Standard Terms (Software2 Americas)
Software2 Standard Terms and Conditions for the Supply of Software
Last updated: 04:55PM, August 3, 2021
1.1 The following definitions and rules of interpretation apply in this Agreement:
Agreement: the agreement between Software2 and the Licensee for the supply of Services in accordance with these Conditions;
Business Day: Any day other than a Saturday, Sunday or a United States federal holiday;
Business Hours: Has the meaning set out in the Support Services Specification;
Commencement Date: has the meaning given to it in the Order;
Conditions: these terms and conditions, including any schedules attached hereto, as amended from time to time and as varied by the Order (if applicable);
Confidential Information: All information (however recorded or preserved) disclosed or made available by or on behalf either party (including without limitation by its employees, officers, representatives or advisers) to the other party (or its employees, officers, representatives or advisers), which is labeled or otherwise identified as being “CONFIDENTIAL” or “PROPRIETARY” or which, given the totality of the circumstances, a reasonable recipient should have reason to believe is proprietary, confidential, or competitively sensitive, regardless of whether such information is labeled as confidential or not; any information developed by any party in the course of carrying out its obligations in this Agreement, and any information relating to (i) the business, affairs, customers, clients, suppliers, plans, of the other party and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the other party;
Device: the physical data processing device controlled by Licensee on which the relevant elements of the Licensed Software is installed;
Device License: a licence to Licensee of the Licensed Software that applies to specific Licensee-owned Devices, as described further in clause 3.6;
Documentation: any documentation made available by Software2 to the Licensee in relation to the Licensed Software.
End User: a person who uses the Licensed Software or installs the client side application component of the Licensed Software and uses the same to access further software in accordance with this Agreement;
EULA: Software2’s end user licence agreement as updated from time to time, available at www.software2.com/EULA;
Extended Term: has the meaning given to it in clause 5.1;
Fees: the Licence Fee and any applicable Professional Services Fee and/or Packaging Services Fee as set out in the Order;
Initial Licence Fee: the initial fee payable for the first Support Period as set out in the Order;
Initial Term: the initial term set out in the Order;
License Fee: the Initial Licence Fee together with any Subsequent Licence Fee charged to Licensee by Software2 for the license granted to Licensee, and for any applicable Support Services for the Licensed Software;
Licensed Materials: The Licensed Software and the Documentation;
Licence Maximum: (a) in respect of Site Licences, the figures agreed with reference to the HESA Student FTE numbers as set out in clause 3.4; and (b) in respect of Device Licences, the number set out in the Order;
Licensed Software: the software licensed to Licensee as set out in the Order and any Upgrades;
Licence Type: the type of licence selected by the Licensee as set out in the Order;
New Version: any new version of the Licensed Software which from time to time is publicly marketed and offered for purchase by Software2 in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product;
Order: the Licensee’s order for Services as set out in the Licensee’s purchase order form, the Licensee’s acceptance of a quotation by Software2, or overleaf, as the case may be;
Packaging Subscription Credits: the credits purchased by the Licensee to be used against any Packaging Services in accordance with the Packaging Subscription Specification;
Packaging Subscription Services: the subscription to the Software2 packaging service as further described in the Packaging Subscription Specification;
Packaging Subscription Specification: the document detailing the Packaging Subscription Services as set out at https://www.software2.com/terms-and-conditions#packaging-subscription-specification;
Professional Services: the professional services as set out in the Order;
Professional Services Fee: the fee for any applicable Professional Services as set out in the Order;
Renewal Quote: has the meaning given to such term in clause 5.2;
Services: the services provided by Software2 to the Licensee under this Agreement, including provision of Licensed Materials, Support Services, any Packaging Services and any Professional Services;
Site: the premises from which the Licensee carries out its business as specified in the Order or as notified to Software2 in writing from time to time;
Server(s): means the Licensee’s server(s).
Site License: A license to Licensee of the Licensed Software that applies to the whole of the Licensee’s site, as described further in clause 3.4.
Specification: the description of the Licensed Software provided by Software2 to the Licensee as set out in the Documentation;
Subsequent Licence Fee: the subsequent fees payable for the licence after the first Support Period as set out in the Order;
Subsequent Order: an order for additional Professional Services, Packaging Subscription Credits and/or an increase in the number of licensed Devices placed by the Licensee after the Commencement Date using the process set out in clause 4.5;
Support Period: each period of 12 consecutive months during the Term (or shorter period in the period immediately prior to the end of the Term), the first Support Period being the 12 consecutive months immediately following the Commencement Date;
Support Services: support of the Licensed Software as described in the Support Services Specification;
Support Services Specification: the document detailing the Support Services as set out in https://www.software2.com/terms-and-conditions#support-services-specification;
Term: the Initial Term and any Extended Term; and
Upgrades: a release of the Licenced Software that corrects faults, adds functionality or otherwise amends or upgrades the Licensed Software but which does not constitute a New Version.
2. BASIS OF AGREEMENT
2.1 The Order constitutes an offer by the Licensee to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Software2 issues written acceptance of the Order at which point, and on which date the Agreement shall come into existence.
2.3 Any samples, drawings, descriptive matter or advertising issued by Software2, and any descriptions or illustrations contained in Software2’s catalogues or brochures, or contained on its website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or have any contractual force.
