1. Definitions. Capitalized terms used in this Agreement are defined in this Section 1.1 or otherwise throughout the body of this Agreement.
"Agreement" shall mean this Software License Agreement.
"Confidential Information" shall have the meaning set forth in Section 12 of this Agreement.
"Copy" or "Copies" shall mean the Licensed Product (including the components thereof), any Releases, Error Correction, or Enhancement pertaining thereto, and any reproductions of the Licensed Product or any Release, Error Correction, or Enhancement pertaining thereto.
"Designated Location" shall mean the physical location, identified in the SOW, at which Customer may use the Licensed Software.
"Enhancement" shall mean a modification of the Licensed Software by Licensor which provides (a) a capability not defined in the Product Specifications or (b) an improvement in the efficiency of the Licensed Software. Licensor may designate an Enhancement as "Major" or "Minor" depending on (a) Licensor's reasonable assessment of the Enhancement's value and (b) whether the Enhancement adds a functional extension to the preexisting Licensed Software. An Enhancement may entail a modification to the Product Specifications and/or the Object Code or may be provided to Customer in the form of an Upgrade.
"Intellectual Property Rights" shall mean all proprietary information, patents, patent applications, trademarks, trade names, service marks, certification marks, collective marks, designs, processes, inventions, licenses, copyrights, know-how and trade secrets relating to the origin, design, manufacture, programming, operations, function, configuration, or service of the Licensed Product.
"License Fees" shall mean those amounts specified and set forth in Section 4.1 of this Agreement and Schedule B attached hereto and made a part of this Agreement.
"Licensed Documentation" shall mean all technical, repair, marketing and user documentation for the Licensed Software and any succeeding changes thereto, including, without limitation, all specifications as set forth in Licensor's product manuals; installation, maintenance, operating and customer manuals, instructions and diagnostics; system administrative materials; configuration guides; marketing and sales brochures and literature; and product guides. Licensed Documentation shall include, if applicable, documentation provided to Licensor by its suppliers or licensors to the extent Licensor is authorized by them to provide such material under the terms of this Agreement. Documentation may be electronically created and may exist in electronic form
"Licensed Product" shall mean collectively the Licensed Software and Licensed Documentation.
"Licensed Software" shall mean the computer software identified in the SOW, and all permitted copies of the foregoing. In this Agreement, Licensed Software shall refer to the software in Object Code only.
"Multi User File Server" shall mean an environment, including applications software, which may enable one Copy of the Licensed Software to be used or accessed by more than one Operator at one time or may enable the Licensed Software to be used or accessed over a computer network.
"Object Code" shall mean machine readable computer programs.
"Operators" shall mean the employees, or agents of Customer who are bound by the confidentiality provisions of Section 12 of this Agreement and who are permitted access to or use of the Licensed Product.
"Source Code" shall mean the plain text, readable computer programming code, associated procedural code, and supporting documentation for the Original Licensed Software and any Releases, Error Corrections, or Enhancements pertaining thereto.
“SOW” means the Statement of Work between Customer and Licensor to which this Agreement is attached.
“Third Party Software” shall mean software and related materials that are furnished by a third party and subject to a separate license agreement between the licensor of that software and the Customer.
2. Grant of License.
Licensor grants to Customer and Customer accepts a nonexclusive and nontransferable license to install, execute, and use the Licensed Product in the United States in the manner described in this Agreement. Licensor reserves all rights in the Licensed Product.
Customer must use the Licensed Product (a) only in a manner and for the purposes for which the Licensed Product was designed and (b) only for Customer's internal purposes. Subject to the provisions of Section 8 of this Agreement, Customer may make copies of the Licensed Software only for backup and archival purposes. Upon Licensor’s request, Customer shall provide Licensor a written description of the procedures under which it makes backup copies, including any that may involve backup of the Software, and Licensor shall promptly approve or disapprove those procedures, at Licensors sole discretion.
