at any time by ceasing use of or destroying all copies of Software. This EULA will immediately terminate if You breach its terms, or if You fail to pay any portion of the applicable license fees and You to fail to cure that payment breach within thirty (30) days of notice. Upon termination of this EULA, You shall destroy all copies of Software in Your possession or control.
- 11. Transferability. You may only transfer or assign these license rights to another person or entity in compliance with the current RAHU Relicensing/Transfer Policy. Any attempted transfer or, assignment not in compliance with the foregoing shall be void and of no effect.
- 12. US Government End Users. The Software and Documentation are "commercial items," as defined at Federal Acquisition Regulation ("FAR") (48 C.F.R.) 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in FAR 12.212. Consistent with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and Defense Federal Acquisition Regulation Supplement ("DFAR") 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clauses to the contrary in any agreement into which this EULA may be incorporated, Government end users will acquire the Software and Documentation with only those rights set forth in this EULA. Any license provisions that are inconsistent with federal procurement regulations are not enforceable against the U.S. Government.
- 13. Export. RAHU Software, products, technology, and services are subject to local and extraterritorial export control laws and regulations. You and RAHU each will comply with such laws and regulations governing use, export, re-export, and transfer of Software, products, and technology and will obtain all required local and extraterritorial authorizations, permits, or licenses.
- 14. Survival. Sections 4, 5, the warranty limitation in 7(a), 7(b) 7(c), 8, 10, 11, 13, 14, 15, 17 and 18 shall survive termination or expiration of this EULA.
- 15. Interoperability. To the extent required by applicable law, RAHU shall provide You with the interface information needed to achieve interoperability between the Software and another independently created program. RAHU will provide this interface information at Your written request after you pay RAHU’s licensing fees (if any). You will keep this information in strict confidence and strictly follow any applicable terms and conditions upon which RAHU makes such information available.
16. Non-Disclosure. RAHU understands that User has disclosed or may disclose information relating to their proprietary recipes or formulations developed before or during their use of the Software (including without limitation Recipes), and/or patent-pending technologies, which to the extent previously, presently, or subsequently disclosed to RAHU hereinafter referred to as "Proprietary Information" of the User. RAHU shall acquire no ownership or usage rights in any Proprietary Information as a result of the use of the software or otherwise. In consideration of the disclosure of Proprietary Information by the User, RAHU hereby agrees: (i) to hold the Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions RAHU employs with respect to its own confidential materials), (ii) not to disclose any such Proprietary Information or any information derived therefrom to any third person, (iii) not to make any use whatsoever at any time of such Proprietary Information except to evaluate internally its relationship with the User, and (iv) not to copy or reverse engineer any such Proprietary Information. RAHU shall procure that its employees, agents, and sub-contractors to whom Proprietary Information is disclosed or who have access to Proprietary Information sign a nondisclosure or similar agreement in content substantially similar to this Agreement and shall be responsible for any breach of this Agreement by any such individuals.
RAHU’s obligations under this Agreement do not extend to Proprietary Information that is: (a) generally publicly known at the time of disclosure or subsequently becomes publicly known through no fault of RAHU or other third party; (b) discovered or created by RAHU before disclosure by the User; (c) learned by the RAHU through legitimate means other than from the User or User’s representatives; or (d) is disclosed by RAHU with User’s prior written approval.
RAHU agrees to indemnify the User against any and all losses, damages, claims or expenses incurred or suffered by the User as a result of RAHU’s breach of this Agreement.
RAHU shall defend and hold the User harmless from and against any and all claims, damages, suits, causes of action, liabilities or expenses (including, without limitation, reasonable attorneys' fees) arising from any allegation or claim that the Software infringes the intellectual property rights of any third party. The User shall cooperate with RAHU at RAHU’s expense in connection with its defense efforts.
- 17. Governing Law, Jurisdiction, and Venue. This EULA shall be governed by the State of California (notwithstanding any conflict of laws provision) and the specific courts or arbitrators that have exclusive jurisdiction over any claim arising under this EULA.
- 18. RAHU has the right to revise these terms and conditions at any time and will provide a notice period of 30 days to all Users before revision.
Revision 2. June 3, 2021