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appzero License
ATTENTION: THIS IS A LICENSE, NOT A SALE. THIS SOFTWARE IS PROVIDED UNDER THE FOLLOWING AGREEMENT THAT SPECIFIES WHAT YOU MAY DO WITH THE SOFTWARE AND CONTAINS LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES. IF YOU OBTAINED THIS SOFTWARE IN THE UNITED STATES, "APPZERO" SHALL MEAN APPZERO SOFTWARE, INC. IF YOU OBTAINED THIS SOFTWARE OUTSIDE OF THE UNITED STATES, "APPZERO" SHALL MEAN APPZERO SOFTWARE CORP. "AFFILIATES" OF APPZERO SHALL MEAN ALL CORPORATIONS OR OTHER ENTITIES CONTROLLED DIRECTLY OR INDIRECTLY BY APPZERO CORP.
appzero Term License
IMPORTANT: BEFORE DOWNLOADING, INSTALLING, OR USING THIS SOFTWARE, PLEASE CAREFULLY READ THIS AGREEMENT WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU ARE ACQUIRING A LIMITED LICENSE TO USE THE SOFTWARE. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT PLEASE DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE AND PROMPTLY (I) RETURN OR DESTROY THE SOFTWARE, OR, (II) IF YOU PAID A LICENSE FEE FOR THE SOFTWARE, RETURN THE SOFTWARE UNUSED TO APPZERO OR THE DISTRIBUTOR FROM WHOM YOU RECEIVED THE SOFTWARE WITHIN THIRTY (30) DAYS OF YOUR RECEIPT OF THE SOFTWARE FOR A REFUND. IF YOU DOWNLOAD, INSTALL, OR USE THE SOFTWARE, YOU WILL BE ACCEPTING THIS AGREEMENT, AND YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS. THIS SOFTWARE IS ALSO PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS. IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
1.0 GENERAL TERMS
1.1 In addition to the other terms defined in this Agreement the following terms shall have the following meanings:
(i) "Affiliate" of a party means any corporation or other legal entity that such party directly or indirectly controls, is controlled by, or is under common control with. The term "control" means the possession, direct or indirect, of the power to direct or cause the direction of management and policies, whether through the ownership of voting shares or by contract;
(ii) "Customer" or "You" means the business entity to which a license is granted by AppZero for the use of the Software pursuant to an Order Agreement;
(iii) "Effective Date" means the earliest of the date on which: the Software is first installed or otherwise accessed by Customer; Customer accepts a quotation, shipping, delivery or download document from AppZero; and/or Customer issues a purchase order to acquire a license to use the Software;
(iv) "Free Software" means software programs that are distributed to Customer and licensed under the GNU General Public License or other free software licenses which, among other rights, permit the user to copy, modify and redistribute certain programs, or portions thereof, and have access to the source code for such programs;
(v) "Instance" means an application process running within an AppZero virtual application appliance on a server in a data center or in a hosted or cloud environment;
(vi) "License Term" means that period of time, as specified in an Order Agreement, for which Customer has paid the applicable right-to-use fees for the Software;
(vii) "Order Agreement" means any quotation or other shipping, delivery or download document provided to Customer by AppZero or one of AppZero's Affiliates or Distributors that sets forth the type of license being granted to Customer, any Support and/or Services to be provided to Customer, and/or the pricing terms for the forgoing, and/or any other information related to the circumstances under which Customer is being provided with access to the Software, Support and/or Services;
(viii) "Related Documentation" means user manuals and documentation for the Software, in hard copy or electronic format. Unless otherwise stated, the word "Software" includes "Related Documentation";
(ix) "Services" means the consulting, implementation, training, education or other services to be provided by AppZero to Customer or the development of Works to be done by AppZero for Customers, all as described in a Statement of Work;
(x) "Software" means the AppZero binary and/or bytecode software program and any third-party content included with that program, excluding the Third-Party Software, that (a) is made available to Customer for download after acceptance of this Agreement, (b) is packaged with this Agreement, or (c) embeds this Agreement, and which binary and/or bytecode software program includes the storage media, if any, containing the software program;
(xi) "Statement of Work" or "SOW" means a statement of work for Services and/or Works that is executed by the parties;
(xii) "Support" means AppZero's technical support program for the Software as described AppZero's Support Guide;
(xiii) "Support Guide" has the meaning ascribed to that term in Subsection 3.1;
(xiv) "Third-Party Software" means third-party software embedded in or distributed with the Software, which AppZero redistributes pursuant to such third parties' distribution and/or license agreements and/or permissions; and
(xv) "Works" has the meaning ascribed to that term in Subsection 3.4.
