In consideration of the benefits and obligations exchanged in this Agreement, the Parties agree as follows:
1.01. “Software” Defined. The term “Software” as used in this agreement shall mean all computer programs licensed under this agreement, including all related files, documentation, and other materials, whether in whole or in part, including any and all modifications, derivative works, and copies of the foregoing, regardless of the form or media in or on which they may exist.
2.01. Grant of License. Licensor hereby grants, and Subscriber hereby accepts, a nontransferable, non-exclusive, worldwide, and royalty-free license to use the Software, subject to the conditions and for the period specified in this Agreement.
2.02. Use of Software. Subscriber agrees to use the Software for its sole and exclusive benefit and internal purposes.
2.03. Copies. Except as provided in this Agreement, Subscriber shall not copy any portion of the Software. Subscriber may make one copy (“backup copy”) of the computer program portion of the Software for archival purposes, and may modify or adapt the Software or convert it to a different language or configuration: and may make an additional copy of the Software for use in adapting, modifying, or converting it as authorized herein.
2.04. Subscriber’s Responsibilities. Subscriber 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.
2.05. License Period. The license granted in this Agreement shall remain in force for a minimum of 2 years with an automatic renew for a one year period on the anniversary of the effective date unless Subscriber gives Licensor notice of its intention not to renew the license within thirty (30 days) prior to the expiration of a term.
2.06. Modifications or Adaptations. Subscriber may modify the Software for its own use and merge it into other material to form revised materials, provided that upon termination of the license granted in this Agreement, the licensed materials shall be deleted from the revised materials and destroyed. Any such revised materials shall be used strictly in accordance with the terms of this Agreement.
2.07. Supply of Updated Version of Software. Licensor shall notify Subscriber when an updated version of the computer program portion of the Software has been designed and is available for distribution and, if Subscriber is current in all payments required under this Agreement, shall supply a copy of the updated version to Subscriber.
3.01. Ownership Rights to Software.(a) Subscriber acknowledges and agrees that the Software is the confidential and proprietary property of Licensor, and except to the extent expressly authorized in this Agreement, Subscriber receives no rights to and will not sell, assign, lease, market, transfer, encumber or otherwise suffer to exist any lien or security interest on, nor allow any third person, firm, company, or other entity to copy, reproduce or disclose the Software, whether in whole, in part, or in any manner whatsoever.(b) Licensor shall retain complete ownership of all modifications and derivative works provided to Subscriber as part of any maintenance, support, or services. In no event shall any support, maintenance, services or Software provided to Subscriber by Licensor pursuant to this Agreement be deemed to be based on any “work made for hire” agreement between the Parties.
3.02. Nondisclosure of Software. Subscriber acknowledges that the Software is the confidential and proprietary property of Licensor. Subscriber agrees not to sell, rent, license, distribute, transfer, or, directly or indirectly, disclose or permit the sale, rental, licensing, distribution, transfer, or disclosure of the Software or its contents to any other party, and to use its best efforts to prevent inadvertent disclosure of the Software to any third party, either during the term of this Agreement or thereafter.
3.03. Security. Subscriber agrees to keep the Software in a secure place, under access and use restrictions designed to prevent disclosure of the Software to unauthorized persons and not less strict than those applicable to Subscriber’s own trade secrets.
3.04. Degree of Care. Subscriber further agrees to instruct its personnel to keep the Software confidential by using the same care and discretion that they use with other data designated by Subscriber as confidential.
3.05. Disclosure Constitutes Breach. Subscriber agrees that any disclosure of the Software to a third party constitutes a material breach of this Agreement and shall terminate the license granted by this Agreement.
3.06. Damages for Breach. Subscriber 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.
3.07. Copyright or Other Marks. Subscriber 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 Software.
4.01. Services Payment. In payment for the services supporting the Software licensed under this Agreement, Subscriber shall licensor the annual fee as set out in the Order Form.
4.02. Payment of Taxes. Subscriber shall pay all taxes that may be assessed on the Software or its use, including personal property taxes, sales and use taxes, and excise taxes.
4.03. Renewal License Fee. This license shall automatically renew the license granted under this Agreement. Subscriber shall pay Licensor a renewal license fee as described in the Order Form.
4.04. License Fee Increases. Subscriber agrees that Licensor may increase the annual license fee provided by 5% per each subsequent License Term.
5.01. Delivery of Software. Licensor shall deliver the Software to Subscriber by link.
5.02. Acceptance. The Software shall be deemed to have been accepted by Subscriber upon delivery. If the Software is deemed unacceptable, Subscriber shall return the Software without change with a report detailing the reasons for its unacceptability.
5.03. Implementation. Licensor shall provide Subscriber with a web-based implementation and training session as described in the Order Form. Subscriber can opt for onsite implementation and training and will be responsible for mutually-agreed upon travel costs and expenses.
5.04. Additional Technical Support. Licensor shall provide additional technical support services to Subscriber on request and as available at the rates specified in the Order Form.
