Basic Solutions, Inc. Software License
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT
This MASTER SOFTWARE LICENSE & SERVICES AGREEMENT, including the Data Center Agreement (if applicable), and each applicable Order Form, Statement of Work, and Price List, which by this reference are incorporated herein (this “Agreement”), is a binding agreement between Basic Solutions, Inc. (“Software Vendor”) and the person or entity identified on the signature page (or Order Form) as the licensee of the Software (“Licensee”). Throughout this Agreement, Licensee may be referred to as “You” or “Your”. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates, as applicable, to the terms and conditions contained in this Agreement, in which case the terms “You” or “Your” shall refer to such entity and its Affiliates.
*IMPORTANT: PLEASE READ CAREFULLY*
SOFTWARE VENDOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM.
BY CLICKING “I AGREE”, DOWNLOADING, ACCESSING, INSTALLING, RUNNING OR USING THE SOFTWARE OR SERVICES, OR BY SIGNING ANY ORDER FORM OR WORK ORDER THAT GRANTS YOU A LICENSE TO USE THE SOFTWARE OR SERVICES YOU:
- AGREE THAT THIS AGREEMENT IS A LEGALLY BINDING AND VALID AGREEMENT;
- ACCEPT THIS AGREEMENT AND AGREE TO BE LEGALLY BE BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN;
- REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS BINDING AGREEMENT;
- IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS; AND
- TO TAKE ALL NECESSARY STEPS TO ENSURE THAT THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE NOT VIOLATED BY YOU OR ANY PERSON OR ENTITY UNDER YOUR CONTROL OR IN YOUR SERVICE.
THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY AND EXCLUSIVE REMEDIES. THE PROVISIONS BELOW FORM THE ESSENTIAL BASIS OF OUR AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK “I AGREE”, DOWNLOAD, ACCESS, INSTALL, RUN OR USE THE SOFTWARE, AND DO NOT SIGN ANY ORDER FORM OR WORK ORDER THAT GRANTS YOU A LICENSE TO USE THE SOFTWARE OR SERVICES.
- DEFINITIONS. For purposes of this Agreement, the following terms have the following meanings:
“Affiliates” means, with respect to a Party, any entity that, directly or indirectly, controls, is
controlled by, or is under common control with such Party; for purposes of this definition, “control”
means the direct or indirect possession of the power to direct or cause the direction of the management
and policies of another entity, whether through the ownership of voting securities, by contract or otherwise.
“Authorized Machines” means the specific computing devices (including handheld and portable devices) that are owned, operated by or are under the control of Licensee or Authorized Users that are permitted to run or otherwise access the Software under this Agreement.
“Customization” means any software, features or additions provided by Software Vendor to Licensee, for additional consideration, that is not typically included in the standard Software offered by Software Vendor. Customizations expressly include any non-standard features or additions that have been commissioned at the request of Licensee, or any requests for changes to the Software made by Licensee or Licensee’s authorized representative. A full description of each Customization shall be set forth in a Work Order or in a formal addendum or amendment thereto. As used in this Agreement, each Customization shall be deemed Software.
“Customization Fees” means the fees, including all taxes thereon, paid by Licensee for Customizations provided to Licensee by Software Vendor hereunder. The amount of Customization Fees is set forth in the SOW.
“Data Storage Provider” means any Third Party that provides electronic storage, hosting, or data management services to Licensee for Licensee’s files or data, whether based offsite or at Licensee’s facility.
“Documentation” means any user manuals, technical manuals and any other materials provided by Software Vendor, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software.
“Effective Date” means the specific date on which this Agreement is in full force and effect, as set forth on the signature page herein or in the Order Form.
“Intellectual Property Rights” means any and all registered and unregistered rights, granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. Intellectual Property Rights expressly includes all Customizations and any derivative works related to the Software.
“Order Form” means the document or form provided by Software Vendor to the Licensee that sets forth the specific pricing and terms for Licensee’s purchase of the license for the Software granted under this Agreement. Order Form includes the initial documents or forms between the parties in connection with the licensing of the Software as well as subsequent or additional documents or forms that may be executed at a later time.
“Licensee” has the meaning set forth in the preamble.
“License Fees” means the license fees, including all taxes thereon, paid by Licensee for the license to use the Software granted under this Agreement. The amount of License Fees is set forth in the Order Form.
