THESE SOFTWARE LICENSE TERMS (“SOFTWARE LICENSE TERMS”) GOVERN CUSTOMER’S LICENSE AND
USE OF EXARI’S SOFTWARE PRODUCTS, AND EXARI’S PROVISION OF MAINTENANCE & SUPPORT SERVICES
AND, IF APPLICABLE, HOSTING SERVICES, RELATED THERETO. BY EXECUTING AN ORDER FORM THAT
REFERENCES THESE SOFTWARE LICENSE TERMS, CUSTOMER ACCEPTS AND AGREES TO ALL OF THE
TERMS AND CONDITIONS HEREOF. CUSTOMER HAS NO RIGHT TO USE ANY SOFTWARE PRODUCTS OR
OBTAIN ANY MAINTENANCE & SUPPORT SERVICES OR HOSTING SERVICES OTHER THAN PURSUANT TO
AND IN ACCORDANCE WITH THESE SOFTWARE LICENSE TERMS.
In addition to the capitalized terms defined upon first use in these Software License Terms, certain capitalized terms are defined in the Schedule of Definitions included at the end of these Software License Terms.
2.1 The capitalized term “Software License Agreement” when used herein refers to the terms of an Order Form (insofar as such terms pertain to Software Products, Maintenance & Support Services and/or Hosting Services), together with these Software License Terms. If the Parties enter into more than one Order Form, then each additional Order Form shall be deemed to form a new and separate Software License Agreement between the Parties (and the phrase “this Software License Agreement” shall be deemed to refer to the particular Software License Agreement required by the context, independently of and separately from each other Software License Agreement or other agreement between the Parties), unless the additional Order Form specifically states that it is supplementing and amending an existing Order Form.
2.2 If Customer also purchases Professional Services pursuant to an Order Form or a Statement of Work, such Professional Services shall be governed exclusively by the Exari Professional Services Terms, which can be located at http://www.exari.com/legal/professional-services-terms/. For the avoidance of doubt, nothing contained in this Software License Agreement shall require the Customer to purchase, or Exari to provide, Professional Services.
3.1 Subject to the terms and conditions of this Software License Agreement (including Customer’s payment obligations hereunder), Exari grants to Customer a limited, non-exclusive, non-transferable right and license during the applicable License Period to install, execute and use the Licensed Software internally with Customer’s and its Affiliates’ organization solely for the Permitted Purpose.
3.2 Except for the rights granted in Section 3.1, no other rights in or to any Licensed Software or other Exari IP, express or implied, are granted to Customer. Without limiting the foregoing, except to the extent expressly authorized by this Software License Agreement, Customer may not: (a) transfer to any other Person any of its rights to use the Licensed Software; (b) copy the Licensed Software, except that Customer may make and maintain during the License Period the minimum number of backup copies of the Licensed Software that are necessary for disaster recovery purposes; (c) distribute, sublicense, publish, sell, rent, lease or share the Licensed Software; (d) permit any Person who is not an Authorized User to use or access any Licensed Software; (e) use any Licensed Software other than for the Permitted Purpose; (f) use any Licensed Software to provide outsourcing, service bureau, hosting, application service provider or online services to third Persons (provided that the foregoing shall not prevent Customer from providing hosted access to the Licensed Software to Authorized Users); (g) modify or create any derivative works based upon any Licensed Software or other Exari IP; (h) copy any feature, design or graphic in the Licensed Software or any other Exari IP; (i) reverse engineer, decompile, disassemble or attempt to derive the source code or architecture of any Licensed Software, except to the extent such activities cannot be restricted under applicable law; (j) use or access any Licensed Software or other Exari IP in order to build a competitive solution or to assist someone else to build a competitive solution; (k) use the Licensed Software for performance, benchmarking or comparison testing or analysis, or disclose to any third party or otherwise disseminate any results thereof (all of which shall be considered Confidential Information of Exari) without Exari’s prior written consent; (l) alter, remove or conceal any government restricted rights notice or any copyright, trademark, trade name or other proprietary marking or notice that may appear in or on the Licensed Software; (m) use the Licensed Software in a manner that violates any applicable law, ordinance, regulation or administrative order; or (n) permit any other Person to do any of the foregoing.
3.3 Customer is solely responsible for its relationships with all Authorized Users and Affiliates of Customer, for their use of the Licensed Software, and for ensuring that they comply with all the terms and conditions of this Software License Agreement. Any violation of the terms and/or conditions of this Software License Agreement by an Authorized User or Affiliate of Customer shall be deemed to be a violation by Customer of such terms and conditions. If the Order Form specifies a maximum number of “named” Authorized Users for any Licensed Software, then each Authorized User must be a unique individual (regardless of whether or not the individual is actively using the Licensed Software at any given time), except that a “named” Authorized User license may be permanently transferred from a former Authorized User (such as an individual whose employment by Customer terminates) to a replacement Authorized User. If the Order Form specifies a maximum number of “concurrent” Authorized Users for any Licensed Software, then Customer must have purchased a license for the maximum number of Authorized Users who will be concurrently accessing or using such Licensed Software at any given time.
3.4 Customer shall be responsible for ensuring that the maximum number of Authorized Users specified in the Order Form (whether “named” or “concurrent”) is not exceeded. Any time Customer becomes aware that the maximum number of Authorized Users has been exceeded, Customer shall promptly notify Exari of the details of the excess use, and shall upon Exari’s request promptly execute an Order Form that includes the charges due for the additional Authorized Users, from the initial date of such excess use through to the end of License Period specified in the most recently executed Order Form, without limiting any other right or remedy available to Exari.
3.5 The Licensed Software may contain or otherwise make use of software, code or related materials from third parties, including “open source” or “freeware” software (“Third Party Components”). Third Party Components may be subject to separate license terms that accompany such Third Party Components. A list of Third Party Components contained in the Licensed Software may be found in the Exari Support Portal.
