Do not use InnoSource, Inc. (“Licensor”) Products until you (the “Licensee”) have read and agreed to all terms and conditions in this Agreement. By accessing or in any way using InnoSource’s products, perpetual licensing and subscription services (“Licensor Products”), the Licensee acknowledges that any such use is subject to the terms and conditions of this Agreement. Any use will constitute the Licensee’s full acceptance of this Agreement and result in a binding and legally enforceable agreement between the Licensee and Licensor. If you accept these terms on behalf of any other entity, including but not limited to any corporation, partnership or other entity, you represent and warrant that you are authorized to legally bind such entity to this Agreement and both you and such entity are deemed the Licensee hereunder.
Any access or use of Licensor’s Products, including but not limited to the installation of Licensor Products, Logins, or other access shall constitute full acceptance of this End User License Agreement (EULA).
(a) “Licensor Products” means the computer programs, documentation and related files that are part of the Licensor Products identified in the Purchase Agreement, as well as any related or other Licensor owned and provided Licensor Products libraries and related items.
(b) “Install” means placing the Licensor Products on a computer’s hard disk, CD-ROM or other secondary storage device.
(c) “Use” means accessing the Licensor Products in any way including but not limited to logging in or referencing the Licensor Products in a Web browser by a designated URL address or other means.
(d) “Purchase Agreement” means a fully executed written agreement between Licensor and Licensee setting forth the exact products and services being purchased, the term of such purchases and the costs thereof. Purchase Agreements may include software licensing purchases for subscription or perpetual licensing as well as related items.
2. GRANT OF RIGHTS.
Licensor hereby grants to Licensee a non-transferable, nonexclusive license to install and use the Licensor Products on one single server computer or virtual machine (“server”) in its possession or available in a private cloud hosting environment provided by or on behalf of the Licensee; or as otherwise defined in a fully executed Purchase Agreement.
Access: Any use of Licensor Products shall be (i) in accordance with the Documentation and Best Practices from Licensor, and (ii) permitted solely for the term and in the quantities specified in any order/purchase documentation from Licensor. Licensee shall be directly responsible for any violations of this Agreement by any party that it allows to access the Licensor’s Products.
Use Restrictions: Except as permitted by this Agreement, Licensee will not, nor permit or authorize others to distribute, convey, lend, lease, share, sell, transfer, sublicense, rent, or time share any of Licensor Products, or any of components or product keys; or permit third parties to copy, download or install any Licensor Products; copy, alter, decompile, disassemble or reverse engineer or otherwise attempt to extract, access, read, use, or derive the source code or any methods, algorithms or procedures from the Licensor Products; or modify, adapt, translate or create derivative works based upon the Licensor Products, except as otherwise expressly permitted by applicable law or separately agreed to in writing and in advance by Licensor; transfer or reassign use of the Licensor Products if Licensee is a competitor; or use the Licensor Products in any manner that competes with Licensor, including but not limited to, benchmarking, collecting and publishing data or analysis relating to the performance of the Licensor Products, or developing or marketing a product that is competitive with any Licensor Product or service.
3. LICENSE TERM.
This License is effective when executed by both parties and will last for a term of 1 year unless otherwise set forth in the Purchase Agreement. Thereafter, this License shall automatically be renewed for successive 1 year terms unless Licensee gives Licensor written notice at least 60 days before the day on which the license or renewal would expire of its intention not to renew this license; unless Licensor at its sole discretion terminates the subscription renewals in advance. Renewal of license requires Licensee to submit payment in full of the then-current subscription fee for the next term.
4. LICENSE FEE.
Licensee agrees to pay Licensor the license fees in accordance with a Purchase Agreement or similar purchase agreement which shall designate the applicable license fees and subscription term. Licensee understands and accepts responsibility for paying applicable state sales tax, which may be billed separately and on a separate date based on state requirements and guidelines for sales tax nexus where applicable to Licensor. Licensee fees are non-refundable.
