AUTOSTAR SOLUTIONS, INC. LEGAL TERMS AND CONDITIONS
1.1 LEGAL TERMS AND CONDITIONS MAY BE UPDATED
These LEGAL TERMS AND CONDITIONS form part of and are incorporated into the SOFTWARE LICENSE AGREEMENT between LICENSOR and LICENSEE. These LEGAL TERMS AND CONDITIONS may be updated for time to time by the LICENSOR at http://autostarsolutions.com/license
These LEGAL TERMS AND CONDITIONS were last updated on February 9, 2015 (“Update Date”).
As used in the Agreement including these LEGAL TERMS AND CONDITIONS and including any Addendum(s) and Exhibit(s), the following definitions shall apply:
1. “Affiliates” means, with respect to a Person, any person that directly or indirectly through one or more intermediaries Controls, is Controlled by, or is under common Control with such Person.
2. “Agreement” shall mean the SOFTWARE LICENSE AGREEMENT entered into between LICENSOR and LICENSEE, including these LEGAL TERMS AND CONDITIONS and including any Addendum(s) and Exhibit(s).
3. “Confidential Information” shall mean any information relating to or disclosed in the course of the Agreement, which is or should be reasonably understood to be confidential or proprietary information of the disclosing party. This information includes but is not limited to all Source Code, Object Code, Licensed Software, Documentation and information related to the use, installation, maintenance, and support of all Object Code, Licensed Software, and Documentation. “Confidential Information” shall not include information (a) already lawfully known to the receiving party prior to the Effective Date as evidenced in a written document, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party.
4. “Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management, activities or policies of any Person, whether through the ownership of voting securities, by contract, employment or otherwise.
5. “Date of Installation” shall mean the first business day when LICENSOR installs and makes available the Licensed Software to the LICENSEE, even as the installation and data conversion activities can consume multiple business days so that LICENSEE is unable to fully operate the system on the Date of Installation.
6. “Documentation” shall mean any instructional, descriptive, or supplemental materials related to the Licensed Software, in human or machine readable form, that is provided by LICENSOR to LICENSEE pursuant to the Agreement.
7. “Hosted System” shall mean a computer system accessed from a remote location by client stations with access to files and/or shared resources of the computer system. Access by the client may be by (1) direct connection to the system through the use of a modem, (2) using a TCP/IP network such as the Internet, or (3) any other method approved by LICENSOR.
8. “Initial Term” shall mean the contracted number of months following the Installation Period. The Initial Term shall begin on the Date of Installation and shall continue as set out in Section 2 of the SOFTWARE LICENSE AGREEMENT.
9. “Installation Period” shall begin on the Effective Date and continue through the Date of Installation of the Licensed Software. The Term of the Agreement includes the Installation Period.
10. “LEGAL TERMS AND CONDITIONS” shall mean this document and any updates thereof, which are incorporated into the Agreement.
11. “Licensed Software” shall mean the machine-readable executable Object Code of any of the LICENSOR’S software products, which the LICENSEE is currently licensing from the LICENSOR. This will also include licenses now or in the future from the LICENSOR and such additional Releases of such software as are supplied by the LICENSOR to LICENSEE from time to time together with its Documentation.
12. “Object Code” shall mean computer programs assembled or compiled in magnetic or electronic binary form, which are readable and usable by machines, but not generally readable by humans without reverse-assembly, reverse- compiling, or reverse engineering.
13. “Payment Processing Technology” means the third-party intellectual property relating to certain credit card transaction processing and payment gateway services integrated into the Licensed Software by the PIM.
14. “Person” means an individual, corporation, partnership, limited partnership, joint venture, unincorporated association, trust, estate, or other incorporated or unincorporated entity.
15. “PIM” means the payment integration module developed by the LICENSOR to integrate certain Licensed Software with the Payment Processing Technology marketed under the name AutoStar PortalPay™ software.
16. “PIM License” has the meaning set out in Section 2 of the AutoStar PortalPay™ ADDENDUM.
17. “PIM Fee” has the meaning set out in Section 6 of the AutoStar PortalPay™ ADDENDUM.