All uses not permitted under this Section 2.1 are prohibited. By way of example and without limitation, Customer may not: (a) disassemble, decompile, reverse engineer, or modify the Licensed Software; (b) examine the Licensed Software with debugging, memory inspection, or disk inspection tools; (c) rent or sublicense the Licensed Product; (d) permit use of the License Product by a person who is not an Operator; (e) transmit an electronic copy of the Licensed Software by any means; or (f) use the Licensed Software in the operation of a service bureau or time sharing arrangement or to provide outsourcing services.
2.2 Ownership. Licensor owns the media on which the Licensed Software is originally or subsequently recorded; provided, however, subject to the terms and conditions of this Agreement, Customer may store and use the Licensed Software in electronic form on the Designated Machine for use solely by Customer and Customer’s Operators. As between Licensor and Customer, Licensor retains all title to the Licensed Software (both as recorded on the original media and on any subsequent media), the Licensed Documentation, and any Copies thereof in any form. This Agreement is a license to use, and not a contract of sale for, the Licensed Product. All Intellectual Property Rights in and to the Licensed Product are retained by Licensor or the licensor of Third Party Software, as the case may be. Customer shall not use either the name of Licensor, the licensor of Third Party Software, or the name of the Licensed Product or Third Party Software licensed under this Agreement for any commercial purpose or in any advertising, promotional or public statement without the prior, written consent of Licensor or the licensor of Third Party Software, which consent shall be at Licensor’s or the licensor of Third Party Software’s sole discretion. Customer agrees not to remove, deface, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the Licensed Software, the Licensed Documentation, and any Copies thereof in any form.
3.1 Delivery of Software. Licensor shall deliver the Licensed Product to Customer by electronic means. Customer will be deemed to have accepted the product upon such delivery.
3.2 Installation Services. Licensor shall assist in the installation of the Software in accordance with the SOW.
3.3 Software Provided “As Is”. Customer acknowledges and agrees that the Licensed Product is being provided “as is” and Customer accepts it on that basis.
4. Charges and Payment.
4.1 License Fees. As compensation for the license provided in this Agreement for each Copy of the Licensed Software, other than any backup or archival copy permitted under this Agreement, Customer shall pay Licensor the License Fees as set forth in the SOW.
4.2 Audit of Use. Licensor may, at its expense, audit Customer's use of the Licensed Product. Audits shall be conducted during regular business hours at Customer's place or places of business and shall not unreasonably interfere with Customer's business activities. Audits shall be conducted no more than once annually. If, as a result of any such audit, Licensor identifies unauthorized use of the Licensed Software, Customer shall pay, in addition to a full License Fee for each copy of the Licensed Software in use by Customer and the reasonable expenses of Licensor in conducting the audit.
4.3 Payment. All License Fees shall be due and payable in full in U.S. currency upon Customer's execution of this Agreement. All other fees or amounts due Licensor under this Agreement shall be due and payable in full in U.S. currency within thirty (30) days of the date of Licensor's invoice for said fees or amounts. Customer shall have no right of offset or withholding under this Agreement.
4.4 Interest on Late Payments. All fees and amounts due to Licensor and not paid within thirty (30) days after the date such amounts are due and payable shall bear interest at the lesser of one and one half percent (1.5%) per month or the maximum rate of interest allowable by law.
4.5 Taxes and Other Charges. All License Fees are exclusive of media charges, shipping, handling, custom charges, and all state, local, and other taxes, or other taxes or charges (other than income or franchise taxes payable by Licensor) directly applicable to the licensing, installation, support or use of the Licensed Product. Customer shall pay all charges or taxes or provide Licensor with an appropriate certificate of exemption within thirty (30) days of the date of any invoice or statement of Licensor or the taxing authorities. If Customer elects to challenge the applicability of any tax or charge, Customer shall pay the tax or charge to Licensor or give Licensor evidence of payment to the taxing authorities or charging entity, and Customer may thereafter challenge such tax or charge and seek a refund.