“Live Date” means the specific date on which Licensee has access to the Software or is able to substantially use the Software in accordance with the license granted to Licensee with this Agreement, whether or not such Software is put into effective use by Licensee. The Live Date shall be set forth in the Order Form.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Price List” means the current listing of products and services offered by Software Vendor, together with the current pricing of each. Price List may be updated, amended or modified by Software Vendor from time to time, in its sole discretion, upon providing reasonable notice to Licensee.
“Service” or “Services” means the services to be provided by Software Vendor to Licensee pursuant an Order Form and/or a Work Order. As used in this Agreement, Services expressly include services performed by Software Vendor for Licensee in the development of Customizations and in connection with installation, configuration, or consulting in relation to the Software licensed hereunder.
“Software” means the commercial software programs for which Licensee is purchasing a license, as expressly set forth in the Order Form. Throughout this Agreement, the term Software includes any Customization.
“Software Vendor” has the meaning set forth in the preamble.
“Supplier” means any third party provider of a software product, application or element that is incorporated into, or works in conjunction with, the Software or related service rendered by Software Vendor under this Agreement.
“Support Fees” means fees, including all taxes thereon, paid by Licensee for Software support and maintenance services under this Agreement. The amount of Support Fees is set forth in the Order Form.
“Term” has the meaning set forth in the Order Form.
“Third Party” means any Person other than Licensee or Software Vendor.
“Update” has the meaning set forth in Section 8(b). As used in this Agreement, each Customization shall be deemed Software.
“Statement of Work”, “SOW”, or “Work Order” means the document or form provided by Software Vendor to the Licensee that sets forth the specific pricing, terms, specifications, and delivery schedules in connection with any Customizations (and services associated therewith). A SOW includes the initial documents or forms between the parties as well as subsequent or additional documents or forms that may be executed at a later time.
- LICENSE GRANT AND SCOPE. Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Software Vendor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users and solely on Authorized Machines, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:
- Download and install, in accordance with the Order Form, one (1) copy of the Software per license purchased by Licensee. Unless the Order Form expressly states otherwise, each such license shall be utilized by the Licensee for its internal business purposes only;
- Create one copy of the Software solely for archival purposes and one copy of the Software solely for backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use any archival or backup copy unless the licensed copy installed in accordance with above Section 2(a) is inoperable and, provided, further, that Licensee uninstalls and otherwise deletes such inoperable copy. All copies of the Software made by the Licensee:
- will be the exclusive property of Software Vendor;
- will be subject to the terms and conditions of this Agreement;
- must include all trademark, copyright, patent and other Intellectual Property Rights notices contained in the original; and
- Shall be securely stored in a place inaccessible to non-Authorized Users.
- Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely for Licensee’s internal business purposes. Such use is permitted only within the geographic areas set forth in the Order Form;
- Share Licensee’s information and data collected or compiled with the assistance of the Software with any Third Party;
- Download or otherwise make one (1) copy of the Documentation per copy of the Software permitted to be installed in accordance with this Agreement and use such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Licensee:
- will be the exclusively owned by Software Vendor and licensed to Licensee in accordance with the terms and conditions of this Agreement;
- will be subject to the terms and conditions of this Agreement;
- must include all trademark, copyright, patent and other Intellectual Property Rights notices contained in the original; and
- Shall be securely stored in a place inaccessible to non-Authorized Users.
- Licensee may have the option to perpetually license the Software upon the successful completion of the Term of this Agreement only if the same is indicated on the Order Form. The requirements, costs, and additional terms for acquiring a perpetual license to the Software, if any, are set forth in the Order Form or a clearly labeled addendum thereto, and must be met by Licensee. In the event that an option to perpetually licensed the Software, if available, is exercised by the Licensee, all terms, conditions and restrictions (not relating to perpetuity of the license) set forth in this Agreement will remain in full force and effect.
- THIRD PARTY MATERIALS. The Software may include, incorporate, utilize or work with other software, tools, applications, content, data or other materials, including related documentation, that are owned by Persons other than Software Vendor and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”).
- The license terms and conditions of PVX Plus Technologies Ltd. (“PVX”) are expressly incorporated herein by reference for the ProvideX software, the ProvideX Plus Professional Language Platform, and any other software product, tool or component of PVX that may be used by Licensee as part of the Software license granted hereunder. The PVX license terms may be found at the following link: http://www.pvxplus.com/pgsrvr.pvp?pg=licenses; the link and terms found therein may be modified by PVX from time to time, with or without notice.