2.4 These Conditions apply to the Agreement to the exclusion of any other terms that the Licensee seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Other than in the context of any renewal of the purchase of the Services, after the Extended Period in accordance with clause 5.3, any quotation given by Software2 shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
3. SCOPE OF LICENSE AND SUPPORT
3.1 Grant of License: In consideration of the Fees paid by the Licensee to Software2, Software2 hereby grants to Licensee, a non-exclusive, non-transferable (except as provided below) license, without the right to sublicense. Subject to the Agreement terms (including without limitation these Conditions), Software2 hereby grants to Licensee, a non-exclusive, non-transferable (except as provided below) license, without the right to sublicense (except to the extent permitted by the Agreement), for the Term to use the Licensed Materials in accordance with this Agreement. The licence shall either be a Device Licence or a Site Licence.
3.2 These Conditions apply to, and are incorporated into, the Agreement to the exclusion of any other terms that the Licensee seeks to impose or incorporate (including without limitation any pre-printed terms set forth on Licensee’s form of purchase order), or which are implied by trade, custom, practice or course of dealing. In the event of any conflict between these Conditions and the Agreement, the terms of the Agreement will prevail. All of these Conditions apply to the license granted herein to the Licensee, except where application to one or the other type of license is specifically identified.
3.3 Licensee may not distribute copies of the Licensed Software or the accompanying Documentation to third parties (unless expressly permitted to do so in these Conditions) nor may Licensee modify or translate the Licensed Software or Documentation. End Users are required to accept the terms of any applicable Software Provider’s end user license agreement, prior to their first use of any element of the Licensed Software. For the avoidance of any doubt, the Licensee shall not use, or permit or allow any End User to use, any element of the Licensed Software otherwise than strictly in accordance with the terms of this Agreement. The Licensee shall notify Software2 as soon as it becomes aware of any unauthorised use of the Licensed Materials by any third party.
3.4 If the Licence Type is a Site Licence, the relevant client-side application component of the Licensed Software may be used in respect of either Licensee-owned Devices or End User-owned Devices. The Licence Fee for Site Licences is priced by reference to the student full-time-equivalent ("FTE") numbers of the Licensee.
3.5 Software2 reserves the right to increase the License Fee at any time (in accordance with its then-current pricing from time to time) if the Licensee merges with, or is taken over by, another entity/institution, or if it otherwise increases number of end users itself (whether by taking over other institutions, or additional sites or otherwise), such that the student FTE numbers of Licensee increases by 20% (or more). Notwithstanding the foregoing, the Licensee shall notify Software2 as soon as reasonably practicable upon becoming aware of an increase in student numbers.
3.6 If the Licence Type is a Device Licence, the license of the Licensed Software is limited to use of the relevant client-side application component which the Licensee may use to download the client-side application component of the Licensed Software onto the number of Devices set out in the Order. If the number of Devices onto which the Licensee downloads the client-side application component of the Licensed Software exceeds the number previously agreed, Software2 may expand the scope of the licence and the provisions of clause 4.6 shall apply.
3.7 Support: Software2 shall provide Licensee with Support Services specified in the Support Services Specification.
3.8 Licensee Responsibilities: Without prejudice to any of its other obligations in this Agreement, Licensee shall:
3.8.1 prepare the Licensee’s computer network and environment (including without limitation, its Site and Servers) in accordance with the system specifications set forth in the Documentation for the installation and use of the Licensed Software, prior to any such installation or use;
3.8.2 provide such access (including without limitation remote and/or internet access), on a timely basis, to the Licensee’s network and computer systems as may reasonably required by Software2 to perform its obligations in this Agreement.
3.9 Upgrades: Software2 will make Upgrades of the Licensed Software generally made available to its customers at such times as it may determine in its discretion. Licensee shall adopt and use any such upgraded Licensed Software as may be provided by Software2 as soon as reasonably practicable after receipt but in any event within 4 weeks of the Upgrade being released to it. The Licensee acknowledges that the warranties provided in this Agreement relate to the latest version (from time to time) of the Licensed Software only.
3.10 If the Licensee orders Packaging Subscription Services, Software2 shall provide such Packaging Subscription Services in accordance with the Packaging Subscription Specification.
3.11 Any dates supplied by Software2 for delivery of any Services under this Agreement shall be treated as approximate only. Software2 shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates. Time shall not be of the essence.
3.12 In relation to scope of use:
3.12.1 for the purposes of clause 3.1 and irrespective of the Licence Type, use of the Licensed Materials shall be restricted to use of it in object code form for the Licensee’s normal business purposes (which shall not include allowing the use of the Licensed Materials by, or for the benefit of, any person other than End Users);
3.12.2 the Licensee may not use the Licensed Materials other than as specified in this Agreement without Software2’s prior written consent, and the Licensee acknowledges that additional fees may be payable on any change of use approved by the Licensee;
3.12.3 the Licensee may make backup copies of the Licensed Materials as may be necessary for its lawful use in accordance with this Agreement. The Licensee shall record the number and location of all copies of the Licensed Materials and take steps to prevent unauthorised copying; and
3.12.4 except as expressly stated in this clause 3, the Licensee has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Licensed Software in whole or in part except to the extent that any reduction of the Licensed Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Licensed Software with the operation of other software or systems used by the Licensee, unless Software2 is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Licensee shall request Software2 to carry out such action or to provide such information (and shall meet Software2’s reasonable costs in providing that information) before undertaking any such reduction.
