Terms and Conditions
IN CONSIDERATION of the premises and recitals set forth on the front side hereof, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the parties hereto mutually agree as follows:
(a) "Licensed Software" means each system and application computer program described on the front side of this Agreement, each comprising a set of instructions or statements in machine-readable form; concepts and techniques embodied and expressed in such programs; any documentation relating to or describing such programs; and each copy, update, improvement, or modification of all or any part of such programs and documentation, in any medium, delivered to or made by Customer in accordance with this Agreement.
(b) "Authorized Quantity" means the quantity of copies of the Licensed Software set forth on the front side of this Agreement that Customer is authorized to use.
(c) "SLI Confidential Information" means any information, written or oral, disclosed to Customer by SLI related to SLI's business, including, but not limited to, information related to the Licensed Software, logic diagrams, manuals, schematics, drawings, research, development, products under development, manufacturing, purchasing, accounting, engineering, marketing, selling, and the documentation thereof, including information supplied to Customer from SLI's suppliers and outside sources on behalf of SLI for the purpose of this Agreement, with the following exceptions:
1) information which Customer can demonstrate in writing was known by Customer prior to being disclosed by SLI to Customer;
2) information ascertainable or obtainable from public or published sources;
3) information received by Customer from a third party who is not employed by or affiliated with SLI and is not under an obligation to SLI to maintain such information in confidence; and
4) information which is or becomes known to the public generally other than by a breach of this Agreement by Customer.
(d) "Agreement" means the terms and conditions herein and the exhibits attached hereto, and any future written amendments, modifications, or exhibits made in accordance herewith.
(a) SLI hereby grants to Customer a personal, non-exclusive and non-transferable license to possess the Licensed Software and to use (load, transmit, execute, store and display) the Licensed Software by any number of people on any number of computers; provided that the number of computers on which the Licensed Software is used is no more than the Authorized Quantity of the Licensed Software, that the use is solely for Customer's own internal use, and that the use is in compliance with the terms of this Agreement and all applicable laws and regulations. All computer programs provided by SLI to Customer as part of the Licensed Software will be provided in machine-readable form and any documentation provided as part of the Licensed Software will be provided to Customer in human-readable form. No license is granted with respect to any source code for the Licensed Software.
(b) Unless otherwise agreed to in writing, Customer understands and accepts that Licensed Software is tied to SLI's centrally managed Nitro-LM License Manager over the internet (learn more at http://www.nitrolm.com
) . All of SLI's Licensed Software are capable of floating over a network to another user/machine and within or external to the company, users may also reserve/checkout licenses from the server for user-specified/dedicated periods of time. Customer will have a specific account created for them on SLI's NitroMation licensed server that is dedicated to managing the Licensed Software. New users will have to register to use the Licensed Software. Licensed Software will not be activated until the user has confirmed their registration via e-mail.
3. Use of Licensed Software on Other Equipment
Customer may use the Licensed Software on backup equipment if one of its computers is inoperable, but only until operable status of such computer is restored and processing on the backup equipment is completed or the copy of the Licensed Software is removed from the inoperative computer. Except as authorized in this Section 3, use of the Licensed Software on more computers than the Authorized Quantity shall require an extension of the licenses granted hereunder to include an addition to the Authorized Quantity.
4. Retention of Title
Title to and ownership of the Licensed Software, all parts thereof, and any modifications or derivatives thereof, and to all intellectual property rights, including, without limitation, patent, trademark, copyright, and trade secret rights in and to the Licensed Software are and shall remain in SLI or the third party suppliers of the Licensed Software.
5. Fees and Expenses
(a) Payment for Licensed Software, unless otherwise agreed to in writing between the parties, will be remitted to SLI upon receipt of Invoice from SLI of the Licensed Software's Temporary Licensed delivery as defined on the front side of this Agreement unless other arrangements are made in advance. Final License files will be delivered after payment has been completely remitted to SLI. However, if a payment schedule is included as an additional term and attached hereto as Exhibit A, payments must be made as specified. All amounts quoted are to be paid in U.S. Dollars. SLI does accept payments by Credit Cards (i.e., Visa, Master Card, American Express and Discover). If customer elects to pay by this method a 4% transaction fee will be added to the gross purchase amount.
