ThisSoftware Subscription License Agreement (the “Agreement”), is by and between the“Licensor”
Licensor Name
AgilePoint, Inc.
Type of business
Corporation
Jurisdiction of registration
Delaware
Address
1916 Old Middlefield Way, Suite B, Mountain View, CA 94043, USA
and the “Licensee” andtogether with Supplier, the “Parties”, and each, a “Party”.
ThisAgreement is effective as of the last date stated on the signature page (the “EffectiveDate”).
WHEREAS,Licensor desires to license the Software to Licensee; and
WHEREAS,Licensee desires to obtain a license to use the Software for its internal businesspurposes, subject to the terms and conditions of this Agreement.
NOW,THEREFORE, in consideration of the mutual covenants, terms, and conditions setforth herein, and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions.
“AccessCredentials” means any user name, identification number, password, licenseor security key, security token, PIN, or other security code, method,technology, or device used, alone or in combination, to verify an individual’sidentity and authorization to access and use the Software.
“AcceptanceCriteria” means the specifications and Documentation provided by Licensor.
“Action” means any claim, action, cause of action, demand, lawsuit,arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation,summons, subpoena, or investigation of any nature, civil, criminal,administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” of aPerson means any other Person that directly or indirectly, through one or more intermediaries,controls, is controlled by, or is under common control with, such Person. Theterm “control” (including the terms “controlled by” and “under common controlwith”) means the direct or indirect power to direct or cause the direction ofthe management and policies of a Person, whether through ownership of more than50% of the voting securities of a Person.
“Agreement” has the meaning set forth inthe preamble.
“Authorized Platforms” means the type and number of separateoperating environments indicated in Exhibit A with which the Products aredesigned to be compatible, on the Effective Date and afterwards during the Term.
”BusinessDay” means a day other than a Saturday, Sunday, or other day on whichcommercial banks in California are authorized or required by Law to be closedfor business.
“ConfidentialInformation” has the meaning set forth in Section 9.1.
“DesignatedSite(s)” means any of Licensee’s facilities if applicable.
“DisclosingParty” has the meaning set forth in Section 9.1.
“Documentation”means any manuals, instructions, or other documents or materials that the Licensorprovides or makes available to Licensee in any form or medium and whichdescribe the functionality, components, features, or requirements of theSoftware or Licensor Materials, including any aspect of the installation,configuration, integration, operation, use, support, or maintenance thereof. See https://documentation.agilepoint.com/.
“EffectiveDate” has the meaning set forth in the preamble.
“Feedback” has the meaning set forthin Section 10.5.
“Fees” has the meaningset forth in Section 8.1.
“Force Majeure Event” has the meaningset forth in Section 15.9(a).
“Harmful Code” means any software, hardware, or other technology, device, ormeans, including any virus, worm, malware, or other malicious computer code,the purpose or effect of which is to (a) permit unauthorized access to, or todestroy, disrupt, disable, distort, or otherwise harm or impede in any mannerany (i) computer, software, firmware, hardware, system, or network; or (ii) anyapplication or function of any of the foregoing or the security, integrity,confidentiality, or use of any data Processed thereby; or (b) prevent Licenseeor any Authorized User from accessing or using the Software or Licensor’s systemsas intended by this Agreement. Harmful Code does not include any LicensorDisabling Device.
“Indemnitee”has the meaning set forth in Section 12.3.
“Indemnitor”has the meaning set forth in Section 12.3.
“InitialTerm” has the meaning set forth in Section 14.1.
“IntellectualProperty Rights” means any and all registered and unregistered rightsgranted, applied for, or otherwise now or hereafter in existence under orrelated to any patent, copyright, trademark, trade secret, database protection,or other intellectual property rights Laws, and all similar or equivalentrights or forms of protection, in any part of the world.
“Law”means any statute, law, ordinance, regulation, rule, code, order, constitution,treaty, common law, judgment, decree, or other requirement of any federal,state, local, or foreign government or political subdivision thereof, or anyarbitrator, court, or tribunal of competent jurisdiction.
“License Restriction” hasthe meaning set forth in Section 3.
“Licensee”has the meaning set forth in the preamble.
”LicenseeIndemnitee” has the meaning set forth in Section 12.1.
“Licensee Data” means information,data, and other content, including,but not limited to, Personal Information and Sensitive Personal Information, in any formor medium, that is collected, downloaded, or otherwise received, directly orindirectly from Licensee or an Authorized User by or through the Software or thatincorporates or is derived from the Processing of such information, data, orcontent by or through the Software. For the avoidance of doubt, Licensee Datadoes not include Resultant Data or any other information reflecting the accessor use of the Software by or on behalf of Licensee or any Authorized User.
“LicenseeSystems” means the Licensee’s information technology infrastructure,including computers, software, hardware, databases, electronic systems(including database management systems), and networks, whether operateddirectly by Licensee or through the use of third-party services.
“Licensor”has the meaning set forth in the preamble.
“LicensorDisabling Device” means any software, hardware, or other technology,device, or means (including any back door, time bomb, time out, drop deaddevice, software routine, or other disabling device) used by Licensor or itsdesignee to disable Licensee’s or any Authorized User’s access to or use of theSoftware automatically with the passage of time or under the positive controlof Licensor or its designee.
“Licensor Indemnitee” has the meaningset forth in Section 12.2.
“Licensor Materials” means the Software,Specifications and Documentation, and any and all other information, data,documents, materials, works, and other content, devices, methods, processes,hardware, software, and other technologies and inventions, including anydeliverables, technical or functional descriptions, requirements, plans, orreports, that are provided or used by Licensor in connection with the Softwareor otherwise comprise or relate to the Software or Licensor Systems. For theavoidance of doubt, Licensor Materials include Resultant Data and anyinformation, data, or other content derived from Licensor’s monitoring ofLicensee’s access to or use of the Software, but do not include Licensee Data.
“LicensorSystems” means the Licensor’s information technology infrastructure,including computers, software, hardware, databases, electronic systems (includingdatabase management systems), and networks, whether operated directly by Licensoror through the use of third-party services.
“Losses”means all losses, damages, deficiencies, claims, actions, judgments,settlements, interest, awards, penalties, fines, costs, or expenses of whateverkind, including reasonable attorneys’ fees and the costs of enforcing any rightto indemnification hereunder and the cost of pursuing any insurance providers.
“PaymentFailure” has the meaning set forth in Section 14.3(a).
only be usedfor internal non-production activities, such as development, disaster recovery,staging, testing, or training.
“Person”means an individual, corporation, partnership, joint venture, limited liabilityentity, governmental authority, unincorporated organization, trust,association, or other entity.