5. Technical Assistance. During the term of this Agreement, Licensor shall offer the training and technical assistance services provided in the SOW at the rates provided therein.
6. No Software Maintenance. Customer acknowledges that Licensor shall have no duty to provide software maintenance. Customer is not entitled to any existing or future updates to the Software.
7. Customer’s Representations and Warranties.
7.1 Compliance with Terms. Customer shall monitor the Licensed Product and ensure that it is used only in compliance with the terms of this Agreement. Customer shall be responsible and liable for any and all non-compliance with this Agreement by Customer or by any person or entity who obtains access to the Licensed Product through Customer.
7.2 Suitability of Licensed Product. Customer represents and warrants that the Licensed Product is suitable for the use intended by this Agreement. Customer assumes all responsibility and risk of selection, installation, use, efficiency and suitability of the Licensed Product, Licensor shall have no liability therefor.
7.3 Notification of Defects. Customer shall notify Licensor in writing of any material defect Customer believes exists in the Licensed Product, and Customer shall provide to Licensor all information known or reasonably available to Customer regarding the alleged defect.
7.4 Third Party Material. With respect to all computer programs and data and hardware not provided by Licensor and to be used or reproduced during Customer's use of the Licensed Software, Customer represents that it has all necessary rights to use or reproduce the computer programs and that no use of the Licensed Software in connection therewith shall be made that causes an infringement of the right of any third party.
7.5 Customer's Responsibility. Customer shall be exclusively responsible for the supervision, management, and control of its use of the Software, including, but not limited to (a) assuring proper configuration of equipment or devices; (b) establishing adequate operating methods; and (c) implementing procedures sufficient to satisfy its obligations for security under this Agreement, including appropriate action between it and its employees to prevent misuse, unauthorized copying, modification, or disclosure of the Software.
8. Reproduction. Customer may make up to two (2) copies of the Licensed Software and Licensed Documentation for backup and archival purposes. Each and every such copy, in whole or in part, of the Licensed Software shall contain all of Licensor's restrictive and proprietary notices in the form and content as they appear on or in the Licensed Software or Licensed Documentation provided by Licensor. All Copies shall remain the property of Licensor.
9. No Warranty; Limitation of Liability.
9.1 No Warranty. THE SOFTWARE IS PROVIDED “AS IS”, AND LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS RELATING TO THE LICENSED SOFTWARE OR ITS PERFORMANCE OR WITH RESPECT TO THE LICENSED DOCUMENTATION. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
9.2 Limitation of Liability. LICENSOR SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, STATUTORY, PUNITIVE OR EXEMPLARY DAMAGES OF ANY SORT, EVEN IF LICENSOR HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, (a) ANY DAMAGES FOR LOST PROFITS, OR (b) ANY DAMAGES RESULTING FROM LOSS OF USE OR LOSS OF DATA. UNDER NO CIRCUMSTANCE SHALL LICENSOR BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE LICENSE FEES PAID BY LICENSEE FOR THE LICENSED PRODUCT. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR ANY ACTION OR REMEDY BEYOND THOSE DESCRIBED IN THIS AGREEMENT. NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT. OTHER THAN AN ACTION BY LICENSOR TO COLLECT ANY FEES DUE HEREUNDER, MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.
9.3 Sole and Exclusive Remedy. THE PROVISIONS OF THIS SECTION 9 STATE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO LICENSEE, AND LICENSOR'S SOLE AND EXCLUSIVE LIABILITY, FOR ANY CLAIM REGARDING THE PERFORMANCE OR NONPERFORMANCE OF THE LICENSED PRODUCT.
10.1 Indemnity by Customer. Customer shall be solely responsible for, and shall indemnify, defend, and hold Licensor free and harmless from all damages, liabilities, charges, and expenses (including reasonable attorneys' fees) from all claims, lawsuits, or other proceedings arising out of or relating to (i) Customer's use of the Licensed Product in a manner not permitted by this Agreement, not permitted by Licensor, or not in conformance with Licensor written requirements, (ii) the acts or omissions of Customer, its employees, and agents and all persons or entities who have access through Customer to the Licensed Product, or (iii) relating to an infringement of any right resulting in any way from the use of the Licensed Software with other software or materials not licensed to Customer by or not approved by Licensor.
