Software License Agreement (“Agreement”) Terms and Conditions

Software License Agreement (“Agreement”) Terms and Conditions

  1. Scope of License:
    1. Software: The scope of the License is set forth in the respective schedules of the Agreement, which are incorporated herein.
    2. Specifications: Licensee acknowledges that it has been given the opportunity to test and/or view, as appropriate, the functionality of the CGS Software and evaluate demonstrations thereof, and to understand the intended function of the CGS Software.
    3. No Assignment: Except as expressly permitted by this Section 1(c), neither the Agreement nor the License may be assigned, sublicensed, pledged, hypothecated, or otherwise transferred by Licensee to any other individual or entity, whether by law or contract, without the prior written consent of the Licensor, which consent is in the sole discretion of Licensor. Notwithstanding the foregoing, Licensee may assign the Agreement to its affiliate or wholly-owned subsidiaries or to an entity acquiring all or substantially all of the Licensee’s business without Licensor’s prior written consent, provided that the Licensee, to the extent feasible, remains primarily liable hereunder and the assignee provides the Licensor with a written assumption of the Licensee’s obligations hereunder. Any purported assignment that does not comply with the foregoing shall be null and void.
    4. Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee in the Agreement. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Software.
    5. Definitions: The following terms shall have the following meanings for purposes of the Agreement.
      1. “Program” shall mean a set of statements or instructions in machine readable or printed form whether or not denominated “software” intended to be used directly or indirectly by a computer and shall include any related materials such as flow charts and logic diagrams provided for use in connection with such statements or instructions.
      2.  “Simultaneous Authorized Real-Time User (SARU) Limit” – shall mean the quantity of users licensed to simultaneously access the CGS Software using real-time terminals.
      3. “Authorized User” means an employee or contractor of Licensee who Licensee permits to access and use the Software pursuant to the License.
  2.       Copies of the CGS Software and Restrictions:           
    1. The CGS Software and documentation may be copied by Licensee, in whole or in part, in machine readable form, as appropriate, only for (i) use by Licensee in accordance with the scope of License described in the Agreement or (ii) Licensee’s back-up or disaster recovery purposes. The original and any and all copies of the CGS Software and documentation, in whole or in part, whether or not made by Licensee, shall be and remain the sole and exclusive property of CGS. Licensee agrees to reproduce and include any copyright or proprietary rights notice included in the original CGS Software, or include the following notice on all copies of the CGS Software:

This media contains information which is proprietary to Computer Generated Solutions, Inc. It is not to be disclosed to anyone outside [Name of Licensee]. Use of this material is governed by a Software License Agreement with Computer Generated Solutions, Inc.

