SOFTWARE LICENSE AGREEMENT – ON-PREMISES
This Software License Agreement (the “Agreement”) entered into as of this date (the “Effective Date”) is made between API Fortress Incorporated, a Delaware corporation (“Licensor”), and You.
BY ACCEPTING THIS AGREEMENT, EITHER BY (1) CLICKING A BOX INDICATING YOUR ACCEPTANCE OR (2) EXECUTING A QUOTE OR ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. 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 TO THIS AGREEMENT.
- DEFINITION OF LICENSOR PRODUCTS. For purposes of this Agreement, the “Licensor Products” shall mean the Licensor software product(s) (the “Software”) identified in the quote, together with the related user manuals and other related documentation made available by Licensor (“Documentation”). The Software is delivered via Internet download or such other method as set forth in the quote or as otherwise determined by Licensor.
- Subject to the terms and conditions of this Agreement and Licensee’s payment of all applicable fees, Licensor hereby grants Licensee a revocable, nonexclusive, nontransferable, non-assignable (except as provided in Section 13.A) right and license in the Territory to install and use the Software and to use the Documentation provided in connection therewith, all during the license term set forth in the quote. Licensee’s use of the Software is limited to the number of licenses set forth in the quote (the “Permitted Licenses”). If Licensee desires to use the Licensor Products in excess of the Permitted Licenses, or for a period in excess of term set forth on the quote, Licensee must first obtain the written consent of Licensor, and pay the then-current Software license fee and any transfer and/or upgrade charges. “Territory” means the United States of America.
- The Licensor Products licensed to Licensee under this Agreement may only be used at Licensee’s facilities for Licensee’s internal business purposes. Licensee may not assign, sell, rent, lease, sublicense, lend, transfer, resell or distribute the Licensor Products to any third party or use the Licensor Products on behalf of any third party unless otherwise agreed upon by the parties in writing. Licensee agrees not to copy the Licensor Products, in whole or in part, except for backup purposes, unless Licensor consents in writing. License may not make more than one copy of the Software and Documentation for Licensee’s internal business purposes. Licensee agrees not to modify, obscure, or delete any proprietary rights notices included in or on the Software or Documentation and Licensee agrees to include all such notices on all copies. Licensee may not modify the Licensor Products, make derivative works or merge the Software into any other computer programs. Licensee may not reverse engineer, disassemble or decompile the Software, in whole or in part or otherwise attempt to derive its source code. Licensee agrees to use the Software in compliance with all applicable laws, rules and regulations, including but not limited to United States and foreign export, re-export and import control laws and regulations such as the US Department of Commerce’s Export Administration Regulations, the US Treasury Department’s trade and economic sanctions regulations, and the US Department of State’s International Traffic in Arms Regulations.
- Licensee acknowledges that, as between Licensee and Licensor, title and full ownership in and to the Licensor Products and all trade secret, copyright and patent rights and all other intellectual property and proprietary rights in and to the Licensor Products (including, without limitation any third-party software incorporated therein) remain with Licensor, whether or not any portion thereof is or may be validly copyrighted or patented. Licensee is granted the limited license rights to use the Licensor Products as described in this Agreement. Licensee agrees to treat the Licensor Products as Licensor’s proprietary information. Licensee will take all reasonable steps to protect the Licensor Products from disclosure to or use by any unauthorized third party.
- TERM AND TERMINATION.
- Term. This Agreement is effective as of the Effective Date and will continue until the expiration of the license term set forth on the quote (the “Initial Term”). Unless terminated earlier in accordance with this Section 5, the term of this Agreement may be extended by mutual agreement of Licensor and Licensee and Licensee’s payment of the then-current Software license fee for such renewal period. The “term” of this Agreement shall mean the Initial Term and any subsequent term.
- Termination by Licensor. Licensor may immediately terminate this Agreement if Licensee breaches any material term or condition of this Agreement; provided, however, that if any such breach is curable, Licensor may terminate this Agreement if Licensee fails to cure such breach within 30 days of written notice to Licensee describing such breach.
- Termination by Licensee. Licensee may immediately terminate this Agreement if Licensor breaches any material term or condition of this Agreement; provided, however, that if any such breach is curable, Licensee may terminate this Agreement if Licensor fails to cure such breach within 30 days of written notice to Licensor describing such breach
- Effect of Termination. Upon termination of this Agreement, Licensee will immediately return the Software and Documentation, together with all copies in any form and any other Confidential Information in its possession or control or certify to Licensor in writing that the same has been destroyed. Any payment obligations as of the termination or expiration of this Agreement shall remain in effect. Those provisions of this Agreement that by their terms should survive any termination of this Agreement shall be deemed to survive and remain in full force and effect, including, but not limited to Sections 1, 3, 4, 7-10, and 12-13.
- SUPPORT AND TRAINING. Licensor will provide any software support and training services set forth in the quote, if any, (collectively, “Software Support”), subject to the payment requirements set forth therein. Licensor’s sole obligation (and Licensee’s sole and exclusive remedy) in the event of a breach by Licensor of this Section or the Software Support obligations set forth in the quote shall be to either correct or replace the affected Licensor Products, re-perform the applicable Software Support, or, at Licensor’s option, to refund a portion of the paid Software Support fees based on the remaining length of the Support Period, as applicable.
