TERMS OF SERVICE
1. Application Access and Use License. The Software is licensed to you, not sold to you. Except for the limited license granted in this Agreement, Licensor and its licensors retain all right, title and interest in the Software, all copies thereof, and all proprietary rights in the Software, including copyrights, patents, trademarks and trade secret rights.
2. Grant of License. This Agreement grants you the following rights, as applicable:
License. During the term of this Agreement, Licensor grants you a nonexclusive, nontransferable, revocable (as permitted herein) license to access and use the Software which will be hosted by Licensor. Licensee acknowledges and agrees that Licensor may use certain embedded technological and software controls to enforce any applicable license restrictions.
Enhancements. Licensor reserves the right to upgrade, enhance, change or modify the Software at any time in its sole discretion (“Enhancements”). Any Enhancements made available to you by Licensor, if any, will be subject to the terms of this Agreement, except to the extent that conflicting or more restrictive provisions are agreed upon in future agreements relating to such Enhancements.
Third Party Components. The Software and future Enhancements may contain certain third party components (“Third Party Components”) which are provided to you under terms and conditions which are different from this Agreement, or which require Licensor to provide you with certain notices or information. Your use of each Third Party Component which contains or is accompanied by its own license agreement will be subject to the terms and conditions of such other license agreement, and not this Agreement. Notwithstanding the foregoing, the following terms and conditions apply to all “Third Party Components”: (i) all Third Party Components are provided on an “AS IS” basis; (ii) Licensor will not be liable to you or indemnify you for any claims related to the Third Party Components; and (iii) Licensor will not be liable for any direct, indirect, incidental, special, exemplary, punitive or consequential damages with respect to the Third Party Components. Your sole and exclusive remedy with regard to any defect, claim, or other dispute relating to the Third Party Components is to cease use of such components.
Intellectual Property Ownership. The Software contains material that is protected by United States copyright and trade secret law, and by international treaty provisions. All rights not expressly granted to Licensee under this Agreement are expressly reserved by Licensor and its licensors. Licensee shall not modify, remove or destroy any proprietary markings or confidential legends placed upon or contained within the Software, the Documentation, or any related materials. All copyrights, patents, trade secrets, trademarks, service marks, trade names, moral rights and other intellectual property and proprietary rights in the Software shall remain the sole and exclusive property of Licensor or its licensors, as applicable.
Beta Software. Licensor may designate certain Enhancements or new releases of the Software as “Beta Software.” Such Beta Software will not be ready for use in a production environment. At this early stage of development, operation of the Beta Software may be unpredictable and lead to erroneous results. You acknowledge and agree that: (i) the Beta Software is experimental and has not been fully tested; (ii) the Beta Software may not meet your requirements; (iii) the use or operation of the Beta Software may not be uninterrupted or error free; (iv) your use of the Beta Software is for purposes of evaluating and testing the product and providing feedback to Licensor; (v) you shall inform your employees, staff members, and other users regarding the nature of the Beta Software; and (vi) you will hold all information relating to the Beta Software and your use of the Beta Software, including any performance measurements and other data relating to the Beta Software, in strict confidence and shall not disclose such information to any unauthorized third parties. Your use of the Beta Software shall be subject to all of the terms and conditions set forth herein relating to the Software. You shall promptly report any errors, defects, or other deficiencies in the Beta Software to Licensor. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ALL BETA SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. You hereby waive any and all claims, now known or later discovered, that you may have against Licensor and its suppliers/licensors arising out of your use of the Beta Software.
The license will commence on the date you first use the Software or accept this Agreement, whichever is earlier (the “Effective Date”) and shall remain in effect for one (1) year thereafter (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year terms (each a “Renewal Term”) unless either party provides notice of termination or non-renewal no less than thirty (30) days prior to expiration of the then-current term. The Initial Term and any Renewal Terms are referred to herein collectively as the “Term.”
4. Limitations on License. The license granted to you in this Agreement is restricted as follows:
Limitations on Copying and Distribution. You may not copy or distribute the Software except to the extent that copying is necessary to use the Software for purposes set forth herein. You may make a single copy of the Software for backup and archival purposes.
Limitations on Reverse Engineering and Modification. You may not reverse engineer, decompile, disassemble, modify or create works derivative of the Software. You may not alter or modify any disabling mechanism which may be resident in the Software.
