SOFTWARE LICENSE AGREEMENT
THE
SOFTWARE IS OFFERED TO YOU ONLY UPON YOUR ACCEPTANCE WITHOUT
THIS IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND LICENSOR.
Whereas, use of the Software may assist Licensee in
its business;
Whereas, Licensee acknowledges that this is a legal
agreement and that by accepting and/or using the Software it agrees to be
legally bound by these terms and conditions.
1.
License.
a.
Subject to the terms of this Agreement and upon execution by Licensee of
this Agreement, Licensor hereby grants to Licensee a personal,
non-exclusive, non-transferable, perpetual license to use the
Software and documentation provided therewith so long as such use meets all of
the following criteria: (i) solely
in connection with the use of Licensor’s and its affiliates’ products
(“Products”) or with third party products which do not directly or
indirectly compete with Licensor’s or its affiliates’ products, and (ii) solely
for Licensee's business operations regarding furnace linings, and only in
accordance with the documentation supplied by Licensor.
Any other use of the Software, including any other copying or any
transferring of the Software or any portion thereof, is prohibited.
b.
Licensee may not lend, lease, sublicense, assign or transfer any Software
or any license or right to use any Software, and any attempt by Licensee to
lend, lease, sublicense, assign or transfer any of its rights, duties or
obligations hereunder shall be void.
c.
During the term hereof, Licensee represents and warrants that Licensee
is either: (i) a
contractor/installer of Products and Licensee has executed and shall maintain a
Contractor/Installer Agreement with Licensor, as amended from time to time by
Licensor, or (ii) a party given express written permission by Licensor to
use the Software during the time period indicated by Licensor.
Licensee also represents and warrants that it shall only use the Software
in the
d.
Licensee acknowledges and agrees that:
(i) its license and right to use previous versions and predecessors
of the Software is terminated and void, and Licensee shall cease any and all
uses of such materials, and (ii) this Agreement applies to all versions of
the Software.
2. Licensee
Responsibilities. Licensee
agrees that it shall not, nor shall it permit any third party to: (a)
distribute, rent, sell or otherwise transfer the Software to any third party;
(b) use the Software for the benefit of any third party in a service bureau,
marketplace, exchange or outsourcing capacity; (c) remove, efface or obscure any
copyright notices, logos or other proprietary notices or legends in the Software
(whether Licensor's or its third party partners) or from any Licensor materials;
(d) export or re-export, or allow the export or re-export of any
Confidential Information (as defined below) or any copy or direct product
thereof in violation of any restrictions, laws or regulations; or (e) copy
the Software except as expressly permitted in this Agreement for Licensee's use.
Licensee shall: (x) comply
with all applicable laws and restrictions and regulations, including without
limitation regarding privacy, of the United States or any foreign agency or
authority; (y) have adequate security measures in place on its system at all
times, which may include without limitation password protection or mechanical or
electronic devices that Licensor deems necessary to control unauthorized use or
distribution of the Software; and (z) have only qualified and trained personnel
use the Software.
3. Ownership.
a. As between the parties, title to and ownership of the Software and any derivatives thereof, all proprietary rights therein, any accompanying printed materials and all copies and portions thereof shall be and at all times remain in Licensor and its third party licensors. The Software and accompanying printed materials are protected by copyright, trademark, trade secret and/or other intellectual property laws and international treaty provisions. Nothing in this Agreement shall grant to Licensee any ownership or title to the Software or any other related materials.
b.
Licensee shall not modify, create derivative works from, reverse
engineer, adapt, decompile or alter the Software.
4.
Confidential Information. Licensee
acknowledges that, during the term of this Agreement, it may receive from or on
behalf of Licensor, information relating to Licensor or its affiliates
("Confidential Information"). Such
Confidential Information shall belong solely to Licensor and includes, but is
not limited to, the terms of this Agreement (but not the existence of this
Agreement), trade secrets and other technical, business, Product, computer
programs, marketing and financial information, development plans and any data
not previously known that could reasonably be considered confidential or
proprietary. Notwithstanding
anything else, the Software, and previous versions and predecessors thereof,
shall be deemed Licensor's Confidential Information.
During and after the term of this Agreement, Licensee shall: (i) not use
(except as expressly authorized by this Agreement) or disclose Confidential
Information without the prior written consent of Licensor; (ii) take all
reasonable measures to maintain the Confidential Information in confidence; and
(iii) disclose Confidential Information only to those of its employees and
consultants who have a confidentiality obligation in writing to Licensee and who
are necessary for the use expressly licensed hereunder.
