Hosted Software License Agreement
THIS DOCUMENT IS A LEGAL AGREEMENT BETWEEN LICENSEE AND LICENSOR. BY CLICKING ON “I AGREE” BELOW AND INSTALLING THE HOSTED SOFTWARE, YOU, ON BEHALF OF LICENSEE, AGREE AND ARE SUBJECT TO THE LICENSE TERMS SET FORTH BELOW. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ORGANIZATION THAT IS TO BE THE LICENSEE HEREUNDER. IF LICENSEE DOES NOT AGREE WITH ANY OF THIS AGREEMENT, DO NOT INSTALL THIS HOSTED SOFTWARE, AND DELETE HOSTED SOFTWARE FROM ALL OF LICENSEE’S COMPUTER EQUIPMENT. YOU UNDERSTAND AND ACKNOWLEDGE THAT, ONCE YOU CLICK ON “I AGREE” BELOW, ANY FEES PAID TO LICENSOR FOR THE HOSTED SOFTWARE ARE NON-REFUNDABLE AND NON-RETURNABLE.
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS
Article 1 Parties
This Hosted Software License Agreement (“Agreement”) is entered into by and between Anterra Technology, LLC, Inc., a Texas Limited Liability Corporation with an address at 4501 Cartwright Road Suite 204, Missouri City, Texas 77459, USA, ("Licensor") and the single end-user Licensee entity entering into this Agreement ("Licensee").
Article 2 Scope of Agreement
Section 2.1 Grant of
License
Subject to the terms of this Agreement, Licensor grants to Licensee a non-transferable, non-exclusive, non-sublicenseable limited term license, to access, use and display the Hosted Software as defined in Licensor Invoice for an initial term of one year (the “Initial Term”) from the date the Hosted Software is first made available for Licensee business usage, and to permit Licensee designated Named Users to access such Hosted Software for internal business purposes in accordance with the Documentation. Documentation is defined as the standard reference guides and release notes accompanying the Hosted Software that describes its operation. Licensor shall provide the support services defined in 2.4 (“Support”) and the enhancements as defined in Section 2.5 (“Enhancement”). All rights not expressly granted to Licensee hereunder are reserved by Licensor.
Section 2.2 Fees
Licensee shall pay Licensor the Hosted Software, the Support and Enhancements the initial fees (the “Initial Fees”) and annual fees (the “Annual Fees”) and as defined in the Anterra Invoice. The Initial Fees do not include implementation services, training, customization, or consulting.
Section 2.3 Named
Users
The term "Named Users" means any individual Licensee so designated by providing the username and password to access the Hosted Software. Licensee’s license to use the Hosted Software is limited to the number of Named Users defined in the Anterra Invoice. Licensee may not permit anyone other than a Named User to access, operate, or otherwise use the Hosted Software and shall prohibit multiple usage of single Named User username and password access. Licensee shall ensure that all Named Users comply with the Agreement and Licensee shall be liable for any Named Users violation of Agreement terms. Licensee shall be responsible for any damages caused by Licensee’s Named Users.
Section 2.4 Support
During the term of this Agreement, Licensor shall provide support for the Hosted Software and approved data integrations consistent with the then-current Anterra Technology Support Policy. Licensor shall not be responsible for problems caused by the following “Unsupported Causes”: (a) Use of a superseded or altered release of the Hosted Software if the problem would have been voided by the use of a current unaltered release of the Hosted Software that Licensor provided or made available to Licensee; (b) Use of Hosted Software which has been modified or enhanced by a party other than Licensor; (c) Use of the Hosted Software (i) Other than in accordance with the terms and conditions set forth in this Agreement (ii) Other than under customary use as set forth in the Documentation, (iii) Use of non-approved third-party interface application code or custom application code not developed by Anterra or third party software that provides data to the hosted software if such problem would not have occurred without use of such software. (d) Any failure of Licensee to use the Hosted Software in conjunction with the hardware, operating systems, browser, and any other third party software recommended in the Documentation or to maintain said items updated and in good working order.
Section 2.5 Enhancements
Licensor may enhance the Hosted Software from time to time. Licensor shall have the right in its sole discretion to substitute, replace, modify or upgrade the Hosted Software or any part or aspect of it as Licensor deems advisable. All enhancements, replacements, modifications and upgrades shall be incorporated in and subject to this Agreement and shall be the exclusive property of Licensor hereunder.