Sublicense, Rental, and Third-Party Use. You may not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Software, or directly or indirectly permit any third party to use or copy the Software.
Proprietary Notices. You may not remove any proprietary notices (e.g., copyright and trademark notices) from the Software. You must reproduce the copyright and all other proprietary notices displayed on the Software on each permitted back-up or archival copy.
Use in Accordance with Documentation. All use of the Software shall be in accordance with its then current Documentation.
Compliance with Applicable Law. You shall be solely responsible for ensuring that your use of the Software is in compliance with all applicable foreign, federal, state and local laws, and rules and regulations.
Confidentiality. You acknowledge and agree the Software and associated Documentation constitute valuable proprietary and confidential information and intellectual property (collectively, the “Proprietary Information”) of Licensor. You may not use or disclose the Proprietary Information without Licensor’s prior written consent, except disclosure to and subsequent uses by your need-to-know employees and contractors, provided such employees and contractors have executed written agreements restricting use or disclosure of Proprietary Information that are at least as protective as those set forth in this Agreement. You agree to use at least the same degree of care in protecting the Proprietary Information as you use to protect your own similar information, but in no event less than reasonable care. You acknowledge that due to the unique nature of the Proprietary Information, Licensor will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Proprietary Information. In addition to any other remedies that may be available in law, in equity or otherwise, Licensor shall be entitled to obtain injunctive relief to prevent such unauthorized use or disclosure. You shall not use any information or data disclosed by Licensor in connection with this Agreement to contest the validity of any Licensor intellectual property. Any such use of Licensor’s information and data shall constitute a material, non-curable breach of this Agreement.
5. Limitation of Warranties
Exclusive Remedy. The sole and exclusive remedy of Licensee and the sole and exclusive liability of Licensor for breach of the foregoing warranties shall be to seek repair or replacement of the non-conforming Software or reperformance of the relevant services. In the event that such breach cannot be remedied by repair, replacement, or reperformance, or where a repair or replacement remedy is not applicable, Licensor’s aggregate liability hereunder shall in no event exceed the total license fees paid by Licensee to Licensor.
Modification of Software. Except as otherwise agreed in writing by the parties, any modification to the Software by Licensee or any other third party, or failure by Licensee to implement any improvements or updates to the Software as supplied by Licensor shall void Licensor’s warranty obligations and Licensor’s warranties under this Agreement, to the extent any failure or error results from such modification.
Fees. The license fees payable to Licensor for the rights hereunder are as set forth separately with the individual or organization responsible for payment of the license fees; such agreement describes the license fees and any other fees owed by the person or entity paying the applicable license fees on your behalf to enable you to utilize the Software. If these license fees are not timely paid to Licensor, then Licensor may immediately terminate this Agreement, as well all your access to the Software, with or without prior notice to you.
6. Intellectual Property Infringement
In the event the Software as delivered by Licensor becomes or, in Licensor’s opinion, is likely to become, the subject of a claim of infringement, Licensor may, at its option and expense either (a) procure for Licensee the right to continue to use the Software as contemplated hereunder, or (b) replace or modify the Software or modify its use to make its use hereunder noninfringing, without loss of material functionality. If neither option is reasonably available to Licensor, then this Agreement may be terminated at the option of either party hereto without further obligation or liability.
Breach of Agreement. Without prejudice to any other rights, Licensor may terminate this Agreement immediately, without any notice to you, if you fail to comply with any of the terms and conditions of this Agreement.
Termination for Convenience. You may terminate this Agreement at any time by discontinuing use of the Software, complying with your termination obligations set forth below, providing Licensor written notice, and returning the Software to Licensor, although this shall not affect your obligations to Licensor for the Term, including but not limited to any payment obligations.
Licensee’s Termination Obligations. In the event of any expiration or termination of this Agreement for any reason, you must remove all copies of the Software and all of its components from all of your systems, and destroy all related media and Documentation, if any. The license granted to the Software will automatically terminate on expiration or termination of this Agreement.
8. Warranty Disclaimer
THE SOFTWARE IS PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR AND ANY OF ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR SHALL CREATE ANY ADDITIONAL LICENSOR WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF LICENSOR’S OBLIGATIONS HEREUNDER.
