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The purpose of this Software License Agreement (“License”) is to provide for a license governing the evaluation and/or purchase of certain Software from Sherrill-Lubinski Corporation (“SL”) by the purchasing company (“Licensee”). If this License covers the evaluation of the Software, Licensee is granted limited rights as specified herein and Licensee acknowledges that the license key delivered to it will be temporary in nature, is to be used solely for evaluation purposes and will expire unless license(s) are purchased from SL and the key is replaced. Under this License, the Licensee agrees to the following terms and conditions:
I. DEFINITIONS
1.1 “Derivative Programs” means software programs developed by Licensee which incorporate the Software or which were developed using the Software, or which link, embed or bundle the Software.
1.2 “Documentation” means any copy, version or translation, in whole or in part, of SL’s documentation for Software, whether in printed manual or on-line format.
1.3 “Maintenance Services” means SL’s provision of Updates or other services relating to the Software to Licensee pursuant to the applicable Software Maintenance Services Agreement, if any, entered into between Licensee and SL.
1.4 “Software” means (i) the SL proprietary RTView software program, or as identified in the Terms defined below and agreed to in writing between SL and Licensee, or any portion of such programs, for which Licensee is granted a license pursuant to this License, or (ii) for evaluation Software that is being downloaded promptly following acceptance of this License, Documentation and Updates thereof, for the license fees set forth in the Terms (if applicable). For Software purchased by Licensee, the Software also includes any customized versions of the Software and any upgrades or new releases of Software that may be provided by SL to Licensee.
1.5 “Terms” means the terms defined in a Purchase Order, Work Order, Statement of Work, an SL Order Form, or other form of ordering document delivered to and accepted by SL containing the business terms agreed to between SL and Licensee, including agreement as to items such as number of licenses, license limitations, price, payment terms, and maintenance, among other things.
1.6 “Update” means a subsequent update of the Software which SL generally makes available to Software licensees at no additional license fee other than media and handling charges, provided Licensee has ordered Maintenance Services for such licenses for the relevant time period. Update shall not include any release, option or future Software which SL licenses separately or which has an associated additional license fee.
II. LICENSE GRANT
2.1 Rights Granted
A. Subject to the terms and conditions of this License, SL grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license to use the Software, as follows: i. to use the Software solely for Licensee’s internal business purposes, either as specified in the Terms if this License is purchased or solely for evaluation if this License is an evaluation license, and as specified in the Documentation. Licensee may not sell, license, assign, rent, lease or transfer the Software or Derivative Programs, provided that Licensee may distribute and sublicense Derivative Programs pursuant to the agreements described in Section 2.1
i. if the Licensee and SL enter into such agreements; ii. if this License covers the purchase and not just the evaluation of the Software, to use the Software to generate, develop and use Derivative Programs, provided that Derivative Programs shall be subject to the terms of this License as such terms apply to the Software, including, but not limited to, the licensing and usage restrictions in this License; iii. to use the Documentation provided with the Software in support of Licensee’s authorized use of the Software
B. Licensee may not distribute and sublicense any Derivative Program without having executed SL’s “Value Added Distributor License Agreement,” “OEM License Agreement,” or “Distributor License Agreement” in conjunction with SL.
C. The Software may be copied in whole or in part for backup purposes only if this License covers the purchase and not just the evaluation of the Software. Licensee shall reproduce SL’s copyright and proprietary notices on such backup copy. Licensee shall not sell, license, or otherwise transfer to any third party any part of the Software whether or not embodied in other programs.
D. In the event the RTView Builder is included in the rights licensed under this License agreement, its use shall be limited to customization of the Software licensed in the Terms agreed to in writing between SL and Licensee and may not be used for customization of any other software or for any other purpose.
E. Licensee agrees not to cause or permit the reverse engineering, disassembly or decompilation of the Software.
F. SL shall retain all rights, title, and interest, including all intellectual property and other proprietary rights in the Software. Licensee does not acquire any rights, express or implied, in the Software, other than those specified in this License.
2.2 Licensee’s Obligations. Without limiting any other provision of this License, Licensee agrees that it will use the Software only as permitted pursuant to the provisions of this License and further agrees that it will not misuse the Software.
