SOFTWARE LICENSE AGREEMENT
1 DEFINITIONS
1.1 Effective Date is the date this License Agreement is click-accepted or, if signed in hard copy by Customer, the date of last signature, or in the absence of any of the forgoing, these License Agreement shall be effective from the date an order is placed by Customer.
1.2 License Agreement is an Agreement issued by Customer to Company for License to be purchased, licensed or provided under this License Agreement.
1.3 Software is the most recent version at the time of the Effective Date of the Company’s programs listed from time to time in the License Agreement and made available by Company for license to Customer including necessary access codes, and any copies made, bug fixes for, updates to, or upgrades thereof.
2 SCOPE
2.1 These License Agreement set forth the terms and conditions for Customer’s purchase of License solely for use in authorized regions and individuals as described in below and solely for Customer’s internal business use. Customer shall not resell to, make available for use by, or otherwise transfer title to any License to, any end user or other third party, including any reseller, without the exclusive written permission of the Company.
3 PRICES
3.1 Prices for License shall be those specified by Company.
3.2 All prices are exclusive of any taxes, fees and duties or other similar amounts, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices or related charges. Customer shall pay any taxes related to License provided. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice.
3.3 Customer shall also be responsible to pay for any and all processing fees including but not limited to banking transfer, credit card, or online banking fees. Such fees owed shall be deducted from amounts transferred to Customer if any.
4 ORDERS
4.1 Customer shall acquire licenses by accepting the terms of this License Agreement. No contingency contained on any License Agreement shall be binding upon Company. The terms of this License Agreement shall apply, regardless of any additional or conflicting terms on any License Agreement or other correspondence or documentation submitted by Customer to Company, and any such additional or conflicting terms are deemed rejected by Company.
5 PAYMENTS
5.1 Customer agrees to an initial billing cycle at Customer’s election. Thereafter, billing will occur monthly based upon Customer’s projected usage. At any time, if Customer’s projected usage exceeds the amount paid for the current month, Customer consents to Company automatically charging for a new month at a rate projected based upon current usage. Company shall not issue any refunds for unused balances after Customer ceases use of the Licensed Software.
6 PROPRIETARY RIGHTS AND SOFTWARE LICENSING
6.1 Subject to the terms contained in Exhibit A (Company’s End User License Agreement (“EULA”)), Company grants to Customer a non-exclusive, non-transferable license to use the Software for Customer’s internal use. Any resale of Software to any person or entity is expressly prohibited. Customer may not sublicense, to any person or entity, any rights to distribute the Software. Customer agrees to share the EULA with each user of the Software and Services.
Customer shall notify any user of the Software of the requirements included in this License Agreement prior to installation of the Software. Customer shall notify Company promptly of any breach or suspected breach of this License Agreement and further agrees that it will, at Company’s request, assist Company in efforts to preserve Company’s intellectual property rights including pursuing an action against any breaching third parties.
Company shall retain ownership interest in any material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and/or trade secrets conceived, discovered, authored, invented, developed arising out of or in connection with performing Services for Customer. Any Services provided by Company at the request of Customer that results in design development and integration into the Software shall be owned by Company but shall be licensed to Customer subject to the terms of this License Agreement.
Customer agrees that it shall not: (1) modify, adapt, translate, sublicense, rent, lease, or loan all or any portion of the Licensed Software; (2) create any derivative works from all or any portion of the Licensed Software; (3) not reverse-engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Licensed Software except: only to the extent expressly permitted by applicable law; after notification to Company; upon payment of a reasonable fee; and execution of a confidentiality agreement to protect the code from disclosure to any third parties; (4) Except with approval by Company, remove or obscure Company’s copyright or trademark notices, or the copyright and trademark notices of third parties that Company has included in the Licensed Software; (5) not to use the services with anyone under the age of eighteen (18) and (6) Except with approval by company, use the Licensed Software to host applications for third parties, as part of a facility management, timesharing, service provider, or service bureau arrangement.
