- License Grant. Affirmed grants to Licensee, subject to the terms and conditions of this Agreement and payment of all applicable fees, a nonexclusive, nontransferable right to use the Affirmed software and related documentation (“Software”) as installed on equipment owned by Licensee and approved by Affirmed in its Documentation (“Designated Equipment”) during the Term. For each order of Software, Affirmed reserves the right to provide Licensee with temporary licenses to the Software which will be valid for a period of sixty (60) days following shipment; upon payment in full for the Software, Affirmed will convert such temporary licenses to permanent licenses. Licensee may copy the Software in object code form only for archival and back-up purposes. This Agreement grants to Licensee the right to use the Software only on the Designated Equipment. Affirmed reserves all rights not expressly granted to Licensee. Ownership of, and title to, the Software (which includes any manuals, guides or any other printed material that Affirmed provides to Licensee for use with the Software (“Documentation”)) and all copies thereof, is and will be held by Affirmed and its licensors. Software is licensed, not sold, to Licensee, notwithstanding the use herein of the words “sale,” “sell,” “sold,” and the like. Licensee will not be permitted to sublicense any of its rights under this Agreement, except with the prior written consent of Affirmed.
- Restrictions. Except as expressly authorized in this Agreement, Licensee may not rent, lease, sublicense, distribute, transfer, copy, reproduce, modify or time-share the Software, nor permit publication or distribution of results of any benchmark tests run on the Software. Licensee is not permitted (1) to decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the Software, (2) to use any similar means to discover the source code of the Software or to discover the trade secrets in the Software, or (3) to otherwise circumvent any technological measure that controls access to the Software; provided that, if required under applicable law, upon Licensee’s written request, Affirmed shall provide information to Licensee, subject to the confidentiality provisions of this Agreement and for a nominal administrative charge, solely as necessary for Licensee to achieve the limited purpose of interoperability between the Software and other software. Licensee agrees not to remove or alter any copyright notice or restrictive rights legend from the Software. With respect to Oracle software included in the Software, Licensee further agrees to the terms of Exhibit A hereto. The source code for the Software and other trade secrets embodied in the Software are not disclosed or provided to Licensee.
- Designated Equipment; Shipment; License Keys.
(a) Purchase of Designated Equipment. Licensee is responsible for purchasing the Designated Equipment on which the Software is installed. Affirmed shall provide a registration key to enable the Licensee to use the Software on the Designated Equipment.(b) Delivery. Unless otherwise agreed to in writing, the Software shall be delivered to Licensee via electronic download.
- Taxes. Prices do not include any tax or other governmental charge or assessment on the license, sale, shipment, production or use of any Software provided to Licensee hereunder. Such taxes and charges, when applicable, may appear as separate additional charges on the invoice. Licensee shall be solely responsible for, and will pay upon demand, any such tax, charge or assessment, unless Licensee has furnished an appropriate valid certificate of exemption issued by or acceptable to the tax authority in question.
- Confidentiality. (a) Confidential Information. Confidential Information of a party means all information of that party (a “Discloser”) relating to or disclosed to the other party (a “Recipient”) by or on behalf of the Discloser during the Term which is or should be reasonably understood by the Recipient to be confidential or proprietary to the Discloser, including, but not limited to, the material provisions of this Agreement, the Software, technical processes and formulas, source codes and other software, product designs, sales, cost and other unpublished financial information, product and business plans, projections, and marketing data. Confidential Information does not include information that: (a) was known to the Recipient before receipt from Discloser; (b) is obtained by the Recipient from any third person not owing any confidentiality obligation to the Discloser; (c) is or becomes generally known in the trade through no act or omission of the Recipient; or (d) is independently developed by the Recipient or Recipient’s employees who have not had direct or indirect access to Discloser’s Confidential Information. Recipient will bear the burden of establishing any of these exclusions. (b) Use. Confidential Information of each party will be used by the other party solely for the purposes permitted by this Agreement and may not be disclosed to a third party without the disclosing party’s prior written consent. Each party acknowledges that it will not obtain any rights of any sort in or to the Confidential Information of the other party as a result of such disclosure and that any such rights must be the subject of separate written agreement(s). Either party may disclose the general nature, but not the specific financial terms, of this Agreement without the prior consent of the other party; provided each party may provide a copy of this Agreement to any finance provider in conjunction with a financing transaction, if such finance provider agrees to keep this Agreement confidential.(c) Required Disclosures. Nothing herein shall prevent either party from disclosing all or part of the Confidential Information of the other as necessary pursuant to the lawful requirement of a governmental agency or when disclosure is required by operation of law; provided that prior to any such disclosure, a Recipient shall use reasonable efforts to (i) promptly notify the Discloser in writing of such requirement to disclose, and (ii) cooperate fully with the Discloser in protecting against any such disclosure or obtaining a protective order. Recipient may comply with any such court order or other legal requirement, but any information so disclosed shall continue to be treated as Confidential Information hereunder.(d) Equitable Relief. Money damages will not be an adequate remedy if this Section 5 is breached and, therefore, each party shall, in addition to any other legal or equitable remedies, be entitled to an injunction or similar equitable relief against such breach or threatened breach without the necessity of posting any bond or surety.