    1. Licensee shall not use the Software for any purposes beyond the scope of the License granted in the Agreement. Without limiting the foregoing, Licensee shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software, in whole or in part, except as otherwise provided herein; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software; (iii) reverse engineer, disassemble, decompile, decode or adapt the Software or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (iv) remove any proprietary notices from the Software; (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) disclose the results of CGS Software performance benchmarks to any third party without CGS’ prior consent; or (vii) use or permit the use of the Software by more than the number of Authorized Users and/or locations than is covered by the License as set forth on the respective schedule to the Agreement.
  1. Customization of the Software and Feedback: The addition of content, data, text or other information to any database utilized in conjunction with the Software shall not be deemed to create a customized or derivative version or modification of the Software, nor shall it be considered an Upgrade, as defined herein, and remains the property of the Licensee. If Licensee or any of its employees, contractors or agents sends or transmits any communications or materials to Licensor by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Licensor is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Licensee hereby assigns to Licensor on Licensee’s behalf, and on behalf of its employees, contractors or agents, all right, title, and interest in, and Licensor is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Licensor is not required to use any Feedback.
  2. Upgrades of the Software: CGS may, but is not obligated to, from time to time, develop additions, updates, new releases, fixes, workarounds, and other improvements to the CGS Software and the SaaS Software (collectively the “Upgrades”). During the warranty period herein, Upgrades will be provided to the Licensee without additional charge. Any Upgrades that Licensee obtains from CGS now or at any time in the future shall be deemed to constitute CGS Software or SaaS Software, as applicable, subject to all of the terms and conditions hereof; provided, however, that the issuance of such Upgrades shall not modify or otherwise affect the term of any express warranty provided herein.
  3. Protection, Security and Confidentiality:
    1. All right, title and interest in and to the Software (except for Third Party Software), and all enhancements or other modifications of the Software (except for Third Party Software) which may be provided by CGS, and all rights therein, including all rights in patents, copyrights, trade secrets, and other intellectual property which are or would be applicable thereto, (but not the data provided by the Licensee, in accordance with paragraph 3 herein), are and shall remain vested exclusively in CGS. Licensee acknowledges that the Software (except for Third Party Software) is the copyrighted property of CGS, developed by CGS at substantial effort and expense over an extended period of time. With respect to Third Party Software, the applicable third-party licensors own all right, title and interest, including all intellectual property rights, in and to the Third-Party Products.
    2. Except as expressly provided herein, Licensee agrees that it shall hold the Software in strict confidence and that it shall not sell, transfer, publish, display, license, sublicense, assign, disclose or otherwise make available the Software or portion or copies thereof or any services provided under this Agreement (the “Services”), to any third party, except for the sole purpose of using the License and the Services in the operation of its business as authorized under the Agreement and except (i) to the extent required by an order of any court or governmental authority or (ii) as necessary for it to protect its interest in the Agreement, but in each case only after CGS has been so notified and has had the opportunity to obtain reasonable protection for such information in connection with such disclosure. Further, Licensee will not allow its employees, agents, or independent contractors to do any of the foregoing and shall be liable for a breach of this Agreement by its employees, agents, or independent contractors. In the event Licensee learns that any of the foregoing has occurred, it shall immediately notify CGS both by telephone and in writing (which may be by e-mail or fax). Licensee acknowledges that the Software and the Services are made available to Licensee solely on a non-exclusive and non-transferable basis, subject to the terms hereof.
    3. Licensee acknowledges and agrees that damages for any violation or threatened violation of the Agreement are likely to be inadequate and that any such violation or threatened violation shall constitute an irreparable injury to CGS and Licensee agrees that, in addition to all other rights provided by law or in equity to which CGS shall otherwise be entitled, CGS shall have the right to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.
    4. Privacy. CGS represents, warrants and covenants that:(i) during the term of the Agreement or any Schedule and thereafter in perpetuity, CGS will not collect, reproduce, store, copy, transmit, process or disclose (collectively, “Process”) any Personal Information in the Licensee Data in any manner, except for the sole purpose of performing the Services and in compliance with: (A) the express terms and conditions of this Schedule; and (B) all applicable laws (including all then-current and applicable laws relating to spamming, commercial electronic messages, privacy, and consumer and data protection), and (ii) CGS will promptly notify Licensee in writing when it becomes aware of any unauthorized access, use or other act respecting Personal Information in the Licensee Data or CGS becomes the subject of any government, regulatory, or other investigation or proceeding relating to its privacy, data security, or handling practices.
    5.  Licensee Data. (i) As between Licensee and CGS, Licensee is and will remain the sole and exclusive owner of all right, title, and interest in and to all Licensee Data, including all intellectual property rights relating thereto, subject only to the limited license granted herein. (ii) Limited License to Use Licensee Data. Subject to the terms and conditions of this Schedule, Licensee hereby grants CGS a limited, royalty-free, fully paid-up, non-exclusive, non-transferable non-sublicensable license to Process the Licensee Data strictly as instructed by Licensee and solely as necessary to provide the Services for Licensee’s benefit as provided in this Schedule for so long as Licensee uploads or stores such Licensee Data for Processing by or on behalf of the CGS in the SaaS Services.
  4. License Fee and Other Charges: Licensee hereby agrees to pay CGS in accordance with and as specified herein, (a) the fees specified in respect of the respective Software; (b) the fees specified in the Schedules hereto, as applicable; and (c) such other charges set forth in the Agreement (collectively, the “License Fees”), without offset or deduction. Licensee shall make all payments hereunder in US dollars on or before the due date set forth in the respective invoice if not otherwise contained in the Agreement. Payment of undisputed amounts not received within ten (10) days of the due date of the invoice shall bear interest at one and one-half percent (1 ½%) per month. In the event of a default in the payment of an invoice, Licensee shall be responsible for CGS’ costs of collection, including, but not limited to, court costs, filing fees, and reasonable attorney and collection agency fees.  Licensee also agrees to pay when due all applicable sales, use, gross receipts, value added or similar taxes (other than taxes on the income of CGS) now or hereinafter imposed by Federal, State, or other taxing authorities as a result of Licensee’s acquisition and use of the CGS Software. The Licensee’s right to, and the effectiveness of, the License is expressly conditioned upon full and timely payment by Licensee to CGS of the License Fees and all other charges due under the Agreement.