10.2 Remedy for Claimed Infringement. If a claim is made that the Licensed Product, or any portion thereof, infringes any United States patent, copyright, trade secret, or other proprietary right, Licensor, at its sole expense and option, shall either: (i) procure for Customer the right to exercise the rights and licenses granted hereunder with respect to the Licensed Product; (ii) modify the Licensed Product to make it non infringing but continue to meet the Product Specifications; (iii) replace the Licensed Product with equivalent but non infringing software of like functionality that meet the Product Specifications; or (iv) terminate this Agreement and refund the License Fee and, upon the return to Licensor of the Licensed Product; provided, however, that the liability of Licensor pursuant to this Section 10.2 shall be subject to the limitations set forth in Section 9 of this Agreement, and Licensor shall have no liability for any claim of infringement based on use of a superseded or altered Release of the Licensed Product if the infringement would have been avoided by the use of the most current, unaltered Release of the Licensed Product which is available to Customer.
10.3 Limitation of Indemnity. Licensor shall have no liability to Customer or any assignee, transferee, or sublicensee of Customer for any claim of infringement that is based upon any combination of the Licensed Software with software not supplied by or authorized by Licensor if such claim would have been avoided but for such combination; or any modifications to the Licensed Software other than Releases provided by Licensor or otherwise approved by Licensor.
11. Termination and Default.
11.1 Termination by Licensor. Licensor may terminate this Agreement and the license granted to Customer upon the occurrence of any of the following events:
Customer fails to pay Licensor any fee, charge, tax, or other reimbursement when due and the failure to pay is not cured within ten (10) days of Customer's receipt of Licensor's written notice thereof;
Customer transfers title to or possession of the Licensed Product without Licensor's prior written consent;
Customer breaches any material obligation of Customer under this Agreement and such breach is not cured within thirty (30) days of Customer's receipt of written notice thereof from Licensor;
Customer becomes insolvent, or is adjudicated a bankrupt, or voluntarily seeks protection under any bankruptcy or insolvency law; or
Customer makes an assignment of its assets for the benefit of creditors or any arrangement with its creditors.
11.2 Termination by Customer. Provided Customer is not in default under this Agreement, the Agreement may be terminated by Customer by giving Licensor ninety (90) days prior written notice of termination. Any such termination by Customer shall be without refund of any License Fee or any other amount paid or then due and payable to Licensor.
11.3 Licensor Remedies Upon Termination. In the event of any termination of this Agreement:
Customer shall cease all further use of the Licensed Product, or any portion thereof, in all forms and on all media and computer memory, and Customer shall immediately: (i) surrender and deliver the Licensed Product and all Copies thereof to Licensor; or (ii) at the option of the Licensor, destroy all Copies of Licensed Product, including backup and archival copies, and provide satisfactory evidence of such destruction to Licensor within one (1) month following termination;
Customer shall pay all outstanding fees and amounts owed to licensor as of the date of termination;
Licensor may cease performance of Licensor's obligations under this Agreement, without liability to Customer;
where such termination is the result of a breach or threatened breach of this Agreement by Customer, Licensor may apply for and obtain injunctive relief against the breach or threatened breach; and
Customer shall promptly return to Licensor all of Licensor’s Confidential Information.
11.4 Equitable Relief. The Parties acknowledge and agree that there may be no adequate remedy at law for the failure of the other Party to comply with any of the material terms and conditions of this Agreement, including, without limitation, a failure to cease the use of the Licensed Product upon termination of the license or a breach of the confidentiality provisions of Section 12, and the Parties agree that, in the event of any such failure, the non breaching Party shall be entitled to equitable relief by way of temporary restraining order, temporary injunction and permanent injunction and such other and further relief as any court of competent jurisdiction may deem proper.