1.2 Customer acknowledges and agrees that the terms set forth in any Order Agreement, including, but not limited to, the licensing and pricing terms, are AppZero's Confidential Information, and Customer may not disclose such terms to any third party without the prior written consent of AppZero.
2.0 SOFTWARE LICENSE
2.1 Commercial License Grant.
If the Order Agreement provided to Customer in respect to the Software indicates that a commercial license is being granted to Customer for the Software identified in that Order Agreement, then subject to all of the terms and conditions of this Agreement and payment of the applicable fees, AppZero grants to Customer a non-exclusive, non-transferable (except as otherwise provided herein) license for the License Term to use the Software described in such Order Agreement for the number of Instances specified in such Order Agreement in the jurisdiction corresponding to the "ship to" address. Each copy of the Software and any upgrade or new release of the Software provided to Customer is subject to the provisions of this Agreement. AppZero will make available for download or deliver to Customer a master copy for the current version of each item of Software from which Customer may copy the Software solely to the extent necessary to exercise the license rights granted under this Agreement.
2.2 Evaluation License Grant.
If the Order Agreement provided to Customer in respect to the Software indicates that an evaluation license is being granted to Customer for the Software identified in that Order Agreement, then subject to all of the terms and conditions of this Agreement, AppZero grants to Customer a limited, royalty-free, non-exclusive, non-transferable license to use the Software for the period of time set forth in the Order Agreement (the "Evaluation Period") solely for the purpose of testing and evaluating the Software to determine if Customer wishes to obtain a commercial license for the Software. If an Order Agreement does not indicate whether the Software is being licensed under a commercial license or an evaluation license, then the Order Agreement will be deemed to be indicating that the Software is being licensed under an evaluation license. If the Evaluation Period is not specified in then Order Agreement, then the Evaluation Period shall be deemed to be a period of thirty (30) days from the date of delivery or download of the Software to Customer.
2.3 Third-Party Software License Rights.
If a separate license agreement pertaining to an item of Third-Party Software is: delivered to Customer with the Software; included on the Software media or in the Software download package; referenced in any material that is provided with the Software; or distributed to Customer with a new release of the Software, then such separate license agreement shall govern Customer's the use of that item or version of Third-Party Software. Customer's rights in respect to any Third-Party Software, third-party data, third-party software or other third-party content provided with the Software shall be limited to those rights necessary to operate the Software as permitted by this Agreement. No other rights in the Software or Third-Party Software are granted to Customer.
2.4 Terms Applicable to All Software Licenses.
Customer's use of the Software shall be limited to the hardware (computers, CPUs or servers), the number of copies, users or Instances, and such other restrictions, as are set forth in an Order Agreement, except that one (1) copy may be made for archival or back-up purposes only. Customer shall be responsible for installing the Software and for copying and installing any upgrades or new releases of the Software. Customer may purchase additional copies of Related Documentation at prevailing AppZero prices. Customer shall not remove or alter any copyright, trademark and/or proprietary notices marked on any part of the Software or Related Documentation and shall reproduce all such notices on all authorized copies of the Software and Related Documentation.
