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Terms & Conditions – Javlin Inc. North&South America 18 Sep 2015
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CloverETL®
Terms & Conditions – Javlin Inc.

This Commercial Terms Agreement (“Agreement”) is entered into by and between Javlin Inc., a Virginia corporation, having its principal place of business at 2101 Wilson Blvd., Suite 620, Arlington, VA 22201 (“Javlin”) and you (“Customer”).

1.0 DEFINITIONS

1.1 “Affiliate” means any corporation, firm, partnership or other entity that directly or indirectly controls, or is controlled by, or is under common control with Javlin or Customer, as applicable.

1.2 “Javlin Branded” means a Product or a Service bearing a trademark or service mark of Javlin or any Javlin Affiliate.

1.3 “Documentation” means user manuals, training materials, Product descriptions and specifications, technical manuals, license agreements, supporting materials and other information relating to Products or Services offered by Javlin, whether distributed in print, electronic, CD-ROM or video format.

1.4 “Effective Date” means the date this Agreement is electronically accepted, referenced by a signed Customer Purchase order; or if signed, in hard copy by Customer, the date of last signature.

1.5 “EULA” means the End User License Agreement governing the license and use of the Software, which by this reference is incorporated herein as part of this agreement. A copy of the EULA is available at: http://www.cloveretl.com/legal/eula.

1.6 “Price List” means the price list provided by Javlin or Javlin’s Affiliate, to which Javlin commercial quotations and customer Purchase Orders are based on. The price list is maintained by Javlin and can be shared under commercial confidence with the Customer.

1.7 “Product(s)” means individually or collectively as appropriate, Software and Documentation listed on the then current Price List.

1.8 “Purchase Order” means a commercial commitment and order issued by Customer to Javlin for Products or Services to be purchased, licensed or provided under this Agreement.

1.9 “Services” means any software maintenance, technical support, or any other services performed by Javlin, including consultancy services for which Javlin may require a separate statement of work to be executed between the parties.

1.10 “Software” means the machine readable (object code) version of the computer programs listed from time to time on the Price List and made available by Javlin for license to Customer, and any copies made, bug fixes for, updates to, or upgrades thereof. The Software does not include any computer programs listed on the Price List in the name of a third party.

2.0 SCOPE

2.1 This Agreement sets forth the terms and conditions for Customer’s license and purchase of Products and Services solely for (i) Customer’s internal business use, (ii) providing data consultant services if Customer’s primary business is data services, or (iii) resale of licensing rights only if and where Customer has been granted appropriate reseller or distribution rights by Javlin for the specific Products or Services to be distributed. Customer shall not resell to, make available for use by, or otherwise transfer title to any Product to, any end user or other third party, without such reseller or distribution rights or agreement with Javlin. All end users or third parties will be bound by the terms of the EULA.

2.2 This Agreement take precedence over any additional or different terms and conditions, to which notice of objection is hereby given. JAVLIN SHALL NOT BE BOUND BY CUSTOMER’S TERMS AND CONDITIONS. The failure to object to Javlin’s terms and conditions in writing within five (5) business days of receipt, or the acceptance of Products purchased, shall constitute an acceptance of these terms and conditions. Javlin has priced all of its Products and Services upon allocation of risk set forth in this Agreement and Javlin would not enter into this Agreement without the limitations and provisions set forth herein.

3.0 PRICES

3.1 Prices for Products and Services shall be those specified in Javlin’s then current Price List, less any applicable discount agreed to at the time of acceptance of the Purchase Order by Javlin, or in accordance with an applicable, valid written price quotation, if any, submitted by Javlin to Customer for such Products or Services. Javlin accepts currencies that are listed on the quotation to the Customer.

3.2 All prices are exclusive of any freight, handling and shipping insurance charges, taxes, fees and duties or other similar amounts, however designated, including without limitation value added, sales and withholding taxes that are levied or based upon the prices, charges or upon this Agreement. Customer shall pay, in addition to the license fees, all taxes (excluding taxes based on Javlin’s net income) however designated, levied or based on the prices, terms or performance of this Agreement, including, without limitation, state and local sales and use taxes, duties and privilege and excise taxes, unless Customer furnishes appropriate evidence of exemption.