11.5 Remedies Cumulative. The rights and remedies of Licensor and Customer in this Section 11 shall be cumulative and in addition to all other rights and remedies available at law and in equity.
11.6 Survival. The provisions of this Agreement which by their sense and context should survive any termination or expiration of this Agreement, including without limitation Sections 3, 10, 11, 12, and 13 of this Agreement, shall survive termination of this Agreement and shall remain binding on the Parties
12.1 Confidential Information. As used in this Agreement, the term “Confidential Information” means: all information, including, but not limited to, the trade secrets and know-how of the respective Parties, any information marked "Confidential" or "Proprietary" and, in the case of Licensor, the Licensed Product; provided, however, Confidential Information shall not mean any information that:
is known to the receiving Party at the time of disclosure by the disclosing Party;
is developed independently by the receiving Party without use of the disclosing Party’s Confidential Information;
is within, or later falls within, the public domain without breach of this Agreement by the receiving Party;
is publicly disclosed with written approval of the disclosing Party; or
becomes lawfully known or available to the receiving Party without restriction from a source having the lawful right to disclose the information without breach of this Agreement by the receiving Party.
The receiving Party shall have the burden of proof as to establishing by competent evidence any of the exceptions set forth in Section 12.1(a) to (e) above.
12.2 In the event the receiving Party is legally requested or compelled in any form to disclose any of the disclosing Party’s Confidential Information, the receiving Party, unless prohibited by applicable law, shall provide the disclosing Party with prompt written notice of such request, so that the disclosing Party may seek a protective order or pursue other appropriate remedies to protect the confidentiality of its information. If such protective order or other remedy is not obtained, the receiving Party will furnish only that portion of the Confidential Information which the receiving Party, upon the opinion of its counsel, is legally required to furnish. The receiving Party will reasonably assist the disclosing Party in its efforts to obtain a protective order or other remedies to protect or limit the disclosure of the information subject to the request.
12.3 Each Party acknowledges that in the performance of this Agreement a Party may receive Confidential Information from a disclosing Party and that such Confidential Information is the exclusive property of the disclosing Party. The receiving Party agrees to hold the Confidential Information of the disclosing Party in strict confidence in accordance with the provisions of this Agreement. A receiving Party
shall not permit or suffer its employees or agents to remove any proprietary or other legends or restrictive notices contained or included in any Confidential Information provided by the disclosing Party;
shall not permit or suffer its employees or agents to copy or modify any Confidential Information except as specifically authorized in this Agreement;
shall not disclose any Confidential Information to a third party without the prior written consent of the disclosing Party;
shall only use the disclosing Party’s Confidential information for purposes of performing its obligations under this Agreement, and shall not otherwise use the information for its own benefit or for the benefit of any third party; and
agrees to keep secure and maintain the Confidential Information of the disclosing Party in a manner no less protective than that used to maintain the confidentiality of the receiving Party's own Confidential Information.
12.4 Limitation on Disclosure. A receiving Party may disclose Confidential Information to its employees or agents under the control and direction of the receiving Party only in the normal course of business and on a need to know basis within the scope and purpose of this Agreement. Provided, however, prior to any disclosure all such agents shall have entered into written agreements with the receiving Party requiring such agents to treat and use all such Confidential Information in a manner consistent with the terms and conditions of this Agreement. Except as expressly set forth herein, no licenses under any patent, copyright or other intellectual property rights of either Party are granted.
12.5 Return of Confidential Information. Upon any termination, cancellation, or rescission of this Agreement, a receiving Party shall, at the option of the disclosing Party: (i) surrender and deliver all Confidential Information of the other Party, including all copies thereof; or (ii) destroy the Confidential Information and all copies thereof and provide satisfactory evidence of such destruction to the disclosing Party within one (1) month following termination.
