LICENSE AGREEMENT
PLEASE READ THIS LICENSE AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE OR LICENSED WORKS, AS APPLICABLE, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE OR LICENSED WORKS.
YOU HEREBY AGREE TO THE USE OF ELECTRONIC COMMUNICATION TO ENTER INTO BINDING CONTRACTS. TO THE EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER THE LAWS OR REGULATIONS OF ANY JURISDICTION WHICH REQUIRES AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS.
IN THE EVENT THAT A SYSTEM INTEGRATOR, CONSULTANT, CONTRACTOR OR OTHER PARTY DOWNLOADS, USES OR INSTALLS THE SOFTWARE ON YOUR BEHALF, PRIOR TO YOUR USE OF THE SOFTWARE, YOU REPRESENT AND WARRANT TO LICENSOR THAT SUCH SYSTEM INTEGRATOR, CONSULTANT, CONTRACTOR, OR OTHER PARTY HAS BEEN DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON YOUR BEHALF BY ALL NECESSARY CORPORATE OR LIMITED LIABILITY COMPANY ACTION, AND YOU SHALL BE DEEMED TO HAVE ACCEPTED ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT IN A LEGALLY BINDING FASHION.
This License Agreement (this “License Agreement”), is entered into by and between BrainStorm, Inc., a Utah corporation, with principal offices at Ten South Center Street, American Fork, Utah 84003 (the “Licensor”), and you (both the individual installing or using the Software or Licensed Work (as defined below) and any single legal entity on behalf of which such individual is acting) (the “Licensee”). This Agreement is effective as of the date upon which Licensee downloads the Software or Licensed Work, as applicable (the “Effective Date”). To the extent that Licensee uses or downloads the Licensed Works, the terms and conditions of Part A, below, apply. To the extent that Licensee uses or downloads the Software, the terms and conditions of Part B, below, apply. If used in Part A below, the term “Agreement” refers to Part A of this License Agreement. If used in Part B below, the term “Agreement” means Part B of this License Agreement.
PART A
WHEREAS, Licensor owns the Quick Start Cards, which contain step-by-step instructions on how to use one or more off-the-shelf software programs on an electronic portable document format (.pdf) (the “Licensed Works”). Licensee desires to license from Licensor certain rights with respect to the Licensed Works, as more fully set forth below.
NOW THEREFORE, in consideration of the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Grant of License. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee, under Licensor’s applicable intellectual property rights, and Licensee hereby accepts from Licensor, upon the terms set forth in this Agreement, an non-exclusive, non-transferable (except as provided in Section 9(a) of this Part A), non-sublicensable, time-limited, restricted, revocable, internal license to (a) host non-editable electronic copies (.pdf files) of the Licensed Works on an internal Licensee computer network, or intranet, for access by (i) no more than fifty (50) authorized users who are employees or independent contractors of Licensors (“Authorized Users”) if Licensee is entering in to this Agreement pursuant to the Fast Track Program, or (ii) an unlimited number of Authorized Users if Licensee is entering into this Agreement pursuant to the End User Training Program; and (b) print non-professional quality (e.g. inkjet, laserjet) for the sole purpose of providing computer and software training and support up to Authorized Users. Licensee shall include, and if already included, shall not remove or obscure, a copyright notice at the bottom of each Licensed Work indicating that Licensor is the copyright holder of the Licensed Works.
2. Restrictions on Use. Licensee acknowledges that the Licensed Works constitute valuable property of Licensor. Accordingly, Licensee agrees that without Licensor’s prior written consent, it will not (a) modify, adapt, alter, translate, or create derivative works from the Licensed Works; (b) sublicense, lease, rent, loan, or otherwise transfer (except as provided in Section 9(a)) of this Part A any portion of the Licensed Works or any copies (whether electronic or paper) thereof to any third party, (c) otherwise use or copy the Licensed Works except as expressly allowed in this Agreement, (d) sell, distribute, or provide access to, in part or in whole, internally or externally, professionally printed copies (e.g. card stock, laminated, etc.) of the Licensed Works, or (e) make the Licensed Works available to users who are not Authorized Users through any network or electronic media, including without limitation the Internet.
3. Proprietary Rights. Licensee acknowledges and agrees that the Licensed Works and all right, title and interest therein, is and shall remain the exclusive property of Licensor. Licensee agrees never to contest Licensor’s rights in and to the Licensed Works, and agrees never to take any action that could reasonably be expected to limit or diminish Licensor’s rights in the Licensed Works.
