Software Licensing Agreement

EXHIBIT 1

TERMS AND CONDITIONS

  1. Scope of Agreement. This Agreement permits Licensee to purchase software licenses and services from Provider pursuant to Provider Quotes referencing this Agreement and sets forth the basic terms and conditions under which the software and services will be delivered.   This Agreement will govern Licensee’s initial purchase on the Effective Date as well as any future purchases made by Licensee that reference this Agreement.
  2. Definitions
    • Affiliates: all entities that (directly or indirectly) control, are controlled by or are under common control with that party, where “control” means ownership of or the right to control greater than 50% of the voting interests of such entity.
    • Authorized Users: those employees, agents and Contractors of the Licensee who are authorized by the Licensee to access and use the Software and Documentation, as further described in Section 3 below, and the applicable Quote.
    • Confidential Information: any and all code, inventions, know-how, business, technical and financial or other information that one party receives from the other, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the receiving party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by Provider (or its agents), performance information relating to the Software, and the terms of this Agreement will be deemed Confidential Information of Provider without any marking or further designation.
    • Contractor: a third-party providing services or seeking to provide services to or on behalf of Licensee and to which Licensee has provided a valid password or other means of accessing and using the Software.
    • Deliverable: any deliverable identified in a Quote or provided to Licensee as part of Professional Services performed by Deliverables are not and may never be or include the Software, or any improvement, modification, or derivative work of the Software (including without limitations upgrades and updates), regardless of whether the Software, improvement, modification or derivative work is referenced in a Quote.
    • Documentation: any document(s) made available to the Licensee by Provider from time to time that set(s) out a description of the Software and any applicable user instructions.
    • License Fees: the license fees payable by the Licensee to Provider for the software set out in the Quote.
    • Licensee Materials: Licensee technical data, computer programs, files, documentation, and/or other materials that are necessary for the performance of Professional Services.
    • Maintenance Release: means any update, upgrade, release, or other adaptation or modification of the Software, including any updated Documentation, that Licensor may provide to Licensee from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software.
    • Professional Service: professional services, such as implementation or installation of Software, that are provided pursuant to a
    • Quote: a quote/order form for the software products and Support and Maintenance, as specified in the attached Exhibit 2 and any other quote/order form substantially in such form.
    • Software: shall mean the product(s) licensed by Provider to Licensee, as set forth in the applicable Quote, in object code format, including any Updates provided to Licensee pursuant to this Agreement.
    • Term: shall have the definition given in Section 7.1.
    • Support and Maintenance: the services identified Section 10.
    • Third Party: any entity other than: (a) Provider, (b) its Affiliates, (c) Licensee, or (d) a Contractor.
  3. License.
    • Grant of License. Subject to all of the terms and conditions of this Agreement, including payment of applicable License Fees, Provider grants to Licensee:
      • a non-transferable, non-sublicensable, non-exclusive, fixed term (as specified in the Quote) license to install and use the Software, in machine-readable form only, solely for Licensee’s internal business needs and in accordance with (a) the Documentation, (b) this Agreement and (c) any Term, user, or other restrictions set forth in the applicable Quote.
      • a non-transferable, non-sublicensable, non-exclusive, license to use the Documentation during the Term, solely in connection with use of the Software as set forth herein.
    • Installation and Copies. Licensee may copy and install a single copy of the Software on Licensee’s computers, for use as permitted under this Agreement.
    • Use by Contractors. Subject to the terms and conditions of this Agreement, Contractors may use the licenses granted to Licensee, together with the applicable Documentation, provided that: (a) such use is only for Licensee’s benefit and internal use; (b) Licensee agrees to remain responsible for each such Contractor’s compliance with the terms and conditions of this Agreement; and (c) upon request, Licensee will identify each such Contractor.
    • Authorized Users. Licensee covenants that:
      • When a password is required to access the Software, each Authorized User shall keep a secure password for use of the Software and shall keep that password confidential; and
      • Licensee shall be fully responsible for any use of the Software by an Authorized User, and all such use will comply with this Agreement.
    • License Restrictions. Licensee shall not (and shall not allow any third-party to):

3.5.1         decompile, disassemble, or otherwise reverse engineer the Software, or any component of them, or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts decompilation or reverse engineering restrictions, and then only with prior written notice to Provider);

3.5.2         distribute, sell, sublicense, rent, lease or otherwise transfer the Software;

3.5.3         use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes;

3.5.4         remove any product identification, proprietary, copyright or other notices contained in the Software;

3.5.5         modify any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by Provider; or

  • publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; or
  • in any way use the Software and/or Documentation to provide services to a Third Party.