2.3 Reference. Upon finalization of this License for purchase, not merely evaluation, SL may reference Licensee as a customer and may use Licensee’s logo on the SL web site and on the SL customer list.
2.4 Third Party Software. Use of any other third-party software embedded in or bundled with the Software (collectively “Third Party Software”) is subject to the following conditions. SL shall have no obligation whatsoever in connection with the Third Party Software (including, without limitation, any obligation to provide maintenance or support) and the provision of Third Party Software is accomplished solely as an accommodation and in lieu of Licensee purchasing a license to Third Party Software directly from the third party vendor. Licensee must not allow any third parties to use the included parts of the Third Party Software or modifications to the Third Party Software (“Modifications”) for software development purposes. Licensee may not:
(a) use any part of the Third Party Software or Modifications or Licensee’s knowledge of the Third Party Software to create a product with the same or substantially the same functionality as the Third Party Software;
(b) change or remove the copyright notice from any of the files included in the Software, Third Party Software or Modifications;
(c) distribute, sell or otherwise transfer any Third Party Software or Modifications; or
(d) use any Third Party Software or Modifications other than in connection with the Software as provided herein. THE THIRD PARTY SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. The terms and conditions with respect to the Third Party Software will be subject to additional obligations as provided by SL to Licensee from time to time.
2.5 After initial deployment of the Software within the Licensee’s organization, Licensee may not transfer the Software among computers or locations without SL’s consent and the execution of SL’s standard “Transfer Agreement,” except as otherwise set forth in the Terms.
2.6 Transfer and Assignment. Licensee may not assign this License, in whole or in part, to a legal entity separate from Licensee without the prior written consent of SL. Any authorized transferee or assignee of the Software or this License shall be bound by and subject to all of the terms and provisions of this License. Any attempted assignment, transfer, sublicense, encumbrance or security interest in breach of this clause shall be void and of no effect.
2.7 Verification. At SL’s written request, not more frequently that once annually, Licensee shall furnish SL with a signed certification verifying that the Software is being used pursuant to the provisions of this License and certifying such other verification information and details as SL may request. SL may audit Licensee’s use of the Software. Any such audit shall be conducted during regular business hours at Licensee’s facilities and shall not unreasonably interfere with Licensee’s business activities. If an audit reveals that Licensee has underpaid fees to SL, Licensee shall be invoiced for such underpaid fees. Such audits shall be at SL’s expense unless fees have been underpaid by 10% or more, in which case Licensee shall pay for all expenses associated with the audit and all adjustments in fees due. Audits shall be conducted no more than once annually.
2.8 Licensee Indemnity. Licensee will defend and indemnify SL against any loss, claim, damage or similar cost arising from Licensee’s breach of this Agreement or use of the Software or Derivative Programs, including without limitation legal expenses and court costs; provided that:
(a) SL notifies Licensee in writing of the claim; and
(b) SL provides Licensee with the assistance, information and authority necessary to perform Licensee’s obligations under this Section. In addition, Licensee will reimburse SL’s reasonable out-of-pocket expenses incurred in providing such assistance.
III. CONFIDENTIALITY
By virtue of this Agreement, the parties may have access to information that is confidential, proprietary or a trade secret of the other party (“Confidential Information”). A party’s Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no act or omission of the other party;
(b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
(c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or
(d) is independently developed by the other party. Unless the parties have entered into a separate written confidentiality agreement, the parties agree to hold each other’s Confidential Information in confidence as described in this Agreement. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
IV. TERM AND TERMINATION
4.1 Term. If Licensee enters into this License in connection with the purchase of Software, this License shall continue perpetually unless terminated under this Article IV. If the Licensee enters into this License for evaluation of the Software but does not purchase the Software, this License and the use of the Software shall automatically terminate 30 days from the date the Licensee receives the right to install the Software unless Licensee requests and SL agrees, in writing, to extend the term of this License to a period of time mutually agreed upon between the parties.
4.2 Termination by Licensee. Licensee may terminate any Software license at any time upon at least 30 days prior written notice to SL; however, termination shall not relieve Licensee’s obligations specified in Section 4.4.