4.1 During the License Period, Exari shall make available to Customer, at no additional charge, standard maintenance and support as specified in this Section 4 (“Standard Support”) with respect to the Licensed Software, or Customer may purchase enhanced or premium maintenance and support (“Enhanced Support” or “Premium Support”) via an Order Form for an additional fee. Additional information regarding Exari’s support offerings as they may be updated from time to time is available at http://www.exari.com/legal/.
4.2 Support shall only be provided to Customer Designated Representatives who have been appropriately trained with respect to the use of the Licensed Software. Other Authorized Users shall use the Documentation and rely on the Customer Designated Representatives for their support. Exari shall not be obligated to provide support to more than the maximum number of Customer Designated Representatives specified in the Order Form.
4.3 Exari will use commercially reasonable efforts to provide an Error Correction for any Error reported to Exari by Customer in writing with fully documented and reproducible examples of the reported problem. Prior to submitting an Error report or other request for support services (each, a “Support Request”), Customer Designated Representatives must consult the relevant documentation and the Exari Knowledge Base. If after consulting the documentation and the Exari Knowledge Base the Customer Designated Representative is unable to resolve the issue, then the Customer Designated Representative may submit a Support Request to the Exari service center via the support ticket system in the Exari Support Portal.
4.4 During the License Period, Exari will make available to Customer, at no additional charge, each new Release of the Licensed Software that Exari makes available to its licensees generally as part of their license subscription for the same Software Product(s) as the Licensed Software, but specifically excluding any Releases, Software Products, offerings, modules, functionality or features for which Exari charges a separate fee, unless Customer separately purchases a license thereto.
4.5 Notwithstanding anything to the contrary contained herein, the following shall be excluded from the scope of the Maintenance & Support Services, except to the extent otherwise agreed by the Parties in writing (such as, pursuant to a Statement of Work):
(a) Any issue which, following investigation by Exari, is determined not to be an Error in the Licensed Software, including issues related to hardware configuration and support, operating systems or other third party software products;
(b) Any issue related to alterations of or modifications to the Licensed Software made by anyone other than Exari or its authorized representatives;
(c) Any issue related to Customer’s or its Affiliates’ failure to install or have installed an Error Correction or Release made available by Exari;
(d) Maintenance or support services for a Release issued more than two (2) years prior to the date of the support request, unless such release remains the most current Release;
(e) The installation or operation of any Licensed Software other than in accordance with the applicable
(f) Tracking of and reporting on Customer issues, other than as may be provided via the then-current version
(g) Any services related to training, installation, implementation, configuration, systems administration,
database management, hosting or assistance with day-to-day use of any Software Products, whether required on-site or remotely;
(h) Any issue related to (i) configurations or customizations of Licensed Software, (ii) other deliverables or work product under a Statement of Work or otherwise resulting from Professional Services provided to Customer (except to the extent incorporated in any Release), or (iii) any other software or items for which Exari does not provide support and maintenance services to its customer base generally;
(i) Reimbursement of the cost or expense of any Customer personnel who assist Exari in the provision of Maintenance and Support Services; and
(j) Any issue related to a failure on Customer’s part to comply with any of its obligations under this Software License Agreement.
4.6 (a) Customer shall cooperate fully with Exari in Exari’s provision of the Maintenance & Support Services, including by providing Exari, in a timely fashion to the extent reasonably possible, with such assistance and access to such Customer premises, systems, personnel and information, each as shall be reasonably required for the performance by Exari of the Maintenance & Support Services.
(b) Without limiting the foregoing, remote access to Customer’s servers is of considerable assistance to Exari’s efforts to isolate the cause of issues and identify and correct Errors. In the absence of such remote access, (i) Customer will be required to provide additional assistance to Exari in connection with its efforts to identify and correct Errors, and (ii) if Exari determines that onsite support is required in connection with any such efforts, then Exari shall be excused of any further obligations hereunder with respect to the issues or Errors concerned, unless and until otherwise agreed by the Parties in writing (such as, if the Parties enter into a Statement of Work covering such onsite support).
4.7 Unless otherwise specified in the Order Form, Customer will provide a computing environment, data center and backup services appropriate for and compatible with the Licensed Software, including server hardware, operating system software, a database management system, other third party software and any necessary telecommunications.
5.1 Customer shall pay all fees and charges as specified in each Order Form. Except as otherwise set forth in this Software License Agreement, all payment obligations under an Order Form are non-cancelable and amounts paid are non- refundable. Unless otherwise specified in an Order Form, Customer shall pay all fees and charges within thirty (30) days of the date of receipt of Exari’s invoice therefor.
5.2 Customer shall pay any sales, use, value added and other taxes and import duties (other than corporate income taxes payable by Exari) due as a result of any amounts paid by Customer to Exari under any Order Form.
5.3 Exari may charge Customer interest at the rate of one-point-five percent (1.5%) per month (or the highest rate allowable by law, if less) for any past due amounts, from the date payment was due until the date paid, other than with respect to any amount disputed by Customer in good faith where Customer is cooperating diligently to resolve the dispute. Customer shall bear any costs (including attorneys’ fees and costs) incurred by Exari in collecting any amounts due hereunder.
5.4 Customer shall not charge any fee to Exari related to invoice processing, and shall pay or reimburse Exari for any such fee charged by any third party that Customer requires Exari to use in connection with processing Exari’s invoices to Customer.
5.5 Exari reserves the right to increase any fees at any time, provided that no increase of the license fee payable by Customer for the Licensed Software shall take effect until the start of the next License Period following Exari’s notice to Customer of such fee increase, sent no later than sixty (60) days prior to the start of such License Period.
6.1 Each Party represents and warrants to the other Party that: (a) it has the full power and authority to enter into this Software License Agreement and perform its obligations under this Software License Agreement; and (b) the execution, delivery and performance of this Software License Agreement by it does not violate, conflict with or constitute a default under any agreement or instrument to which it is a party or by which it is bound, or any applicable law, regulation or order of any court or other tribunal, except where such violation, conflict or default would not materially impair such Party’s performance of its obligations or the other Party’s enjoyment of its rights under this Software License Agreement.