Licensor shall have the right to immediately terminate this License if Licensee fails to perform any obligation required of Licensee under this License.
(a) Licensor has the right to terminate this Agreement if the Licensee materially breaches or is in material default of any obligation hereunder which default has not been cured within 10 days after receipt of notice of such default from the Licensor or within such additional cure period as the Licensor may authorize.
(b) Either party may terminate this Agreement by written notice to the other party if the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, or has wound up liquidated, voluntarily or otherwise.
(c) In the event that this Agreement is terminated, the licenses granted to Licensee shall immediately terminate and Licensee shall return to Licensor all copies of the Licensor Products and any associated documentation, and each party shall return to the other all papers, materials, and other properties of the other party then in its possession.
(d) The obligations of the parties under Section 6 (Return of Properties) shall survive the termination of any license hereunder.
(e) Any remedy expressed herein is in addition to any other remedies at law or in equity.
6.RETURN OR DESTRUCTION OF LICENSOR PRODUCTS UPON TERMINATION.
Upon termination of this License and/or expiration of subscription, Licensee shall return to Licensor or destroy the original and all copies of the Licensor Products and related documentation or items including partial copies and modifications. Licensor shall have a reasonable opportunity to conduct an inspection of Licensee’s place of business, systems and hosting environments to assure compliance with this provision. Licensor shall also have the right to access relevant statistics and meta-data related to Licensee’s use of Licensor Products during and after the License term. Such meta-data may be accessed remotely as part of a regular effort to maintain and support the Licensor Products.
The obligations of the parties under this Section shall survive the termination of any license hereunder.
7. TITLE TO LICENSOR PRODUCTS.
Licensor retains title to and ownership of the Licensor Products and all enhancements, modifications, and updates of the Licensor Products.
8. COPIES OF LICENSOR PRODUCTS.
Licensee shall have the right to reproduce for backup and archival purposes all of the Licensor Products described in the Purchase Agreement, subject to the restrictions on use and disclosure set forth herein and/or in the Purchase Agreement.
9. MODIFICATIONS AND ENHANCEMENTS.
Licensee will make no efforts to reverse engineer the Licensor Products or make any modifications or enhancements without Licensor’s express written consent.
10. WARRANTY LIMITATIONS.
(a) Licensor warrants that on the date the Licensor Products are delivered to Licensee, the Licensor Products furnished hereunder shall materially conform to the Specifications; and any Services shall be performed in a timely, professional and workmanlike manner by qualified professional personnel; and that the Services and Licensor Products shall conform to the standards generally observed in the industry for similar services and Licensor Products.
(b) THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT FOR THE EXPRESS LIMITED WAY SET FORTH ABOVE, LICENSOR HEREBY DISCLAIMS AND LICENSEE EXPRESSLY WAIVES ANY AND ALL OTHER EXPRESS WARRANTIES OR REPRESENTATIONS OF ANY KIND OR NATURE, AND ANY AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED T0, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. REMEDY LIMITATIONS.
Licensor’s entire liability and Licensee’s sole and exclusive remedy for breach of the foregoing warranty shall be Licensor’s option to either: return to Licensee the prorated license fee for maximum of three months period in which the Licensor Products did not perform according to this warranty, or repair the defects or replace the failing portions of the Licensor Products as determined solely by Licensor.
12. DAMAGE LIMITATIONS.
LICENSOR SHALL NOT BE LIABLE TO THE LICENSEE FOR INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING LOSS OF PROFITS, AND LICENSOR’S LIABILITY TO LICENSEE FOR ANY OTHER DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT WHETHER IN CONTRACT, TORT, OR OTHERWISE WILL BE LIMITED TO THE AMOUNT RECEIVED BY LICENSOR FROM LICENSEE AS COMPENSATION FOR THE LICENSOR PRODUCTS DURING THE 1 MONTH PERIOD IMMEDIATELY PRIOR TO THE TIME SUCH CLAIM AROSE.
