Software End User License Agreement
SOFTWARE END USER LICENSE AGREEMENT
This Software End User License Agreement (“Agreement”) is a binding, contractual agreement between you (referred to in this Agreement as "Client," or "You") and Software Testing Solutions LLC, a Nevada limited liability company, having its principal place of business at 173 Squaw Apple Road, Durango, CO 81301 (“STS”). This Agreement applies solely to Your use of STS' software and support, including without limitation, any underlying technology and documentation, including all enhancements, versions and modifications to the Software (collectively, the "Software"). By downloading, accessing and using the Software, You are indicating Your acceptance and agreeing to all of the terms and conditions of this Agreement. If You do not accept and agree, You will not be permitted to access or use the Software. You acknowledge that Your use of the Software is conditioned upon Your entering into this Agreement and consenting to these terms and conditions.
1. LICENSE GRANT.
1.1 Subject to the terms and conditions of this Agreement, STS hereby grants the Client a nonexclusive, nontransferable, limited license to the Software that shall permit the Client to install, use, reproduce, perform and execute each copy of the Software obtained and licensed hereunder on the number of computers licensed, provided that each copy of Software is only for licensee's internal business operations, including for test, development, backup, training archival and emergency purposes at any and all the Client sites. Each copy of Software licensed hereunder is considered "in use" on a computer when it is loaded into temporary memory (RAM) or installed into the permanent memory of a computer--for example, a hard disk or other storage device.
1.2 Without incurring additional license charges, the Client may move the Software to and use the Software on a computer other than the initial computer(s) on which the Software was originally installed (i) temporarily if a computer cannot be used because of equipment or other malfunctions, or (ii) permanently onto a replacement computer if the earlier computer is replaced by the Client; provided (a) there is no increase in the quantity of computers using the Software over the quantity of computers for which the Client has licensed Software; and (b) if the Client permanently transfers the Software to a replacement computer, the Client will cease use of the Software on the original computer altogether. Additional license fees are incurred when the Client, having licensed Software for a single computer, increases the number of computers using the Software.
2. FEES. All Fees for are payable in accordance with invoicing terms. STS reserves the right to suspend access to the Software in the event of any past due Fees.
3. OWNERSHIP. This license is not a sale. STS remains the owner of all right, title and interest in the Software. United States intellectual property laws, which may include copyright, patents, trademarks, trade secrets and other proprietary rights, and international laws and treaties (collectively, "Intellectual Property Rights") protect the Software which is exclusively owned by STS. The Client must treat the Software like that of any other property that is protected as having Intellectual Property Right(s). Without the express written permission of STS, the Client may not do the following nor permit others to: (a) copy the Software except to make archival or backup copies as provided above; (b) alter, modify, adapt or prepare derivative works of the Software; (c) remove any proprietary notices, labels, or marks on the Software; (d) reverse engineer, disassemble, decompile or make any attempt to discover the source code of this Software (e) place the Software onto a server so that it is accessible via a public network such as the Internet; or (f) sublicense, rent, lease or lend any portion of the Software. The Client may, but is not required to, provide feedback to STS regarding the functionality, enhancements and changes to the Software or otherwise (collectively, "Feedback"). Client hereby grants to STS an irrevocable and perpetual license to use, modify, display, distribute and otherwise exploit such Feedback without any cost and without restriction.
4. SUPPORT SERVICES. STS shall provide the Client with support services ("Support Services") described below: (a) STS will provide the Client with updates to the Software, revised to reflect any and all changes necessary to keep the Software functioning as intended; (b) STS will provide telephone (via a toll-free telephone number), email and dial-in support on a reasonable and necessary basis between the hours of 8:00am to 8:00pm Eastern Time, Monday through Friday with technicians sufficiently trained and experienced to identify and resolve most support issues, excluding New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day holidays and will make every effort to be available as needed after hours at the Client’s request with reasonable prior notification; (e) STS will use reasonable efforts to respond to the Client's requests for assistance and Software problems within a time frame that reasonably reflects the urgency of the resolution of the request. The responsibility for acting on or implementing such advice shall remain with the Client. Support Services does not include correction of errors caused by Client modifications and STS is not obligated by this Agreement to undertake any correction of such errors.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Client Warranty. By using the Software, You represent and warrant that (a) Your use of the Software will not violate any applicable law, rule or regulation; (b) You have the right to and are able to enter into this Agreement; (c) You will not impersonate any other person or entity or permit third parties to use Your copy of the Software; (d) You will not use the Software to violate any third party’s rights including without limitation privacy rights, publicity rights, intellectual property rights (including without limitation copyrights) or contract rights; and (e) You shall not use the Software in any manner that could impair or interfere with any third party site, application or service.