18. “PIM Services” has the meaning set out in Section 13 of these LEGAL TERMS AND CONDITIONS.
19. “Release” shall mean any version of a Licensed Software or any materials which are supplied by LICENSOR at or after the delivery of a Licensed Software, including any additional software provided for the purpose of improving the functions or performance of the Licensed Software, changing the intellectual property contained in the Licensed Software, expanding the capability or ease of operation of the Licensed Software, or for the purpose of fixing errors in program logic, together with Documentation. LICENSOR does not provide Releases or upgrades to any Program(s) not owned or developed by LICENSOR (e.g., Microsoft™ Products, etc.). LICENSOR’S designation of a new release as an Upgrade rather than a Release to an existing version or product shall be conclusive and at LICENSOR’S sole discretion.
20. “Renewal Term” has the meaning set out in Section 2 of the SOFTWARE LICENSING AGREEMENT.
21. “Setup Fee” shall mean the fee or fees paid shall mean the fee due for system setup in accordance with Section 2 of the SOFTWARE LICENSE AGREEMENT.
22. “Software Lock” shall mean acts by LICENSOR to disable the Licensed Software, including the triggering of software features that prevent operation of the Licensed Software.
23. “Software Support” shall mean support and maintenance services for Licensed Software provided for in Section 11 of these LEGAL TERMS AND CONDITIONS.
24. “Supported Products List” shall mean a list of Licensed Software versions, together with associated computer hardware and operating system software platforms, for which the LICENSOR provides Software Support according to Section 6 of the SOFTWARE LICENSING AGREEMENT. The LICENSOR reserves the right not to provide Software Support on hardware and operating system software platforms for which the LICENSOR did not provide such hardware and/or operating system software platforms. The LICENSOR reserves the right to change the Supported Products List without notice.
25. “Term” has the meaning set out in Section 2 of the SOFTWARE LICENSING AGREEMENT.
26. “Use” shall mean to load, execute, employ, utilize, store, or display the Licensed Software for internal business purposes, and not for redistribution, remarketing, or third party service use. Use is deemed to occur where any such process occurs and at any computer, computer terminal, or workstation that initiates or is activated by any such process.
27. “Usage Fee” shall mean the fee due for Software Support in accordance with Section 2 of the SOFTWARE LICENSE AGREEMENT.
28. “Warranty Period” has the meaning set out in Section 4 of the SOFTWARE LICENSE AGREEMENT.
3.1 TERM, TERMINATION, AND RIGHTS UPON TERMINATION
1. The Agreement shall not become effective until both a duly authorized representative of LICENSEE, and a duly authorized officer of LICENSOR at LICENSOR’S headquarters has approved and signed this Agreement. This Agreement shall remain in full force and effect throughout the Term of this Agreement and cannot be terminated by the LICENSEE during the Initial or Renewal Term(s) of this Agreement, although either party can specify non- renewal as described in Section 2 of the SOFTWARE LICENSE AGREEMENT.
2. It is agreed that the LICENSOR may terminate this Agreement immediately upon written notice to the LICENSEE in the event that the LICENSEE: (a) becomes insolvent or makes an assignment for the benefit of creditors; (b) files or has filed against it any petition under any Title of the United States Code or under any applicable bankruptcy, insolvency, reorganization or similar debtor relief law; or (c) requests or suffers the appointment of a trustee or receiver, or the entry of an attachment or execution as to a substantial part of its business or assets.
3. The LICENSOR may terminate the Agreement in the event LICENSEE: (a) fails to make when due any Setup Fee or Monthly Software Usage Fee payment or other payment required under this Agreement; (b) commits a material breach of any of its obligations concerning scope of use or the protection of the Licensed Software, Documentation, intellectual property of LICENSOR, or LICENSOR’S Confidential Information; or (c) materially breaches any other obligations under any provision of this Agreement, which breach is not remedied within thirty (30) days after notice thereof by LICENSOR to LICENSEE. In LICENSOR’S sole discretion, upon the occurrence of any of the foregoing conditions, LICENSOR may terminate the Agreement as to any or all Licensed Software covered by the Agreement.