3.13 Third-Party Applications. The Licensed Software may link, interface, and integrate with third-party software applications and websites that are not operated or controlled by Software2 (each, a “Third-Party Application”). All such Third-Party Applications shall remain the property of their third-party providers. Licensee hereby acknowledges and agrees that Software2 is not responsible for the content or practices of the Third-Party Applications. Licensee is solely responsible for any required third-party account setup or fees levied by any such Third-Party Applications for using their services. To the extent any Third-Party Application requires accepting any third-party terms and conditions or agreement, Licensee (and not Software2) shall be responsible for entering into any such terms and conditions or agreements. It shall be Licensee's responsibility to, and Licensee shall, ensure that the use of the Licensed Software in connection with any such Third-Party Applications complies with any applicable terms of service. Any links to or content from Third-Party Applications in the Licensed Software are provided for Licensee’s convenience only. Licensee's reliance on any Third-Party Application is at Licensee's own risk; Software2 does not endorse or warranty any Third-Party Application, including any Third-Party Application linked to, or interfaced or integrated with, the Licensed Software. Software2 reserves the right to update or remove any functionality available through the Licensed Software at any time for any reason. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, LICENSEE SHALL BE SOLELY RESPONSIBLE FOR ITS RELATIONSHIP WITH ANY THIRD-PARTY APPLICATION, INCLUDING WITHOUT LIMITATION LICENSEE'S INTERACTION WITH ANY SUCH THIRD-PARTY APPLICATION THROUGH THE LICENSED SOFTWARE. SOFTWARE2 SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY INTERACTION WITH ANY THIRD-PARTY APPLICATION, WHETHER THROUGH THE LICENSED SOFTWARE OR OTHERWISE, BY OR ON BEHALF OF THE LICENSEE. SOFTWARE2 SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY PAYMENT OBLIGATIONS THAT ARISE AS A RESULT OF ANY SUCH INTERACTION, ANY LIABILITY THAT ARISES AS A RESULT OF ANY SUCH INTERACTION (INCLUDING WITHOUT LIMITATION UNDER ANY APPLICABLE TERMS OF SERVICE), OR ANY RELATIONSHIP THAT EXISTS OR COMES TO EXIST BETWEEN LICENSEE AND ANY THIRD-PARTY APPLICATION PROVIDER.
3.14 The Licensee may not use any such information provided by Software2 or obtained by the Licensee during any such reduction permitted under clause 3.12.4 to create any software whose expression is substantially similar to that of the Licensed Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
3.15 The Licensee shall not, without Software2’s prior written consent:
3.15.1 sub-license, assign or novate the benefit or burden of this Agreement in whole or in part;
3.15.2 allow the Licensed Software to become the subject of any charge, lien or encumbrance; and/or
3.15.3 deal in any other manner with any or all of its obligations under this Agreement.
3.16 The Licensee shall:
3.16.1 ensure that the number of persons using the Licensed Software does not exceed the Licence Maximum;
3.16.2 ensure that the Licensed Software is installed on designated Devices only;
3.16.3 keep a complete and accurate record of the Licensee’s copying and disclosure of the Licensed Software and its users, and produce such record to Software2 on request from time to time;
3.16.4 ensure that each End User has sight of, agrees to, and complies with the terms of the EULA. The Licensee shall remain responsible for any breach by any End User of the terms of the EULA and shall indemnify and hold Software2 harmless against any loss or damage it may suffer or incur as a result of an End User’s breach of any term of such EULA;
3.16.5 notify Software2 as soon as it becomes aware of any unauthorised use of the Licensed Software by any person;
3.16.6 pay, for broadening the scope of the licences granted under this licence to cover the unauthorised use, an amount equal to the fees which Software2 would have levied (in accordance with its normal commercial terms then current) had it licensed such unauthorised use on the date when such use commenced; and
3.16.7 permit Software2 to inspect and have access to any premises (and to the computer equipment or any Devices located there) at or which the Licensed Software is being kept or used, and have access to any records kept in connection with this Agreement, for the purposes of ensuring that the Licensee is complying with the terms of this Agreement, provided that Software2 provides reasonable advance notice to the Licensee of such inspections, which shall take place at reasonable times.
3.17 The Licensee shall remain responsible for the End User’s compliance with the terms of the EULA.
3.18 As part of the Services, Software2 will make available, via the Licensed Software, other independent websites, apps and/or software which are provided by independent third parties (“Independent Apps”). Such Independent Apps are not under Software2’s control and Software2 will not be liable or responsible in any way for the Licensees use of them. The Licensee acknowledges and agrees that:
3.18.1 it is the Licensee’s sole responsibility to ensure it has the necessary licences and consents required to enable Software2 to provide the Services and for the Licensee to use such Independent Apps; and
3.18.2 Software2 has not checked or approved the content of any Independent Apps or of any terms which apply to them.
4.1 The Licensee shall pay the Fees any applicable Professional Services Fee, and, where applicable, the Packaging Subscription Fee in accordance with this clause 4.