5.2 Software & Support Services Warranty. STS warrants to the Client that the Software will operate in accordance with the Software specifications and documentation. In the event that the Client reports to STS any nonconformity which prevents the Software from meeting this warranty, STS will, at its expense repair the defect or replace the defective Software. STS warrants that Support Services and other services hereunder will be performed in a timely, competent and professional manner, using qualified, technical personnel familiar with the Software as well as the standards generally observed in the industry for similar services. These are the Client's exclusive remedies for any software defects. In addition, Client understands and agrees that Client's use of the Software is for the limited purpose of providing an additional source of validation. Client may not rely upon the Software as its primary means of validation. Client's use of the Software is not a substitute for Client's independent validation of the results produced by the Software.
6. DISCLAIMER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED CONCERNING THE SOFTWARE AND SUPPORT SERVICES, AND STS DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER STS KNOWS OR HAD REASON TO KNOW OF THE CLIENT’S PARTICULAR NEEDS. NO EMPLOYEE, AGENT, DEALER OR DISTRIBUTOR OF STS IS AUTHORIZED TO MODIFY THIS WARRANTY, OR TO MAKE ANY ADDITIONAL WARRANTIES. IF STS’ EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES SHALL BE HELD PARTLY INEFFECTIVE UNDER LAW, IT IS INTENDED THAT THE VALID OR PERMITTED LIMITATION OF EXPRESS OR IMPLIED WARRANTIES REMAIN IN FULL FORCE AND EFFECT. THIS WARRANTY GIVES THE CLIENT SPECIFIC LEGAL RIGHTS, AND THE CLIENT MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
7. LIMITATION OF LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT ON ANY CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) IN EXCESS OF AMOUNTS PAID OR PAYABLE FOR ANY SOFTWARE AND SERVICES UNDER THIS AGREEMENT OVER THE PRECEDING 12 MONTH PERIOD AND (II) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. STS AND THE CLIENT EACH INDEMNIFIES THE OTHER FROM ANY CLAIM OR DAMAGES DUE TO THE PERSONAL INJURY OR DEATH OF ANY INDIVIDUAL, OR THE LOSS OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY RESULTING FROM THE ACTS OR OMISSIONS OF THE INDEMNIFYING PARTY, ITS AGENTS OR EMPLOYEES.
8. TERM AND TERMINATION.
8.1 Term and Termination. The Agreement will be in effect for the period of the specified, one-time project engagement.
8.2 Termination for Cause. In addition to any other remedies available to either party, upon the occurrence of a Termination Event (as defined below) with respect to either party, the other party may immediately terminate this Agreement. A Termination Event shall have occurred if: (a) a party materially breaches its obligations under this Agreement and does not cure the breach within thirty (30) days after the other party gives written notice of the breach; (b) a party becomes insolvent (generally unable to pay its debts as they become due) or a voluntary or involuntary petition is filed by or against a party under the United States Bankruptcy Code (Title 11, U.S. Code, referred to hereafter as the “Code”) or becomes the subject of a bankruptcy, conservatorship, receivership or similar proceeding, or makes a general assignment for the benefit of its creditors. Upon termination of this Agreement, all license and other rights granted to You under this Agreement will immediately terminate, You may not thereafter access or use the Software, and You must delete or destroy any and all copies of any information and/or materials obtained through the use of the Software.
8.3 Survival. The rights and obligations of the parties survive which by their nature must survive termination or expiration of this Agreement in order to achieve their fundamental purpose.
9. INFRINGEMENT WARRANTY INDEMNITY.
9.1 STS warrants that the licensing or use of any Software furnished under this Agreement shall not infringe upon any third party Intellectual Property Rights. If a claim, suit or proceeding is brought against the Client alleging that the Software infringes any third party Intellectual Property Rights, STS will defend or settle, at its expense, any such claim, suit or proceeding. STS shall defend, indemnify, and hold the Client harmless from any and all losses, damages, liabilities, costs and expenses, including royalties and license fees and reasonable attorney fees ("Damages"), attributable to such claim, suit or proceeding. The Client shall give STS prompt notice of, and the parties shall cooperate in, the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof, provided that the Client shall reasonably approve the terms of any settlement or compromise. In the alternative, STS shall have sole authority to control the defense of such claim.