4. Upon termination of the Agreement, LICENSEE’S License to use the Licensed Software shall terminate, and LICENSEE shall immediately destroy all copies of the Licensed Software and Documentation, and any other Confidential Information relating to the Licensed Software and Documentation. LICENSEE shall remove and erase completely any copies of the Licensed Software installed or recorded on any hard disk or other storage medium. LICENSEE shall promptly certify to LICENSOR in writing that it has complied with this requirement.
5. Upon termination of the Agreement, LICENSEE shall pay to LICENSOR all fees due through the expiration date of the Term. Unless otherwise specified herein or otherwise agreed to in writing, all fees collected or accrued prior to the date of termination shall be retained by LICENSOR without any pro rata refund to LICENSEE. If LICENSEE fails to pay LICENSOR any fees due through the expiration date of the Term upon termination, then LICENSOR may continue to possess and restrict access of LICENSEE to any and all LICENSEE files, including but not limited to client data files and or information, until payment is made in full by LICENSEE to LICENSOR. Only upon termination of this Agreement and after LICENSEE has made to LICENSOR all payments as required herein, LICENSOR shall return LICENSEE’s client data files in the format as used by the LICENSED SOFTWARE.
6. The termination of this Agreement shall not extinguish any rights or obligations of the parties relating to protection of Confidential Information under Section 6 of these LEGAL TERMS AND CONDITIONS.
4.1 PAYMENT OF FEES
1. If the LICENSEE grants LICENSOR the authority to automatically initiate ACH debit entries to the LICENSEE’S account to pay any amounts which are due and owing under this Agreement, then LICENSOR shall have the right to initiate ACH debit entries to the account on the dates that any obligations under this Agreement are due and owing, and to take possession of funds in the Account in the amount of such obligations for the application against such obligations. ACH debit shall be initiated approximately seven (7) business days prior to the LICENSEE’S due date.
2. If LICENSEE pays via a credit card transaction, then Credit card payments will be initiated approximately seven (7) business days prior to the LICENSEE’S due date.
3. The LICENSEE may not withhold or “set off” any amounts due hereunder. If the LICENSOR does not receive the full Software Usage Fee from the LICENSEE by the specified due date, the LICENSOR will consider the LICENSEE to be in material default of the Agreement. The LICENSOR shall have the right to refuse all Software Support and enable a Software Lock to not allow the LICENSEE access to or use of Licensed Software.
4. Any non-sufficient funds (NSF) check will be assessed fee of $35.00 per check transaction.
5. LICENSOR does not provide refunds for Setup Fees, hardware, or Monthly Software Support fees under any circumstances.
6. The LICENSOR shall retain all rights and remedies, at law or in equity, against the LICENSEE for any and all amounts due and owing. This includes all reasonable cost of collection, including reasonable attorney fees. In addition, any amount owed to the LICENSOR shall be charged Late Fees as defined by the Agreement.
5.1 ACKNOWLEDGMENT OF OWNERSHIP IN INTELLECTUAL PROPERTY RIGHTS
1. LICENSEE acknowledges that, as between LICENSOR and LICENSEE, LICENSOR is the owner of the Licensed Software and all associated intellectual property rights. All rights in the Licensed Software including but not limited to Confidential Information, trade secrets, trademarks, service marks, patents, and copyrights are, shall be and will remain the property of LICENSOR or any third party from whom LICENSOR has licensed software or technology. All copies of the Licensed Software delivered to LICENSEE or made by LICENSEE remain the sole property of LICENSOR.
2. Developed Products and Assignment. LICENSOR retains all rights in any modifications, improvements, custom forms, reports, queries, or derivatives works of the Licensed Software (“Developed Products”), whether LICENSOR or LICENSEE conceives, implements, fixes in a tangible medium, or reduces to practice the Developed Products. The parties agree that any and all Developed Products of the Licensed Software, including those contributed to any report repository and/or dealer forum, shall be deemed works made for hire for the benefit of LICENSOR. The LICENSEE may only use the Developed Products for the Term of this Agreement.