4.0 ORDERS

4.1 Customer shall license or purchase Products or Services by issuing a Purchase Order, signed, if requested by Javlin, or (in the case of electronic transmission) sent by its authorized representative, indicating specific Products and Services, Javlin Product numbers, quantity, unit price, total purchase price, bill-to and administrative addresses, tax exempt certifications, if applicable, contract reference, and identity of the end user for each Product and Service. No contingency contained on any Purchase Order shall be binding upon Javlin, unless agreed to in writing by Javlin. The terms of this Agreement shall apply, regardless of any additional or conflicting terms on any Purchase Order or other correspondence or documentation submitted by Customer to Javlin, and any such additional or conflicting terms are deemed rejected by Javlin.

4.2 Upon and subject to credit approval by Javlin following Javlin’s receipt of any Purchase Order, Javlin will review and accept or decline any or all Purchase Orders for Javlin or Javlin Affiliate that will supply the Products or Services; no other person is authorized to accept Purchase Orders on behalf of Javlin. Javlin may accept a Purchase Order even if some of the information required by Section 4.1 above is missing or incomplete.

5.0 DELIVERY

5.1 Delivery of Javlin Products will be made available by electronic download; and as provided in the applicable Statement of Work for Services.

5.2 Where Customer places orders with any Javlin Affiliate other than Javlin, Customer shall pay invoices issued by such entity with respect to such orders and the delivery terms agreed with such entity shall apply. Different delivery terms may apply to such Purchase Orders.

5.3 Customer shall assume responsibility for compliance with applicable export laws and regulations. Customer accepts any additional delays caused by the export licensing process as well as delays to comply with conditions of the individual export license.

5.4 JAVLIN SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR PENALTY FOR DELAY IN DELIVERY OR FOR FAILURE TO GIVE NOTICE OF ANY DELAY. EXCEPT IN ACCORDANCE WITH THE APPLICABLE DELIVERY TERMS IN THIS AGREEMENT, JAVLIN SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH DELIVERY.

5.5 All sales are final. Except as provided in Javlin’s warranty in the EULA, Javlin does not accept returns unless Javlin delivered a product other than as specified in the Purchase Order.

6.0 PAYMENT

6.1 Upon and subject to credit approval by Javlin, payment terms shall be thirty (30) days from Purchase Order date. Payments shall be made in currency on the Javlin commercial quotation applicable to the Purchase Order.

6.2 If at any time Customer is delinquent in the payment of any invoice, or is otherwise in breach of this Agreement, Javlin may, in its discretion, and without prejudice to its other rights, withhold delivery of any order, require Customer to prepay for further software, and/or withhold the provision of Services, until complete payment has been received. Any sum not paid by Customer when due shall bear interest from the due date until paid at a rate of ten per cent per annum or the maximum rate permitted by law, whichever is less and Customer shall pay any costs of collection including reasonable attorney’s fees. Customer grants Javlin a security interest in Products purchased under this Agreement to secure payment for such Products. If requested by Javlin, Customer agrees to execute financing statements to protect this security interest.

7.0 SOFTWARE LICENSING AND PROPRIETARY RIGHTS

7.1 Software and Documentation is provided to Customer under the terms contained in the EULA, which is an integral part of this Agreement. Any resale of a Software license or Documentation to any person or entity other than as expressly permitted by Section 2.0 (Scope) is expressly prohibited. Customer may not sublicense, to any person or entity, any rights to distribute the Software or Documentation, without prior agreement of Javlin.

7.2 Javlin maintains current versions of its Software and provides a schedule for end of life support for previous versions. Customer should check the cloveretl.com website or ask Javlin directly about the status of supported versions.

7.3 For non-Javlin Branded software and documentation delivered in connection with this Agreement that is separately licensed by a third party, Customer’s rights and responsibilities with respect to such software and documentation shall be governed in accordance with the third party’s applicable software license and not by this Agreement or the EULA. Customer may, on request, enter into one or more separate “click-accept” license agreements or third party license agreements as part of the installation and/or download process, which shall govern the use of such non-Javlin Branded software or documentation covered by such license.

