Contract No. ________________________________
The Semarca Corporation
ASSOCIATION MANAGEMENT SOFTWARE
SOFTWARE END-USER LICENSE AGREEMENT
The Semarca Corporation ("Supplier")
hereby grants to:
__________________________________________________ ("Customer") and Customer accepts, a non-exclusive license to use the following Software:
[SEE SCHEDULE A FOR LISTING OF MODULES & USER LICENSES]
This Agreement, and the license granted thereby, are subject to and limited by the attached Terms and Conditions, which, together with the attached Schedules ___________ are an integral part of this Agreement.
The Software may be installed on a single server only.
The Software is licensed for use on __________________
Operating under ___________________________________
The Location of the computer system(s), which can be changed by mutual agreement, is _____________________________________________
Both parties certify that they have read this Agreement including the attached Terms and Conditions and schedules and are satisfied with the text.
Agreed to by Agreed to by
The Semarca Corporation Customer: ____________
Authorized signatory Authorized signatory
Date: ___________________ Date: __________________
SOFTWARE END-USER LICENSE AGREEMENT
TERMS & CONDITIONS
In the Agreement, the following definitions shall apply:
"Acceptance" shall be defined by the acceptance procedures set forth in the “Acceptance” section of this Agreement.
"Software" shall mean the software programs, as modified from time to time, in machine readable form and the Documentation supplied for use with such programs, licensed by Supplier to Customer under this Agreement [as further specified in Schedule A.]
"Documentation" shall mean the Software user manual(s) together with such other literature as shall be specified by Supplier.
"Use" shall mean the loading, copying or electronic transmission of the Software into the computer or any computer processing using the Software or any use of the Documentation supplied with the Software.
"Productive Use" shall mean any Use of the Software in the business or operations of the Customer.
"Owner" shall mean any of the owners of the Licensed Software, including any of Supplier's suppliers or licensors.
2. Scope of Use
2.1 This Agreement permits Customer to use the Software on a non-exclusive, non-transferable basis on the specified computer only and for its own internal use only. No service bureau use is permitted.
2.2 The Software and Documentation shall not be disclosed, sold, transmitted, charged or otherwise made available by Customer to any third party without the express written prior permission of Supplier.
2.3 Use of the Software shall be confined to the Location and Operating Environment specified on the face of this Agreement and in the Documentation. Customer may use the Software on a back-up processor as may be strictly necessary during breakdowns on its normal processor.
2.4 Customer's auditors shall be permitted access to the Software and Documentation under conditions of confidentiality solely in the course of their audit work.
3. Restrictions on Use of the Software
3.1 Uses of the Software not expressly permitted herein are forbidden.
3.2 Customer shall use the Software solely with its own business information.
3.3 Customer shall not decompile, disassemble, or reverse engineer any part of the Software.
3.4 Customer shall not copy Documentation supplied in printed form by Supplier. Additional copies of the Software and/or Documentation may be obtained separately from Supplier on payment of the then applicable fees.
4. On-Site Facilities
4.1 Customer shall provide such facilities and assistance as Supplier shall reasonably require to carry out its obligations under this Agreement. Assistance shall include (but not be limited to) access to equipment and data and the provision of adequate facilities at site(s) where Supplier's personnel deliver Software or provide services.
4.2 Access by either party, their employees, auditors, or agents to any premises equipment or data of the other shall be subject to the other's normal security and safety regulations.
5. Delivery and Installation
5.1 Delivery of an item of Software is made when a copy is supplied to Customer's place of business. Supplier shall not be liable for any damages or penalty for any delay. Customer will acknowledge delivery in writing upon request.
5.2 Each party shall use all reasonable efforts to effect the timely installation of the Software on the relevant hardware platform following delivery. Software will be accompanied by a list of programs contained in the delivery. Upon delivery, software delivered shall be installed onto an appropriate hardware platform. Immediately following such installation, a printout list of the programs installed shall be compared with the list of programs accompanying the delivery. If the two lists match, installation shall be deemed complete. Customer shall provide written notice of omission of programs or inaccuracy of listing, and correction will then be made.