3. LICENSOR acknowledges that, as between LICENSOR and LICENSEE, LICENSEE is the owner of the LICENSEE’S client data files, including converted data files. LICENSEE grants LICENSOR a non-exclusive, non-transferable, irrevocable, perpetual license to Use, access, add to, archive, augment, convert, copy, delete from, modify, store, and update LICENSEE’s client data files, including through the Licensed Software, for LICENSEE’s purposes. Notwithstanding, LICENSOR may make and retain copies of LICENSEE’s client data files for archival and business record purposes indefinitely.
6.1 CONFIDENTIAL INFORMATION
1. Each party receiving Confidential Information from the other party hereby agrees that it shall not use, commercialize or disclose such Confidential Information to any person or entity, except to its own employees having a “need to know” and who are themselves bound by an executed confidentiality agreement and/or nondisclosure restrictions in a form acceptable to the owner of such information. Each party shall use at least the same degree of care in safeguarding the other party’s Confidential Information as they would use in safeguarding its own Confidential Information.
2. Any Client file or other information provided by LICENSEE to LICENSOR for use with the services and identified in writing as Confidential shall remain the exclusive property of LICENSEE. LICENSOR will provide commercially reasonable security provisions to secure the information contained in LICENSEE files, and to ensure that access to the LICENSEE Files are available only to LICENSEE. LICENSOR reserves the right to issue and change regulations and procedures from time-to-time to improve file security. LICENSOR will take commercially reasonable precautions to prevent the loss of or alteration to the LICENSEE Files retained by LICENSOR, but LICENSOR cannot guarantee against any such loss or alteration.
3. LICENSEE may not alter any proprietary markings on the Licensed Software, including copyright, trademark, trade secret, and patent legends.
4. LICENSEE may not decompile, disassemble, or reverse engineer the Licensed Software or otherwise attempt to create or generate any source code, Object Code, or software version of any part of the Licensed Software, except as permitted by applicable law, and to the extent that LICENSOR is not permitted by such applicable law to exclude or limit such rights. Information relating to the Licensed Software to enable interaction with other third party software may be available from LICENSOR upon written request.
5. The terms of this section, Confidential Information, shall survive the termination of the Agreement for five (5) years.
7.1 OBLIGATION FOR DATA PROTECTION
1. LICENSOR will perform automatic daily incremental backups, and weekly full backups. In order for backups to be completed by LICENSOR, LICENSEE must completely log off all sessions to completely remove locks placed on all open files. LICENSOR will not be responsible for data not being backed up if sessions are still live during the backup process. Currently, LICENSOR retains fourteen (14) days of backups.
8.1 INSTALLATION OBLIGATIONS
1. Data Conversion. In the event the LICENSOR is contracted by the LICENSEE to perform a Data Conversion, the conversion of a LICENSEE’S data files from LICENSEE’S current system to the Licensed Software shall be carried out by the LICENSOR at a charge determined by LICENSOR’S current fee schedule for such work payable upon completion of the conversion. LICENSEE shall provide all information reasonably required for conversion. LICENSOR shall use commercially reasonable efforts in converting the data; however, all converted data files shall be supplied “AS IS” AND LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO CONVERTED DATA FILES. It shall be LICENSEE’S obligation to test the converted data files to verify the accuracy of the converted data. If LICENSEE does not return back to LICENSOR the signed CONVERSION SIGN-OFF SHEET within 30 (thirty) days after the conversion, LICENSEE deems the conversion as acceptable.
2. LICENSOR shall provide LICENSEE one (1) copy of applicable Documentation during the Term. Upon request, at LICENSOR’S sole discretion, additional copies of the Documentation may be supplied to LICENSEE at LICENSOR’S then current price. LICENSEE may not, without the prior written consent of LICENSOR, copy or otherwise reproduce in whole or in part any Documentation.
1. Upon delivery and installation, the LICENSOR can provide the LICENSEE with Training Services if contracted to do so by the LICENSEE. Training Services can be provided on the terms and at prices stated in LICENSOR’s then current schedule of fees for training services. Training Services must be paid by the LICENSEE on or before the completion of each Training Session.