2.5 Restrictions.
Except as otherwise expressly provided in an Order Agreement, Customer shall use the Software only for its own internal data processing purposes, and Customer shall not sublicense, distribute or otherwise make the Software available to any third party (including, without limitation, any contractor, franchisee, agent or dealer) without first obtaining the written agreement of (a) AppZero to that use, and (b) such third party to comply with this Agreement. Customer further agrees not to (a) rent, lease, sell, sublicense, assign, or otherwise transfer the Software to anyone else; (b) directly or indirectly use the Software or any information about the Software in the development of any software that is competitive with the Software, or (c) use the Software to provide any services to anyone or use the Software to operate or as a part of a time-sharing service, outsourcing service, service bureau, application service provider or managed service provider offering. If Customer is being granted an evaluation license, then in addition to the foregoing restrictions, Customer further agrees not to use the Software in a business production mode or a non-lab environment.
2.6 Affiliate Rights.
If Customer has been granted a commercial license for the Software itemized in an Order Document, then Customer may distribute or make that Software available to any Affiliates, within the jurisdiction corresponding to the "ship to" address in the Order Agreement, provided that additional copies/users/Instances of the Software for use by such Affiliates have been licensed pursuant to (a) an Order Agreement entered into by Customer on behalf of the Affiliates named in such Order Agreement (for which the Customer will be jointly and severally liable); or (b) a separate Order Agreement entered into between each such Affiliate and AppZero.
3.0 SUPPORT & SERVICES
3.1 If Customer has been granted a commercial license for the Software itemized in an Order Document, then, as part of the license fees for the Software, AppZero will provide the level of Support for that Software set forth in the Order Agreement in accordance with the prevailing AppZero Support Guide during the License Term. The Support Guide is a document issued by AppZero describing Support options and procedures and may be amended from time to time by AppZero. Any changes to the Support Guide shall become effective upon sixty (60) days notice to Customer. Customer shall designate two (2) individuals as authorized contacts for all support calls from Customer which shall be placed with the AppZero Support Center. Customer shall provide AppZero with the names of the individuals designated as support contacts within thirty (30) days from the Effective Date. Customer shall have the right to change from time-to-time the individuals designated as support contacts provided Customer does not have more than the designated number of individuals authorized to make support inquiries to AppZero at any one time. Support will commence on delivery of the Software to Customer.
3.2 If Customer has been granted an evaluation license for the Software itemized in an Order Document, then AppZero may provide an updated version of that Software, but is not obligated to correct errors or omissions in that Software. Although AppZero may from time to time provide technical support, Customer understands and agrees that AppZero has not, and does not thereby commit to any level of effort or availability.
3.3 AppZero will perform Services, if any, described in an Order Agreement. Customer agrees to be bound by the terms of any ensuing Statement of Work document in respect of Services which has been completed and signed by both parties before work begins. AppZero may assign the performance of any Services to any contractor. AppZero does not guarantee any estimates but will notify Customer as soon as practicable if an estimate will be exceeded. Customer may cancel any Service by providing ten (10) days written notice to AppZero. Customer will pay for Services performed before termination and will be liable to pay for Services cancelled that were scheduled inside such ten (10) day period. Reasonable travel and living expenses of AppZero personnel shall be billed separately and are not included in the fee set forth in the Order Agreement. A Business Day is eight working hours during a single day per Services specialist. Services are provided in Business Day intervals and each Services specialist day will be calculated at a minimum of one Business Day.
3.4 AppZero retains all right, title and interest (including all intellectual property rights) in and to any software, documentation or other works provided or developed as a result of performing Services ("Works"). AppZero grants Customer a time-limited, non-exclusive, non-transferable license during the License Term to use the Works solely for Customer's internal purposes and not to sublicense, distribute or make available to third parties.
3.5 For a period ending six (6) months after the expiry of the License Term neither party will directly or indirectly solicit or induce away from the other any employee or sub-contractor of the other who has provided those Services.
4.0 FEES & CHARGES
4.1 Customer will pay AppZero the fees, charges or other amounts specified in an Order Agreement within thirty (30) days of date of receipt of an invoice. AppZero may issue an invoice: (a) upon the shipment of Software or Related Documentation, (b) in advance of the provision of Services unless otherwise set forth in an Order Agreement or applicable Statement of Work executed by both parties. Customer shall pay a service charge on overdue accounts equal to the lesser of 1.5% per month (19.57% annually) or the maximum legal interest rate.
