Clickwrap License Agreement
THIS AGREEMENT (the “Agreement”) is hereby entered into between Coviant Software LLC, a Texas LLC (the “Licensor”), and the party executing this Agreement (“You”) on the following terms and conditions. BY INSTALLING, ACTIVATING OR OTHERWISE USING THE SOFTWARE, YOU AGREE AND ARE SUBJECT TO THE LICENSE TERMS SET FORTH BELOW. If You do not agree to the terms of this Agreement, do not install, activate or otherwise use the Software.
1. Licensed Program
This is a license agreement between You and Licensor with respect to the Version of the Diplomat product that You are installing, the accompanying Documentation, and any Updates, fixes, or enhancements for such version that may subsequently be issued to You (the “Licensed Program”) by Licensor in its sole discretion.
2. Certain Preliminary Uses
The Licensed Program is distributed to You by electronic download or on self-installing media as described in the Documentation. You will need to install the Licensed Program on properly configured and compatible computer equipment according to the Documentation. You will also need to ensure that all required data are in proper format and no other software or equipment having an adverse impact on the Licensed Program is present.
3. Licensed Operating Environment
(a) Operating Environment. Once You accept this Agreement, have completed activities described in Section 2 (“Certain Preliminary Uses”) and provided You pay the applicable License Fees when due as described or referenced in Section 7 (“Payment”), You will be deemed granted one non-exclusive Server License, to install, configure, test, store, load, execute, and display (collectively, “Use”) the Licensed Program on one (1) network server and to make the Licensed Program available for Use by up to the number of individuals licensed to concurrently access or use the Licensed Program (the “Licensed Operating Environment”). The Licensed Program is provided only in machine-readable object code form.
(b) Authorized Operators. The Licensed Program will be operated by Your own employees, by contractors or consultants hired by you, or by a professional facility manager that manages your information technology resources (“Authorized Operators”). The Authorized Operators may Use the Licensed Program in the Licensed Operating Environment for the beneficial uses described in Section 4 (“Permitted Uses”).
4. Permitted Uses
(a) Internal Business Processes. Your Authorized Operators may Use the Licensed Program in the Licensed Operating Environment strictly in support of Your internal business operations. If You are acting as a professional facility manager, you may Use the Licensed Program in the Licensed Operating Environment to support one (1) third party’s business operations and to process such third party’s data. You may not permit third parties to Use the Licensed Program via a timesharing, service bureau, or other arrangement. YOU SHALL NOT SELL, SELL ACCESS TO, OR SELL USE OF THE SOFTWARE AS THE BASIS FOR ANY SOFTWARE AS A SERVICE OR APPLICATION SERVICE PROVIDER SOLUTION THAT YOU OFFER FOR SALE OR LICENSE TO THIRD PARTIES.
(b) Restricted Usage. Some components or capabilities are made available based on restricted usage of the Licensed Program, such as limitations on the number of encryption/decryption key pairs used or a limitation to use only in a test, standby, or other non-production environment. You agree to limit Your usage of the Licensed Program as per the restrictions, regardless of whether these usage limitations are technologically enforced by the Licensed Program.
5. Reservation of Rights
(a) Rights to Licensed Program. The intellectual property rights in the Licensed Program shall at all times remain the exclusive property of Licensor or other owner identified in the Documentation. By executing this Agreement and paying the applicable License Fee, You obtain a limited license to Use the Licensed Program in object code form. You agree not to disassemble, decompile or reverse engineer the Licensed Program. You also agree that any information obtained in violation of this restriction will be confidential information automatically and irrevocably deemed assigned to and owned exclusively by the owner of the Licensed Program. You will at all times use due diligence to safeguard and protect, and cause your employees and contractors to safeguard and protect, all such confidential and proprietary information pertaining to the Licensed Program. You will ensure that all marks, notices or legends pertaining to the origin, identity or ownership of the Licensed Program remain intact and clearly legible.
(b) All Other Rights Reserved. Except as expressly granted to You under another provision of this Agreement, Licensor reserves to itself and prohibits You (directly or indirectly, in whole or in part) from loaning, renting, leasing, sublicensing or otherwise distributing or operating the Licensed Program to or for the benefit of any third party, and from altering, adapting, translating or preparing any derivative work of the Licensed Program. The foregoing limitation does not prohibit Authorized Operators from making a copy of the Licensed Program for archival purposes or as an essential step in making Permitted Uses of the Licensed Program in the Licensed Operating Environment.