(b) Expenses may be incurred in the fulfillment of Customer's requirements beyond license fees. Customer agrees to pay any and all expenses related to fulfilling their requirements, including, but not limited to, air and/or travel, rental cars, lodging, meals, etc. At SLI's discretion, a standard per diem for meals ($100/day/person minimum, depending on the locale) shall be applied instead of actual cost. SLI will produce receipts for all other expenses incurred – unless a full day's per diem is applied. Mileage for SLI vehicles will be billed to Customer at US $0.55/mile. Any air travel over five (5) hours in total duration will be at Business Class or First Class at the
6. Limited License to Copy and Restriction
(a) SLI hereby grants to Customer a personal, non-exclusive and non-transferable license to reproduce the Licensed Software in copies for backup or archive purposes. All copies of the Licensed Software shall include all of the copyright and any other proprietary notices that are included in the copies of the Licensed Software delivered to Customer by SLI. The copies of the Licensed Software shall be and remain the property of SLI or its supplier, and the possession and use thereof shall be subject to the terms of this Agreement.
(b) Customer shall not grant any sublicenses related to the Licensed Software to any person or entity and shall not use the Licensed Software in connection with the performance of data processing services as a service bureau for any third party.
(c) Customer shall not reverse engineer, decompile or disassemble the Licensed Software or any portion thereof, nor otherwise attempt to create or derive the source code. Customer acknowledges that unauthorized reproduction, use, or disclosure of the Licensed Software or any part thereof is likely to cause irreparable injury to SLI and/or its suppliers, who shall therefore be entitled to injunctive relief to enforce these license restrictions, in addition to any other remedies available at law, in equity, or under this Agreement.
7. Enhancements/Custom Programming: Any enhancements or custom programming to the Licensed Software requested by Customer shall not be exclusive or proprietary to the Customer requesting such enhancements. All rights to enhancements/custom programming are the exclusive property of SLI to use, modify, apply, or incorporate at its discretion.
8. Non-Disclosure of SLI Confidential Information
(a) Customer acknowledges that all SLI Confidential Information shall at all times remain the property of SLI or its suppliers, and SLI shall have free and unlimited access at all times to all materials containing SLI Confidential Information and shall have the right to claim and take possession of such materials on demand.
(b) Except as required to assist SLI with the provision of the services under this Agreement, Customer will not, during the term of this Agreement or thereafter, directly or indirectly use, divulge, disseminate, disclose, lecture upon, or publish any SLI Confidential Information without having first obtained written permission from SLI to do so.
(c) Customer will safeguard and maintain secret all SLI Confidential Information and all documents and things that include or embody SLI Confidential Information.
(d) In order to comply with its obligations under this Section, Customer shall bind and engage all of its officers, employees, agents, and the like who might reasonably be expected to assist in the provision of the services to an agreement having terms of same as or equivalent to the terms of this Section of this Agreement.
(e) Upon termination of this Agreement for whatever reason or upon request by SLI, Customer will deliver to SLI all notes, drawings, memoranda, correspondence, documents, records, notebooks, printouts, disks, programs, electronic or magnetic storage media, and similar repositories of SLI Confidential Information, including all copies thereof, then in Customer's possession or under Customer's control, whether prepared by Customer or by employees or agents of Customer.
(f) This obligation to safeguard and maintain secret SLI Confidential Information shall survive termination of this Agreement and shall continue until such Confidential Information becomes generally available to the public.
9. Support: During and within the term of this License Agreement, SLI will provide technical support and any upgrades for the Licensed Software which SLI offers at no additional cost to its customers. Support covers the Licensed Software's compatibility with the target interface and versions that SLI defines are compatible with the Licensed Software. It is the Customer's responsibility to verify that SLI's software interface is installed, properly configured and compatible with SLI's installation and configuration requirements. Any variation from this requirement will terminate SLI's support obligation to Customer. As new revisions (e.g., 2.1, 2.2, 2.3, etc.) or major revisions (e.g. 2.x, 3.x, 4.x) of the Licensed Software become available, SLI will notify users of important upgrades and availabilities. These will be provided to registered users and companies for as long as their license is active with SLI.