6.2 Exari further warrants to Customer that: (a) the Licensed Software as delivered by Exari will function substantially in accordance with the applicable Documentation; and (b) it will use a generally commercially available virus detection or scanning program to test the Licensed Software for the presence of viruses. In the event of any nonconformance with any of the warranties specified in this Section 6.2, Customer will promptly (and in no event later than ninety (90) days after the non-conforming Licensed Software was delivered) notify Exari of such nonconformance and Exari will, following receipt of such notice from Customer, use commercially reasonable efforts to remedy the nonconformance in accordance with and subject to the provisions of Section 4. If Exari fails to do so within thirty (30) days of such notice, and such nonconformance has the effect of materially diminishing the functionality and value of the Licensed Software as a whole, then Customer shall have the right to terminate this Software License Agreement upon notice and recover the license fees paid to Exari, as specified in Section 9.5(d); provided, however, that such termination shall not be permitted if, within such thirty (30) day period, Exari has provided Customer with reasonable assurances that such nonconformance will be remedied within a reasonable period of time. The foregoing sets forth the exclusive remedies of Customer, and the sole liability of Exari, in the event of any nonconformance with any of the warranties set forth in this Section 6.2 or otherwise with respect to any Errors, service interruptions or other problems with the Licensed Software.
6.3 Notwithstanding the foregoing, Exari shall have no liability under Section 6.2 with respect to any nonconformance related to any issue described in any of Sections 4.5(a) through 4.5(j).
6.4 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, EXARI IS PROVIDING THE LICENSED SOFTWARE AND RELATED SERVICES “AS IS” AND EXARI DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED SOFTWARE AND SUCH SERVICES OR THEIR PERFORMANCE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, EXARI DOES NOT WARRANT THAT THE LICENSED SOFTWARE OR ANY RELATED SERVICES WILL MEET CUSTOMER’S EXPECTATIONS OR BE SECURE, ACCURATE, ERROR-FREE, OR OPERATE ON AN UNINTERRUPTED BASIS OR IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE OR SYSTEM. WITHOUT LIMITING THE FOREGOING, EXARI WILL NOT BE LIABLE FOR ANY PROBLEMS ATTRIBUTABLE TO THE INTERNET, FORCE MAJEURE OR CUSTOMER’S OR ANY AUTHORIZED USER’S NETWORK OR ABILITY TO ACCESS THE INTERNET.
6.5 CUSTOMER ACKNOWLEDGES AND AGREES THAT EXARI IS NOT ENGAGED IN THE PRACTICE OF LAW AND IS NOT PROVIDING LEGAL ADVICE. IT IS THE RESPONSIBILITY OF CUSTOMER AND ITS AUTHORIZED USERS TO REVIEW AND DETERMINE THE SUITABILITY OF ANY OUTPUT GENERATED FROM THE LICENSED SOFTWARE AND TO CONSULT THEIR OWN INDEPENDENT LEGAL ADVISOR BEFORE USING ANY SUCH OUTPUT. EXARI DOES NOT WARRANT OR GUARANTEE THAT ANY LEGAL SUBJECT MATTER OR OTHER INFORMATION INCLUDED IN ANY EXARI DOCUMENTATION, TEMPLATE, REPORT OR OTHER OUTPUT GENERATED FROM ANY LICENSED SOFTWARE OR OTHERWISE USED AND/OR MADE AVAILABLE BY EXARI IS ACCURATE, COMPLETE, CURRENT, LEGAL, LEGALLY EFFECTIVE OR VALID UNDER THE LAWS OF ANY JURISDICTION, OR FIT FOR ANY PURPOSE WHATSOEVER. BY PROVIDING THE LICENSED SOFTWARE AND/OR MAKING ANY SUCH INFORMATION AVAILABLE, EXARI IS NOT PROVIDING LEGAL ADVICE AND NONE OF CUSTOMER OR ITS AUTHORIZED USERS SHALL USE THE LICENSED SOFTWARE OR ANY SUCH INFORMATION AS A SUBSTITUTE FOR LEGAL ADVICE.
6.6 Customer acknowledges that the Licensed Software was not designed to Customer’s individual requirements and that Customer is solely responsible for confirming that the Licensed Software meets such requirements. Customer agrees that its license of the Licensed Software is not contingent on the delivery of any future functionality or features, or dependent on any statements made by Exari regarding possible future functionality or features.
7.1 Provided that Customer and its Affiliates are not in material default of this Software License Agreement, Exari shall indemnify, defend and hold harmless Customer and its Affiliates and their Authorized Users from and against any loss, cost, damage or expense (but specifically excluding any indemnified Person’s attorneys’ fees and related costs) in respect of any claim, demand, action, suit or other judicial proceeding asserted, brought or threatened by a third Person (each a “Claim”) alleging that the Licensed Software as provided by Exari hereunder infringes any third Person’s rights in any copyright, trademark or United States or European Union patent, except to the extent the Claim (a) relates to Customer Data or other information, specifications or materials provided by or on behalf of Customer or its Affiliates or Authorized Users, including where Customer specified the form, content or functionality of software alleged to be infringing; (b) relates to revisions or modifications made by Customer or its Affiliates or any third Person at their direction; (c) relates to the combination, operation or use by Customer or its Affiliates of the Licensed Software with other programs, hardware, data or specifications if a different combination would avoid the infringement; (d) relates to Customer’s or its Affiliates’ failure to install or have installed an Error Correction or Release made available by Exari and that would have avoided the infringement; (e) relates to the actual or alleged infringement of inventions, technologies or methods in widespread unlicensed use by third Persons at the time the Licensed Software has been used by Customer or its Affiliates; or (f) is otherwise subject to Customer’s indemnification obligations under Section 7.2. In the event of any actual Claim of infringement or if Exari has reason to believe that such a Claim may be brought, Exari may at its option and sole expense either (i) obtain the rights necessary to extinguish or avoid the infringement, or (ii) make any modifications to the Licensed Software that are recommended by Exari’s counsel to avoid infringement of third Person rights, provided such modification does not materially diminishes the functionality and value of the Licensed Software as a whole, or (iii) if Exari determines that neither option described in clauses (i) and (ii) above is commercially viable, Exari may terminate this Software License Agreement by notice to Customer and issue a refund of prepaid fees pursuant to Section 9.5(d). This Section 7.1 states Customer’s sole remedy and Exari’s entire liability for any losses and damages of any nature arising out of or relating to any actual or alleged infringement of any copyright, patent, trade secret or other Intellectual Property Rights of any third Person.