4.2 The Licensee shall pay the Initial Licence Fee and, where applicable, the Subsequent Licence Fee at the intervals specified in the Order.
4.3 Initial License Fee: In consideration of the license described in clause 2 above, the Licensee shall pay to Software2 the License Fee, and any applicable Professional Services Fee and Packaging Subscription Fee. The License Fee payment shall be paid by the Licensee (subject to receipt of a valid invoice) within thirty (30) days of the Commencement Date of this Agreement.
4.4 Subsequent License Fee and Payment: To the extent that the License Fee and/or Packaging Subscription (if applicable) Fee is payable annually for any Extended Term (as defined in clause 5.1) Software2 shall invoice Licensee for the applicable annual element of the License Fee and/or Packaging Subscription (if applicable) Fee and Licensee shall pay to Software2 such Licensee Fee and/or Packaging Subscription Fee no later than thirty (30) days prior to the expiration of each Support Period. Licensee shall pay such invoiced amounts in full by no later than the end of the immediately previous Support Period (and prior to the commencement of the Support Period to which the invoice relates). The annual element of the License Fees and/or Packaging Subscription (if applicable) Fee shall be payable as long as Licensee is using the Licensed Software. If the Term is greater than 2 years, the Fees shall be subject to an annual increase, (applicable from the end of the second year of the Term, regardless of when the Fees are due to be paid), equal to any percentage increase in the Consumer Price Index in the immediately preceding 12 month period for which such data is made publicly available (or, in respect of the License Fee, in the 12 month period for which such data is made publicly available immediately preceding the date of Software2’s invoice).
4.5 Licensee may at any time during the Term purchase additional Professional Services, Packaging Subscription Credits and/or increase the number of licensed Devices or Sites, by submitting to Software2 an Order using the following process: (a) the Licensee shall notify Software2 of the additional Professional Services, Packaging Subscription Credits and/or increases licensed Devices or Sites it wishes to purchase; (b) Software2 shall provide a quote to the Licensee which shall set out the price for such additional services and shall be calculated in accordance with the provisions of the Agreement or (if there are no such provisions) with Software2’s standard price list then in force; and (c) if the Licensee wishes to proceed with the purchase based on the quote provided by Software2, it shall submit a purchase order for such additional services. The Licensee shall pay the price for any additional Order within thirty (30) days of the date of the Order. The Licensee acknowledges and agrees that: (a) any Order raised will be subject to the terms of this Agreement; (b) this Agreement will apply to the Order to the exclusion of any other terms that the Licensee seeks to impose or incorporate, or which are implied by law, trade custom or practice or course of dealing; and (c) any quotation given by Software2 shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
4.6 Incidental Support Costs: Support services provided pursuant to payment of the License Fee are provided remotely, in accordance with the Support Services Specification. Should Licensee request on-site visits or any other travel by Software2 employees, unless otherwise agreed, such travel and incidental expenses will be chargeable separately to, and paid for by, Licensee.
4.7 All Fees shall be paid in full, cleared funds, and in US dollars, on the applicable due dates without any set off or withholding whatsoever. All Fees are quoted exclusive of, and Licensee shall be responsible for paying all, local, state, federal or foreign sales, use, excise, VAT or other taxes, levies, duties or tariffs of any nature that may be due relating to this Agreement, except for taxes based on the income of Software2.
4.8 Late Charges: If the Licensee fails to make any payment due under this Agreement by the due date for payment, then the Licensee shall pay interest on the overdue amount equal to the lesser of (i) the Prime Rate as quoted from time to time in the Wall Street Journal plus five percentage points, and (ii) the maximum amount permitted under applicable law. Interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.
4.9 Professional Services: If the Agreement includes the provision of Professional Services, the Order, or where applicable, any Subsequent Order, will set out the number of days’ worth of Professional Services that the Licensee is entitled to together with the Professional Services Fee. The Licensee shall pay to Software2 such Professional Services Fee within 30 days of the date of Software2’s invoice for the same. Subject to payment of the Professional Services Fee, the Licensee shall be entitled to “book” or “call-off” Professional Services days. Only full days (of 8 working hours, which includes a one-hour lunch break and a further 15 mins break) can be called off. Pre-paid Professional Services days are valid for 6 months from the date of payment (after which unused days shall expire and cannot be called off and, for the avoidance of doubt, there shall be no refund of any Professional Services Fees paid by the Licensee in respect of expired days). If a Professional Service day is booked or called off by the Licensee, and then subsequently cancelled by the Licensee, the Licensee shall forfeit (and be deemed to have used) that day if notice of cancellation is received by Software2 less than eight days before the agreed date for providing the said Professional Services. If a Professional Service day is cancelled by the Licensee between eight and fourteen days before the agreed date for providing the said Professional Services, the Licensee shall forfeit (and be deemed to have used) half of that day (and in either case shall not be entitled to either re-book, or otherwise receive any refund of the Professional Services Fee in respect of the forfeited day/half day). Notwithstanding the foregoing, Software2 may, at its sole discretion, agree to allow the Licensee to file the cancelled day on account for the Licensee to use on a different day throughout the Term.
4.10 For the avoidance of doubt, the Licensee shall be liable for compliance with all of its obligations in this Agreement, including without limitation all of its payment obligations, whether or not it outsources or otherwise arranges for payment of Fees to be made by a procurement (or other) agent on its behalf.
