Subject to the terms hereof, payment of all fees, and any applicable user/use limitations, Saaswedo grants Licensee a personal, non-sublicensable, nonexclusive, right to use the Service on authorized devices and only in accordance with Saaswedo's applicable user documentation. Saaswedo retains ownership of all rights in the Service and the underlying software except as expressly provided in this Agreement. Licensee will maintain the copyright notice and any other notices that appear on the Service and any media. Licensee will not (and will not allow any third party to: (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Service (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, the Service (except as expressly and specifically authorized by Saaswedo), (iii) possess or use the Service, or allow the transfer, transmission, export, or re-export of the Service or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department's Office of Foreign Assets Control, or any other government agency, (iv) disclose to any third party any benchmarking or comparative study involving the Service or (v) modify the Service. Prior to disposing of any media or apparatus containing any part of the Service, Licensee shall completely delete the Service contained therein. All the limitations and restrictions on the Service in this Agreement also apply to documentation and screens. LICENSEE ACKNOWLEDGES THAT THE SERVICE MAY INCLUDE FEATURES TO PREVENT USE AFTER THE APPLICABLE LICENSE PERIOD AND/OR USE INCONSISTENT HEREWITH. Licensee acknowledges the Service may be distributed alongside or contain or use certain third-party software.
2. Support and Maintenance.
While the license for the Service has not been terminated and all applicable fees have been timely paid for each annual support term, Saaswedo will use reasonable commercial efforts to provide the support and maintenance services for the Service as and to the extent described in Schedule A attached hereto (“Support Services”), except with respect to Third Party Software.
3. Fees and Payment.
As set forth on the price list in Schedule B, License Fees will be paid at the begining of the contractual period. At the same time as payment of the initial License Fees, and annually in advance thereafter (and except to the extent included in License Fees for annual subscriptions), Licensee shall also pay Saaswedo's then current standard support and maintenance fees for the Service or such other support and maintenance fees as have been expressly agreed to by Saaswedo (“Annual Maintenance Fees”). All payments shall be made in the currency of, and within the borders of the United States. Any payments more than thirty (30) days overdue will bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law. In addition, Licensee will pay all taxes, shipping, duties, withholdings, backup withholding and the like; when Saaswedo has the legal obligation to pay or collect such taxes, the appropriate amount shall be paid by Licensee directly to Saaswedo. Licensee will reimburse Saaswedo for all reasonable travel and other related expenses incurred by Saaswedo in its performance hereunder; provided, however, that such expenses shall have been pre-approved by Licensee.
“Order” means a (a) Saaswedo Quote, (b) purchase order, or (c) any other form or ordering document that is issued by Licensee to Saaswedo (or a reseller, as applicable), pursuant to which Licensee seeks to purchase the Saaswedo offerings subject to this Agreement and is accepted by Saaswedo (or the reseller, as applicable). This Agreement is incorporated by reference into any Order without modification and replaces any additional or different terms or conditions that may be submitted to Saaswedo. Except for Quotes, Orders issued to Saaswedo do not have to be signed to be valid and enforceable. “Quote” means a written quotation for Saaswedo offerings provided to the Licensee by Saaswedo, which is accepted by Licensee and considered an “Order” by their signing and returning that quotation to Saaswedo before the expiration date stated in that quotation. Licensee’s Order is subject to this Agreement. No Orders are binding on Saaswedo until accepted by Saaswedo. Orders for Saaswedo offerings are deemed to be accepted upon Saaswedo’s delivery of the Saaswedo offerings included in such Order. In the event that Licensee wishes to place additional devices under a license or avail itself of any other offerings, Licensee shall execute an Order detailing the number and type of additional licenses and/or other offerings to be obtained. Pricing for such Orders shall be as set forth in the original Order, subject to any pricing changes made pursuant to this Agreement, or, if no pricing is provided in the original Order, Saaswedo’s then-current published prices shall apply. The first engagement period of the new licenses will be aligned with the current licenses of the Licensee’s account. At the Agreement anniversary the renewal of the licenses will apply for all licenses at the same time if no cancellation has been received from the Licensee to Saaswedo by the time set forth in Section 4 below.
4. Termination; Breach.
All licenses will terminate thirty days (ten in the case of non-payment and immediately in the case of a breach of Section 1) after notice of any breach by Licensee remaining uncured at the end of such notice period, and in such event all license fees that were to have been payable through the end of the current license term will be immediately due and payable. A license will also terminate upon the expiration of the license period specified for the Service, subject to annual renewal in the case of an annual subscription license (which renewal will be automatic in the absence of notice of non-renewal from either party given at least 30 days prior to end of the then current annual subscription period). If a license has been granted for a trial period, at the conclusion of the trial period, Licensee may terminate this Agreement immediately upon notice to Saaswedo and shall comply with its termination obligations hereunder. To the extent that Licensee continues to use the Service after the end of the trial period, then the trial license(s) shall convert to subscription license(s) under this Agreement at Saaswedo’s then-current rates, terms, and conditions. To the extent Licensee purchases licenses after a trial, whether directly through Saaswedo or a reseller, unless otherwise stated in an Order provided by Saaswedo, Licensee’s use of the Service and the associated software, maintenance and hosted services shall be subject to this Agreement.