- A list of further such Third Party Licenses may be provided upon Licensee’s reasonable request to Software Vendor. Licensee agrees to be bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.
- USE RESTRICTIONS. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
- Use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;
- Provide any other Person (who is not an Authorized User), including any sub-contractor, independent contractor, affiliate or service provider of Licensee, with access to or use of the Software or Documentation;
- Modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof, except as authorized enhancements or modifications to the Software for which Software Vendor gave express permission;
- Combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs, except those that are integral to the core functionality of the Software and that are provided or paired with the Software at the time of its delivery;
- Reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
- utilize the source code of the Software, or any portion thereof through the authorized use of the Software, to design, build (or guide, instruct, or train any third party or algorithm to design or build) any product or service with functionality that is substantially similar to the Software or that competes with Software Vendor or the Software;
- remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
- except as expressly set forth in Section 2(a) and Section 2(c), copy the Software or Documentation, in whole or in part;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features, functionality, components, elements or parts of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service;
- use the Software or Documentation in violation of any government law, regulation or rule; or
- use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to Software Vendor's commercial disadvantage.
- RESPONSIBILITY FOR USE OF SOFTWARE. Licensee is responsible and liable for all uses of the Software and Documentation it licenses pursuant to this Agreement, including any unauthorized uses due to loss, theft or unauthorized distribution of the Software. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
- COMPLIANCE MEASURES.
- The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 4. Licensee shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features. Any violation of this Section 6(a) by Licensee shall be considered a breach of this Agreement.
- Licensee acknowledges and agrees that Software may be “seeded” with code and/or content features as a way to track compliance with this Agreement and Software Vendor’s Intellectual Property Rights; such compliance mechanisms will not negatively impact the usability of the Software for Licensee and/or any Authorized Users.
- At least on an annual basis, and otherwise on Software Vendor’s written request, Licensee shall conduct a review of its and its Authorized Users use the Software and certify to Software Vendor in a written instrument signed by an officer of Licensee that it is in full compliance with this Agreement or, if Licensee discovers any noncompliance:
- Licensee shall immediately remedy such noncompliance and provide Software Vendor with written notice thereof. Licensee shall provide Software Vendor with all access and assistance as Software Vendor requests to further evaluate and remedy such noncompliance.
- If Licensee’s use of the Software exceeds the number of copies or Authorized Users permitted under the license, Software Vendor shall have the remedies set forth in Section 6(e).
- During the Term, Software Vendor may, in Software Vendor’s sole discretion, audit Licensee’s use of the Software to ensure Licensee’s compliance with this Agreement, provided that (i) any such audit shall be conducted on not less than ten (10) days’ prior notice to Licensee, and (ii) no more than two (2) audits may be conducted in any twelve (12) month period except for good cause shown. Software Vendor also may, in its sole discretion, audit Licensee’s systems within six (6) months after the end of the Term to ensure Licensee has ceased use of the Software and removed the all copies of the Software from such systems as required hereunder. The Licensee agrees to fully cooperate with Software Vendor’s personnel conducting such audits and provide all reasonable access requested by Software Vendor to records, systems, equipment, information and personnel, including machine IDs, serial numbers and related information. Software Vendor shall only examine information directly related to the Licensee’s use of the Software. Furthermore, Software Vendor may conduct audits only during Licensee’s normal business hours and in a manner that does not unreasonably interfere with the Licensee's business operations.
- If, as the result of an audit/any of the measures taken or implemented under this Section 6, Software Vendor determines that the Licensee’s use of the Software exceeds or exceeded the use permitted by this Agreement then:
- Licensee shall, within fifteen (15) days following the date of Software Vendor’s written notification thereof, pay to Software Vendor the retroactive License Fees for such excess use and, unless Software Vendor terminates this Agreement pursuant to Section 6(e)(iii), obtain and pay for a valid license to bring Licensee’s use into compliance with this Agreement. In determining the License Fees payable pursuant to the foregoing, unless Licensee can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by Software Vendor hereunder, and continued uninterrupted thereafter, and the rates for such licenses shall be determined without regard to any discount to which Licensee may have been entitled had such use been properly licensed prior to its commencement (or deemed commencement).
- If the use exceeds or exceeded the use permitted by this Agreement, Licensee shall also pay to Software Vendor, within fifteen (15) days following the date of Software Vendor’s written request therefor, Software Vendor’s reasonable costs incurred in conducting the audit.
