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May 2019

EarlyTracks End User License Agreement

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Please read this end user licensing agreement ('EULA') carefully before proceeding with a product or service delivered by EarlyTracks.

EarlyTracks refers to EarlyTracks S.A., a limited liability company established in Belgium with VAT number BE 0812.239.990.
 

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Consent to the terms of this agreement



By using the Software, any business or government entity (defined as the 'User') agrees to all of the terms of this EULA.

Authorized Individuals are persons with a written agreement with the User that are either employees, self-employed consultants, doctors, nurses, etc. The User must ensure that Authorized Individuals have understood and accepted the conditions of this EULA before they use the Software. Authorised individuals must also accept and abide to the terms and conditions of this EULA.

If the User does not agree with the terms of this EULA, you must stop using or planning to use the Software immediately.

This document is a legal, binding and enforceable contract between the User and EarlyTracks.

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Licensed Software



By 'Software', parties mean whole or each application, bits of code, APIs, user interfaces, ideas, methods, operations, documentation as well as any other information or updates thereof provided by EarlyTracks to the User.

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Unless otherwise stated, the Software is licensed, not sold, by EarlyTracks to the User. Conditions of this licensing (financial terms, scope of use, etc.) are defined in a separated document signed by the parties. In the absence of such document, the User cannot use the Software and must immediately remove it from its IT Infrastructure (that is the infrastructure of servers hosting critical software for the User).

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The granted license is not for resale: it is only intended for use by the User and Authorised Individuals.

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Ownership of the Software



Except for the use of well-identified open-source solutions that are not in its ownership, the Software is the sole and full ownership of EarlyTracks. By granting a license to the User, EarlyTracks does not transfer any ownership rights on the Software to the User.

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Open-source solutions: The Software includes some software programs that are licensed (or sublicensed) to the User under the GNU General Public License (GPL) or other similar free software licenses which, among other rights, permit the User to copy, modify and redistribute certain programs, or portions thereof, and have access to the source code. If these licenses require that for any software, which is distributed to someone in an executable binary format, that the source code also be made available to those users, then the source code could be found either supplied with the Software, or could be made available by sending a request to support@earlytracks.com. If any such licenses require that the User provide rights to use, copy or modify an Open-Source Software program that are broader than the rights granted in this EULA, then these rights shall take precedence over the rights and restrictions herein.

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Single deployed version of the Software



Unless otherwise stated in another agreement between the User and EarlyTracks or an EarlyTracks reseller, the Software under license is only intended for a single installation (a production version) on the IT Infrastructure of the User.

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The IT Infrastructure on which the Software is installed must be appropriated to the type of content and processing constraints the Software will or might be supposed to handle, store and process.

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EarlyTracks and the User may agree to deploy other versions of the Software when appropriate. These includes but might not be limited to back-up and staging servers. Additional deployments of the Software will nevertheless require a beforehand signed and written agreement between EarlyTracks and the User.

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Usage restrictions



Unless otherwise stated in another agreement between the User and EarlyTracks and provided the other conditions described in this EULA, the Software can be used without any restrictions by the User but only for its own use. This right of use is not extended to subsidiaries not controlled by the User.

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Restrictions specific to trials

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Limited use trial versions of the Software may be provided to a User, but the use of the Software during the trial period is restricted to review and evaluation purposes only. Direct or indirect use in any business activity is explicitly prohibited.

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Any use of trial versions of the Software by the User for any purpose other than to review and evaluate it would constitute a breach of the terms of this EULA by the User. EarlyTracks can seek proper indemnification for such breach. By default, such indemnification is the purchase of a License of the Software at full retail price and starting on the date of the first contact between EarlyTracks and the User and ending 1 year after the breach has been noticed by EarlyTracks. EarlyTracks has the right to further require indemnity for inappropriate use of the Software.

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Appropriate use



The User fully understands that the Software generates, among others, automatic content based on statistical processing. Such content inevitably contains errors, limitations, inconsistencies, etc.. The User commits itself to use the Software carefully and in accordance with such qualitative limitations.
 

The User must ensure the Software output is adequately used by the User, its Authorised Individuals, or any other third parties. The Software output must be reviewed by appropriate experts before use. Such methodology is among others required for safety purposes.
 

The User must take all the required efforts to make sure any of its Authorised Individuals have a clear understanding of these limitations and are not misled in the later use of the Software output.
 

The Software is not and must not be used as a medical device (SaMD). Its purpose is only to produce indicative information about content it has processed. It is not meant to inform or drive medical decisions nor to treat or help diagnose medical conditions for a patient or group of patient.
 

The Software contains copyrighted material, trade secrets and other proprietary material and the User may not decompile, reverse engineer, disassemble or otherwise reduce the Software to a human perceivable form. The User may not modify, network, rent, lease, loan, distribute or create derivative works based upon the Software in whole or in part without express written permission from EarlyTracks. The User may not electronically transmit or copy the Software from one computer to another or over a network, unless given specific written permission by EarlyTracks.