4. Term. The term of this Agreement commences on the Effective Date and shall terminate, unless sooner terminated by Licensor, one hundred (100) days after the Effective Date (the “Term”).
5. Termination. This Agreement shall automatically terminate, without any notice or action by either party, if Licensee materially breaches any provision of this Agreement. Such termination shall not be deemed to be a waiver on Licensor’s part of any other rights or remedies it may have by reason of the circumstances on which the termination is predicated. Upon termination or expiration of this Agreement, Licensee shall immediately discontinue hosting the Licensed Works and terminate any access to the Licensed Works by Authorized Users via Licensee’s computer network or intranet. Upon termination or expiration of this Agreement, all rights granted to Licensee hereunder shall automatically revert to Licensor without further notice.
6. DISCLAIMER OF WARRANTIES. LICENSOR LICENSES THE LICENSED WORKS TO LICENSEE “AS IS,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND LICENSOR HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED.
7. DISCLAIMER OF DAMAGES; LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL LICENSOR OR LICENSEE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATING TO THE LICENSED WORKS, EVEN IF LICENSOR OR LICENSEE, AS THE CASE MAY BE, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR’S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER RELATING TO THE LICENSED WORKS, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO LICENSOR BY LICENSEE FOR THE LICENSED WORKS THAT CAUSED THE DAMAGES.
8. Survival of Certain Provisions. Notwithstanding any provisions of this Agreement stating otherwise, the provisions of Sections 2, 3, 5, 6, 7, 8, and 9 of this Part A shall survive any completion, rescission, expiration or termination of this Agreement, and be enforceable against the parties hereto.
9. Miscellaneous Provisions.
(a) The parties hereto hereby certify that each has read and understands the terms hereof. Any term hereof may be amended or waived only with the written consent of both parties or their respective successors and assigns. This Agreement may be assigned only with the written consent of the both parties. This Agreement shall inure to the benefit of, and is binding upon the heirs, executors, administrators, successors, and assigns of the parties. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument. If any provision hereof is held by a court of competent jurisdiction to be void or unenforceable for any reason, the remaining provisions hereof shall nevertheless continue in full force and effect. This Agreement (including any invoice issued in connection herewith) constitutes the entire agreement between the parties hereto with respect to the subject matters covered by it, and supersedes all prior oral or written agreements between the parties hereto relating to such matters. All notices, requests and other communications to any party hereunder will be in writing and will be given to such party at its address stated in the invoice issued by Licensor to Licensee. In the event that a party hereto who is required to engage the services of legal counsel to enforce the terms and conditions hereof against the other is successful in doing so, regardless of whether such action results in litigation, such party shall be entitled to the reimbursement by the other party of all reasonable attorneys’ fees and court costs incurred by the successful party. This Agreement shall be governed by the laws of the State of Utah without regard to its conflicts of laws rules. Each of the parties hereto consents to the exclusive jurisdiction and venue of the courts of the State of Utah or the Federal District Court for the District of Utah.
(b) The parties hereto acknowledge and agree that a violation of this Agreement may result in irreparable injury to the non-breaching party hereto, the exact amount of which may be difficult to ascertain and the remedies at law for which will not be reasonable or adequate compensation to the non-breaching party hereto for such a violation. Accordingly, each party hereto agrees that if it violates any of the provisions of this Agreement, in addition to any other remedy available at law or in equity, the other party hereto will be entitled to seek specific performance or injunctive relief without posting a bond, or other security, and without the necessity of proving actual damages.
PART B
1. Software. For the purpose of this Agreement, the licensed QuickHelp computer software and electronic instructional content downloaded and/or installed (including Licensor’s Microsoft Office add-in, Microsoft Windows app, or Microsoft SharePoint player/add-in, which Licensee may utilize to access the QuickHelp computer software), together with the supporting documentation for such, including any modified, updated or enhanced versions thereof in the future, will be referred to as the “Software.”
(a) License Categories. The Software license categories available from Licensor are as follows (the “License Categories”):
(x) Full-Use License. A full-use license (which can be a Promotional License that Licensee converts to a full-use license by purchasing a license, submitting an Order Form (as defined below) to Licensor and having a full-use license enabled) is a limited license that, subject to the terms of the license grant in Section 2 of this Part B below, allows Licensee to Use (as defined below) the Software during the Term (as defined below) (a “Full-Use License”).
