These Software License Terms and Conditions Agreement (“Terms and Conditions”) govern the grant of a software license by The Accomplished Brain, LLC, a New Jersey limited liability company (“Licensor”). All Section references in these Terms and Conditions shall be references to provisions in these Terms and Conditions unless explicitly stated otherwise.
1. DEFINITIONS. As used in the Agreement, these terms shall have the following definitions:
“Agreement” means collectively (i) these Terms and Conditions, and (ii) any other agreement with the Licensor.
“Effective Date” means the date this Agreement is executed.
“Licensed Software” means the software provided by the Licensor including all Updates and Upgrades provided in accordance with Section 2.7 below.
“Licensee” means the party identified as the Licensee on the signature page of this Agreement.
“Licensee Products” means those software products of Licensee that incorporate the Licensed Software.
“Updates” and “Upgrades” have the meanings given in Section 2.7 below.
2. LICENSE RIGHTS AND LIMITATIONS
2.1 Internal Use License. Subject to the terms and conditions of the Agreement and Licensee’s compliance therewith, Licensor hereby grants to Licensee a non-exclusive, non-transferable, worldwide license to use the Licensed Software solely for the internal business purposes of Licensee.
2.2 Redistribution Rights. There shall be no Redistribution Rights. Object code versions compiled by Licensee from source code also may not be redistributed.
2.3 Source Code. The license granted to Licensee hereunder is only to use the object code version of the Licensed Software.
2.4 Number of Single-User Licenses. The use of the Licensed Software by Licensee is limited to the number of Single Users for which Licensee has paid Licensor license fees. For each Single-User license, one individual may install and use the Licensed Software on an unlimited number of computers provided that only that individual may use the Licensed Software and only one copy of the Licensed Software is in use at any one time. A separate license is required for each additional individual user.
2.5 Additional Restrictions.
(a) The Licensed Software may not be sold, leased, assigned, loaned or otherwise transferred or provided to a third party, except that the Agreement may be assigned in the circumstances described in Section 10.8.
(b) The Licensed Software may not be modified by Licensee.
(c) Licensee is not permitted to make copies of the Licensed Software or Documentation, other than that number of copies which is necessary to exercise Licensee’s rights granted hereunder. Licensee shall maintain a record of the location of all permitted copies.
(d) The Licensed Software is not designed, intended, or authorized for use in any type of system or application in which the failure of the system or application could create a situation where personal injury or death may occur (e.g., medical systems, life-sustaining or life-saving systems).
(e) Licensee may not reverse engineer or decompile the Licensed Software.
2.6 Documentation License. Licensor hereby grants to Licensee a non-transferable, non-exclusive, world-wide license to use any materials and documentation that Licensor may provide with the Licensed Software (the “Documentation”), if any, solely in connection with Licensee’s authorized use of the Licensed Software.
2.7 Updates and Upgrades. If Licensor makes any Updates and Upgrades to the Licensed Software generally, and Licensee is current with the payment of all fees to Licensor, then Licensee will be entitled to obtain such Updates and Upgrades which will be deemed Licensed Software (and subject to the terms of the Agreement) for no additional fees. Licensee acknowledges and agrees that notwithstanding the foregoing, Licensor is not obligated to make any Updates or Upgrades generally publicly available. “Updates” means any “bug” fixes or error corrections of the Licensed Software or any component thereof. “Upgrades” means minor enhancements to functionality and other minor modifications to the Licensed Software that are not Updates.
2.8 Licensor Intellectual Property Rights. Licensee agrees that the Licensed Software and Documentation, including the structure, sequence, and organization of the Licensed Software are proprietary and confidential to Licensor, and Licensee will take all reasonable measures to protect the confidentiality of the Licensed Software and Documentation unless, and to the extent, Licensor makes them available to the public without such restrictions. Licensee further agrees that all right, title and interest in and to the Licensed Software (and all intellectual property rights embodied therein) or any modification or improvement thereof made by Licensor is proprietary to Licensor. All rights therein not expressly granted to Licensee under the Agreement are reserved by Licensor.
2.9 Licensee Intellectual Property Rights. Licensor acknowledges that nothing herein shall grant Licensor any rights in Licensee Products or any intellectual property rights associated therewith.
3. LICENSEE’S OBLIGATIONS. Except as expressly set forth in the Agreement otherwise, Licensee agrees: (a) not to remove from any copies of the Licensed Software or Documentation any product identification, copyright or other notices; and (b) not to reproduce, modify, translate or create derivative works of all or any portion of the Licensed Software except as expressly permitted by the Agreement. Licensee further agrees that it shall not make any use of the Licensed Software and Documentation except as specifically permitted by the Agreement.
4. DELIVERY. Licensor shall deliver the Licensed Software to Licensor.
5. REPORTS AND AUDIT. No more than once quarter-annually and upon reasonable prior notice, Licensor may audit Licensee’s usage and records to ensure that Licensee is using the Licensed Software in compliance with the Agreement. Any such audit will be conducted during regular business hours at Licensee’s offices and shall not interfere unreasonably with Licensee’s business activities.