7 WARRANTY
7.1 All contributions, Licensed Software are provided “AS IS” and “AS AVAILABLE,” without warranty or conditions of any kind. Company cannot guarantee and does not promise any specific results from use of the Licensed Software. No advice or information, whether oral or written, obtained shall create any warranty not expressly stated in this agreement. Company makes no warranties or representations about the accuracy, reliability, timeliness or completeness of the Licensed Software. Company also assumes no liability or responsibility for any (a) errors, mistakes or inaccuracies of content and materials, or (b) any bugs or features in the Licensed Software.
8 CONFIDENTIAL INFORMATION
8.1 By virtue of this Agreement, the parties may have access to information that is confidential to one another. “Confidential Information” means any non-public information that relates to the actual or anticipated business and/or products, research or development of either Party, its affiliates or subsidiaries, or to either Party’s, its affiliates’ or subsidiaries’ technical data, trade secrets, or know-how, including, but not limited to, research, product plans, or other information regarding either Party’s, its affiliates’ or subsidiaries’ current or future products or services and markets therefore, customer lists and customers, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business information disclosed by either Party, its affiliates or subsidiaries, either directly or indirectly, in writing, orally or by drawings or inspection of premises, parts, equipment, or other property of either Party, its affiliates or subsidiaries. Notwithstanding the foregoing, Confidential Information shall not include any such information which the receiving party can establish (i) was publicly known or made generally available prior to the time of disclosure to the receiving party; (ii) becomes publicly known or made generally available after disclosure to the receiving party through no wrongful action or inaction of the receiving party; or (iii) is in the rightful possession of the receiving party, without confidentiality obligations, at the time of disclosure, all as shown by the receiving party’s then-contemporaneous written records.
8.2 During and after the term of this Agreement, both parties will hold in the strictest confidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential Information, and both parties will not (i) use the Confidential Information for any purpose whatsoever other than as necessary for the performance of its duties under this Agreement, or (ii) disclose the Confidential Information to any third party without the prior written consent of an authorized representative of the disclosing Party. Either party may disclose Confidential Information to the extent compelled by applicable law; provided however, prior to such disclosure, the party so compelled shall provide prior written notice to the disclosing Party and seek a protective order or such similar confidential protection as may be available under applicable law. Both parties agree that no ownership of Confidential Information is conveyed to the recipient party. All Confidential Information furnished to a recipient shall remain solely the property of the disclosure. Confidential Information, including all copies in any form, shall be returned to the disclosure upon completion or termination of this Agreement. Without limiting the foregoing and except for Underlying Technology, the receiving party shall not use or disclose any of the disclosing Party’s property, intellectual property rights, trade secrets or other proprietary know-how of the disclosing Party to invent, author, make, develop, design, or otherwise enable others to invent, author, make, develop, or design identical or substantially similar designs as those developed under this Agreement for any third party. Both parties agree that its obligations under this Section shall continue after the termination of this Agreement.
8.3 Nothing in this Agreement shall be construed to limit either party’s right to independently develop or acquire products without use of the other party’s Confidential Information either for itself or for other clients or customers. Further, either party shall be free to use for any purpose the general knowledge resulting from access to or work with such Confidential Information, provided that such party shall maintain the confidentiality of such Confidential Information as provided herein. The term “general knowledge” means information in non-tangible form, which may be retained by a person who has had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein, but excluding the actual Confidential Information.
9 TERMINATION
9.1 The term of this license shall continue until one of the following: Customer halts all use of the Software, Customer contacts Company to request termination, or upon breach of this License Agreement. The warranty shall continue for such time as indicated in the License Agreement. If Customer breaches this License Agreement, and fails to cure any breach within 30 calendar days after request from Company, or its authorized representative, Company may terminate this Agreement and related EULA, whereupon all rights granted under this License Agreement shall immediately cease including any rights to the warranty. Furthermore, upon termination, Customer shall halt use of the Software, return to Company all copies Software, if any, and verify in writing that all copies of the Software have been destroyed.