Confidential Information shall not include information that:
(i) becomes public without breach of this Agreement by Licensee, its
officers, directors, employees or agents; (ii) was previously in Licensee's
possession (in written or other recorded form) with no obligation to maintain
confidentiality (except for previously supplied Software and related materials);
(iii) was received from a third party not under any obligation of
confidentiality to Licensor; or (iv) was developed by Licensee's employees,
agents, contractors, and/or representatives independently of, and without
reference to, any Confidential Information.
5.
Services and Fees.
a.
If indicated on Schedule A or as otherwise agreed to by the
parties, Licensor may provide professional services including customizations,
modifications, or additions to the Software, maintenance, training, support or
installation for the Software (collectively, the "Services").
Services may be amended from time to time by mutual written agreement of
the parties. Licensor reserves the
right to limit access to the Services to more recent versions of the Software.
6.
Updates and Maintenance.
a.
Licensor may from time to time revise or update the Software.
Licensor has no obligation to furnish such revisions or updates to
Licensee. If agreed to by the
parties, Licensor will provide the Licensee with patches, updates, releases or
new versions of the Software in object code form ("Updates") along
with other generally available technical material as agreed to.
The Licensee agrees not to transfer any prior version of the Software to
any third party. All patches,
updates, release and new versions shall be considered part of the Software and
shall be subject to the Agreement. Notwithstanding
anything else herein, Licensee shall not reverse assemble, reverse engineer or
reverse compile any Updates, or otherwise attempt to discover any Updates source
code or underlying Confidential Information.
b.
Unless maintenance and support has been expressly agreed to in writing by
Licensor as a “Service”, Licensor has no obligation to provide maintenance
or support other than as expressly indicated in the “Warranties” section of
this Agreement. Licensee is not
entitled to and shall not rely on any maintenance, support, instruction or
guidance from Licensor related to the Software unless expressly indicated in
writing as part of the “Services” or incorporated into an Update.
7.
Termination.
a.
Either party may terminate this Agreement at any time immediately upon
written notice. This Agreement shall
automatically terminate immediately upon any of the representations and
warranties in Section 1c becoming untrue.
b.
Effect of Termination. Upon
termination of this Agreement, all licenses and rights granted Licensee
hereunder shall terminate, Licensee will cease all use of the Software, and
Licensee shall immediately return to Licensor, the Software, all duplicates, and
any Confidential Information, together with any and all documents, notes and
other materials relating to the Software, including, without limitation, all
copies and extracts of the foregoing and all documentation and copies thereof,
along with a signed written statement from an officer of Licensee certifying
that Licensee has returned to Licensor, and is no longer in possession of, any
Software, duplicates, related documentation or any copies, portions or
derivatives of any of the foregoing. Upon
termination, Sections 1b, 1c, 1d, 2, 3, 4, 5b, 7b, 8b, 9, 10, 12, and 13
will otherwise survive and remain in effect.
Termination shall not affect any payments owed from Licensee.
Termination of this Agreement shall not terminate a Contractor/Installer
Agreement between Licensor and Licensee.
8. Disclaimer.
EXCEPT AS EXPRESSLY STATED HEREIN, THE SOFTWARE AND ANY SERVICES ARE
PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, NONINFRINGEMENT,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY STATUTE,
CUSTOM, COURSE OF DEALING OR OTHERWISE. LICENSOR
DOES NOT WARRANT THAT SOFTWARE WILL BE ERROR FREE.
9.
Limitation of Liability.
ANY LIABILITY OF LICENSOR WILL BE LIMITED TO PRODUCT REPLACEMENT OR, IF
REPLACEMENT IS INADEQUATE OR IN LICENSOR'S OPINION IMPRACTICAL, TO REFUND OF ANY
LICENSE FEE PAID BY LICENSEE. LICENSOR
SHALL NOT BE RESPONSIBLE OR LIABLE
WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR:
(A) LOSS OR INACCURACY OF
DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B)
ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT
LIMITED TO LOSS OF REVENUES, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OR
INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, ARISING OUT OF
THE USE OF OR INABILITY TO USE THE SOFTWARE OR ARISING REGARDING THE SERVICES,
EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL LICENSOR'S LIABILITY EXCEED THE AMOUNT PAID BY LICENSEE
TO LICENSOR DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE
ASSERTION OF SUCH CLAIM.
10.
Indemnity.
