SOFTWARE AS A SERVICE LICENSE AGREEMENT
THIS SOFTWARE AS A SERVICE LICENSE AGREEMENT (the “Agreement”) sets forth the terms and conditions upon which you can use the AlignIT software (the “Software” and as hereinafter defined) as may be further detailed in a work order (the “Work Order”). This Agreement is a legal agreement between the licensee entering into this Agreement, whether individually or on behalf of a company or other legal entity (“Licensee” or “You”) and Elite Value Solutions, LLC (“EVS”). This Agreement is effective as of the date which You accept it (the “Effective Date”).
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ANY WORK ORDER(S) IN ITS ENTIRETY. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO DO SO, AND AGREE THAT THE ENTITY, AND ALL OF THE ENTITY’S EMPLOYEES AND USERS WILL BE BOUND BY THIS AGREEMENT. IF YOU AND/OR THE ENTITY DO NOT WISH TO BE BOUND BY THIS AGREEMENT, OR YOU DO NOT HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON THE ENTITY’S BEHALF, YOU MAY NOT USE THE SOFTWARE OR ENTER INTO THIS AGREEMENT.
1. License of Software; Ownership of Certain Intellectual Property.
a. License of Software. EVS hereby grants to Licensee a limited, nonexclusive, revocable right and license to use and access EVS’s proprietary computer software, which will be accessible via the internet, and is comprised of a web-based, non-downloadable application and website (the “Software”) pursuant to the terms and conditions set forth in this Agreement. All right, title and interest in and to the Software, including all rights under the patent, copyright and trademark laws of the United States (“Intellectual Property Rights”), shall remain solely in EVS. Licensee acknowledges that the Software is confidential and proprietary to EVS and Licensee shall not disclose the Software to or permit access to the Software to any third-party including, without limitation, any person, client, organization, governmental agency, non-profit organization, or other entity, or the employees or agents thereof, whether on a for-profit, loan, gratuitous, temporary, or other basis, through consulting, training, or other services provided by Licensee, or in any other manner except with the express prior written consent of EVS. Upon the termination of the Agreement, EVS will terminate Licensee’s access to the Software and Licensee will have no further right or license thereto.
b. Licensee’s Representations. Licensee represents that it is not a direct competitor to EVS, and that it is not accessing the Software for any competitive purpose, whether directly or indirectly, such as monitoring the Software’s availability, performance, features or functionality, and that it will not assist any third-party to do any of the foregoing.
c. Responsibilities of Licensee and Duty to Cooperate. Licensee may use the Software only in the conduct of Licensee’s own or its Affiliate’s internal business and may not, directly or indirectly use the Software on behalf of any third-party. “Affiliate” means any entity controlled by, or under common control with, Licensee. Licensee’s rights under this Agreement shall not include the right to grant sublicenses or transfer (including transfer by rental or lease) the Software or any part thereof, or use the Software in a service bureau environment. Any attempt to grant sublicenses or transfer any rights shall be considered a breach of this Agreement. Licensee shall set up all user accounts required for Licensee’s use of the Software using the administrative accounts provided by EVS. Licensee is solely responsible for ensuring the confidentiality and security of user accounts and credentials, including but not limited to ensuring: (i) that user accounts are only created and/or maintained for current employees or agents of Licensee who have a need to access the Software; (ii) that user accounts are only accessed by authorized users; and (iii) that each user account is promptly deleted or modified, as appropriate, upon a relevant change in that user’s employment status with Licensee. Licensee shall be solely liable and responsible for any misuse or breaches arising out of Licensee’s failure to accurately and appropriately regulate access to the Software, as well as any and all unauthorized access arising from misuse of any user accounts. Licensee shall notify EVS within five (5) days of any changes to the personnel who are authorized to use the Software.
d. Ownership of Results. The results resulting from Licensee’s use of the Software (the “Results”) shall be the sole property of the Licensee. EVS hereby assigns to the Licensee all Intellectual Property Rights that EVS may have in the Results. The Results do not include, and the foregoing transfer of Intellectual Property Rights do not apply to, the data and information underlying the Results, the Intellectual Property Rights to which shall remain in EVS, third-party licensors, or the public domain, as applicable.
e. Ownership of Licensee Data. Licensee shall retain all right, title and interest in and to the Licensee Data, along with all Intellectual Property Rights associated with any of the foregoing, and no title to or ownership of the Licensee Data is transferred, except as expressly set forth in this Agreement. EVS hereby assigns to Licensee all right, title and interest, and associated Intellectual Property Rights that it may have or acquire in and to any Licensee Data. As used herein, “Licensee Data” means any information that (a) is owned or controlled by Licensee, as the case may be, and (b) is furnished by Licensee for use in connection with the use of the Software contemplated by this Agreement. Upon termination for any reason, EVS will make available to the Licensee all Licensee Data in its possession, custody or control for thirty (30) days after such termination. Licensee hereby grants to EVS a limited, worldwide, non-transferable and exclusive license to use the Licensee Data as may be reasonably necessary to perform its obligations under this Agreement.
