AGREEMENT made by and between: InnerApps, LLC.(“Licensor”), an Ohio Corporation at 28350 Kensington Lane Suite 200 Perrysburg Ohio, 43551 and (the “Licensee”) ________________ and to-gether referred to as (the “Parties”).
In accordance with the terms herein, Licensor grants to Licensee and its parent company, subsidiaries and Licen-see accepts from Licensor, a non-exclusive license to: (1) use the current version of the object code of Licensor’s software and documentation (the “Software”) as identi-fied in Schedule A.
Licensee may use the Software on any servers owned or controlled by them, or on any servers owned or con-trolled by their customers for use in conjunction with other Licensee service offerings. Licensee is restricted to using the Software only in conjunction with their cus-tomers purchasing the products and services of InnerApps and the Licensee.
Licensee may not independently sell, market, install, or use the Software as a stand-alone product, or market the product in any way that would directly compete with InnerApps’ Identity Syncronizer offering. Licensee may elect to enter into a Channel Partner Agreement which may separately grant these marketing and distribution rights which are not expressly granted herein. Licensee, except with respect to the Run-time as stated herein, may not allow any third parties to have access to or use of the Software except on their behalf. Licensee shall not allow unlicensed parties or End-user Customers, access to the Software through a local or wide area network. Licensee shall not transmit, communicate, broadcast or otherwise disseminate the Software, except as provided herein.
The license granted herein includes the right to copy the Software in non-printed, machine-readable form in whole or in part as necessary for Licensee’s own business use and pursuant to Paragraph 1. In order to protect Li-censor’s trade secret and copyrights in the Software, Licensee agrees to reproduce, maintain, and incorporate Licensor’s trade secret or copyright notice in any such copies.
3. Price and Payment
Licensee shall make payment to Licensor for the Soft-ware license pursuant to the fees and payment terms set forth in Schedule A.
4. Software Ownership
Licensor represents that it is the owner of the Software and all portions thereof and that it has the right to mod-ify same and to grant Licensee a license for its use.
5. Intent to Cooperate
Both Licensor and Licensee acknowledge that successful implementation of the Software pursuant to this License Agreement shall require their full and mutual good faith cooperation, and Licensee acknowledges that it shall timely fulfill its responsibilities, including but not limited to those set forth below.
6. Title to Software Systems and Confidentiality
The Software and all programs developed hereunder and all copies thereof are proprietary to Licensor and ti-tle thereto remains in Licensor. All applicable rights to patents, copyrights, trademarks and trade secrets in the Software or any modifications made at Licensee’s re-quest are and shall remain in Licensor.
Except as otherwise stated herein, Licensee shall not sell, transfer, publish, disclose, display or otherwise make available the Software or copies thereof to others except as defined in the Channel Partner Agreement.
Licensee agrees to secure and protect each module, soft-ware product, documentation and copies thereof in a manner consistent with the maintenance of Licensor’s rights therein and to take appropriate action by instruc-tion or agreement with its employees or consultants who are permitted access to each program or software product to satisfy its obligations hereunder. Except as stated herein, all copies made by the Licensee of the Software and other programs developed hereunder, in-cluding translations, compilations, partial copies with modifications and updated works, are the property of Li-censor. Violation of any provision of this paragraph shall be the basis for immediate termination of this License Agreement.
7. Use and Training
Licensee shall limit the use of the Software to its employ-ees who have been appropriately trained. Licensor shall make training for the Software available to Licensee pur-suant to its standard training procedures and fees. Training shall be provided at a location to be mutually agreed to by both Parties.
(a) Licensor warrants that Software will conform, as to all substantial operational features, to Licensor’s current published specifications when installed and will be free of defects, which substantially affect system perfor-mance
(b) The Licensee must notify Licensor in writing, within ninety (90) days of delivery of the Software to the Licen-see (not including delivery of any subsequent modifications to the Software), of its claim of any such defect. If the Software is found defective by Licensor, Li-censor’s sole obligation under this warranty is to remedy such defect in a manner consistent with Licensor’s regu-lar business practices
(c) THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY LICENSOR. LICENSOR MAKES AND LICENSEE RECEIVES NO WARRANTY EXPRESS OR IMPLIED AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF LICENSOR FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF THE SOFTWARE SYSTEMS.
(d) If any modifications are made to the Software by Li-censee during the warranty period, this warranty shall immediately be terminated. Correction for difficulties or defects traceable to Licensee’s errors or systems changes shall be billed at Licensor’s standard time and material charges. (e) Licensee agrees that Licensor’s lia-bility arising out of contract, negligence, strict liability in tort or warranty shall not exceed any amounts payable by Licensee for the Software identified above.