12.6 Disclosure of Software Constitutes Incurable Material Breach. Customer acknowledges and agrees that any disclosure of the Software to a third party in violation of the terms of this Agreement constitutes a material, incurable breach of this Agreement and shall result in the automatic termination of this Agreement and the immediate termination of all licenses granted to Customer by this Agreement. Customer further agrees that it shall be strictly liable for all damages to Licensor that result from any disclosure of the Software to any third party
13.1 Relationship of the Parties. The Parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, joint enterprise, or agency relationship between the Parties. Neither Party shall have the right to obligate or bind the other Party in any manner to any third party.
13.2 Assignment/Sublicense. Customer shall not, directly or indirectly, by operation of law or otherwise, transfer or assign the Licensed Product or this Agreement, or transfer, assign or sublicense any license rights granted hereunder, in whole or in part, without having secured the prior written consent of Licensor, which consent shall be at Licensor’s sole discretion. Any attempted assignment in violation of this Section 13.2 shall be void.
13.3 Notices. All notices required to be given pursuant to this Agreement shall be transmitted either by (i) delivery in person, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) overnight mail, addressed to the Party to be notified at the addresses identified in the introductory paragraph to this Agreement or to such other addresses (or person) as such Party shall specify by like notice hereunder:
13.4 Export Controls. Each Party to this Agreement acknowledges its obligations to control access to Technical Data (as defined by the U.S. Department of Commerce, Office of Export Administration) under the U.S. Export Control Laws and Regulations and agrees to adhere to all applicable U.S. Export Control Laws and Regulations with regard to any Technical Data received under this Agreement.
13.5 Compliance with Laws. Each Party shall comply with all applicable state, federal and local laws, executive orders and regulations in the performance of its obligations under this Agreement.
13.6 Headings. The headings and captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference only and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain.
13.7 Form. Where the context so admits, words and expressions appearing in the singular in this Agreement may be interpreted in the plural, and vice versa.
13.8 Integration. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings between them, whether written or oral, between them relating to the subject matter of this Agreement. This Agreement may not be supplemented, explained or interpreted by any evidence of trade usage or course of dealing. In the event of a conflict between the terms of this Agreement and the SOW, the terms of this Agreement shall control.
13.9 Modification or Amendment. No modification to, amendment of, or other change in this Agreement shall be binding on either Party unless it is in writing and signed by authorized representatives of both Parties.
13.10 Waiver. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the waiving Party, nor shall any such waiver, if made, constitute a waiver of any subsequent breach of the same or of any other provision of this Agreement.
13.11 Force Majeure. Neither Party shall be liable to the other by reason of any failure of performance hereunder (except obligations to pay) if such failure arises out of causes beyond such Party's reasonable control, despite the reasonable efforts, and without the fault or negligence of such Party. A Party experiencing such an event shall give as prompt notice as possible under the circumstances.
13.12 Fees and Expenses. If either Party institutes an action to enforce this Agreement or any of its terms, the prevailing Party shall also be entitled to recover all of its costs, expenses and reasonable attorneys' fees.
13.13 Authority to Contract. Each Party represents that it has the full power and authority to enter into this Agreement and to convey the rights herein conveyed.
13.14 Jurisdiction and Venue. Should any claim or controversy arise between the Parties under the terms of this Agreement or in furtherance of this Agreement, such claim or controversy shall be resolved only in the state courts of the State of Georgia or the federal courts located in the State of Georgia and said state and federal courts shall be the only appropriate jurisdiction and venue therefore. Customer hereby submits to said jurisdiction and venue.
13.15 Governing Law. This Agreement shall be construed in accordance with and governed by the substantive laws of the State of Georgia. The Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
13.16 Severability. If any provision of this Agreement is held invalid or unenforceable under any applicable law, such invalidity or unenforceability will not affect any other provision of this Agreement that can be given effect without the invalid or unenforceable provision, and this Agreement shall be construed as if said invalid or unenforceable provision had not been contained herein.