EACH PARTY REPRESENTS THAT IT HAS FULL AUTHORITY AND POWER TO ENTER INTO AND PERFORM UNDER THIS AGREEMENT, AND THAT THE PERSON SIGNING BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT BY SIGNATURE ON A PARTNER AGREEMENT. EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT.
IF AUTHORITY HAS NOT BEEN GRANTED, OR IF THE TERMS OF THIS AGREEMENT ARE NOT ACCEPTABLE, DO NOT SIGN THE PARTNER AGREEMENT.
1. Agreement Definitions
“Partner Affiliate” refers to any entity, whether incorporated or not, which directly or indirectly, controls, is controlled by or is under common control with the entity first identified as “Partner” and executes an Affiliate Amendment to this Agreement. Control in a Partner Affiliate requires Partner to own more than fifty percent (50%) of (i) voting stock of a Partner Affiliate, or (ii) ownership interest in the Partner Affiliate. Partner agrees to confirm the status of a Partner Affiliate upon request by REMLogics. In the event a Partner Affiliate ceases to comply with this definition, this Agreement shall terminate solely as it relates to the former Partner Affiliate in accordance with the termination provisions in this Agreement.
“Partner” shall be the entity identified as “Partner” in the Partner Agreement and approved Partner Affiliates.
“Partner Configured Applications” refers to any independent or new application developed by Partner using the development tools contained in the Licensed Programs for demonstration purposes, including any non-Licensed Program code with respect to such Partner Configured Applications.
“End User” refers to a third party that is licensed to use the Licensed Programs for its own internal business operations.
“Licensed Programs” refers to the software products owned or distributed by REMLogics which you order or download from REMLogics, along with Program Documentation and any program updates acquired through technical support.
“Program Documentation” refers to the user manual and program installation manuals for the Licensed Programs.
“Software” refers to Licensed Programs and Partner Configured Application.
2. License Grant
During the term of the Partner Agreement, for a fee, and Term, described in the relevant Exhibit to the Partner Agreement, REMLogics grants to Partner, and Partner accepts, subject to the terms and conditions set forth herein, a limited, non-transferable, non-exclusive, royalty-free right to use Licensed Programs and any related Program Documentation to demonstrate the features and functions of the Licensed Programs to prospective clients and to provide training on the Licensed Programs to Partner’s employees or End Users.
Additionally, REMLogics grants Partner, and Partner accepts, the right to create Partner Configured Applications for demonstration purposes. REMLogics shall own all Licensed Programs used in creating Partner Applications. REMLogics acquires no right, title, or interest from Partner under this Agreement in or to Partner Configured Applications, including any Partner intellectual property rights therein. Partner specifically acknowledges that REMLogics may develop and publish applications that are similar to or otherwise compete with Partner Configured Applications.
The Licensed Programs are to be used by Partner only for the purposes set forth in the Partner Agreement including Partner’s evaluation, demonstration, and internal training purposes and for negotiations, discussions, and consultations with personnel, prospective clients, End Users, or authorized representatives of REMLogics. The Licensed Programs may not be used for Partner’s internal business operations or for any commercial timesharing, service bureau, other rental or sharing arrangements.
The Licensed Programs may be used only in the country in which they are first installed and may only be moved to another country with REMLogics’ prior written permission. The Licensed Programs shall be installed and used on the system and at the facility location designated on the Appendices to this Agreement. Partner may make one
1. copy of the Licensed Programs’ related documentation for backup purposes only. Any such copies shall include REMLogics’ copyright and other proprietary notices and legends. Except as expressly provided herein, no copies of the Licensed Programs or related documentation may be made by Partner or on behalf of Partner.
3. License Restrictions
Partner shall not, or cause anyone else to:
1. Use the Licensed Programs for Partner’s internal business operations or for any commercial timesharing, service bureau, other rental or sharing arrangement.
2. Reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code of any part of the Licensed Programs.
3. Copy the Program Documentation or Licensed Programs except for Partner’s archival needs. All such copies shall be subject to this Agreement and must contain all proprietary legends that appeared on or in the original; or
4. Remove or deface any proprietary legends on or in the Licensed Programs.
The Licensed Programs contain license protection procedures that limit access to the Licensed Programs to that use which is permitted under this Agreement (“Software Protection Procedures”). Partner shall not circumvent or render inoperative the Software Protection Procedures.
4. Disclaimer of Warranty
The Licensed Programs and related documentation are provided by REMLogics on an “as-is” basis for training and demonstration purposes as provided herein and without any warranty whatsoever, including without limitation, as to quality, performance, or other characteristics of the Licensed Programs.
This Software License Agreement is a license and is not a sale of goods. All warranties, either express or implied, including but not limited to any implied warranty of merchantability or fitness for a particular purpose, are hereby disclaimed.
5. Proprietary Rights
The Software and related Program Documentation are trade secret, confidential and proprietary products of REMLogics protected under U.S. patent and U.S. and international copyright laws and treaties. All right, title and interest in and to the Licensed Programs, including all intellectual property rights, are and shall remain with REMLogics. This Software License Agreement does not convey to Partner an interest in or to the Licensed Programs, but only a limited right of use reasonable in accordance with the terms of this Software License Agreement.
The Licensed Programs contain disabling procedures. If any unauthorized use of the Licensed Programs occurs, such disabling procedures would limit access to the Licensed Programs. The function of the disabling procedures is documented in REMLogics’ published product specifications.