 

 

  1. Warranty and Disclaimers:
    1. CGS warrants to Licensee that the functions contained in the CGS Software and SaaS Software comprise the modules listed and will substantially conform to the CGS Software and SaaS Software specifications, as applicable, in the Software documentation provided to the Licensee. CGS Software maintenance and upgrades will be provided in accordance with the terms and conditions of the Upgrade Path Agreement, separately entered into by the parties.
    2. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 7, THE SOFTWARE IS PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. NO WARRANTY IS MADE THAT ANY ERRORS OR DEFECTS IN THE SERVICES, THE SOFTWARE OR THE DOCUMENTATION WILL BE CORRECTED, OR THAT THE SERVICES’ OR SOFTWARE’S FUNCTIONALITY WILL MEET LICENSEE’S REQUIREMENTS.
    3. WHILE CERTAIN SERVICES MAY PROVIDE LICENSEE WITH CONNECTIVITY TO THE INTERNET, CGS DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM CGS’S OR ITS VENDORS’ DATA CENTERS TO OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS CAUSED BY THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH LICENSEE’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED. ALTHOUGH CGS WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, CGS CANNOT GUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, CGS DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
  2. Termination of License:
    1. CGS may terminate the Agreement and the License for any of the Software by written notice to Licensee if: (i) Licensee fails to pay the License Fees when due hereunder; (ii) Licensee violates or breaches any of the terms and conditions hereof and fails to cure such breach susceptible of cure within five (5) days after written notice of such from CGS; or (iii) Licensee dissolves, liquidates, terminates its operations, except as otherwise permitted herein sells substantially all of its assets or enters into a merger or consolidation, or files a petition for reorganization, liquidation, composition or assignment for the benefit of creditors under the Federal Bankruptcy Act or any similar state act, or has filed against it any such petition, which petition filed against it is not dismissed within forty-five (45) days. Upon any such termination, payment in full of all License Fees under this License become immediately fully due and payable to CGS.
    2. Notice of Bankruptcy. Notwithstanding and without limiting anything to the contrary contained in the foregoing Section 8(a) above, in the event that, pursuant to the U.S. Bankruptcy Code (or corresponding Bankruptcy Code of a foreign jurisdiction) or any amendment or successor thereto (hereinafter referred to as the “Bankruptcy Code”), a trustee in bankruptcy of Licensee (hereinafter referred to as the “Trustee”) or Licensee, as debtor-in-possession (hereinafter referred to as “Debtor”), is permitted to assume the Agreement and does so and, thereafter, desires to assign the Agreement to a third party, which assignment satisfies the requirements of the Bankruptcy Code, the Trustee or the Debtor, as the case may be, shall notify Licensor of the same in writing, setting forth the name and address of the proposed assignee, the proposed consideration for the assignment and all other relevant details thereof (hereinafter referred to as “Notice”). The giving of the Notice shall be deemed to constitute the grant of an option to Licensor to have the Agreement assigned to it or to its designee for such consideration, or its equivalent in money, and upon such terms, as are specified in the Notice. Such option may be exercised only by written notice given by Licensor to the Trustee or the Debtor within fifteen (15) days after Licensor’s receipt of the Notice from such party or such other period of time as may be deemed appropriate by the court in the bankruptcy proceeding. If Licensor fails to give its notice to such party within the exercise period, the Trustee or the Debtor, as the case may be, may complete the assignment referred to in its Notice but only to the entity named in the Notice and upon the terms specified therein, and such party must undertake in writing to comply with all obligations of Licensee hereunder. Nothing contained herein shall be deemed to preclude or impair any rights which Licensor may have as a creditor in any bankruptcy proceeding or the rights to object to any assumption or assignment of the Agreement in such proceedings.
    3. Upon any termination of the Agreement and the License, Licensee shall cease using and delete, destroy or return to CGS the CGS Software and SaaS Software and all copies of the CGS Software and SaaS Software, including, but not limited to, all documentation relating to the CGS Software and SaaS Software and all copies thereof and certify in writing to the Licensor that the CGS Software and SaaS Software and all copies have been deleted or destroyed. Notwithstanding any expiration hereof or any termination hereof by any party for any reason, the obligations of Licensee with respect to ownership and confidentiality, including those set forth in Sections 2 and 5 hereof, and Licensee’s obligation to pay all License Fees that may have become due before such termination, shall survive and remain in full force and effect.
    4. The Sections that by their terms are ongoing  shall survive the termination of this Schedule.
  3. Indemnification:    
    1. Licensor Indemnification:
      1. CGS represents and warrants to Licensee that it has sufficient rights in and to the CGS Software and SaaS Software to grant the License/license related Services, and to enter into the Agreement. In furtherance of the foregoing, CGS hereby agrees that it will defend, indemnify and hold harmless Licensee against any third party claim, suit, action or proceeding (a “Third-Party Claim”) brought against the Licensee to the extent that such action is based on a claim that the CGS Software or SaaS Software that is (a) used alone and not in combination with other programs, systems, software, data, hardware, equipment or technology not approved by CGS, including Third Party Software, (b) used within the scope of the License, (c) not modified except for modifications by CGS, and (d) is the most current version of the CGS Software or SaaS Software, as applicable, provided by CGS, infringes a copyright in the United States or a United States Patent, or the trade secret rights in the United States of any person; provided that such obligations of CGS are conditioned on Licensee (x) notifying CGS promptly, in writing, of any such claim or threat of such claim, (y) permitting CGS, if CGS so elects, to conduct the defense of such claim on behalf of Licensee, and (z) if CGS does not so elect, obtaining the written consent of CGS to any settlement of such claim. Licensee may, at its own cost and expense, participate in any infringement suit.
      2. Licensee’s SOLE REMEDY with respect to allegations or proof of infringement of any other party’s rights in or with respect to the CGS Software, and/or Licensee’s use of the CGS Software under the Agreement, REGARDLESS OF ANY ALLEGED NEGLIGENT MISREPRESENTATION BY CGS WITH RESPECT TO THE MAKING OF THIS NON-INFRINGEMENT REPRESENTATION, TO THE EXCLUSION OF ALL OTHER REMEDIES THEREFOR, will be for Licensee to invoke the defense and indemnity provisions set forth herein. No representation, warranty or other agreement is made by CGS hereunder respecting the intellectual property rights in and to the Third Party Software, and CGS shall have no obligation hereunder respecting such intellectual property rights.

