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License Agreement
Software License and Services Agreement Promptlink Communications, Inc. THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (this "Agreement") states the terms and conditions on which Promptlink Communications, Inc. ("Promptlink") will agree to license software product(s) and provide maintenance services identified on the attached Software License and Maintenance Order Form (the "Order Form"), to the customer identified on the attached Order Form ("Customer"), effective as of the Effective Date identified on the attached Order Form. By executing an Order Form (which shall be executed by a duly authorized representative of Customer), Customer agrees to become bound by the terms and conditions of this Agreement as a legally binding agreement between Customer and Promptlink. 1. DEFINITIONS. (a) "Customer Proprietary Information" means any and all of Customer's proprietary technology, including Customer's Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), know-how, trade secrets and all other related intellectual property rights throughout the world (whether owned by Customer or licensed to Customer from a third party) and also including any derivatives, improvements, enhancements or extensions of Customer Proprietary Information conceived, reduced to practice, or developed during the term of this Agreement by Customer. (b) "Documentation" means any and all written user manuals, functional specifications, flow diagrams and file descriptions accompanying the Software. (c) "Evaluation Period" means, if designated on the Order Form, the thirty (30) day evaluation period to test and evaluate the Software. (d) "Fees" means the license price and maintenance price for the Software and the Maintenance Services identified on the Order Form plus all reasonable out-of-pocket expenses (e.g., travel and related expenses) incurred by Promptlink in performing the Maintenance Services. (e) "Maintenance Services" shall mean: (i) e-mail support for all technical issues relating to the use of the Software; (ii) remote responses by e-mail within one (1) business day of receipt of all written requests for technical support from Customer; (iii) all revisions, updates and patches to the Software (which shall not include new versions of the Software as new versions must be licensed separately); and (iv) additional maintenance services as identified on the Order Form. (f) "Modifications" means any and all customization, derivatives, improvements, enhancements or extensions of the Software conceived, reduced to practice, or developed during the term of this Agreement by Promptlink and delivered to Customer, irrespective of whether requested by Customer, pursuant to the Order Form. (g) "Promptlink Technology" means any and all of Promptlink's proprietary technology, and shall include, without limitation, the Software, the Maintenance Services, software tools, hardware designs, algorithms, user interface designs, architecture, class libraries, objects and Documentation (both printed and electronic), network designs, know-how, trade secrets and any and all other related intellectual property rights throughout the world (whether owned by Promptlink or licensed to Promptlink from a third party) and also including customizations, derivatives, improvements, enhancements or extensions of the Promptlink Technology made during the term of this Agreement, irrespective of whether requested by Customer. (h) "Software" the software products(s) identified on the Order Form including all features and any copies thereof in whole or in part, and only the following: machine-readable runtime instructions and object code, whether or not in printed form, and not in the form of source code; and all Documentation and Modifications. (i) "Third Party Software" means any and all software products not included in the Software or developed by Promptlink, but which is manufactured by a third party and provided by or licensed to Promptlink and delivered to Customer subject to all terms and conditions contained in the license agreement accompanying the Third Party Software. 2. LICENSE GRANT AND RESTRICTIONS. 2.1. License Grant to Customer. (a) Evaluation Period, if applicable. Subject to the terms and conditions of this Agreement, if the Order Form specifies the Evaluation Period is applicable, Promptlink hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license to use the Software for the Evaluation Period only for Customer's internal business use to test and evaluate the Software (the "Evaluation License"). Customer acknowledges and agrees that if the Evaluation Period is extended, in Promptlink's sole and absolute discretion, beyond the thirty (30) days, fees will be assessed to cover Promptlink's administrative costs. If Customer decides to return the Software, Customer will contact Promptlink prior to the end of the Evaluation Period and Promptlink shall issue Customer a Return Material Authorization number ("RMA"). Customer shall return the Software, at its sole cost and expense, within ten (10) days of receipt of the RMA. If Customer does not return the Software within such ten (10) day period, Customer acknowledges and agrees that it will be charged fees based upon the fair market value of the Software. If Customer decides to retain the Software, the use of