6. Product Support
You may receive Product Support, such as email support, telephone support, or updates for the Licensed Program, for so long as Licensor generally offers such services to the public by purchasing and renewing maintenance and support coverage.
Your payments shall be due and payable as set forth in Your Invoice according to the terms of sale generally noted in the invoice and available upon request. Unless otherwise stated on invoice from Licensor or Licensor’s reseller, the applicable fees and shipping charges are payable by You promptly, and delivery may be delayed by the Licensor until such payment is complete in its sole discretion. You will pay all sales, use, value-added, GST, personal property or other governmental tax or levy associated with this transaction (including interest and penalties imposed thereon) other than taxes based on the net income or profits of Licensor. If You fail to pay any amount when due, Your license to Use the Licensed Program will automatically terminate. If Licensor is required to take legal action to collect any overdue amount, You shall also pay Licensor’s reasonable costs of collection, including reasonable attorneys’ fees.
8. Transfer of License
You may not assign all or any part of Your rights or obligations under this Agreement without Licensor’s prior written consent and any attempt to the contrary will be void and a material breach of this Agreement. Licensor may withhold such consent in its sole discretion. Licensor may impose reasonable transfer fees as a condition of any permitted transfer. A transfer of this Agreement will terminate any right to Your continued possession or Use of the Licensed Program and You must promptly destroy all remaining copies of the Licensed Program in Your possession or under Your control.
9. Limited Performance Warranty
The following provisions are subject to Section 11 (“Limitation of Remedies & Liabilities”). The specified warranties will last for forty-five (45) days from the date a new Licensed Program is delivered to You (the “Warranty Period”). Warranties are for Your benefit alone, it being agreed they are not assignable and there are no third party beneficiaries of them. Licensor warrants to You that it will make a reasonable effort to ensure the Licensed Program operates substantially in accordance with the Documentation. If You notify Licensor of a defect during the Warranty Period, Licensor will attempt to correct the defect at no cost to You. Licensor does not warrant that it will be able to correct all reported defects or that Use of the Licensed Program will be uninterrupted or error free. LICENSOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
10. Software Locks
BE ON NOTICE THAT THE LICENSED PROGRAM MAY CONTAIN A SOFTWARE LOCK THAT IS DESIGNED TO PREVENT UNAUTHORIZED USE OF THE LICENSED PROGRAM. LICENSOR DOES NOT REPRESENT OR WARRANT THAT OPERATION OF THIS FEATURE WILL BE ERROR-FREE. YOU NEVERTHELESS AGREE THAT INCORPORATION OF THIS FEATURE INTO THE LICENSED PROGRAM IS COMMERCIALLY REASONABLE, HAS BEEN REFLECTED IN THE TERMS AND CONDITIONS OF THIS AGREEMENT AS A WHOLE AND YOU ACCEPT ALL RISK ASSOCIATED WITH THIS FEATURE.
11. Limitation of Remedies & Liabilities
The following provisions are a material condition of this Agreement and reflect a fair allocation of risk:
(a) Remedies. You agree that if the Licensor violates any warranty or other provision of this Agreement, and Licensor determines that repair or other corrective action is not economically or technically feasible, Your sole and exclusive remedy will be to obtain a refund of License Fees paid by You. You also agree that legal remedies alone provide inadequate protection of Licensor’s intellectual property rights in the Licensed Program and that, in addition to other relief, Licensor may without necessity of posting bond seek to obtain temporary and permanent injunctions to enforce those rights.
(b) Liabilities. YOU AGREE LICENSOR IS NOT LIABLE FOR ANY AMOUNT EXCEEDING THE LICENSE FEES ACTUALLY PAID BY YOU HEREUNDER. IN NO EVENT SHALL LICENSOR BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS OR PROFIT, LOST DATA OR BUSINESS INTERRUPTION EVEN IF LICENSOR IS NOTIFIED IN ADVANCE OF SUCH POSSIBILITY). THIS INCLUDES DAMAGES INCURRED BY YOU, YOUR CUSTOMERS OR ANY THIRD PARTY. THIS LIMITATION PROTECTS LICENSOR AND ANY DISTRIBUTOR OR RESELLER FROM WHOM YOU OBTAINED THE LICENSED PROGRAM. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU.
