SAAS END USER LICENSE TERMS
Effective date: Jan 1st 2020
SAAS END USER LICENSE AGREEMENT (“AGREEMENT”) TERMS
READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE INSTALLING, ACCESSING, DOWNLOADING AND/OR USING THE LICENSED SOFTWARE PRODUCT AND RELATED DOCUMENTATION, IF ANY, (COLLECTIVELY, THE “SOFTWARE PRODUCT”). THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN “LICENSEE” AND “LICENSOR”. IF THE SOFTWARE IS INSTALLED, ACCESSED, DOWNLOADED AND/OR USED, INCLUDING BY REQUESTING THE AUTHORIZATION CODE OR ACTIVATION KEY TO INSTALL THE SOFTWARE PRODUCT, LICENSEE IS DEEMED TO HAVE UNCONDITIONALLY ACCEPTED THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS. THIS AGREEMENT REPRESENTS THE COMPLETE AGREEMENT CONCERNING THE SOFTWARE PRODUCT, AND IT SUPERSEDES ANY PRIOR OR CONCURRENT AGREEMENT, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES, INCLUDING BUT NOT LIMITED TO ANY ASSOCIATED PURCHASE ORDER TERMS AND CONDITIONS UNDER WHICH THE SOFTWARE PRODUCT WAS OBTAINED. LICENSOR and LICENSEE may be alternatively referred to as party, individually, and parties, collectively.
This copy of the Software Product is licensed and not sold to Licensee. This Software Product is protected by U.S. and International copyright laws and treaties, as well as laws and treaties, both statutory and common law, related to other forms of “intellectual property”, including but not limited to patents, trade secrets, trademarks or any other recognized form of common law or statutory proprietary protection. CTIntegrations LLC (“Licensor”) or its subsidiaries, affiliates, and associated entities (collectively "CTI") own all right, title and interest in and to all intellectual property rights in the Software Product. The Software Product, and any access or use thereof, is subject to all the terms and conditions of this Agreement.
1) License Grant
Licensor grants the Licensee a non-exclusive, non-sublicensable, non-transferable, revocable limited right to access, install and use multiple copies of the Software Product subject to number of licenses issued or permitted number of end users of Licensee as specified by Licensor. Licensee is not authorized to distribute, disseminate or make available, in any manner, the Software Product to any third-party. Licensee shall not be permitted to alter, modify, change, in any way, copy, reproduce, create derivative works of, disassemble, reverse engineer, decompile or otherwise derive the source code of the Software Product. Licensee may make one archival copy of the Software Product. The archival copy must be on a storage medium other than a hard drive, and may only be used only for back-up purposes or for the reinstallation of the Software Product in the event the Software Product is lost or erased. No other intellectual property rights or interests are granted, either express or implied, by the provision of the Software Product. No proprietary notices may be altered or removed on the Software Products.
2) Third-Party Software/Updates/Maintenance and Support/Customized Services
a) Except where authorized in writing, Licensee cannot combine the Software Product with any third-party software or interface or become interoperable with any third-party software.
b) Unless otherwise agreed in writing, Licensor shall not be obligated to provide error corrections, bug fixes or updates to the Software Product throughout the Agreement term.
c) Unless otherwise agreed in writing, Licensor shall not be obligated to provide training, maintenance or support for the Software Product nor provide any customized services.
d) Unless otherwise agreed, Licensor shall not be obligated to provide new versions or releases during the Agreement term.
3) Confidential and/or Proprietary Information
a) Licensee acknowledges that Licensor owns all right, title and interest in and to the Software Program, format, on-line editor, any Website, any links, and any associated tangible or intangible Licensor-provided materials, documents or other embodiments of information or data, and expressions, identified confidential information, including any related, associated or underlying concepts, ideas, methods, and processes; algorithms, source, object, binary, executable code, html and code listings; interfaces, improvements, enhancements, modifications, changes, alterations, versions, releases, updates, error corrections and bug fixes; system(s) and architecture; expressions and other works derived solely therefrom, works thereof; and intellectual property, which is in existence as of the Effective Date or which is developed, generated, or created by Licensor during the term of this Agreement. The Licensee further acknowledges that any improvements, enhancements, changes, alterations, modifications or derivative works, which are developed, created or generated by the Licensee, either jointly with Licensor or solely, from the preceding during the term of this Agreement shall be owned and held by Licensor and that the Licensee hereby assigns all right, title and interest therein, without further consideration, to Licensor to confirm Licensor’s ownership thereof. (collectively, “Licensor Property”).
b) Licensor acknowledges that the Licensee owns all right, title and interest in and to the Licensee data, and Licensee generated reports, , (collectively, “Licensee Property”). Licensor shall treat Licensee Property as confidential and proprietary to the Licensee, and refrain from disclosing or releasing to any third party Licensee Property, until such Licensee Property: i) comes into the public domain through no fault of Licensor, or ii) becomes obsolete as is customary in the industry, or iii) is released in writing by the Licensee, whichever of the foregoing events occurs first.