(y) Promotional License. A promotional license is a limited license that, subject to the terms of the license grant in Section 2 of this Part B below, allows Licensee to Use the Software for a period of one hundred (100) days (a “Promotional License”). If Licensee has obtained this Promotional License pursuant to the Fast Track Program, then the Software may be Used by no more than fifty (50) authorized users who are employees or independent contractors of Licensee (“Authorized Users”). If Licensee has obtained this Promotional License pursuant to the End User Training Program, then the Software may be Used by an unlimited number of Authorized Users. At the end of the Promotional period, Licensee’s access to the Software will, unless Licensee purchases a Full-Use License, be disabled and Licensee agrees to discontinue all use thereof. Notwithstanding anything to the contrary herein, use of the Software under a Promotional License is entirely at Licensee’s own risk. If Licensee converts its Promotional License to a Full-Time License, this Agreement shall continue to apply to the parties following such conversion.
2. License. Subject to the terms and conditions of this Agreement and, if this is a Full-Use License, upon Licensee’s full payment of the applicable fees, Licensor hereby grants to Licensee, and Licensee hereby accepts from Licensor, a non-exclusive, non-transferable, non-sublicensable, time-limited, restricted, revocable internal license to Use the Software pursuant to the terms and conditions herein and in accordance with the Order Form (if applicable) by no more than the number of Authorized Users specified in the Order Form if this is a Full-Use License or in Section 1(a)(y) above if this is a Promotional License. “Use” means that Licensee may, subject to the terms and conditions of this Agreement, install, use, access, run, or otherwise interact with the Software for its internal business or personal purposes, as the case may be, in accordance with the applicable documentation and the License Category. Licensee shall not allow more than one individual user to utilize a seat, though Licensee may reassign seats from time to time to new users who are replacing former users who have terminated employment or otherwise changed job status or function. “Order Form” means the initial order form or invoice from Licensor or its reseller or distributor, whether submitted online or in hard copy, which evidences, together with this Agreement, the initial license of the Software, including any subsequent order forms submitted online or in hard copy by Licensee in connection with this Agreement, and which Licensor has accepted, which includes some or all of the following information: the name of the Licensee, the Licensee’s address and billing information, the length of the Term (if applicable), the License Category, the license and other fees due from Licensee (if applicable), the quantity of authorized seats being licensed hereunder (if applicable), and any maintenance and support being purchased (if applicable).
3. Use Restrictions. Licensor and, as applicable, Licensor’s licensors, resellers, and distributors and/or suppliers, reserve all rights not expressly granted to Licensee herein. Without limiting the generality of the foregoing, Licensee shall not (except to the limited extent expressly permitted by applicable law): (a) copy, modify, adapt, rent, lease, assign, sell, distribute, export, re-export, use in a service bureau or service provider for third parties or other similar type of environment, sublicense, translate, or reprogram the Software or any portion thereof except as provided in this Agreement; (b) timeshare the Software, make the Software available to others on the Internet or any on-line service, or allow others to copy, access or use the Software; (c) translate, merge, reverse engineer, decompile, or disassemble the Software; (d) use any individual component of Software in a standalone mode; (e) create derivative works based upon the Software; (f) use the Software to perform any activity which is or may be, directly or indirectly, unlawful, harmful, threatening, abusive, harassing, tortious, or defamatory, nor to perform any activity which breaches the rights of any third party; (g) take any actions that would cause the Software to become subject to any open source or quasi-open source license agreement that is not otherwise applicable; or (h) transfer the Software or Licensee’s license rights under this License Agreement, in whole or in part. All restrictions on Licensee’s use of the Software in this Section 3 of Part B shall also apply with respect to any third-party software which may be included in the Software. Licensee agrees to defend, indemnify, and hold Licensor harmless from and against any and all claims arising out of Licensee’s unauthorized use of the Software or other breach of this Agreement. Licensee may not Use the Software if Licensee is, or is affiliated with, a direct competitor of Licensor.
4. Ownership of the Software and Intellectual Property. All rights, title and interest in and to the Software (including any updates or upgrades thereto (if any) provided through this Agreement or in connection with a separate support or maintenance agreement), including all worldwide intellectual property rights therein, shall remain with Licensor or its licensors, resellers, distributors and/or suppliers, as the case may be. No title to or ownership of the Software is transferred to Licensee because the Software is licensed to Licensee, not sold. Licensor may make changes to the Software at any time without notice, and except as otherwise expressly set forth herein, is not obligated to support, maintain, upgrade or update the Software. Except as otherwise expressly provided herein, Licensor grants no express or implied right under any Licensor patent, copyright, trademark, or other intellectual property right. Licensee acknowledges that the Software constitutes proprietary information and trade secrets of Licensor or its licensors, resellers, distributors and/or suppliers, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or patent. Licensee shall maintain all information and data contained in the Software or any portion thereof in strict confidence and shall not publish, use, communicate or disclose, or permit to be published, used, communicated or disclosed, to third parties such information and data without Licensor’s prior written consent.