3.9 Affirmative Covenants. Licensee shall: (i) ensure Licensee’s officers, directors, faculty, students, employees, contractors, representatives, agents, and affiliates comply with this Agreement; (ii) take all necessary steps to prevent unauthorized access to or use of the Licensed Software, (iii) notify Software2 immediately of any such unauthorized access or use; (iv) comply with applicable federal, state, local, municipal, domestic, foreign, and international laws, rules and regulations ; (v) use the Licensed Software in compliance with all applicable industry standards; (vi) use the Licensed Software only for Licensee’s own internal purposes and solely in accordance with the terms of this Agreement; and (vii) use the Licensed Software solely in accordance with Software2’s instructions.
4.11 Restrictive Covenants. Licensee shall not, and Licensee will cause Licensee’s officers, directors, faculty, students, employees, contractors, representatives, agents, and affiliates to not: (i) alter, change, modify, adapt, translate, or make derivative works of the Licensed Software; (ii) use the Licensed Software in a manner that violates any applicable Law; (iii) transmit any virus or programming routine intended to damage, surreptitiously intercept, or expropriate any system, data, or personal information; (iv) transfer, resell, license, sublicense or otherwise make the Licensed Software available to any third party, except as expressly described in this Agreement; (v) use the Licensed Software for timesharing, rental, outsourcing, or a service bureau operation; (vi) attempt to gain, or assist others with attempting to gain unauthorized access to Software2’s network, systems or the Licensed Software; (vii) decipher, decompile, disassemble, or reverse engineer the Licensed Software or assist or encourage any third party to do so; (viii) engage in any activity that violates the rights of others or that interferes with or disrupts the Licensed Software; or (ix) upload any file containing any back door, time bomb, Trojan horse, worm, virus or similar malicious code.
5. TERM & TERMINATION
5.1 Term: Subject to the provisions for early termination contained in clause 5.4, this Agreement will commence on the Commencement Date and will continue for the Initial Term. Upon expiry of the Initial Term, this Agreement will automatically renew for successive periods of as set out in the Order or any Renewal Quote (each an “Extended Term”) unless written notice to terminate this Agreement has been given by either party to the other, not less than 60 days written notice to terminate (such notice cannot expire prior to the end of the Initial Term, or the end of any Extended Term, as the case may be).
5.2 Prior to expiry of the Initial Term, or any Extended Term (as the case may be), Software2 may issue a quotation for a renewal of the purchase of the Services in the subsequent Extended Term. Where this is the case, Software2 shall issue the Licensee a renewed quote for the Fees to be paid by the Licensee during such subsequent Extended Term (“Renewal Quote”). Upon the Licensee returning a signed copy of the Renewal Quote to Software2, the provision of the Services shall continue for the subsequent Extended Term, the Agreement shall automatically continue subject to the updated Fees set out in the Renewal Quote, and these Conditions shall continue to apply unamended.
5.3 Where the Licensee fails to return a signed copy of the Renewal Quote prior to the expiry of the Initial Term, or the current Extended Term, as the case may be, this Agreement shall terminate upon the expiry of the Initial Term, or current Extended Term (as the case may be).
5.4 Termination for Cause: Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement upon written notice to the other party if:
5.4.1 (subject only to clause 5.4.2 below) the other party commits a material breach of any of the terms of the Agreement and (if such a breach is capable of remedy) fails to remedy that breach within 60 days of that party being notified in writing of the breach; or
5.4.2 The other party with respect to Software2, Licensee fails to pay any amount due under the Agreement within 7 days of the due date for payment;
5.4.3 the filing of a petition in bankruptcy or for reorganization or for an arrangement pursuant to any federal or state bankruptcy laws by or on behalf of the other party where such petition is not dismissed within ninety (90) days after the filing thereof, or an adjudication of bankruptcy of such party; and/or
5.4.4 the filing of a petition proposing the adjudication of the other party pursuant to any federal or state bankruptcy law and such party consents to such filing or such petition is not dismissed within ninety (90) days after the filing thereof.
5.5 Without prejudice to any other rights or remedies, Software 2 may in its sole discretion, in the circumstances described in clause 5.4 above and as an interim alternative to termination, suspend the provision of Support and any Professional Services, and suspend the license of the Licensed Software, until payment of the outstanding amount has been made in full.
5.6 Effect of Termination or Expiration: Immediately upon termination or expiration (for whatever cause) of this Agreement, the Licensee shall: (a) cease and desist from any further use of the Licensed Materials, and procure that all End Users cease and desist from further use of the Licensed Software; (b) promptly return to Software2 (or, at Software2’s option, destroy) all Licensed Materials (including all copies thereof), and all materials (in written, electronic or other form) containing or constituting Software2's Confidential Information, including any copies and extracts thereof, and provide Software2 with a written document executed by an officer of the Licensee, certifying the destruction of the same; and (d) not use such Confidential Information or any Licensed Materials in any way for any purpose. Termination of this Agreement for any reason whatsoever will not affect Licensee’s liability to pay any amount accrued and unpaid as of the date of termination. Any provisions of this Agreement which are intended, by their specific terms or by necessary implication, to survive the expiration or termination of this Agreement shall so survive.