- Warranties and Disclaimers.(a) Licensee Warranty. Licensee represents and warrants that (i) it has the requisite power, authority and resources to enter into this Agreement and to perform its obligations pursuant to this Agreement; (ii) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (iii) it is not bound by any agreement or obligation (and will not enter into or assume any agreement or obligation) that could interfere with its obligations under this Agreement; and (iv) in connection with its obligations under this Agreement, it will comply with all applicable laws and regulations and has obtained all applicable permits, rights and licenses.(b) Affirmed Warranty. Affirmed warrants that the Software will perform substantially in accordance with the Documentation under normal use (i) for a period of 90 days from the date of delivery of Software. In the event of a breach of this warranty, as Affirmed’s sole obligation and Licensee’s sole remedy, Affirmed shall, at its option and expense, correct, repair or replace the nonconforming Software or refund the fees paid for the nonconforming Software upon their return.(i) Exclusions. The warranties set forth in this Section and Affirmed’s support and maintenance obligations hereunder will not apply to any Software or services to the extent the defect or non-conformance is due to (1) alteration or modification to the Software not performed by Affirmed; (2) performance of Software installation, maintenance or other service not in compliance with the applicable Documentation; (3) use in conjunction with products incompatible or not approved by Affirmed with such Software; (4) any error, act or omission by anyone other than Affirmed or Affirmed’s agents, employees, and subcontractors; (5) failure by Licensee to be using the current release of the Software or the immediately prior release or a release that remedies such non-confirmance; or (6) where written notice of the defect has not been given to Affirmed by Licensee within the applicable warranty period.(ii) Returns. Repaired, modified or replaced Software will be delivered to Licensee and the warranty period therefore will continue for thirty (30) days following delivery of the returned Software, or the balance of the original Software warranty period, whichever is longer.(b) WARRANTY DISCLAIMER. THE ABOVE WARRANTIES ARE THE ONLY WARRANTIES OF ANY KIND MADE BY AFFIRMED WITH RESPECT TO THE SOFTWARE. AFFIRMED HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE AND THE THIRD PARTY SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND NON-INTERFERENCE WITH ENJOYMENT, ACCURACY, INTEGRATION, AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. AFFIRMED DOES NOT WARRANT THAT (A) THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, (B) OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR (C) ALL DEFECTS WILL BE CORRECTED. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, the SOFTWARE ARE provided “AS IS” without warranty of any kind.