7.4 Where Customer is a certified Javlin Reseller or Partner, Customer shall provide a copy of the Javlin EULA and applicable third party license agreement to each end user with delivery of the Product or prior to installation of the Software. Customer shall notify Javlin promptly of any breach or suspected breach of the Javlin EULA or third party license and further agrees that it will, at Javlin’s request, assist Javlin in efforts to protect and preserve Javlin’s or its supplier’s intellectual property rights including pursuing an action against any breaching third parties.

8.0 LIMITED WARRANTY

8.1 Javlin’s EULA outlines the warranty conditions and is an integral part of this agreement.

8.2 Services. Services provided hereunder shall be performed in a professional and workmanlike manner consistent with general industry standards. Customer must notify Javlin promptly, but in no event more than thirty (30) days after completion of the Services, of any claimed breach of this warranty. Customer’s sole and exclusive remedy for breach of this warranty shall be, at Javlin’s option, re-performance of the Services, or termination of this Agreement or the applicable Service and return of the portion of the Service fees paid to Javlin by Customer for such non-conforming Services. The provision of Services under this Agreement shall not extend the warranties provided with any Software licensed by Customer.

8.3 Unless otherwise specified in writing by Javlin, the limited warranties referenced in this Section 8 do not apply to any non-Javlin Branded software or services. Non-Javlin Branded software or services is warranted solely by the applicable manufacturer or licensor. Javlin will pass through, to the extent permitted, the manufacturer’s and/or licensor’s warranties and Customer shall look solely to such manufacturer and/or licensor for warranty claims.

8.4 DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, JAVLIN HEREBY DISCLAIMS AND CUSTOMER WAIVES ALL REPRESENTATIONS, CONDITIONS AND WARRANTIES (WHETHER EXPRESS, IMPLIED, OR STATUTORY), INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, SATISFACTORY QUALITY, QUIET ENJOYMENT, ACCURACY, OR SYSTEM INTEGRATION, OR (B) ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY. TO THE EXTENT AN IMPLIED WARRANTY OR CONDITION CANNOT BE DISCLAIMED, SUCH WARRANTY OR CONDITION IS LIMITED IN DURATION TO THE APPLICABLE EXPRESS WARRANTY PERIOD. IN ADDITION, THE EXPRESS LIMITATION OF LIABILITY FOR THE LICENCED SOFTWARE IS FURTHER OUTLINED IN THE EULA.

9.0 CONFIDENTIAL INFORMATION

9.1 “Confidential Information” means the Software (both object and source code), the accompanying Documentation and all related technical and financial information (including the terms of this Agreement) and any information, technical data or know-how, including, without limitation, that which relates to computer software programs or documentation, specifications, source code, object code, license keys, research, inventions, processes, designs, drawings, engineering, products, services, customers, markets or finances of the Disclosing Party (as defined below) that (i) has been marked as confidential or proprietary; (ii) is identified as confidential at the time of disclosure either orally or in writing; or (iii) due to its character and nature, a reasonable person under like circumstances would understand to be confidential.

9.2 The receiving party ("Receiving Party") may use the Confidential Information of the disclosing party (“Disclosing Party”) solely for the purpose of this Agreement and shall not disclose the Confidential Information to any third party, other than to employees, contractors and advisors of the Receiving Party who have a need to have access to and knowledge of the Confidential Information solely for the purpose authorized above. The Receiving Party shall exercise the same degree of care, but not less than reasonable care, it uses to safeguard its own Confidential Information. Confidential Information disclosed to the Receiving Party by any Affiliate or agent of the Disclosing Party is subject to this Agreement.

9.3 The Receiving Party shall have no obligation with respect to information that (i) was rightfully in possession of the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii) is, or subsequently becomes, legally and publicly available without breach of this Agreement; (iii) is rightfully obtained by the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is developed by or for the Receiving Party without use of the Confidential Information and such independent development can be shown by documentary evidence; or (v) is disclosed by the Receiving Party pursuant to and in accordance with a valid order issued by a court or government agency, provided that the Receiving Party provides (a) to the extent it may legally do so, prior written notice to the Disclosing Party of such order and (b) the Disclosing Party prior opportunity to oppose or restrict such disclosure.