- If the use exceeds or exceeded the use permitted by this Agreement by more than ten percent (10%), Software Vendor shall also have the right to terminate this Agreement and the license granted hereunder, effective immediately upon written notice to Licensee.
- Software Vendor’s remedies set forth in this Section 6(e) are cumulative and are in addition to, and not in lieu of, all other remedies Software Vendor may have at law or in equity, whether under this Agreement or otherwise.
- STORAGE OF DATA.
- Upon Licensee’s request, Licensee may elect to have its files and data (including Software Data) stored, hosted, and/or managed by, or through the use of, a Data Storage Provider.
- Software Vendor may, at Licensee’s request, connect Licensee with a Data Storage Provider for storing, hosting, and/or managing Licensee’s files and data in connection with the Software.
- Software Vendor agrees to provide the direct contact information of the Data Storage Provider to Licensee, and Licensee agrees to work directly with such Data Storage Provider in accordance to the terms that are mutually acceptable to Data Storage Provider and Licensee.
- Licensee expressly acknowledges and agrees that any relationship that it has with that Data Storage Provider, whether through a written contract or otherwise, shall at all times be directly with such Data Storage Provider, and fully independent of its relationship with Software Vendor.
- Licensee further acknowledges and agrees that Software Vendor is not, and shall not be, at any time, a party to any relationship, arrangement or agreement between Licensee and any Data Storage Provider.
- MAINTENANCE AND SUPPORT.
- Unless otherwise set forth in the Order Form, no maintenance and support services are included in the license granted under this Agreement. Subject to Section 7(c) the license granted hereunder gives Licensee the option to purchase maintenance and support services, as follows:
- on an as needed basis, upon Licensees reasonable request to Software Vendor. Such maintenance and support services may be provided by Software Vendor or by a Third Party designated by Software Vendor, and shall be billed to Licensee on an hourly basis, at the hourly rate charged by Software Vendor, as set forth in its most current Price List; or
- as part of a maintenance and support package set forth in the Order Form, upon the payment of a Support Fee, which is billed annually. Unless otherwise stated in the Order Form, any additional maintenance and support services (including those in excess of the scope or limits of the package purchased by Licensee) shall be billed to Licensee on an hourly basis, at the hourly rate set forth by Software Vendor in its most current Price List.
- Software Vendor may provide periodic updates, upgrades, bug fixes, patches and other error corrections (collectively, “Updates”) as Software Vendor makes generally available free of charge to all licensees of the Software then entitled to maintenance and support services. Software Vendor may develop and provide Updates in its sole discretion, and Licensee agrees that Software Vendor has no obligation to develop any Updates at all or for particular issues, and expressly disclaims any liability for not doing so. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Software Vendor may provide some or all Updates via download from a website designated by Software Vendor and that Licensee’s receipt thereof will require an internet connection, which connection is Licensee’s sole responsibility. Software Vendor has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that Software Vendor may issue as a separate or new product, and Software Vendor may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.
- Software Vendor reserves the right to condition the provision of maintenance and support services, including all or any Updates, on Licensee’s registration of the copy of Software for which support is requested. Software Vendor has no obligation to provide maintenance and support services, including Updates:
- for any but the most current or immediately preceding version or release of the Software;
- for any copy of Software for which all previously issued Updates have not been installed;
- if Licensee is in breach of any term or condition in this Agreement; or
- for any Software that has been modified other than by Software Vendor, without Software Vendor’s express written permission.
- In the event that Software becomes temporarily unavailable or inaccessible, Licensee agrees to notify Software Vendor of any such unavailability of access to the Software. Software Vendor agrees to use commercially reasonable efforts to restore its availability and functionality of the Software to Licensee within a reasonable timeframe. If the unavailability or inaccessibility of the Software is due to a failure, malfunction or misuse of the Licensee’s servers (whether in-house, off-site, or cloud-based), equipment or Authorized Machines, Licensee agrees to be billed for Software Vendor’s efforts and services in restoring availability and functionality of the Software in accordance with Software Vendor’s maintenance and support services rates.
- In the event that Software, or Licensee’s files or data (including, but not limited to, any Software Data) become temporarily unavailable or inaccessible due to any actions, omissions, failure of infrastructure or connectivity, or events of Force Majeure of, by or involving a Data Storage Provider, Licensee agrees to notify Software Vendor of any such unavailability of access to the Software. Software Vendor may assist in working with the Data Storage Provider, but Licensee acknowledges and agrees that the primary responsibility of working with, resolving problems with, and restoring services of such Data Storage Provider shall be exclusively that of Licensee.
