Software License Agreement
THIS SOFTWARE LICENSE AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR LICENSING AND ONGOING USE OF SOFTWARE PROVIDED BY US.
BY ACCEPTING THIS LICENSE AGREEMENT, WHETHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE DURING THE INSTALLATION PROCESS, BY EXECUTING A SEPARATE AGREEMENT OR ORDER FORM THAT REFERENCES THIS LICENSE AGREEMENT, OR BY DOWNLOADING, INSTALLING OR USING (OR CONTINUING TO DOWNLOAD, INSTALL OR USE) THE SOFTWARE, YOU AGREE THAT THIS AGREEMENT SHALL APPLY TO YOUR USE OF THE SOFTWARE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE.
This Agreement is effective between You and Us as of the date of You accepting this Agreement.
“Authorizing Document” means an order form, agreement or other written document that We have executed with You or a Reseller which sets forth additional terms and conditions applicable to Software Subscriptions.
“End User” means a person or entity that has acquired a Subscription from Us or a Reseller.
“License Term” means the time period during which an End User is authorized to use the Software, as set forth in an Authorizing Document.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Reseller” means a person or entity that has been authorized by Us or by another Reseller authorized by Us, pursuant to a written agreement, to provide Subscriptions to End Users.
“Software” means the Touchpeak software, including all updates and enhancements thereto and all associated documentation, that We make available subject to this Agreement, whether the Software is installed on Your computer equipment or provided on a remote access basis over the Internet.
“Subscription” means a subscription to Software for authorized business purposes during the License Term, subject to the terms of this Agreement and the Subscription Terms.
“Subscription Terms” shall mean the terms, in addition to those set forth in this Agreement, applicable to possession and use of the Software, as set forth in an Authorizing Document.
“Third-Party Applications” means products or services furnished by parties other than Us, including without limitation products or services provided by Resellers.
“We,” “Us” or “Our” means Touchpeak Software, Inc., a Delaware corporation.
“You” or “Your” means the person, company or other legal entity for which You are accepting this Agreement.
2.1. Use of Software – End Users
If You are an End User, We hereby grant to You, subject to the terms and conditions of this Agreement and the Subscription Terms (and expressly conditioned upon payment in full of all applicable fees therefor, if any, specified in any applicable Authorizing Document), a non-exclusive, non-transferable, non-sublicensable, limited term license, during the License Term, to use the Software, in machine readable form only, for authorized business purposes. For purposes of this Agreement, “authorized business purposes” shall mean Your exercise of the license granted by this Agreement in support of Your business to process the exchange of electronic data. For the avoidance of doubt, except as permitted above as part of Your authorized business purposes, You shall have no right to sell, lease, rent, distribute, publicly display or otherwise exploit the Software unless otherwise specifically authorized by Us in writing. Notwithstanding any provision to the contrary in this Agreement, the Software is licensed, not sold, to You as provided above.
2.2. Use of Software –Resellers
If You are a Reseller, We hereby grant to You, subject to the terms and conditions of this Agreement (and expressly conditioned upon payment in full of all applicable fees therefor, if any, specified in any applicable Authorizing Document), a non-exclusive, non-transferable, non-sublicensable, limited term license to install the Software, in machine readable form only, for authorized distribution purposes. For purposes of this Agreement, “authorized distribution purposes” shall mean Your exercise of the license granted by this Agreement in support of the delivery of the Software, directly or indirectly, to End Users. For the avoidance of doubt, except as permitted above as part of Your authorized distribution purposes, as a Reseller You shall have no right to use or otherwise exploit the Software unless otherwise specifically authorized by Us in writing. Notwithstanding any provision to the contrary in this Agreement, the Software is licensed, not sold, to You as provided above.
PROTECTION OF SOFTWARE
3.1. Your Responsibilities
You shall (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and notify Us promptly of any such unauthorized access or use, and (ii) use the Software only in accordance with applicable laws and government regulations. You shall not (a) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (b) use the Software to store or transmit Malicious Code, (c) interfere with or disrupt the integrity or performance of the Software or data contained therein, or (d) attempt to gain unauthorized access to the Software or their related systems or networks.
4.1. Acquisition of Third-Party Applications
We or Our Reseller may offer Third-Party Applications for sale under Order Forms or recommend Third-Party Applications for use with the Software. Any acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. Notwithstanding any provision herein to the contrary, We do not warrant or support Third-Party Applications, whether or not they are designated by Us as “certified” or otherwise.
FEES AND PAYMENT TERMS
You shall pay all fees specified in any Authorizing Document to which You are party, in accordance with the payment terms specified in such Authorizing Document. Except as otherwise specified herein or in an Authorizing Document, payment obligations are non-cancelable and fees paid are non-refundable.