c) The Licensee shall consider the Software Product (including the source code and associated code listings) and Licensor Property, including all related technical and business information, whether disclosed in oral, visual or written form, to be confidential and proprietary to Licensor. The Licensee shall exercise at least a reasonable standard of care to protect the confidentiality of the information, and to prevent the unauthorized use, dissemination, disclosure or publication of confidential information during the term of this Agreement. The term of confidentiality shall extend for five (5) years beyond the expiration and/or termination date of this Agreement; however, it is understood that this Agreement shall impose no obligations of confidentiality on the Licensee where the Program or Licensor Property: (a) was rightfully in the Licensee’s possession before receipt from Licensor; (b) is or becomes a matter of public knowledge through no fault of the Licensee; (c) is rightfully received by the Licensee from a third party without a duty of confidentiality; (d (e) is disclosed under operation of law; provided that Licensee timely notifies Licensor and Licensor is given the opportunity to protest such disclosure; or (f) is disclosed with Licensor’s prior written approval.
4) Disclaimer of Warranties and Limitation of Liability
a) For a period of thirty (30) days after installation of the Software Product (Warranty Period), the Software Product will be free of defects, bugs, errors and will be operational when installed provided that, the foregoing is directly attributable to the delivered Software Product, the Software Product is used with authorized third-party software and hardware, and the Software Product has not been modified, altered or changed, in any manner, by any third party. Except as provided hereinbefore, no other Warranty Period will be provided. THE SOFTWARE PRODUCT IS PROVIDED "AS IS". LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, MISAPPROPRIATION, MISUSE OR UNAUTHORIZED USE FROM A THIRD PARTY OTHER THAN AS SET FORTH IN THIS AGREEMENT, INCLUDING THE LIMITED WARRANTY RECITED HEREIN.
b) LICENSOR MAKES NO WARRANTY THAT THE SOFTWARE PRODUCT WILL MEET LICENSEE’S REQUIREMENTS OR OPERATE UNDER LICENSEE’S SPECIFIC CONDITIONS OF USE. OTHER THAN THE LIMITED WARRANTIES SET FORTH ABOVE DURING THE WARRANTY PERIOD, LICENSOR MAKES NO WARRANTY THAT OPERATION OF THE SOFTWARE PRODUCT WILL BE SECURE, ERROR FREE, BUG FREE OR FREE FROM INTERRUPTION. LICENSEE MUST DETERMINE WHETHER THE SOFTWARE PRODUCT SUFFICIENTLY MEETS LICENSEE’S REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY.
LICENSEE SHALL BEAR SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE SOFTWARE PRODUCT TO MEET LICENSEE’S REQUIREMENTS. LICENSOR WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE.
c) UNDER NO CIRCUMSTANCES SHALL LICENSOR, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE SOFTWARE PRODUCT, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF LICENSOR OR ANY OTHER PARTY,. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS LICENSOR’S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED.
5) Limitation of Remedies, Limitation of Liability and Damages, Indemnity
a) Licensee’s sole and entire remedy for a breach, including any of the warranties hereunder, of this Agreement by Licensor is solely the correction or replacement of the Software Product during the Warranty Period. Selection of whether to correct or replace shall be solely at the discretion of Licensor. Licensor reserves the right to substitute a functionally equivalent copy of the Software Product as a replacement.
b) Any claim must be made within the applicable Warranty Period. All warranties cover only defects arising under normal use and do not include malfunctions or failure resulting from misuse, abuse, neglect, alteration, problems with electrical power, acts of nature, unusual temperatures or humidity, improper installation, or damage determined by Licensor to have been caused by Licensee. All limited warranties on the Software Product are granted only to Licensee and are non-transferable.
c) Licensee agrees to indemnify, defend and hold harmless Licensor from all claims, judgments, liabilities, expenses, or costs (including attorney’s fees and litigation costs) that Licensor may suffer or incur out of third-party claims arising from: Licensee’s breach of this Agreement; Licensee’s possession, use or operation of the Software Product; Licensee’s unauthorized use, modification or misuse of the Software Product or associated intellectual property; claims of infringement due to combinations of software and hardware in connection with the Software Product as caused or contributed to by Licensee or any third-party; and/or any other legal or equitable claims, acts or omissions of negligence, tort, infringement or other causes of action associated with, arising from, based on or in connection with the Software Product or this Agreement caused by or otherwise contributed to by Licensee.
This Agreement shall remain in force and effect unless one of the following occurs:
a) Licensee may terminate, without cause, this Agreement upon thirty (30) days written notice.
b) Licensor may terminate this Agreement in the event of a material breach by Licensee, which is not cured to Licensor’s satisfaction with fifteen (15) days written notice. This Agreement shall immediately and automatically terminate if: Licensee becomes insolvent or ceases to do business; Licensee breaches any intellectual property, Licensor Property or Licensor Confidential Information obligations; or Licensee engages in any illegal or unlawful activity.
c) Upon any termination hereunder: the License Grant shall cease to be exercisable; all access to and use of the Software Product shall be immediately terminated and removed from any of Licensee’s equipment on which the Software Product resides; any and all copies of the Software Product as well as archival copies of the Software Product shall be destroyed with certification; and all Confidential Information and intellectual property (Licensor Property) as defined, herein, shall be promptly returned.