- Software Vendor expressly disclaims any liability for any Software unavailability or downtime caused by circumstances beyond Software Vendor’s control, including without limitation:
- actions or omissions of third parties, act of God (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods); war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilization, requisition, or embargo; rebellion, revolution, insurrection, or military or usurped power, or civil war; contamination by radioactivity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly; riot, commotion, strikes, go slows, lock outs or disorder; acts or threats of terrorism; or other events of force majeure (the “Force Majeure”);
- general Internet outages, failure of Licensee's infrastructure or connectivity, computer and telecommunications failures and delays not within Software Vendor’s control;
- any actions or failures to act, failure of infrastructure or connectivity, or events of Force Majeure of, by or involving a Data Storage Provider; and
- network intrusions or denial-of-service attacks of Licensee’s systems and servers, Authorized Machines, or of a Data Storage Provider.
- COLLECTION AND USE OF INFORMATION.
- Licensee acknowledges that Software Vendor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used. Licensee further acknowledges and agrees that Software Vendor may, directly or indirectly through the services of Third Parties, collect, share, store and transfer data generated by Licensee’s use of the Software (the “Software Data”), even if such information is confidential in nature (or is a Trade Secret). Software Vendor may collect such information and data through means including, but not limited to:
- Licensee’s use of the Software;
- the provision of maintenance and support services; and
- security measures included in the Software as described in Section 6.
- Licensee agrees that the data and information collected may include, but need not be limited to: Software Data, names, email addresses, telephone numbers, and communication between Licensee or Authorized User and Software Vendor. Software Vendor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:
- making the Software functional and usable for Licensee;
- providing Licensee with products and services under this Agreement;
- improving the performance of the Software or developing Updates; and
- verifying Licensee’s compliance with the terms of this Agreement and enforcing Software Vendor’s rights, including all Intellectual Property Rights in and to the Software.
- INTELLECTUAL PROPERTY RIGHTS.
- Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee.
- Licensee agrees that this is Agreement conveys a limited license to use Software Vendor’s Intellectual Property Rights, solely as part of the Software (and not independently of it), and only for the effective term of the license granted to Licensee hereunder. Accordingly, a breach of any term or condition of this Agreement shall be considered both a breach of contract an infringement of Software Vendor’s Intellectual Property Rights. This shall not limit, however, any claim Software Vendor may have for a breach of contract in the event Licensee breaches a term or condition of this Agreement.
- Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement.
- Software Vendor and each of its Suppliers and licensors (as applicable) reserve and shall retain, respectively, their entire right, title and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software (including all Intellectual Property Rights to all Customizations).
- Licensee shall use the highest standard of care to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.
- Licensee shall promptly notify Software Vendor if Licensee becomes aware of any infringement of Software Vendor’s Intellectual Property Rights in the Software and fully cooperate with Software Vendor, at Software Vendor's expense, in any legal action taken by Software Vendor to enforce its Intellectual Property Rights. Licensee acknowledges and agrees that any modifications or enhancements to the Software that are not made by Software Vendor may implicate patent, copyright, and trademark rights reserved by Software Vendor. Licensee further acknowledges and agrees that all modifications or enhancements to the Software are considered derivative works of the Software governed by applicable intellectual property laws, including without limitation, copyright law. Accordingly, modifications and enhancements to the Software may not be made without Software Vendor’s express permission and Software Vendor reserves the right to prevent the creation or restrict the use of the modifications as unlicensed derivative works. Licensee further agrees not to challenge Software Vendor’s rights to restrict any modifications or enhancements to the Software. Licensee further agrees that any modifications to the Software made by Licensee without prior permission from Software Vendor will be considered as an infringement of Software Vendor’s Intellectual Property Rights and a breach of the terms and conditions set forth in this Agreement. Software Vendor has sole discretion in granting Licensee permission (or license) to make and use the modifications to the Software and may grant such license under any terms it sees fit, including, but not limited to, requiring full assignment or cross-licensing of rights to the modifications from the Licensee to Software Vendor.