6. WARRANTY DISCLAIMER. The Licensed Software and documentation are provided “as is.” Licensor makes no warranties or representations relating to the licensed software and documentation, express or implied, statutory or otherwise, and expressly excludes the warranty of non-infringement of third-party rights, fitness for a particular purpose or merchantability. Licensor does not warrant that the Licensed Software and documentation will satisfy Licensee’s requirements, that the Licensed Software and documentation is without defect or error, or that operation of the Licensed Software will be uninterrupted.
7. LIMITATION OF LIABILITY. Licensor shall not be liable for any indirect, incidental, special, or consequential damages, or damages for loss of profits, revenue, data, or use, incurred by Licensee or any third party, whether in an action in contract or tort (including negligence), or any other legal theory, even if Licensor has been advised of the possibility of such damages.
8. INDEMNIFICATION. Licensee shall indemnify and hold harmless Licensor, its officers, agents and employees from and against any claims, demands, or causes of action whatsoever relating to the Agreement, including without limitation those arising on account of Licensee’s use of the Licensed Software or otherwise caused by, or arising out of, or resulting from, the exercise or practice of the License granted hereunder by Licensee, its permitted sublicensees, if any, its subsidiaries or their officers, employees, agents or representatives.
9. TERM AND TERMINATION
9.1 Term. The term of the Agreement shall commence on the date below and shall continue unless terminated by the Licensor.
9.2 Termination for Breach. Either party may terminate the Agreement immediately for a material breach by the other party if such material breach of any provision under the Agreement is not cured within thirty (30) business days after receipt of written notice of breach by the non-breaching party.
9.3 Effect of Termination. At the termination or expiration of the Agreement, (a) Licensee must destroy all copies of the Licensed Software; (b) all fees due to Licensor shall immediately become due and payable by Licensee to Licensor; and (c) provided that Licensee’s customers are in compliance with their end user license agreements, all customers may continue to use the Licensed Software as incorporated in the Licensee Products. The following terms of the Agreement shall survive any expiration or termination: Sections 1 (Definitions), 2.8 (Licensor Intellectual Property Rights), 2.9 (Licensee Intellectual Property Rights), 3 (Licensee’s Obligations), 6 (Warranty Disclaimer), 7 (Limitation of Liability), 8 (Indemnification), 9 (Term and Termination), and 10 (General Provisions).
10. GENERAL PROVISIONS
10.1 Use of Names. Licensee may use the name “The Accomplished Brain, LLC” or any derivative name only in connection with factually based materials related to its use of the Licensed Software.
10.2 Notices. Any notice or reports required or permitted to be given under the Agreement shall be given in writing and shall be delivered in a manner that provides confirmation or acknowledgement of delivery. Notices to Licensor and to Licensee shall be sent to the address set forth in the latest communications between Licensor and Licensee.
10.3 Export Regulations. Neither Licensor nor Licensee shall export, directly or indirectly, any information acquired under the Agreement or any Licensed Software utilizing any such information to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.
10.4 Severability. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of the Agreement shall not be affected thereby.
10.5 Headings. The paragraph headings and captions of the Agreement are included merely for convenience of reference and are not to be considered part of, or to be used in interpreting the Agreement, and in no way limit or affect any of the contents of the Agreement or its provisions.
10.6 Governing Law. The Agreement shall be construed in accordance with and all disputes hereunder shall be governed by the laws of the State of New Jersey as applied to transactions taking place wholly within New Jersey between New Jersey residents.
10.7 Jurisdiction and Venue. The New Jersey state courts of Bergen County, New Jersey (or, if there is exclusive federal jurisdiction, the United States District Court for the District of New Jersey) shall have exclusive jurisdiction and venue over any dispute arising out of the Agreement, and Licensee hereby consents to the jurisdiction and venue of such courts.
10.8 Assignment. Licensee shall not directly or indirectly sell, transfer, assign, convey, pledge, encumber or otherwise dispose of the Agreement without the prior written consent of Licensor, which consent will not be unreasonably withheld. Any assignment made without Licensor’s consent is void and ineffective. In the event that Licensor consents to an assignment, there will be a license assignment fee imposed by Licensor. Assignments shall include assignments or transfers of the Agreement as part of a corporate reorganization, consolidation, merger, or sale of substantially all of the assets or any other change of control.
10.9 Relationship of the Parties. Nothing contained in the Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The relationship between the parties shall at all times be that of independent contractors. Neither party shall have authority to contract for or bind the other in any manner whatsoever. The Agreement confers no rights upon either party except those expressly granted herein.
10.10 Counterparts. The Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
10.11 Entire Agreement. The Agreement is the complete, entire, final and exclusive statement of the terms and conditions of the agreement between the parties. The Agreement supersedes, and the terms of the Agreement govern, any prior or collateral agreements between the parties with respect to the subject matter hereof. The Agreement may not be modified except in a writing executed by duly authorized representatives of the parties. The Terms and Conditions of the Agreement shall prevail notwithstanding any variance with the terms and conditions of any other instrument submitted by Licensee.
LICENSOR: The Accomplished Brain, LLC.