10 LIMITATION AND EXCLUSION OF LIABILITY GENERAL INDEMNIFICATION
10.1 IN NO EVENT WILL COMPANY BE LIABLE TO LICENSEE FOR ANY DAMAGES, CLAIMS, OR COSTS WHATSOEVER, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS. THESE LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. THE AGGREGATE LIABILITY OF COMPANY SHALL BE LIMITED TO THE AMOUNT PAID FOR THE LICENSED SOFTWARE, FOR THE TWELVE MONTHS PRIOR TO THE CLAIM OR IF NO PAYMENTS HAVE BEEN MADE IN TWELVE MONTHS, THE AMOUNT PAID FOR THE SOFTWARE ON THE INITIAL PURCHASE ORDER, IF ANY.
10.2 Customer shall defend Company and its affiliates, directors, officers, employees and agents against any third party claim, demand, or allegation arising out of a breach, or alleged breach of the Indemnifying Party’s representations and warranties under this agreement (“Claim”), and indemnify and hold harmless the Company from any resulting costs, expenses and liabilities (including reasonable attorneys’ fees), including, without limitation, any damages awarded against the Company to the third party making such Claim, by a court of competent jurisdiction, or agreed to in settlement; provided that the Company: (i) notify Customer promptly in writing of such claim, (ii) grants Customer sole control over the defense and settlement thereof, and (iii) reasonably cooperates in response to a Customer’s request for assistance. Customer will have the exclusive right to defend any such Claim and make settlements thereof at its own discretion, provided that the Indemnifying Party will not enter into any settlement that adversely affects the Company without prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned.
11 GENERAL
11.1 Governing Law. This License Agreement is subject to and will be governed by and construed in accordance with the substantive laws in force of the State of Nevada. Unless prohibited by law of an applicable jurisdiction, the courts of the State of Nevada shall have exclusive jurisdiction over all disputes relating to this License Agreement. This License Agreement will not be governed by the conflict of law rules of any jurisdiction.
11.2 Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquakes, labor disputes, industry-wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.
11.3 No Waiver. No failure or delay by Company in exercising its rights or remedies shall operate as a waiver unless made by specific written notice. No single or partial exercise of any right or remedy of Company shall operate as a waiver or preclude any other, or further, exercise of that, or any other right, or remedy.
11.4 Assignment. Neither this License Agreement nor any rights or obligations under these License Agreement shall be assigned by a party without the other’s prior written consent, which will not be unreasonably withheld or delayed. Any attempted assignment shall be void and of no effect. Notwithstanding the foregoing, the parties may assign these License Agreement and any right or obligation under it without the other’s approval, to any affiliates. Notwithstanding any assignment by Customer, Customer shall remain liable for the payment of all amounts due under these License Agreement.
11.5 Severability. In the event that part of or one or more terms of these License Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such part or term shall be null and void and shall be deemed deleted from these License Agreement. All remaining terms of this License Agreement shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph is invoked and, as a result, the value of these License Agreement is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate these License Agreement by written notice with immediate effect to the other.
11.6 Entire Agreement. These License Agreements constitute the entire agreement between the parties concerning the subject matter of this License Agreement and replace any prior oral or written communications between the parties, all of which are excluded. There are no conditions, understandings, agreements, representations or warranties, expressed or implied, that are not specified herein (except where implied by law and exclusion is prohibited). This License Agreement may be modified only by a written document executed by the parties hereto.
11.7 Notices. All notices and requests in connection with this Agreement will be deemed given (a) when personally delivered, (b) when delivered by e-mail with non-automated confirmation of receipt, facsimile or telex, (c) the next business day following delivery to a nationally recognized courier service guaranteeing next- day delivery, or (d) five (5) business days after being placed in the United States mail, postage prepaid, certified or registered, return receipt requested, to the addresses set forth above, or to such other address as the party to receive the notice or request so designates by at least ten ( 10) days prior written notice to the other party.
