Subject to compliance by Licensee with the terms and conditions of this Agreement (including but not limited to payment of the License Fee), Licensor grants Licensee a non-exclusive, non-transferable and non-sublicensable right to install and use the Software for purposes only and only on computers of the type and configuration specified in the Documentation, and owned or leased, and used by Licensee at its premises as specified in the accompanyiung End User License Agreement (EULA). Licensor shall provide Licensee with one installation of the Software.
Except as expressly authorized herein, Licensee shall not, nor permit others to:
Licensee acquires the right to use the Software and Documentation only as provided for herein and does not acquire any rights of ownership or any implied rights whatsoever. Copyright and all other right, title and intellectual property rights and interest in or to the Software and Documentation and all copies thereof remain vested in Licensor or its third-party providers. No right or interest in any Licensor trademark, trade name or service mark is granted hereby. All rights granted herein shall expire upon the end of the period specified in the End User License Agreement.
As consideration for the license rights granted herein, Licensee shall pay Licensor the non-refundable License Fees specified in Addendum A of the End User License Agreement for the number of named users set forth therein. All License Fees are due net 30 days from the date of Licensor’s invoice. Licensor’s invoice shall also state, as a separate item, any excise, sales, use, value-added, or other taxes, duties or levies (except taxes imposed with respect to net income), including applicable penalties and interest attributable thereto, payable in connection with the License of the Software and Documentation (“Taxes”). Licensee shall pay all License Fees, Taxes and other applicable charges stated in Licensor’s invoice by wire transfer to Licensor’s bank. All payments shall be made in U.S. Dollars and all banking, collection and other charges shall be at Licensee's expense.
All payments by Licensee shall be made free and clear of, and without reduction for, any withholding taxes. Any such taxes that are otherwise imposed on payments to Licensor shall be the sole responsibility of Licensee. Licensee shall provide Licensor with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Licensor to establish that such taxes have been paid. If it is determined (either at the time of delivery or upon an audit by any taxing authority) that Licensor has the legal obligation to collect any Taxes, the appropriate amount shall be paid by Licensee to Licensor within thirty days after the Licensor invoice date.
If any sums payable by Licensee are in arrears for more than thirty (30) days after the due date, Licensor reserves the right, without prejudice to any other right or remedy, to charge interest at the lesser of one and a half percent (1.5%) per month or the highest rate permitted by law.
The Software and Documentation constitute the confidential and proprietary information and trade secrets of Licensor. Licensee understands that any unauthorized disclosure or use or copying of the Software or Documentation may cause Licensor irreparable harm for which monetary damages may not be adequate compensation. Accordingly, Licensee shall treat the Software and Documentation as strictly confidential and only divulge it on a strictly need to know basis to those employees and agents who have a need to use the Software in the performance of their duties and who are bound in writing by obligations of confidentiality, non-use and non-disclosure at least as protective of the Software and Documentation and those contained herein. Licensee shall use adequate physical and electronic security measures to protect the Software and Documentation from unauthorized use, access, copying or misappropriation. Any ideas and principles determined from Licensees observation, studying or testing the functions of the Software constitute confidential information of Licensor. The obligation of confidentiality shall not apply to any information that is or becomes public knowledge for reasons other than Licensee's default.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR PROVIDES THE SOFTWARE “AS IS” AND WITH ALL FAULTS. THERE IS NO WARRANTY THAT THE FUNCTIONS CONTAINED IN THE PRODUCT WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE ASSUMES ALL LIABILITY FOR THE SELECTION OF THE PRODUCT TO ACHIEVE ITS INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED BY IT. LICENSOR HEREBY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT, LACK OF VIRUSES, OR LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE.