5.05. Correction of Software Problems. Upon discovery of any coding error in the computer program portion of the Software that prevents it from performing substantially in accordance with the published specifications for the Software, Subscriber shall notify Licensor and provide supporting data, including printouts showing the claimed defective performance. Upon review and acceptance of the defined coding error, Licensor shall either: (a) Devise and deliver to Subscriber programming or procedural instructions designed to avoid the claimed error; or (b) Upon receipt by Licensor of the original version of the computer program portion of the Software, provide and deliver to Subscriber a completely updated version designed to avoid the claimed error.
6.01.Warranty. Licensor warrants to Subscriber that the Software, in unmodified form and when used as authorized by this Agreement, will perform materially in accordance the Specifications for the term of this Agreement (“Warranty Period”). If during the Warranty Period, Subscriber demonstrates to Licensor that the Software does not perform materially in accordance with its Specifications (“Defect”), then Licensor, within 30 days of receiving written notice of such a Defect, shall respond to Subscriber with either (a) a statement that Licensor has in good faith and using reasonable efforts not yet been able to duplicate the alleged Defect, or (b) a plan indicating whether Licensor intends, at its option and expense, to: (1) use commercially reasonable efforts to correct the Defect, or (2) provide Subscriber with replacement Software of equivalent or greater functionality. If Licensor determines that neither of the preceding options is commercially feasible, then Licensor shall return to Subscriber any license fees paid for the Software in question, and in that event, any licenses granted by Licensor to Subscriber for the Software shall terminate.
6.02.Warranty Disclaimer. THE PROVISIONS OF THIS ARTICLE 6 STATE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO LICENSEE, AND LICENSOR’S SOLE AND EXCLUSIVE LIABILITY, FOR ANY PERFORMANCE OR NONPERFORMANCE OF THE SOFTWARE. LICENSOR DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANT ABILITY, SATISFACTORY QUALITY, TITLE, NON INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
6.03. Indemnification by Licensor.
(a) Except as otherwise provided, Licensor, at its own expense, will defend, indemnify, and hold Subscriber harmless from any claim made or threatened or any suit or proceeding brought against Subscriber insofar as it is based on an allegation that any Software furnished to Subscriber under this Agreement infringes any copyright or patent in existence on the date the Software was initially provided to Subscriber, but only if Subscriber does all of the following:
(1) Notifies Licensor of that action in writing within a reasonable period of time (such that Licensor suffers no prejudice to its rights);
(2) Gives Licensor the right to control and direct the defense and settlement of that action;
(3) Makes no compromise, settlement, or admission of liability; and
(4) Provides reasonable assistance and cooperates in the defense of that action at Licensor’s expense. Subject to the limitations set forth in this Article 6, Licensor shall pay any resulting damages, costs and expenses finally awarded to a third party, including but not limited to reasonable legal fees. Licensor will have no responsibility for the settlement of any claim, suit, or proceeding made by Subscriber without Licensor’s prior written approval.
(b) If any Software is held to infringe andthe use of that Software is enjoined, Licensor, at its expense, will do one of the following: (1) Procure for Subscriber the right to continue using the infringing or potentially infringing Software; (2) Replace the infringing or potentially infringing Software with non-infringing Software; or (3) Modify the infringingor potentially infringing Software so that it become non-infringing. If none of the foregoing remedies are commercially feasible, then Licensor will return to Subscriber any license fees paid for that Software, and upon such a return, any licenses granted to Subscriber for that Software shall terminate immediately.
(c) Licensor’s obligations as stated in this Section will not apply to any claim, suit or proceeding to the extent it is based on any of the following:
(1) Any modification ofthe Software other than by Licensor or the combination of the Software with non-Licensor hardware or software, if the claim, suit or proceeding would have been avoided if the Software had not been so modified or combined;
(2) Subscriber’s use of other than the latest release of the Software if Subscriber is informed that a claim, suit or proceeding can be avoided by use of the latest release;
(3) Any use of the Software not authorized by this Agreement; or
(4) A modification or derivative work made by Licensor based on Subscriber’s instructions, designs or specifications.(d) This Section 6.03 sets forth the entire obligation of Licensor, and Subscriber’s exclusive remedy, for the actual or alleged infringement by any Software of any patent, copyright, trade secret or other intellectual property right of any person or entity.
6.04. Indemnification by Subscriber. Subscriber shall defend, indemnify, and hold Licensor harmless, under the same terms and conditions and to the same extent as Licensor’s indemnification obligation pursuant to Section 6.03, from and against any and all claims asserted by a third party against Licensor to the extent such a claim is based or alleges the infringement of that third party’s intellectual property rights by (1) modification(s) of the Software made by Subscriber, or (2) derivative worksmade by Subscriber.