10.1 SOFTWARE SUPPORT
1. LICENSOR will provide Software Support throughout the Term of the Agreement. Software Support shall consist of the services as described in Section 11 of these LEGAL TERMS AND CONDITIONS, which may change from time to time.
2. LICENSOR’S current policy is to support the most current Release of the Licensed Software, and to cease maintenance of all earlier Releases of Licensed Software. However, LICENSOR reserves the right to change this policy in its sole discretion and reserves the right to discontinue support of Licensed Software or any Release of Licensed Software for hardware and/or operating systems that are used by one or more licensees that LICENSOR deems inadequate to justify the cost of continuing support.
3. LICENSEE agrees that in order to receive Software Support for the Licensed Software, LICENSEE must use a currently supported version of the Licensed Software, as listed in LICENSOR’S Supported Products List, which is available from LICENSOR. LICENSEE acknowledges and agrees that it may be necessary from time to time at LICENSEE’S expense to update LICENSEE’S computer hardware and/or operating system to achieve compatibility with the then currently supported Release of Licensed Software.
4. LICENSOR will provide all support alerts and update notices by e-mail or by facsimile machine. In addition, LICENSEE should check the LICENSOR website periodically for additional notices or support alerts.
11.1 SOFTWARE SUPPORT SERVICES PROVIDED
Software Support shall consist of the following services:
1. LICENSOR shall take commercially reasonable efforts to assist LICENSEE in diagnosing errors and malfunctions which occur when the Licensed Software is used by LICENSEE. LICENSOR is not responsible for errors or malfunctions caused by any hardware or any third party software or operating system.
2. LICENSOR shall take commercially reasonable efforts to provide support services to LICENSEE to attempt to correct diagnosed errors and malfunctions. LICENSOR shall take commercially reasonable efforts to provide Releases that implement corrections and LICENSOR shall take commercially reasonable efforts to assist LICENSEE in using the Licensed Software in a way that can avoid diagnosed errors, malfunctions and defects.
3. LICENSOR shall take commercially reasonable efforts to provide support services to LICENSEE to attempt to keep the Licensed Software compatible with the current LICENSOR approved version of the operating system and computer hardware.
4. LICENSOR may provide LICENSEE with new Releases for the Licensed Software licensed to LICENSEE. Releases may include new features and functions added to the Licensed Software and/or may provide corrections to errors or malfunctions. The timing and content of Releases will be at the sole discretion of LICENSOR.
5. LICENSOR may perform remote diagnostics as LICENSOR deems appropriate based on reported errors or malfunctions. LICENSOR shall use its commercially reasonable efforts to respond to LICENSEE’S notification of material errors on the same day as notification is given to LICENSOR or on the following business day.
6. LICENSOR shall provide commercially reasonable support hours. Currently, “Regular Service Hours” are between the hours of 8:00 a.m. and 6:00 p.m., Central Time, Monday through Friday, excluding Holidays. “Emergency Service Hours” are also available for emergency technical support in response to a detailed voice message on Monday through Friday from 6 p.m. to 9 p.m., Saturdays from 9 a.m. to 5 p.m., and Sundays from 1 p.m. to 5 p.m. All time is Central Time.
7. LICENSOR shall take commercially reasonable efforts regarding scheduled system maintenance and other emergency and non-emergency system down time, including providing notice when applicable. LICENSEE acknowledges that access to the LICENSED SOFTWARE can be unavailable or interrupted during such system down time.
8. LICENSOR will provide commercially reasonable technical support by telephone concerning use of the Licensed Software and diagnosis of problems or errors. No on-site visits will be provided under this Agreement. However, the parties hereto may agree to such on-site consultation and/or service calls in a separate written agreement or written invoice for an additional charge. LICENSEE shall also reimburse LICENSOR for its cost of travel (air and cab fare, lodging, auto rental or local mileage, per diem, etc.) and out-of-pocket costs for photocopying, overnight courier, long distance telephone and the like, which shall be invoiced at cost plus ten (10%) percent.