12. Term & Termination
(a) Generally. This Agreement shall continue in full force and effect during the Term shown on your invoice from Licensor or Licensor’s reseller or other agreement with Licensor unless terminated earlier in accordance with this or another Section of this Agreement. This Agreement will terminate automatically if You breach any provision of it. You may terminate this Agreement at any time at Your election.
(b) Effect of Termination. Termination of this Agreement will terminate Your right to possess or Use the Licensed Program. Upon termination for any reason, You agree to destroy the original and all copies of the Licensed Program (including Documentation) and cease all further Use of it. Termination will have no effect on Your obligation to safeguard and protect proprietary rights of Licensor under Section 5(a) (“Rights to Licensed Program”), disclaimers under Section 9 (“Warranties”), limitations under Section 11 (“Limitation of Remedies & Liabilities”) or continuing assurances made under Section 14 (“Export Regulations”).
13. Dispute Resolution
(a) Disputes; Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES AND THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. THE PARTIES WILL INITIATE ANY DISPUTE RESOLUTION PROCEEDING IN SUCH DESIGNATED STATE AND IRREVOCABLY CONSENT TO EXCLUSIVE PERSONAL JURISDICTION THEREIN. The U.N. Convention on Contracts for the International Sale of Goods and the Unfair Contracts Act in the United Kingdom shall not apply to this Agreement.
(b) Time Limit. Any claim arising out of or relating to this Agreement shall be initiated in a tribunal of competent jurisdiction within eighteen (18) months after the claim arose, or be barred. Claims for infringement of intellectual property rights, breach of confidentiality or violation of software license restrictions shall not be deemed to arise until they are actually discovered, or until they reasonably should have been discovered, by the aggrieved party.
(c) Tribunal. Except for claims described in the last sentence of Subsection 13 (b) above, the parties irrevocably agree that any claim hereunder against the other party shall be decided by final and binding arbitration pursuant to the Streamlined Arbitration Rules and Procedures and the U.S. Arbitration Act, 9 U.S.C. Sec. 1 et seq. (“Arbitration Act”). The parties will select a single arbitrator (or one will be selected for us if we cannot agree) who shall be a former judge, attorney, or other person with substantial experience in resolving business disputes involving software agreements. The arbitrator may not award damages exceeding or inconsistent with Section 11 (“Limitation of Remedies & Liabilities”). The arbitrator’s decision shall be in writing. We will share the costs of the arbitrator equally. We will arbitrate any issue regarding the types of claims to be arbitrated. Arbitration may be compelled and an arbitration award enforced by any court of competent jurisdiction.
14. Compliance with Export Regulations
You have or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold Company harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. You will not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce. This provision and the assurances made herein shall survive termination of this Agreement.
15. Confidential Information
Any notification or written communication required by or contemplated under the terms of this Agreement shall be in writing and shall deemed to be delivered if sent via postal mail or overnight delivery. Address for such notices shall be as stated on invoice from Licensor or Licensor’s reseller for You and for Licensor shall be:
5804 Babcock Rd, #151
San Antonio, TX 78240
This document constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral. This document and Your signature entry in electronic form, or a hardcopy duplicate in good form, shall be considered an original document with authenticated signature admissible into evidence unless the document’s authenticity is genuinely placed in question. This Agreement may be modified or amended only by a writing signed by an authorized representative of Licensor. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by a Party, directly or indirectly, in whole or in part, whether de facto, voluntary or by operation of law, or otherwise, including by way of transfer, sale or redemption of a controlling interest in stock or voting securities, sale of assets, transfer or expansion of computer operations or beneficial use of the Licensed Program, or by merger, reorganization, consolidation, joint venture or the like, to an Affiliate or to any third party, without the prior written consent of the other Party and any attempt to the contrary shall be void, except that Licensor will have the right to assign this Agreement, and its rights and obligations hereunder, to any third party that acquires substantially all of Licensor’s stock or assets relating to that portion of Licensor’s business which is related to the subject of this Agreement so long as such third party agrees in writing to be bound by the terms of this Agreement and to assume all obligations and liabilities of the assigning party under this Agreement. It is agreed that sales representatives and distributors of the Licensed Program have no authority to alter this Agreement. Any provision found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement of it on future occasions. Headings are for reference purposes only and have no substantive effect.