the Software shall be governed by all terms and conditions of this Agreement and shall continue for the term of this Agreement. (b) License Grant. Subject to the terms and conditions of this Agreement, Promptlink hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license to use the Software for the term of this Agreement only to: (i) install and use a copy of the Software on, transmit it through, and display it on, the quantity of computer servers identified on the Order Form (the "Primary Servers"); (ii) install and use a copy of the Software on, transmit it through, and display it on, a single back-up computer server only in the event the Primary Server in inoperable, in Promptlink's sole and absolute discretion; and (iii) make a single copy of the Software in a machine-readable form and only for archival purposes or to comply with disaster-recovery procedures, provided, that, each copy is an exact reproduction, and is affixed with all notices of copyright, ownership an proprietary legends as appears on the original copy of the Software. 2.2 License Grant to Promptlink. Customer agrees that if, in the course of performing the Maintenance Services, it is necessary for Promptlink to access and use Customer Proprietary Information, Customer hereby grants to Promptlink a non-exclusive, nontransferable, non-sublicensable, revocable, royalty-free, fully paid-up, limited right and license to use the Customer Proprietary Information for so long as performing the Maintenance Services only for the purposes of delivering the Maintenance Services and Promptlink shall have no right to use the Customer Proprietary Information for any other purpose whatsoever. 2.3. License Limitations on Customer. Customer acknowledges that the Software and its structure, organization and source code constitute valuable Confidential Information of Promptlink. Accordingly, Customer agrees not to, directly or indirectly: (a) sublicense, loan, rent, lease, assign, distribute, sell, resell, or otherwise transfer the Software to any third party; (b) copy or otherwise distribute the Software to any third party; (c) reverse engineer, decompile, disassemble, translate, or otherwise attempt to derive the source code or underlying ideas or algorithms of the Software; (d) prepare or create derivative works based on the Software; or (e) otherwise use or copy the Software. 2.4. Ownership. Customer acknowledges and agrees that Promptlink owns all right, title and interest in and to the Software (and the other Promptlink Technology), and all rights in any Software not granted in Section 2.1 hereof, are expressly reserved to Promptlink and no additional licenses granted or implied hereunder. Customer further acknowledges and agrees that Customer has paid no consideration for the use of Promptlink's trademarks, trade names, logos or designations (the "Marks"), and nothing in this Agreement is intended to transfer any right, title or interest in or to any of the Marks by implication. Customer acknowledges that Promptlink owns and retains all Marks, and agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Promptlink Technology or any Mark belonging to Promptlink. 3. PAYMENT AND TERMS. 3.1. Payment Terms. During the initial term of this Agreement, and during any renewal term, Customer agrees to pay Promptlink the Fees. Promptlink reserves the right to change the Fees and institute new fees to be effective for any successive term of this Agreement by delivering notice to Customer prior to the end of the then applicable term. Such new fees, once effective, shall be "Fees" for the purposes of this Agreement. The Fees are due upon Customer's receipt of Promptlink's invoice date. All payments will be made in United States dollars. 3.2. Late Payments. Any payment not received within thirty (30) days of the invoice date will accrue interest at a rate of one and one-half percent (1,5 %) per month, or the highest rate allowed by applicable law, whichever is lower, plus all expenses of collection, from the date when such payment was due until payment in full, with interest and collection expenses, is made. This Agreement may be terminated or suspended, or the Customer's Proprietary Information may be archived or purged from the system if Customer's account is delinquent for more than thirty (30) days of the invoice date. If Customer believes that it has been billed incorrectly, Customer must contact Promptlink no later than thirty (30) days after the invoice date in which the alleged error or problem appeared. 3.3. Taxes. The Fees are exclusive of all applicable sales, use and other taxes and fees now in force or enacted in the future imposed on the Software and/or the delivery of the Maintenance Services, all of which Customer will be responsible for and will pay in full, including any related penalties and interest (except for taxes based on Promptlink's net income). 4. CONFIDENTIAL INFORMATION. 4.1. Nondisclosure of Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party's business, plans, customers, technology, and products, and other information held in confidence by the other party (“Confidential Information“). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information will also include, without limitation, Promptlink Technology, and the terms and conditions of this Agreement. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to that party's attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. 4.2 Exceptions. Information will not be deemed Confidential Information hereunder if such information: (a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure. 5. DISCLAIMERS AND LIMITATIONS OF LIABILITY. 5.1. Authority and Performance of Promptlink. Promptlink represents and warrants that it owns the Software and has the legal right to enter into this Agreement and perform its obligations hereunder. 5.2. Selection of Third Party Software and Deployment Architecture; Manufacturer Warranty. If Third Party Software is utilized hereunder, Customer acknowledges that it has selected the Third Party Software and disclaims any statements made by Promptlink. In addition, Customer acknowledges that it has selected the deployment architecture and disclaims any statements made by Promptlink. Except with respect to any express warranties for Maintenance Services related to Third Party Software, Customer acknowledges and agrees that its use and possession thereof by Customer shall be subject to and controlled by the terms of any manufacturer's or, if appropriate, supplier's warranty, and Customer agrees to look solely to the manufacturer or, if appropriate, supplier with respect to all performance, service and other claims, and the right to enforce all warranties made by said manufacturer are hereby, to the extent Promptlink has the right, assigned to Customer. 5.3. CUSTOMER ACKNOWLEDGEMENTS. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE IS AN EXTREMELY POWERFUL TOOL THAT MAY BE CONFIGURED TO UPGRADE THE INTERNAL SOFTWARE OF SEVERAL HUNDRED THOUSAND CABLE MODEMS IN A NETWORK WITH MINIMAL HUMAN INTERVENTION. OPERATING THE SOFTWARE WITHOUT PROPER TRAINING OR PROCEDURES IN PLACE MAY RESULT IN DAMAGE THAT WILL SHUT DOWN A COMPUTER NETWORK. ACCORDINGLY, CUSTOMER AGREES THAT IT IS SOLELY RESPONSIBLE TO ESTABLISH AND MAINTAIN SOUND ACCESS AND SECURITY PROCEDURES FOR TRAINING CUSTOMER'S PERSONNEL TO PROPERLY USE THE SOFTWARE AND TO PREVENT THE UNAUTHORIZED USE OF THE SOFTWARE. CUSTOMER FURTHER ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES THAT OCCUR UNDER ITS ACCOUNT AND FURTHER AGREES THAT IT IS SOLELY RESPONSIBLE FOR ALL DAMAGES RESULTING THEREFROM AND THAT PROMPTLINK IS NOT RESPONSIBLE OR LIABLE FOR ANY DAMAGES FOR CUSTOMER'S FAILURE TO COMPLY WITH ANY OF THE REQUIREMENTS IN THIS SECTION 5.3. 5.4. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS ARTICLE 5, THE SOFTWARE AND MAINTENANCE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND CUSTOMER'S USE THEREOF IS AT ITS OWN RISK. PROMPTLINK DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROMPTLINK DOES NOT WARRANT THAT THE SOFTWARE OR MAINTENANCE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. 5.5. LIMITATIONS OF LIABILITY. EXCEPT FOR A BREACH OF ARTICLE 4 HEREOF, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH, ARISING UNDER, OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. PROMPTLINK'S TOTAL AND CUMULATIVE LIABILITY TO CUSTOMER OR ANY THIRD PARTY N CONNECTION WITH, ARISING UNDER, OR RELATED TO THIS AGREEMENT SHALL BE STRICTLY LIMITED TO THE FEES PAID BY CUSTOMER TO PROMPTLINK DURING THE THREE (3) MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY. 5.6. Basis of the Bargain; Failure of Essential Purpose. The parties acknowledge that Promptlink has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in this Article 5, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose. 6. INDEMNIFICATION. 6.1. Indemnification. Each party will indemnify, defend and hold the other harmless from and against any and all costs, liabilities, losses, and expenses (including, without limitation, actual attorneys' fees) (collectively, "Losses") resulting from any claim, suit, action, or proceeding (each, an "Action") brought by any third party against the other or its affiliates alleging: (a) the infringement or misappropriation of any intellectual property right relating to the delivery or use of the Promptlink Technology; and (b) personal injury caused by the negligence or willful misconduct of the other party. 6.2. Notice. Each party's indemnification obligations hereunder shall be subject to: (a) receiving prompt written notice of the existence of any Action; (b) being able to, at its option, control the defense of such Action; (c) permitting the indemnified party to participate in the defense of any Action; and (d) receiving full cooperation of the indemnified party in the defense thereof. 7. TERM AND TERMINATION. 7.1 Term. This Agreement is for the term as identified on the Order Form. This Agreement is automatically renewable for the same term as specified on the Order Form unless either party requests change or termination at least thirty (30) days prior to the end of the applicable term. 7.2. Termination For Cause. Promptlink may terminate this Agreement if: (a) Customer breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay Fees, which must be cured within five (5) days after receipt of written notice from Promptlink; (b) Customer becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (c) Customer becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. 