6.1. Reservation of Rights
Subject to the limited rights expressly granted hereunder, We reserve all right, title and interest in and to the Software, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
You shall not (i) permit any third party to access the Software except as expressly permitted herein, (ii) create derivative works based on the Software, (iii) copy, frame or mirror any part or content of the Software, (iv) modify, decompile, disassemble, reverse engineer or otherwise attempt to derive the source code of the Software, or (v) access the Software in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Software.
We shall have, and You hereby grant to Us, a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, make, reproduce, copy, sell, lease, rent, distribute, publicly display or perform, make derivative works of, incorporate into the Software, or otherwise exploit any suggestions, enhancement requests, recommendations or other feedback provided by You relating to the operation of the Software, including features, functionality and user interface.
6.4. Federal Government End Use Provisions
We provide the Software, and all related technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Software include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
DISCLAIMER OF WARRANTIES
THE SOFTWARE IS PROVIDED “AS IS” AND WITH ALL FAULTS AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OF THIRD PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND TITLE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT, AND MAKE NO ASSURANCES, THAT THE OPERATION OF THE SOFTWARE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, AND HEREBY DISCLAIMS ALL LIABILITY ON ACCOUNT THEREOF. WE DO NOT REPRESENT OR WARRANT THAT ALL PROGRAM ERRORS IN THE SOFTWARE CAN BE REMEDIED.
LIMITATION OF LIABILITY
8.1. Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF US AND OUR RESELLERS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED $100. WE SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATED TO THE SOFTWARE.
8.2. Exclusion of Consequential and Related Damages
IN NO EVENT SHALL WE OR OUR RESELLERS HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, GOODWILL OR SAVINGS, DOWNTIME, OR DAMAGE TO, LOSS OF OR REPLACEMENT OF SOFTWARE AND DATA) HOWEVER CAUSED, WHETHER IN WARRANTY, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT WE OR OUR RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 Limitation on Claims
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THIS AGREEMENT MAY BE BROUGHT BY YOU AGAINST US MORE THAN ONE (1) YEAR AFTER THE FIRST DAY THAT THE EVENT, ACT OR OMISSION GIVING RISE TO THE CAUSE OF ACTION HAS OCCURRED.
8.4. Fundamental Nature of Limitations
THE LIMITATIONS CONTAINED IN SECTION 7 ABOVE AND IN THIS SECTION 8 ARE A FUNDAMENTAL PART OF THE BASIS OF OUR BARGAIN HEREUNDER, AND WE WOULD NOT LICENSE THE SOFTWARE TO YOU ABSENT SUCH LIMITATIONS.
TERM AND TERMINATION
9.1. Term of Agreement
This Agreement commences on the date You accept or execute it and continues for as long as You have access to or use of the Software.
9.2. Term of Subscriptions
Subscriptions shall commence on the Subscription start date specified in the applicable Authorizing Document and continue for the License Term specified therein.
We may terminate this Agreement (i) in the event You materially breach any of Your obligations herein or in any Authorizing Document or (ii) a Reseller through which You acquired Your Subscription, directly or indirectly, materially breaches its Authorizing Agreement with Us. You may terminate this Agreement at any time by providing written notice to the party from which you acquired your Subscription. Upon any termination, your license rights shall terminate and you shall immediately destroy all copies of the Software in your possession. In no event shall any termination relieve You of the obligation to pay any accrued fees payable to Us or any Reseller.
9.4. Surviving Provisions
Section 6 (Proprietary Rights), 7 (Disclaimer of Warranties), 8 (Limitation of Liability), 9.3 (Termination), and 11 (General Provisions) shall survive any termination or expiration of this Agreement.
Any notices to Us should be directed to our principal office, as set forth on our website, www.touchpeak.com. We will direct notices to You using the current contact information We have on file for You.
10.2. Manner of Giving Notice
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the fifth (5th) business day after mailing by certified or registered mail, postage and charges prepaid, return receipt requested, (iii) two (2) business days after being sent by overnight delivery providing receipt of delivery, or (iv) the first business day after sending by confirmed facsimile.
13.1. Export Compliance
You shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Software. Without limiting the foregoing, (i) You represent that You are not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit users of the Software to access or use the Software in violation of any U.S. export embargo, prohibition or restriction.
11.2. Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.3. Waiver and Cumulative Remedies
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.5. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Georgia. Any legal suit, action or proceeding arising out of or related to this Agreement or the Software shall be instituted exclusively in the federal courts of the United States or the courts of the State of Georgia in each case located in the city of Atlanta and County of Fulton, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent. We may assign any of Our rights or obligations hereunder at Our sole discretion. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7. Entire Agreement
This Agreement and the applicable Authorizing Documents (and related agreements referenced therein) relating to the Software provided or to be provided by Us, constitute the entire agreement between the parties relating to such Software and supersede all prior and contemporaneous agreements, proposals, price sheets or representations, written or oral, concerning their subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Authorizing Documents) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.