End User License Agreement
THIS DOCUMENT IS A LEGAL AGREEMENT (the “Agreement”) BETWEEN SPHERE TECHNOLOGY PARTNERS, INC. (“SPHERE”) AND YOU OR THE ORGANIZATION ON WHOSE BEHALF YOU ARE ENTERING INTO THIS AGREEMENT (“Customer”).
BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU ACCEPT THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS LICENSE AGREEMENT, DO NOT PROCEED WITH THE DOWNLOADING, COPYING, INSTALLATION OR ANY OTHER USE OF THE SOFTWARE OR ANY PORTION THEREOF AS YOU HAVE NO RIGHTS TO DO SO. THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT LAWS, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. THE SOFTWARE IS LICENSED, NOT SOLD.
THIS LICENSE AGREEMENT DESCRIBES YOUR RIGHTS AND RESTRICTIONS WITH RESPECT TO THE SOFTWARE AND ITS COMPONENTS.
“Documentation” means the documentation made generally available by SPHERE describing the features, functionality, and use of the Software.
“Quote” means a written agreement between SPHERE and Customer containing details of the Software subject to this Agreement.
“Software” means the object code version of product(s) licensed under an Quote, together with any and all subsequent releases and versions of the Software generally made available during the Subscription Term.
Subject to the terms this Agreement, SPHERE grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use the Software and the Documentation during the Subscription Term, solely for Customer’s internal business operations, or as expressly permitted in an applicable Quote for a third-party customer of Customer.
This is a license agreement and not an agreement for sale. SPHERE reserves ownership of all intellectual property rights inherent in or relating to the Software, which include, but are not limited to, all copyright, patent rights, all rights in relation to registered and unregistered trademarks (including service marks), confidential information (including trade secrets and know-how) and all rights other than those expressly granted by this Agreement.
Customer may not delete, remove, hide, move, or alter any trademark, logo, icon, image, or text that represents SPHERE’s name, any derivation thereof, or any icon, image, or text that is likely to be confused with the same. All representations of SPHERE’s name, logo or other mark must remain as originally distributed regardless of the presence or absence of a trademark, copyright, or other intellectual property symbol or notice.
SPHERE represents and warrants that SPHERE is in compliance with the licenses to any third-party software included in the Software, and such licenses do not in any way restrict or impair Customer’s right to use the Software in accordance with this Agreement. If required by the applicable license, SPHERE will make such software and SPHERE’s modifications available upon request. SPHERE shall otherwise have no liability for Customer’s use of such Software, or for any content provided by a third party that interoperates with Software.
4. PROHIBITED USES
Except as expressly authorized under this Agreement, Customer is prohibited from: (a) renting, leasing, lending, or granting other rights in the Software including rights on a membership or subscription basis; and (b) providing use of the Software in a computer service business, third party outsourcing facility or service, service bureau arrangement, network, or time-sharing basis. Customer agrees not to modify, port, adapt or translate the Software. Customer agrees not to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software, and SPHERE shall not carry out any action to the detriment of SPHERE’s intellectual property rights or those of SPHERE’s suppliers. Customer agrees not to use any part of the Software or Customer’s knowledge of the Software (or any information that Customer learns as a result of Customer’s use of the Software) to create a product with the same or substantially the same functionality as the Software. Customer shall not repackage the Software for distribution, transfer, or resale. Customer agrees not to disclose to any third party any benchmarking or comparative study involving the Software.
5. FEES & PAYMENT
Customer will pay SPHERE in accordance with the fees defined in one or more Quotes (the “Fee”). Customer will pay all invoices within 30 days from the date of invoice. All payments under this Agreement will be made by Customer in United States dollars payable by wire transfer or ACH to SPHERE. All Fees are non-refundable and non-cancellable except as expressly provided otherwise. Failure to pay invoices, may result in (a) interest will accrue at the lesser of 1.5% per month or the highest lawful rate on the outstanding balance, (b) cessation of work in progress, (c) withholding or suspension of any outstanding services until unpaid invoices are paid in full, and/or (d) termination or suspension of any Software licenses. Preprinted terms contained in any purchase order or other business form do not apply.
Customer shall be responsible for all taxes or charges of any kind in connection with this Agreement (including but not limited to, customs duties, government permit, tariffs, excise, gross receipts, sales and use and value added tax), except income tax or corporation tax (or similar taxes) imposed on SPHERE. If Customer is required to withhold any tax, Customer must gross up its payments so that SPHERE receives all sums due in full.