“Personal Information”means information that Licensee provides or for which Licensee provides accessto Licensor, or information which Licensor creates or obtains on behalf of Licensee,in accordance with this Agreement that: (i) directly or indirectly identifiesan individual (including, for example, names, signatures, addresses, telephonenumbers, email addresses, and other unique identifiers); or (ii) can be used toauthenticate an individual (including, without limitation, employeeidentification numbers, government-issued identification numbers, passwords orPINs, user identification and account access credentials or passwords,financial account numbers, credit report information, student information, biometric,genetic, health, or health insurance data, answers to security questions, andother personal identifiers), in case of both subclauses (i) and (ii), includingSensitive Personal Information as defined herein). Licensee’s business contactinformation is not by itself Personal Information.
“RateAdjustment” has the meaning set forth in Section 8.1.
“Receiving Party” has the meaningset forth in Section 9.1.
“Renewal Term” has the meaning set forth in Section 14.2.
“Representatives” means, with respect to a Party, that Party’sand its Affiliates’ employees, officers, directors, consultants, agents,independent contractors, service providers, sublicensees, subcontractors, andlegal advisors.
“SoftwareSupport” has the meaning set forth in Section 5.1.
“Specifications” means the specifications and system requirements forthe Software, including those set forth at:
https://documentation.agilepoint.com/11/installation/wlinstallSystemRequirements.html
“SupportExhibit” has the meaning set forth in Section 5.1.
“Term”has the meaning set forth in Section 14.2.
“Territory”means the United States of America.
“WarrantyPeriod” has the meaning set forth in Section 11.2.
2. License.
2.1 LicenseGrant. Subject to and conditioned on Licensee’s payment of Fees andcompliance with all other terms and conditions of this Agreement, Licensorhereby grants to Licensee a non-exclusive, non-sublicensable, andnon-transferable (except in compliance with Section 15.8) license touse the Software and Documentation solely for the Permitted Use at DesignatedSites on Authorized Platforms until the end of the Termor until this Agreement is terminated, whichever is earlier.
2.2 Scopeof Licensed Access and Use. As indicated in Exhibit A, Licensee may install, use, and run (a) the number of copiesof the Software on Licensee’s network according to the ‘AgilePoint ServerEnvironments’ section, and (b) for use by up to the aggregate number ofAuthorized User(s) at a time at the Designated Site(s) and/or remotelyaccording to the ‘User Seats and Apps’ section. The total number of AuthorizedUsers and/or Designated Site(s) shall not exceed the number set forth in Exhibit A, except as expressly agreedto in writing by the Parties and subject to any appropriate adjustment of thelicense fees payable hereunder. All copies of the Software (a) will remain theexclusive property of Licensor; (b) be subject to the terms and conditions ofthis Agreement; and (c) must include all copyright or other IntellectualProperty Rights notices contained in the original. This Agreement does notapply to Licensor’s hosted or cloud-based solutions (“Cloud” deployments), useof which requires a separate agreement with Licensor.
2.3 Security Measures. The Software maycontain technological measures designed to prevent unauthorized or illegal useof the Software. Licensor may use these and other lawful measures to verifyLicensee’s compliance with the terms of this Agreement and enforce Licensor’srights, including all Intellectual Property Rights, in and to the Software.Licensor may deny any individual access to and/or use of the Software ifLicensor, in its discretion, believes that person’s use of the Software wouldviolate any provision of this Agreement, regardless of whether Licenseedesignated that person as an Authorized User. Licensor and its Representativesmay collect, maintain, process and use diagnostic, technical, usage and relatedinformation, including information about Licensee’s computers, systems andsoftware, that Licensor may gather periodically to improve the performance ofthe Software or develop Maintenance Releases. This information will be treatedin accordance with Licensor’s privacy policy, as amended from time to time,which can be viewed at: https://www.agilepoint.com/trust-center
2.4 Serviceand System Control. Except as otherwise expressly provided in thisAgreement, as between the parties:
(a) Licensorhas and will retain sole control over the operation, provision, maintenance,and management of the Licensor Materials; and
(b) Licenseehas and will retain sole control over the operation, maintenance, andmanagement of, and all access to and use of, the Licensee Systems, and soleresponsibility for all access to and use of the Software and Licensor Materialsby any Person by or through the Licensee Systems or any other means controlledby Licensee or any Authorized User, including any: (i) information, instructions,or materials provided by any of them to the Software or Licensor; (ii) resultsobtained from any use of the Software or Licensor Materials; and (iii)conclusions, decisions, or actions based on such use.
2.5 Suspensionor Termination. Licensor may, directly or indirectly, and by use of a LicensorDisabling Device or any other lawful means, suspend, terminate, or otherwisedeny Licensee’s, any Authorized User’s, or any other Person’s access to or useof all or any part of the Software or Licensor Materials, without incurring anyresulting obligation or liability, if: (a) Licensor receives a judicial orother governmental demand or order, subpoena, or law enforcement request thatexpressly or by reasonable implication requires Licensor to do so; (b) Licensee’saccount becomes delinquent; or (c) Licensor believes, in its good faith andreasonable discretion, that: (i) Licensee or any Authorized User has failed tocomply with any material term of this Agreement, or accessed or used the Softwarebeyond the scope of the rights granted or for a purpose not authorized underthis Agreement or in any manner that does not comply with any materialinstruction or requirement of the Specifications; (ii) Licensee or anyAuthorized User is, has been, or is likely to be involved in any fraudulent,misleading, or unlawful activities relating to or in connection with any of theSoftware; or (iii) this Agreement expires or is terminated. This Section 2.5does not limit any of Licensor’s other rights or remedies, whether at law, inequity, or under this Agreement.
3.1 Restrictions.Licensee shall not, and shall not permit any other Person to, use the Softwareor Licensor Materials except as expressly permitted by this Agreement and, inthe case of Third-Party Materials, the applicable third-party licenseagreement. For purposes of clarity and without limiting the generality of theforegoing, Licensee shall not, and shall not permit any other Person to, exceptas this Agreement expressly permits:
(a) copy the Software or LicensorMaterials, in whole or in part;
(b) modify, correct, adapt, translate, enhance, orotherwise prepare any derivative works or improvements of any Software;
(c) rent,lease, lend, sell, sublicense, assign, distribute, publish, transfer, orotherwise make available any Software or Licensor Materials to any third party;
(d) reverse engineer,disassemble, decompile, decode, adapt, or otherwise attempt to derive or gainaccess to the source code of the Software or Licensor Materials, in whole or inpart;
(e) bypass or breach anysecurity device or protection used for or contained in the Software orDocumentation;
(f) remove, delete,efface, alter, obscure, translate, combine, supplement, or otherwise change anytrademarks, terms of the Documentation, warranties, disclaimers, orIntellectual Property Rights, proprietary rights or other symbols, notices,marks, or serial numbers on or relating to any copy of the Software orDocumentation;
(g) usethe Software or Licensor Materials in any manner or for any purpose thatinfringes, misappropriates, or otherwise violates any Intellectual PropertyRight or other right of any Person, or that violates any applicable Law;
(h) use the Software forpurposes of: (i) benchmarking or competitive analysis of the Software; (ii)developing, using, or providing a competing software product or service; or(iii) any other purpose that is to Licensor’s detriment or commercialdisadvantage;
(j) use the Software or LicensorMaterials in, or in association with, the design, construction, maintenance, oroperation of any hazardous environments, systems, or applications, any safetyresponse systems or other safety-critical applications, or any other use orapplication in which the use or failure of the Software could lead to personalinjury or severe physical or property damage; or
(k) usethe Software or Documentation other than for the Permitted Use or in any manneror for any purpose or application not expressly permitted by this Agreement.