6.05. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO EACH OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL ORSPECIAL DAMAGES, EVEN IF THE PARTY TO BE CHARGED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR’S TOTAL LIABILITY UNDER ANY OR ALL PROVISIONS OF THIS AGREEMENT FOR ALL CAUSES OF ACTION ON A CUMULATIVE BASIS EXCEED THE PAYMENTS ACTUALLY MADE TO LICENSOR UNDER THIS AGREEMENT FOR ALL SOFTWARE OR SERVICES OR SUPPORT OR MAINTENANCE RESULTING IN LIABILITY OR OBLIGATIONS ON LICENSOR’S PART DURING THE IMMEDIATELY ONE YEAR PERIOD. NOTWITHSTANDING THE FOREGOING, WITH REGARD TO LICENSOR’S LIABILITY UNDER THIS SECTION, LICENSOR’S TOTAL LIABILITY SHALL NOT EXCEED SUCH PAYMENTS.
7.01. Grounds for Automatic Termination. The license granted by this Agreement shall be terminated automatically and without further notice upon the occurrence of any of the following:
(a) Expiration of the term specified in this Agreement, or of any optional renewal term in the absence of a subsequent renewal inaccordance with the terms of this Agreement.
(b) Disclosure of the Software to a third party, whether directly by Subscriber or indirectly and whether inadvertently or otherwise.
(c) Refusal by Subscriber to pay any periodic license fee or any increase in that fee provided for in this Agreement.
(d) Cessation of business by Subscriber or any successor or assign to whom the Software has been legitimately transferred.
(e) Commission by Subscriber of an event of default as defined herein.
7.02. Events of Default. Subscriber shall have committed an event of default, and this Agreement and the license granted hereunder shall terminate, if any of the following occur:
(a) Subscriber attempts to use, copy, license, or convey the Software in any manner contrary to the terms of this Agreement or inderogation of Licensor’s proprietary rights in the Software.
(b) Subscriber fails or neglects to perform or observe any of its existing or future obligations under this Agreement, including, without limitation, the timely payment of any sums due Licensor within 30 days after notice that the payment is delinquent.
(c) Subscriber makes an assignment of Subscriber’s business for the benefit of creditors.
(d) A petition in bankruptcy is filed by or against Subscriber.
(e) A receiver, trustee in bankruptcy, or similar officer is appointed to take charge of all or part of Subscriber’s property.(f) Subscriber is adjudicated a bankrupt.
7.03. Effect of Termination. Subscriber agrees that immediately upon the operation of Section 7.01, whether or not it receives notice of termination, it shall immediately destroy all copies of the Software and certify that fact to Licensor. Subscriber further agrees that in the event of termination through its default, all fees or charges due for the remaining term of this Agreement shall immediately become due and payable. Upon termination of the license granted hereunder, Licensor’s obligations under this Agreement shall cease.
8.01. Notices. Unless otherwise provided in this Agreement, any notice required or permitted by this Agreement to be given to either party shall be deemed to have been duly given if in writing and delivered personally or mailed by first-class, registered, or certified mail, postage prepaid and addressed the respective address of Subscriber or Licensor in the Order Form.
8.02. Assignment of Contract. Subscriber shall not assign or otherwise transfer its rights under this Agreement, including the license granted hereunder, or the Software obtained pursuant to this Agreement without the prior written consent of Licensor. Any attempt to make such an assignment without Licensor’s consent shall be void.
8.03. Amendments. Licensor and Subscriber agree that this Agreement can be modified only by a written agreement duly executed by persons authorized to execute agreements on their behalf.
8.04. Nonwaiver. Licensor and Subscriber agree that no failure to exercise, and no delay in exercising any right, power, or privilege hereunder on the part of either party shall operate as a waiver of any right, power, or privilege. Licensor and Subscriber further agree that no single or partial exercise of any right, power, or privilege hereunder shall preclude its further exercise.
8.05. Attorneys’ Fees. If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall been titled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire Agreement.
8.06. Severability. If any part of this Agreement is adjudged by any court of competent jurisdiction to be invalid, that judgment shall not affect or nullify the remainder of this Agreement, and the effect shall be confined to the part immediately involved in the controversy adjudged.
8.07. Arbitration Clause. All disputes arising under this agreement shall be governed by and interpreted in accordance with the laws of New York, without regard to principles of conflict of laws. The parties to this agreement will submit all disputes arising under this agreement to arbitration in New York City, New York before a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator shall be selected by application of the rules of the AAA, or by mutual agreement of the parties, except that such arbitrator shall be an attorney admitted to practice law New York. No party to this agreement will challenge the jurisdiction or venue provisions as provided in this section. No party to this agreement will challenge the jurisdiction or venue provisions as provided in this section. Nothing contained herein shall prevent the party from obtaining an injunction.
8.08. Governing Law. This Agreement shall be deemed to have been made in, and shall be construed pursuant to, the laws of the State of New York.
8.09. Entire Agreement. Subscriber acknowledges and agrees that this Agreement is the complete and exclusive statement of the mutual understanding of the parties, and that it supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
8.10.Effect of Subscriber Purchase Order. In the event of any conflict between this Agreement and the terms and conditions of any purchase order or similar document pursuant to which Subscriber acquired the license granted by this Agreement, the terms and conditions of this Agreement shall control.