Section 2.6 Additional
Services
The form of this Agreement does not include any implementation assistance, training, consulting, or similar services (“Additional Services”). Additional Services and the related fees shall be quoted and invoiced separately.
Section 2.7 Third
Party Software
Licensor may provide Licensee with, or direct Licensee to, certain third party products for use in conjunction with the Software. The Hosted Software includes software developed by third parties including but not limited to the Microsoft Corporation. Licensee agrees to abide by the terms of use agreement for the benefit of such third party software providers.
Article 3 Software
License Restrictions
Section 3.1 Restricted
Use
Licensee may not sublicense, rent,
lease, resell, or otherwise distribute the Hosted Software or its Documentation
or make available the Hosted Software or Documentation on a time-sharing,
service bureau, or other on-line service basis for the benefit of any third party,
regardless of fee or other benefit receipt.
Section 3.2 Required Equipment
Licensee is
responsible for obtaining and operating all equipment and services necessary to
access and operate the Hosted Software at Licensee’s sole expense.
Section 3.3 Export Restrictions
Licensee agrees that it
will not, directly or indirectly, export or re-export, or knowingly permit the
export or re-export of, the Software, or any technical information about the
Software or Documentation, to any country for which the United States Export
Administration Act, any regulation thereunder, or any similar United States law
or regulation, requires an export license or other United States government
approval, unless the appropriate export license or approval has been obtained.
Section 3.4 Restrictions on Copying
Licensee agrees to make no
copies of any Software or its Documentation (or any portion or components
thereof) for any purpose whatsoever, except for copies authorized by this
Agreement. Licensee shall include on all
copies of any Hosted Software or its Documentation all copyright and other
proprietary notices or legends included on any copies of the Hosted Software or
its Documentation delivered to Licensee.
Licensee may not (and may not allow any one else to) reverse assemble,
decompile, reverse engineer, modify, adapt, translate, tamper with, attempt to
derive source code of, or create derivative works of the Software or its
Documentation. The Software is subject
to Licensor’ license protection methods.
Licensee
may not tamper with, bypass, or alter the security or license protection
features of the Software.
Section 3.5 Intellectual Property Ownership
Licensor retains all worldwide right, title, and interest in and to the Software and its Documentation. To the extent that Licensee has or obtains any right, title, or interest in or to any of the Software or Documentation, Licensee hereby irrevocably assigns such right, title, or interest to Licensor. If Licensee or anyone under Licensee’s control or direction creates any modifications or derivative works of the Software or its Documentation, Licensee agrees to ensure that all modifications and derivative works shall remain the exclusive property of Licensor. All modifications and derivative works are subject to all the terms and conditions of this Agreement. Licensor shall not provide any warranty of or support for any Software that has been modified other than by the Licensor, and Licensor has no obligation to correct errors in any Software caused by modifications made other than the Licensor. All rights in the Software and its Documentation not expressly granted by Licensor to Licensee in this Agreement are reserved to Licensor.
Section 3.6 Audit
Without
limitation of the foregoing, Licensee agrees that, upon the request of Licensor,
it shall afford Licensor reasonable access to its premises, records, and
systems to enable Licensor to audit Licensee’s compliance with the provisions
of this Agreement relating to use and confidentiality.
Article 4 Term
Section 4.1 Initial
and Renewal Terms
The Initial Term of this Agreement is defined in Section 2.1. This Agreement shall automatically renew for
successive one year terms (each, a “Renewal Term”),
upon expiry of the Initial Term or any Renewal Term, unless Licensee or Licensor
provides written termination notice at least sixty days prior to the then
current term expiry. Licensor shall
provide Hosted Software for the Renewal Term at Licensor’s then current Annual
Fee.
Section 4.2 Termination
The license to use and operate
the Software will terminate with 15 days notice by email or letter on the
occurrence of any of the following:
(A) Licensee
fails to pay any fees payable to Licensor by Licensee hereunder; or
(B) Licensee
attempts to transfer this Agreement (or any rights or licenses under this
Agreement) to any third party, whether by way of assignment, merger, consolidation,
amalgamation, or otherwise, without the prior written approval of Licensor; or
(C) Licensee
fails to comply with the material terms of this Agreement; or
(D) Licensee is the subject of any proceeding
relating to insolvency, bankruptcy, receivership, liquidation, or composition
for the benefit of creditors and fails to make payments of fees as required.