6. Indemnification
If a third party makes a claim against you that any program infringes its intellectual property rights based on your authorized use of the Licensed Programs in accordance with the terms of this Agreement, REMLogics will indemnify you against the claim if you do the following:
1. Notify REMLogics Legal promptly in writing, not later than thirty (30) days after you receive notice of the claim (or sooner if required by applicable law);
2. Give REMLogics sole control of the defense and any settlement negotiations; and
3. Give REMLogics the information, authority, and reasonable assistance REMLogics needs to defend against or settle the claim.
If REMLogics believes or it is determined that any of the Licensed Programs may have violated someone else’s intellectual property rights based on your authorized use of the Licensed Programs in accordance with the terms of this Agreement, REMLogics may choose to either modify the Licensed Program to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, REMLogics may end the license for the applicable Licensed Program and refund any unused, prepaid technical support fees you have paid to REMLogics. REMLogics will not indemnify you if you alter a Licensed Program or use it outside the scope of use identified in the Program Documentation or if you use a version of the Licensed Program which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Licensed Program which was provided to you. REMLogics will not indemnify you to the extent that an infringement claim is based upon products or services not provided by REMLogics. REMLogics will not indemnify you to the extent that an infringement claim is based upon the combination of any Licensed Program with any products or services not provided by REMLogics. REMLogics will not indemnify you for infringement caused by your actions against any third party if the Licensed Programs as delivered to you and used by you in accordance with the terms of this Agreement would not otherwise infringe any third-party intellectual property rights. REMLogics will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of this Agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of this Agreement. If a third party makes a claim against REMLogics that any information, design, specification, instruction, software, data, or material (“material”) furnished by you to REMLogics under this Agreement infringes their intellectual property right, you will indemnify REMLogics. This section provides your exclusive remedy for any infringement claims or damages.
Partner shall indemnify, defend, and hold REMLogics harmless against any loss, liability, cost, or expense related to any third-party claim alleging intellectual property infringement or misappropriation related to Partner Configured Applications. Partner’s indemnification obligation is conditioned on REMLogics promptly notifying Partner of any claim, demand or action for which indemnity is sought, granting Partner sole authority to defend or settle the claim, and cooperating fully, at Partner’s expense, in the defense or settlement of any such claim.
7. Term and Termination
This Software License Agreement is effective upon Partner’s installation of the Licensed Programs and shall continue in full force and effect until terminated as provided herein.
This Software License Agreement shall automatically terminate upon the termination of the Partner Agreement. In the event that either party commits a material breach of this Software License Agreement and (if such breach is capable of cure) fails to cure such breach within thirty (30) days following notice thereof from the other party, the non-breaching party shall have the right (in addition to all other rights and remedies at law or in equity) to terminate this Software License Agreement, including the Partner Agreement, without further notice.
Upon termination of the Software License Agreement, all licenses granted hereunder shall be immediately revoked. Partner shall immediately remove the Licensed Programs from its system libraries and return the Licensed Programs and Program Documentation to REMLogics including all copies thereof, or alternatively destroy such items, and certify in writing to REMLogics that it has complied with the foregoing.
Confidentiality obligations shall survive termination or expiration of this Software License Agreement.
8. Governing Law and Dispute Resolution
All disputes arising out of or related to this Software License Agreement shall be determined under the law of the State of Delaware and the United States of America without regard to its conflict of laws provisions. Partner hereby submits to the exclusive jurisdiction of the state or federal courts within the State of Delaware and any legal actions shall be initiated therein.
Before initiating any legal claim or action (except with respect to equitable relief), the parties agree to attempt in good faith to settle any dispute, controversy or claim arising out of or related to this Software License Agreement (collectively, a “Claim”) through discussions which shall be initiated upon written notice of a Claim by either party to the other party. If the parties cannot come to a mutually agreeable resolution of the Claim within five (5) business days, then such Claim shall be referred to members of the parties’ executive management (each such member a “Representative”) for resolution, which shall be evidenced by a written notice from either party to the other (the “”). The parties’ representatives shall meet within five (5) business days of such. If the parties have not reached a mutually agreeable resolution of the Claim within ten (10) business days after their initial meeting, then either party may pursue its rights and remedies available at law or in equity. No action, whatever the form, may be brought upon this Software License Agreement if one (1) year or more has passed since the claimant became aware or should have become aware of the cause thereof.
9. Export Law
The Licensed Programs are subject to restrictions and controls imposed under the regulations of the United States Department of Commerce, and/or the United States Department of State. Partner shall not, nor shall Partner authorize or permit its employees, agents, or subcontractors to export or re-export the Licensed Programs or related Program Documentation to any country specified by the U.S. Government as a prohibited destination in applicable federal, state, and local laws, regulations, and ordinances. Partner shall indemnify REMLogics for any losses, costs, liability, and charges including reasonable legal fees, costs, liability, and charges including reasonable legal fees, incurred by REMLogics because of Partner’s breach of this provision.
You agree to indemnify REMLogics for any claims arising from your violation of confidentiality obligations.
10. Limited Liability
To the maximum extent permitted by applicable law, in no event shall REMLogics be liable for any indirect, incidental, consequential, special, or exemplary damages lost profits, even if REMLogics has been advised of the possibility of such damages.
11. General
The waiver of one breach hereunder shall not constitute the waiver of any or subsequent breach.
No amendments, modifications or supplements to this Software License Agreement shall be binding unless in writing and signed by both parties.
If any provision of this Software License Agreement is held to be unenforceable, such decision shall not affect the validity or enforceability of the remaining provisions.
In the event Partner issues, a purchase order or other instrument covering the subject matter of this Software License Agreement, it is understood and agreed that such purchase order is for Partner’s internal use and shall not affect this Software License Agreement.
Partner shall not, in whole or in part, assign, sublicense, or otherwise transfer this Software License Agreement, the Licensed Programs, Program Documentation, any copy of the foregoing, or any right granted hereunder.