- Licensee agrees to pay to Licensor the license fees and any Software Support fees as set forth in the quote. Licensee shall pay all amounts due to Licensor in full within 30 days from the date of each invoice or such time (if any) stated in the quote. For the avoidance of doubt, Licensee is solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on Licensor’s net income) that are imposed or become due in connection with the subject matter of this Agreement.
- WARRANTY DISCLAIMER. THE LICENSOR PRODUCTS ARE OFFERED “AS IS,” AND LICENSOR GRANTS Licensee, AND Licensee RECEIVES, NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT, SOFTWARE OR HARDWARE, OR THAT IT WILL NOT CAUSE ANY LOSS OR CORRUPTION OF DATA.
- LIMITATION OF LIABILITY.
- NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT, REVENUE OR CONTENT) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- LIMITATION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR’S AND ITS LICENSORS’ CUMULATIVE, AGGREGATE LIABILITY TO LICENSEE OR ANY OTHER PARTY FOR ANY DAMAGES SHALL NOT EXCEED THE FEES PAID BY LICENSEE TO LICENSOR DURING THE 12 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
- Each party (a “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose information of a confidential nature including, without limitation, the Licensor Products, product information, data, pricing, financial information, end user information, software, specifications, research and development and proprietary algorithms or other materials that is (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). The terms and conditions of this Agreement also constitute Confidential Information of each party. The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use for its own purposes (other than as expressly permitted under this Agreement) any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party in each instance. Each party will use at least the same level of care to maintain the Confidential Information of the other party as it uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care. The foregoing obligations shall not extend to any information to the extent that the Receiving Party can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of the Receiving Party, a part of the public domain by publication or otherwise; (ii) was already properly and lawfully in the Receiving Party’s possession at the time it was received by the Receiving Party free from any obligation of confidentiality, (iii) was lawfully received by the Receiving Party from a third party who was under no obligation of confidentiality to the Disclosing Party with respect thereto, or (iv) was independently developed by the Receiving Party or its independent contractors who did not have access to the Disclosing Party’s Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information in accordance with a judicial or governmental order or requirement, the Receiving Party shall promptly notify the Disclosing Party in order to allow such party to contest the order or requirement or seek confidential treatment for such information.
- USAGE VERIFICATION. Licensor may request annually from Licensee a certified report detailing Licensee’s installation and usage of the Licensor Products, including whether or not Licensee has exceeded the Permitted Licenses. Licensee agrees to provide such report promptly following Licensor’s request. Without limitation of any of Licensor’s other rights and remedies, any use of Licensor Products in excess the Permitted Licenses is subject to additional license fees and, if applicable, Software Support pursuant to Section 2 of this Agreement.
- GOVERNING LAW. This Agreement is to be governed by and interpreted in accordance with the laws of the State of New York, U.S.A., without giving effect to its principles of conflict of laws. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in a federal court in the Southern District of New York or in state court in the Borough of Manhattan. Notwithstanding the foregoing, Licensee acknowledges and agrees that in the event of a breach by Licensee of Sections 2, 3, 4 or 11 of this Agreement, Licensor, without limitation of its other rights and remedies, shall be entitled to seek immediate injunctive relief in any court of competent jurisdiction.
- This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including, without limitation, by operation of law, without the prior written consent of the non-assigning party; provided that either party may assign this Agreement without consent in connection with the sale of all or substantially all its assets.
- Each provision of this Agreement shall be viewed as separate and distinct, and in the event that any provision shall be deemed by a court of competent jurisdiction to be illegal, invalid or unenforceable, the court finding such illegality, invalidity or unenforceability shall modify or reform this Agreement to give as much effect as possible to such provision. Any provision which cannot be so modified or reformed shall be deleted and the remaining provisions of this Agreement shall continue in full force and effect.
- NOTICES: All notices provided hereunder shall be in writing, delivered personally or sent by overnight courier, registered or certified mail to the addresses set forth in the signature line below or such other address as may be specified in writing by notice given in accordance with this Section. All such notices shall be deemed to have been given: (i) upon receipt when delivered personally or (ii) upon verification of receipt via overnight courier, registered or certified mail.
- Performance of any obligations required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described herein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Force Majeure: Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or services as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failure and power failures. Nothing in the foregoing shall be deemed to relieve Licensee of Licensee’s obligation to pay any and all fees owed to Licensor under this Agreement.
- INDEPENDENT CONTRACTORS. It is the intention of Licensor and Licensee that Licensor and Licensee are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between Licensor and Licensee.
- ENTIRE AGREEMENT. This Agreement is intended by the parties as the final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. This Agreement may only be modified or amended pursuant to a written agreement or instrument signed by each party.
- HEADINGS; COUNTERPARTS. Headings are for convenience only and are not deemed to be part of this Agreement. This Agreement may be entered into in separate counterparts, each of which when so executed will be deemed an original and taken together will constitute one fully executed Agreement.
Last Update: March 12, 2018