IMPORTANT NOTICE: PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE “ACCEPT” BUTTON BELOW, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT. IF CUSTOMER DOES NOT AGREE TO ANY OF THE TERMS BELOW, NEXTLABS IS UNWILLING TO LICENSE THE SOFTWARE AND DOCUMENTATION TO CUSTOMER, AND CUSTOMER SHOULD CLICK ON THE “DO NOT ACCEPT” BUTTON BELOW TO DISCONTINUE THE INSTALLATION PROCESS.
This Software License Agreement (the “Agreement”) is between NextLabs, Inc. (“NextLabs”) and the entity (the “Customer”) that wishes to purchase, or has purchased, one or more license(s) to use NextLabs’ proprietary software and the accompanying online help files and user documentation. If the Software is an updated or new version of any software for which you have previously executed a written software license agreement with NextLabs (the “Original Software License Agreement”), the terms of this Agreement shall apply and supersede the terms of such Original Software License Agreement. NextLabs is willing to grant Customer the following license to use the Software according to this Agreement only if Customer agrees to be bound by all of the terms of this Agreement.
1.0 DEFINITIONS
Terms used in this Agreement which are capitalized shall have the definitions set forth below or elsewhere in this Agreement.
1.1 Documentation means all on-line help files or written instruction manuals regarding the Use of the Software.
1.2 Effective Date is the date that the Customer first downloads the Software.
1.3 Intellectual Property Rights means all existing and future patents, utility models, mask works, designs, algorithms, copyrights, works of authorship, moral rights, trade secrets, trademarks, service marks, trade dresses, and trade names, including all applications and registrations of all of the foregoing, and any and all other intellectual property and industrial property rights.
1.4 License means the number of Software units, on a Named User, Per CPU and/or a Per Seat basis, that
are authorized under this Agreement as expressly set forth in an Order pursuant to Section 2.0.
1.5 Software means NextLabs’ proprietary software program or programs purchased by Customer in accordance with Section 2.0.
1.6 Term means, if applicable, the specific period stated in the Order in which Customer may Use the
Software pursuant to a Term License Grant, as set forth in Section 3.2
1.7 Use means the loading, utilization, storage or display of the Software in object code format and specifically covered by Licenses hereunder solely (a) by individuals under the employment of Customer (or by Contractors pursuant to Section 3.6) (b) to serve Customer’s internal business purposes only and (c) in accordance with the Documentation.
2.0 SUBMISSION OF PURCHASE ORDERS; ACCEPTANCE
2.1 Customer may order units of Software and technical support and maintenance from NextLabs by sending written purchase orders (each, an “Order”) to NextLabs, each of which shall: (a) bear a unique number; (b) specify (i) the type of license (i.e., perpetual or term), (ii) the license Term, if applicable, (iii) the SKU of each Software product (as quoted by NextLabs to Customer in writing), (iv) a Software product name or description, (v) the quantity of units ordered, (vi) the License fee per unit (as quoted by NextLabs to Customer in writing), (vii) the extended price, and (viii) the total applicable License fee; and (c) be sent to the attention of a designated NextLabs contact person at a specified number and/or address. NextLabs shall accept or reject each Order within ten (10) business days of receipt thereof from Customer. Delivery of the software ordered by Customer shall constitute acceptance. If the software is not delivered within such ten day period, the Order shall be deemed rejected. Upon acceptance, Orders are non-cancelable by Customer. Orders shall be governed by the terms of this Agreement unless otherwise agreed to in a writing signed by both parties that specifically references this Agreement and the affected purchase order.
3.0 LICENSE GRANTS
3.1 Grant of Perpetual License. If Customer is purchasing a perpetual license as set forth in the Order, for so long as this Agreement is in force, and subject to the terms and conditions of this Agreement, NextLabs grants to Customer a non-exclusive, non-transferable (except as permitted under Section 11.1), nonsublicenseable, personal, perpetual (subject to termination in accordance with the terms of this Agreement) license to (a) Use the Software, (b) use the Documentation in connection with such Use of the Software and (c) make one copy of the Software for backup or archival purposes solely in support of Customer’s Use of the Software, provided that all titles, trademark symbols, copyright symbols and legends, and other proprietary markings are fully reproduced without modification.
3.2 Grant of Term License. If Customer is purchasing a term license as set forth in the Order, for so long as this Agreement is in force, and subject to the terms and conditions of this Agreement, NextLabs grants to Customer a non-exclusive, non-transferable (except as permitted under Section 11.1), non-sublicenseable, personal term license to (a) Use the Software only for the Term set forth in the Order, (b) use the Documentation in connection with such Use of the Software and (c) make one copy of the Software for backup or archival purposes solely in support of Customer’s Use of the Software, provided that all titles, trademark symbols, copyright symbols and legends, and other proprietary markings are fully reproduced without modification. Term Licenses are subject to the additional terms and conditions set forth in Section 3.7.