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Termination



The License granted by EarlyTracks to use the software for appropriate uses is effective until terminated.
 

Unless detailed elsewhere, the User may terminate this License on the anniversary date of the start of the use of the Software by the User. To be valid, such termination must be notified, by written, 3 months before the anniversary date.
 

Upon termination, the User must take all necessary steps to destroy the Software and all other confidential information provided by EarlyTracks.
 

This License will terminate immediately without notice from EarlyTracks if the User fails to comply with any provision of this EULA or any other agreement between the User and EarlyTracks. Such case occurs, among others, when there is a misuse of the Software or of its outputs as well as when the User does not fullfil its financial obligations.

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Warranty disclaimer



THE USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF ANY EARLYTRACKS PRODUCT OR SERVICES IS AT THE USER’S SOLE RISK. THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND AND EARLYTRACKS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (‘FIT FOR USE’).

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EARLYTRACKS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET THE USER’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.

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FURTHERMORE, EARLYTRACKS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

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NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EARLYTRACKS OR A EARLYTRACKS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.

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SHOULD THE SOFTWARE PROVE DEFECTIVE, THE USER (AND NOT EARLYTRACKS) ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.

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SUBORDINATED TO OTHER LEGAL COMMITMENTS TAKEN BY EARLYTRACKS WITH THE USER, EARLYTRACKS DOES NOT WARRANT OR GUARANTEE THAT THE FEATURES, BENEFITS AND FUNCTIONALITY OF THE SOFTWARE WILL REMAIN THE SAME IN FUTURE UPDATES. THE USER UNDERSTANDS AND AGREES THAT ANY FEATURE MAY CHANGE AT THE SOLE DISCRETION OF EARLYTRACKS AND THAT THE USE OF ANY FEATURE OR FUNCTION OF THE PROGRAM MAY BE DISCONTINUED OR MODIFIED AT EARLYTRACKS’ SOLE DISCRETION WITHOUT NOTICE TO THE USER.

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Limitation of liability



UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE SHALL EARLYTRACKS BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE THE SOFTWARE OR RELATED DOCUMENTATION, EVEN IF EARLYTRACKS OR AN EARLYTRACKS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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NO ACTION MAY BE BROUGHT OR ARBITRATION DEMANDED UNDER THIS AGREEMENT AT ANY TIME MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION FOR ARBITRATION AROSE.

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IN NO EVENT SHALL EARLYTRACKS’ TOTAL LIABILITY TO THE USER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) EXCEED THE AMOUNT PAID BY THE USER FOR THE SOFTWARE.

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Maintenance process



The User authorises EarlyTracks to perform maintenance tasks on the Software leading to possible evolutions in all Software components.

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The User will provide all the necessary supports to help EarlyTracks realise such maintenance.

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During the maintenance process, EarlyTracks will do its best effort to not disrupt the production version of the Software but cannot guarantee any level of service during that maintenance. The User acknowledges his full understanding of such situation.

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Both the User and EarlyTracks will collaborate to find proper approaches to limit disturbances during maintenance period. Such approaches can be (but are not limited to): provision of a staging infrastructure and incremental roll-out approaches (partial deployment of the solution being service by service or records by records, for instance).

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The User also understands that a discontinuity in the maintenance cycles of the Software represents extra costs of maintenance for EarlyTracks. Such situation arises, for instance, when a user stops paying for a couple of months the License due to EarlyTracks for the use of the Software and then uses the Software again. In such event, the User will compensate EarlyTracks extra efforts by paying the license he should have had to pay at that time (maximum 2 years).

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Technical support



EarlyTracks provides by default a three-level support to all its users who fully respect all their financial obligations against EarlyTracks.

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This support is described in the latest version of EarlyTracks' Support Policy ('EU-SUP') and can be sent upon first request of an employee or legal representative of the User by sending an email to support@earlytracks.com.

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Conditions regarding data collection and processing (GDPR update)



The Software may contain certain features that generate, collect, and transmit data to EarlyTracks about the installation, setup, and use of the Software by the User. The purposes of such data collection are: 1) to verify compliance with the terms of all (direct or indirect) legal agreements between the parties (including this EULA), 2) to ensure appropriate use of the Software on the IT Infrastructure and 3) to enable EarlyTracks to monitor, develop, improve, and support EarlyTracks’ products and services performance.

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The data can be collected by EarlyTracks free of charge and EarlyTracks will only collect the data for the above, internal, purposes. Such information may be considered personal according to applicable laws of certain countries.

