PROSPEROWARE LICENSE AGREEMENT
CAUTION: CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE INSTALLING, COPYING OR USING THE SOFTWARE OR DOCUMENTATION. IF YOU OR YOUR AGENT CLICK ON THE BUTTON INDICATING YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR INSTALL, COPY, OR USE THE SOFTWARE, YOU ACCEPT ALL THE TERMS AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF THE TERMS OF THIS AGREEMENT ARE NOT ACCEPTABLE TO YOU, (1) SELECT THE BUTTON INDICATING YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT; (2) YOU MAY NOT INSTALL, COPY OR USE THE SOFTWARE; AND (3) CONTACT PROSPEROWARE IMMEDIATELY AT THE NUMBER LISTED BELOW. PROVIDED THAT YOU OR YOUR AGENT HAS ACCEPTED AND AGREED TO THE TERMS OF THIS AGREEMENT, PROSPEROWARE (“PROSPEROWARE”) GRANTS YOU OR YOUR AGENT A LICENSE TO USE THE SOFTWARE AS INDICATED BELOW:
Terms and Conditions.
- Definitions. “Order Form” means document(s) issued by Prosperoware or a Prosperoware Authorized Partner specifying the Software licensed, duration of the license (“License Term”) and/or services to be provided by Prosperoware, related pricing and information about the transaction. If no License Term is specified in the Order Form, the License Term is 1 year. “Software” means (a) all of the contents of the files, download packages, disk(s), CD-ROM(s) or other media (including electronic media) provided by Prosperoware, its distributors, resellers, or partners, (collectively “Authorized Partner(s)”), including user manuals, release notes and related materials in printed, electronic, or online form (“Documentation”); and (b), modified or subsequent versions and updates, of the Software, licensed to you by Prosperoware or an authorized partner included as part of a subscription license or Support. “Subscription Product” means the Software and user licenses which may be used commencing on delivery for the License Term set forth in the Order Form.
- Software License. Prosperoware hereby grants You a nonexclusive, nontransferable, non-sublicensable, license to use, operate, install the Software listed in an Order Form for the License Term, solely for Your internal business operation, in accordance with the accompanying Prosperoware documentation, and any other use restrictions for the Software in the Order Form and online at: www.prosperoware.com/licensemetrics or other successor URL furnished by Prosperoware. You may make one (1) copy of the Software in machine readable form solely for archival purposes provided You do not remove any proprietary notices. You may authorize Your contractors and outsourcers (“Agents”) to use or operate the Software solely on Your behalf provided: (i) You obtain such Agents binding consent to abide by the terms of this Agreement; and (ii) You shall be responsible for such Agents use and compliance. Agents are not third party beneficiaries under this Agreement. Your right to use the Software shall automatically expire at the end of the License Term.
- Restrictions. Except as permitted by this Agreement, You shall not, nor authorize anyone else to, directly or indirectly: (i) disseminate, sublicense, copy, modify, reverse engineer, decompile, translate; (ii) attempt to discover the source code or structure, sequence and organization of the Software (except where the foregoing restriction is expressly prohibited by applicable local law, and then only to the extent so prohibited); or (iii) rent, lease, or use the Software for timesharing or service bureau purposes for third parties, or use the Software on behalf of any third party; (iv) publish or disclose any information or results relating to performance, or other “benchmarking” activities; or (v) make the Software externally accessible, or provide anonymous access. You may not remove any proprietary notices or labels on the Software. You may only use the object code version of the Software. All rights not granted under this Agreement are reserved by Prosperoware.
- Payments; Fees; Expenses; Taxes. This section shall apply solely to the extent You are issuing payment for use of the Software to Prosperoware. If you are paying an Authorized Partner, then the terms of invoicing, pricing, shipment and payment between you and the Authorized Partner shall apply. All fees and expenses (“Fees”) are due and payable by You in U.S. Dollars thirty (30) days from the date of Prosperoware’s invoice. Unless otherwise indicated in the Order Form, Payment by You is to be made directly to Prosperoware at the address listed on the Order Form. In the event You have received any type of discounts on Fees and You fail to pay Prosperoware as agreed under the terms of this Agreement, all such discounts shall be forfeited. Prosperoware reserves the right to charge interest on the unpaid Fees up to the maximum rate allowed by applicable law. All amounts payable under this Agreement are exclusive of all sales taxes. You shall indemnify, defend and hold Prosperoware harmless from any sales, use, value-added, withholding, excise, import or export, or similar tax not based on Prosperoware’s net income or other duty or fee and any penalties or interest associated with any taxes imposed by any governmental authority with respect to any payment to be made by You to Prosperoware under this Agreement.