LICENSOR MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY HARDWARE, PRODUCTS, SOFTWARE, OR PROGRAMMING OBTAINED BY LICENSOR FROM THIRD PARTIES (COLLECTIVELY, THE “THIRD PARTY ITEMS”). LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE/NON-INFRINGEMENT, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE THIRD-PARTY ITEMS. YOU SHOULD CONSULT THE RESPECTIVE VENDORS/MANUFACTURERS OF THE THIRD-PARTY ITEMS FOR WARRANTY AND PERFORMANCE INFORMATION.
THE SOFTWARE MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT LICENSOR DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEB SITES, COMPUTERS, OR NETWORKS. LICENSOR SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND SYSTEMS.
9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT DAMAGES, OR ANY OTHER DAMAGES, WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE). IN ANY CASE, THE ENTIRE LIABILITY OF LICENSOR AND ITS SUPPLIERS OR LICENSORS UNDER THIS AGREEMENT FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE LIMITED TO THE INITIAL LICENSE FEE PAID BY YOU, IF ANY, FOR THE SOFTWARE.
Some states do not allow the exclusion of incidental or consequential damages, or the limitation on how long an implied warranty lasts, so some of the above may not apply to you.
10. Compliance and Audit
If requested by Licensor, you will submit an annual certification, signed by an officer or authorized representative, specifying the number of users and number and location of all copies of the Software in Licensee’s possession or use. Licensor may also, once annually, upon reasonable notice and during regular business hours, gain access to your facilities and systems to audit compliance with the license restrictions set forth herein.
11. Governing Law
This Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods. This Agreement shall be construed in accordance with, and governed by, the laws of the State of Florida, without regard to the conflict of law provisions thereof. Any dispute, controversy or claim arising out of or relating to this Agreement, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, shall be referred to and finally determined by binding arbitration in accordance with the JAMS International Arbitration Rules. The Tribunal shall consist of one arbitrator. The place of arbitration shall be Florida. The language to be used in the arbitral proceedings shall be English. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. If the claims are determined to not be arbitrable or the parties mutually waive arbitration, any dispute arising out of this Agreement shall be submitted exclusively to the competent Courts of the State of Florida, without restricting any rights of appeal. Each party acknowledges and agrees that any controversy that may arise under or relate to this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any action arising out of or relating to this Agreement. Each party to this Agreement certifies and acknowledges that (a) no representative of any other party has represented, expressly or otherwise, that such other party would not seek to enforce the foregoing waiver in the event of any action, (b) such party has considered the implications of this waiver, (c) such party makes this waiver voluntarily, and (d) such party has been induced to enter into this agreement by, among other things, the mutual waivers and certifications in this section. The parties waive any right to assert any claims against the other party as a representative or member in any class or representative action, except where such waiver is prohibited by law or deemed by a court of law to be against public policy. To the extent either party is permitted by law or court of law to proceed with a class or representative action against the other, the parties agree that: (i) the prevailing party shall not be entitled to recover attorneys’ fees or costs associated with pursuing the class or representative action (not withstanding any other provision in this agreement); and (ii) the party who initiates or participates as a member of the class shall not submit a claim or otherwise participate in any recovery secured through the class or representative action.
This Agreement constitutes the entire understanding and agreement between Licensor and you with respect to the transactions contemplated in this Agreement and supersedes all prior or contemporaneous oral or written communications with respect to the subject matter of this Agreement. In particular, if you are a current licensee of the Software, this Agreement shall supersede your existing license agreement and that agreement shall be of no further force or effect. This Agreement shall not be modified, amended or in any way altered except by an instrument in writing signed by authorized representatives of both parties. In the event that any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement shall remain valid and enforceable according to its terms. Any failure by Licensor to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision. Neither party shall assign this Agreement without the written consent of the other party. Notwithstanding the foregoing, Licensor may assign this Agreement, without the other party’s consent, to any Affiliate or subsidiary, or in the event of a merger, acquisition, or sale of all or substantially all of its assets. “Affiliate” means any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with the party. Licensor may assign any of its rights or obligations hereunder as it deems necessary. Neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions. Sections 4 through 13 shall survive any termination or expiration of this Agreement.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
13. U.S. Government Rights
The Software is commercial computer software as described in DFARS 252.227-7014(a)(1) and FAR 2.101. If acquired by or on behalf of any the Department of Defense (“DOD”) or any component thereof, the U.S. Government acquires this commercial computer software and/or commercial computer software Documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software Documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software.
By downloading, installing, accessing, or using the Software, you indicate that you have the authority to bind yourself and your organization to the terms of this Agreement.