- Licensee acknowledges and agrees that any and all Intellectual Property Rights to the Customizations to the Software shall be owned exclusively by Software Vendor and licensed to Licensee under the terms and conditions of the Agreement. With the execution of this agreement, Licensee hereby transfers and assigns any rights it may have to the Customizations to Software Vendor (e.g., as inventors or authors of the conception, contribution, or realization associated with the Customizations) in exchange for Software Vendor’s incorporation of such Customizations into the Software. Licensee agrees that Software Vendor’s incorporation of the Customizations into the Software is sufficient and valuable consideration for such transfer and assignment. In the event that Customizations are requested after the execution of this Agreement, Licensee agrees to transfer and assign any rights it may have to the Customizations to Software Vendor in exchange for Software Vendor’s incorporation of such Customizations into the Software. Licensee agrees to diligently coordinate between any and all necessary parties, including, but not limited to, itself, its employees, sub-contractors, or affiliates, in order to timely sign any additional documents that may be necessary to transfer and assign any rights of inventorship or authorship associated with the Customizations to Software Vendor. Moreover, during Software Vendor’s prosecution and registration of any Intellectual Property Rights associated with the Customizations, signatures may be required from the Licensee its employees, contractors, or affiliates. Licensee agrees to diligently coordinate between any and all necessary parties in order to timely sign any additional documents that may be necessary for the prosecution and registration of the Intellectual Property rights. In the event that Licensee or its employees, sub-contractors, or affiliates do not cooperate in the transfer or are unobtainable, Software Vendor reserves the rights to file any patent applications, trademark or copyright registrations under its own name, citing Licensee’s failure or unavailability to abide by the terms of this section. With the execution of this Agreement, Licensee grants to Software Vendor an exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid-up, non-limited license to the Customizations set to expire when the assignment to any intellectual property rights associated with the Customizations has been executed by all required parties and permits. Licensee agrees that Software Vendor’s incorporation of the Customizations into the Software is sufficient and valuable consideration for such transfer and assignment.
- Licensee agrees to fully review the features and functionality of the Software or Customizations prior to executing this agreement in order to determine whether the Software will use or share any information that Licensee considers to be a trade secret. Licensee is encouraged to consult Software Vendor to determine if the Software will have any trade secret implications for the Licensee. If Licensee determines that trade secrets will be used by the Software, Licensee must notify Software Vendor PRIOR TO EXECUTING THIS AGREEMENT. To properly document Licensee’s notice to Software Vendor, the notification of trade secret implications must be made in writing and labeled as “Trade Secret Confidential”. Any other form of notification will be deemed insufficient. If Software Vendor’s provision of the Customizations require the use of trade secrets and Licensee has notified Software Vendor in accordance to the requirements set forth in this section, Software Vendor and Licensee agree that Section 10(g) of this Agreement shall only apply to the subject matter not implicated by the use of the trade secrets.
- Licensee is hereby notified that Software Vendor is currently prosecuting international patent protection for the Software and will continue to pursue additional patent rights that may be available to the Software. Accordingly, any replication of the functionality of the Software or unlicensed Modifications to the Software, even if different software coding is used or independently derived, may be a potential infringement of any patent rights reserved to Software Vendor.
- All License Fees and Support Fees are payable in advance in the amounts set forth in the Order Form and are non-refundable for any reason.
- All Customization Fees shall be due and payable in the amounts and in accordance with the payment schedule set forth in the corresponding SOW.
- Unless different payment terms are expressly set forth Order Form, payments of License Fees and/or Support Fees shall be due and payable, in full, by the Licensee:
- if on an annual basis, on or before the Effective Date for the Term, and on any subsequent anniversary of the Effective Date thereafter;
- if on a quarterly basis, commencing on the Effective Date, and then on the first day of each subsequent three-month period following the initial three-month period beginning on the Effective Date.
- if on a monthly basis, commencing on the Effective Date, and then subsequently on the first day of each calendar month immediately following the month of the Effective Date.
- Any renewal of the license or maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full.
- TERM AND TERMINATION.
- This Agreement and the license granted hereunder shall remain in effect for the Term set forth on the Order Form or until earlier terminated as set in Section 12(b) herein.
- Licensee may only terminate this Agreement ‘for cause’ which shall mean exclusively the following: The Software has been non-functional or inaccessible for a material period of time during the Term, through actions or omissions of the Software Vendor, and Software Vendor has failed to restore such access or functionality despite being granted a reasonable period of time to cure such faults. To effectuate termination under this Section 12(b), Licensee agrees to provide to Software Vendor thirty (30) days written notice of its intent to terminate this Agreement ‘for cause’, and cite the specific instances of non-functionality or inaccessibility along with the specific dates.
- Software Vendor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for thirty (30) days after Software Vendor provides written notice thereof.