 

  • Unauthorized Access. Licensee shall prevent any unauthorized access to, or use of, the Software and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify Provider.
  • License Termination. The licenses granted in this Section 3 will terminate immediately upon breach of Section 4, 3.5, or 3.6 by Licensee or any Authorized User.
  1. Ownership.

Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Provider and its suppliers have and will retain all rights, title and interest in and to the Software (including, without limitation, all patent, copyright, trademark, trade secret, and other intellectual property rights) and all copies, modifications, and derivative works thereof (including any such materials to the extent incorporating any ideas or suggestions of Licensee (“Feedback”)). Licensee acknowledges that it is obtaining only a limited license right to the Software and that no ownership rights are being conveyed to Licensee under this Agreement or otherwise. Licensee acknowledges that Provider is free to exploit, use, license and distribute, any Feedback provided to Provider as it sees fit, without obligation of compensation or attribution.

  1. Implementation / Installation and Other Professional Services.
    • Professional Services. Any Professional Services to be provided under this Agreement will be subject to a Quote. Provider agrees to use commercially reasonable efforts to render the Professional Services by the delivery dates specified in the applicable Quote, if any are specified.  Any Quote will become part of this Agreement upon execution by both parties. Licensee agrees to provide Provider with access to Licensee Materials, resources, personnel, equipment, or facilities to the extent such access is necessary for the performance of Professional Services. Licensee will be responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness, competence or consistency of Licensee Materials or its personnel. To the extent that Licensee does not provide the foregoing access required for Provider to perform the Professional Services or deliver the Deliverables, Provider will be excused from performance until such items/access are provided.
    • Initial Scope of Work for Implementation and Related Services. If applicable, any initial implementation and related Professional Services will be provided pursuant to this Agreement and the Quote attached hereto as Exhibit 2.
    • Changes to Scope of Professional Services. Professional Services, as specified in a Quote, may only be amended via a mutually executed change order or amendment.
    • Acceptance of Professional Services and Deliverables. Provider will be deemed to have delivered any Professional Services or Deliverables identified in a Quote on the date on which Provider delivers the Professional Services or Deliverables that conform, in all material respects, to the specifications expressly set forth in a Quote.  Licensee shall be responsible for promptly testing and evaluating such Professional Services or Deliverables.
    • Licensee Materials. Licensee hereby grants Provider a limited right to use any Licensee Materials, solely for the purpose of performing the Professional Services for Licensee. Licensee owns and will retain ownership (including all intellectual property rights) in the Licensee Materials.
    • Deliverables. To the extent a Deliverable includes software or other copyrightable material, Provider hereby grants Licensee a worldwide, royalty-free, non-exclusive, non-transferable license to use and copy the Deliverable, but only for Licensee’s internal purposes for the enhancement of its usage of the Software, and otherwise in accordance with the description of Licensee’s use and any restrictions set forth in this Agreement and/or the applicable Quote. Provider owns and will retain ownership (including all intellectual property rights) in and to all Deliverables (excluding any Licensee Materials) and any modifications, improvements, and derivative works thereof (including any such materials to the extent incorporating any Feedback). Even if listed or identified in a Quote, neither the Software nor any component of either will be considered a Deliverable.
  2. Fees, Payment, and Delivery.
    • License Fees. Licensee shall pay Provider the sums set forth fir License Fees on each Quote as consideration for the licenses granted under the Quote and this Agreement.