Therestrictions outlined in this Section 3 are each a “License Restriction.”
3.2 Export Regulation. Licensee agreesto comply strictly with all applicable export Laws and assume soleresponsibility for obtaining any necessary licenses to export or re-export.Licensor and its licensors make no representation that the Software isappropriate, or will be or should be made available, for use outside the UnitedStates, Canada or European Union. The Software may use encryption technologythat is subject to licensing requirements under the U.S. Export AdministrationRegulations, including, but not limited to, 15 C.F.R. Parts 730-774 and CouncilRegulation (EC) No. 1334/2000. To the extent Licensee makes the Software availableto Authorized Users outside of the United States, Canada orEuropean Union, Licensee understands and acknowledges the it is responsible andliable for complying with the applicable export control Laws (e.g. UnitedStates Export Administration Act) and their associated regulations. Licenseeshall not, directly or indirectly, export, re-export or release the Software orthe underlying software or technology to, or make the Software or theunderlying software or technology accessible from, any jurisdiction or countryto which export, re-export or release is prohibited by Law. Licensee shallcomply with all applicable Laws and complete all required undertakings(including obtaining any necessary export license or other governmentalapproval) prior to exporting, re-exporting, releasing or otherwise making the Softwareor the underlying software or technology available outside the Territory.
3.3 ServiceUsage and Configuration. Exhibit A sets forth Fees for designatedlevels of usage (a “Service Allocation”), beginning with the Feespayable by Licensee for the levels of usage in effect as of the Effective Date.Licensee may increase its Service Allocation and corresponding Fee obligations as agreed.
4. Delivery.
4.1 Deliverable.Licensor shall deliver one copy of the Software electronically to Licenseewithin five (5) Business Days of the Effective Date or when Licensee isprepared to receive it, whichever is later.
4.2 Acceptance.Licensee has thirty (30) days after the delivery date totest whether the Software conforms in all material respects to the AcceptanceCriteria. If Licensee believes that the Software fails to conform in anymaterial respect to the Acceptance Criteria, Licensee must provide writtennotice to Licensor detailing the non-compliance, and Licensor will eithercorrect the non-conformities or provide an acceptable workaround in a timelymanner. If Licensee does not send written notice within thirty (30) days afterthe delivery date the Software will be deemed accepted.
4.3 Corrective Action and Notice.If Licensee becomes aware of any actual or threatened activity prohibited by Section 3.1, Licenseeshall, and shall cause its Authorized Users to, immediately: (a) take allreasonable and lawful measures within their respective control that arenecessary to stop the activity or threatened activity and to mitigate itseffects (including, where applicable, by discontinuing and preventing anyunauthorized access to the Software and Licensor Materials and permanentlyerasing from their systems and destroying any data to which any of them havegained unauthorized access); and (b) notify Licensor of any such actual orthreatened activity.
4.4 Non-Solicitation.During the Term and for one year after, Licensee shall not, and shall notassist any other Person to, directly or indirectly recruit or solicit foremployment or engagement as an independent contractor any Person then or withinthe prior twelve (12) months employed or engaged by Licensor or any ofLicensor’s subcontractors. In the event of a violation of this Section 4.4, Notwithstandingthe forgoing, a party may hire a person employed or engaged by the other partyor subcontractor who responds to a general solicitation for employment. Licensorwill be entitled to liquidated damages equal to the compensation paid by Licensorto the applicable employee or contractor during the prior six (6) months.
5. Service Levels.
5.1 Service Support.Licensor’s technical support services (“Software Support”) at thesupport levels Licensee purchases (pursuant to Exhibit A) will be provided as outlined in separate SupportAgreement with Licensee.
5.2 ProfessionalServices. Installation of the Software, modules andMaintenance Releases, integrations, mentorship and training may be performed byAgilePoint personnel pursuant to a Statement of Work for additional fees or asoutlined separately as Professional Services in Exhibit A. Such Statements ofWork shall be amendments and made part of this Agreement. Any custom process, applicationor solution development will beprovided by Licensor’s Professional Services Department as agreed to in aseparate Master Software Agreement.
5.3 Service Management. Each party shall, throughout the Term,maintain within its organization a service manager to serve as such party’sprimary point of contact for day-to-day communications, consultation, anddecision-making regarding this Agreement. Each service manager shall beresponsible for providing all day-to-day consents and approvals on behalf ofsuch party under this Agreement. Each party shall ensure its service managerhas the requisite organizational authority, skill, experience, and otherqualifications to perform in such capacity. If either party’s service managerceases to be employed by such party or such party otherwise wishes to replaceits service manager, such party shall promptly name a new service manager bywritten notice to the other party. Licensee’s service manager will beresponsible for (i) creating and distributing access information, applicationURL’s, access credentials and other information required to access the Software,(ii) managing application- or role-specific security for Authorized Users,including process authorization and administrative permissions, (iii) educatingand enforcing compliance of internal Authorized Users with the acceptable usageof the Software as intended and do not violate a License Restriction (seeSection 3), and, (iv) subsequent to notification of maintenance or outage,communicating any impacts and timeframes to Licensee stakeholders.
6. Changes and MaintenanceReleases.
6.2 Maintenance Releases. During theTerm, Licensor will provide Licensee with all Maintenance Releases (includingupdated Documentation) that Licensor may, in its sole discretion, makeavailable for Software, provided Licensee has paid allFees for such Maintenance Release. All Maintenance Releases provided byLicensor to Licensee are deemed Software. Licensee willinstall all Maintenance Releases as soon as practicable after receipt.
7. Security. Licenseehas and will retain sole responsibility for:
(a) all Licensee Data, including its content and use;
(b) all information, instructions, and materials provided by or onbehalf of Licensee or any Authorized User in connection with the Software;
(c) Licensee’s Systems;
(d) the security and use of Licensee’s and its Authorized Users’Access Credentials; and
(e) all access to and use of the Software and Licensor Materialsdirectly or indirectly by or through the Licensee Systems or its or itsAuthorized Users’ Access Credentials, with or without Licensee’s knowledge orconsent, including all results obtained from, and all conclusions, decisions,and actions based on, such access or use.
8. Feesand Payment.
8.1 Fees.Licensee shall pay Licensor the fees set forth in Exhibit A (“Fees”) in accordance with this Section 8. Fees may be adjusted (each a “Rate Adjustment”) due to: (i)additional functionality and/or usability requested by Licensee, and (ii)annual renegotiation of terms of the license. If any changes to the rates arerequired prior to an annual renegotiation, Licensor will notify Licensee withas much advance notice as possible; at that time, Licensee and AgilePoint willnegotiate the Rate Adjustment(s) in good faith and commensurate with theanticipated changes. If no agreement is reached regarding the Rate Adjustmentwithin thirty 30 days, either party may terminate this Agreement pursuant toSection 14.3(b).