- Software Vendor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
- In the event that Licensee terminates this Agreement prior to the end of the Term, for any reason other than set forth under Section 12(b), all amounts to be paid to Software Vendor under this Agreement (including all License Fees, Support Fees, and Customization Fees) shall be automatically accelerated, and will be due and payable by Licensee immediately without any further action by Software Vendor. Licensee acknowledges and agrees to promptly pay all such amounts owed under this Agreement, and further agrees not to dispute the validity of this Section 12(e).
- Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software, Customizations and any Documentation. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees and Support Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.
- Licensee acknowledges and agrees that if this Agreement is terminated for any reason, by either party, Software Vendor has the right to immediately disable the Software and cease the provision of all maintenance and support services.
- LIMITED WARRANTIES; EXCLUSIVE REMEDY; AND DISCLAIMER/WARRANTY DISCLAIMER.
- Software Vendor represents and warrants that it has the legal power and authority to enter into this Agreement. Software Vendor further represents and warrants that it will provide all Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Software will perform substantially in accordance with this Agreement the Documentation under normal use and circumstances.
- EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 13(A) THE SOFTWARE, DOCUMENTATION, AND SERVICES ARE PROVIDED TO LICENSEE “AS IS”, “AS AVAILABLE” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOFTWARE VENDOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, AND SERVICES INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, SOFTWARE VENDOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
- SOFTWARE VENDOR MAKES NO WARRANTIES WHATSOEVER THAT PRODUCTS OR SERVICES PROVIDED BY ANY DATA STORAGE PROVIDER WILL BE UNINTERRUPTED, SAFE, SECURE, PRIVATE, FREE OF ERRORS, FREE OF DOWNTIME, TIMELY, COMPLETE, OR COMPLIANT WITH THE LAW.
- LICENSEE ACKNOWLEDGES AND AGREES THAT USE OF ANY DATA STORAGE PROVIDER SERVICES IN CONNECTION WITH THE SOFTWARE DOES NOT CONSTITUTE A RECOMMENDATION OR ENDORSEMENT BY SOFTWARE VENDOR OF SUCH DATA STORAGE PROVIDER OR OF ANY PRODUCTS OR SERVICES THAT IT MAY PROVIDE.
- LICENSEE FURTHER ACKNOWLEDGES AND EXPRESSLY AGREES THAT LICENSEE’S USE OF DATA PROVIDER SERVICES SHALL BE SOLELY AND EXCLUSIVELY AT LICENSEE’S OWN RISK.
- LIMITATION OF LIABILITY; INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
- IN NO EVENT WILL SOFTWARE VENDOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR: ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS; INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS OF USE; BREACH OF PRIVACY; UNAUTHORIZED ACCESS OF DATA OR INFORMATION BY THIRD PARTIES; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY; UNAUTHORIZED ACCESS OF AUTHORIZED MACHINES, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SOFTWARE VENDOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN NO EVENT WILL SOFTWARE VENDOR, ITS AFFILIATES, DIRECTORS, OFFICERS, OR EMPLOYEES BE LIABLE TO LICENSEE OR ANY OTHER PARTY, IN ANY WAY, FOR ANY DOWNTIME, INTERRUPTIONS OF SERVICE, ERRORS, LOSS OF DATA, CORRUPTION OF DATA, SECURITY OR PRIVACY BREACHES, ACTS, OMISSIONS, FAILURES TO ACT, DELAYS, DAMAGES, CLAIMS, LIABILITIES OR LOSSES, REGARDLESS OF CAUSE, IN OR ARISING FROM A DATA STORAGE PROVIDER, LICENSEES INTERACTION WITH A DATA STORAGE PROVIDER OR USE OF ANY DATA STORAGE PROVIDER PRODUCTS OR SERVICES, WHICH INCLUDES, BUT IS NOT LIMITED TO, STORING, KEEPING OR OTHERWISE HANDLING LICENSEE’S DATA, WHETHER IN CONNECTION WITH THE SOFTWARE OR NOT.
- IN NO EVENT WILL SOFTWARE VENDOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO SOFTWARE VENDOR PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS SECTION 14(C) SHALL BE LICENSEE’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT.
- THE LIMITATIONS SET FORTH IN SECTION 14(A) SECTION 14(B) AND SECTION 14(C) SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- Licensee shall promptly indemnify, defend, and hold harmless Software Vendor, its parents, affiliates, Suppliers, successors and assigns, and all of their officers, directors, employees and agents from and against any and all claims, demands, costs, liabilities, losses, expenses, and damages (including reasonable attorney's fees) arising out of the use, or misuse, of the Software by Licensee or any Authorized User.