Licensor at its own expense will defend any action brought against Licensee to the extent that it is based on a claim that any software system used within the scope of this License Agreement infringes any patents, copy-rights, license or other property right, provided that Licensor is immediately notified in writing of such claim. Licensor shall have the right to control the defense of all such claims, lawsuits and other proceedings. Licensee shall notify Licensor within ten (10) days of first becom-ing aware of any claim and upon receipt of notice Licensor shall assume full responsibility for the defense of the claim. In no event shall Licensee settle any such claim, lawsuit or proceeding without Licensor’s prior written approval.
If, as a result of any claim of infringement against any patent, copyright, license or other property right, Licen-see is enjoined from using the Software, or if Licensor believes that the Software is likely to become the subject of a claim of infringement, Licensor at its option and ex-pense may procure the right for Licensee to continue to use the Software, or replace or modify the Software so as to make it non-infringing. The foregoing states the en-tire liability of Licensor with respect to infringement of any copyrights, patents or other proprietary right in the Software or any parts thereof.
10. Term and Termination
Once signed by duly authorized representatives of each Party, this Agreement shall commence on the Effective Date and shall continue in for 12 months, unless termi-nated earlier pursuant to the terms herein. Thereafter, the Agreement shall automatically renew for one (1) year Terms unless a Party provides the other Party in writing of its intent not to renew thirty (30) days prior to the expiration of the then current term. Licensor shall have the right to terminate this agreement and licenses granted herein (but not any sublicenses extended to end-users of Licensee’s products):
(a) upon ten days’ written notice in the event that Licen-see, its officers or employees violates any provision of this License Agreement including, but not limited to, confidentiality and payment; (b) in the event Licensee (i) Terminates or suspends its business; (ii) becomes sub-ject to any bankruptcy or insolvency proceeding under Federal or state statute or (iii) becomes insolvent or be-comes subject to direct control by a trustee, receiver or similar authority.
In the event of termination by reason of the Licensee’s failure to comply with any part of this agreement, or upon any act which shall give rise to Licensor’s right to terminate, Licensor shall have the right, at any time, to terminate the license(s) and take immediate possession of the Software and documentation and all copies wher-ever located, without demand or notice. Within five (5) days after termination of the license(s), Licensee will re-turn to Licensor the Software in the form provided by Licensor or as modified by the Licensee or upon request by Licensor destroy the Software and all copies, and cer-tify in writing that they have been destroyed. Termination under this paragraph shall not relieve Licen-see of its obligations regarding confidentiality of the Software.
Without limiting any of the above provisions, in the event of termination as a result of the Licensee’s failure to comply with any of its obligations under this License Agreement, the Licensee shall continue to be obligated for any payments due. Termination of the license(s) shall be in addition to and not in lieu of any equitable reme-dies available to
11. Licensor. Limitation of Liability.
EXCEPT FOR LICENSEE’S BREACH OF ITS OBLIGATIONS REGARDING SUBLICENSING/LICENSING OR IDENTITY SYNCRONIZER’S PROPRIETARY OR CONFIDENTIALITY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN RELATION TO THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, TORT, OR OTHER LEGAL THEORY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In any case, InnerApps’s entire liability under any provision of this Agreement shall be limited to amount received by InnerApps during the twelve (12) month period prior to the date the cause of action arose.
Taxes Customer shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, federal, state, provincial or otherwise, however designated which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding taxes on Licensee’s income. Customer shall promptly pay to Licensee an amount equal to any such items actu-ally paid and required by law to be paid, or required to be collected by Licensee.
13. Hardware Requirements
Licensee agrees that it will ensure that all minimum op-erating requirements of the software will be met in its installation regardless of its installation location.
Licensor shall undertake all custom modifications to the Software requested by licensee at its then cur-rent time and materials charges. For each custom modification re-quested, Licensee shall provide written specifications to Licensor, which shall be mutually agreed upon prior to commencement of such custom modification effort
(a) Each party acknowledges that it has read this Agree-ment, understands it, and agrees to be bound by its terms, and further agrees that this is the complete and exclusive statement of the Agreement between the par-ties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and writ-ten, between the parties relating to this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties.
(b) Dates or times by which Licensor is required to make performance under this license shall be postponed auto-matically to the extent that Licensor is prevented from meeting them by causes beyond its reasonable control.
(c) This Agreement and performance hereunder shall be governed by the laws of the State of Ohio.
(d) No action, regardless of form, arising out of this Agreement may be brought by Licensee more than two years after the cause of action has arisen.
(e) If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted.
(f) The Licensee may not assign without the prior written consent of Licensor, its rights, duties or obligations un-der this Agreement to any person or entity, in whole or in part.
(g) Licensor shall have the right to collect from Licensee its reasonable expenses incurred in enforcing this agree-ment including attorney’s fees.
(h) The waiver or failure of Licensor to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
(i) Any notice shall be provided to the addresses indi-cated above.
16. Price & Product Terms
See Schedule A