This Agreement and the license rights granted herein shall cease upon the expiration of the period stated at the beginning of the End-User License Agreement. In addition to any other rights or remedies Licensor may have at law or under the terms of this Agreement, Licensor may terminate this Agreement immediately upon notice to Licensee if Licensee materially breaches any provision of this Agreement including but not limited to the provisions of Sections 2, 3, 4, 5 or 10. On termination or expiration of this Agreement for whatever reason, the License granted hereunder and Licensee's authorization to use the Software and the Documentation shall automatically cease and Licensee shall make no further use of the Software and Documentation. The provisions of this Agreement which, by their nature are intended to survive expiration or termination of this Agreement shall survive expiration or termination of this Agreement. Expiration or termination of the Agreement for whatever reason shall not affect the rights of either party under this Agreement which may have accrued up to the date of termination.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS LICENSE AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF LICENSOR, AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANY DAMAGES THAT LICENSEE MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF LICENSOR UNDER ANY PROVISION OF THIS LICENSE AGREEMENT AND LICENSEE’S EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING (EXCEPT FOR ANY REMEDY OF REPAIR OR REPLACEMENT ELECTED BY LICENSOR WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE PRODUCT OR USD $5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
All copyrights, patents, trademarks, service marks, trade secrets, know-how or other proprietary rights (whether subsisting, contingent or future) (“Intellectual Property”) in the Software and Documentation belong to and vest solely in Licensor. For the avoidance of doubt and without limitation, all rights, title and interest in or to the Software, the Documentation and other associated documentation, and translations, modifications, enhancements, improvements, derivations or copies thereof shall at all times remain the property of Licensor and neither this Agreement nor any license granted under this Agreement shall be construed to grant any ownership or proprietary interest in any Intellectual Property rights in the Software, the Documentation or any other associated documentation, translations, modifications, enhancements or copies thereof to Licensee. Title and related rights in the content accessed through the Software are the property of the applicable content owner and are protected by applicable law. Licensee agrees not to alter or obscure any proprietary rights legends Licensor may place on the Software and the Documentation and any copies thereof Licensee may be permitted to make under this Agreement.
If Licensee is an entity of the United States Government, Licensee understands that the Software and the Documentation are “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are defined in the Federal Acquisition Regulations (FAR) (48 CFR §12.212) and the Defense Federal Acquisition Regulation Supplement (DFARs) (48 CFR §§227.7202-1; 3). Any use, modification, reproduction release, performance, display or disclosure of the Product(s) and Documentation by the U.S. Government will be governed solely by the terms of the accompanying EULA and will be prohibited except to the extent expressly permitted by the terms of the accompanying EULA. Manufacturer is i2k Connect LLC., 10419 Ten Point Lane, Missouri City, Texas 77459, USA - All Rights Reserved.
All notices, consents and other communications required or permitted under this Agreement shall be in writing and sent by first class post, prepaid, or transmitted by facsimile transmission confirmed by post to the address indicated on the first page of this Agreement, or such other address as either party may indicate by notice to the other party.
Licensee may not assign, delegate, sublicense, or otherwise transfer any of its rights under this Agreement, whether by operation of law, merger, change of control, assignment to an affiliate of Licensee or otherwise, without the prior written consent of Licensor which may be withheld in Licensor’s sole discretion. Any attempt by Licensee to assign, delegate, sublicense, or otherwise transfer any of its rights under this Agreement shall be null, void and a material breach of this Agreement. Licensor may assign, transfer, or otherwise delegate any or all its rights and obligations under this Agreement to an associate company of Licensor or any entity carrying on that part of the business to which this Agreement relates.
This Agreement shall be construed and interpreted in accordance with the laws of the State of Texas excluding its conflicts of law principles. The parties agree that the Uniform Computer Information Transactions Act (UCITA) as implemented in Texas or any other U.S. state shall not apply to this Agreement. Any action arising out of this Agreement shall be subject to the exclusive jurisdiction of the Federal Court or the State courts located in Fort Bend County.
The failure by a party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future. No waiver of any breach of this Agreement shall constitute a waiver of any other breach of the same or other provisions of this Agreement and no waiver shall be effective unless made in writing.
If any part of this Agreement is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable, then such part shall be severed from the remainder of this Agreement which shall continue to be valid and enforceable to the fullest extent permitted by law.
This Agreement and the accompanying EULA constitutes the entire agreement between the parties concerning Licensee's use of the Software and supersedes any and all communications, representations, and arrangements, whether written or oral concerning the subject matter hereof and Licensee hereby acknowledges that no reliance is placed on any representations made but not embodied in this Agreement. This Agreement may only be modified or supplemented in a writing signed by both parties. No purchase order, other ordering document or any handwritten or typewritten text issued by Licensee which purports to modify or supplement the text of this Agreement shall add to or vary the terms of this Agreement. Any such purchase order shall be dealt with by Licensor for invoicing purposes only. This Agreement is hereby executed on behalf of the parties on the date last written at the end of Section 12 of the EULA.