7) Other Provisions
a) Each party is not and shall not be deemed to be an employee, agent, contractor, partner or legal representative of the other for any purpose and shall not have any right, power or authority to create any obligation or responsibility on behalf of the other.
b) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written understandings between the parties concerning the subject matter hereof. No representations, inducements, promises or agreements, whether oral or otherwise, between the parties not contained herein or incorporated herein by reference shall be of any force or effect. Except as set forth herein, no modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, nor any agreement or understanding extending this Agreement or varying its terms (including any inconsistent terms in any purchase order, acknowledgement or similar form) shall be effective unless in writing signed by both parties to this Agreement. The provisions of this Agreement are severable; and if any provision shall be deemed invalid or unenforceable, the applicability or validity of any other provision of this Agreement shall not be affected, and if any such provision shall be deemed invalid or unenforceable in any respect, this Agreement shall be construed as if such invalid or unenforceable provisions are not contained in this Agreement. All notices shall be in writing and addressed to the party to be served at the address recited above.
c) All amendments or modifications of this Agreement shall be binding upon the parties so long as the same shall be in writing and executed by each of the parties hereto.
d) Licensee shall be responsible for the payment of any and all sales, excise, or use taxes, including any interest and penalties thereon, imposed by any governmental authority on the installation, access, or use of the Software Products or on this Agreement.
e) Licensee shall comply with all applicable U.S. Export Control laws and regulations.
f) Licensee shall not, without Licensor’s prior written consent transfer, assign or delegate this Agreement, or any rights or duties hereunder, directly, indirectly, by operation of law, or otherwise. Licensor’s rights and obligations under this Agreement may be transferred, delegated or assigned and notice shall be provided to Licensee, as a courtesy, in the event of such occurrence. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.
g) The following Sections shall survive termination of this Agreement: 3, 4, 5 and 7.
h) Licensee shall promptly notify Licensor of any and all actions at law or equity or claims or governmental administrative proceeding arising out of the operation or performance of this Agreement.
i) Nonperformance of either party shall be excused to the extent that performance is rendered impossible due to industrial conflicts, mobilization, requisition, embargo, currency restriction, insurrection, general shortage of transport, material or power supply, fire, explosion, terrorism, stroke of lightning, force majeure and similar casualties or other events beyond a party’s control, as well as default in deliveries from subcontractors due to such circumstances as defined in this clause. This Agreement shall terminate if the nonperformance continues for a period of ninety (90) days with no possibility of abating or resumption of performance.
j) The prevailing party in any legal action brought by one party against the other and arising out of this Agreement shall be entitled, in addition to any other rights and remedies it may have and subject to the limitation of liabilities herein, to reimbursement for its expenses, including court costs and reasonable attorneys’ fees.
k) Export laws and regulations of the United States, and any other relevant local export laws and regulations, apply to and govern the handling and use of the Software Product and associated documentation (including technical data or information derived or resulting therefrom). Licensee agrees that Licensee shall comply with all such applicable export laws and regulations (including “deemed export” and “deemed re-export” regulations). Licensee agrees that no Software Product and/or associated materials (or the direct or indirect product thereof) will be exported, directly or indirectly, in violation of these laws and regulations, or will be used for any purpose prohibited by these laws
m) In connection with U.S. Government Licensee, the Software Product and any associated documentation qualify as “commercial items” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 CFR) 2.101, consisting of “commercial computer software” “and “commercial computer documentation” as such items are used in FAR 12.212, Consistent with FAR 12.212 and DoD Far Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated. U.S. Licensee will acquire the Software Product and associated documentation with only those rights set forth in this Agreement. Further, U.S. Government download, access and use of the Software Product and associated documentation constitutes the U. S.’ Government’s acknowledgement that the Software Product and associated documentation are “commercial computer software” and “commercial computer software documentation”. As applicable and so marked with respect to the Software Product and associated documentation, the U.S. Government shall acquire the Software Product and related documentation with at least applicable Limited Rights and Restricted Rights as defined under the relevant and applicable FARs and DFARs.
n) Licensor reserves the right, upon reasonable notice and during normal business hours, to conduct an audit of Licensee’s books and records related to the access and use of Software Product to verify compliance with this Agreement.
o) No failure or delay by either party in exercising any right or remedy under this Agreement shall be construed as a waiver of such right or remedy, nor shall any single or partial exercise of any right or remedy preclude any further or other exercise of such right or remedy. All rights and remedies under this Agreement are cumulative and shall not be deemed exclusive of any other rights or remedies provided by law.
p) This Agreement shall be governed by the laws of the State of Texas and of the United States, as applicable, without regard to the applicability of the principles of conflicts of law, and any dispute between the parties shall be adjudicated in the competent courts in the State of Texas. Licensor shall be entitled to seek all available legal and equitable remedies available. The 1980 United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or to any sale or other transaction hereunder.