3.3 Reservation of Rights. Except as expressly set forth in Section 3.1 or 3.2, as applicable, all right, title and interest in and to the Software and Documentation and all Intellectual Property Rights in and to the Software (including but not limited to all computer codes, animations, logos, images and text therein) and Documentation are the sole and exclusive property of NextLabs. All rights not expressly granted herein to Customer are reserved to NextLabs and its licensors.
3.4 Delivery of Software. Customer hereby acknowledges that NextLabs has made the Software available online for download by Customer. Customer shall be responsible for installing the Software on its computers as permitted under this Agreement. The Software will be deemed accepted upon delivery.
3.5 Audit Rights. Customer agrees to give NextLabs access and assistance as may be necessary to audit Customer operations wherever situated to confirm Customer’s Use of the Software conforms in all respects to the terms and conditions of this Agreement.
3.6 Contractors. Individuals or companies employed under contract (“Contractor”) with Customer may operate the Software on the Customer’s behalf, provided that (a) Customer provides NextLabs with prior written notice, (b) Customer is responsible for ensuring that any such Contractor fully complies with the terms of this Agreement as they relate to the use of the Software on the same basis as applies to Customer, (c) such use is only in relation to Customer’s internal business purposes, (d) such use does not represent or constitute an increase in the number of Licenses purchased by Customer, and (e) Customer shall remain fully liable for any and all acts or omissions by Contractor related to this Agreement.
3.7 Additional Terms Applicable to Term Licenses. (i) additional License subscriptions may be added in minimum blocks of 25 pursuant to a valid and properly executed Order which references this Agreement; (ii) the Term of the additional License subscriptions shall be coterminous with the expiration of the subscription Term in effect at the time the additional Licenses are added; and (iii) pricing for the additional License subscriptions shall be the same as that for the pre-existing subscriptions, prorated for the remainder of the subscription Term in effect at the time the additional License are added.
4.0 LICENSE RESTRICTIONS
4.1 Customer agrees not to (or cause or permit any parent, subsidiary, affiliate or other third party to): (a) sell, lease, license, sublicense, encumber or Use any portion of the Software or Documentation, (b) alter, revise, modify, adapt, decompile, disassemble, or reverse engineer any portion of the Software, or otherwise attempt to discover or learn the source code, structure, algorithms or ideas underlying the Software or any NextLabs Confidential Information, unless and solely to the extent required under applicable national law, (c) modify, create, or develop any derivative works or any other software based, in whole or in part, on the Software or Documentation (or any portion thereof), any NextLabs Confidential Information or any Intellectual Property rights of NextLabs, (d) provide, disclose, divulge or make available to, or permit use of the Software or Documentation by any person or entity other than Customer’s employees and Contractors without NextLabs’ prior written consent, or (e) exceed the number of Licenses purchased by Customer.
5.0 LICENSE FEE; SUPPORT FEE
5.1 In consideration of the rights granted herein, Customer shall pay to NextLabs the non-refundable (except as permitted under Section 7.2), non-cancelable license fee for the number of Licenses and technical support and maintenance as set forth in the Order. Upon acceptance of an Order, NextLabs will issue an invoice to Customer for the applicable License fee, and Customer will pay such invoice within thirty (30) days following the invoice date. Customer acknowledges and agrees that no license shall be deemed granted unless and until Customer has paid the applicable License fees in full. All prices are in U.S. dollars and do not include taxes or shipping fees.
5.2 All fees and charges specified in this Agreement are exclusive of all taxes, duties and other governmental levies and assessments. Customer shall be responsible for paying to NextLabs all applicable taxes not based on NextLabs’ net income, including penalties and interest and all other governmental duties and levies arising in connection with this Agreement.
5.3 Customer will pay all fees and charges payable hereunder free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever except for those required pursuant to law.
6.0 MAINTENANCE AND SUPPORT
6.1 During the Term of this Agreement and provided Customer requested support in the Order and has paid the applicable technical support and maintenance fees in accordance with the Order, Customer shall be entitled to receive software technical support and maintenance in accordance with NextLabs’ then current support policy. NextLabs’ current support policy as of the Effective Date is set forth in Exhibit A.
7.0 LIMITED WARRANTY
7.1 NextLabs warrants to Customer that the Software will perform in substantial accordance with the Documentation for a period of sixty (60) days from the Effective Date (the “Warranty Period”).
7.2 If the Software does not perform as warranted, NextLabs shall undertake to correct the Software, or if the correction of the Software is not reasonably possible, replace such Software free of charge with conforming software. If neither of the foregoing is commercially practicable, NextLabs shall terminate this Agreement with respect to the non-conforming program or programs and refund the monies paid by Customer attributable to such non-conforming program or programs. The foregoing are Customer’s sole and exclusive remedies for breach of warranty. The warranty set forth above is made to and for the benefit of Customer and shall not apply to non-conformities attributable to: (a) the Software not being properly installed, (b) failure to use the Software at all times in accordance with the Documentation and instructions for such use; (c) any modifications, alterations or additions to the Software that are not expressly performed or authorized by NextLabs, (d) failure of the Customer to maintain the equipment or operating environment for the Software, (e) any act or omission or other cause outside of the control of NextLabs, (f) any breach of this Agreement by Customer, or (g) any third party products.