10. SLI's Limited Warranties and Disclaimers
(a) SLI warrants and represents to Customer that it has the right to grant to Customer the licenses set forth in this Agreement.
(b) SLI warrants and represents to Customer that for a period of ninety (90) days after the date of delivery to Customer, the media upon which the Licensed Software is delivered shall be free from any defects in material or workmanship and that the Licensed Software will generally conform to the applicable published specifications prevailing at the time of delivery provided that the Licensed Software is used in a manner for which it was designed. SLI's sole obligation and liability under this warranty shall be, at SLI's option, to either repair or replace any media upon which the Licensed Software is delivered or portions thereof which fails during the warranty period due to a defect in material or workmanship and to use reasonable efforts to remedy any substantial nonconformance which is reported to SLI in writing within the warranty period. All replaced Licensed Software or portions thereof will become the property of SLI or its supplier. As a condition to this warranty, Customer must obtain shipping instructions from SLI prior to returning the Licensed Software and must ship the Licensed Software to SLI transportation prepaid. Transportation charges for the return of the Licensed Software to Customer within the United States will be paid by SLI. If SLI determines that the Licensed Software returned to it for repair or replacement is not defective within the terms of this warranty, Customer shall pay SLI all costs of handling and transportation. This warranty is contingent upon proper use of the Licensed Software and does not cover Licensed Software which has been modified without SLI's approval or which has been subjected to unusual physical or electrical stress or which has had the original identification marks removed or altered.
(c) SLI warrants and represents that, to the best of its knowledge, the Licensed Software and any data provided by SLI to Customer shall be free, at the time of shipment, of any computer virus ("Virus"). Virus shall be defined as any harmful or hidden programs or data incorporated therein with malicious or mischievous intent. In the event that it is determined that such a Virus exists, SLI shall, at its option, immediately replace any portion(s) of the Licensed Software which cannot be corrected or cured within a reasonable period of time or shall immediately reestablish the affected portion(s) of the Licensed Software to be functionally equivalent to that which existed prior to the introduction of the Virus.
(d) THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SLI SPECIFICALLY DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR LATENT DEFECTS WITH RESPECT TO THE LICENSED SOFTWARE LICENSED HEREUNDER.
11. LIMITATION OF LIABILITY
SLI SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CLAIMED TO HAVE RESULTED FROM THE USE, OPERATION OR PERFORMANCE OF THE LICENSED SOFTWARE OR RELATED IN ANY WAY TO THE ACQUISITION OF THE LICENSED SOFTWARE UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION. IN NO EVENT SHALL SLI BE LIABLE TO CUSTOMER FOR (A) ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF SLI HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, (B) ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS (C) ANY CLAIM, WHETHER IN CONTRACT OR TORT, THAT AROSE MORE THAN ONE (1) YEAR PRIOR TO INSTITUTION OF SUIT THEREFOR, OR (D) ANY DAMAGES (EXCEPT DAMAGES RESULTING FROM GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT) IN EXCESS OF LICENSE FEES PAID HEREUNDER FOR THE LICENSED SOFTWARE.
12. Term and Termination
(a) This Agreement is effective as of the Effective Date and shall remain in effect until terminated by Customer or SLI as set forth in this Section 12, or until Customer discontinues use of the Licensed Software.
(b) Any license granted by SLI pursuant hereto or this Agreement in its entirety may be terminated by Customer at any time upon thirty (30) days prior written notice to SLI. This Agreement may be terminated by Customer in its entirety only when all licenses granted by SLI pursuant hereto have been terminated.
(c) If Customer fails to comply with any of the terms and conditions of this Agreement, including, but not limited to, failing to make any required payments, SLI shall notify Customer in writing of such failure, setting forth the details thereof. Customer shall have thirty (30) days from the date of receipt of such notice to cure the failure to comply. If Customer does not cure the failure within the thirty (30) days, then SLI may terminate any license, permission, or service which forms a part of this Agreement, or terminate this Agreement in its entirety by giving written notice to Customer and termination shall be effective upon receipt of such written notice of termination by Customer.