5. Maintenance and Support for Full-Use License. During the Term of a Full-Use License, if applicable, Licensor may provide up to ten (10) hours of technical support to Licensee per twelve (12) month period during the Term, in Licensor’s sole discretion. Additionally, Licensor may provide updates and upgrades, if any, to Licensee on the same basis that Licensor provides updates and upgrades to its other customers, in Licensor’s sole discretion. Licensor shall have no other maintenance or support obligations to Licensee. Licensee may purchase additional technical support from Licensor for $195 per hour, on a pre-agreed basis.
6. Third-Party Software. The Software may include or be bundled with hardware or other software programs licensed or sold by a licensor other than Licensor. LICENSOR DOES NOT WARRANT NON-LICENSOR SOFTWARE OR PRODUCTS. ANY AND ALL SUCH THIRD-PARTY PRODUCTS WHICH MAY BE DISTRIBUTED WITH THE SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND LICENSEE’S INSTALLATION AND USE THEREOF, AND ANY RELATED WARRANTY SERVICE, IS SUBJECT TO THE APPLICABLE THIRD-PARTY WARRANTY, IF ANY.
7. Limited Warranty. Solely with respect to a Full-Use License, Licensor warrants for a period of thirty (30) days from the delivery date of the Software that (a) the media provided by Licensor, if any, on which the Software is recorded will be free from material defects in materials and workmanship under normal use, and (b) the operation of the Software, as provided by Licensor, will substantially conform to Licensor’s published documentation for the Software; provided, however, that Licensor shall not be liable under these limited warranties if the Software has been modified or altered by anyone other than Licensor, if the Software has been abused or misapplied, or if Licensee has failed to incorporate all upgrades and updates that Licensor provided to Licensee. If such a defect under the warranty in Section 7(a) of this Part B is reported during the warranty period, Licensee shall return the Licensor media to Licensor for repair or replacement, in Licensor’s sole discretion. If a reproducible defect under the warranty in this Section 7(b) of Part B is reported by Licensee during the warranty period, Licensee shall promptly notify Licensor or return the Software to Licensor, as the case may be, and Licensor shall, in its sole discretion, either use its commercially reasonable efforts to resolve the nonconformity or refund the license fees paid by Licensee for the Software.
8. NO OTHER WARRANTIES. LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSEE HAS INDEPENDENTLY VERIFIED THAT THE SOFTWARE IS APPROPRIATE FOR THE PURPOSES FOR WHICH LICENSEE INTENDS TO USE IT, AND THAT LICENSEE DID NOT RELY UPON ANY SKILL OR JUDGMENT OF LICENSOR OR ITS LICENSORS, RESELLERS, DISTRIBUTORS AND/OR SUPPLIERS, AS THE CASE MAY BE, IN SELECTING THE SOFTWARE. THE LIMITED WARRANTIES IN SECTION 7 OF THIS PART B ARE LICENSEE’S SOLE AND EXCLUSIVE REMEDIES, AND LICENSOR’S ONLY WARRANTY LIABILITIES, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE. THE FOREGOING LIMITED WARRANTIES DO NOT APPLY TO PROMOTIONAL LICENSES, UPDATES, UPGRADES, MAINTENANCE, OR SUPPORT; WHICH IF PROVIDED ARE PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR AND ITS LICENSORS, VENDORS AND/OR SUPPLIERS DISCLAIM ANY AND ALL EXPRESS, IMPLIED, OR OTHER WARRANTIES, CONDITIONS OR TERMS OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES, CONDITIONS OR OTHER TERMS OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY, NON-INFRINGEMENT, COMPATIBILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED THROUGH THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT. ANY EXPRESS WARRANTY MADE OUTSIDE OF THIS AGREEMENT IS EXCLUDED AND SUPERSEDED. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE SHALL SATISFY LICENSEE’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF SHALL BE UNINTERRUPTED OR ERROR FREE.