8.2 Taxes.All Fees and other amounts payable by Licensee under this Agreement areexclusive of taxes and similar assessments. Without limiting the foregoing,Licensee is responsible for all sales, use, and excise taxes, and any othersimilar taxes, duties, and charges of any kind imposed by any federal, state,or local governmental or regulatory authority on any amounts payable byLicensee hereunder, other than any taxes imposed on Licensor’s income.
8.3 Payment.Licensee shall pay all Fees owing under this Agreement withinthirty (30) days after the date of the invoice therefor. Licensee shall makeall payments hereunder in US dollars by wire transfer to the account specifiedin Exhibit A, or such other address or account as Licensor may specifyin writing from time to time.
8.4 LatePayment. If Licensee fails to make any payment when due then, in additionto all other remedies that may be available:
(a) Licensor may charge interest on the past due amount at the rate of1.5% per month calculated daily and compounded monthly or, if lower, thehighest rate permitted under applicable Law;
(b) Licensee shall reimburse Licensor for all costs incurred byLicensor in collecting any late payments or interest, including attorneys’fees, court costs, and collection agency fees; and
(c) without limiting Licensor’s option of suspension pursuant toSection 2.5, if such failure continues for thirty (30) days following writtennotice thereof, Licensor may: (i) disable Licensee’s use of the Software untilall past due amounts and interest thereon have been paid, without incurring anyobligation or liability to Licensee or any other Person by reason of suchsuspension; (ii) withhold, suspend or revoke its grant of a license hereunder;and/or (iii) terminate this Agreement under Section 14.3(a) or Section 14.3(b), asapplicable.
8.5 NoDeductions or Setoffs. All amounts payable to Licensor under this Agreementshall be paid by Licensee to Licensor in full without any setoff, recoupment,counterclaim, deduction, debit, or withholding for any reason (other than anydeduction or withholding of tax as may be required by applicable Law).
9. Confidentiality.
9.1 ConfidentialInformation. In connection with this Agreement, each Party (the “DisclosingParty”) may disclose or make available Confidential Information to theother Party (the “Receiving Party”). Subject to Section 9.2, “ConfidentialInformation” means information in any form or medium (whether oral,written, electronic, or other) that the Disclosing Party considers confidentialor proprietary, including information consisting of or relating to theDisclosing Party’s technology, trade secrets, know-how, business operations,plans, strategies, customers and pricing, and information with respect to whichthe Disclosing Party has contractual or other confidentiality obligations, ineach case whether or not marked, designated, or otherwise identified as“confidential”. Without limiting the foregoing, all Licensor Materials are theConfidential Information of Licensor and the financial terms of this Agreementare the Confidential Information of Licensor.
9.2 Exclusions.Confidential Information does not include information that: (a) was rightfullyknown to the Receiving Party without restriction on use or disclosure prior tosuch information’s being disclosed or made available to the Receiving Party inconnection with this Agreement; (b) was or becomes generally known by thepublic other than by the Receiving Party’s or any of its Representatives’noncompliance with this Agreement; (c) was or is received by the ReceivingParty on a non-confidential basis from a third party that, to the ReceivingParty’s knowledge, was not or is not, at the time of such receipt, under anyobligation to maintain its confidentiality; or (d) was or is independentlydeveloped by the Receiving Party without reference to or use of anyConfidential Information.
9.3 Protectionof Confidential Information. As a condition to being provided with anydisclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessaryto exercise its rights or perform its obligations under and in accordance withthis Agreement;
(b) except as may be permitted by and subject to its compliance withSection 9.4, not disclose or permit access to Confidential Information otherthan to its Representatives who: (i) need to know such Confidential Informationfor purposes of the Receiving Party’s exercise of its rights or performance ofits obligations under and in accordance with this Agreement; (ii) have beeninformed of the confidential nature of the Confidential Information and theReceiving Party’s obligations under this Section 9.3; and (iii) are bound bywritten confidentiality and restricted use obligations at least as protectiveof the Confidential Information as the terms set forth in this Section 9;
(c) safeguard the Confidential Information from unauthorized use,access, or disclosure using at least the degree of care it uses to protect itssimilarly sensitive information and in no event less than a reasonable degreeof care;
(d) promptly notify the Disclosing Party of any unauthorized use ordisclosure of Confidential Information and take all reasonable steps to preventfurther unauthorized use or disclosure; and
(e) ensure its Representatives’ compliance with, and be responsibleand liable for any of its Representatives’ non-compliance with, the terms ofthis Section 9.
(f) Notwithstanding anyother provisions of this Agreement, the Receiving Party’s obligations underthis Section 9 withrespect to any Confidential Information that constitutes a trade secret underany applicable Law will continue until such time, if ever, as such ConfidentialInformation ceases to qualify for trade secret protection under one or moresuch applicable Laws other than as a result of any act or omission of theReceiving Party or any of its Representatives.
9.4 CompelledDisclosures. If the Receiving Party or any of its Representatives iscompelled by applicable Law to disclose any Confidential Information then, tothe extent permitted by applicable Law, the Receiving Party shall: (a)promptly, and prior to such disclosure, notify the Disclosing Party in writingof such requirement so that the Disclosing Party can seek a protective order orother remedy or waive its rights under Section 9.3; and (b)provide reasonable assistance to the Disclosing Party in opposing suchdisclosure or seeking a protective order or other limitations on disclosure. Ifthe Disclosing Party waives compliance or, after providing the notice andassistance required under this Section 9.4, the Receiving Party remainsrequired by Law to disclose any Confidential Information, the Receiving Party shalldisclose only that portion of the Confidential Information that the ReceivingParty is legally required to disclose.
10. IntellectualProperty Rights.
10.1 IntellectualProperty Ownership. Licensee acknowledges and agrees that:
(a) theSoftware and Documentation are licensed, not sold, to Licensee by Licensor andLicensee does not have under or in connection with this Agreement any ownershipinterest in the Software or Documentation, or in any related IntellectualProperty Rights;
(b) Licensorand its licensor(s) are the sole and exclusive owners of all right, title, andinterest in and to the Software and Documentation, including all IntellectualProperty Rights relating thereto, subject only to the rights of third partiesand the limited license granted to Licensee under this Agreement; and
(c) Licenseehereby unconditionally and irrevocably assigns to Licensor or Licensor’sdesignee, its entire right, title, and interest in and to any ResultantData and Intellectual Property Rights that Licensee may now or hereafter havein or relating to the Software or Documentation (including any rights inderivative works or patent improvements relating to either of them), whetherheld or acquired by operation of law, contract, assignment or otherwise.