9. LICENSOR shall provide LICENSEE with an 800 telephone number(s) and/or other contact information in order to allow LICENSEE to accomplish the required notification and request information. Modem and/or fax telephone company charges are at the expense of the LICENSEE. In no event shall LICENSOR reimburse the LICENSEE for any telephone and/or long distance costs associated with the Software Support.
10. Software Support does not entitle LICENSEE to Software Modules available from LICENSOR, which are designed to increase the number of terminals, add additional applications, or to cover business functions that are not included in the Licensed Software currently licensed to LICENSEE. Such Software Modules may be licensed from LICENSOR.
11. LICENSOR will take commercially reasonable efforts to provide Support for any hardware and/or networks that the LICENSEE purchased from LICENSOR.
12. Pre-Printed Forms Programming. Any new LICENSEE of LICENSOR will be charged a programming fee on any State forms. State forms are defined as forms or documents provided directly by a government agency (i.e., The Department of Motor Vehicles or the Department of Revenue of the State in which the dealer resides, etc.). However, LICENSEE will be entitled to receive forms programming on LICENSEE supplied custom forms with a limit of thirty (30) total forms (that may include State Forms). All forms must be received by the LICENSOR no later than 30-days from the date of installation of the Licensed Software. Once that period has passed, any custom programming, including modifications and additional forms, will be billed at LICENSOR’s then current rates.
13. Plain-Paper Laser Forms. Any new LICENSEE of LICENSOR will be charged a programming on any State forms available as plain paper documents. However, LICENSEE will be entitled to receive forms programming on LICENSEE supplied custom forms with a limit of thirty (30) total forms (that may include State Forms). In addition, LICENSOR can provide Custom Forms on Plain Paper at LICENSOR’S current rates. LICENSOR can refuse to program Plain Paper Forms not provided by LICENSOR. LICENSOR’S designation of a State form rather than a Custom Form shall be at sole discretion of the LICENSOR. All forms must be received by the LICENSOR no later than thirty (30) days from the date of installation of the Licensed Software. Once that period has passed, any custom programming, including modifications and additional forms, will be billed at LICENSOR’s then current rates. Additional costs may apply for usage of such documents in addition to programming fees for developing such documents.
14. LICENSOR represents that all telephone support services rendered hereunder shall be performed with commercially reasonable diligence and with LICENSOR’S “commercially reasonable efforts”. However, LICENSOR does not warrant either expressly or by implication the quality, conformity to specifications, reliability or functionality of any Releases provided hereunder.
12.1 CONDITIONS OF SOFTWARE SUPPORT.
The following terms and conditions shall apply at all times while Software Support is in effect:
1. LICENSEE shall supply high-speed Internet for and shall supply LICENSOR with access to the computer hardware and software systems. Specification for suitable communications hardware and software are available from LICENSOR on request.
2. LICENSEE shall designate an individual who shall be the System Manager. The System Manager must have a working knowledge of the Licensed Software and the system hardware and will be responsible for the computer systems, user access, and for recording and reporting errors and malfunctions.
3. Unless otherwise stated in writing, LICENSEE represents and warrants that on the Effective Date of this Agreement, the LICENSEE’S existing software and hardware is without defect or problem and is operable. Furthermore, LICENSEE represents that the existing software and hardware was installed in accordance with its manufacturer’s directions and specifications.
4. Not withstanding any other provision of this Agreement, this Agreement does not extend to, or cover, any software or hardware not provided by LICENSOR.
13.1 PAYMENT INTEGRATION MODULE SERVICES.
The following terms and conditions shall apply at all times while the AutoStar PortalPay™ ADDENDUM is in effect:
1. LICENSOR shall take commercially reasonable efforts to assist Licensee in diagnosing errors and malfunctions which occur when the PIM is used by LICENSEE. LICENSOR is not responsible for errors or malfunctions caused by any hardware or any third party software or operating system.
2. LICENSOR shall take commercially reasonable efforts to provide support services to LICENSEE to attempt to correct diagnosed errors and malfunctions. LICENSOR shall take commercially reasonable efforts to provide Releases that implement corrections and LICENSOR shall take commercially reasonable efforts to assist LICENSEE in using the PIM in a way that can avoid diagnosed errors, malfunctions and defects.