f. Retention of Licensee Data and Results. EVS shall retain and make available the Licensee Data and Results (“Data”) for thirty (30) days following termination of this Agreement. After termination, all Data will be lost and unavailable unless Licensee enters into a substantially similar Agreement or exports the Data within thirty (30) days of termination. If Licensee downgrades the version of the Software it uses, Licensee may be required to export and reenter the Data in order to use it with the downgraded Software.
g. Availability of the Software. Licensee acknowledges that access to the Software may be affected by certain mandatory actions by EVS, or by events beyond the control of EVS, including: (i) malfunction or failure of computer hardware or software; (ii) periodic maintenance procedures or repairs which EVS may undertake from time-to-time; or (iii) other causes beyond the control of EVS or which are not reasonably foreseeable by EVS, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures. Licensee hereby agrees that EVS shall have no liability for the unavailability of the Software in connection with any of the foregoing.
h. Maintenance; Updates; Upgrades. EVS shall provide to Licensee, at no additional charge, updates, enhancements, bug fixes and other minor upgrades to the Software as they become commercially available (“Updates”). Such Updates shall not include major version changes (e.g., Software version 2.0 to 3.0) or changes to meet Licensee’s specific requests or requirements.
2. Free Trial. EVS may make the Software available on a trial-basis, free of charge, for a limited period so that Licensee may evaluate the Software (the “Free Trial”). Notwithstanding anything to the contrary set forth herein, the Free Trial is provided “AS-IS”, without any warranty, representation, or indemnification by EVS, and EVS may terminate the Free Trial at any time, for any reason, in its sole discretion. After the conclusion of the Free Trial, access to the Software will be terminated and Licensee’s Data will be handled in accordance with Section 1(f).
3. Status of Parties. The parties intend to act and perform as independent contractors and the provisions hereof are not intended to create any partnership, joint venture, agency or employment relationship between the parties or between a party and the employees, agents or independent contractors of the other party.
4. Confidential Information.
a. “Confidential Information” means all information disclosed by either party (“disclosing party”) under this Agreement that should reasonably be understood by the other party (“receiving party”), because of legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the disclosing party, including without limitation, information relating to the disclosing party’s business, business plans, Work Orders, forecasts, financial data, client and prospect lists and information, personnel data, contract information, properties, methods of operation, Software (including, without limitation, source code, specifications, data, works-in-process, alpha and beta versions, design documents and documentation), trade secrets, inventions, discoveries, know-how, and other intellectual property. Confidential Information may be disclosed in written or other tangible form (including as recorded on magnetic, optical or other storage media) or by electronic, oral, visual or other means.
b. Limited Use of Confidential Information. The receiving party shall use the disclosing party’s Confidential Information only as permitted by this Agreement, during the term of the Agreement. The receiving party shall not disclose any Confidential Information of the disclosing party to third-parties except upon written consent of the disclosing party. The receiving party shall take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, to keep confidential the Confidential Information. All Confidential Information, including information contained in computer software or stored in memory or on storage media, is and shall remain the sole and exclusive property of the disclosing party and each party covenants and agrees that it shall not assert or claim any rights, title or interest in the Confidential Information.
c. Exclusions from Confidential Information. The restrictions of this Agreement on the use and disclosure of Confidential Information shall not apply to information that the receiving party can prove: (i) was publicly known at the time of the disclosing party’s communication thereof to the receiving party; (ii) becomes publicly known through no action or fault of the receiving party subsequent to the time of the disclosing party’s communication thereof; (iii) was in the receiving party’s possession free of any obligation of confidence at the time of the disclosing party’s communication thereof; (iv) is developed by the receiving party independently of and without reference to any of the disclosing party’s Confidential Information or other information that the disclosing party disclosed in confidence to any third-party; (v) is rightfully obtained by the receiving party from third-parties authorized to make such disclosure without restriction; or (vi) is identified by the disclosing party in writing as no longer proprietary or confidential.
d. Disclosure of Confidential Information. In the event that the receiving party is required by law, regulation, or court order to disclose any of the disclosing party’s Confidential Information, the receiving party shall promptly notify the disclosing party in writing at least three (3) business days prior to making any such disclosure so that the disclosing party may seek a protective order or other appropriate remedy from the proper authority, except to the extent prohibited by operation of law. The receiving party agrees to cooperate with the disclosing party in seeking such order or other remedy. The receiving party further agrees that if the disclosing party is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only that portion of the Confidential Information which is legally required, will (if allowed by law) promptly provide the disclosing party with a copy of the information so furnished, and will exercise all reasonable efforts to obtain reliable assurances that the information will be maintained confidentially.
e. Return of Confidential Information. All Confidential Information shall be returned to the disclosing party or destroyed promptly upon the disclosing party’s written request at any time or upon the termination or expiration of this Agreement, and shall not, thereafter, be retained in any form by the receiving party, its affiliates, or by any employees or independent contractors of the receiving party or its affiliates. Either party shall be entitled to injunctive relief in the event of the actual or threatened breach of this Section 4, in addition to any other remedies such party may have at law or in equity.