10.2 LicenseeCooperation and Notice of Infringement. Licensee shall, during the Term:
(a) safeguard the Software and Documentation (including all copies thereof) frominfringement, misappropriation, theft, misuse, or unauthorized access;
(b) atLicensor’s expense, take all such steps as Licensor may reasonably require to assistLicensor in maintaining the validity, enforceability and Licensor’s ownershipof the Intellectual Property Rights in the Software and Documentation;
(c) promptlynotify Licensor in writing if Licensee becomes aware of: (i) any actual orsuspected infringement, misappropriation or other violation of Licensor’sIntellectual Property Rights in or relating to the Software or Documentation;or (ii) any claim that the Software or Documentation, including any production,use, marketing, sale or other disposition of the Software or Documentation, inwhole or in part, infringes, misappropriates or otherwise violates theIntellectual Property Rights or other rights of any Person; and
(d) fullycooperate with and assist Licensor in all reasonable ways in the conduct of anyAction by Licensor to prevent or abate any actual or threatened infringement,misappropriation or violation of Licensor’s rights in, and to attempt toresolve any Actions relating to, the Software or Documentation, includinghaving Licensee’s employees testify when requested and making available fordiscovery or trial relevant records, papers, information, samples, specimensand the like.
10.3 NoImplied Rights. Except for the limited rights and licenses expresslygranted under this Agreement, nothing in this Agreement grants, by implication,waiver, estoppel or otherwise, to Licensee or any third party any IntellectualProperty Rights or other right, title, or interest in or to any of the Softwareor Documentation.
10.4 LicenseeData. As between Licensee and Licensor, Licensee is and will remain thesole and exclusive owner of all right, title, and interest in and to all LicenseeData, including all Intellectual Property Rights relating thereto, subject tothe rights and permissions granted in Section 10.3.
10.5 Feedback.If Licensee provides suggestions, comments or other input relating to the LicensorMaterials (collectively, "Feedback") then Licensee shall grant andhereby grants Licensor a perpetual, worldwide, royalty free license to use anysuch Feedback without restriction.
11. Representationsand Warranties.
11.1 Mutual Representations and Warranties. Each Partyrepresents and warrants to the other Party that:
(a) it is dulyorganized, validly existing and in good standing as a corporation or otherentity under the Laws of the jurisdiction of its incorporation or otherorganization;
(b) it has the fullright, power, and authority to enter into and perform its obligations and grantthe rights, licenses, and authorizations it grants and is required to grantunder this Agreement;
(c) the execution ofthis Agreement by its representative whose signature is set forth at the end ofthis Agreement has been duly authorized by all necessary corporate ororganizational action of such Party; and
(d) when executed anddelivered by both Parties, this Agreement will constitute the legal, valid, andbinding obligation of such Party, enforceable against such Party in accordancewith its terms.
11.2 LimitedWarranty. Subject to the limitations and conditions set forth in Section11.3 and Section11.4, Licensor warrants toLicensee that for a period of ninety (90) days from the date of installation ofthe Software, until the end of the Term or until the Agreement is terminated,whichever is earlier (the “Warranty Period”):
(a) theSoftware will substantially conform in all material respects to thespecifications according to the Documentation when installed, operated, andused as recommended in the Documentation and in accordance with this Agreement;and
(b) noMaintenance Release, when correctly installed by Licensee inaccordance with the Documentation and this Agreement, will have a materialadverse effect on the functionality of the Software.
11.3 Licensee Requirements. Thelimited warranties set forth in Section 11.2 apply only if Licensee: (a) notifies Licensorin writing of the warranty breach before the expiration of the Warranty Period;(b) has promptly installed all Maintenance Releases to the Software thatLicensor previously made available to Licensee; and (c) as of the date ofnotification, is in compliance with all terms and conditions of this Agreement(including the payment of all license fees then due and owing).
11.4 Exceptions.Notwithstanding any provisions to the contrary in this Agreement, the limitedwarranty set forth in Section11.2 does notapply to problems arising out of or relating to:
(a) Software, or the media on whichit is provided, that is modified or damaged by Licensee or its Representatives;
(b) any operation or use of, orother activity relating to, the Software other than as specified in theDocumentation, including any incorporation in the Software of, or combination,operation or use of the Software in or with, any technology (including anysoftware, hardware, firmware, system, or network) or service not specified forLicensee’s use in the Documentation;
(c) Licensee’s or any third party’snegligence, abuse, misapplication, or misuse of the Software, including any useof the Software other than as specified in the Documentation;
(d) Licensee’sfailure to promptly install all Maintenance Releases that Licensor haspreviously made available to Licensee;
(e) theoperation of, or access to, Licensee’s or a third party’s system or network;
(f) anybeta software, software that Licensor makes available for testing ordemonstration purposes, temporary software modules or software for whichLicensor does not receive a license fee;
(g) Licensee’sbreach of any provision of this Agreement; or
(h) anyother circumstances or causes outside of the reasonable control of Licensor(including abnormal physical or electrical stress).
11.5 Remedial Efforts.If Licensor breaches, or is alleged to have breached, any of the warranties setforth in Section11.2, Licensormay, at its sole option and expense, take any of the following steps to remedysuch breach:
(a) repair the Software with an update;
(b) replace a component of the Software with functionally equivalentsoftware (which software will, on its replacement of the Software, constituteSoftware hereunder); and/or
(c) amend, supplement, or replace any incomplete or inaccurateDocumentation;
(d) terminate this Agreement and refund the prorated fees paid byLicensee under this Agreement during the current subscription term.
The remediesset forth in this Section 11.5 are Licensee’s sole remedies and Licensor’s soleliability under the limited warranty set forth in Section 11.2.
11.6 DISCLAIMEROF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTIES SETFORTH IN SECTION 11.1 AND SECTION 11.2, ALL LICENSED SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS,INFORMATION, MATERIALS, AND SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS.”LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALLWARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTYOF ANY KIND THAT THE LICENSED SOFTWARE OR LICENSOR MATERIALS, OR ANY PRODUCTSOR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’SREQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BECOMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE,ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTYMATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF ORCONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN LICENSEE AND THETHIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12. Indemnification.
12.1 LicensorIndemnification. Licensor shall indemnify, defend, and hold harmlessLicensee, Licensee’s Affiliates and each of their respective officers,directors, employees, agents, successors, and permitted assigns (each, a “LicenseeIndemnitee”) from and against any and all Losses incurred by LicenseeIndemnitee resulting from any Action by a third party (other than an Affiliateof a Licensee Indemnitee) that Licensee’s or an Authorized User’s use ofthe Software (excluding Licensee Data and Third-Party Materials) in accordancewith this Agreement (includingthe Specifications) infringes or misappropriates such third party’s UnitedStates patent, trademark or copyright in the Territory. The foregoingobligation does not apply to the extent that the alleged infringement arisesfrom:
(a) Third-PartyMaterials or Licensee Data;
(b) combination,operation, or use of the Software in or with, any technology (including anysoftware, hardware, firmware, system, or network) or service not provided by Licensoror specified for Licensee’s use in the Documentation;
(c) modificationof the Software other than: (i) by Licensor in connection with this Agreement;or (ii) with Licensor’s express written authorization and in strict accordancewith Licensor’s written directions and specifications;
(d) useof any version of the Software other than the most current version or failureto timely implement any Maintenance Release, modification, update, orreplacement of the Software made available to Licensee by Licensor;
(e) useof the Software after Licensor’s notice to Licensee of such activity’s allegedor actual infringement, misappropriation, or other violation of a third party’srights;
(f) negligence,abuse, misapplication, or misuse of the Software or Documentation by or onbehalf of Licensee, Licensee’s Representatives, or a thirdparty;
(g) useof the Software or Documentation by or on behalf of Licensee that is outsidethe purpose, scope, or manner of use authorized by this Agreement or in anymanner contrary to Licensor’s instructions;
(h) eventsor circumstances outside of Licensor’s commercially reasonable control(including any third-party hardware, software, or system bugs, defects, ormalfunctions); or
(i) act,omission, or other matter described in Section 12.2, whether or not the sameresults in any Action against or Losses by any Licensor Indemnitee.