7.3 NextLabs will have no liability under the warranties set forth above unless it has received written notice from Customer of any non-compliance with the warranties which is discovered during the Warranty Period and which is received by NextLabs within ten (10) days from the date of discovery.
8.0 DISCLAIMER OF WARRANTY
8.1 EXCEPT AS SET FORTH ABOVE, NEXTLABS DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EVEN IF NEXTLABS HAD BEEN INFORMED OF SUCH PURPOSE), (B) ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND (C) ANY WARRANTIES THAT THE SOFTWARE OR ANY DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR-FREE OR FREE OF VIRUSES, WORMS, TROJAN HORSES AND OTHER HARMFUL COMPONENTS.
8.2 CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT IN EACH JURISDICTION IN WHICH ANY SUCH DISCLAIMER IS UNENFORCEABLE, THE DURATION OF ANY SUCH IMPLIED WARRANTIES IS LIMITED TO SIXTY (60) DAYS FROM THE DATE CUSTOMER FIRST INSTALLED THE SOFTWARE ON CUSTOMER’S COMPUTER; PROVIDED, HOWEVER, THAT CUSTOMER’S SOLE REMEDY SHALL IN ANY CASE BE THAT NEXTLABS WILL, AT ITS OPTION, REPAIR OR REPLACE CUSTOMER’S COPY OF THE SOFTWARE, OR TERMINATE THIS LICENSE AGREEMENT AND REFUND AMOUNTS ALREADY PAID THEREFOR BY CUSTOMER. SOME STATES, PROVINCES, OR OTHER JURISDICTIONS DO NOT ALLOW FOR EXCLUSIONS OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO CUSTOMER. CUSTOMER MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE, PROVINCE TO PROVINCE, OR IN OTHER JURISDICTIONS.
8.3 No employee, agent, representative, contractor, or affiliate of NextLabs or any other person or entity has the authority to bind NextLabs to any oral or written representations or warranty relating to the Software or Documentation. Any written representations or warranty not expressly contained in this Agreement is unenforceable.
9.0 LIMITATION OF LIABILITY
9.1 REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, NEXTLABS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY CHARACTER, INCLUDING BUT NOT LIMITED TO DAMAGES FOR COMPUTER MALFUNCTION, LOSS OF INFORMATION, LOST PROFITS AND BUSINESS INTERRUPTION, OR (B) THE COST TO OBTAIN SUBSTITUTE SOFTWARE, TECHNOLOGY PRODUCTS OR SERVICES, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE USE OF (OR INABILITY TO USE) THE SOFTWARE HOWEVER CAUSED AND WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF NEXTLABS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 IN NO EVENT WILL NEXTLABS’ (OR ITS LICENSORS’ OR SUPPLIERS’) TOTAL LIABILITY TO CUSTOMER UNDER OR RELATING TO THIS AGREEMENT, (INCLUDING, WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SOFTWARE) EXCEED, IN THE AGGREGATE, THE AMOUNT PAID BY CUSTOMER TO NEXTLABS FOR THIS LICENSE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. NEXTLABS SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE SOFTWARE. CUSTOMER ACKNOWLEGES THAT NEXTLABS WOULD NOT PROVIDE OR LICENSE THE SOFTWARE TO CUSTOMER IF CUSTOMER DID NOT AGREE TO THE “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” PROVISIONS IN THIS AGREEMENT.
10.0 TERM AND TERMINATION OF AGREEMENT
10.1 Term of Perpetual License. If Customer is purchasing a perpetual license as set forth in the Order, this Agreement shall commence as of the Effective Date and remain in effect unless terminated pursuant to the termination provisions in this Section.
10.2 Term of Term License. If Customer is purchasing a term license as set forth in the Order, this Agreement shall commence as of the Effective Date and remain in effect until all License subscriptions granted in accordance with this Agreement have expired or been terminated, unless terminated pursuant to the termination provisions in this Section. License subscriptions commence on the start date specified in the Order and continue for the subscription Term specified therein.
10.3 Termination for Breach. Either party may terminate the Agreement on ten (10) days written notice upon a material breach by the other party of any representation, covenant, warranty or term of this Agreement that is not cured within thirty (30) days after written notice thereof by the non-breaching party; provided that the cure period provided in this Section 10.3 shall be ten (10) days after written notice thereof by NextLabs in the event of Customer’s breach of an obligation to make a payment as and when required by this Agreement.
10.4 Termination for Bankruptcy. Either party may terminate this Agreement in the event that (a) the other party files a bankruptcy petition that is not dismissed within ninety (90) day or is adjudicated as bankrupt, (b) a petition in bankruptcy is filed against the other party, (c) the other party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy law, (d) an action is instituted by or against the other party seeking its dissolution or liquidation of such party’s assets or seeking the appointment of a trustee, interim trustee, receiver or