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This information can be of three types:

  • When data is collected to verify compliance with the legal terms between the parties and activation, EarlyTracks has to process and receive the following information about the Software and the User, specifically (and when applicable) : the type, version and localization of the Software, versions of the installed updates, the identifier of the User server on the IT Infrastructure and the identifier of the Software installation, the activation code and the unique identifier of activation of the current license, the specifications of the server on the IT Infrastructure (type, version of the operating system, the name of the virtual environment if the Software is installed in an virtual environment, and identifiers of the Software components that are active at the time the information is provided).

  • When data is collected for management of the Software and IT Infrastructure parameters: In the case the Software is deployed on the User IT infrastructure, EarlyTracks will need to store connections parameters to that infrastructure. This functionality requires that EarlyTracks stores and receives information about the User IT Infrastructure and processes information about the Software, information about the deployment of the Software, the IT infrastructure, specifically (when applicable) :

    • Software activation code, status and type of license (including limitations of use), information about license activation error, expiration date of effective license validity period, information about additional installed licenses,

    • Device type, information about the version of the operating system installed on the device and installed service packs, device type image,

    • Name of the Computer on the network (domain names) and connection parameters.

    • Regional parameters of the operating system (information about the time zone, default keyboard layout, language of the interface).

    • Information about installed Software of EarlyTracks, Software operating mode and the status of the Software: Software version, unique ID of installation of the Software on the Computer, the unique ID of the server,

    • Status of the protection components ;

    • Monitoring of the IT Infrastructure on which the Software is deployed.

  • When data is collected to enable EarlyTracks to monitor, develop, improve, and support EarlyTracks’ products and services performance, this data includes aggregated and non-personal distribution of the output of the Software for the User. Such data will be collected on a periodic basis and only used for a limited-time purpose by EarlyTracks. The core functionality of the Software as described in the commercial material and the legal agreements is to provide tools that can help support better information management for the User. To provide and continuously have the possibility to improve this core functionality, EarlyTracks has the right to receive information from the User use of the Software and process such information, specifically: isolated and scrumbled entities extracted from reports (or statistical distributions of such entities), results of the link of such information to established code sets, attributes of the process documents as calculated by the Software or directly pushed to the Software by the User, time and date of the processing performed (or statistical distributions of such content), support requests sent to EarlyTracks and later conversation related to this.


EarlyTracks will not collect information that, on its own, permits direct association with any specific individual.

When the Software is made available for use free of charge, the collection of usage data (such as output distribution or human validation) may also be mandatory and a condition of using the Software.


Data collected about the installation, setup, and use of the Software may be collated with other available data only if: 1) the purpose is to develop, improve, and support EarlyTracks' products and services, and 2) the data will not be used to identify or contact the User or individuals.


When the User and Authorised Individuals provide data through the Software to EarlyTracks, EarlyTracks handles it according to its Privacy Policy, which describes, in particular, the manner by which EarlyTracks protects the User data, where EarlyTracks processes the User data, and the User rights as the data subject. You can find and read its complete content at http://www.earlytracks.com/products-and-services-privacy-policy.


If the User decides not to provide the information necessary for EarlyTracks to perform these treatments, you do not agree to the conditions of this EULA. In this case, please immediately inform EarlyTracks of such decision by sending an e-mail at support@earlytracks.com.


All this data will be stored on a secured infrastructure maintained by EarlyTracks and stored as if it were EarlyTracks own confidential information.

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Governing Law and Severability



This EULA shall be governed by and construed in accordance with the laws of the Kingdom of Belgium.

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In the event of any legal action relating to this EULA that is not in accordance with the terms of Arbitration specified below, the User consents to the exercise of jurisdiction over it by the Brussels Tribunal de Commerce and further the agrees that such court shall have exclusive jurisdiction over any such action.

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If for any reason the court of jurisdiction finds any provision of this EULA, or portion thereof, to be unenforceable, that provision of the EULA shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this EULA shall continue in full force and effect.

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EarlyTracks and the User agree that any dispute arising between the parties with respect to this EULA shall preferably be settled by binding arbitration prior to any formal legal enforcement. Arbitration shall be conducted by one or more senior persons experienced in dispute resolution selected by EarlyTracks. The estimated arbitration costs and fees of one thousand five hundred euro (€1,500) must first be paid into an Escrow account by either party initiating the arbitration proceedings. Once the initiating party has deposited this fee into the Escrow account, it is required and agreed to that the other party must deposit this same amount. The final arbitration costs will be borne equally by both parties. Both parties agree to pay their own legal and other costs related to such a dispute. Any award rendered by the arbitrators shall be final and binding. All arbitration proceedings shall, to the extent permitted by law, be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.

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Updates to this agreement



EarlyTracks has the right to propose to the User periodic updates to this agreement. Notifications will be made by email to the User for acceptation. Acceptation is assumed to be effective and accepted by the user 60 days after the day that followed the written notification to the User.

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EarlyTracks Contact Information



Should you have any questions concerning this EULA, please contact our support at: support@earlytracks.com.


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