- Ownership of the Software and Copyright. The Software is the proprietary product of Prosperoware and is protected by copyright law, international treaty provisions and other applicable laws in the country in which it is being used. Prosperoware and its third party suppliers or licensors, retain all right, title and interest in the Software recorded on the original media and all subsequent copies of the Software including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. This Agreement is not a sale of the Software or any copy thereof and You acquire only the right to use the Software and do not acquire any rights of ownership in the Software. Nothing in this Agreement shall limit in any way Prosperoware’s right to develop, use, license, create derivative works of, or otherwise exploit the Prosperoware. To the extent you provide any comments or suggestions to Prosperoware about the Software, Prosperoware shall have the right to retain and use any such comments or suggestions in current or future Software or services, without further compensation to You and without Your approval.
- Delivery. Upon Prosperoware’s acceptance of the Order Form, Prosperoware will deliver the ordered Software, by electronic means and the Software shall be deemed delivered upon Your receipt of instructions for downloading the Software file package.
8.1.“Confidential Information” means all confidential or proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, including pricing and other terms set forth in all Order Forms hereunder, business information, specifications, research, software, including but not limited to, the Software and Documentation, trade secrets, designs, drawings, flow charts, data, computer programs, marketing plans, budget figures, and other financial and business information, or any such information of clients, parents, affiliates, subsidiaries or agents of a Party. Confidential Information does not include anonymized data regarding use of Prosperoware products and services that does not contain any personally identifiable or customer-specific information that would identify an individual.
8.2. Treatment of Confidential Information. The Receiving Party shall not use or disclose any Confidential Information of the Disclosing party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s permission. The Receiving Party will not disclose the Confidential Information of the Disclosing Party except on a need-to-know basis to personnel who are subject to written confidentiality obligations comparably protective as under this Agreement.
8.3. Permitted Disclosure. The obligation of nondisclosure set forth herein shall not apply to any Confidential Information that: (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information (except for patentable subject matter, which shall not be subject to this exception); or (v) the Receiving Party is required to disclose by any applicable law, by any rule or regulation of any court or government agency of competent jurisdiction, or pursuant to legal process; provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement to disclose, reasonable assistance in the opposing or limiting of such disclosure and limits such disclosure to that strictly required by such court, government agency or legal process.
8.4. Injunctive Relief. Receiving Party acknowledges that any disclosure not authorized by this Agreement may cause substantial damage to the Disclosing Party for which a compensation of damages would not be a fully adequate remedy. In the event of any such breach of Agreement, in addition to any other available remedies, Disclosing Party shall have the right to seek injunctive relief without being required to post a bond or other security.
9. Term, Termination.
9.1. This Agreement shall continue until the end of the License Term set forth in the Order Form, unless earlier terminated as set forth in this section. You may terminate this Agreement at any time. This Agreement shall terminate if You violate or fail to comply with any provision of this Agreement or Order Form and fail to cure such breach within thirty (30) days of receipt of notice of breach from Prosperoware. Any termination of this Agreement due to Your uncured breach shall also terminate the licenses granted hereunder.
9.2. Effect of Termination. Upon termination of this Agreement, You shall cease use of the Software, and shall destroy and remove from all computers, hard drives, networks and other storage media all copies of the Software and documentation. In addition, each party shall remove and destroy any Confidential Information of the other, and shall certify in writing that such actions have occurred. Termination shall not relieve You of the obligation to pay any fees accrued or payable to Prosperoware under the Agreement or applicable Order Form. Your confidentiality obligations, and all limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement. In addition, the provisions of the section titled “Government Use, Restricted Rights” shall survive termination of this Agreement.