5.3 Customer shall insure availability at the time of the delivery and installation of a properly configured hardware and software platform as specified in this Agreement.
5.4 Without prejudice to Supplier’s other rights and remedies, Supplier may postpone or cancel any delivery, until all money due from Customer has been paid.
6. Acceptance of Software
6.1 Except as otherwise provided in this Agreement, Acceptance of the Software shall occur on the Customer's signing of an Acceptance Certificate, as provided for below, or, upon the passage of 30 days after installation, whichever is earlier.
6.2 Acceptance testing shall be conducted by the parties for the purpose of determining that the Software conforms substantially to the Documentation. Productive use of the Software is not permitted before Acceptance, however, the Customer's use of its actual business data, for the purposes of acceptance testing only, shall not constitute improper pre-Acceptance use of the Software. On satisfactory conclusion of such testing, an authorized employee or officer of Customer shall sign and deliver to Supplier the following Acceptance Certificate, with a listing of the files supplied by Supplier attached:
"As its duly authorized representative, I hereby certify that [Name of Company] has thoroughly tested Supplier software listed herein and determined that such software has performed satisfactorily and in accordance with the Documentation. Accordingly, [Name of Company] accepts the software pursuant to the Software End-User License Agreement."
6.3 Customer shall promptly notify Supplier in writing if during the 30-day testing period following installation, Customer finds that the Software does not operate substantially in accordance with the Documentation. Customer shall identify the non-conformity in writing in sufficient detail that it may be reproduced. Customer shall provide written notice to Supplier no later than seven days from the date on which such non-conformity becomes known. No such report shall cause acceptance testing to be postponed unless the parties mutually agree in writing.
6.4 Supplier shall be afforded the opportunity to correct any such material non-conformity, whether by fixing or amending the relevant software, providing an alternative means of accomplishing the same or equivalent functionality, or by correction of an error in the Documentation. Correction shall be deemed to have occurred within ten days of the delivery of software or documentation in response to the Customer's notice of non-conformity, unless Customer provides notice in writing that such material non-conformity has not been corrected no later than seven days from the date when it learns that the non-conformity has not been remedied.
6.5 If a material non-conformity is found and reported in the Software during such 30 day period (and not has been corrected by the end of that 30-day period), the period for Acceptance shall be extended a further 30 days. If at the end of such period, the substantial non-conformity remains, the parties shall confer and agree upon a mutually acceptable period and procedure for the parties to complete the Acceptance process.
6.6 Productive Use of the Software shall conclusively constitute an Acceptance of the Software.
Customer agrees to pay the initial license fee to Supplier as follows:
7.1 Twenty percent (20%) of the initial license fee shall be paid on signing of this agreement, seventy percent (70%) shall be paid on installation, and the balance of ten percent (10%) shall be paid on Acceptance. Supplier may issue invoices or payment requests in advance of any due date.
7.2 Fees stated in this Agreement are stated and payable net. All withholding and other taxes, levies, customs duties, costs and charges (including inter alia, any bank charges) shall be the responsibility of Customer so that, to the extent permissible, fees stated as payable to Supplier will be received in full by Supplier on the due date. Sales and use tax and Value Added Tax, where chargeable, shall be added at the then applicable rate to the Initial License Fee and paid by Customer
8.1 Customer acknowledges that the Software, Documentation and associated information provided by Supplier (whether of a commercial or technical nature) constitute valuable and confidential property of Supplier and of the Owners.
8.2 Customer shall assure that employees and any others having permitted access to the Software to be bound by written undertakings not to disclose or use the confidential property of Supplier or any Owner except as expressly permitted in this Agreement
8.3 Each party agrees to protect all non-public information received from the other party in the course of this Agreement with the same confidentiality protections as are used or should be used for its own confidential information, and in any case by reasonable measures.
8.4 Confidentiality shall not apply to information in the public domain or information properly derived, developed or supplied independently. Each party may make such disclosure(s) as are required by law to the authorities by whom such disclosure may be required.
8.5 No employment shall be offered by either party to any employee of the other during the term of this Agreement or within twelve months of its termination, except with the consent of the other in writing (which consent shall not be unreasonably withheld).