9. LIMITATIONS OF LIABILITY. IN NO EVENT WILL LICENSOR, OR ANY OF ITS LICENSORS, RESELLERS, DISTRIBUTORS, SUPPLIERS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING, BE LIABLE TO LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF LICENSOR OR A LICENSOR REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. LICENSOR’S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO LICENSOR FOR THE SOFTWARE THAT CAUSED THE DAMAGES. LICENSEE ACKNOWLEDGES THAT THE LICENSE AND OTHER FEES PAYABLE BY LICENSEE TO LICENSOR HEREUNDER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT LICENSOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IN ADDITION, LICENSOR DISCLAIMS ALL LIABILITY OF ANY KIND OF LICENSOR’S LICENSORS, RESELLERS, DISTRIBUTORS, AND SUPPLIERS. NO ACTION MAY BE BROUGHT AGAINST LICENSOR BY LICENSEE LATER THAN ONE YEAR FROM THE DATE UPON WHICH THE EVENTS GIVING RISE TO SUCH ACTION OCCUR.
10. Nondisclosure. “Confidential Information” includes any information disclosed by either Licensor or Licensee to the other regardless of the means of communication or the form of information that are either identified as confidential (in writing or orally) or are generally considered to be of a confidential and proprietary nature, including, without limitation, any Software, source codes, object codes, documentation and any proprietary tools, proprietary knowledge, proprietary methodologies, user names, passwords, or email addresses. Licensor and Licensee shall each observe complete confidentiality with respect to the Confidential Information, and shall use best efforts and take all reasonable steps to protect the Confidential Information from any disclosure to third parties, use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. Licensor and Licensee shall each promptly notify the other of any known unauthorized use or disclosure of the Confidential Information and will cooperate with the other in any litigation brought against third parties to protect its proprietary rights. Notwithstanding the foregoing provisions of this Section 10 of Part B, Licensor and Licensee shall each be permitted to disclose the Confidential Information to their respective directors, officers, employees, or professional advisors (including, without limitation, attorneys, accountants, etc.) in the event (i) each of their directors, officers, employees, independent contractors, or professional advisors agree to bound by an obligation of confidentiality substantially similar to that contained in this Section 10 of Part B, and (ii) such disclosure to directors, officers, employees, independent contractors, or professional advisors is necessary to facilitate either Licensor or Licensee’s performance under this Agreement.
11. Copyrights, Trademarks, and Patents. The Software, including any third-party software which may be included therein, is copyrighted and protected by the laws of the United States and other countries, and by international treaty provisions. In no circumstance may Licensee remove any copyright notice from the Software. Licensee agrees to faithfully reproduce and include all trademarks, copyright and other proprietary notices on any authorized copy of the Software, including those of third parties. “QuickHelp” is either a registered trademark or trademark of Licensor in the United States and/or other countries. One or more patents, as well as other patent pending technology, may apply to the Software.
12. Injunctive Relief. Licensee hereby expressly agrees that Licensor, in addition to any other rights or remedies which Licensor may possess, shall be entitled to injunctive and other equitable relief without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
13. Payment for the Software. Upon conversion of a Promotional License to a Full-Use License, and during the term of the Full-Use License, Licensee shall be invoiced by Licensor and payment in U.S. dollars shall be as and when provided in the invoice (typically net 30). This Agreement, including the license and any services, support or maintenance which may apply, shall automatically terminate if Licensee fails to pay any required fees when due. Except as otherwise expressly provided herein, all payments are non-cancellable and non-refundable. The license or other fees due during any month or year of the term shall be at Licensor’s then current rates, as such my change from time to time. If Licensee is late in paying any amounts to Licensor, such overdue amounts shall accrue interest at a rate of 1.5% per month until Licensee pays in full (including interest).
14. Payment of Taxes. In the event that any withholding, sales, value-added, use or other taxes or government fees, assessments or charges are payable because of this Agreement, the license of the Software to Licensee, or because of any payment by Licensee, then Licensee shall pay all such taxes, fees, assessments and charges in addition to all other payments, regardless of when such tax liability is asserted. If Licensor is required to make any such payments, Licensee agrees to reimburse Licensor for such payments promptly upon notice from Licensor.
15. Audit. Licensee shall permit Licensor or its agents, at Licensor’s expense, to conduct audits to verify Licensee’s compliance with this Agreement. Such audits shall be conducted during normal business hours and after reasonable advance notice from Licensor to Licensee.
16. Term. Unless otherwise terminated as provided herein, if Licensee converts to a Full-Use License, pursuant to Section 1 of Part B, this Agreement shall have the term specified in the Order Form and, solely with respect to Full-Use Licenses, shall automatically renew for successive one year periods unless either party gives the other party notice of its intent not to renew at least thirty (30) days prior to the expiration of the current term (the “Term”). License and other fees due from Licensee to Licensor during the Term shall be at Licensor’s then-current rates, as such may change from time to time.