Without limiting the generality of any other provision of the Agreement,
Licensee agrees to indemnify and hold harmless Licensor, its licensors, and its
and their respective affiliates, shareholders, officers, directors, employees,
agents, successors and permitted assigns from and against any and all
liabilities, losses, claims, damages and expenses (including reasonable
attorneys' fees) directly or indirectly arising out of any improper use of the
Software or any Service materials or breach of this Agreement.
11.
Reference.
Licensee agrees that Licensor may use Licensee's name as a reference,
including without limitation, use of Licensee's name in: (a) any Licensor
customer lists; (b) on Licensor's website; and (c) on other promotional
materials. At Licensor's reasonable
request, Licensee further agrees to: (x)
allow Licensor to use Licensee's name in a press release that is mutually agreed
upon in writing, which agreement by Licensee shall not be unreasonably withheld;
(y) provide Licensor with written or videotaped comments which Licensor may use
in promotional materials; and (z) periodically discuss the Software with
potential Licensor partners, investors or employees when reasonably requested by
Licensor.
12. Equitable Relief.
Licensee acknowledges and agrees that due to the unique nature of the
Licensor Confidential Information, there can be no adequate remedy at law for
any breach of its obligations hereunder, that any such breach may allow Licensee
or third parties to unfairly compete with Licensor resulting in irreparable harm
to Licensor and, therefore, that upon any such breach or threat thereof,
Licensor shall be entitled to injunctions and other appropriate equitable
relief, in addition to whatever remedies it may have at law.
13.
Miscellaneous.
a.
This Agreement is not assignable or transferable by Licensee, and any
such attempted assignment or transfer shall be void and without effect.
Licensor may assign or transfer this Agreement upon notice to Licensee.
b.
Each party will be and act as an independent contractor and not as an
agent or partner of, or joint venture with, the other party for any purpose
related to this Agreement or the transactions contemplated by this Agreement,
and neither party by virtue of this Agreement will have any right, power or
authority to act or create any obligation, expressed or implied, on behalf of
the other party.
c.
The waiver by either party or a breach of this Agreement or any right
hereunder shall not constitute a waiver of any subsequent breach of this
Agreement; nor shall any delay by either party to exercise any right under this
Agreement operate as a waiver of any such right.
d.
Pre-printed purchase order terms and any other additional terms,
and any terms in conflict with this Agreement, shall be void and of no effect
(this expressly does not apply to any Contractor/Installer Agreement between the
Licensor and Licensee).
This program is
based on ASTM C-680.
e.
If any provision of this Agreement shall be adjudged by any court of
competent jurisdiction to be unenforceable or invalid, that provision shall be
limited or eliminated to the minimum extent necessary so that this Agreement
shall otherwise remain in full force and effect and enforceable.
f.
This Agreement shall be governed by and construed in accordance with the
laws of the
g.
Any notice required or permitted hereunder shall be in writing and will
be deemed to have been effectively given: (i)
immediately upon personal delivery or facsimile transmission (with confirmed
receipt) to the parties to be notified; (ii) one (1) day after deposit with a
commercial overnight courier with tracking capabilities for overnight delivery
to the respective address of the party to receive notice; or (iii) three (3)
days after deposit with the United States Postal Service, by registered or
certified mail, postage prepaid to the respective addresses of the parties as
set forth in the signature blocks hereto or as otherwise indicated by notice to
the other party.
h.
This Agreement constitutes the entire agreement between the parties
hereto related to the subject matter hereof, and any and all prior written or
oral agreements, representations or understandings are expressly terminated.
i.
Licensor may amend this Agreement from time to time upon notice to
Licensee. Otherwise, any
modifications of this Agreement must be in writing and signed by both parties
hereto.
j.
Notwithstanding anything else to the contrary in this Agreement, Licensor
shall not be in default or otherwise liable for any delay in or failure of its
performance under this Agreement if such delay or failure arises by any reason
beyond its reasonable control, including any act of God, any acts of the common
enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or
delay in transportation or communications, or any act or failure to act by the
other party or such other party's employees, agents or contractors.
Licensor will promptly inform and consult with Licensee as to any of the
above causes which in its judgment may or could be the cause of a delay in the
performance of this Agreement.
THE
SOFTWARE IS OFFERED TO YOU ONLY UPON YOUR ACCEPTANCE WITHOUT
BY
ACKNOWLEDGING "I ACCEPT" BELOW, YOU, INTENDING TO BE LEGALLY BOUND,