Software License Agreement
This ISV Software License Agreement (the “Agreement”) governs access to and use of the Tervio Software and any accompanying offerings. By accepting this Agreement or otherwise accessing and/or using the ISV Software, you, on behalf of its organization and all Authorized Users, (collectively the “Licensee”) agrees to be bound by this Agreement. This Agreement is effective between Licensee and ISV and its Affiliates (“ISV”) as of the date of acceptance or use by Licensee of the ISV Software.
DEFINITIONS “Affiliate” means with respect to either party, an entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Party, where “control” means (i) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract or otherwise, and/or (ii) ownership of at least fifty percent (50%) of the voting stock, shares or interests of any such entity. “Authorized User” means any Licensee employees, consultants, contractors or agents authorized by Licensee’s administrator to access and use the ISV Software on behalf of Licensee for its business purposes, in each case subject to such person’s agreement to be bound by the terms of this Agreement and any Order Form.
“ISV Software” means the ISV cloud technology platform, any and all of ISV’s Intellectual Property or other materials related thereto, but specifically excluding: (a) the underlying physical infrastructure which the ISV Software accesses and relies upon, (b) the infrastructure made available by a third-party cloud infrastructure provider, and (c) Partner or Customer Data which utilizes or is available through the ISV Software.
“Cloud Infrastructure Services” means one or more public or private cloud computing services for the provision of compute capacity, data storage, data transmission, network and related infrastructure services.
“Confidential Information” means proprietary and third-party information that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be considered to be confidential. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was lawfully given to the recipient by a third-party.
“CSP” means a third party cloud service provider.
“Intellectual Property” means any and all code, patents, rights to inventions, utility models, copyrights, trademarks, database rights, moral rights, rights in either Party’s Confidential Information (including know-how and trade secrets) and any other intellectual property rights in any part of the world. “Licensee Data” means any and all data, materials, content or information entered into, transmitted through, or stored on the ISV Software by Licensee, or otherwise made available or accessible to ISV by Licensee.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means a document detailing the permissible access to the ISV Software, specifically the quantity, term, license fees, start and/or end date, End User name, and any other terms relating to Licensee’s rights and obligations in connection with the ISV Software, and may include a purchase order, invoice, or other ordering document between Licensee and a CSP if Licensee’s use or access to the ISV Software is funded by a CSP.
“Party” or “Parties” means either a single party, or both parties to this Agreement.
“Services” means the ISV Software combined with any Professional Services (as defined below), if applicable.
LICENSE License Grant. Subject to the terms of this Agreement, any Order Forms and payment of all applicable license fees, ISV grants Licensee a revocable, worldwide, non-exclusive, non-sublicensable, non-transferable license to access and use the ISV Software as detailed at [ISV URL] for Licensee’s business purposes for the Order Form Term (defined below). Reservation of Rights. Except as expressly granted in this Agreement, there are no other licenses granted to Licensee, express, implied. All rights not granted in this Agreement are reserved by ISV. Open Source Software. ISV may distribute certain Open Source Software with the ISV Software. Any Open Source Software distributed as part of the ISV Software shall be “as is.” Licensee shall have only such rights and/or licenses, if any, to use the Open Source Software as are set forth in the license applicable to such Open Source Software. CSP Funded License. For clarification, all terms in this Agreement other than the “Billing and Payment” Section, shall apply to Licensee’s use of the ISV Software whether purchased directly by Licensee, or by a CSP.