6. TERM & TERMINATION
This Agreement and the licenses granted hereunder shall remain in effect for the term referenced in the Quote (the “Initial Term”). Unless a party notifies the other party in writing at least ninety (90) days prior to the expiration of the Term (including any Renewal Term) of this Agreement of its decision not to renew this Agreement, this Agreement shall automatically renew for successive one (1) year periods (each a “Renewal Term”). The Initial Term as extended by each Renewal Term is sometimes herein referred to as the “Subscription Term”. For each Renewal Term, SPHERE may increase Fees by up to 3% over the last annual Fee.
Either party may terminate the Agreement effective immediately upon written notice if the other party: (a) materially breaches any provision of the Agreement and fails to cure within 30 days after receiving written notice; or (b) becomes insolvent or subject to any form of bankruptcy proceeding.
In the event of a termination (a) Customer will pay SPHERE all undisputed amounts due for Software provided prior to the effective date of termination; (b) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; and (c) within ten (10) days after the effective date of termination, each party shall comply with the obligations to return or destroy all Confidential Information of the other party. The confidentiality, intellectual property, limitation of liability, governing law, venue, attorneys’ fees, and any other provisions of this Agreement that by its nature ought to survive shall survive its termination or expiration.
Each party represents and warrants to the other party, its successors and permissible assigns that (a) the party’s execution and delivery of the Proposal and performance or compliance with the terms of this Agreement will not conflict with, result in a breach of or constitute a default under any agreement to which it is bound; (b) to the party’s knowledge, there are no threatened lawsuits, actions or any other legal or administrative proceedings against it which, if adversely determined, would have a material adverse effect on its ability to perform its obligations under this Agreement; and (c) the party will comply with all applicable laws, rules, orders, statutes, and regulations in connection with the performance of its obligations under this Agreement.
For a period of ninety (90) days after purchase of the Software, SPHERE warrants that Software will substantially conform with the Documentation. Customer must properly install and use the Software without modification and in accordance with the Documentation, except to the extent SPHERE is obligated to install and configure the Software. Customer must notify SPHERE of an alleged breach of this warranty within the applicable warranty period. As Customer’s sole remedy for a breach of this warranty, SPHERE must either: (1) correct any reproducible error in the Software; or (2) terminate the Software and refund any unused prepaid Fees for that Software.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SPHERE AND ITS RESELLERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE. SPHERE DOES NOT GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, AND CUSTOMER ACKNOWLEDGES THAT IT IS NOT TECHNICALLY PRACTICABLE FOR SPHERE TO DO SO.
Evaluations are provided “AS IS” without indemnification, support, service level commitment, or warranty of any kind, express or implied.
8. LIMITATION OF LIABILITIES
IN NO EVENT WILL SPHERE, ITS SUBSIDIARIES, ITS AFFILIATES, OR ITS SPHERES BE LIABLE TO CUSTOMER, WHETHER IN CONTRACT, BY REASON OF NEGLIGENCE OR OTHERWISE, FOR PUNITIVE, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY TO USE THE SOFTWARE, OR NON-PERFORMANCE OF ANY OBLIGATIONS PROVIDED HEREUNDER, OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT, EVEN IF SPHERE, ITS SUBSIDIARIES, ITS AFFILIATES, OR ITS SPHERES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. CUSTOMER AGREES THAT SPHERE’S ENTIRE LIABILITY HEREUNDER FOR DAMAGES SHALL NOT EXCEED THE LESSER OF (I) THE AGGREGATE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO SPHERE WITHIN THE SIX-MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE THE LIABILITY THAT GAVE RISE TO DAMAGES WAS INCURRED; AND (II) FIVE HUNDRED DOLLARS ($500).
A party that receives Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) shall not disclose or make available the Disclosing Party’s Confidential Information to any of the Receiving Party’s employees, agents, contractors or consultants or to any third parties, except those that have agreed in writing to be bound by terms and conditions substantially similar to, and no less restrictive with respect to limitations on use and disclosure, than those contained in this Agreement and each of which have a “need to know” in order to carry out the purposes set forth in this Agreement. Each party shall take all reasonable precautions necessary to safeguard the confidentiality of all Confidential Information disclosed by the other party, including those precautions (A) taken by the disclosing party to protect its own Confidential Information and (B) which the disclosing party or its authorized representative may reasonably request from time to time.