Upon termination of this Agreement, Licensee’s license to the Hosted Software
immediately terminates and Licensee shall immediately discontinue using the
Hosted Software. For a period of fifteen
(15) days following termination, Licensor shall provide Licensee access to
download Licensee stored data.
Within five
business days after such termination, Licensee shall return to Licensor or
irretrievably destroy the original and all Software copies (partial or
complete, modified or otherwise) and shall certify same in writing. Further, Licensee shall not
be entitled to a refund of any Fee or a credit against or relief from any sum
owed by Licensee to Licensor as of the Agreement termination date. Upon
termination, any and all surviving obligations of the parties hereunder shall
continue in full force and effect, including, but not limited to, the
provisions of Section 3.5, Article 5, Article 6, Article 9 and Article 12.
Article 5 Payments
Initial Fees are due and payable on the Effective Date. Licensee shall pay then-current Annual Fees annually in advance. Licensee shall pay all
fees charged under this Agreement within thirty (30) days of the invoice date. All fees are payable in US
Dollars. If Licensee
fails to pay any amount due hereunder, Licensee shall pay a late fee of 1.5%
per month, compounded monthly, or the maximum allowed by law, until the date full
payment is made. Further, in the event
that Licensee fails to pay any sum when due Licensor may (a) discontinue
the provision of the Software, support, Enhancements, and Additional Services
to the Licensee, and (b) require, as a condition to the continued provision of
the Software, support, Enhancements, and Additional Services, that Licensee
deposit or otherwise prepay for future projected fees. Licensee shall pay Licensor for all costs including
reasonable attorneys’ fees required for collection of amounts due Licensor.
Article 6 Confidentiality
The terms and conditions of this Agreement and certain information contained in the Software are confidential, trade secret, or proprietary in nature. This includes, but is not limited to, the Software’s Source Code, the detailed workings of each major function of the Software, the compilation of the major functions of the Software, the Software’s technical design, the Software’s look and feel, the Software’s internal data formats and database, and the Software’s calculation routines (collectively, the “Confidential Information”). Licensee agrees to keep the Confidential Information strictly secret and confidential , except as permitted in this Agreement. Licensee agrees not to use or permit use of Confidential Information for any purpose other than as licensed by this Agreement. In any case, Licensee may not use or permit use of any Confidential Information for the purpose of competing with Licensor. Licensee may disclose the Confidential Information if necessary, in the reasonable and written opinion of Licensee’s attorney, to comply with any law applicable to Licensee after giving prompt notice to Licensor and cooperating with Licensor’s efforts to avoid the requirement to disclose the Confidential Information. Licensee agrees to safeguard the Software with a degree of care commensurate with reasonable standards of industrial security for protection of this information or with the standards the Licensee uses to protect its own most confidential information, if greater. Licensor shall make all reasonable efforts to keep Licensee data confidential. Licensee acknowledges that in order to provide benchmarking products, Licensor may use Licensee data aggregated to remove Licensee identifiable information Infringement Indemnification.
Article 7 Infringement Indemnification
Licensor agrees to indemnify,
defend and hold Licensee harmless from any third party claim that arises out of
Licensee’s use of the licensed Software and that alleges that such Software or
Documentation infringes a third party’s proprietary rights in the United
States, and Licensor agrees to pay all costs, expenses and damages incurred by Licensee
in connection with any such action, provided that (a) Licensee promptly
notifies Licensor in writing no later than thirty (30) days after Licensee's
notice of any potential claim, (b) Licensee permits Licensor to defend,
compromise or settle the claim, and (c) Licensee gives Licensor all available
information, reasonable assistance, and authority to enable Licensor to do so.
If the licensed Software or
any portion of the licensed Software becomes, or in Licensor’s opinion is
likely to become subject to any claim of infringement, Licensor will either (a)
procure for Licensee the right to continue exercising its rights under this
Agreement with respect to the Software; or (b) replace or modify the Software
to make it non-infringing, or if, neither (a) nor (b) are, in Licensor’s sole
discretion, commercially feasible, terminate the license to the Software
granted herein and refund to Licensee a pro-rated portion of the
applicable license fee paid for the Software based on a linear depreciation
monthly over a three (3) year useful life.