ISV RESPONSIBILITIES Access. ISV will make the ISV Software available to Licensee and any Authorized Users pursuant to this Agreement and any applicable Order Forms. Support. ISV will provide support pursuant to the applicable product specifications available at [ISV URL]. Licensee Data. ISV will maintain appropriate physical and technical safeguards for protection of the security, confidentiality and integrity of Licensee Data. ISV will not use or disclose any of Licensee Data, other than as necessary in the provision of the ISV Software pursuant to this Agreement. Personnel. ISV will be responsible for the performance of its personnel (including ISV employees and contractors) and their compliance with ISV’s obligations under this Agreement. Modification of the ISV Software. ISV reserves the right to modify the ISV Software on 90 days’ notice, provided that: (i) ISV shall not modify the ISV Software for any active Order Forms; and (ii) if such modifications materially impact Licensee’s use of the ISV Software pursuant to this Agreement, Licensee may terminate this Agreement immediately upon written notice to ISV. Professional Services. If purchased or otherwise ordered by Licensee, ISV may provide certain professional services enabled by the ISV Software (the “Professional Services”), and such Professional Services will be provided pursuant to the details (including fees, service period, scope, and deliverables) set forth on an applicable Order Form. If applicable, with respect to the Professional Services: Licensee will provide all necessary access and cooperation to enable ISV to perform its obligations under an Order Form. ISV shall have no liability for any failure to deliver any Professional Services resulting in whole or in part from a lack of such access or cooperation, or any incorrect assumption or a dependency outside of ISV’s control. ISV warrants that at the time of performance all Services will be performed in a good and workmanlike manner and in accordance with generally accepted industry standards. EXCEPT FOR THE FOREGOING, ISV MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, AND ISV SPECIFICALLY DISCLAIMS ALL OTHER SUCH WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
USE OF THE TECHNOLOGY; LICENSEE RESPONSIBILITIES Licensee Responsibilities. Licensee will: (i) be responsible for identifying and authenticating all Authorized Users, for approving access by such Authorized Users to the ISV Software, for controlling against unauthorized access by Authorized Users; (ii) be responsible for all Authorized Users’ agreement to and compliance with this Agreement, and any applicable Order Forms; (iii) be responsible for the accuracy, quality and legality of Licensee Data; (iv) use all reasonable efforts to prevent unauthorized access to or use of the ISV Software and notify ISV as soon as possible of any such unauthorized access or use; (v) use the ISV Software only in accordance with this Agreement and any Order Forms; (vi) select and be solely responsible for ensuring compliance with any terms and conditions governing Licensee’s use of or access to any Cloud Infrastructure Services; and (vii) comply with all applicable laws and regulations. Licensee Infrastructure. Licensee shall retain sole responsibility for its information technology infrastructure, including, computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Licensee or through third-party providers, as well as the security and use of access credentials, and all access to and use of the ISV Software. Usage Restrictions. Licensee may not: (i) make the ISV Software available to anyone outside of the Authorized Users; (ii) sell, resell, lease, license, sublicense, distribute or otherwise make the ISV Software available to any third-parties, other than any license rights expressly granted in this Agreement and any Order Form, or grant or attempt to grant any third-party such rights; (iii) use the ISV Software to upload, transmit, store, or share any information or materials that infringes the intellectual property or privacy rights of a third-party, or information or material that is unlawful; (iv) use the ISV Software to transmit any Malicious Code; (v) attempt to gain, or assist another party’s attempt to gain, unauthorized access to the ISV Software; or (vi) disassemble, decompile, reverse engineer, copy, modify, or create derivative works from the ISV Software, unless expressly permitted in an Order Form. Any violation of these restrictions shall be considered a material breach of this Agreement. Patches and Updates. ISV may update or provide patches or updates to the ISV Software at any time. As a result, ISV may require Licensee to accept such patches or updates to the ISV Software and Licensee agrees that the version of each ISV Software to which it is granted a license shall be the version of each ISV Software which is then generally made available by ISV. Licensee may need to update third-party software or other technology from time to time in order to be compatible with the ISV Software.
TERM AND TERMINATION Term. This Agreement shall continue until terminated by either party (the “Term”). ISV Software Access Term. Licensee’s access to the ISV Software shall begin on the date specified in the applicable Order Form and continue for the term set forth in that Order Form (the “Order Form Term”). Termination. This Agreement may be terminated: (i) by either Party for any reason on 30 days’ written notice to the other Party; (ii) immediately by mutual agreement of the parties; or (iii) on notice of one Party, if the other Party is in material breach of this Agreement, provided that following such notice of a material breach, the breaching Party shall have 14 days from receipt of the notice to cure such breach; (iv) immediately in the event that either Party commences a liquidation or dissolution or becomes the subject of a bankruptcy or insolvency proceeding, by the Party not commencing the liquidation, dissolution or bankruptcy/insolvency proceeding; or (v) immediately by ISV if Licensee or any Authorized Users breach any term or condition set forth in this Agreement. Active Order Forms at Termination. If there are any Order Forms still in effect at the termination of this Agreement, the Parties agree to fulfill their respective obligations under such Order Form until the applicable Order Form Term has expired, as if this Agreement were still in effect. Surrender of Materials. Notwithstanding anything to the contrary herein, the parties may keep copies of any materials, data, or other information beyond the Term of this Agreement only as necessary to comply with applicable legal or regulatory requirements.