7.2 Customer shall indemnify, defend and hold harmless Exari and its Affiliates and their respective employees and agents from and against any loss, cost, damage or expense (but specifically excluding attorneys’ fees and costs) in respect of any Claim that relates to (a) Customer Data or any other content or materials provided by Customer or its Affiliates or Authorized Users or (b) the use by Customer or its Affiliates or Authorized Users of the Licensed Software or Exari IP in breach of this Software License Agreement or in violation of applicable law or third party rights.
7.3 As a condition to the obligations of the indemnifying party under either of Sections 7.1 or 7.2 above, the indemnified Person shall: (a) promptly notify the indemnifying Party of any Claim for which indemnity will be sought; provided that no delay in providing such notice shall relieve the indemnifying Party of any liability or obligations hereunder except to the extent the indemnifying Party has been prejudiced by such delay; (b) permit the indemnifying Party to assume control of the defense and settlement of such Claim with counsel of its choosing; and (c) provide cooperation reasonably requested by the indemnifying Party in investigating and defending such Claim, at the indemnifying Party’s expense (provided that the indemnified Person shall not be entitled to compensation for the time spent by it or its employees in providing such cooperation). The indemnified Person shall have the right to participate in (but not control) the defense of any such Claim, at its sole cost and expense, using counsel of its choosing.
8.1 EXCEPT FOR LIABILITY ARISING FROM A WILLFUL OR INTENTIONAL BREACH OF SECTION 10 (CONFIDENTIALITY) OR FROM A BREACH OF SECTION 11 (PROPRIETARY RIGHTS), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF DATA, LOSS OF BUSINESS OR PROFITS, OR ANY OTHER SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY SORT, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, ARISING UNDER OR IN CONNECTION WITH THIS SOFTWARE LICENSE AGREEMENT.
8.2 EXARI’S AGGREGATE LIABILITY TO CUSTOMER ARISING UNDER OR IN CONNECTION WITH THIS SOFTWARE LICENSE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL LICENSE FEES ACTUALLY PAID BY CUSTOMER TO EXARI UNDER THIS SOFTWARE LICENSE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM OCCURRED.
8.3 THE LIMITATIONS OF LIABILITY AND DAMAGE EXCLUSIONS CONTAINED IN THIS SOFTWARE LICENSE AGREEMENT WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS (OR LACK THEREOF) OF ANY REMEDIES PROVIDED HEREIN. THESE LIMITATIONS AND EXCLUSIONS ARE REFLECTED IN THE PRICING OF THE LICENSED SOFTWARE, AND THEY REPRESENT AN AGREED ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL PART OF THIS SOFTWARE LICENSE AGREEMENT.
8.4 EACH PARTY SHALL TAKE, AND CAUSE ITS AFFILIATES TO TAKE, ALL REASONABLE STEPS TO MITIGATE ANY DAMAGES UPON BECOMING AWARE OF ANY EVENT OR CIRCUMSTANCE THAT WOULD BE REASONABLY EXPECTED TO, OR DOES, GIVE RISE TO AN INDEMNIFICATION CLAIM OR OTHER DAMAGES CLAIM ARISING UNDER OR IN CONNECTION WITH THIS SOFTWARE LICENSE AGREEMENT.
8.5 ANY ACTION BY EITHER PARTY RELATED TO AN ACTUAL OR ALLEGED BREACH OF THIS AGREEMENT BY THE OTHER PARTY, OTHER THAN A WILLFUL OR INTENTIONAL BREACH OF SECTION 10 (CONFIDENTIALITY) OR A BREACH OF SECTION 11 (PROPRIETARY RIGHTS), MUST BE COMMENCED WITHIN TWO YEARS AFTER THE DATE ON WHICH THE BREACH IS DISCOVERED. ANY ACTION NOT BROUGHT WITHIN THAT TWO-YEAR PERIOD SHALL BE BARRED, WITHOUT REGARD TO ANY LONGER LIMITATIONS PERIOD SET FORTH IN ANY APPLICABLE LAW OR STATUTE.
9.1 Exari makes the Licensed Software available on a term-limited basis, and Customer is purchasing a license to use the Licensed Software upon the terms and conditions set forth in this Software License Agreement, for the License Period specified in the Order Form. Neither Party may terminate this Software License Agreement for convenience prior than the end of the License Period.
9.2 Upon expiration of a License Period, Customer’s license to the Licensed Software and the term of this Software License Agreement shall automatically renew for consecutive annual renewal periods, at Exari’s then-current price (subject to Section 5.5), unless either Party notifies the other Party no later than thirty (30) days prior to the scheduled renewal date that it is electing not to renew this Software License Agreement, in which case Customer’s license and the term of this Software License Agreement shall end upon the expiration of the then-current License Period.
9.3 Either Party may terminate this Software License Agreement by notice if the other Party breaches any material term of this Software License Agreement and fails to cure such breach within thirty (30) days after receipt of notice of the breach from the non-defaulting Party. Any such termination shall be without limitation of any other right or remedy available to the terminating Party.