4.2 Shipping costs and all sales, value-added and other taxes, tariffs, duties or similar charges that may be levied by a taxing authority relating to the delivery of the Software or Customer's payments to AppZero for the Software, Related Documentation, Support and/or Services, excluding taxes on the net income of AppZero, will be paid by Customer. To the extent Customer is claiming exemption from any applicable taxes, Customer shall provide AppZero with a valid exemption certificate at the time each applicable Order Agreement is executed.
5.0 CONFIDENTIAL INFORMATION
5.1 "Confidential Information" shall mean any information which is confidential in nature or that is treated as being confidential by a party and that is furnished or transferred by or on behalf of such a party (a "Disclosing Party") to the other party (a "Receiving Party"), whether such information is or has been conveyed verbally or in written or other tangible form, and whether such information is acquired directly or indirectly such as in the course of discussions or other investigations by the Receiving Party, including, but not limited to technology, algorithms, trade secrets, discoveries, ideas, concepts, inventions (whether patentable or not), know-how, designs, specifications, product plans, and any other data, in oral, written, graphic, electronic or any other form or medium that has not been provided or is otherwise not readily available to the general public. Confidential Information shall also include descriptions of the existence or progress of the above-described information, the terms and conditions of this Agreement, the Software, the Works (if any) and any information with respect to Support or pricing that AppZero may provide to Customer from time to time. Confidential Information disclosed in tangible or electronic form may be identified with a legend as being confidential, but in no event shall the absence of such a mark or legend preclude disclosed information which would be considered confidential by a party exercising reasonable business judgment from being treated as Confidential Information by a Receiving Party. In the course of their dealings, the parties may disclose to one another Confidential Information. The Receiving Party will not disclose the Disclosing Party's Confidential Information to any third party without the prior written consent of the Disclosing Party, nor will a Receiving Party make use of any of the Disclosing Party's Confidential Information except in the performance of rights or obligations under this Agreement. Each party will use at least the same degree of care to avoid disclosure of the Disclosing Party's Confidential Information as it uses with respect to its own Confidential Information, but in no event shall less than reasonable care be used.
5.2 Confidential Information does not include information: (a) generally available to or known to the public through no fault of the Receiving Party, (b) previously known to the Receiving Party without any obligation of confidentiality, (c) independently developed by the Receiving Party outside the scope of this Agreement without any use of or reference to the Disclosing Party's Confidential Information and which independent development can be established by evidence that would be acceptable to a court of competent jurisdiction, or (d) lawfully disclosed to the Receiving Party by a third party under no obligation of confidentiality. The Receiving Party shall only disclose the Confidential Information of the Receiving Party to (i) its agents, employees or representatives who have a need to know such information for the purpose of performance under this Agreement and exercising the rights granted under this Agreement and who have entered into a non-disclosure agreement at least as protective of the Disclosing Party's Confidential Information as this Agreement, or (ii) to the extent required by applicable law or pursuant to a valid court order or as required by a judicial court or tribunal of competent jurisdiction, provided that the Receiving Party shall give the Disclosing Party reasonable notice prior to such disclosure and shall assist with obtaining and comply with any applicable protective order or equivalent.
6.1 If Customer has been granted a commercial license for the Software itemized in an Order Document, then AppZero warrants that: (a) for a period of thirty (30) days following the initial delivery of that Software to Customer: (i) the Software will perform in all material respects in conformity with its Related Documentation, and (ii) the media, if any, provided by AppZero will be free of defects in workmanship; (b) the Software and the medium on which it was originally provided to Customer is free from any virus at the time of delivery; and (c) Services will be provided with reasonable skill and care conforming to generally accepted software industry standards. The warranty period for each Service provided by AppZero pursuant to this Agreement shall be a period of thirty (30) days from the date of completion of such Service. If Customer has been granted an evaluation license for the Software itemized in an Order Document, then that Software is licensed by AppZero to Customer, and any associated Services (including Works, if any) or Support are provided to Customer on an 'as is' basis and there are no warranties, representations or conditions, express or implied, written or oral, arising by statute, operation of law, course of dealing, usage of trade or otherwise, regarding such Software, Support or Services.