12.2 LicenseeIndemnification. Licenseeshall indemnify, defend, and hold harmless Licensor, Licensor’s Affiliates andeach of their respective officers, directors, employees, agents,subcontractors, successors and permitted assigns (each, a “LicensorIndemnitee”) from and against any and all Losses incurred by the LicensorIndemnitee resulting from any Action by a third party to the extent that such Losses arise out of orresult from, or are alleged to arise out of or result from:
(a) Licensee Data;
(i) useor combination of the Software by or on behalf of Licensee or any of itsRepresentatives with any hardware, software, system, network, service, or othermatter whatsoever that is neither provided by Licensor nor authorized byLicensor in this Agreement and the Documentation; and
(ii) any other materials or information(including any documents, data, specifications, software, content, ortechnology) provided by or on behalf of Licensee or any Authorized User,including Licensor’s compliance with any specifications or directions providedby or on behalf of Licensee or any Authorized User to the extent preparedwithout any contribution by Licensor;
(c) relating to facts that, if true, wouldconstitute Licensee’s breach of any of its representations, warranties,covenants, or obligations under this Agreement; or
(d) relatingto abuse, misapplication or misuse or omission by or on behalf of Licensee orany of its Representatives with respect to the Software or Documentation orotherwise in connection with this Agreement.
12.3 IndemnificationProcedure. Each Party shall promptly notify the other Party in writing ofany Action for which such Party believes it is entitled to be indemnifiedpursuant to Section 12.1 or Section 12.2, as thecase may be. The Party seeking indemnification (the “Indemnitee”) shallcooperate with the other Party (the “Indemnitor”) at the Indemnitor’ssole cost and expense. The Indemnitor shall promptly assume control of thedefense and shall employ counsel to handle and defend the same, at theIndemnitor’s sole cost and expense. The Indemnitee may participate in andobserve the proceedings at its own cost and expense with counsel of its ownchoosing. The Indemnitor shall not settle any Action without the Indemnitee’sprior written consent. The Indemnitee’s failure to perform any obligationsunder this Section 12.3 will not relieve the Indemnitor of its obligationsunder this Section 12, except to the extent that the Indemnitor candemonstrate that it has been prejudiced as a result of such failure.
12.4 Mitigation.If the Software, or any part of the Software or Licensor Materials are, or inLicensor’s opinion are likely to be, claimed to infringe, misappropriate, orotherwise violate any third-party Intellectual Property Right, or if Licensee’sor any Authorized User’s use of the Software or Licensor Materials is enjoinedor threatened to be enjoined, Licensor may, at its option and sole cost andexpense:
(a) obtain the right forLicensee to continue to use the Software and Licensor Materials materially ascontemplated by this Agreement;
(b) modifyor replace the Software and Licensor Materials, in whole or in part, to seek tomake the Software and Licensor Materials (as so modified or replaced) non-infringing,while providing materially equivalent features and functionality, in which casesuch modifications or replacements will constitute Software and LicensorMaterials, as applicable, under this Agreement; or
(c) by written notice toLicensee, terminate this Agreement with respect to all or part of the Software andLicensor Materials, and require Licensee to immediately cease any use of the Softwareand Licensor Materials or any specified part or feature thereof, provided that,subject to Licensee’s compliance with its post-termination obligations setforth in Section 14.4, Licensee will be entitled to a refund commensurate with(i) the loss of functionality in the context of the entirety of the Software thatLicensee purchased, and (ii) the time remaining in the current Term.
12.5 SoleRemedy. THIS SECTION 12 SETS FORTH LICENSEE’S SOLE REMEDIES AND LICENSOR’SSOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMSTHAT THE LICENSED SOFTWARE OR DOCUMENTATION OR ANY SUBJECT MATTER OF THISAGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUALPROPERTY RIGHTS OF ANY THIRD PARTY.
13. Limitationsof Liability.
13.1 EXCLUSIONOF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 13.3, IN NOEVENT WILL LICENSOR, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERSBE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTERUNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) INCREASED COSTS, DIMINUTION IN VALUE OR LOST PRODUCTION,USE,BUSINESS, REVENUES OR PROFITS, (b) IMPAIRMENT, INABILITY TO USE OR LOSS,INTERRUPTION OR DELAY OF ANY LICENSED SOFTWARE; (c) LOSS, DAMAGE, CORRUPTION ORRECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENTGOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL,INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, INEACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OFSUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE,AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIALPURPOSE.
13.2 CAPON MONETARY LIABILITY. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENTWILL THE COLLECTIVE AGGREGATE LIABILITY OF LICENSOR AND ITS LICENSORS, SERVICEPROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHERARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTALAMOUNTS PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT INTHE TWELVE- (12-) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILSOF ITS ESSENTIAL PURPOSE.
13.3 Exceptions.The exclusions and limitations in Section 13.1 and Section 13.2 do notapply to Licensor’s obligations under Section 12.
14. Term andTermination.
14.1 InitialTerm. The initial term of this Agreement commences as of the Effective Dateand, unless terminated earlier pursuant to any of the Agreement’s expressprovisions, will continue in effect until the date indicated in Exhibit A (the “Initial Term”).
14.2 RenewalTerm. This Agreement will automatically renew for additional successive twelve(12) month terms unless earlier terminated pursuant to this Agreement’s expressprovisions or either Party gives the other Party written notice of non-renewalat least ninety (90) days prior to the expiration of the then-current term (eacha “Renewal Term” and, collectively, together with the Initial Term, the“Term”).
14.3 Termination.In addition to any other express termination right set forth elsewhere in thisAgreement:
(a) Licensormay terminate this Agreement, effective on written notice to Licensee, ifLicensee:
(i) fails to pay any amount when due, and such failure continuesmore than thirty (30) days after Licensor’s delivery of written notice thereof(”Payment Failure”);
(ii) breaches any of its obligations under Section 3.1 or Section 9; or
(iii) Licensor has reason to believe there has been fraud ormisrepresentation in connection with Licensee’s use of the Software.