9.4 Upon written demand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the Confidential Information and all copies, notes or extracts thereof to the Disclosing Party within fourteen (14) days of receipt of demand, and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with the obligations set forth in this paragraph.

10.0 TERM AND TERMINATION

10.1 This Agreement shall commence on the Effective Date, unless sooner terminated, as set forth below. This Agreement shall be automatically renewed thereafter, for successive one (1) year periods, unless at least forty-five (45) days prior to the date of any such renewal, either party shall have given written notice to the other of its intention that this Agreement not be renewed. This Agreement shall automatically terminate at the end of the annual period during which such notice is given.

10.2 Javlin has the right to terminate this Agreement and the license granted hereunder upon written notice to Customer if Customer: (a) is in default of any obligation hereunder which default is incapable of being cured, or which, being capable of being cured, has not been cured within thirty (30) days after receipt of written notice of such default; or (b) becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, or has been liquidated, voluntarily or otherwise.

10.3 Javlin may terminate this Agreement upon thirty (30) days written notice in the event that (i) Customer or an Affiliate, or Customer's direct or indirect parent has acquired or intends to acquire a controlling interest in a competing third party, or (ii) Customer or its direct or indirect parent is to be acquired by a third party, or (iii) a controlling interest in Customer or its direct or indirect parent is to be transferred to a third party.

10.4 Javlin may terminate this Agreement immediately upon written notice in the event that Customer is in breach of Sections 7.0 (Software Licensing and Proprietary Rights), Section 9.0 (Confidential Information), or Section 13.0 (Compliance with Laws, Including Anti-Corruption Laws).

10.5 Immediately upon termination, the licenses granted hereunder shall terminate, and Customer shall cease all use of the Software. Within five (5) days after termination, Customer will de-install the Software and all copies thereof, and certify in writing that they have been de-installed; provided, that except for a termination of this Agreement resulting from Customer’s breach of Section 7.0 (Proprietary Rights and Software Licensing), Section 9.0 (Confidential Information), or Section 13.0 (Export, Re-Export, Transfer & Use Controls), upon termination or expiration of this Agreement, Customer may continue to use, in accordance with this Agreement, Software provided to it by Javlin prior to the date of termination or expiration.

10.6 Termination shall not relieve Customer from paying all fees accruing prior to termination and shall not limit either party from pursuing any other available remedies.

10.7 Upon termination or expiration of this Agreement, Customer shall immediately return to Javlin all Confidential Information (including all copies thereof) then in Customer's possession, custody or control; provided, that except for a termination resulting from Customer's breach of Section 7.0 (Proprietary Rights and Software Licensing), or Section 14.0 (Export, Re-Export, Transfer & Use Controls), Customer may retain a sufficient amount of such Confidential Information and material to operate its installed base of Products.

11.0 SERVICES

11.1 Customer may place Purchase Orders for the various Services offered by Javlin. Such Services, if accepted by Javlin, shall be subject to this Agreement, as well as the additional terms and conditions set forth in Javlin’s then-current applicable Service descriptions that describe the deliverables and other terms applicable to such Services.

11.2 Javlin’s Services descriptions, including support and software maintenance, may be found at www.cloveretl.com/services; or can be provided by Javlin to Customer at any time. Javlin reserves the right to subcontract Services to a third party to provide Services to Customer.

12.0 RECORDS

12.1 Javlin shall have the right, on at least ten (10) days’ prior written notice and not more than once every twelve (12) months, to conduct a software audit during Customer's normal business hours to verify Customer’s use of the Software, compliance with the terms of this Agreement and payments made to Javlin hereunder. Customer agrees to immediately remit to Javlin any shortfall in payment disclosed by such software audit including any late charges applicable thereto.

13.0 COMPLIANCE WITH LAWS

13.1 Each party shall comply with all applicable anti-corruption legislation and represents that, to its knowledge, no money or other consideration of any kind paid or payable under this Agreement or by separate agreement has been used for any unlawful purposes.

13.2 Customer shall comply, and notify end users of their obligations to comply, with all applicable Javlin published policies, as published by Javlin and as amended from time to time. Customer shall promptly notify Javlin of any failure by any end user to comply with any of the foregoing policies that comes to Customer’s attention.