9.4 Either Party may terminate this Software License Agreement immediately upon notice to the other Party if the other Party has a receiver or similar party appointed for all or substantially all of its property, is declared insolvent by a court of competent jurisdiction, ceases to do business in the ordinary course, files a petition in bankruptcy or has a petition filed against it in bankruptcy, becomes the subject of any court or administrative proceeding related to its liquidation or insolvency (whether voluntary or involuntary) that is not dismissed within one hundred twenty (120) days, or makes an assignment for the benefit of its creditors.
9.5 Upon the termination or expiration of this Software License Agreement for any reason:
(a) All rights and licenses granted by Exari pursuant to this Software License Agreement shall terminate.
(b) Customer shall immediately discontinue any further use of the Licensed Software, and shall promptly uninstall all copies thereof from any and all servers, computers and other media owned or controlled by Customer or any of its Affiliates and, if requested by Exari, certify to Exari in writing that it has fully complied with all of the foregoing.
(c) Customershallpayallamountsthathaveaccruedandareowedhereunderwithinten(10)daysfollowing any termination or expiration of this Software License Agreement.
(d) IfthisSoftwareLicenseAgreementisvalidlyterminatedbyCustomerpursuanttoeitherofSections6.2, 7.1 or 9.3 and Customer is in full compliance with all material terms and conditions of this Software License Agreement, Exari shall within thirty (30) days following the effective date of such termination refund to Customer all license fees previously paid by Customer for the Licensed Software with respect to the then-remaining portion of any prepaid License Period.
(e) If requested by a Party, the other Party shall promptly destroy or return to the requesting Party, as directed, all of the requesting Party’s Confidential Information, and other materials of the requesting Party in such other Party’s possession or under its control. Notwithstanding the foregoing, each Party shall be entitled to retain any records to the extent it has been advised in writing by counsel that such retention is required to comply with applicable law or regulation.
(f) Any provision of this Software License Agreement which, by its nature, would survive termination or expiration of this Software License Agreement shall survive any such termination or expiration.
10.1 Each Party that receives Confidential Information of the other Party agrees that, unless the disclosing Party gives its prior written authorization, it shall not: (a) use such Confidential Information other than for the purposes of this Software License Agreement; or (b) disclose any such Confidential Information to any third Person except those directors, officers, employees, consultants and agents of the receiving Party who are required to have such Confidential Information in order to carry out the purposes of this Software License Agreement, and who have signed a non-disclosure agreement or are otherwise bound by confidentiality obligations in substance similar to the provisions hereof. The receiving Party shall prevent the unauthorized use, disclosure, dissemination or publication of such Confidential Information using at least the same degree of care that the receiving Party uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care.
10.2 The obligations of the Parties under Section 10.1 shall not apply to the extent of any disclosure required pursuant to a duly authorized subpoena, court order, or government authority, provided that the receiving Party has provided prompt notice and assistance to the disclosing Party prior to such disclosure, so that such Party may seek a protective order or other appropriate remedy to protect against disclosure.
10.3 Any breach of the confidentiality obligations set forth in this Section 10 would constitute a material breach of this Software License Agreement, which the breaching Party acknowledges would cause irreparable harm to the non-breaching Party, leaving it without an adequate remedy at law. As such, any such breach shall entitle the non-breaching Party to injunctive relief in addition to all other remedies, without necessity of posting of a bond or other security in connection therewith. The preceding sentence is not intended, nor shall it be construed, to limit a Party’s right to dispute the factual basis underlying any contention that it has committed any breach.
10.4 This Section 10 will remain in effect during the term of this Software License Agreement and for a period of five (5) years following termination or expiration of this Software License Agreement for any reason, except with respect to any Confidential Information of Exari contained in or constituting Licensed Software, for which this Section 10 will remain in effect indefinitely .
10.5 In the event that the provisions of this Section 10 are inconsistent with the provisions of any applicable non- disclosure (or comparable) agreement separately executed by the Parties, then the terms of this Section 10 shall govern with respect to Confidential Information disclosed in connection with the subject matter of this Software License Agreement.
11.1 As between the Parties, all Intellectual Property Rights in and to the Licensed Software and all other Exari IP are and shall remain the sole property of Exari and its Affiliates and their respective licensors, as applicable, and Customer shall acquire no right of ownership or use with respect thereto except for the limited license right specified in Section 3.1. Without limiting the foregoing, Customer acknowledges that the Licensed Software and the inventions, know-how and methodology embodied therein are proprietary to, and are the valuable trade secrets of, Exari and its Affiliates and licensors, as applicable, and constitute Confidential Information of Exari.
11.2 Customer, its Affiliates or Authorized Users may from time to time provide Exari with suggestions, comments, recommendations and/or feedback regarding the Software Products and/or Exari’s related technologies (“Feedback”). Any and all Feedback is and shall be given entirely voluntarily and without compensation. As between the Parties, all Feedback shall be exclusively owned by Exari and Exari shall be freely entitled to reproduce, prepare derivative works of, disclose to third Persons, display and perform (publicly or otherwise), sell, lease, license, distribute, and otherwise use and exploit any and all such Feedback, at its sole discretion, without obligation or liability of any kind to Customer or to any other Person.
11.3 The provision by Exari of Software Products for use by or on behalf of any unit or agency of the United States Government (the “Government”) are subject to the following: The Software Products and related Documentation constitute “commercial computer software” and/or “commercial computer software documentation,” respectively, and the Government’s rights with respect to the same are, in the case of civilian agency use, and if for the Department of Defense use, limited by the terms of this Software License Agreement, pursuant to FAR 12.212 and/or DFARS §227.7202-1 through §227.7202-4 as applicable. The use of any Software Product or Documentation hereunder by the Government constitutes acknowledgment by the Government of Exari’s proprietary rights therein and thereto. If the Government has a need for rights not granted under these Software License Terms, it must negotiate with Exari to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
11.4 The Licensed Software may be subject to export controls under the U.S. export control laws, rules and regulations, and may be subject to the export regulations of other countries. Customer shall not export or re-export, directly or indirectly, the Licensed Software, unless Customer has complied with all applicable laws and has obtained appropriate authorization from the U.S. Commerce Department and/or any other relevant government authorities.