- Indemnification. (a) Infringement. Subject to the provisions of Section 7(c), Affirmed shall defend, indemnify and hold harmless Licensee from and against any claim brought against Licensee by a third party, and any loss, damage, expense (including reasonable attorney’s fees) or liability awarded by a court of final jurisdiction or as party of a final settlement (collectively, “Losses”) arising from or related to any third party claim that Licensee’s use of the Software in accordance with the terms of this Agreement constitutes an infringement of a valid claim of any U.S. patent. Affirmed shall have no liability or obligation to Licensee under this Section 9(a) with respect to any infringement claim in the event and to the extent based upon: (i) use of the Software in an application or environment or on a platform or with devices for which the Software was not designed or contemplated (it being expressly agreed that the Software is intended to operate solely on the Designated Equipment), (ii) modifications, alterations, combinations or enhancements of the Software not created by Affirmed, (iii) any patent, copyright or other intellectual property right in which Licensee or any affiliate has an interest, or (iv) failure of Licensee to install any corrections or enhancements to the Software made available by Affirmed. Licensee shall indemnify and hold Affirmed, its subsidiaries, parent corporations, Affiliates, officers, directors, independent contractors, partners, shareholders, employees, agents, successors and assigns harmless from all Losses arising from any claim enumerated in clauses (i) through (iv) above.(b) Additional Indemnity. In addition to its obligations under Section 7(a), if the Software is held to constitute an infringement of any third party’s U.S. patent or if in Affirmed’s opinion, the Software is, or is likely to be held to constitute, such an infringement, Affirmed will at its expense and option: (a) procure the right for Licensee to continue using the Software; (b) replace the Software with a non-infringing equivalent Software conforming to the Software specifications; (c) modify the Software to make it non-infringing while conforming to the Software specifications; or (d) if options (a)-(c) are not commercially feasible, terminate Licensee’s license to the allegedly infringing Software and pay to Licensee an amount not to exceed the depreciated value of the Software for which Licensee has paid a license fee, depreciated on a straight-line basis over a three (3) year period.(c) Procedure. To receive the benefit of indemnification under this Section 7, the party seeking indemnification must promptly notify the indemnifying party in writing of a claim or suit and provide reasonable cooperation (at the indemnifying party’s expense) and tender to the indemnifying party (and its insurer) sole control over the defense and/or settlement of the claim or suit. The indemnified party has the right to participate in the claim or suit with counsel of its own choosing at its own expense. This Section 7 states the entire liability of either party in respect of any third party claim. The indemnified party shall have the right to approve any settlement that does not provide a full release to the indemnified party and/or requires it to admit any wrongdoing.
- LIMITATION OF LIABILITY. AFFIRMED’S AND ITS LICENSORS’ LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, WILL NOT EXCEED THE AGGREGATE FEES PAID BY LICENSEE FOR THE PRODUCTS OR SERVICES INVOLVED IN THE CLAIM DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM. AFFIRMED WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, NOR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, WHETHER UNDER THIS AGREEMENT OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT.
- U.S. Government Restricted Rights. If the Affirmed Software or Documentation is acquired by or on behalf of a unit or agency of the United States Government (the “Government”), the Government agrees that such Affirmed Software and Documentation is “commercial computer software” and “commercial computer software documentation”, respectively, and that absent a written agreement to the contrary, the Government’s rights with respect to such Affirmed Software and Documentation are, in the case of civilian agency use, RESTRICTED RIGHTS, as defined in FAR §52.227-19, and if for the Department of Defense use, limited by the terms of this Agreement, pursuant to DFARS §227.7202-1 through §227.7202-4 as applicable. The use of the Affirmed Software or Documentation by the Government constitutes acknowledgment of Affirmed’s proprietary rights in the Software and Documentation. Contractor/manufacturer is Affirmed. Affirmed’s address is set forth at the beginning of this Agreement.
- Export Laws. Licensee will not export or re-export, directly or indirectly (including via remote access), the Software (or any portion thereof), Documentation or other information or materials provided by Affirmed hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. Licensee will comply with all applicable laws, rules and regulations, and Licensee will reimburse Affirmed for any damages, fines, penalties, assessments, liabilities, costs and expenses resulting from Reseller’s violation of this Section 10.