9. Security Measures
9.1 Customer shall be responsible for the secure storage of all copies of the Software and Documentation and all other materials delivered or created on site by Supplier whether in written form, on magnetic media or otherwise.
9.2 Customer agrees to make and maintain back-up copies of the Software. Other copying is forbidden. While the terms of this Agreement apply to all copies, Customer's license for Use applies to the original installed copy only, except that Customer may use the Software on a back-up processor during breakdown on its normal processor.
9.3 Copies shall be stored only at the licensed site or such other site as may be agreed in writing with Supplier.
10. Unauthorized Use
If any unauthorized party makes use of any part of the Software or Documentation and if such use is attributable to the act or omission of Customer, then Customer shall be liable to pay to Supplier under its then current Software License terms for the amount that would be payable to Supplier had such user been properly licensed from the beginning of the unauthorized use. However, Customer's liability pursuant to this Section shall be discharged if Customer demonstrates that it maintained adequate precautions to prevent unauthorized use and that such use occurred without its negligence or if such use ceases within 30 days of the date Customer knew or ought reasonably have known thereof.
11.1 Supplier warrants that the Software will perform substantially in accordance with the Documentation for a period of 30 days from Acceptance of the Software. Maintenance with regard to defects found or reported after the expiration of the 30-day warranty period shall be available only under a separate support and maintenance agreement with Supplier or its authorized dealer.
11.2 SUPPLIER DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH RESPECT TO THE SOFTWARE.
11.3 Supplier's entire liability and Customer's exclusive remedy shall be, at Supplier's choice, either (a) return of the price paid or (b) repair, replacement, a "work around" or other remedy that does not meet this limited warranty. Any replacement Software will be warranted for the remainder of the original 30 day warranty period or 30 days, whichever is longer.
11.4 Supplier's warranty shall be void if any failure of the Software has resulted from modification, misuse, accident, abuse, or misapplication by the Customer.
11.5 IN NO EVENT WILL SUPPLIER BE LIABLE TO CUSTOMER FOR DAMAGES, UNDER ANY CLAIM OF CONTRACT, TORT, STATUTORY VIOLATION OR OTHERWISE, CONSISTING OF OR INCLUDING ANY LOSS OF PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE SOFTWARE, OR OUT OF USE OR INABILITY TO USE THE SOFTWARE, EVEN IF SUPPLIER HAS BEEN WARNED OF SUCH DAMAGES.
11.6 SUPPLIER'S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT IN THE AGGREGATE EXCEED THE INITIAL LICENSE FEE SPECIFIED ON THE FACE OF THIS AGREEMENT.
12. Copyright and Other Rights of Supplier
12.1 Customer acknowledges that (either in its own right or under license) Supplier holds and will continue to hold all copyright, trademark, and all other property rights in the Software and Documentation (including but not limited to any new releases and any modifications made by or for Customer by any party). No ownership rights are granted by this Agreement.
12.2 Customer agrees to reproduce the copyright and trademark notices and other proprietary notices of Supplier and the Owners on all copies of the Software made under this Agreement.
13. Intellectual Property Warranty and Indemnification
13.1 Supplier warrants that it has sufficient rights to grant the license conferred by this Agreement and that the Software does not infringe upon the copyright, patent or proprietary confidential information of any third party.
13.2 Subject to the further provisions and limitations of this Section, Supplier shall indemnify Customer against attorneys' fees and damages awarded against Customer by a court of competent jurisdiction arising from any infringement of copyright, patent or proprietary confidential information of any third party from the authorized use of the Software. Customer may settle or compromise such disputes only with the express written consent of Supplier.
13.3 Supplier's obligations under this Section 14 to indemnify are subject to all of the following conditions:
13.3.1 Customer must promptly notify Supplier in writing of any allegations of infringement made;
13.3.2 Customer may make no admissions of law or fact without Supplier's consent (other than as may be required by law);
13.3.3 Customer shall not have contributed to the alleged infringement; and
13.3.4 Customer must permit Supplier, at Supplier's request and expense, to conduct the litigation and/or conduct and conclude any settlement; and
13.3.5 License must cooperate fully and give Supplier all reasonable assistance.
13.4 If at any time any claim for indemnity pursuant to this Section 14 arises or in Supplier's opinion is reasonably likely to arise, then Supplier may, at its option and expense:
13.4.1 Procure the right for Customer to continue to use the Software; or
13.4.2 Modify the Software (without causing diminution in functionality) so that it does not infringe the third party's rights.