6.1 Licensed Software Warranty: Software2 warrants that the Licensed Software shall perform in all material respects with the Specification, provided that the configuration of Devices running any element of the Licensed Software is in accordance in all respects with any operating system requirements set out in the Documentation. Software2 does not and cannot warrant that the Licensed Software will function with all Devices.
6.2 Subject to clause 6.4, if within 30 days from the Effective Date, the Licensee notifies Software2 in writing of any defect or fault in the Licensed Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from Licensee, or anyone acting with the authority of Licensee, having amended the Licensed Software or used it outside the terms of this Agreement for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by Software2, or it has not been loaded onto or used on to Devices approved by Software2, Software2 shall, at its option, do one of the following:
6.2.1 repair the Licensed Software;
6.2.2 replace the Licensed Software; or
6.2.3 terminate this Agreement immediately by notice in writing to the Licensee and refund any of the License Fees prepaid by the Licensee to Software2 as of the date of termination on a pro-rata basis that are attributable to Licensed Software that cannot actually be used by Licensee due to such termination, upon return of the Licensed Software and all copies thereof,
provided the Licensee provides all the information that may be necessary to assist Software2 in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable Software2 to re-create the defect or fault. The provisions of this clause shall comprise the Licensee’s sole and exclusive remedy for, and Software2's sole and exclusive obligation with respect to, failure of the Licensed Software to perform as warranted in clause 6.1.
6.3 Further Warranties: The services provided by Software2 shall conform to the standards generally observed in the industry for similar services. Professional Services shall be performed using reasonable care and skill. Such services shall comply in all material respects with all applicable laws, rules, regulations or orders.
6.4 WARRANTY LIMITATION: EXCEPT AS EXPRESSLY SET FORTH IN CLAUSES 6.1 AND 6.4, THE LICENSED MATERIALS AND SUPPORT ARE PROVIDED STRICTLY "AS IS," AND SOFTWARE2 MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE PRACTICE OR ANY STATUTORY WARRANTY, ANY WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT (COLLECTIVELY, THE "DISCLAIMED WARRANTIES") AS TO THE LICENSED MATERIALS, SUPPORT, PROFESSIONAL SERVICES, OR ANY MATTER WHATSOEVER. SOFTWARE2 DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE DISCLAIMED WARRANTIES, ON BEHALF OF ITSELF AND ITS SUPPLIERS, IF ANY, TO THE FULLEST EXTENT PERMITTED BY LAW. NEITHER SOFTWARE2 NOR ITS SUPPLIERS WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. LICENSEE SHALL NOT MAKE OR PASS ON ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION ON BEHALF OF SOFTWARE2 OR ITS SUPPLIERS TO ANY END USER OR OTHER THIRD PARTY.
6.5 Indemnification: Subject to clause 6.7, Software2 shall defend, indemnify and hold harmless Licensee (including employees, consultants, agents, and subcontractors of Licensee) against any liability arising from any claim by any third party against Licensee alleging that the Licensed Software infringes any third-party trade secrets, proprietary information, trademark, copyright or any patent rights, provided that Software2 shall be relieved of the foregoing obligations unless Licensee: a) gives Software2 prompt written notice of each such claim; b) tenders to Software2 sole control of the defence or settlement of each such action; and, c) cooperates with Software2 in defending or settling each such action.
6.6 If the Licensed Software becomes, or in Software2's opinion is likely to become, the subject of a third-party claim as described in clause 5.5, Software2 may, in its sole discretion, perform one or more of the following actions:
6.6.1 Replacement: Replace the relevant Licensed Software by implementing on the Server a non-infringing software product of equivalent functional and performance capability;
6.6.2 Modification: Modify the relevant Licensed Software to avoid the infringement without eliminating the functional and performance capabilities of the Licensed Software as described in the Documentation;
6.6.3 Obtain License: Obtain a license from the third-party claiming infringement for Licensee's use of the Licensed Software.
6.7 If none of the foregoing is in Software2’s good faith determination commercially reasonable, Software2 shall have the right to terminate this Agreement and any licenses related to the Licensed Software upon written notice to Licensee. If Software2 terminates any licenses as described above, it shall refund to Licensee any applicable prepaid License Fees paid to the extent attributable to such infringing Licensed Software, pro-rated over a straight-line three-year period. This clause 5.8, along with clause 5.7, constitutes Licensee's sole and exclusive remedy for, and Software2's sole and exclusive obligation with respect to, any intellectual property infringement with respect to the Licensed Software.
6.8 SOFTWARE2 SHALL HAVE NO LIABILITY UNDER CLAUSE 5.5 OR CLAUSE 5.6 IF ANY INFRINGEMENT OR CLAIM OF INFRINGEMENT IS BASED UPON OR ARISES OUT OF: (A) ANY MODIFICATIONS TO THE LICENSED MATERIALS BY LICENSEE OR ANY THIRD PARTIES; (B) ANY LICENSEE OR THIRD-PARTY SOFTWARE, EQUIPMENT OR TECHNOLOGY; (C) USE OF THE LICENSED SOFTWARE IN CONNECTION OR IN COMBINATION WITH EQUIPMENT OR DEVICES OR SOFTWARE NOT APPROVED BY SOFTWARE2 OR OUTSIDE OF THE PARAMETERS SET OUT IN THE AGREEMENT; (D) THE USE OF THE LICENSED SOFTWARE OTHER THAN AS PERMITTED UNDER THIS AGREEMENT; OR (E) USE OR DISTRIBUTION OF A VERSION OTHER THAN THE MOST CURRENT RELEASE OR VERSION OF THE LICENSED SOFTWARE (IF SUCH INFRINGEMENT OR CLAIM WOULD HAVE BEEN PREVENTED BY THE USE OF SUCH RELEASE OR VERSION).