    • Professional Service Fees. For Professional Services, including implementation, Licensee will pay Provider the amounts and at the times set forth on the applicable Quote, including expenses incurred. If not specified, Licensee will pay Provider for Professional Services at Provider’s then-current customary rates. Licensee agrees to reimburse Provider for travel, lodging and meal expenses incurred in the course of performing the Professional Services at any location other than Provider’s site, and any other expenses specified in the Quote.
    • Payment. All payments are non-refundable (except as expressly set forth in this Agreement) and will be made in U.S. dollars unless otherwise indicated on a Quote.   Licensee will pay the undisputed amounts of any invoice within thirty (30) days of the invoice date, unless otherwise specified in the applicable Quote. Licensee must notify Provider of any dispute over an invoice amount in writing within twenty (20) days of the invoice date or the dispute will be waived.  Licensee’s notice must inform Provider of the specific amount of and basis for the dispute. Licensee will pay undisputed invoice amounts without set-offs of any kind, and the parties agree to work in good faith to resolve any dispute within ten (10) business days from the date Provider receives notice of the dispute. Licensee shall be responsible for all taxes, withholdings, duties, and levies arising from the Quote (excluding taxes based on the net income of Provider).  Any late payments will be subject to a service charge equal to one and one half percent (1.5%) per month of the amount due or the maximum amount allowed by law, whichever is less.  Provider will be entitled to suspend any Support and Maintenance, or the performance of any Professional Services at any time following Licensee’s failure to make a payment when due.
    • Delivery.
      • Means of Delivery. All Software and Documentation will be delivered by electronic means, unless otherwise specified on the applicable Quote.
      • Electronic Delivery of Software. Provider may provide an electronic website or websites from which Licensee may download Software. In such a case, Provider will provide Licensee with applicable electronic passkeys, license keys, security devices, dongles, or other unique identifying codes (“Security Devices”) that will allow an Authorized User to download and use the Software.  Licensee acknowledges that the Security Devices are in place to protect Provider’s trade secrets and other proprietary rights in the Software.  As such, Licensee will not circumvent, tamper with, or disable the Security Devices, or otherwise attempt to obtain unlicensed access to the Software.
  1. Term of Agreement.
    • Term. This Agreement is effective as of the Effective Date and expires on the day that the term of license for all Software licensed hereunder or in a subsequent Quote has expired.
    • Termination. Either party may terminate this Agreement (including all related Quotes) if the other party: (a) fails to cure any material breach of this Agreement within forty-five (45) days after written notice of such breach, provided this right of termination will apply only to the Quote or exhibit affected if the material breach does not affect the entire Agreement; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Notwithstanding the foregoing, Provider may terminate this Agreement by providing ten (10) days’ prior written notice if Licensee fails to make a payment when due. If a Licensee breach is such that it cannot be cured, then Provider will have the right to terminate this Agreement or Quote immediately.  Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
    • Effect of Termination.
      • If this Agreement is terminated for Licensee’s failure to pay a license fee, or for violation of Section 4, 3.5, or 3.6, all licenses granted by this Agreement will terminate immediately. Licensee shall cease any and all use of any Software, Deliverables, and Documentation, destroy all copies thereof and so certify to Provider in writing.
      • Termination of this Agreement for Licensee’s failure to pay a license fee when due, Licensee’s violation of Section 4, 3.5 or 3.6, or pursuant to Section 7.2 by Provider does not affect any sums due to Provider and all fees and other charges will be payable immediately, including fees or charges that are due or would have become due for the remainder of the Term had there been no termination.