4.3 Termination by SL. SL may terminate this License, in whole or in part, 30 days after written notice if Licensee materially breaches this License, the breach is remediable, and Licensee fails to correct the breach within such 30-day period.
4.4 Effect of Termination. Termination of this License shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Licensee’s obligation to pay all fees that have accrued or are otherwise owed by Licensee. Upon termination, Licensee shall immediately cease using, and shall immediately return all copies of the applicable Software.
V. WARRANTIES, REMEDIES
5.1 Warranty and Disclaimers
A. SL warrants that unmodified Software will perform the functions in material accordance with the Documentation when used in accordance with the Documentation. This warranty shall be valid for 30 days from the date of delivery of the Software.
B. Disclaimers SOFTWARE SUPPLIED UNDER THIS LICENSE IS FURNISHED “AS IS”. SL DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR-FREE. SL DISCLAIMS WITHOUT LIMITATION ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN PARAGRAPH 5.1A. IF ANY RISK IS SUSPECTED FROM INSTALLATION OR USE OF THE SOFTWARE, THE LIABILITY IS ASSUMED ENTIRELY BY THE LICENSEE. IN NO EVENT WILL SL BE LIABLE FOR DAMAGES TO PROPERTY OR ANY DAMAGES RESULTING FROM LOSS OF DATA, PROFITS OR OTHER PRODUCT USE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS LICENSE OR CAUSED BY THE USE OF OR INABILITY TO USE THE SOFTWARE OR FOR ANY ERROR OR DEFECT IN THE SOFTWARE OR DOCUMENTATION, EVEN IF SL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF SL’S LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE. SL’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY LICENSEE UNDER THIS LICENSE, AND IF SUCH DAMAGES RESULT FROM LICENSEE’S USE OF SOFTWARE OR SERVICES, SUCH LIABILITY SHALL BE LIMITED TO FEES PAID FOR THE RELEVANT SOFTWARE OR SERVICES GIVING RISE TO THE LIABILITY. THE PROVISIONS OF THIS LICENSE ALLOCATE THE RISKS BETWEEN SL AND LICENSEE. SL’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
C. Exclusive Remedies. For breach of the warranty contained in Section 5.1A, Licensee’s exclusive remedy, and SL’s entire liability, shall be the correction of Software errors that cause the non-conformity, or if SL is unable to make the Software operate as warranted within a reasonable period of time, Licensee shall be entitled to terminate the Software license and recover the fees paid to SL for the Software license.
VI. GENERAL TERMS
6.1 Controlling Law. This License, and all matters arising out of or relating to this License, shall be governed by the laws of the State of California. Any legal action or proceeding relating to this License shall be instituted in a state or federal court in San Francisco County, California. SL and Licensee agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding. Licensee hereby agrees that the United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this License.
6.2 Export Administration. Licensee agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to ensure that the Software is not (1) exported, directly or indirectly, in violation of Export Laws; or (2) intended to be used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
6.3 United States Government Rights. All technical data and the Software is commercial in nature and developed solely at private expense. The Software is delivered as Commercial Computer Software as defined in DFARS 252.227-7014 (June 1995) or as a commercial item as defined in FAR 2.101(a) and as such is provided with only such rights as are provided in this License, which is SL’s standard commercial license for the Software. Technical data is provided with limited rights only as provided in DFAR 252.227-7015 (Nov 1995) or FAR 52.227-14 (June 1987), whichever is applicable. Licensee may not remove or deface any portion of any legend provided on the Software.
6.4 Entire Agreement. This License constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this License. This License may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this License.
6.5 Conflict. In the event of any conflict between the provisions of this Agreement and the Terms, the Terms shall prevail.
6.6 Survival. The parties’ rights and obligations under Sections 2.8, 4.4, and VI shall survive termination or expiration of this Agreement.
The software you are about to download is subject to export control laws and regulations. By downloading this software, you agree that you will not knowingly, without prior written authorization from the competent government authorities, export or reexport – directly or indirectly – any software downloaded from this website to any prohibited destination, end-user, or end-use.