(b) either party mayterminate this Agreement, effective on written notice to the other Party, ifthe other Party breaches this Agreement and such breach: (i) is incapable ofcure; or (ii) being capable of cure, remains uncured 30 days after thenon-breaching Party provides the breaching Party with written notice of suchbreach; and
(c) eitherparty may terminate this Agreement, effective immediately upon written noticeto the other Party, if the other Party: (i) becomes insolvent or is generallyunable to pay, or fails to pay, its debts as they become due; (ii) files or hasfiled against it, a petition for voluntary or involuntary bankruptcy orotherwise becomes subject, voluntarily or involuntarily, to any proceeding underany domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks tomake a general assignment for the benefit of its creditors; or (iv) applies foror has appointed a receiver, trustee, custodian, or similar agent appointed byorder of any court of competent jurisdiction to take charge of or sell anymaterial portion of its property or business.
14.4 Effect of Termination or Expiration. Upon anyexpiration or termination of this Agreement, except as expressly otherwiseprovided in this Agreement:
(a) all rights, licenses and authorizations granted to Licenseehereunder will immediately terminate;
(b) Licensee shall (A) immediately cease all use of and other activitieswith respect to the Software and Licensor Materials; (B) within thirty (30) daysdeliver to Licensor, or at Licensor's written request destroy, and permanentlyerase from all devices and systems Licensee directly or indirectly controls,the Software, the Documentation and the Licensor's Confidential Information,including all documents, files, and tangible materials (and any partial andcomplete copies) containing, reflecting, incorporating, or based on any of theforegoing, whether or not modified or merged into other materials; and (C)certify to Licensor in a written instrument that it has complied with therequirements of this Section 14.4; and
(c) if Licensee terminates this Agreement pursuant to Section 14.3(b),Licensee will be relieved of any obligation to pay any additional Feesattributable to the period after the effective date of such termination and Licensorwill: (i) refund to Licensee Fees paid in advance for Software that Licensorhas not performed as of the effective date of termination (for the avoidance of doubt, this does not include aprorated amount of annual fees), and (ii) pay to Licensee any unpaid ServiceCredits to which Licensee is entitled; and
(d) if Licensor terminates this Agreement pursuant to Section 14.3(a) orSection 14.3(b), all Fees that would have become payable had the Agreementremained in effect until expiration of the Term will become immediately due andpayable, and Licensee shall pay such Fees, together with all previously-accruedbut not yet paid Fees, on receipt of Licensor’s invoice therefor.
14.5 SurvivingTerms. The provisions set forth in the following sections, and any otherright, obligation or provision under this Agreementthat, by its nature, should survive termination or expiration of thisAgreement, will survive any expiration or termination of this Agreement: Section 3.1, Section8, Section 9, Section10, Section11.6, Section 12, Section13, Section14.4, this Section 14.5, and Section 15.
15. Miscellaneous.
15.1 FurtherAssurances. On a Party’s reasonable request, the other Party shall, at therequesting Party’s sole cost and expense, execute and deliver all suchdocuments and instruments, and take all such further actions, as may benecessary to give full effect to this Agreement.
15.2 Relationshipof the Parties. The relationship between the Parties is that of independentcontractors. Nothing contained in this Agreement shall be construed as creatingany agency, partnership, joint venture, or other form of joint enterprise,employment, or fiduciary relationship between the Parties, and neither Partyshall have authority to contract for or bind the other Party in any mannerwhatsoever.
15.3 PublicAnnouncements. Neither Party shall issue or release any announcement,statement, press release, or other publicity or marketing materials relating tothis Agreement or, unless expressly permitted under this Agreement, otherwiseuse the other Party’s trademarks, service marks, trade names, logos, domainnames, or other indicia of source, association or sponsorship, in each case,without the prior written consent of the other Party, which consent shall notbe unreasonably withheld, provided, however, that Licensor may, withoutLicensee’s consent, include Licensee’s name and other indicia in its lists ofLicensor’s current or former customers of Licensor in promotional and marketingmaterials.
15.4 Notices.Except as otherwise expressly set forth in this Agreement, any notice, request,consent, claim, demand, waiver, or other communications under this Agreementhave legal effect only if in writing and addressed to each Party.
15.5 Interpretation.For purposes of this Agreement: (a) the words “include,” “includes,” and“including” are deemed to be followed by the words “without limitation”; (b)the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,”“hereto,” and “hereunder” refer to this Agreement as a whole; (d) wordsdenoting the singular have a comparable meaning when used in the plural, andvice-versa; and (e) words denoting any gender include all genders. Unless thecontext otherwise requires, references in this Agreement: (x) to sections,exhibits, schedules, attachments, and appendices mean the sections of, andexhibits, schedules, attachments, and appendices 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 timeto time to the extent permitted by the provisions thereof; and (z) to a statutemeans such statute as amended from time to time and includes any successorlegislation thereto and any regulations promulgated thereunder. The Partiesintend this Agreement to be construed without regard to any presumption or rulerequiring construction or interpretation against the Party drafting aninstrument or causing any instrument to be drafted. The exhibits, schedules,attachments, and appendices referred to herein are an integral part of thisAgreement to the same extent as if they were set forth verbatim herein.
15.6 Headings.The headings in this Agreement are for reference only and do not affect theinterpretation of this Agreement.
15.7 EntireAgreement. The End User License Agreement that Licensee “accepts” duringthe installation (by clicking ‘Yes’ button) will not be applicable to theextent this Agreement applies to the Software. This Agreement, together withany other documents incorporated herein by reference, constitutes the sole andentire agreement of the parties with respect to the subject matter of thisAgreement and supersedes all prior and contemporaneous understandings,agreements, representations, and warranties, both written and oral, withrespect to such subject matter. In the event of any inconsistency between thestatements made in the body of this Agreement, the related exhibits, schedules,attachments, and appendices, the following order of precedence governs: (a)first, this Agreement, excluding its exhibits, schedules, attachments, andappendices; (b) second, the exhibits, schedules, attachments, and appendices tothis Agreement as of the Effective Date; and (c) third, any other documentsincorporated herein by reference.
15.8 Assignment.Licensee shall not assign or otherwise transfer any of its rights, or delegateor otherwise transfer any of its obligations or performance under thisAgreement, in each case whether voluntarily, involuntarily, by operation oflaw, or otherwise, without Licensor’s prior written consent. Notwithstanding the preceding sentence, on assignment, Licenseemay assign its rights under this Agreement to (i) an Affiliate, (ii) anacquirer of substantially all of Licensee’s stock or assets, or (iii) asuccessor by merger. No assignment, delegation, or transfer will relieve Licenseeof any of its obligations or performance under this Agreement. Any purportedassignment, delegation, or transfer in violation of this Section 15.8 is void.This Agreement is binding on and inures to the benefit of the Parties heretoand their respective successors and permitted assigns. Anyactual or proposed change in control of Licensee that results or would resultin a direct competitor of AgilePoint directly or indirectly owning orcontrolling 1% or more of Licensee shall entitle AgilePoint to terminate thisAgreement for cause immediately. Any assignment by Licensee must be a permanent transfer of all of Licensee’s rights underthis Agreement one time, provided Licensee retains no copies, Licensee transfersall of the Software (including all component parts, the media and printedmaterials, any upgrades and this Agreement), Licensee does not receive anypayment or other compensation for transferring the Software and the recipientagrees to the terms of this Agreement. If the Software portion is an upgrade,any transfer pursuant to this Section 15.8 must include all prior versions ofthe Software.