“Confidential Information” means all technical and non-technical information in both tangible and intangible form, including, but not limited to, product design information, software code, technical information, customer
information, discounting, cost and pricing information, financial information and the results derived from or methodology employed by Customer in conducting any benchmark testing of the Licensed Software; provided that the term “Confidential Information” shall not include information which the recipient can show by reasonable proof (i) to have been known by the recipient prior to the time of disclosure by the disclosing party, (ii) to have become part of the public domain through no fault or breach of this Agreement by the recipient, (iii) to have been disclosed to the recipient in good faith by a third party who is not under any obligation of confidence or secrecy to the disclosing party at the time such third party discloses the information to the recipient or (iv) to have been compelled to be produced by a court of competent jurisdiction, provided that the recipient shall first give notice to the disclosing party of any such request or order of the court to give the disclosing party an opportunity to contest or limit said request or order of the court.
SPHERE or a certified auditor acting on SPHERE’s behalf, may, upon SPHERE’s reasonable request and at SPHERE’s expense, audit Customer with respect to the use of the Software. Such audit may be conducted by mail, electronic means or through an in-person visit to Customer’s place of business. Customer will provide reasonable access to its employees for this purpose. Any in-person audit shall be conducted during regular business hours at Customer’s facilities and shall not unreasonably interfere with Customer’s business activities. SPHERE shall not remove, copy, or redistribute any electronic material during the course of an audit. If an audit reveals that Customer is using the Software in a way that is in material violation of the terms of this Agreement, then Customer shall SPHERE’s reasonable costs of conducting the audit. SPHERE reserve the right, at SPHERE’s discretion, to terminate the licenses for the Software, in addition to any other remedies available under law. This Section shall survive expiration or termination of this Agreement for a period of two (2) years.
11. EXPORT CONTROLS
Customer agrees to comply with all applicable laws. Without limiting the foregoing, Customer agrees to comply with all United States export laws and applicable import laws of Customer’s locality (if Customer is not located in the United States), and Customer agrees not to export any Software without first obtaining all required authorizations or licenses. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, Customer makes representations and warranties of not being located in any such country or on any such list. Customer also agrees not to use the Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
The Agreement is governed by the laws of the State of New Jersey. Conflict of law rules are expressly disclaimed. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Customer and SPHERE hereby agree to the exclusive venue of the Federal and State courts located in Essex County, New Jersey. In the event of Customer’s failure to pay any Fees set forth in this Agreement, SPHERE shall be entitled to recover its costs and expenses, including but not limited to reasonable attorneys’ fees, incurred in any collection efforts or legal action.
The Agreement contains the entire agreement of the parties and supersedes all previous or contemporaneous communications, representations, proposals, commitments, understandings, and agreements, whether written or oral, between the parties regarding its subject matter. The Agreement may be amended only in writing and signed by both parties. If there are any ambiguities or conflicts (interpretive or otherwise) between this Agreement and any Proposal, the language and terms of the Proposal will take precedence.
In the event of a dispute between the parties arising out of this Agreement, prior to instituting legal action, a complaining party shall identify all disputes in writing, shall discuss and negotiate in good faith a resolution to the dispute, and shall escalate any unresolved disputes to a vice president or above for a discussion between the parties.
Customer may not assign the Agreement or any Proposal without SPHERE’s consent. Once validly assigned, the Agreement will bind and inure to the benefit of the parties and their respective successors and assigns. Any attempted assignment without consent will be null and void.
Any notice required or permitted under the Agreement must be in writing and delivered by email with confirmed receipt or via overnight courier to the other party’s address in the Proposal.
Waiver of a breach of the Agreement will not constitute a waiver of any later breach. If any part of the Agreement is held to be invalid or unenforceable, all remaining provisions will remain in force to the extent feasible to effectuate the intent of the parties. Each party must comply with all applicable laws.
Other than as expressly stated, the Agreement does not create any rights for any person who is not a party to it. Only persons who are parties to the Agreement may enforce or rely on any of its terms. Nothing in the Agreement is intended to constitute a fiduciary relationship, agency, joint venture, partnership, or trust between the parties. No party has authority to bind the other party.
Except for Customer’s payment obligations, neither party will be liable for any delay or failure to perform due to any cause beyond the party’s reasonable control, including labor disputes, industrial disturbances, systemic utility failures, acts of nature, pandemics or threat thereof, embargoes, riots, government orders, acts of terrorism, or war.