Licensee will treat the Licensor Products as a trade secret and proprietary know-how belonging to Licensor that is being made available to Licensee in confidence.
(a) Both parties agree that the party receiving Information will maintain such information in confidence for a period of 3 years from the date of disclosure of such information. Each party shall protect the other party’s Information to the same extent that it protects its’ own confidential and proprietary information and shall take all reasonable precautions to prevent unauthorized disclosure to third parties. The parties acknowledge that the unauthorized disclosure of such Information will cause irreparable harm. Accordingly, the parties agree that the injured party shall have the right to seek immediate injunctive relief enjoining such unauthorized disclosure.
(b) The provisions of this Section 13. shall not apply to information (i) known to the receiving party at the time of receipt from the other party, (ii) generally known or available to the public through no act or failure to act by the receiving party, (iii) furnished to third parties by the disclosing party without restriction on disclosure, (iv) furnished to the receiving party by a third party as a matter of right and without restriction on disclosure, independently developed, or furnished as required by court order or similar governmental authority or by the imminent likelihood thereof or by applicable law.
(c) Immediately upon termination of this Agreement or at the request of the other party, each of the parties shall promptly return all materials in its possession containing Information of the other party.
(d) Neither party shall use the name(s), trademark(s), tradename(s), or logo(s) whether registered or not, of the other party in publicity releases, advertising, or in any other manner, without securing the prior written approval of the other party.
(e) Each party agrees not to publicize or disclose to any third party without the consent of the other, either the terms of this Agreement or the fact of its agreement and execution. In particular, no press releases shall be made without the mutual consent of Licensor and Licensee, such consent not to be unreasonably withheld.
14. COPYRIGHT AND TRADEMARK OBLIGATIONS.
Licensee agrees not to remove, deface, or destroy any copyright, patent notice, trademark, service mark, proprietary markings or confidential legends placed on or within the Licensor Products.
15. PROPRIETARY RIGHTS.
Licensee agrees not to disassemble or reverse engineer the Product. Licensee hereby expressly acknowledges that it does not have, and shall not by virtue of this License Agreement acquire, any proprietary rights whatsoever of any kind in or over any adaptation, modification, derivation, addition, or extension to Licensor Products, whether made by Licensee or by Licensor and that Licensee’s sole right in relation thereto is as set forth herein. The original and any copies of Licensor Products, whether made by Licensor or by Licensee, shall remain the property of Licensor. If Licensee becomes aware of any unauthorized disclosure of the use of Licensor Products, Licensee shall immediately notify Licensor thereof and shall advise Licensor of the full particulars thereof in writing.
The parties agree to submit any dispute under this License to binding arbitration under the rules of the American Arbitration Association in the following location: Delaware County, Ohio. Judgment upon the award rendered by the arbitrator may be entered in any court in the state of Ohio with jurisdiction to do so.
17. ATTORNEY FEES.
If any legal action is necessary to enforce this License, the prevailing party shall be entitled to reasonable attorney fees, costs, and expenses in addition to any other relief to which it may be entitled.
18. EXPORT ADMINISTRATION.
Licensee agrees to comply fully with the export laws and regulations of the United States Department of Commerce (“Export Laws”) to assure that neither the Licensor Products nor any direct products thereof is (i) exported, directly or indirectly, in violation of Export Laws; or (ii) are intended to be used for any purposes prohibited by the Export Laws. Licensor agrees to provide sufficient technical information for application for export license to the Department of Commerce in order for Licensee to obtain an export license to countries authorized by the Export Laws and/or assign any existing export license Licensor may have for Licensee’s use in exporting Licensor Products procured hereunder for use in such countries permitted by Export Laws.