- Termination. (a) Termination. Each party will have the right to terminate this Agreement due to any breach by the other party of a material provision of this Agreement. However, any such termination will require that the party in default first be provided with a written notice which details the nature and specifics of the breach, and provides the defaulting party with at least thirty (30) days to cure the breach, except in the case of a breach of a party’s confidentiality obligations or a violation by one party of the other party’s intellectual property rights, in which case the other party may terminate this Agreement immediately. Failure to cure the breach within the applicable cure period will result in termination of this Agreement upon expiration of the applicable cure period. Either party may terminate this Agreement immediately upon written notice if the other party becomes insolvent or bankrupt, or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or ceases to function as a legitimate business. Either party may also terminate this Agreement at any time on ninety (90) days’ prior written notice to the other. (b) Effect of Termination or Expiration. Upon termination or expiration of this Agreement: (i) Licensee will discontinue any and all use of the licenses granted herein and (ii) each party will return to the other party, or certify in writing to the other party, that it has destroyed all documents and other tangible items it or its employees or agents have received or created pursuant to this Agreement pertaining, referring or relating to the Confidential Information of the other party.Termination of this Agreement by either party for any reason will not affect the rights and obligations of the parties that accrued prior to the effective date of termination of this Agreement or release either party from obligations made prior to the date of termination, or affect purchase orders for Software that have been accepted by Affirmed as of the effective date of termination. Licensee’s obligation to pay all amounts due hereunder will survive termination or expiration of this Agreement. Notwithstanding the foregoing, licenses granted to Licensee by Affirmed and for which the applicable license fee has been paid to Affirmed shall survive such termination.
- Commitments. Affirmed has made no commitments or promises orally or in writing with respect to delivery of any future software features or functions. In relation to any future software features or functions, all presentations, RFP responses and/or Software roadmap documents, information or discussions, either prior to or following the date herein, are for informational purposes only, and Affirmed has no obligation to provide any future releases or upgrades or any features, enhancements or functions, unless specifically agreed to in writing by both parties. Licensee acknowledges that it made no purchase decisions based upon any future software features or functions.
- Evaluation or Beta Software. In the event Affirmed provides Licensee with any evaluation or beta products in connection with this Agreement, Licensee agrees that any such Software products will be used for testing or evaluation purposes only for the agreed upon period. All such products are provided AS IS, with all faults, with no warranties or representations (express or implied) whatsoever. AFFIRMED SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, DIRECT, OR PUNITIVE DAMAGES IN CONNECTION WITH THE USE OF SUCH SOFTWARE, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE.
- Audit. Affirmed reserves the right to audit Licensee to ensure Licensee’s compliance with the terms and conditions of this Agreement and that Licensee’s usage of the Software does not exceed the licensed number of licenses purchased by Licensee.
- General. (a) Notices. All communications under this Agreement shall be in writing or by confirmed fax, and shall be deemed to have been duly given (i) upon personal delivery, (ii) upon deposit in the mail if mailed by certified mail, return receipt requested, postage prepaid, (iii) upon deposit with a recognized courier with next-day delivery instructions, or (iv) upon confirmation of transmission, if sent by confirmed fax, to the address or fax number set forth below or such other address or fax number as either party may specify by notice sent in accordance with this Section 16(a). (b) Severability. In the event that any provision of this Agreement shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of this Agreement. The parties agree that they will negotiate in good faith or will permit a court or arbitrator to replace any provision of this Agreement so held invalid, unenforceable or illegal with a valid provision that is as similar as possible in substance to the invalid, unenforceable or illegal provision. (c) Waiver. The waiver by a party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of a party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party. (d) Governing Law; Jurisdiction Attorney’s Fees. This Agreement and the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of New York without taking into account its principles on conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. In any such action, suit or proceeding, the successful or prevailing party will be entitled to recover its reasonable attorneys’ fees and other costs incurred in connection with that action, suit or proceeding, in addition to any other relief to which such party may be entitled. (e) Relationship of the Parties. Nothing contained in this Agreement shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Neither party shall have the authority to make any statements, representations or commitments or to take any actions which shall be binding on the other party, except as may be explicitly authorized in writing by such other party. The terms of this Agreement will apply to and benefit Affirmed’s third-party licensors. (f) Entire Agreement; Amendment; Assignments. This Agreement and the Exhibits (a) constitute the entire agreement of the parties hereto with respect to the subject matter hereof and supersede all prior understandings and agreements, whether written or oral, as to such subject matter; (b) may be amended or modified only by a writing executed by an authorized officer of the party against whom enforcement is sought; (c) may not be assigned by Licensee without the written consent of Affirmed; and (d) shall be binding upon and shall inure to the benefit of the respective successors and permitted assigns of the parties hereto. If Licensee’s purchase order contains provisions inconsistent with or in addition to the provisions hereof, this Agreement shall prevail. (g) Force Majeure. In no event shall either party have any liability to the other for any delayed performance or nonperformance by such party which results, in whole or in part, directly or indirectly, from any cause beyond the reasonable control of such party. Such causes shall include (but shall not be limited to) acts of God, wars, riots, civil disturbances, strikes, labor disputes, fires, storms, floods, earthquakes, natural disasters, inability to obtain or use raw or component materials or parts, labor, equipment, facilities, or transportation, and acts of any government or agency thereof. (h) Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed to be an original, and all such counterparts shall constitute one and the same instrument. This Agreement may be executed via facsimile or PDF transmission.(i) Survival. Section 5, 7, 8, 11, 14 and 15 shall survive the expiration or termination of this Agreement.