6.2 EXCEPT FOR THE EXPRESS WARRANTIES ABOVE (IF ANY), TO THE GREATEST EXTENT PERMITTED BY LAW, THE SOFTWARE, SUPPORT, SERVICES AND ALL WORKS PROVIDED BY APPZERO HEREUNDER ARE PROVIDED ON AN "AS IS" BASIS AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER PRODUCT OR SERVICE PROVIDED UNDER THIS AGREEMENT OR IN CONNECTION WITH THIS AGREEMENT BY APPZERO (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS). APPZERO INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. APPZERO INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS DO NOT REPRESENT OR WARRANT THAT THE SOFTWARE, SUPPORT, SERVICES OR WORKS SHALL MEET ANY OR ALL OF CUSTOMER'S OR AFFILIATES PARTICULAR REQUIREMENTS, THAT THE SOFTWARE OR WORKS WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS OR DEFECTS IN THE SOFTWARE OR WORKS CAN BE FOUND OR CORRECTED.
6.3 If the warranties above (if any) are breached, AppZero will, at its option and at no cost to Customer, (a) provide remedial services necessary to enable the Software, Support or Services (including Works) to conform to the warranty, or (b) replace any defective Software, Works or media, or (c) refund amounts paid in respect of the defective Software, Support or Services (including Works). AppZero's warranty obligations will only extend to material errors that can be demonstrated to exist in an unmodified version of the Software or Works except where the modifications were carried out by AppZero or with its approval. Customer will notify AppZero promptly in writing of any breach of warranty. Customer will provide AppZero with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. The remedies set out in this subsection are the Customer's exclusive remedies for breach of the above warranties.
6.4 In certain jurisdictions some or all of the provisions in this Section may not be effective or the applicable law may mandate a more extensive warranty in which case the applicable law will prevail over this Agreement.
7.0 LIMITATION OF LIABILITY
7.1 TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL APPZERO (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, LEGAL EXPENSES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF REVENUE, LOST OR DAMAGED DATA, LOSS OF COMPUTER TIME, COST OF SUBSTITUTE GOODS OR SERVICE, OR FAILURE TO REALIZE EXPECTED SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSSES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF APPZERO (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, OR SUCH LOSSES OR DAMAGES ARE FORESEEABLE. IF CUSTOMER IS BEING LICENSED PURSUANT TO AN EVALUATION LICENSE, THEN IN ADDITION TO THE EXCLUSIONS SET FORTH IN THE PRECEDING SENTENCE, APPZERO (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) ALSO TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDES ANY AND ALL LIABILITY TO CUSTOMER OR ANY OTHER PERSON FOR ANY DIRECT DAMAGES.
7.2 THE ENTIRE LIABILITY OF APPZERO (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) AND CUSTOMER'S EXCLUSIVE REMEDY WITH RESPECT TO THE SOFTWARE, WORKS, SUPPORT AND ANY OTHER PRODUCTS OR SERVICES SUPPLIED BY APPZERO OR ANY OF ITS AFFILIATES OR DISTRIBUTORS IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES FOR ANY CAUSE AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING FUNDAMENTAL BREACH OR NEGLIGENCE, WILL BE LIMITED IN THE AGGREGATE TO (I) IN THE CASE OF A COMMERCIAL LICENSE TO THE LESSER OF $100,000 OR THE AMOUNTS PAID BY CUSTOMER TO APPZERO UNDER THIS AGREEMENT FOR THE SOFTWARE, WORKS, SUPPORT OR SERVICES GIVING RISE TO THE CLAIM, OR (II) IN THE CASE OF AN EVALUATION LICENSE TO THE AMOUNTS PAID BY CUSTOMER TO APPZERO UNDER THIS AGREEMENT FOR THE SOFTWARE, WORKS, SUPPORT OR SERVICES GIVING RISE TO THE CLAIM. IN THE CASE OF A COMMERCIAL LICENSE ONLY, THE FOREGOING LIMIT SHALL NOT APPLY TO (I) THE INDEMNITY OBLIGATIONS SET FORTH IN SECTION 9, (II) DEATH OR BODILY INJURY ARISING FROM NEGLIGENCE OF APPZERO, OR (III) IN RESPECT OF ACCIDENTAL LOSS OF OR DAMAGE TO CUSTOMER'S TANGIBLE PROPERTY, TO THE EXTENT CAUSED BY THE NEGLIGENCE OF APPZERO, ITS EMPLOYEES OR SUBCONTRACTORS. IN THE EVENT OF ACCIDENTAL LOSS OF OR DAMAGE TO TANGIBLE PROPERTY, TO THE EXTENT CAUSED BY THE NEGLIGENCE OF APPZERO, ITS EMPLOYEES OR SUBCONTRACTORS, THE LIMIT OF APPZERO'S LIABILITY IN THE AGGREGATE IS $1,000,000.