15.9.2 AffectedParty Obligations. In the event of any failure or delay caused by a ForceMajeure Event, the affected Party shall give prompt written notice to the otherParty stating the period of time the occurrence is expected to continue and usecommercially reasonable efforts to end the failure or delay and minimize theeffects of such Force Majeure Event.
15.10 Third-PartyBeneficiaries.The Parties do not confer any rights or remedies upon anyPerson other than the parties to this Agreement and their respective successorsand permitted assigns.
15.11 Amendmentand Modification; Waiver. No amendment to or modification of or rescission,termination, or discharge of this Agreement is effective unless it is inwriting, identified as such in relation to this Agreement and signed by anauthorized representative of each Party. This Agreement will prevail and takeprecedence over all terms and conditions that are preprinted, typed, stamped orhandwritten on any quotation form, invoice, acknowledgment form, or purchaseorder utilized by any party in the transactions covered by this Agreement. Nowaiver by any Party of any of the provisions hereof shall be effective unlessexplicitly set forth in writing and signed by the Party so waiving. Except asotherwise set forth in this Agreement, no failure to exercise, or delay inexercising, any rights, remedy, power, or privilege arising from this Agreementwill operate or be construed as a waiver thereof; nor shall any single orpartial exercise of any right, remedy, power, or privilege hereunder precludeany other or further exercise thereof or the exercise of any other right,remedy, power, or privilege.
15.12 Severability.If any term or provision of this Agreement is invalid, illegal, orunenforceable in any jurisdiction, such invalidity, illegality, orunenforceability will not affect any other term or provision of this Agreementor invalidate or render unenforceable such term or provision in any otherjurisdiction. On such determination that any term or other provision isinvalid, illegal, or unenforceable, the Parties hereto shall negotiate in goodfaith to modify this Agreement so as to effect the original intent of theParties as closely as possible in a mutually acceptable manner in order thatthe transactions contemplated hereby be consummated as originally contemplatedto the greatest extent possible.
15.13 GoverningLaw; Submission to Jurisdiction. This Agreement is governed by andconstrued in accordance with the internal laws of the State of Californiawithout giving effect to any choice or conflict of law provision or rule thatwould require or permit the application of the laws of any jurisdiction otherthan those of the State of California. The United Nations Convention on theInternational Sale of Goods is hereby disclaimed. The Parties expressly agreethat the Uniform Computer Information Transactions Act shall not apply to thisAgreement and, to the extent that it is applicable, the parties agree toopt-out of its applicability pursuant to its provisions. Except for actions toprotect Intellectual Property Rights and to enforce an arbitrator’s decisionhereunder, any disputes, controversies, action, proceeding or claims arisingout of or relating to this Agreement or licenses granted hereunder, or anybreach thereof, may be submitted to and finally resolved by arbitration underthe rules of the American Arbitration Association (“AAA”) then in effect. Thereshall be one arbitrator, and such arbitrator shall be chosen by mutualagreement of the parties in accordance with AAA rules. The arbitration shalltake place in the County of Santa Clara, California. The arbitrator shall applythe laws of the State of California and the United States of America to allissues in dispute, including but not limited to the California Evidence Code.Notwithstanding the foregoing, no discovery of any kind shall be taken byeither party without the written consent of the other party; provided, however,that either party may seek the arbitrator’s permission to take any depositionwhich is necessary to preserve the testimony of a witness who either is, or maybecome, outside the subpoena power of the arbitrator or otherwise unavailableto testify at the arbitration. The arbitrator shall have the power to enter anyaward that could be entered by a Judge of the Circuit Court of the State ofCalifornia sitting without a jury, and only such power, except that thearbitrator shall not have the power to award punitive damages, treble damages,or any other damages which are not compensatory, even if permitted under thelaws of the State of California or any other applicable law. The findings ofthe arbitrator shall be final and binding on the parties, and may be entered inany court of competent jurisdiction for enforcement. Notwithstanding theforegoing, the parties irrevocably submit to the non-exclusive jurisdictions ofthe County of Santa Clara County, California and the United States DistrictCourt, Northern District of California in any action to enforce an arbitrationaward. Notwithstanding the foregoing, no term or condition contained in thisAgreement shall prevent either party from seeking all remedies available tothem. Service of process, summons, notice, or other document by mail to suchParty’s address set forth herein will be effective service of process for anysuit, action, or other proceeding brought in any such arbitration or court.
15.14 Language.If this agreement is translated into any language other than English, theEnglish language version shall prevail.
15.15 Waiver of Jury Trial.Each Party irrevocably and unconditionally waives any right it may have to atrial by jury in respect of any legal action arising out of or relating to thisAgreement or the transactions contemplated hereby.
15.16 EquitableRelief. Each Party acknowledges and agrees that a breach or threatenedbreach by such party of any of its obligations under Section 2.4, Section 3.1, Section 4.3, Section 8, Section 9, Section 10 or Section 12 of thisAgreement would cause the other party irreparable harm for which monetarydamages would not be an adequate remedy and that, in the event of such breachor threatened breach, the other party will be entitled to equitable relief,including a restraining order, an injunction, specific performance, and anyother relief that may be available from any court, without any requirement topost a bond or other security, or to prove actual damages or that monetarydamages are not an adequate remedy. Such remedies are not exclusive and are inaddition to all other remedies that may be available at law, in equity, orotherwise.
15.17 Attorneys’ Fees. In the event that any action, suit, or other legal oradministrative proceeding is instituted or commenced by either Party againstthe other Party arising out of this Agreement, the prevailing Party is entitledto recover its attorneys’ fees, arbitration costs andcourt costs from the non-prevailing Party.
15.18 Counterparts.This Agreement may be executed in counterparts, each of which is deemed anoriginal, but all of which together are deemed to be one and the sameagreement. A signed copy of this Agreement delivered by facsimile, email, orother means of electronic transmission is deemed to have the same legal effectas delivery of an original signed copy of this Agreement.
15.19 USGovernment Rights. Each of the Documentation and the software componentsthat constitute the Software is a “commercial item” as that term is defined at48 C.F.R. 2.101, consisting of “commercial computer software” and “commercialcomputer software documentation” as such terms are used in 48 C.F.R. 12.212.Accordingly, if Licensee is an agency of the US Government or any contractortherefor, Licensee only receives those rights with respect to the Software andDocumentation as are granted to all other end users under license, inaccordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, withrespect 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 theircontractors.
The Parties hereto have executedthis Agreement as of the date first above written.
EXHIBIT A
SOFTWARE
AgilePoint NX Platform and SharePointAdd-in