EXIBIT A
END USER’S LICENSE AGREEMENT
The software that is subject to this End User’s License Agreement (EULA) is licensed, not sold, to the Licensee by Glowing, Inc. (“Company”).
Installing, copying, accessing, or using the Licensed Software constitutes Licensee’s acceptance of, and promise to comply with, all of the terms and conditions of this EULA.
CONTENTS
The “Licensed Software” includes all of the contents of the files, downloads, other media for which this EULA is provided, including:
1. third-party computer information or software that Company has licensed for inclusion in the Licensed Software;
2. fonts; and
(3)upgrades, modified versions, updates, additions, and copies of the Licensed Software, if any (collectively, “Updates”).
TRANSFER
Licensee may not sell, assign, or transfer the Licensed Software or the License granted by this EULA without prior written consent of Company.
USE
The License granted by this EULA is non-exclusive.
PROHIBITED USES
1. Licensee may not modify, adapt, translate, sublicense, rent, lease, or loan all or any portion of the Licensed Software;
2. Licensee may not create any derivative works from all or any portion of the Licensed Software;
3. Licensee may not reverse-engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Licensed Software except: only to the extent expressly permitted by applicable law; after notification to Company; upon payment of a reasonable fee; and execution of a confidentiality agreement to protect the code from disclosure to any third parties;
4. Licensee may not use the Licensed Software in the essential operations, such as those operations that could jeopardize the safety of individuals, of aircraft, ship, nuclear facilities, life- support machines, communication systems, or any other equipment in which the failure of the software could lead to personal injury, death, or environmental damage;
5. Except with approval by Licensor, Licensee may not remove or obscure Company’s copyright or trademark notices, or the copyright and trademark notices of third parties that Company has
included in the Licensed Software;
6. Except with approval by Licensor, Licensee may not use the Licensed Software to host applications for third parties, as part of a facility management, timesharing, service provider, or service bureau arrangement; and
7. Licensee may not use the Licensed Software in any manner not authorized by this EULA.
CONTENT
Licensee may use any images, icons, fonts, shapes, and all other graphic content (collectively, “Content”) included with the Licensed Software, if any, for the exclusive purposes of referring to the Licensed Software for educational or informative purposes so long as the Licensee provides appropriate references to Company and its ownership of the Licensed Software.
Certain portions of the Content may consist of the copyrights, trademarks, service marks, trade names, or other intellectual property of third parties. Company has provided these portions of the Content for Licensees’ convenience in using the Licensed Software, pursuant to authorization of their owners. Except for this limited use, Licensee may not use any third-party intellectual property identified as belonging to others without the owners’ express authorization.
Licensee is solely responsible for Licensee’s use of the Content. Licensee may only use the Content responsibly, in a manner consistent with the exercise of good judgment. If Licensee is having difficulty deciding whether Licensee’s intended use is appropriate, or whether Licensee needs written permission, or whether other legal issues should be considered, Company strongly encourages Licensee to seek competent legal counsel. Company will not assist Licensee in making this determination, nor can Company provide Licensee with legal advice as to intellectual property rights.
If Licensee or Licensee’s attorney determines that Licensee is required by law to obtain written permission to use portions of the Content, Licensee must request permission from recipients. Licensee shall indemnify, hold harmless, and defend Company and Company’s suppliers from all claims, damages, attorneys’ fees, costs, and lawsuits that arise from, or result from,
Licensee’s use or distribution of Content.
CONTENT UPDATES
Company provides updates to the content and documentation of some of its software from time to time. These types of updates are collectively referred to as “Content Updates.” Company reserves the right to designate specified Content Updates as requiring purchase of a separate subscription at any time, and without prior notice to Licensee, except that any such change will only become effective at the earlier of the expiration of the initial period provided for by the applicable software, or the expiration of the term of a separately paid for subscription.
Company reserves the right to update the contents of the EULA in connection with updates to the Software from time to time. Company shall provide notice of any updates and continued use of the updated Software shall consist of acceptance of the terms of the updated EULA. Use of previous versions of the Software will not subject users to the terms of the updated EULA.