8.0 PROPRIETARY RIGHTS
Customer acknowledges and agrees that the Software contains confidential and proprietary information and trade secrets belonging to AppZero and its licensors, and that title in and rights (including all intellectual property rights) to the Software remains exclusively with AppZero and its licensors. Customer's rights to the Software are strictly limited to those granted in this Agreement. Customer shall not decompile, disassemble or otherwise reverse engineer the Software. If the foregoing provision is prohibited by applicable law, Customer will provide AppZero with advance written notification of (a) its intention to decompile, disassemble or otherwise reverse engineer the Software, and (b) the nature of the work involved. AppZero will be given the right of first refusal to perform such work at its prevailing rates and prices.
9.0 INTELLECTUAL PROPERTY INDEMNIFICATION
If Customer has been granted a commercial license for the Software itemized in an Order Document, then the provisions of this Section 9.0 shall apply to that Software, otherwise, if Customer has been granted an evaluation license for the Software itemized in an Order Document then the provisions of this Section 9.0 shall not apply to that Software and Customer shall not be entitled to any of the rights, remedies or benefits of this Section 9.0 in respect to that Software. AppZero will indemnify, defend and hold Customer harmless against any damages, losses and other expenses finally awarded by a court of competent jurisdiction arising out of or in connection with any actions or claims that the Software infringes or violates any intellectual property right of any third party ("Claim"), on the condition that Customer notifies AppZero promptly of the Claim and gives AppZero sole control of the defense and negotiations for its settlement or compromise, Customer makes no admission in respect of such claims without AppZero's consent and Customer cooperates with AppZero, at AppZero's expense in the defense of such Claim. If Customer is, or may become, prohibited from continued use of any Software by reason of an actual or anticipated Claim, AppZero will use its reasonable efforts to (a) obtain for Customer the right to use the Software, or (b) replace or modify such Software so that it is no longer subject to a Claim, but performs the same functions in an equivalent manner. If neither of the foregoing options are commercially reasonable in AppZero's sole discretion, AppZero will refund to Customer the unused portion of the license fees paid in respect of the Software. AppZero will have no liability for any Claim based on (i) use of other than the current release of the Software (if the Claim could have been avoided by that release and Customer has been so notified), (ii) any use of the Software in combination with any software or hardware not supplied or approved in writing by AppZero, or (iii) modification of the Software not done by or on behalf of AppZero. THIS SECTION STATES THE ENTIRE RESPONSIBILITY OF APPZERO AND CUSTOMER'S EXCLUSIVE REMEDY CONCERNING CLAIMS.
10.0 TERM AND TERMINATION
10.1 The term of this Agreement will begin upon Effective Date and shall continue (i) in the case of an evaluation license for the Evaluation Period unless earlier terminated as provided for in this Agreement, or (ii) in the case of a commercial license for the License Term unless earlier terminated as provided for in this Agreement.