6.9 LIABILITY LIMITATION: SOFTWARE2’S ENTIRE AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY, WHETHER IN CONTRACT, TORT, OR OTHERWISE (OTHER THAN FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OF SOFTWARE2, ITS EMPLOYEES OR AGENTS OR FRAUDULENT MISREPRESENTATION), SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY LICENSEE TO SOFWARE2 FOR THE FIRST SUPPORT PERIOD DURING THE TERM.
6.10 Further Limitation of Liability: Except for either party's indemnification obligation, any breach of either party's confidentiality obligations under the Agreement, violation of Software2's intellectual property rights, or Licensee's breach of Sections 3.9, 3.10, or 7.6, neither party will be liable to the other party for any lost profits, or incidental, indirect, punitive, or consequential losses or damages resulting from, or arising out of, this Agreement.
7. INTELLECTUAL PROPERTY
7.1 Ownership and Title: As between the parties, Software2 owns all right, title, and interest in and to the Licensed Materials and all derivative works relating thereto including ownership rights to patents, copyrights, trademarks and trade secrets therein and thereto.
7.2 Copies: Software2 shall make available to Licensee an additional copy of the Licensed Software for back-up use on the Server. Licensee shall not copy the Licensed Software and shall not allow the Licensed Software to be copied without the prior written consent of Software2 unless otherwise specified in this Agreement.
7.3 Notices: Licensee shall not remove or alter any copyright notices or proprietary legends affixed by the Software Provider to the Licensed Software.
7.4 Reverse Engineering: Except as expressly stated in this Agreement or as expressly permitted by applicable law, the Licensee has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Licensed Software in whole or in part.
7.5 INDEMNIFICATION BY LICENSEE: SUBJECT TO CLAUSE 5.5, LICENSEE SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS SOFTWARE2 AGAINST ANY DAMAGES OR LIABILITIES ARISING FROM THE USE OF LICENSED MATERIALS BY LICENSEE AND/OR THE END USERS. Further, Licensee shall defend, indemnify, and hold harmless Software2 from and against any damages or liabilities arising out of Licensee's breach of this Agreement or violation of applicable law.f
7.6 Continuation: The terms and provisions of this Clause 6 shall survive termination of this Agreement.
8. CONFIDENTIAL INFORMATION
8.1 If a party acquires, or has disclosed to it, Confidential Information of the other party pursuant to the Agreement, the provisions of this clause 8 shall apply. A party's Confidential Information shall not include information that:
8.1.1 is or becomes publicly known through no act or omission of the receiving party; or
8.1.2 was in the receiving party's lawful possession prior to the disclosure; or
8.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
8.2 Each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the implementation of the Agreement. Each party receiving Confidential Information from the other party shall: (i) use and reproduce the Confidential Information only for the purposes specified in this Agreement, and (ii) use reasonable care to protect the other party’s Confidential Information and to prevent unauthorized disclosure of such Confidential Information.
8.3 Each party agrees to procure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents ("Representatives") in violation of the terms of the Agreement. Each party receiving Confidential Information from the other party shall restrict disclosure of Confidential Information to its Representatives with a need to know the Confidential Information to enable the receiving party to perform its obligations and exercise its rights under this Agreement, provided that such Representatives must be bound by confidentiality obligations at least as strict as those contained in this Agreement that are broad enough to encompass the Confidential Information.
8.4 For the avoidance of doubt, as between the parties to this Agreement, the Licensed Materials constitute the Confidential Information of Software2.
8.5 A receiving Party may disclose Confidential Information in accordance with a legally binding judicial or other governmental order, provided that, to the extent permitted by applicable law, such party provides the disclosing party with prompt notice of the same and reasonably cooperates with the disclosing party with any actions taken by the disclosing party to protect such Confidential Information, including without limitation the seeking of an appropriate protective order or other remedy.
8.6 During the Term, certain data may be made available to Software2 (whether through the Licensed Software or otherwise) by or on behalf of Licensee ("Licensee Data"). Licensee represents, warrants, and covenants that: (i) it has (and will have) provided any notice and obtained all consents and rights required by applicable law to enable Licensor to lawfully Process Licensee Data as permitted by this Agreement; (ii) it has full right and authority to make the Licensee Data available to Licensor under this Agreement; and (iii) Licensor's Processing of the Licensee Data in accordance with this Agreement will not infringe upon or violate any applicable laws or any rights of any third party. “Process” (including any grammatically inflected forms thereof) means any operation or set of operations which is performed on data or on sets of data, whether or not by automated means, including without limitation collection, recording, organization, structuring, storage, adaptation or alteration, access, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Software2 may collect, analyze and anonymize data, statistics, or other information obtained through the provision, use and performance of various aspects of the Licensed Software (collectively, “Analytics”) and aggregate such data, statistics, or other information with data, statistics or other information obtained from other sources, and may use such Analytics for lawful business purposes, including improvement of the Software and the Licensed Software, as long as in doing so Software2 does not re-identify, or attempt to re-identify, any of the Analytics or otherwise link or associate Analytics with any information relating to (i) Licensee, or (ii) an identified or identifiable natural person.