    • Survival. Sections 2 (Definitions), Section 4 (Authorized Users), Section 3.5 (License Restrictions), Section 3.6 (Unauthorized Access), Section 3.7 (License Termination), Section 4 (Ownership), Section 7 (Term of Agreement), Section 8.5 (Disclaimer), Section 11 (Limitation of Remedies and Damages), Section 14 (Confidential Information), Section 15 (General), and any accrued obligation for fees or to make a payment under Section 6 will survive any termination or expiration of this Agreement
  2. Limited Warranty and Disclaimer.
    • Limited Software Warranty. Provider warrants to Licensee that, for a period of ninety (90) days from the Effective Date (the “Warranty Period”), the Software will operate in substantial conformity with the Documentation. Provider does not warrant that Licensee’s use of the Software will be uninterrupted or error-free or that any security mechanisms implemented by the Software will not have inherent limitations. Provider’s sole liability (and Licensee’s exclusive remedy) for any breach of this warranty will be, in Provider’s sole discretion, to use commercially reasonable efforts to provide Licensee with an error-correction or work-around which corrects the reported non-conformity, to replace the non-conforming Software with conforming Software, or, if Provider determines such remedies to be impracticable within a reasonable period of time, to terminate the Agreement and refund the applicable License Fee paid for the Software. Provider will have no obligation with respect to a warranty claim unless notified of such claim within the Warranty Period. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE LIMITED WARRANTY PERIOD.
    • Exclusions. The above warranty will not apply: (a) if the Software is used with hardware or software not specified in the Documentation; (b) if any modifications are made to the Software by Licensee or any third party; (c) to defects in the Software due to accident, abuse, or use by Licensee other than as expressly set forth herein; (d) items provided on a no charge or evaluation basis; or (e) incorrect data or information provided by Licensee.
    • Additional Limited Warranty. Provider further warrants to Licensee as follows: a) Provider has all rights and authority necessary to enter into this Agreement and carry out its terms and conditions; (b) Provider will perform any Professional Services and deliver any Deliverables in a professional and workmanlike manner; (c) Provider shall comply with all applicable governmental laws, ordinances, codes, rules, regulations, and orders in its performance under this Agreement; and (d) to Provider’s knowledge, the Software does not contain any data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism that is designed to cause Licensee’s computers, systems or software to cease functioning, or to disrupt, disable, harm or otherwise impair them in any manner. The above warranty will not apply to any modifications made to the Software by Licensee or any Third Party not acting at Provider’s direction.
    • Remedy for Failure of Warranty Regarding Professional Services or Deliverables. Provider will, at its sole discretion and as its sole liability and obligation to Licensee for failure to provide Professional Services or Deliverables meeting this warranty: (a) re-perform the non-conforming Professional Services or re-deliver the non-conforming Deliverables at no additional cost to Licensee, if notified of the non-conformity within fourteen (14) days of delivery of the applicable Professional Service or Deliverable; or (b) terminate the applicable Quote and refund the portion of fees attributable to such non-conforming Professional Services or Deliverables.
    • Disclaimer. THIS SECTION 8 IS A LIMITED WARRANTY AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THE SOFTWARE AND ALL PROFESSIONAL SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PROVIDER NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. LICENSEE’S USE OF THE SOFTWARE MAY BE DEPENDENT ON COMPUTER SYSTEMS, WIRELESS NETWORKS, TELECOMMUNICATIONS NETWORKS AND THE INTERNET, ALL OF WHICH INVOLVE FACILITIES OWNED AND OPERATED BY THIRD PARTIES. PROVIDER IS NOT RESPONSIBLE FOR THE OPERATION, AVAILABILITY, OR FAILURE OF ANY THIRD-PARTY SYSTEMS OR FACILITIES, INCLUDING WITHOUT LIMITATION THOSE REQUIRED TO USE THE SOFTWARE.
  3. Licensee Warranties.