- Licensee shall promptly indemnify, defend, and hold harmless Software Vendor, its parents, affiliates, Suppliers, successors and assigns, and all of their officers, directors, employees and agents from and against any and all claims, demands, costs, liabilities, losses, expenses, and damages (including reasonable attorney's fees) arising out of the acts, omissions, or failures to act of any Data Storage Provider in connection with the Software or this Agreement.
- Licensee additionally agrees to promptly indemnify Software Vendor all of the costs, expenses, losses and damages (including reasonable attorney’s fees), arising out of Software Vendor’s enforcement efforts to stop or prevent the unauthorized use, replication, publication, transfer, licensing and distribution of Software that may be traced to the Software licensed to Licensee.
- EXPORT REGULATION. The Software and any Documentation may be subject to export control laws. The Licensee shall not, directly or indirectly, export, re-export or release the Software or any Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Licensee shall comply with all applicable laws, regulations and rules in the country or countries where the Licensee is licensed to use the Software, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or Documentation available.
- US GOVERNMENT RIGHTS. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- DISPUTE RESOLUTION.
- Licensee acknowledges and agrees that any controversy or claim arising out of, or in any way related to, this Agreement, will be settled by exclusively by binding arbitration, before a single arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration will take place in DeKalb County, Georgia (or another location if mutually agreed upon by the parties). The arbitration award will be valid and binding upon the parties, and judgment thereon may be entered and enforced as a final judgment in any court with competent jurisdiction.
- Claims by Software Vendor for injunctive relief or other equitable relief may be filed in the state or federal courts of Georgia (or any other jurisdiction selected by Software Vendor for such action) for an order effective until the conclusion of arbitration and enforcement of the arbitration award, and such claims may be filed without a good faith attempt to resolve the issues underlying such claims.
- This Agreement is governed by and construed in accordance with the internal laws of the State of Georgia, USA without regard for its conflict of laws principles. Application of the United Nations Convention on Contracts for the International Sales of Goods (“CISG”) is expressly excluded.
- Licensee acknowledges and agrees to bring any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder solely in the courts of DeKalb County, Georgia or the United States District Court for the Northern District of Georgia, Atlanta Division. Software Vendor and Licensee each agree to submit to the exclusive jurisdiction of such Georgia courts in any such suit, action or proceeding. This Section 18(b) shall not modify or supplant the Dispute Resolution provision set forth in Section 17 of this Agreement, which is intended to be the primary means of resolving all disputes between the Parties.
- Software Vendor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property, Force Majeure, or any other circumstances or causes beyond Software Vendor’s reasonable control.
- All notices, requests, consents, claims, demands, waivers and other communications to Software Vendor or Licensee hereunder shall be in writing to the respective address of each party set forth on the Order Form and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by an internationally recognized courier (with tracking confirmation); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient. Software Vendor and Licensee may change its address from time to time by giving written notice to the other party. In accordance with this Section 18(d).
- This Agreement, together with the Order Form, Work Order, Data Center Agreement, and Price List constitutes the sole and entire agreement between Licensee and Software Vendor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
- Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Software Vendor's prior written consent, which consent Software Vendor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Software Vendor's prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 18(f) is void. Software Vendor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Software Vendor reserves the right, at its discretion, to amend, update or supplement the terms and conditions contained in this Agreement on a going-forward basis from time to time. Licensee shall be responsible for reviewing these terms periodically for changes. Licensee agrees that it accepts the most recent version of this Agreement (together with any modified terms and conditions) each time Licensee or an Authorized User accesses the Software. We encourage you to review this Agreement regularly.
- No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Licensee acknowledges and agrees a breach of this Agreement would cause Software Vendor irreparable harm for which money damages alone would be inadequate. In addition to damages and any other remedies to which Software Vendor may be entitled, Licensee acknowledges and agrees that Software Vendor may seek injunctive relief to prevent the actual, threatened or continued breach of this Agreement.
- For purposes of this Agreement, (a) the words “include”, “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections and Exhibits refer to the Sections of, and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Order Form referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
- The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Licensee agrees that Software Vendor may publish a brief description highlighting Licensee’s use and deployment of the software, identify Licensee as a Software Vendor customer on any of Software Vendor’s websites, client lists, press releases, and/or other marketing materials.