13.4.3 Terminate this Agreement as to the Software or module involved and the corresponding license granted hereunder and, as Customer's exclusive remedy, refund the Customer fee paid for the Software or module involved, reduced by 20 percent for each year after initial Acceptance of the Software or such module.
14. Force Majeure
Neither party shall be deemed in default of the Agreement to the extent that performance of their obligations (other than obligations to make payment to Supplier) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the control of such party ("Force Majeure") provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay. In the event of such a Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure but not in excess of six (6) months. Force Majeure shall not apply to any obligation to make payment to Supplier.
15.1 This Agreement shall continue in effect unless terminated under its terms.
15.2 Customer may terminate this Agreement by giving six months' notice in writing to Supplier at any time provided that Customer shall have paid to Supplier the full initial License Fee (and all other fees and other monies then due) prior to giving such notice. Termination under this subsection shall not entitle the Customer to a refund of amounts paid.
15.3 Supplier may terminate this Agreement forthwith by notice in writing:
15.3.1 If Customer is in breach of any term of this Agreement, including, without limitation, any payment obligation, and does not remedy the breach within 30 days of written notice, or
15.3.2 Upon the filing of any voluntary petition by Customer under the Bankruptcy Code or other insolvency law, any involuntary petition against Customer under the Bankruptcy Code or other insolvency law that is not dismissed within thirty (30) days after filing, any receivership or any assignment of substantially all the assets of Customer for the benefit of creditors, upon the inability of the Customer to pay its obligations as they become due, or upon the insolvency of Customer.
16. Consequences of Termination
16.1 Upon termination of this Agreement, Customer shall cease to use the Software and shall at Supplier's option retain or destroy the Software and Documentation together with all copies and all related materials, and shall certify in writing to Supplier that this has been done.
16.2 Termination shall not affect existing obligations of Customer, in particular (without limitation), payment of monies then due. Termination shall not affect those obligations and limitations which of their nature and meaning survive, including without limitation, those relating to Supplier intellectual property, confidentiality, use of the Software, and liability.
Any claim made by Customer against Supplier shall be barred unless made in writing within one year of the date on which the subject matter of the matter became known to the party making the claim.
Any modification to the Software at Customer's request shall be a matter for separate, written agreement between the parties.
19. Governing Law
This Agreement shall be governed by the laws of the United States of America and of the state of Texas. Without prejudice to either party's right to claim injunctive relief (together with necessarily incidental relief), Customer and Supplier hereby submits unconditionally to the exclusive jurisdiction and venue of the state and federal courts located in Travis county in the state of Texas for any action relating to this Agreement of the relationship of the parties.
20.1 Customer hereby acknowledges that it has read this Agreement, understands it and agrees to be bound by its terms and conditions.
20.2 This Agreement is the complete and exclusive statement between the parties governing the subject matter of this Agreement, superseding and replacing all related proposals, statements and arrangements, prior to or contemporaneous with and any other written or other communication between the parties on this subject matter.
The headings in this Agreement are inserted for convenience only and shall not affect interpretation.
22. Modification of Agreement; Forbearance
22.1 No modification of this Agreement shall be binding on either party unless made in a written amendment to this Agreement and signed by an authorized signatory of each party.
22.2 Forbearance by either party as to any breach of any obligation under this Agreement shall only constitute a waiver of that obligation to the extent that (in its absolute discretion) it is formally waived in writing by an authorized signatory of that party.
Each clause in this Agreement shall be deemed to be separate and severable and enforceable accordingly. In the event of any provision in this Agreement is held by a court of competence to be unenforceable, all other provisions, and the Agreement as a whole shall remain in effect.
This Agreement is the complete contract of the Parties and supercedes all prior writings, agreements, discussions and statements on this subject matter.