Upon any termination, Licensee shall immediately cease all use of the Service and return or destroy all copies of the documentation and software underlying the Service and all portions thereof and upon request shall so certify to Saaswedo. After termination or expiration of this Agreement, Licensee acknowledges and agrees that Saaswedo has no obligation to retain Licensee content and Saaswedo shall delete Licensee content in accordance with Saaswedo’s retention policies. Upon Licensee’s request, Saaswedo will provide Licensee with instructions to enable Licensee to use the report function of the Service to export device information from the Service. Except as otherwise expressly provided herein, the terms hereof shall survive any termination. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs. THE SERVICE MAY CONTAIN DISABLING CODE THAT (EITHER AUTOMATICALLY OR UPON INPUT FROM SAASWEDO) WILL MAKE THE SERVICE (AND RELATED DATA) UNUSABLE UPON TERMINATION OF THE LICENSE OR UPON BREACH.
Saaswedo shall hold Licensee harmless from liability to third parties resulting from infringement by the Service of any patent issued sixty (60) days or more before delivery of the Service or any copyright or misappropriation of any trade secret, provided Saaswedo is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Saaswedo will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to the Service or portions or components thereof (i) not created by Saaswedo (e.g., third party software), (ii) made in whole or in part in accordance to Licensee specifications, (iii) that are modified after delivery by Saaswedo, (iv) combined with other Service, processes or materials where the alleged infringement relates to such combination, (v) where Licensee continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Licensee's use of the Service is not strictly in accordance herewith. Licensee will indemnify Saaswedo from all damages, costs, settlements, attorneys' fees and expenses related to (I) any claim of infringement or misappropriation excluded from Saaswedo's indemnity obligation by the preceding sentence, or (II) any other claim in connection with the Service or the use or distribution thereof.
6. Limited Warranty and Disclaimer.
Saaswedo warrants for a period of thirty (30) days from delivery of the Service that the Service will materially conform to Saaswedo's then current user documentation for the Service. This warranty covers only problems reported to Saaswedo during the warranty period. ANY LIABILITY OF SAASWEDO WITH RESPECT TO A SERVICE OR THE PERFORMANCE THEREOF UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO SERVICE REPLACEMENT OR, IF REPLACEMENT IS INADEQUATE AS A REMEDY OR, IN SAASWEDO'S OPINION, IMPRACTICAL, TO REFUND OF AN APPROPRIATE PORTION THE REMAINING UNAMORTIZED LICENSE FEE PAID BY LICENSEE. EXCEPT FOR THE FOREGOING WARRANTY BY SAASWEDO, THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND FROM ANYONE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. FURTHER, SAASWEDO DOES NOT WARRANT RESULTS OF USE OR THAT THE SERVICE ARE BUG FREE OR THAT THE SERVICE'S USE WILL BE UNINTERRUPTED.
7. Limitation of Liability.
NOTWITHSTANDING ANYTHING ELSE HEREIN OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, NEITHER SAASWEDO NOR ANY LICENSOR SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER HEREOF OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT HEREUNDER WITH RESPECT TO THE SERVICE DURING THE SIX MONTH PERIOD PRIOR TO THE CAUSE OF ACTION OR (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. THE SERVICE IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE WHERE THE FAILURE OF THE SERVICE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SIGNIFICANT PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). USE OF THE SERVICE IN HIGH RISK ACTIVITIES IS NOT AUTHORIZED. THE PARTIES AGREE THAT THIS SECTION 7 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT LICENSOR WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION.
Saaswedo may use Licensee's name and logo in client listings. Saaswedo may issue a press release announcing the relationship contemplated hereby, subject to Licensee's approval which shall not be unreasonably withheld or delayed.
9. Embedded Reporting / Compliance Routine.
Data Access and Use. Licensee acknowledges that the Service may contain automated reporting routines that will automatically identify and analyse certain aspects of use and performance of the Service and/or the systems on which they are installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith), and provide e-mail and other reports to Saaswedo; this includes, without limitation, information on usage that Saaswedo uses for billing purposes. Saaswedo will be entitled to inspect the installation and configuration of the Service and systems from time to time on reasonable notice. Provided it does not identify Licensee, Saaswedo will be free to use for development, diagnostic and corrective purposes any data and information it so collects relating to diagnosis, problems, systems, performance, use or functionality, and may allow others to do so.
10. Professional Services.
Upon payment of any applicable professional services fees and related expenses, Saaswedo agrees to use reasonable commercial efforts to provide agreed upon professional services. If Saaswedo cannot complete the professional services within the estimated hours, or if Saaswedo provides additional professional services, Licensee will pay Saaswedo at its then-current hourly rates for consultation. Saaswedo retains ownership of all results of professional services.
11. Empty clause.
Neither this arrangement nor the licenses granted hereunder are assignable or transferable (and any attempt to do so shall be void); provided that either party may assign and transfer the foregoing to a successor to substantially all of Saaswedo's Service business or assets or Licensee's business for which the Service is licensed (but if the authorized copies or users are not limited, the assignee is not licensed to expand use beyond Licensee's bona fide pre-assignment use plus reasonably expected growth assuming the assignment and related transactions had not occurred). Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. The provisions hereof are for the benefit of the parties only and not for any other person or entity. Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be in writing; notices shall be sent to the address the applicable party has or may provide by written notice or, if there is no such address, the most recent address the party giving notice can locate using reasonable efforts. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this arrangement shall otherwise remain in full force and effect and enforceable. This agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of Georgia and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. This is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof and any waivers or amendments shall be effective only if made in writing; however, any pre-printed or standard terms of any purchase order, confirmation, or similar form, even if signed by the parties after the effectiveness hereof, shall have no force or effect. The substantially prevailing party in any action to enforce this agreement will be entitled to recover its attorney's fees and costs in connection with such action. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Service and accompanying documentation provided by Saaswedo are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these terms and shall be prohibited except to the extent expressly permitted by these terms.