(d) Upon expiration of the license term or upon notice of such termination, Customer shall immediately return or destroy the Licensed Software and all portions and copies thereof as directed by SLI and, if requested by SLI, shall certify in writing as to the destruction or return of the same. All confidentiality and non-disclosure obligations herein shall survive termination. All payments outstanding upon termination of this Agreement for any reason shall be paid prorated for the time of use of the Licensed Software.
13. Shipment and Delivery
Within thirty (30) days after the Effective Date, SLI shall deliver the Licensed Software to Customer either by conventional delivery methods (e.g., ground/overnight/mail) or via the internet (e.g., FTP, e-mail or HTTP download transactions. Customer shall pay the shipping and handling charges for delivery of the Licensed Software. Customer will bear all risk of loss or damage to the Licensed Software.
Customer may not assign this Agreement without SLI's prior written consent. SLI may assign this Agreement and the license granted herein to any other party, including but not limited to the party who supplies the Licensed Software to SLI.
All notices made pursuant to this Agreement shall be made in writing and shall be deposited in the United States mail, postage prepaid, certified or registered, return receipt requested, and addressed to the party at the address set forth herein or to such other address as the party to receive the notice so designates in writing to the other party. Unless otherwise provided in this Agreement, all notices shall be deemed as given as of the day of receipt by the respective party.
16. Nature of Relationship Between Parties.
Nothing herein shall be construed to place the parties in a relationship of partners or joint venturers and this Agreement does not make either party the agent or legal representative of the other for any purpose whatsoever. The parties further agree that no representation shall be made by either party that would create an apparent agency, employment, partnership, or joint venture. Neither party shall have the power, expressed or implied, to obligate or bind the other in any manner whatsoever. Neither party shall be responsible for any act or omission of the other or any employee of the other. SLI reserves the right to employ independent contractors to fulfill any SLI/Customer Agreements. SLI reserves the right to replace its staff with alternative staff if a need should arise to do so. SLI will document such changes in writing to Customer one week prior to execution.
The provisions of this Agreement shall be severable and, if any provision of this Agreement shall be held or declared to be illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect any other provision hereof, and the remainder of this Agreement, disregarding such invalid portion, shall continue in full force and effect as though such void provision had not been contained herein.
The headings of the several sections are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
19. Force Majeure
Neither party shall be responsible for any failure to comply with, or for any delay in performance of the terms of this Agreement, where such failure or delay is directly or indirectly caused by or results from events of force majeure beyond the reasonable control of such party.
No provision of this Agreement shall be deemed waived, unless such waiver shall be in writing and signed by the party against which the waiver is sought to be enforced. The waiver by either of the parties hereto of any breach of any provision hereof by the other party shall not be construed to be either a waiver of any succeeding breach of any such provision of a waiver of the provision itself.
Customer shall pay all sales, property, excise, or other federal, state, or local taxes, exclusive of taxes based on SLI's net income, which are hereafter due and payable by reason of the license of the Licensed Software or provision of support materials, or the use or possession of the same by Customer.
22. Choice of Law
This Agreement shall be in all respects interpreted and construed in accordance with and be governed by the laws of the State of Indiana.
23. Additional Terms
Any additional terms to this Agreement are set forth in Exhibit A which is attached hereto and hereby made a part hereof.
24. Changes to Agreement
The terms of this Agreement may be changed only by subsequent written agreement between SLI and Customer, or an amendment signed by both SLI and Customer.
25. Simplified Logic, Inc. exports outside of the United States per U.S. Government ECCN# EAR-99 terms and conditions. Simplified Logic, Inc. products may *NOT* exported or re-exported, either directly or indirectly to any country embargoed by the U.S., or is considered by the U.S. as a supporter of international terrorism without proper authorization from the U.S. Government (specifically - Cuba, Iran, North Korea, Sudan, and Syria).