Licensee warrants to Provider as follows: (a) Licensee has all rights and authority necessary to enter into this Agreement and carry out its terms and conditions; (b) Licensee is the owner or licensee of all Licensee Materials with the right to grant Provider with the licenses thereto set out in this Agreement; (c) Licensee Materials do not infringe upon any copyright, patent, or trademark, or any other intellectual property or proprietary rights of any Third Party; and (d) Licensee will comply with all license requirements and restrictions under this Agreement, and with all applicable laws, rules, and regulations.

  1. Support & Maintenance.

Included with the License Fee set forth in the applicable Quote, Provider shall provide Support and Maintenance services, as specified herein.  Support shall be provided during the applicable license term, as set forth in Exhibit 3 hereto. During the applicable license term, Provider will provide Licensee with all Maintenance Releases that Licensor may, in its sole discretion, make generally available to its licensees at no additional charge.   All Maintenance Releases provided by Licensor to Licensee are deemed to be Software.   Licensee will install all Maintenance Releases as soon as practicable after receipt.

  1. Limitation of Remedies and Damages.
    • EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN OR EITHER PARTY’S BREACH OF ITS OBLIGATIONS WITH RESPECT TO CONFIDENTIALITY PURSUANT TO SECTION 14 (IN EITHER EVENT, TO THE EXTENT DIRECT DAMAGES ARE CHARACTERIZED BY A COURT AS INDIRECT DAMAGES), NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
    • NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN OR ITS BREACH OF ITS OBLIGATIONS WITH RESPECT TO CONFIDENTIALITY PURSUANT TO SECTION 15 (IN EITHER EVENT, TO THE EXTENT DIRECT DAMAGES ARE CHARACTERIZED BY A COURT AS INDIRECT DAMAGES), AND AS SET FORTH IN SECTION 11.3, PROVIDER’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO LICENSEE WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE TO PROVIDER IN THE PRIOR 12 MONTHS PURSUANT TO THIS AGREEMENT.
    • THE PRECEDING LIMITATIONS OF LIABILITY DO NOT APPLY TO LIABILITIES THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS. IN ADDITION, SECTIONS 11.1 AND 11.2 WILL NOT APPLY TO ANY CLAIM ARISING UNDER SECTION 3 (LICENSE).
    • The parties agree that the limitations specified in this Section 11 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
  2. Provider Indemnification. Provider shall defend and indemnify Licensee from and against any claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark or other U.S. intellectual property right asserted against Licensee by a third party based upon Licensee’s use of the Software in accordance with the terms of this Agreement, provided that Provider shall have received from Licensee: (a) prompt notice of such claim (but in any event notice in sufficient time for Provider to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (c) all reasonable necessary cooperation of Licensee. If Licensee’s use of any of the Software, or any aspect thereof, is, or in Provider’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Provider may, in its sole discretion: (i) substitute for the Software substantially functionally similar programs and documentation; (ii) procure for Licensee the right to continue using the Software; or if (i) and (ii) are commercially impracticable, (iii) terminate the Agreement and refund to Licensee the license fee paid by Licensee as reduced to reflect a five year straight-line depreciation from the applicable license purchase date. The foregoing indemnification obligation of Provider will not apply (and in no event will Provider have any liability): (A) if the Software is modified by any party other than Provider; (B) to the extent the Software is combined with other non-Provider products; (C) to any unauthorized use of the Software; (D) to any unsupported release of the Software; (E) to any third-party code contained within the Software, or (F) any modifications to the Software made to comply with Licensee’s specifications. THIS SECTION 12 SETS FORTH PROVIDER’S AND ITS SUPPLIERS’ SOLE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
  3. Licensee Upon Provider’s request, Licensee agrees to indemnify and defend Provider and its Affiliates from and against any and all claims, lawsuits, demands, actions or other proceedings brought against it by any Third Party due to, arising out of or related to: (a) Licensee’s or its Authorized Users’ use of the Software; or (b) Licensee’s or its Authorized Users’ violation of any law, regulation or third party rights provided that Licensee will have received from Provider: (i) prompt notice of such claim (but in any event notice in sufficient time for Licensee to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim, so long as such settlement does not involve any admission of liability or payment by Provider without Provider’s written consent; and (iii) all reasonable necessary cooperation of Provider.  Licensee shall pay any and all costs, damages and expenses, including, without limitation, reasonable attorneys’ fees and costs awarded against or otherwise incurred by Provider in connection with or arising from any such claim, lawsuit, action, demand or other proceeding.

 

  1. Confidential Information.

Except as expressly authorized in this Agreement, any party receiving Confidential Information of the other will hold that Confidential Information in confidence and not disclose any Confidential Information.  A receiving party may only use Confidential Information to use the Software, provide Professional Services, or otherwise perform an obligation or exercise a right under this Agreement.  The receiving party’s nondisclosure obligation will not apply to information which that party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of its own; (c) is rightfully obtained by the receiving party from a Third Party without breach of any confidentiality obligation; (d) is independently developed by employees of the receiving party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the disclosing party).  The party receiving Confidential Information acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

    • Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party will assign this Agreement (or any part thereof) without the advance written consent of the other party, except that Provider may assign this Agreement in connection with a merger, acquisition, or similar corporate restructuring. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 15.1 will be null and void.
    • Severability. If any court of competent jurisdiction adjudges any provision of this Agreement to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
    • Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of California 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. Jurisdiction and venue for actions related to the subject matter hereof are the state courts of the State of California located in Sunnyvale or the United States federal courts located in the Northern District of California, and both parties hereby submit to the exclusive personal jurisdiction of such courts.
    • Notices and Reports. Any notice which may be or is required to be given under this Agreement will be in writing, and will be deemed to have been received: (a) when delivered personally; (b) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (c) one (1) day after having been sent by a commercial overnight carrier with written verification of receipt.  Either party may change its notice address by written notice to the other.

All notices related to or arising under this Agreement will be addressed to Licensee at the address set forth above and to Provider as follows (or as subsequently noticed by that party): Bacon Unlimited Inc, Attn:  Legal Department – Important Legal Notice, 578 Washington Blvd,. #910, Marina del Rey, CA 90292.

  • Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
  • Entire Agreement. This Agreement 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 of this Agreement. No provision of any pre-printed order form, purchase order, or other business form employed by Licensee will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
  • Precedence. The terms of this Agreement, including its Exhibits and any Quotes, will exclusively govern the purchase, installation and use of Software and Professional Services by Licensee. Any terms and conditions on either party’s purchase orders, confirmations or other pre-printed forms are of no force or effect and are superseded by the terms of this Agreement. The terms of this Agreement will control in the case of any conflict between the terms of this Agreement and the terms of any Quote or other Exhibit.  Notwithstanding the foregoing, a Quote may modify the terms of this Agreement if: (a) the Quote expressly identifies the term to be modified; (b) the Quote expressly states the parties’ intent to modify the term; and (c) the Quote is signed by both parties.  Any such modification will apply only to the specific Quote in which it is made.
  • Official Language. The official language of this Agreement and of any related documents is English.
  • Audit Rights. Upon Provider’s written request, Licensee shall certify in a signed writing that Licensee’s use of the Software is in full compliance with the terms of this Agreement (including any copy and user limitations). With at least three (3) days prior written notice to Licensee, Provider may gain access to Licensee’s premises for the limited purpose of conducting an inspection to determine and verify compliance with the terms of this Agreement, including but not limited to usage of the Software within the required usage restrictions. Provider will conduct such inspection during normal business hours and such inspection will be restricted in scope, manner, and duration to that reasonably necessary to achieve its purpose and not disrupt Licensee’s operations.
  • Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
  • Force Majeure. Neither party will 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 events which are beyond the reasonable control of such party, including but not limited to: any strike, blockade, pandemic/epidemic, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.
  • S. Government End-Users. The Software is commercial computer software. If the user or Licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense.   All other use is prohibited.
  • Export Compliance. Licensee acknowledges that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Licensee shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority.
  • Third-Party Code. The Software may contain or be provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software”).   Any applicable Open Source Software is identified in the user interface of the Software.  To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification, or reverse engineering.
  • Use of Licensee Logo.  Client agrees that Provider may use their logo and name to identify them as a customer in marketing materials, on the website, and in presentations.  If Client prefers not to be included, they can notify Provider in writing at any time.   

EXHIBIT 3

SUPPORT

Bacon Unlimited® Support – How to Request Help (Support Ticket)

  • Bacon support is available from 8 a.m. to 5 p.m. Central, Monday to Friday
  • Response times are within 24 hours, on business days

Via Email:

  • Send an email describing your issues to: techsupport@baconunlimited.com
  • You’ll receive an email back acknowledging your request from Bacon Feature & Bug Submissions (jira@baconunlimited.atlassian.net). Sometimes, the Bacon Support Engineers may request a Zoom meeting, screenshots, or further elaboration from you
  • Reply directly to this email referencing the Ticket ID provided
  • All communication from Bacon will be attached to this ticket and email
  • Once our Bacon Engineers fix the issue to your satisfaction, then the ticket is closed

From Bacon:

  • Log in to Bacon Unlimited on your computer; select Help from the left menu, then Support from the top menu
  • Fill out the Support Request with as many details as possible, including an email address where you can be reached, and press Submit
  • You’ll receive an email acknowledging your request from Bacon Feature & Bug Submissions (jira@baconunlimited.atlassian.net); sometimes, the Bacon Support Engineers may request a Zoom meeting, screenshots or further elaboration from you
  • Reply directly to this email referencing the Ticket ID provided
  • All communication from Bacon will be attached to this ticket and email
  • Once our Bacon Engineers fix the issue to your satisfaction, then the ticket is closed

Bacon Support Portal:

  • Log in to Bacon Unlimited on your computer; select Help from the left menu, then Support from the top menu
  • Click on Bacon Support Portal and fill out the Support Request with as many details as possible, including an email address where you can be reached, and press Submit
  • You’ll receive an email acknowledging your request from Bacon Feature & Bug Submissions (jira@baconunlimited.atlassian.net); sometimes, the Bacon Support Engineers may request a Zoom meeting, screenshots or further elaboration from you
  • Reply directly to this email referencing the Ticket ID provided, or as a new comment in the support portal where you can add files as necessary.
  • All communication from Bacon will be attached to this ticket and email and will also be available in the support portal comment thread for your
  • Once our Bacon Engineers fix the issue to your satisfaction, then the ticket is closed

Resources

Bacon Bits:

  • Subscribe to our YouTube channel: Bacon Unlimited – Superior Endpoint Management
  • Use Bacon Bits to watch short tutorial videos that provide usage tips to Bacon
  • Examples include how to Create Dynamic Group, MDM Management, Tag Management, Retrying a Failed Job, and how to Change Password, among others
  • You’ll also find webinars under Playlists

Discord:

  • The Discord social network is a great place to share Bacon experiences and tips with our Bacon Engineers and the community of Bacon users
  • This is also where you’ll get Bacon news, Salt states announcements, read about bugs, features, Bacon requirements and deployments, among other things
  • Go to com or use the Discord app
  • You must be invited to join the community (all accounts must be Discord verified), so use this link: https://discord.gg/WYHcvq9
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