Notwithstanding the
foregoing, Licensor will have no liability for any claim of infringement based
upon, and Licensee will indemnify and hold Licensor harmless from any costs
including, but not limited to, court costs and reasonable attorneys’ fees,
expenses and damages against any infringement claim for Licensee’s (a) 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 that
Licensor provided or made available to Licensee; (b) use of Software which has
been modified by a party other than Licensor; (c) use of the Software (i) other
than in accordance with the terms and conditions set forth in this Agreement;
(ii) other than under customary use as set forth in the Documentation, or (iii)
in combination with other software or equipment not provided by Licensor if
such infringement would not have occurred without such use or combination; or
(d) continuing the allegedly infringing activity after notice. The
foregoing provisions of this Article are the exclusive remedy of Licensee
against Licensor with respect to claims of infringement of intellectual
property rights arising from Licensee’s use of any Software or otherwise
related to this Agreement.
Article 8 Limited Warranties
Section 8.1 Solution Warranty
Licensor does not
warrant that the Software will be error-free in all circumstances. Licensor warrants to Licensee that, on the date
of Licensee’s initial use of the Software and for a period ending ninety (90)
days following that date (the “warranty period”), the licensed Software will
perform substantially in accordance with the Documentation. In the event of any defect or error covered
by such warranty, Licensee will provide Licensor with sufficient detail to
allow Licensor to reproduce the defect or error. If notified in writing by Licensee during the
warranty period, Licensor will, at its sole option, either (a) correct such
error or defect in the Software, at no cost to Licensee and within a reasonable
time, by issuing corrected instructions, a restriction, or a bypass, or (b)
accept return of the Software and Documentation and refund any license fees
previously paid by Licensee in connection with such Software. Licensor is not responsible for any defect or
error not reported during the warranty period or any defect or error caused by
a program Licensee has modified, misused or damaged.
Section 8.2 Additional
Services Warranty
Licensor warrants that any Additional Services
that Licensor performs for Licensee shall be performed in a workmanlike
manner. Licensee may not claim a breach
of this warranty for any particular Additional Services more than 90 days after
those Additional Services are performed.
Section 8.3 No Other
Warranties
Other than the
warranty provided in 8.1 and 8.2 and the client engagement letter the LICENSOR makes
no other warranties. LICENSOR expressly
disclaims all other warranties of any kind, express or implied, including (but
not limited to) any warranty of merchantability, fitness for a particular
purpose, title, or non-infringement with respect to the software and services
provided under this Agreement As between
the parties, Licensee is solely responsible for determining the suitability of
the Software for Licensee’s own business requirements and that, given the
inherent risks associated with electronic based systems and remote computer
access and other communication media, Licensor does not represent or warrant
(a) that the Software shall be provided without interruption or error-free, (b)
that any particular error in the Software can and shall be corrected, or (c)
that Licensee’s remote access to the Hosted Software shall be free of system
interruptions, computer viruses and other harmful components, which may cause
interruptions, damages, or loss of data to Licensee and its computer systems.
Article 9 Limitation
of Liability
Notwithstanding any
provision in this Agreement to the contrary, Licensor will not be responsible
for or will not bear any liability for any damages arising from any use of the
Software, or any stoppages, slowdowns, performance problems or other problems
that are the result of the electronic access or the Licensee’s
telecommunications or access providers. IN
NO EVENT LICENSOR BE LIABLE OR OBLIGATED UNDER THIS AGREEMENT OR UNDER
CONTRACT, NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY (A) FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE OF THE FEES
PAID TO LICENSOR WITHIN THE PREVIOUS TWELVE (12) MONTH PERIOD OR (B) FOR ANY
SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR IN
CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE SOFTWARE, EVEN IF
LICENSOR HAS BEEN ADVISED, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH
DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST BUSINESS REVENUES,
FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSS OF
ANY KIND. THIS SECTION 9 DOES NOT LIMIT
LIABILITY UNDER SECTION 7. Licensee MAY NOT BRING ANY CLAIM OR ACTION, REGARDLESS
OF THE FORM THEREOF, ARISING FROM OR RELATING TO THE HOSTED SOFTWARE OR THIS
AGREEMENT, MORE THAN ONE (1) YEAR AFTER THE DATE OF THE EVENT FROM WHICH THE
CLAIM OR ACTION ARISES OR ACCRUES.