17. Termination. Any Promotional License, and this Agreement, shall automatically terminate at the end of one hundred (100) days from the Effective Date, unless converted to a Full-Use License. Any Promotional License shall automatically terminate, without any notice or action by either party, if Licensee materially breaches any provision of this Agreement. Any Full-Use License, and this Agreement, together with any maintenance, and/or support that may be granted in connection herewith, shall automatically terminate, without any notice or action by either party, upon the occurrence of any of the following: (a) at the end of the Term; (b) if Licensee materially breaches any provision of this Agreement; (c) upon thirty (30) days’ notice from Licensor of its desire to terminate, for any reason or no reason; or (d) upon non-payment by Licensee of any license or other fees when due. Upon expiration or termination of this Agreement, Licensee shall immediately, in Licensor’s sole discretion, either (x) cease all use of the Software, uninstall all the Software, and erase or destroy all copies of the Software within the possession or control of Licensee, or (y) return all the Software, the related documentation, and all associated end-user materials, including all copies thereof, to Licensor. Furthermore, upon expiration or termination of this Agreement, Licensor may disable all functionality of the Software and refuse Licensee further access to Licensor’s website. The foregoing shall not limit or affect any remedy available to Licensor as a result of any breach of this Agreement by Licensee.
18. Survival. Sections 3, 4, 6, 8–24, and 26 of this Part B shall survive the expiration or termination of this Agreement for any reason whatsoever.
19. GOVERNING LAW; SUBMISSION TO JURISDICTION AND VENUE. THIS AGREEMENT AND ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH AND THE UNITED STATES OF AMERICA, EXCLUDING ITS PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY UTAH STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN UTAH OVER ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ALL CLAIMS WITH RESPECT TO ANY SUCH SUIT, ACTION OR OTHER PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH COURTS.
REGARDLESS OF THE APPLICABLE GOVERNING LAW, LICENSEE AND LICENSOR AGREE TO EXCLUDE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. TO THE EXTENT PERMITTED UNDER THE APPLICABLE LAW, LICENSOR MAY BRING AN ACTION IN ANY JURISDICTION FOR THE PURPOSE OF: (A) ENFORCING A JUDGMENT; OR (B) PROTECTING LICENSOR’S INTELLECTUAL PROPERTY RIGHTS.
20. Software Supplied to the Government. The Software is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software by the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted herein.
21. Export Law Assurances. Licensee shall not export or re-export, or allow the export or re-export of the Software or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
22. Severability. If any provision in this Agreement shall be found or be held to be invalid, unenforceable, or in conflict with applicable law in any jurisdiction in which this Agreement is being performed, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity, unenforceability, or conflict, and all other provisions of this Agreement shall remain unaffected.
23. Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by such party of any representation, warranty, covenant or agreement contained herein. The waiver by any party hereto of a breach of any provision of this Agreement or failure to perform by the other party shall not operate or be construed as a further or continuing waiver of such breach or failure to perform or as a waiver of any other or subsequent breach or failure to perform. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable law.
24. Assignment. Licensee may not assign, sublicense, or transfer this Agreement, the Software, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of Licensor. Any such purported assignment, sublicense, or transfer shall be null and void. Licensor may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer upon written notice to Licensee.
25. Publication. Licensee hereby consents to Licensor’s written and oral disclosure of Licensee’s name as an end user of the Software in a factual listing of Licensor’s customers (with or without a list of the License Category of the Software licensed by Licensee) to be published within marketing and promotional materials, in presentations, on tradeshow signs and materials, on Licensor external website and/or to financial and industry analysts.
26. Entire Agreement; Amendment. This Agreement, together with all applicable Order Forms (which are hereby incorporated herein by reference), sets forth the entire understanding and agreement between Licensee and Licensor relating to subject matter hereof. No licensor, distributor, dealer, retailer, reseller, sales person, or employee is authorized to modify this Agreement or to make any warranties, representations, or promises that are different from, or in addition to, the warranties, representations or promises expressly set forth in this Agreement, and Licensor is not obligated under any other agreements, unless in writing and signed by an authorized representative of Licensor. Any terms and conditions of any Licensee order form, agreement or other document submitted by Licensee in connection with the Software that are in addition to, different from or inconsistent with the terms and conditions of this Agreement are not binding on Licensor and are ineffective to the extent that they conflict with the terms and conditions of this Agreement. This Agreement may not be modified or amended except in a writing agreed to by both parties.