10. Warranties/Exclusive Remedies.
10.1. Prosperoware warrants for ninety (90) days from the date of delivery to You (the “Warranty Period”): (a) the enclosed media, if delivery is physical, is free of defects in materials and workmanship under normal use and (b) the unmodified Software will operate substantially in accordance with the user documentation accompanying the Software.
10.2. Any claim under this Section must be submitted in writing to Prosperoware within the Warranty Period. For any breach of this warranty, Prosperoware will as applicable: (i) promptly repair or replace the defective media; or (ii) use commercially reasonable efforts to make the Software operate as warranted. This shall be Prosperoware’s sole and exclusive obligation, and Your sole and exclusive remedy for warranty claims for the applicable Software.
10.3. EXCEPT FOR THE FOREGOING, PROSPEROWARE PROVIDES THE SOFTWARE “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, implied warranties of merchantability, fitness for a particular purpose, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT. These are YouR sole and exclusive remedies AND PROSPEROWARE’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY for any breach of warranty. This limited warranty gives You specific legal rights. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
11. Indemnification by Prosperoware
11.1. Prosperoware, at its expense, will defend You against any third party claim, suit or proceeding (a “Claim”) alleging Your use of the Software in accordance with the Agreement infringes a third party’s United States trademark, copyright or patent issued as of the Effective Date; and pay any settlement amounts and damages, costs and expenses (including reasonable attorneys’ fees) awarded by a court of final jurisdiction or consented to by Prosperoware arising out of such Claim any third party claim, suit or proceeding alleging that Your use of the Prosperoware Software in accordance with the Agreement infringes a third party’s United States copyright or patent issued as of the Effective Date. Prosperoware’s duty to indemnify is conditioned on the following: (i) You promptly notify Prosperoware in writing after Your receipt of notification of a potential claim; (ii) Prosperoware has sole control of the investigation, defense and settlement of such claim and all related settlement negotiations; and (iii) You provide Prosperoware, at its request and expense, with the assistance, information and authority necessary to perform its obligations under this Section. Prosperoware will not be responsible for any costs, expenses or compromise incurred or made by You without Prosperoware prior written consent.
11.2. The foregoing obligation shall not apply with respect to a claim of infringement if such claim arises out of (i) use of the Prosperoware Software in combination with any software, hardware, network or system not supplied or authorized by Prosperoware where the alleged infringement relates to such combination, (ii) any modification or alteration of the Prosperoware Software (other than by Prosperoware), (iii) the use of a superseded or altered release of the Software if the infringement would have been avoided by the use of a current unaltered release of the Software, (iv) intellectual property furnished by a third party, or (v) the use of the Software other than in accordance with the Documentation and this Agreement, (vi) any claim (such as a counterclaim) that was made in response to a suit or proceeding first filed by You alleging patent infringement; or (vii) any claim asserting You wilfully infringed. If any claim which Prosperoware is obligated to defend has occurred, or in Prosperoware’s determination is likely to occur, Prosperoware may, in its sole discretion and at its option and expense (a) obtain for You the right to use the allegedly infringing Software, (b) substitute a functionality equivalent, non-infringing replacement for such Software, (c) modify such Software to make it non-infringing and functionally equivalent, or (d) terminate the license for the infringing Software and refund the license fees paid by You to Prosperoware for the infringing Software in an amount pro-rated over a period of five years. This Section 10 states Prosperoware’s entire liability and Your exclusive remedy for any claim of infringement.
12. Support And Upgrades. If You have purchased a Subscription Product You are entitled to receive technical support, upgrades, patches, enhancements, and fixes for the Software (collectively, “Support”) during the License Term. However the purchase of a perpetual license does not entitle You to Support. In order to receive Support for a perpetual license, You must order Support and pay any fees associated with such Support on an annual basis. Any software upgrades, patches, enhancements or fixes provided as part of Support for the Software and made available by Prosperoware shall become part of the Software and subject to this Agreement. The terms of Prosperoware’s standard support services are at this URL <http://www.prosperoware.com/supportterms > or successor URL.