Notwithstanding anything to the contrary contained herein, if Customer has obtained any Evaluation Software, then: (a) Customer may install, access and use such Evaluation Software solely for internal evaluation purposes (and not for any other purpose including production operations of any kind) for a period not to exceed thirty (30) days (or such other evaluation period as may be specified in an Order Form for Evaluation Software) unless Customer purchases a full license prior to the expiration of the evaluation period; (b) Exari may terminate this Software License Agreement as it pertains to Evaluation Software at any time during any evaluation period, for any reason or no reason, upon notice to Customer, and Customer may terminate this Software License Agreement as it pertains to Evaluation Software at any time by uninstalling and permanently discontinuing further use of such Evaluation Software; and (c) all Evaluation Software is provided solely on an “as is” basis and none of the covenants, obligations, representations or warranties of Exari set forth in Sections 4, 6.2 or 7.1 shall apply to Evaluation Software.
Notwithstanding anything to the contrary contained herein, if the Order Form specifies that Exari will be responsible for providing Hosting Services for the Licensed Software (“Hosted Software”), then the following terms shall apply except to the extent such Order Form specifies different terms:
13.1 As between the Parties, Exari will provide and maintain all server-side hardware, software, data storage and telecommunications capacity required for the Hosting Services, including any server-side hardware and software configuration (collectively, the “Hosting Platform”).
13.2 Exari may utilize a third party to provide the Hosting Platform. Exari’s current Hosting Platform provider is Amazon Web Services, which has undertaken to use commercially reasonable efforts to maintain a monthly uptime percentage of at least 99.95% and offers certain safeguards and security features designed to protect the security, confidentiality and integrity of customer data, including 128-bit Secure Socket Layer encryption for communications with end users. The preceding sentence is for informational purposes only and does not constitute a representation or warranty or modify or supplement the provisions of Section 13.8.
13.3 In providing Hosting Services, Exari will maintain a Customer-dedicated instance on the Hosting Platform not to be used for any other customer of Exari. Exari shall not access or use Customer Data except as reasonably necessary to perform its obligations to Customer or in connection with the exercise by Exari of its rights under Section 16. Exari will from time to time perform routine systems administration tasks (i.e., tasks that cannot be performed by Customer via the user interfaces of the Hosted Software) including periodic backups of files and databases, installation of Error Corrections, and other server-side maintenance required to maintain the Hosted Software operational on the Hosting Platform.
13.4 Customer shall be responsible for routine administration tasks that can be performed by Customer via the user interfaces to the Hosted Software. Customer is solely responsible for the secure and proper creation, use and termination of all user IDs, passwords and other security measure used in connection with the Hosted Software and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to unauthorized Persons. Customer shall promptly inform Exari if there is any reason to believe that a user ID, password, or any other security measure has or is likely to become known to any Person not authorized to use it, or is being or is likely to be used in an unauthorized way. Exari reserves the right (in its sole discretion) to require Customer to change any or all of the user IDs, passwords or other security measures used by Customer in connection with the Hosted Software, and Customer shall promptly comply with any such requirement.
13.5 Customer, its Affiliates and Authorized Users shall at all times adhere to all laws, rules, and regulations applicable to their access to or use of the Hosting Platform, including the following policies of Amazon Web Services to the extent applicable and as updated from time to time: AWS Acceptable Use Policy, AWS Site Terms, AWS Service Terms, AWS Trademark Guidelines and any other applicable policies referenced in any of the foregoing.
13.6 Except as expressly set forth herein, Customer is solely responsible for all aspects of Customer Data, including its sourcing, inputting, management, accuracy, quality, results and the privacy of protected personal information. Without limiting the foregoing, Exari shall have no liability to Customer or any other Person in the event of any data security breach or other unauthorized access or intrusion by any Person affecting or involving any Customer Data, whether or not related to any failure or inadequacy of any safeguards offered by Exari or the Hosting Platform.
13.7 Term and Termination of Hosting Services.
(a) ExariwillprovidetheHostingServicesuntiltheearlierof(i)theendoftheLicensePeriodapplicableto the Hosted Software; or (ii) ninety (90) days from the date of receipt by Exari of written notice from Customer to terminate the Hosting Services (or such other notice period as may be mutually agreed by the parties).
(b) IftheHostingServicesforanyreasonendorareterminatedpriortotheexpirationoftheLicensePeriod applicable to the Hosted Software, Customer shall be solely responsible for making and maintaining throughout the balance of the License Period all arrangements necessary to deploy and host the applicable Hosted Software internally within Customer’s organization for the benefit of the Authorized Users, in a suitable environment and in compliance with the applicable Documentation, or to engage an Agent to do so on Customer’s behalf. If Customer requires any assistance from Exari with respect to transitioning the Hosted Software to such other hosting environment, Exari’s obligation to provide such assistance (if any) shall be limited to such services as the Parties may have separately agreed to for additional fees pursuant to a Statement of Work.
(c) For the avoidance of doubt, the parties acknowledge that any termination of Hosting Services and transition of Hosted Software shall not relieve Customer of its obligation to pay all license fees specified in the Software License Agreement when due and in full throughout the applicable License Period.
(d) Upon written request by Customer made within thirty (30) days after any expiration or termination of Hosting Services, provided Customer is current in its payment obligations to Exari, Exari shall make available to Customer for download one or more electronic files of any Customer Data stored within the Hosted Software on the Hosting Platform. After such thirty- (30) day period, Exari shall have no obligation to maintain or provide any Customer Data.
13.8 ALL HOSTING SERVICES ARE OFFERED BY EXARI AS AN ACCOMMODATION TO CUSTOMER ONLY, ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, SUBJECT ONLY TO THE LIMITED OBLIGATIONS OF EXARI EXPRESSLY STATED IN THIS SECTION 13. WITHOUT LIMITING THE FOREGOING, EXARI SHALL IN NO EVENT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON WITH RESPECT TO ANY ERRORS, SERVICE INTERRUPTIONS OR OTHER PROBLEMS WITH THE HOSTING SERVICES OR THE HOSTING PLATFORM.