10.2 Either party may terminate this Agreement if (a) the other party fails to remedy a breach of any material obligation under this Agreement or any Order Agreement within fifteen (15) days of receiving written notice from the other party detailing such breach, or (b) immediately and without notice if Customer becomes insolvent, files for bankruptcy, is the subject of involuntary bankruptcy or has a receiver appointed. In the case of an evaluation license, (i) AppZero may terminate this Agreement in the event of any breach by Customer if such breach has not been cured within ten (10) days of notice to Customer; and (ii) if the parties have agreed to extend the Evaluation Period beyond the initial period specified in the Order Agreement, either party may terminate this Agreement without cause by providing ten (10) days written notice to the other.
10.3 In the case of a commercial license, if the termination is related to other than a material breach by Customer, Customer shall continue to have the right to use Software for the remainder of the License Term. If this Agreement has been terminated by AppZero for material breach by the Customer, Customer shall return or at AppZero's option purge or destroy all copies of the Software, Works and Related Documentation in its possession or under its control, and provide a certificate of a senior officer confirming the same. In addition, upon termination (i) Customer shall continue to be liable for any obligations arising, liabilities accrued or amounts payable under all Order Agreements executed prior to termination, and (ii) except as otherwise provided in this Section 10, each party shall return to the other, or at the other party's option destroy all Confidential Information in its possession or control, and provide a certificate of a senior officer confirming the same. The Software and Works may contain automatic shutdown features which make it inoperable after the end of the License Term.
10.4 In the case of an evaluation license: (i) Customer's rights to use the Software will immediately terminate upon termination or expiration of this Agreement; (ii) within five (5) days of termination or expiration of this Agreement, Customer shall: (a) return to AppZero, at its expense by insured, bonded courier, all hardware, Software and media provided to Customer in connection with this Agreement; and (b) purge all Software and Works and all copies thereof from all computer systems and storage devices on which it was stored, and certify such to AppZero; and (iii) Customer shall be responsible for the Software and Works from the time of delivery to Customer until such Software is returned to AppZero and Customer shall indemnify and hold AppZero harmless from and against any and all claims, demands, costs and liabilities (including all reasonable legal and attorney fees and expenses) of any kind whatsoever, arising directly or indirectly out of Customer's use of Software or failure to return Software as required herein. If Customer fails to return the Software and Works as required, Customer agrees it is liable to pay to AppZero the full cost of such Software and Works upon invoice by AppZero. The Software and Works may contain automatic shutdown features which make it inoperable after the end of the Evaluation Period.
10.5 Customer acknowledges and agrees that it would be difficult to compute the monetary loss to AppZero arising from a breach or threatened breach of this Agreement by Customer and that, accordingly, AppZero shall be entitled to specific performance, injunctive or other equitable relief in addition to or instead of monetary damages in the event of a breach or threatened breach of this Agreement by Customer. Sections 1, 2 (only if the requirements of Section 10.3 are satisfied), 3, 4, 5, 6.2, 7, 8, 10.3, 10.4, 11 and 12 of this Agreement shall survive the expiration or termination of this Agreement.
11.0 AUDIT RIGHTS
Customer shall keep accurate records of the number of copies of the Software made and distributed, the number of end users of the Software and their location and the number of Instances used by Customer. AppZero may enter Customer's premises during business hours on five (5) business days notice for the purpose of examining, or having examined (at AppZero's own expense), Customer's relevant books, records and computers to verify Customer's fulfillment of its obligations under this Agreement and/or any applicable Order Agreement. If the results of the audit reveal an underpayment by Customer greater than five (5%), then in addition to paying the amount of any such underpayment, Customer shall also reimburse AppZero for the costs of the audit.
12.0 GENERAL
12.1 All notices pursuant to this Agreement will be in writing and given by hand delivery, registered mail or certified mail (postage prepaid) to the other party at the address appearing on the Order Agreement. Customer will promptly give written notice of any change in its address or addressee. Notices will be deemed to be received on delivery or on the fifth (5th) business day after mailing, as the case may be.
12.2 No delay or failure in exercising any right under this Agreement, or any partial or single exercise of any right, will constitute a waiver of that right or any other rights under this Agreement. No consent to a breach of any express or implied term set out in this Agreement constitutes consent to any subsequent breach, whether of the same or any other provision.