3. LICENSOR shall take commercially reasonable efforts to provide support services to LICENSEE to attempt to keep the PIM compatible with the current LICENSOR approved version of the operating system and computer hardware.
4. LICENSOR may provide LICENSEE with new Releases for the PIM licensed to LICENSEE. Releases may include new features and functions added to the PIM and/or may provide corrections to errors or malfunctions. The timing and content of Releases will be at the sole discretion of LICENSOR. If LICENSOR decides to provide a new Release of the PIM to the LICENSEE, then LICENSOR will affect delivery of each Release to LICENSEE by internet or by U.S. Mail. Should the LICENSEE require a Release to be shipped by means other than the internet or U.S. Mail, then the cost will be at LICENSOR’s expense. The LICENSEE will be responsible for installing each Release and the PIM shall be deemed accepted upon installation.
1. LICENSEE may not give, sell, loan, pledge, assign, sub-license, or otherwise transfer or share LICENSEE’S rights or delegate its obligations under this Agreement without the prior written consent of LICENSOR, which consent shall not be unreasonably withheld. Any attempted gift, sale, loan, pledge, assignment, sub-license or other transfer in violation hereof shall be void and of no force or effect. LICENSOR may assign its rights and delegate its duties hereunder at any time without the consent of LICENSEE.
15.1 GENERAL PROVISIONS
1. Audit Right. During normal business hours and at any time during which the Licensed Software is being utilized, LICENSOR, or its authorized representatives or licensors, shall have the right, without prior notice, to audit and inspect LICENSEE’S utilization of the Licensed Software, in order to verify compliance with the terms and conditions of this Agreement. Should the accounting by LICENSOR discover a discrepancy in payment of fees due to LICENSOR under this Agreement greater than four percent (4%), however, LICENSEE shall be responsible and immediately pay for all costs associated with any such accounting.
2. Collection Expenses. LICENSEE agrees to reimburse LICENSOR for any and all collection related expenses incurred by LICENSOR in collection of any amounts owed to LICENSOR pursuant to this Agreement, without limitation, Monthly Software Usage Fee and taxes thereon.
3. Taxes. LICENSEE shall pay, in addition to the other amounts payable under this Agreement, all local, state and federal excise, sales, use, personal property, gross receipts and similar taxes (excluding taxes imposed on or measured by LICENSOR’S net income) levied or imposed by reason of the transactions under this Agreement. LICENSEE shall, upon demand, pay to LICENSOR an amount equal to any such tax(s) actually paid or required to be collected or paid by LICENSOR.
4. Required Consents. LICENSEE warrants that it has obtained lawful permission to use all hardware and third- party software required in order for the Program to be used on LICENSEE’S computer system.
5. Public Reference. LICENSEE consents to the public use of its name as a LICENSEE of LICENSOR.
6. Software Lock. LICENSEE consents to acts by LICENSOR to disable the Licensed Software (including the triggering of software features that prevent operation of the Licensed Software (“Software Lock”)) in the event that LICENSEE either (1) fails to pay the Setup Fee, any Monthly Software Usage Fee, or other fee for the Licensed Software; or (2) uses or transfers the Licensed Software in breach of this Agreement. If Software Lock is enabled by LICENSOR because of failure of LICENSEE to pay any fees due to LICENSOR, then LICENSOR may consider a termination event to have occurred and LICENSOR may exercise LICENSOR’S rights under Section 3.5 of these LEGAL TERMS AND CONDITIONS until payment is made in full.
7. No Waiver. The failure of either party to exercise any right or the waiver by either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other term of the Agreement.
8. Notice. Any notices, demands, or other communications sent hereunder shall be in writing and shall be: delivered in person; mailed by registered or certified mail, return receipt requested, postage prepaid; couriered overnight signed return receipt required; or sent by telecopy to the party to receive the notice at the applicable address set out above, or at such other address as may be designated in writing by the receiving party. All such notices shall be effective upon receipt.
9. Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the control of such party (“Force Majeure”) provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay. In the event of such Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure but not in excess of three (3) months.
10. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter hereof and supersedes any prior oral or written promises or agreements. There are no promises, covenants, or undertakings other than those expressly set forth in this Agreement.
11. Jointly Drafted. Both LICENSEE and LICENSOR have had the opportunity to have the Agreement reviewed by its respective legal counsel, and negotiate each of the terms and conditions of this agreement. Furthermore, except as provided herein, this Agreement cannot be modified except by a written Addendum signed by both LICENSEE and LICENSOR or by an update to the Legal Terms and Conditions by LICENSOR.
12. Exhibits and Addendum. The Legal Terms and Conditions, Exhibits and Addendum referred to in the Agreement are incorporated herein to the same extent as if set forth in full in the Agreement. In the event of any inconsistency between any Exhibit or Addendum and the main body of this Agreement, the terms and conditions of the main body of the Agreement shall prevail unless otherwise expressly provided to the contrary in any such Exhibit.
13. Multiple Counterparts. This Agreement may be executed in several counterparts, all of which taken together shall constitute one single Agreement between the parties.
14. Execution by Facsimile. Execution and delivery of a facsimile transmission of this Agreement shall constitute, for the purposes of this Agreement, delivery of an executed original and shall be binding upon the party or parties whose signatures appear on the transmitted copy. Any party so executing this Agreement hereby undertakes to originally-execute and deliver to the other party a copy of this Agreement as soon as possible after execution by facsimile.
15. Equitable Remedies. The parties agree that monetary damages alone will not be an adequate remedy for any breach or threatened breach of any obligation hereunder by LICENSEE involving intellectual property, Confidential Information or use of the Licensed Software beyond the scope of the License granted by this Agreement. The parties therefore agree that in addition to any other remedies available hereunder, by law or otherwise, LICENSOR and any third party from whom LICENSOR has licensed software or technology shall have the right to seek an injunction, specific performance, or other equitable relief to prevent the continued breach of the LICENSEE’s obligations under this Agreement.
16. Costs and Attorneys Fees. In any legal action or arbitration proceeding brought by LICENSOR on account of LICENSEE’S breach, LICENSEE shall be liable for all of LICENSOR’S cost of litigation or arbitration, including reasonable attorneys’ fees, should LICENSOR prevail. In any other legal action or arbitration proceeding brought on account of a breach, the prevailing party shall recover from the other party all costs of litigation or arbitration, including reasonable attorneys’ fees.
17. Choice of Law. The Agreement shall be construed, performed, and enforced in accordance with the laws of the State of Texas without giving effect to conflict of law provisions.
18. Exclusive Jurisdiction and Venue. Any cause or action arising out of or related to this Agreement may only be brought in a court of applicable jurisdiction in Fort Worth, Texas, and the parties hereby submit to the jurisdiction and venue of such courts.
19. Nonsolicitation. During the Term and for a period of one (1) year thereafter, the LICENSEE agrees not to hire, solicit, nor attempt to solicit, the services of any employee or subcontractor of LICENSOR without the prior written consent of the LICENSOR unless the LICENSOR has ceased doing business. Violation of this provision shall entitle the LICENSOR to assert liquidated damages against the LICENSEE equal to one hundred fifty (150) percent of the solicited person’s annual compensation, plus attorney’s fees, court costs, and all other available legal and equitable damages.
20. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, it shall not affect the validity, legality or enforceability of the remaining provisions.
21. Headings. Headings are for reference purposes only and have no substantive effect.
22. Independent Contractors. Each party and its people are independent contractors in relation to the other party with respect to all matters arising under this Agreement.
16.1 Third Party Account Setup Policies
1. During the term of this Software License Agreement, LICENSOR may provide software integrations with many third party companies that offer products and services which LICENSEE may desire to utilize. If LICENSEE wishes to use these third party services, the terms of such relationship are not subject to this agreement and will be covered in a separate agreement between such third party and LICENSEE and LICENSOR makes no warranty or respresentation regarding the third party or the product or services it offers. LICENSEE should conduct its own due diligence prior to entering into such relationship. LICENSEE acknowledges that LICENSOR may receive compensation from such third party for the integration and its ongoing support.