19. FORCE MAJEURE.
(a) In the event that either party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of (or if loss of the Licensor Products is caused by) natural disaster, actions or decrees of governmental bodies or communications line failure not the fault of the affected party (hereinafter referred to as a “Force Majeure Event”), the party who has been so affected shall give written notice to the other party within 5 days and shall do everything possible to resume performance. Upon receipt of such notice, this Agreement shall immediately be suspended. If the period of non-performance exceeds 60 days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may by giving written notice terminate this Agreement. However, delays in delivery due to Force Majeure Events shall automatically extend the delivery date for a period equal to the duration of such events; any warranty period affected by a Force Majeure Event shall likewise be extended for a period equal to the duration of such event.
(b) This Agreement, or portion thereof, may be terminated or modified by written agreement of the parties in the event of any notification from the United States Government, or any judicial statement, whether by appealable order, final judgment or otherwise, that the terms, conditions, or performance of obligations hereunder are inconsistent with the terms of the Telecommunications Act of 1996 or other applicable laws.
20. RELATIONSHIP OF THE PARTIES.
The relationship established by this Agreement is of licensor and licensee, each to constitute an independent contractor. Nothing in this Agreement shall be construed to give either party the power to direct or control the daily activities of the other party, or to constitute the parties as principal and agent, employer and employee, partners, joint ventures, co-owners, or otherwise as participants in a joint undertaking. The Parties understand and agree that, except as specifically provided in this Agreement, Licensor does not grant Licensee the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of Licensor, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of Licensor, or to transfer, release, or waive any right, title, or interest of Licensor.
The rights and obligations of the parties which by their nature would be expected to survive termination or expiration of this Agreement shall so survive; particularly but not limited to Sections 6, 7, 9, 10, 11, 12, 13, 15, 16, 17, 18, 20, 21 and 22.
22. GENERAL PROVISIONS.
(a) Complete Agreement: This License Agreement together with any schedules referred to in this Agreement, all of which are incorporated herein by reference, constitutes the sole and entire agreement between the parties. This Agreement supersedes all prior understandings, agreements, representations, and documentation relating to the subject matter of this Agreement.
(b) Modifications: Modifications and amendments to this Agreement, including any exhibit, schedule or attachment hereto, shall be enforceable only if in writing and signed by authorized representatives of both parties.
(c) Applicable law: This License will be governed by the laws of the State of Ohio and of the United States of America. Venue for the purposes of legal action shall be the courts of Delaware County, Ohio and the United States District Court for the Southern District of Ohio.
(d) Notices: All notices and other communications given in connection with this License shall be in writing and shall be deemed given as follows: When delivered personally to the recipient’s known address; Three days after being deposited in the United States mail, postage prepaid to the recipient’s address as appearing in the Purchase Agreement; or when sent by legally scanned/imaged document with signature to email address of the recipient known to the party giving notice, where the email is acknowledged via a read receipt or reply. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first-class or certified mail or the recipient delivers a written confirmation of receipt.
(e). Licensee may not assign or transfer any of the rights or responsibilities set forth herein without the express written consent of Licensor (which shall not be unreasonably withheld) provided, however, that Licensor may assign this Agreement, and/or any of its rights and/or obligations hereunder upon written notice to Licensee, to a successor of all, or substantially all, of Licensor’s business or assets without Licensee’s consent. Any other purported attempt to do so shall be void.
(f) Licensor’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of any such rights.
(g) Each Appendix and Exhibit referred to in this Agreement is incorporated in full in this Agreement wherever a reference to it is made.
(h) This Agreement shall be binding on, and inure to the benefit of, the parties hereto and their respective heirs, legal representatives, successors and assigns.
(i) Any invalidity, in whole or in part, of any provision of this Agreement, shall not affect the validity of any other of its provisions.
(j) The terms and conditions of this Agreement replace, supersede, and shall take precedence over the terms and conditions of any previous or existing Licensor Products agreement between the parties, or shrinkwrap agreement, provided for the Licensor Products acquired for the purposes hereunder.