7.3 Effect of Termination. Upon the effective date of termination of this Agreement: (a) the license granted in Section 2.1 hereof shall automatically terminate and revert to Promptlink; (b) Customer shall immediately cease using the Software, including, without limitation, all Documentation; (c) Promptlink shall immediately cease providing the Maintenance Services; (d) any and all Fees through the date of termination shall immediately become due; (e) within thirty (30) days of such termination, each party will return all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement; and (f) Customer shall, within five (5) days of termination, return or destroy the original and all copies of the Software made in connection with the License. This requirement will apply to all copies in any form including translations, whether partial or complete, and whether or not modified or merged into other Software materials and, if destroyed, deliver to Promptlink a written certification thereof signed by an officer of Customer. 7.4. Survival. The following provisions will survive any termination of this Agreement: Sections 2.4 and this 7.4 and Articles 3, 4, 5, 6 and 8 (excluding Section 8.8). 8. MISCELLANEOUS PROVISIONS. 8.1. Force Majeure. Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, terrorist activities, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, defaults by subcontractors, governmental act or failure of the Internet (not resulting from the actions or inactions of Promptlink), provided, that, the delayed party: (a) gives the other party prompt notice of such cause; and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. 8.2. Marketing. Customer agrees that during the term of this Agreement, Promptlink may publicly refer to Customer, orally and in writing, as a Customer of Promptlink. Any other reference to Customer by Promptlink requires the written consent of Customer. 8.3. Government Regulations. Customer will not export, reexport, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business. 8.4. Non-Solicitation. During the term of this Agreement and continuing through the first anniversary of the termination of this Agreement, Customer agrees that it will not, and will ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any persons employed by Promptlink or contracted by Promptlink to provide Maintenance Services to Customer. 8.5. No Third Party Beneficiaries. Promptlink and Customer agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement, including, without limitation, the insurance providers for either party or the customers of Customer. 8.6. Governing Law; Dispute Resolution. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of California (except that body of law controlling conflicts of law) and specifically excluding from application to this Agreement that law known as the United Nations Convention on the International Sale of Goods. The parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement. Failing such amicable settlement, any controversy, claim, or dispute in connection with, arising under, or related to this Agreement, including the existence, validity, interpretation, performance, termination or breach thereof, shall be settled in the courts of Orange County, California. 8.7. Severability; Waiver. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. 8.8. Assignment. Customer may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Customer may not otherwise assign its rights or delegate its duties under this Agreement, in whole or in part, without the prior written consent of Promptlink, and any attempted assignment or delegation without such consent will be void. Promptlink may assign this Agreement in whole or part. Promptlink also may delegate the performance of certain Maintenance Services to third parties, including Promptlink's wholly owned subsidiaries, provided, that, Promptlink controls the delivery of such Maintenance Services to Customer and remains responsible to Customer for the delivery of such Maintenance Services. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns. 8.9. Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the Order Form or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is earlier. 8.10. Relationship of Parties. Promptlink and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Promptlink and Customer. Neither Promptlink nor Customer will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein. 8.11. Entire Agreement; Counterparts; Originals. This Agreement, the Order Form and all documents incorporated herein by this reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. Any additional or different terms in any purchase order or other response by Customer shall be deemed objected to by Promptlink without need of further notice of objection, and shall be of no effect or in any way binding upon Promptlink. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. This Agreement may be changed only by a written document signed by authorized representatives of Promptlink and Customer in accordance with this Section 8.11. For purposes of this Agreement, the term "written" means anything reduced to a tangible form by a party, including a printed or hand written document, e-mail or other electronic format. 8.12. Interpretation of Conflicting Terms. In the event of a conflict between or among the terms in this Agreement and other documents referred to herein or made a part hereof, the documents shall control in the following order: this Agreement, the Order Form, then the other documents.