BILLING AND PAYMENT Fees. Licensee will pay all fees and costs specified in an Order Form. Licensee must notify ISV of any disputed charges within 10 business days from the receipt of an invoice, otherwise Licensee waives the right to dispute such fees. Unless otherwise specified on an Order Form, Licensee will pay for access to the ISV Software annually, in advance, with the first invoice to be issued on the effective date of an Order Form. If no effective date is defined, ISV shall provision access and invoice upon execution of an Order Form. Invoice Due Date. Licensee will pay all invoices according to the term defined on the individual Order Form. Taxes and Withholding. Licensee is solely responsible for any applicable VAT, sales, use or any other taxes payable under, or arising out of, or in connection with this Agreement. Unpaid Amounts. Unpaid amounts will be subject to a monthly late fee of 1.5% of the outstanding balance, or the maximum legally allowable interest rate, whichever is lower. If an invoice is not paid in full, or disputed pursuant to the method set forth above, ISV may suspend Licensee’s access to and use of the ISV Software. True Up. ISV reserves the right to charge Licensee for use of the ISV Software in excess of the license(s) purchased in any Order Form. ISV may exercise this right at the end of any Order Form Term (as defined below).
INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS Intellectual Property Rights. Except as explicitly set forth in this Agreement or an Order Form, Licensee shall have no right, title, or interest in the ISV Software or Intellectual Property contained therein. Licensee shall retain all rights in Licensee Data. ISV shall have a license to use Licensee Data only as required to provide the Services. Except with ISV’s prior written consent, Licensee shall not: (a) distribute modified ISV Software; (b) remove any copyright, proprietary notice, or license information from any ISV Software or documentation; or (c) use the ISV Software in any manner or for any purpose not specifically permitted by this Agreement. ISV owns and retains all right, title, and interest in the ISV Software and all Intellectual Property rights inherent therein, including, without limitation, all changes incorporated into the ISV Software by ISV, even if originally requested or suggested by Licensee and/or any Authorized User. Any unauthorized use of the ISV Software will constitute a material breach of this Agreement. Feedback. Licensee grants ISV the worldwide, perpetual, irrevocable, and royalty-free license to use any feedback provided by Licensee relating to the use or operation of the ISV Software. Aggregated Anonymous Statistics. Notwithstanding anything else in this Agreement, ISV may monitor Licensee’s use of the ISV Software and use data and information related to such use, ISV Software, and other information in an aggregated and anonymized manner (which shall include the removal of identifying information such as phone number, Authorized User names and specific Licensee information) including to compile statistical and performance information related to the operation of ISV Software, and to improve features and functions in these (“Aggregated Anonymous Statistics”). As between ISV and Licensee, all right, title and interest in the Aggregated Anonymous Statistics and all Intellectual Property Rights therein, belong to and are retained solely by ISV. Licensee acknowledges that ISV will be compiling Aggregated Anonymous Statistics based on ISV Software and information input by Licensee and Authorized Users into the ISV Software, and Customer agrees that ISV may (a) make such Aggregated Anonymous Statistics publicly available, and (b) use such information to the extent and in any manner permitted by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Licensee, an Authorized User, or Licensee’s Confidential Information. CSP Data Access. Notwithstanding anything to the contrary in this Agreement and subject always to the confidentiality obligations set forth below, if Licensee’s purchase or use of the ISV Software is funded by or through a CSP, that CSP will have a right to access and make use of Licensee Data for its business purposes. ISV will not be responsible for such CSP’s compliance with applicable data protection laws, rules, and regulations; any liability stemming from the CSP’s use of or access to Licensee Data will be governed by Licensee’s direct agreement with such CSP.
DATA PROTECTION Data Protection Laws. Both parties agree to comply with all applicable data protection laws, rules, and regulations. Data Protection. The parties agree to the terms of the Data Processing Agreement set out here.
CONFIDENTIALITY To the extent that Confidential Information of either Party and its affiliates is disclosed and/or received by the other Party or its affiliates, each Party agrees not to use the other Party’s Confidential Information except in the performance of or as authorized by this Agreement, and not to disclose, sell, license, distribute or otherwise make available such information to third-parties. Use by third-party contractors or CSPs may be permitted so long as such third-party is required to maintain the confidentiality of such information as required by this Section.
INDEMNIFICATION ISV Indemnification. ISV will indemnify Licensee against damages arising from a third-party claim where there is a finding by a court of competent jurisdiction that Licensee’s use of the Services infringes the Intellectual Property rights of that third-party. If ISV becomes aware of any infringement claim related to the Services, ISV may, in its sole discretion and at no cost to Licensee: (i) modify the Services so that its is no longer claimed to infringe; (ii) obtain a license for Licensee to use the Services pursuant to this Agreement; or (iii) terminate this Agreement and/or any affected Order Form on 30 days’ written notice to Licensee and provide a pro-rata refund for the affected period. ISV will have no obligation to indemnify Licensee if: (i) the claim against Licensee arises from the use of the Services in combination with any products, software, or technology provided by a third-party; (ii) if the claim against Licensee arises out of any use of the Services that violates this Agreement; or (iii) if the claim against Licensee arises out of any modification or alteration of the Services performed by Licensee or at Licensee’s direction. Licensee Indemnification. Licensee will indemnify ISV against damages arising from a third-party claim against ISV: (i) that any Licensee Data or other information, design, specification, instruction, software, service, data, hardware, or material furnished by Licensee or an Authorized User infringes a third-party’s intellectual property rights, and (ii) for any breach of applicable law by Licensee. Indemnification Process. Any claim for indemnification pursuant to this Agreement shall be conditioned on the indemnified Party: (i) promptly notifying the indemnifying Party in writing of any such suit; (ii) granting the indemnifying Party sole control of the proceedings (including without limitation the right to settle on the indemnified Party’s behalf); and (iii) cooperating at all times with the indemnifying Party in connection with its defense at the indemnifying Party’s reasonable expense.