SUPPORT
Company is not obligated by this EULA to provide Licensee with any technical support services relating to the License unless stated.
NO WARRANTY ON LICENSED SOFTWARE
Except for as provided for in the License Agreement, the Licensed Software is provided to Licensee “AS IS.” Company’s suppliers, make no warranty as to its use or performance.
COMPANY MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NON- INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, EXCEPT FOR, AND TO THE EXTENT, THAT A WARRANTY MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW IN LICENSEE’S JURISDICTION. COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS, OR (B) ANY BUGS OR FEATURES IN THE LICENSED SOFTWARE OR DUE TO THIRD PARTY TECHNOLOGY.
LIMITATION OF LIABILITY
EXCEPT FOR AS PROVIDED IN THE LICENSE AGREEMENT, IN NO EVENT WILL COMPANY BE LIABLE TO LICENSEE FOR ANY DAMAGES, CLAIMS, OR COSTS
WHATSOEVER, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A REPRESENTATIVE OF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS, OR COSTS, OR FOR ANY CLAIM BY ANY THIRD PARTY. THESE LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE’S JURISDICTION. THE AGGREGATE LIABILITY OF COMPANY SHALL BE LIMITED TO THE AMOUNT PAID FOR THE LICENSED SOFTWARE, FOR THE TWELVE MONTHS PRIOR TO THE CLAIM OR IF NO PAYMENTS HAVE BEEN MADE IN TWELVE MONTHS, THE AMOUNT PAID FOR THE SOFTWARE ON THE INITIAL PURCHASE ORDER, IF ANY.
SURVIVAL OF DISCLAIMERS
The exclusions of warranties and liability limitations shall survive the termination of this EULA, howsoever caused; but this survival shall not imply or create any continued right to use the Licensed Software after termination of this EULA.
GOVERNING LAW
This EULA is subject to, and will be governed by and construed in accordance with the substantive laws in force of the State of Nevada which shall have exclusive jurisdiction over any disputes except in matters of conflict of laws.
INTELLECTUAL PROPERTY OWNERSHIP
The Licensed Software and any authorized copies that Licensee makes are the intellectual property of, and are owned by, Company, and by third parties whose intellectual property has been licensed by Company. The structure, organization, and code of the Licensed Software are the valuable trade secrets and confidential information of Company and such third parties. The Licensed Software is protected by law, including without limitation, United States or international copyright laws, and by international treaty provisions. Except as expressly provided in this EULA, Licensee is not granted any intellectual property rights in the Licensed Software.
RESERVATION OF RIGHTS
Company reserves all rights not expressly granted to Licensee by this EULA. The reservation of rights is limited to Company’s intellectual property rights and to the intellectual property rights of third parties licensed by Company.
COMPLETE AGREEMENT
This EULA in conjunction with the Licensed Software and the License Agreement, supersedes all prior or contemporaneous representations, discussions, undertakings, communications, agreements, arrangements, advertisements, and understandings regulating the Licensed Software.
MODIFICATION
This EULA may only be modified or amended by a writing signed by an authorized officer of Company.
SEVERABILITY
If any provision of this EULA is determined by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect.
WAIVER
No failure or delay by Company in exercising its rights or remedies shall operate as a waiver unless made by specific written notice. No single or partial exercise of any right or remedy of Company shall operate as a waiver or preclude any other, or further, exercise of that, or any other right, or remedy.
PROOF OF COMPLIANCE
Within 30 calendar days after request from Company, or Company’s authorized representative, Licensee will provide full documentation, and certify under penalty of perjury, that Licensee’s use of any and all Licensed Software is in conformity with this EULA.
TERMINATION
If Licensee breaches this EULA, and fails to cure any breach within 30 calendar days after request from Company, Company may terminate this EULA, whereupon all rights granted to Licensee shall immediately cease. Furthermore, upon termination, Licensee shall verify in writing that it has ceased using the Licensed Software and Licensee shall not receive a refund.