12.3 If any provision of this Agreement is, or becomes, unenforceable, it will be severed from this Agreement and the remainder of this Agreement will remain in full force and effect.
12.4 This Agreement is binding upon and will inure to the benefit of both parties, and their respective successors and assigns. Each party may assign or otherwise transfer its rights under this Agreement to a third party ("assignment") on the condition that (a) the third party delivers to the non-assigning party a duly executed document agreeing to be bound by this Agreement and (b) the assignment is part of a bona fide internal corporate reorganization or to the surviving corporation in any arm's length merger or consolidation to which it is a party or to any person who acquires all or substantially all of its capital stock or assets. Despite the foregoing, if all or part of the Customer's business is acquired by a third party (by way of asset or share purchase, merger or amalgamation) or if it becomes an Affiliate of a third party, the scope and effect of this Agreement will be limited (a) to the business carried on by the Customer and its Affiliates prior to the acquisition, and (b) to the total number of Software copies, users and/or Instances actually deployed by Customer immediately prior to either of the foregoing events.
12.5 If Customer obtained the Software in the United States, this Agreement shall be governed by the laws of the State of New York. If Customer obtained the Software outside of the United States, this Agreement shall be governed by the laws of the Province of Ontario, Canada. No choice of laws rules of any jurisdiction shall apply to this Agreement. If Customer obtained the Software in the United States, Customer consents and agrees that the courts of the State of New Jersey shall have jurisdiction over any legal action or proceeding brought by Customer arising out of or relating to this Agreement, and Customer consents to the jurisdiction of such courts for any such action or proceeding. If Customer obtained the Software outside of the United States, Customer consents and agrees that the courts of the Province of Ontario, in Ottawa, Canada, shall have jurisdiction over any legal action or proceeding brought by Customer arising out of or relating to this Agreement and Customer consents to the jurisdiction of such courts for any such action or proceeding. Customer waives all rights that Customer may have or that may hereafter arise to contest such jurisdiction of such courts. The parties waive any right to a jury trial with respect to any action brought in connection with this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The Uniform Computer Information Act does not apply to this Agreement.
12.6 The Software and related information are subject to export and import restrictions. By downloading, installing, or using the Software, Customer is representing and warranting that Customer is not located in, under the control of, nor is a national or resident of any country to which the export of the Software or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. Customer is also representing and warranting that Customer is not an individual to whom the export of the Software or related information would be prohibited by the laws of the United States or Canada. Customer shall comply with the export laws and regulations of the United States and Canada that are applicable to the Software and related information and Customer shall comply with any local laws in Customer's jurisdiction that may impact Customer's right to export, import, or use the Software or related information, and Customer represents and warrants that Customer has complied with any such applicable laws or regulations. The Software shall not be used for any purposes prohibited by export laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Software or related information.
12.7 This Agreement (including the Order Agreements under this Agreement) is the entire understanding and agreement between Customer and AppZero with respect to the subject matter hereof, and it supersedes all prior negotiations, commitments and understandings, verbal or written, any purchase order issued by Customer. This Agreement or an Order Agreement may only be amended or otherwise modified by written agreement signed by the authorized signatories of both parties.
12.8 The Software is not fault-tolerant and is not designed, manufactured or intended for use in or in conjunction with on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, or direct life support machines. AppZero, its Affiliates, licensors, suppliers, subcontractors and distributors specifically disclaim any express or implied representations, warranties or conditions for such uses.
12.9 The Software may be aggregated and distributed with Free Software for which the applicable Free Software license may also require that Free Software source code be made available to those receiving only executable versions of such Free Software. If the source code for any such Free Software is not provided with the Software, then upon request within three (3) years of acquisition of the Software, and for a fee that shall not exceed AppZero's costs associated with physical or electronic distribution of such source code, AppZero will provide or make a copy of such Free Software available to Customer. Since any Free Software provided with the Software is being distributed as Third-Party Software, the restrictions in this Agreement do not apply to such Free Software and in particular do not constrain any broader rights granted in any licenses for such Free Software.
April 23, 2009
Jeff Schneider
CEO
MomentumSI