LIMITED WARRANTIES, LIMITATION OF LIABILITY, AND DISCLAIMERS LIMITED WARRANTIES. LICENSEE UNDERSTANDS AND AGREES THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ISV DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR THAT THE SERVICES WILL PERFORM ERROR-FREE OR UNINTERRUPTED. NO WARRANTY FOR CLOUD INFRASTRUCTURE SERVICE. THE CLOUD INFRASTRUCTURE SERVICE IS NOT PROVIDED OR CONTROLLED BY ISV AND IS NOT PART OF THE SERVICES OR ANY ISV PRODUCT. ISV IS NOT RESPONSIBLE FOR THE CLOUD INFRASTRUCTURE SERVICE IN ANY WAY. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING ANY COST OF COVER, LOST PROFITS, LOST GOODWILL, LOST USE OR PERFORMANCE OF ANY PRODUCTS, SERVICES, OR OTHER PROPERTY, LOSS OR IMPAIRMENT OF DATA OR SOFTWARE, OR OTHERWISE EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ISV WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. IN ANY CASE, EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID AND CANNOT BE LIMITED BY CONTRACT, THE PARTIES AGREE THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES AND THAT EACH PARTY’S MAXIMUM CUMULATIVE LIABILITY OR OTHER FINANCIAL CLAIM (OTHER THAN PAYMENTS AS THEY BECOME DUE) WHETHER IN CONTRACT, TORT, FOR INDEMNIFICATION OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID OR PAYABLE BY LICENSEE (OR, IF APPLICABLE, PAYABLE OR FUNDED BY A CSP) UNDER THE RELEVANT ORDER FORM DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, UP TO A MAXIMUM OF $1,000,000.
MISCELLANEOUS
Compliance with Law. Both Parties represent that they shall comply with all applicable laws, rules, and regulations governing the performance of a Party’s obligations under this Agreement.
Force Majeure. Neither Party shall be liable for delays and/or defaults in its performance under this Agreement due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing: acts of god, fire or explosion, flood, telecommunication system failure, war, acts of or acts terrorism, or any other cause beyond a Party’s reasonable control. ISV Marketing Rights. ISV may only use Licensee’s name, trademarks or service marks, and reference to this Agreement in promotional and marketing materials, public announcements or required disclosures: (i) on Licensee’s written consent and (ii) subject to any branding or other guidelines provided by Licensee from time to time.
Audit Rights. Licensee will keep accurate records in the normal course relating to this Agreement. ISV may, no more than once per year of the Term and on reasonable notice to Licensee, request access to copies of any such records. In the event such audit discloses non-compliance with the Agreement, without limiting any other remedy hereunder, Licensee shall promptly pay to ISV the appropriate fees to remedy such non-compliance, plus the reasonable cost of conducting the audit.
Waiver. The failure of either Party to enforce any of the terms or conditions of this Agreement shall not constitute a waiver of any term or condition of this Agreement.
Assignment. Neither Party may assign or transfer any right, obligation or duty, in whole or in part, or any other interest hereunder without the written consent of the other Party, except that ISV may freely assign to an affiliate or successor by merger, reorganization, consolidation or sale of some or all of its assets, without Licensee’s prior written consent.
Severability. Should any part, term or provision of this Agreement or any Order Form be declared invalid, void or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the Parties with all terms and provisions remaining in full force and effect.
Applicable Law. This Agreement shall be governed by the laws of the State of New York without regard to its choice of law provisions.
Relationship of the Parties. The Parties to this Agreement are independent contractors and nothing in this Agreement will be deemed or construed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between Licensee and ISV. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party.
Entire Agreement. The Agreement and any Order Form, as amended from time to time, constitutes the entire agreement between the Parties with regard to the subject matter herein. In the event of a conflict between this Agreement and an Order Form, the terms of this Agreement shall prevail. Survival. All provisions that logically ought to survive termination of this agreement shall survive.