Article 10 Force Majeure
Despite anything to the contrary contained in this Agreement, neither
party shall be liable for any failure or delay in performance caused by factors
beyond its reasonable control, including, but not limited to, strikes,
insurrection, war, terrorism, hackers, computer viruses, fire, power
interruptions, flood, earthquake, other natural disaster, acts of God,
governmental acts or regulation, or acts or omissions of third parties.
Article 11 Third Party Products
Anterra
may provide third party products to you including, but not limited to, Open
Source Software (collectively, “Third Party Products”). Notwithstanding any
language to the contrary in this Agreement, all such Third Party Products are
provided to you "AS IS" and without any warranty of any
kind. Third Party Products provided by Anterra are specified in the
Documentation and are licensed to you under the terms of the license agreements
referenced in the Documentation and not under the terms of this Agreement. For
purposes of this Agreement, “Open Source Software” means any software,
programming, or other intellectual property that is subject to: (i) the GNU
General Public License, GNU Lesser General Public License or any similar
license, including, but not limited to, those licenses listed at
www.opensource.org or (ii) any agreement with terms requiring any intellectual
property owned or licensed by Anterra to be: (a) disclosed or distributed in
source code or object code form; (b) licensed for the purpose of making
derivative works; or (c) redistributable.
Article 12 Assignment
Licensee may not
sell, assign or transfer any of its rights, duties or obligations under this
Agreement without the prior written consent of Licensor. Licensor may assign or transfer this
Agreement or any of its rights, duties or obligations hereunder.
Article 13 Governing
Law
Any dispute under this Agreement shall be resolved under the
substantive laws of the State of Texas in a court of competent jurisdiction in
Harris County, Texas. In the event that any aspect of this Section 13 is held by any court to
be invalid including with respect to disputes involving Licensee located
outside of the U.S.A., any such dispute shall be resolved at proceedings
held in London, England, and conducted in English. No effect shall be given to the conflict of
laws principles of Texas or to the United Nations Convention on Contracts for
the International Sale of Goods.
Article 14 Notice
All notices or other communications required or
permitted to be given or delivered under this Agreement shall be in writing and
shall be sufficiently given to a party if delivered personally or mailed by
registered or certified mail, postage prepaid, return receipt requested, or by
overnight delivery by a nationally-recognized courier, to such other address or
person as either party may from time to time designate to the other in
writing. Any such notice or other
communication shall be deemed to be given as of the date it is personally
delivered, five (5) days after its being deposited in the United States mail,
or one (1) day after being deposited with a nationally-recognized courier for
overnight delivery.
Article 15 Severability
If any provision of this Agreement is held to be invalid, illegal or
unenforceable, this Agreement shall exclude that provision and otherwise remain
in full force and effect.
Article 16 Interpretation
Article and Section
headings contained herein are for convenience only and shall not be considered
in the interpretation of this Agreement.
No
usage of trade or other regular practice or method of dealing between the
parties hereto shall be used to modify, interpret, supplement, or alter in any
manner the terms of this Agreement. No statement in
this Agreement or any other document issued by a party is intended to be a
warranty unless it expressly states it is a warranty. This Agreement shall be interpreted as written and
negotiated jointly by the parties; it shall not be strictly construed against
either party, regardless of the actual drafter of the Agreement. All of the representations, warranties,
covenants and agreements of each of the parties contained in this Agreement
shall survive the execution, delivery, and performance of this Agreement.
Article 17 General Provisions
This Agreement along with
Quotation and Letter of Engagement sets forth the entire agreement and
understanding between the parties with respect to the subject matter of this
Agreement. This Agreement merges all
previous discussions and negotiations between the parties and supersedes and
replaces any and every other agreement, which may have existed between Licensor
and Licensee with respect to the contents of this Agreement.
Except to the extent
and in the manner specified in this Agreement, any modification or amendment of
any provision of this Agreement must be in writing and bear the signature of
the duly authorized representative of each party.
The failure of either party to exercise any right granted under this
Agreement, or to require the performance by the other party of any provision of
this Agreement, or the waiver by either party of any breach of this Agreement,
will not prevent a subsequent exercise or enforcement of such provisions or be
deemed a waiver of any subsequent breach of the same or any other provision of
this Agreement.
The parties have required that this Agreement and all
documents related thereto be drawn up in English; les parties ont demande que
cette convention ainsi que tous les documents que s'y attachent soient rediges
en anglais.