CUSTOMER MUST AGREE TO THESE LICENSE AGREEMENT OF REMSYS® SOFTWARE
This is an agreement ("Agreement") by which REMSYS® will provide its own software. The Agreement may be amended or modified without prior notification at any time. REMSYS®’s license agreement was last modified October 15, 2010. The agreement governs the conditions by which REMSYS® will provide the software ("Software"), and Customer ("Customer") will utilize the Software. In consideration of the mutual covenants set forth in these terms of service, both REMSYS® and Customer hereby agree as follows:
REMSYS® has developed and licenses to users its Software.
Licensee desires to utilize a copy of the Software.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, REMSYS® and Licensee agree as follows:
1. License. REMSYS® hereby grants to Licensee a perpetual, non-exclusive, limited license to use the Software as set forth in this Agreement.
2. Restrictions. A licensee shall not modify, copy, duplicate, reproduce, license or sublicense the Software, or transfer or convey the Software or any right in the Software to anyone else without the prior written consent of REMSYS®.
3. Fee. In consideration for the grant of the license and the use of the Software, Licensee agrees to pay REMSYS® the sum of license fee.
4. Warranty of Title. REMSYS® hereby represents and warrants to Licensee that REMSYS® has created the Software or otherwise has the right to grant Licensee the rights set forth in this Agreement. In the event any breach or threatened breach of the foregoing representation and warranty, Licensee's sole remedy shall be to require REMSYS® or to either: i) procure, at REMSYS®'s expense, the right to use the Software, ii) replace the Software or any part thereof that is in breach and replace it with Software of comparable functionality that does not cause any breach.
5. Warranty of Functionality. For a period of one month following delivery of the Software to Licensee (the "Warranty Period"), REMSYS® warrants that the Software shall perform in all material respects according to the REMSYS®'s specifications concerning the Software when used with the appropriate computer equipment. In the event of any breach or alleged breach of this warranty, the licensee shall promptly notify REMSYS®. The licensee's sole remedy shall be that REMSYS® shall correct the Software so that it operates according to the warranty. This warranty shall not apply to the Software if modified by anyone or if used improperly or on an operating environment not approved by Liscensor.
6. Software Maintenance. A. Standard maintenance. During the Warranty Period, REMSYS® shall provide to Licensee any new, corrected, or enhanced version of the Software as created by REMSYS®. Such enhancement shall include all modifications to the Software which increase the efficiency or ease of use of the Software, or add additional capabilities or functionality to the Software, but shall not include any substantially new or rewritten version of the Software. B. Optional maintenance. After expiration of the Warranty Period, Licensee may continue to receive maintenance support. The charge for such optional maintenance support shall be REMSYS®'s regular list price for maintenance and support for the Software as published from time to time by REMSYS® (www.remsys.com). Licensor shall notify REMSYS® in writing if it desires to receive optional maintenance. If Licensee fails to take optional maintenance and later elects to receive it, REMSYS® reserves the right to charge Licensee, its maintenance fees for the period of the lapse in maintenance. REMSYS® may elect to discontinue maintenance at any time upon notice to Licensee, and refund of any then unearned maintenance fees.
7. Payment. Payment of the license fee shall be made before delivery of the Software. Payment of any other amount owed by Licensee to REMSYS® pursuant to this Agreement shall be paid within three (3) days following invoice from REMSYS®.
8. Security & Confidentiality. Customer and REMSYS® acknowledge and agree that the specifications, client area details, all documentation, and information related to the performance, production, creation or any expression of the Software are the property of the Customer. Materials shared between REMSYS® and Customer (the “Confidential Information”) including, but not limited to documentation, server specifications, client details, pictures, photographs, charts, correspondence, supplier lists, analysis and other furnished property shall be the exclusive property of the respective owner (the “Owning Party”) and will constitute valuable trade secrets. Both parties shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without prior written consent from the Owning Party, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information. Excluded from the “Confidential Information” definition is anything that can be seen by the public or had been previously made available by the Owning Party in a public venue.
9. Disputes. If a dispute arises, the parties will try in good faith to settle it through mediation conducted by a mediator to be mutually selected. If the dispute is not resolved within 30 days after it is referred to the mediator, it will be arbitrated by an arbitrator to be mutually selected. Judgment on the arbitration award may be entered in any court that has jurisdiction over the matter. Costs of arbitration, including lawyers' fees, will be allocated by the arbitrator.
10. Force Majeure. REMSYS shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Software.
11. Limitation of Liability. CUSTOMER UNDERSTAND AND AGREE THAT REMSYS® SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF REMSYS® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SOFTWARE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SOFTWARE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (iv) ANY OTHER MATTER RELATING TO THE SOFTWARE.
12. Final Agreement. This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties. IN WITNESS WHEREOF, REMSYS® and Licensee have executed this Software License Agreement on the day and year first above current date.