8.7 This clause 8 shall survive termination or expiration of the Agreement, however arising.
9.1 Assignments: This Agreement shall bind the parties hereto and their successors and assigns. Licensee shall not without Software2’s prior written consent assign, sublicense, charge, deal with or otherwise transfer this Agreement to any third party. Software2 may, without Licensee’s consent, assign, sublicense, charge, deal with or otherwise transfer this Agreement to any third party.
9.2 Entire Agreement: This Agreement (and any order for additional Professional Services or an increased number of licensed Devices or sites that may be subsequently entered into between the parties pursuant to clause 4.4 above and materially in the form set out in Schedule B) contains the entire understanding of the parties and supersedes all previous verbal and written agreements between the parties concerning licensing of the Licensed Materials and the provision of Professional Services.
9.3 Amendments and Modifications: Waivers, alterations, modifications or amendments of a provision of this Agreement shall not be binding unless such waiver, alteration, modification or amendment is in writing and signed by an authorized representative of both parties.
9.4 Severability: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.
9.5 Captions: The headings and captions of this Agreement are inserted for reference convenience and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.
9.6 Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be an original, but which together shall constitute one and the same instrument. For the avoidance of doubt, any electronic signature will be valid if it is accompanied by an electronic certificate evidencing authenticity.
9.7 Governing Law: This Agreement shall be governed by and construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts. Any dispute arising between the parties will be settled in an action commenced and maintained in any court sitting in Suffolk County, Massachusetts. The parties irrevocably consent and submit to the exclusive personal jurisdiction of such courts if there is any dispute between them and agree not to challenge or assert any defense to the jurisdiction of such courts.
9.8 Notice: Notices shall be in writing and shall be deemed delivered in person when (a) delivered by courier or mailed postage prepaid by Certified or Registered Mail in the case of Software2 to the address listed below and in the case of the Licensee the address specified in the Order or (b) in the case of the Licensee sent by email to the address specified in the Order and in the case of Software2 sent by email to email@example.com. Notice shall be deemed given (i) in the case of courier or mailed postage on the date of receipt -- as evidenced in the case of Certified or Registered Mail by Return Receipt or (ii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
Software2 Americas, Inc.
203 Franklin Street
Cambridge, MA 02139
9.9 Construction. In this Agreement, unless a clear contrary intention appears: (i) where not inconsistent with the context, words used in the present tense include the future tense and vice versa and words in the plural number include the singular number and vice versa; (ii) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement; (iii) reference to any gender includes each other gender; (iv) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and includes all addenda, exhibits and schedules thereto; (v) the titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement; (vi) “hereunder,” “hereof,” “hereto,” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular clause of this Agreement; (vii) “including” (and with correlative meaning, “include”) means including without limiting the generality of any description preceding such term; (viii) any reference to “dollars” means United States Dollars; (ix) all references to “days” refer to calendar days; and (x) the word "or" is not exclusive. This Agreement has been executed in English and the English language version shall control notwithstanding any translations of this Agreement. Unless otherwise expressly permitted under this Agreement, all deliverables will be in English.
9.10 Waiver: Waiver of breach of this Agreement shall not constitute waiver of another breach. Failing to enforce a provision of this Agreement shall not constitute a waiver or create estoppels from enforcing such provision.
9.11 Relationship of the Parties: It is agreed that the relationship of the parties is primarily that of licensee and licensor. Nothing herein shall be construed as creating partnership, employment relationship, or agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party maintains its separate identity.
9.12 Records: The Licensee shall keep complete and accurate records of its disclosure and use of the Licensed Software, and of all End Users thereof. The Licensee shall permit Software2 to inspect and have access to any premises (and to the computer equipment located there) at or on which the Licensed Software is being kept or used, and have access to any records kept in connection with this license, for the purposes of ensuring that the Licensee is complying with the terms of this license, provided that Software2 provides not less than two Business Days’ notice of such inspections, which shall take place during Business Hours.
9.13 Non-Solicitation: During the Term and for a period of two (2) years thereafter, neither Licensee nor any of its affiliates shall solicit for hire or engagement, or cause others to solicit for hire or engagement, directly or indirectly, as an employee or independent contractor, any employee or contractor of Software2. The term “solicit for hire or engagement” specifically excludes any broad-based effort to attract applicants if not specifically targeted to or specifically designed to attract Software2’s employees or contractors.
9.14 Force Majeure. Software2 shall not be in breach of this Agreement or otherwise be liable for any failure to perform its obligations under this Agreement because of circumstances beyond the control of Software2, WHICH CIRCUMSTANCES may include (without limitation) natural disaster, terrorism, labor disputes, pandemics, epidemics, or other health emergencies, quarantines, war, declarations of governments, transportation delays, failure of the Server, telecommunications failure and misuse of the LICENSED MATERIALS by Licensee OR THE END USERS.