9.2 Remedial Measures. If any Software furnished under this Agreement becomes, or in the Client’s or STS’ reasonable judgment is likely to become, the subject of any claim, suit or proceeding arising from or alleging infringement of, or in the event of any adjudication that such Software infringes on any Intellectual Property Right of a third party, STS, at its own expense shall take the following actions in the listed order of preference: (a) secure for the Client the right to continue use of the Software; or if commercially reasonable efforts are unavailing, (b) replace or modify the Software to make it non-infringing; provided, however, that such modification or replacement shall not degrade the operation or performance of the Software.
9.3 Exceptions. This indemnity shall not extend to any claim of infringement resulting from the Client’s unauthorized modification of the Software or from use or incorporation of the Software in a manner for which the Software is not designed with products not provided by STS or by the Client or for the Client with STS’ approval.
10.1 STS shall indemnify, defend and hold harmless the Client and their representatives, successors and permitted assigns from and against any and all claims made or threatened by any third party and all related Damages, to the extent such Damages arise out of or relate to the following: (a) any act or omission by STS, its representatives or subcontractors engaged by STS in the performance of STS’ obligations under this Agreement; or (b) any material breach in representation or covenant of STS contained in this Agreement.
10.2 Client shall indemnify, defend and hold harmless STS and its representatives, successors and permitted assigns from and against any and all claims made or threatened by any third party and all Damages, to the extent such Damages arise out of or relate to the following: (a) any act or omission by Client, its representatives or subcontractors engaged by Client; or (b) any material breach in representation or covenant of Client contained in this Agreement.
11. GENERAL PROVISIONS.
11.1 This Agreement may be modified only by a writing signed by the Client and STS.
11.2 Export. The Client agrees that the Software will not be shipped, transferred or exported into any prohibited country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations.
11.3 Attorneys' Fees. If any proceeding or legal action is brought by either party relating to the enforcement of this Agreement, the prevailing party, as determined by the court, shall be entitled to recover from the other party its reasonable attorney fees, costs and expenses of investigation and litigation in addition to any other relief to which it may be entitled.
11.4 Notices. All notices and other communications permitted or required under this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (a) When delivered personally to the recipient; (b) Five (5) days after being deposited in the United States mail, certified or registered mail, return receipt requested, postage prepaid to the recipient; or (c) When sent by overnight courier upon written verification of receipt. Any party may change its address by giving notice of the change in accordance with this paragraph.
If to the Client: To the address provided by the Client.
If to STS: Software Testing Solutions LLC
P.O. Box 2236
Durango, CO 81302
Attn: Legal Dept.
11.5 Enforceability: In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this Agreement shall remain in full force and effect. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted.
11.6 Relationship of the Parties. The parties are independent contractors. Nothing in this Agreement or the activities contemplated by the parties hereunder shall be deemed to create an agency, partnership, employment or joint venture relationship between the parties or any of their subcontractors or representatives.
11.7 Force Majeure. Except as otherwise stated herein, neither party will be liable for any failure or delay or default in performance under this Agreement due to cause beyond their reasonable control and without negligence of a party (“Force Majeure”).
11.8 Governing Law. This Contract shall be interpreted and governed under the laws of the State of Arizona without reference to its conflicts of law principles. For any disputes arising out of this Agreement, the parties consent to the personal and exclusive jurisdiction of, and venue in, the state or federal courts within Arizona.
11.9 Audits and Access to Books, Records and Documents. STS reserves the right to audit Client's books and accounts, upon thirty (30) days' notice, to verify compliance with any obligations set forth in this Agreement, including without limitation, auditing Client's compliance with the licensing restrictions set forth in this Agreement. Each party will provide assistance in such audit efforts as the other party may reasonably require.
11.10 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior or collateral understandings, agreements or discussions. Because of changes in technology and for other reasons (such as changes in applicable laws or regulations), this Agreement may be modified or amended from time to time. If the Agreement is modified or amended, You will receive a notification the next time You open or access the Software. In such event, You must click to accept the amended agreement before You may continue to use the Software.