If either Party is unable to perform any obligation (excluding any payment obligation) under this Software License Agreement because of any matter beyond that Party’s reasonable control, such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving employees of either Party ), acts of local or central government or other competent authorities, problems with telecommunications providers, hostile network attacks or other events beyond a Party’s reasonable control (each, a “Force Majeure Event”), that Party will have no liability (including any obligation to issue refunds or credits) to the other for such failure to perform; provided, however, that such Party shall resume performance promptly upon removal of the circumstances constituting the Force Majeure Event.
Within ninety (90) days of the execution of this Software License Agreement, Exari has the right to publicly announce the signing of this Software License Agreement, including as a written press release, or through other digital or social media channels. This announcement will note that Customer has selected Exari as its vendor, specify the Exari products being licensed, and may include other information as mutually and reasonably agreed by the Parties.
Customer acknowledges that the Licensed Software may include features designed to monitor Customer’s compliance with applicable usage limitations set forth in the Order Form. Without limiting the foregoing, Exari may audit Customer’s use of the Licensed Software upon reasonable advance notice, not more than once per calendar year unless Exari has reasonable cause to believe that Customer is using or permitting the Licensed Software to be used in an unauthorized manner. If any such monitoring or audit reveals that the Licensed Software has been used in excess of the applicable usage limitations set forth in the Order Form or in any other unauthorized manner, (a) Customer will, within thirty (30) days of receipt of Exari’s invoice, reimburse Exari for the reasonable, documented costs of such audit and pay any additional charges that would apply, under Exari’s then-current prices, for such excess or other unauthorized use, without limitation of any other remedies Exari may have under law or this Software License Agreement; and (b) Exari may henceforth have this right of audit more frequently that once per year.
17.1 Exari shall have the right to modify any of the terms or conditions of this Software License Agreement from time to time, provided that no such modification shall take effect until the start of the next License Period following Exari’s notice to Customer of such modification sent no later than sixty (60) days prior to the start of such License Period. Customer’s failure to object to such modification and/or terminate this Software License Agreement pursuant to Section 9.1 within thirty (30) days after its receipt of such modification notice shall constitute Customer’s acceptance of such modification. Except as set forth in this Section 17.1, no waiver or modification of any of the provisions of this Software License Agreement shall be binding unless in writing and signed by a duly authorized representative of each Party. Any forbearance or delay on the part of either Party in enforcing any of its rights under this Software License Agreement shall not be construed as a waiver of such right to enforce the same for such occurrence or any other occurrence.
17.2 This Software License Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without regard to its conflicts of law principles. Any litigation between the Parties concerning this Software License Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in the Commonwealth of Massachusetts. Nothing contained in this Section 17.2 or in Section 17.3 below shall prevent either Party from seeking injunctive relief from any court of competent jurisdiction.
17.3 The Parties will use commercially reasonable efforts to discuss and resolve in good faith any dispute arising under this Software License Agreement as soon as practicable and without the necessity of any formal proceeding including, if requested in writing by either Party, by each appointing one or more senior management representatives not directly involved with the day-to-day provision or use of the Licensed Software, who shall endeavor to resolve such dispute at a meeting to take place at a mutually agreeable time and place Unless otherwise agreed by the Parties, such meeting shall be scheduled within fourteen (14) days of the Party’s request, and the senior management representatives shall reach or abandon resolution within thirty (30) days following the Party’s request.
17.4 Customer shall not assign or otherwise transfer this Software License Agreement, or delegate any duty or assign or otherwise transfer any right or license hereunder, including by operation of law, without the prior written consent of Exari in each case. Any attempt to do any of the foregoing without Exari’s prior written consent shall be a material breach of this Software License Agreement and any assignment or purported assignment without such consent shall be null and void ab initio. Subject to the foregoing, this Software License Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and permitted assigns.
17.5 Exari reserves the right to determine in its sole discretion which of its personnel shall be assigned to perform services under this Software License Agreement, and to replace or reassign such personnel at any time. Exari may use Affiliates, subcontractors and other third parties in the performance of any services hereunder, provided that no such use of Affiliates, subcontractors or other third parties shall relieve Exari of its obligations under this Software License Agreement.
17.6 Unless otherwise specified in this Software License Agreement, any notice required or permitted to be sent under this Software License Agreement shall be sent, in writing, by certified mail (return receipt requested), overnight courier or personal delivery, to Exari or to Customer at the addresses for notices set forth in the Order Form or as changed from time to time by notice. Such notices shall be effective when received.
17.7 If any one or more of the provisions of this Software License Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Software License Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision(s) shall be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the Parties underlying the invalid, illegal or unenforceable provision(s).
17.8 The headings and other captions in this Software License Agreement are for convenience only and shall not be used in interpreting, construing, or enforcing any of the terms of this Software License Agreement. The words “including,” “include” and “includes,” and the phrases “by way of example,” “such as” and “for example” when used in this Software License Agreement shall each be deemed to be followed by the words “without limitation.”
17.9 This Software License Agreement does not create or evidence a partnership, joint venture or any other fiduciary relationship between the Parties. The Parties are independent, and each has sole authority and control of the manner of, and is responsible for, its performance of this Software License Agreement. Neither Party may create or incur any liability or obligation for or on behalf of the other Party, except as described in this Software License Agreement.
17.10 This Software License Agreement constitutes the entire agreement between Parties with regard to the subject matter hereof and supersedes any and all previous communications, whether oral or written, as well as any previous memoranda of understanding and side letters between the Parties with respect to such subject matter. In the event of any conflict, discrepancy or inconsistency between an Order Form and these Software License Terms, the terms of the Order Form shall govern. Neither the course of conduct between Parties nor trade usage shall modify or alter this Software License Agreement.
17.11 Any Order Form may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Any Order Form may be executed and delivered by facsimile or other electronic image transmission.