Oracle Software Terms
Licensee agrees to the following terms with respect to Oracle software included in the Software (the “Oracle Programs”):
- to limit the use of the Oracle Programs to the legal entity that executes this Agreement.
- to restrict use of the Oracle to the scope of the application package and to the internal business operations of Licensee. Licensee may permit agents or contractors (including, without limitation, outsourcers) to use the application package for Licensee’s internal business operations as described above, subject to the terms of this Agreement. For an application package that includes Oracle and HP Programs that are specifically designed to facilitate interactions between the Licensee and the Licensee’s other suppliers, Licensee may allow its other suppliers to use the application package in furtherance of such interactions subject to the terms of this Agreement.
- that Oracle or their licensor retains all ownership and intellectual property rights to the Oracle Programs.
- it may not (a) transfer the Oracle Programs except for temporary transfer in the event of computer malfunction if the application package embeds the Oracle Programs in a physical device and (b) assign, give, or transfer the Oracle Programs and/or any services ordered or an interest in them to another individual or entity.
- it may not (a) use the Oracle Programs for rental, timesharing, subscription service, hosting, or outsourcing; (b) remove or modify any program markings or any notice of Oracle’s or its licensors proprietary rights; (c) make the Oracle Programs available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license); and (d) allow title to the Oracle Programs to pass to any other party.
- it may not reverse engineer (unless required by law for interoperability), disassemble or decompile the Oracle Programs (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by Oracle Programs) and may not duplicate the Oracle Programs except for a sufficient number of copies of each program for the Licensee’s licensed use and one copy of each program media.
- to the extent permitted by applicable law, Oracle’s liability for (a) any damages, whether direct, indirect, incidental, special, punitive or consequential, and (b) any loss of profits, revenue, data or data use, arising from the use of the Oracle Programs, is disclaimed.
- Except as otherwise provided in the Agreement at the termination of the agreement, to discontinue use and destroy or return to Affirmed all copies of the Oracle Programs and documentation.
- it may not publish any results of benchmark tests run on the Oracle and HP Programs.
- that the Oracle Programs are subject to a restricted license and can only be used in conjunction with the application package and that the Licensee is not permitted to modify the Oracle Programs.
- to permit Affirmed to audit Licensee’s use of the Oracle Programs, to provide reasonable assistance and access to information in the course of such audit and to permit Affirmed to report the audit results to Oracle or to assign Affirmed’s right to audit the Licensee’s use of the Oracle Programs to Oracle. Where Affirmed assigns its right to audit to Oracle then Oracle shall not be responsible for any of Affirmed’s or the Licensee’s costs incurred in cooperating with the audit.
- that Oracle is a third party beneficiary of this Agreement.
- to exclude the application of the Uniform Computer Information Transactions Act.
- that some Oracle Programs may include source code that Oracle may provide as part of its standard shipment of such Oracle Programs, which source code shall be governed by the terms of this Agreement.
- that third party technology that may be appropriate or necessary for use with some Oracle Programs is specified in the application package documentation or as otherwise notified by Affirmed and that such third party technology is licensed to the Licensee only for use with the application package under the terms of the third party license agreement specified in the application package documentation or as otherwise notified by Affirmed and not under the terms of this Agreement.