5. Limitations of Liability and Warranty.
(a)LIMITATION OF LIABILITY. Except for claims directly related to EVS’s gross negligence or willful misconduct, or claims for which a party is required to provide indemnification hereunder, neither party’s aggregate liability arising out of or relating to this Agreement, including, without limitation on account of performance or nonperformance of obligations hereunder, regardless of the form of the cause of action, whether in contract, tort (including, without limitation, negligence), statute or otherwise, shall exceed the amounts paid or payable under the Work Order that is the subject of the breach, or one hundred United States dollars ($100.00), whichever is greater. OTHER THAN WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR PROFITS), ARISING IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SAME.
(b)LIMITATION OF WARRANTIES. EVS warrants that:
(i) the execution, delivery and performance of this Agreement by EVS will not conflict with, breach, or cause a default under, any contract with any third-party;
(ii)it has the right to grant the license to the Software as set forth herein; and
(iii)the Software will perform substantially in accordance with its written specifications.
Licensee’s sole remedy in the event of any breach of these warranties will be for EVS to take reasonable efforts to cause the Software to conform to the specifications contained in the Work Order and this Agreement. OTHER THAN THE WARRANTIES SET FORTH HEREIN, THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTY WHATSOEVER AND EVS HEREBY DISCLAIMS ANY AND ALL IMPLIED OR EXPRESS WARRANTIES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
6. Intellectual Property Indemnification. EVS shall indemnify and hold harmless the Licensee and its directors, officers, employees and agents, and any person or entity which controls any of them, from and against any and all claims, liabilities, demands, damages, judgments, awards, settlements, expenses, or losses, including costs of litigation and reasonable attorneys’ fees, arising from any claims asserted by a third-party arising from the actual or alleged infringement by the Software of any third-party Intellectual Property Rights.
In addition to the above indemnity, if such a claim threatens Licensee’s continued use of the Software, EVS shall, at no cost to Licensee, (1) obtain the right for Licensee to continue using the Software, or (2) modify the Software so that it is both non-infringing and functionally and operationally equivalent to the unmodified version, or (3) provide functionally equivalent replacement products. If none of the foregoing is possible, then Licensee or EVS shall have the immediate right to terminate the license to the Software. In no event shall EVS settle any such third-party claim by making an agreement which would cause Licensee to admit to any liability without Licensee’s prior written consent.
7. Term and Termination. This Agreement shall commence as of the Effective Date and shall terminate upon the expiration of a Free Trial or as set forth in a Work Order.
i. Modification and Waiver. No modification of this Agreement will be deemed effective unless in writing and signed by each of the parties. The failure of either party to enforce any right or obligation under this Agreement shall not be deemed a waiver thereof unless in writing and signed by the party against whom enforcement of the waiver is sought and shall not prevent the later enforcement of such right or obligation.
j. Governing Law. This Agreement will be governed by the laws of the State of New Jersey without regard to conflict of law principles.
k. Arbitration. Any controversy or claim arising out of or relating to this Agreement or the validity, inducement or breach thereof, shall be settled by arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then pertaining (available at www.adr.org), except where those rules conflict with this provision, in which case this provision controls. Any court with jurisdiction shall enforce this clause and enter judgment on any award. The arbitrator shall be an attorney who has at least fifteen (15) years of experience with a law firm or corporate law department or who was a judge of a court of general jurisdiction, unless the parties agree otherwise. The arbitration shall be held in New Jersey and, in rendering the award, the arbitrator must apply the substantive law of New Jersey. The arbitrator shall award attorneys’ fees and costs to the prevailing party. Notwithstanding the foregoing, EVS shall have the right to seek and obtain from the appropriate court equitable remedies such as attachment, preliminary injunction, replevin, etc., to avoid irreparable harm.
l. Severability. If any of the provisions or a portion of any provision of this Agreement is held to be unenforceable or invalid by a court of competent jurisdiction, the validity and enforceability of the enforceable portion of any such provision and/or the remaining provisions will not be affected.
m. Entire Agreement. This Agreement, together with any executed Work Order(s), represents the entire agreement between the parties and supersedes all prior negotiations, representations or agreements, written or oral, regarding the Software to be provided by EVS. In the event of any conflict between the terms and conditions of this Agreement and those of any other agreements entered into pursuant to this Agreement, this Agreement’s terms and conditions will control.
n. Assignment; Binding Effect. Neither party may assign this Agreement, or any part hereof, without the prior written consent of the other party. This Agreement is binding upon and is for the benefit of the parties, and their respective successors and assigns.
o. Force Majeure. Neither party shall be liable to the other party arising out of delays or failures to perform under this Agreement to the extent that any such delays or failures result from any cause beyond the reasonable control of the party affected, including without limitation, fire, earthquake, explosion, casualty, strike, war, riot, civil disturbance, act of God, any state of national law, decree or ordinance, or any executive or judicial order provided that the affected party promptly informs the other of all relevant information. If any such force majeure event extends beyond thirty (30) days, either party shall have the right to terminate this Agreement upon written notice to the other party.
p. Surviving Obligations. Sections 1, 3, 4, 5, and 8 shall survive termination of this Agreement for any reason.