13. Services. “Services” means the professional, consulting and implementation services provided by Prosperoware, excluding Support. The Services, any Deliverables, business parameters and related fees are described in a Statement of Work, Order Form or other document provided by Prosperoware. “Deliverables” means any object code, source code, flow charts, documentation, information, reports, test results, findings, ideas, and all works and other materials developed in an SOW under this Agreement. You will be invoiced monthly for Services performed and approved expenses incurred. Prosperoware hereby grants You a nonexclusive, non-transferable, royalty free license to use the service Deliverables with the Software in a manner consistent with the Agreement. All other rights in the Services and Deliverables are retained by Prosperoware. Prosperoware may perform similar services for other customers. Prosperoware warrants the Services will conform to generally accepted industry standards and practices. EXCEPT AS STATED IN THIS SECTION, PROSPERWOWARE PROVIDES SERVICES “AS IS” AND MAKES NO OTHER SERVICE WARRANTIES, EXPRESS OR IMPLIED; ANY OTHER WARRANTIES ARE HEREBY DISCLAIMED..
14. LIMITATION OF LIABILITY. PROSPEROWARE AND ITS THIRD PARTY SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF PROSPEROWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROSPEROWARE’S AND ITS THIRD PARTY SUPPLIERS’ AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE FEES PAID BY YOU FOR THE SOFTWARE LICENSE(S) AND SUPPORT SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK, WHICH IS SET FORTH IN THIS SECTION. The foregoing limitations will apply even if the above stated warranties fail of their essential purpose. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages so the above limitation may not apply.
15. Government Use, Restricted Rights. The Software is deemed to be “commercial computer software” and related documentation in accordance with the terms of this commercial Software Agreement as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors. For acquisition on or behalf of units of the Department of Defense (“DoD”) this Software is protected as “commercial computer software” and related documentation in accordance with the terms of this commercial computer software license as specified in 48 C.F.R. 227-7202-2 of the DoD F.A.R. Supplement and its successors. Any use, modification, performance, display or disclosure of the Software and accompanying documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
16.1. Choice of Law. This Agreement shall be governed by the laws of the State of New York, excluding its conflict of law rules, except for copyright law, which is governed by U.S. federal law. Venue shall be in New York County, New York. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The prevailing party in any litigation hereunder shall be entitled to recover attorney’s fees.
16.2. You may not assign, sublicense or transfer this Agreement. Prosperoware expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. Any prohibited assignment or sublicense shall be null and void.
16.3. This Agreement may be modified only by Prosperoware. Prosperoware reserves the right to audit Your use of the Software upon prior written notice, during reasonable business hours and at Prosperoware’s expense.
16.4. Prosperoware’s third party suppliers or licensors are third party beneficiaries of this Agreement, and are entitled to enforce directly against You provisions of this Agreement pertaining to Your access to or use of their licensed Software, or provisions designed to disclaim or limit their obligations and liabilities. The parties shall not be liable for any failure to perform due to causes beyond their reasonable control (except for any payment of money hereunder).
16.5. Compliance with Law. You will comply with all applicable laws and regulations in Your use of the Software or other technical data provided by Prosperoware under this Agreement, including all applicable export or import laws and regulations. You shall not directly or indirectly export, import, download or transmit the Software to any country, end user or for any Use that is prohibited by applicable United States regulation or statute including but not limited to those countries embargoed by the United States government.
16.6. Waiver, Enforceability. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future. If any provision of this Agreement is held to be unenforceable, the parties shall substitute for the affected provision an enforceable provision, which approximates the intent and economic effect of the affected provision.
16.7. Entire Agreement. This Agreement represents the entire agreement between the parties and supersedes all prior and contemporaneous agreements and understandings, whether written or oral. All terms of Your purchase order or order confirmation shall be superseded by this Agreement and shall be of no force or effect. Invalidity of any provision of this Agreement shall not affect the validity of the remaining provisions of this Agreement. You hereby agree Prosperoware may list Your name on its list of customers using the Software. In the event of a conflict between the Order Form and the Agreement, the Order Form shall control for that particular Order.
Version Updated: 09/2015
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