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly is controlled by or under common control with such Person. For purposes hereof, a Person shall be deemed to have “control” over another Person if: (a) such Person directly or indirectly, on its own or acting through one or more Persons, owns, controls or has power to vote at least 50% of the issued and outstanding voting stock or other equity interest of such other Person; or (b) such Person controls or has the power to control the management or operations of such other Person, including by contract.
“Agent” means a consultant, attorney, accountant or other professional engaged by Customer or any Affiliate of Customer to provide services to and for the sole benefit of Customer or such Affiliate.
“Authorized User” means an individual employee or Agent of Customer or of any Affiliate of Customer, who is authorized by Customer to use the Licensed Software for the Permitted Purpose, regardless of whether or not the individual is actively using the Licensed Software at any given time, provided that no Authorized Users may be, nor work for a direct or indirect competitor of Exari. “Confidential Information” means any information, including information, technical data or know-how relating to discoveries, ideas, inventions, concepts, software, equipment, designs, drawings, specifications, techniques, processes, systems, models, data, source code, object code, documentation, diagrams, flow charts, research, development, business plans or opportunities, products, projects or products under consideration, procedures, and information related to finances, costs, prices, suppliers, vendors, customers and employees, which is disclosed by the disclosing Party in connection with this Software License Agreement whether before, on or after the Effective Date, directly or indirectly, in writing, orally or by drawings or inspection of equipment or software, to the receiving Party or any of its employees or designated agents. Confidential Information includes the terms of this Software License Agreement. Confidential Information does not include any of the following: (a) information that is or becomes part of the public domain or otherwise available on an unrestricted basis to one or more third Persons without violation of this Software License Agreement by the receiving Party; (b) information that was known to or in the possession of the receiving Party on a non-confidential basis prior to the disclosure thereof to the receiving Party by the disclosing Party, as evidenced by written records; (c) information that was developed independently by or on behalf of the receiving Party, without use of or reference to the Confidential Information; or (d) information that is disclosed to the receiving Party by a third Person without violation of this Software License Agreement by the receiving Party.
“Customer” means the Person entering into this Software License Agreement with Exari, as identified in the Order Form.
“Customer Data” means any Confidential Information of Customer or its Affiliates that is input and stored in any Exari system pursuant to Customer’s use of the Licensed Software.
“Customer Designated Representative” means the Customer employee(s) or Agent(s) designated as such on an Order Form. Customer may change the Customer Designated Representative by email notification to email@example.com.
“Documentation” means the online instructions and user guides, whether accessed in printed form, online or downloaded, for the Software Products as made available and updated by Exari from time to time.
“Error” means any verifiable and reproducible bug, error or similar functional problem with the Licensed Software that prevents it from functioning substantially in accordance with the applicable Documentation.
“Error Correction” means a modification or addition to or deletion from the Licensed Software that resolves an Error or that, pending the resolving of an Error, provides a temporary workaround that enables the Licensed Software to regain its essential functionality.
“Evaluation Software” means any Software Product or other software (such as any “beta” or other pre-release software that has not yet been made generally commercially available by Exari) made available by Exari to Customer or its Affiliates for trial, evaluation or testing purposes.
“Exari” means the contracting Exari entity as is specified in the Order Form.
“Exari IP” means the Software Products and their Documentation and all other software (including both source code and object code, as applicable), documentation, templates (including data capture smart templates, contract smart templates and reporting templates), designs (including screen and report designs), data, materials, technology, works and other intellectual property created, utilized and/or provided by or on behalf of Exari in connection with the Licensed Software or the performance of this Software License Agreement, and all Intellectual Property Rights related to any of the foregoing.
“Hosting Services” means the deployment and operation of Licensed Software in a hosted environment made available by Exari for the benefit of Customer and its Authorized Users.
“Intellectual Property Rights” means all rights throughout the world in any and all of the following: (a) patents, patent applications, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names and registrations and applications for the registration thereof together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs and mask works) and registrations and applications for registration thereof; (d) trade secrets, know-how and other proprietary information of a like kind; (e) waivable or assignable rights of publicity, waivable or assignable moral rights; and (f) all other forms of intellectual property, such as data and databases, in each case, to the extent protectable under applicable law.
“Licensed Software” means the specific Software Products to which Customer has purchased a license pursuant to an Order Form, together with any Error Corrections and new Releases that may, from time to time, be provided to Customer by Exari pursuant to the Maintenance & Support Services, and all Documentation related to any of the foregoing.
“License Period” means the initial period for which Customer has purchased a license to the Licensed Products pursuant to the Order Form, along with each renewal period of Customer’s license pursuant to Section 9.2.
“Maintenance & Support Services” means the maintenance and support services to be provided by Exari with respect to the Licensed Software as described in Section 4.
“Order Form” means an order form executed by the Parties with respect to Software Products that incorporates by reference these Software License Terms.
“Party” means Customer or Exari and “Parties” means, collectively, both parties to this Software License Agreement.
“Permitted Purpose” means the use, in accordance with the Documentation and the terms of this Software License Agreement (including any applicable usage limits set forth in the Order Form) of the Licensed Software, in object code form only, solely for the creation and management of contracts to which Customer or any Affiliate of Customer is a party.
“Person” means any individual, corporation, limited liability company, partnership, trust, joint stock company, business trust, unincorporated association, joint venture or other form of business or legal entity.
“Professional Services” means consulting and professional services including onsite services, training, installation, implementation, configuration, systems administration, database management and assistance with day-to-day use of any Software Products.
“Release” means each version of a Software Product that Exari makes generally commercially available, which may include one or more Error Corrections, minor enhancements and improvements, or significant additional features or functionality.
“Software Products” means Exari’s generally commercially available software product offerings (other than software-as- a-service offerings), the specific features and functionality of which are described in the applicable Documentation.
“Statement of Work” means a separate statement of work executed by the Parties pursuant to which Exari has agreed to provide Professional Services to Customer.