14.0 LIMITATION OF LIABILITY

EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT OR THE TERMINATION OF THIS AGREEMENT EXCEED THE AMOUNTS PAID TO JAVLIN HEREUNDER DURING A FULL YEAR IMMEDIATELY PRECEDING SUCH EVENT. IF SUCH LIABILITY RELATES TO PARTICULAR ITEMS OF SOFTWARE PROGRAM OR SERVICES PROVIDED BY JAVLIN, SUCH LIABILITY SHALL BE LIMITED TO THE FEES PAID FOR THE RELEVANT SOFTWARE PROGRAM OR SERVICES. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING IN ANY WAY OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ACTION MAY BE BROUGHT AGAINST JAVLIN LATER THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION OCCURRED. IN NO EVENT SHALL JAVLIN BE LIABLE FOR ANY CLAIMS, DEMANDS OR ACTIONS OF ANY NATURE BROUGHT BY ANY THIRD PARTY AGAINST CUSTOMER OR SOFTWARE LICENSEE. JAVLIN EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

15.0 GENERAL

15.1 Choice of Law; Forum Selection. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the Commonwealth of Virginia without regard to its principles of conflicts of laws. The parties agree that any dispute arising out of this Agreement shall be instituted in the United States District Court for the Eastern District of Virginia, Alexandria Division, or the courts of the Commonwealth of Virginia located in Fairfax County, Virginia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

15.2 Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquakes, labor disputes, industry-wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.

15.3 No Waiver. The waiver by either party of any right provided under this Agreement shall not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement.

15.4 Assignment. Neither this Agreement nor any rights or obligations under this Agreement shall be assigned by a party without the other’s prior written consent, which will not be unreasonably withheld or delayed. Any attempted assignment shall be void and of no effect. Notwithstanding the foregoing, the parties may assign this Agreement and any right or obligation under it without the other’s approval, to any Affiliate. Notwithstanding any assignment by Customer, Customer shall remain liable for the payment of all amounts due under this Agreement.

15.5 Severability. In the event that part of or one or more terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such part or term shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect.

15.6 Attorneys’ Fees. In any suit or proceeding relating to this Agreement the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment.

15.7 No Agency. This Agreement does not create any agency, partnership, joint venture, or franchise relationship. No employee of either party shall be or become, or shall be deemed to be or become, an employee of the other party by virtue of the existence or implementation of this Agreement. Each party hereto is an independent contractor. Neither party shall assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.

15.8 Entire Agreement. This Agreement, including any applicable EULA in the case where software is purchased and licensed, constitutes the entire agreement between the JAVLIN and the CUSTOMER concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties, all of which are excluded. There are no conditions, understandings, agreements, representations or warranties, expressed or implied, that are not specified herein. This Agreement may be modified only by a written document executed by the parties hereto.

15.9 Future Products and Services. Javlin reserves the right, during the term of this Agreement, to license and distribute additional items of Software. Such items of Software may be licensed under additional or different license terms which will be made available to Customer at the time such items of Software are ordered by or provided to Customer.

15.10 Notices. All notices required or permitted under this Agreement will be in writing and will be deemed given one (1) day after deposit with a commercial express courier specifying next day delivery (or three (3) days for international courier), with written verification of receipt. All communications will be sent to the addresses set forth on the first page of this Agreement, or such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph, or, in the absence of such an address from customer, to the address to which the last invoice under this Agreement was sent before notice is served. Notwithstanding the foregoing, notices regarding changes in pricing, Software license terms, policies or programs may be by posting on www.cloveretl.com or by e-mail or fax.

15.11 Survival. The following sections shall survive the expiration or earlier termination of this Agreement: Sections 2.0 (Scope), 6.0 (Payment), 7.0, (Software Licensing and Proprietary Rights), 8.0 (Limited Warranty), 9.0 (Confidential Information), 10.0 (Term and Termination), 12.0 (Records), 13.0 (Compliance with Laws), 14.0 (Limitation of Liability), 15.0 (General), and the license to use the Software set out in the EULA.

*** END OF COMMERCIAL TERMS AGREEMENT ***