 

      1. If a temporary or a final injunction is obtained against Licensee’s use of the CGS Software or any portion thereof by reason of an infringement of a U.S. copyright, trade secret, or patent, CGS will, at its option and expense, either (i) procure for Licensee the right to continue using the CGS Software, or (ii) replace or modify for Licensee the CGS Software or such infringing portion thereof so that it no longer infringes such copyright, trade secret or patent, so long as the utility or performance of the CGS Software is not adversely affected by such replacement or modification and the CGS Software continues to materially conform with its specifications, or (iii) if options (i) or (ii) are not commercially reasonable, then terminate providing such Services or Software and refund any prepaid fees applicable to such Services or Software for the period after such termination.
    1. Licensee Indemnification. Licensee shall indemnify, hold harmless, and, at Licensor’s option, defend Licensor from and against any Losses resulting from any Third Party Claim based on Licensee’s, or any Authorized User’s: (i) negligence or willful misconduct; (ii) use of the Software in a manner not authorized or contemplated by the Agreement; (iii) use of the Software in combination with data, software, hardware, equipment or technology not provided by Licensor or authorized by Licensor in writing; (iv) modifications to the Software not made by Licensor; or (v) use of any version other than the most current version of the Software or documentation delivered to Licensee, provided that Licensee may not settle any Third-Party Claim against Licensor unless such settlement completely and forever releases Licensor from all liability with respect to such Third-Party Claim or unless Licensor consents to such settlement, and further provided that Licensor will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
    2. Licensee further agrees to defend, indemnify, and hold CGS, its affiliates and its and their directors, officers and employees harmless from and against any and all damages awarded and settlements agreed to by Licensee from any third party claim that the use by CGS and its personnel of any materials, software, data or information provided by Licensee to CGS in connection with providing the Services to Licensee infringes or violates a third party’s patent, copyright or other intellectual property or proprietary right or a third party’s privacy rights.
    3. The obligation of a Party to indemnify pursuant to this Section 9 is subject to the indemnified Party providing the indemnifying Party with prompt written notice of such claim and the indemnifying Party controlling the defense and settlement of any such claim or action. The indemnifying Party shall be responsible for the expenses of defense and settlement of any claim that it is obligated to indemnify for pursuant to Section 4, including, without limitation, the indemnifying Party’s reasonable attorney’s fees and court costs and expenses. The indemnified Party may participate in such defense at its own cost and expense. The indemnifying Party shall not settle any such claim without the full release of the indemnified Party and, to the extent named in such claim, its affiliates and its and their directors, officers and employees, or the written consent of the indemnified Party.

(e) CGS shall: (i) maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of the Service and the Licensee Data; (ii) protect the confidentiality of the Licensee Data; and (iii) access and use the Licensee Data solely to perform its obligations in accordance with these terms and as otherwise expressly permitted (“Security Program”). Such Security Program will conform with the CGS security protocols which are further described in CGS’s most recently completed Service Organization Control 2 (SOC 2) audit reports or other similar independent third-party annual audit report (“Audit Report”). Upon Licensee’s written request, CGS shall provide Licensee with a (confidential) copy of CGS’s then-current Audit Report. In no event during the Term shall CGS materially diminish the protections provided by the controls set forth in CGS then-current Audit Report. Except with respect to a Free Trial Service, to the extent that CGS processes any Personal Data (as defined in the DPA) contained in Licensee Data, on Licensee’s behalf, in the provision of the Service, the terms of the data processing addendum at https://www.CGS.com/trustandcompliance  ("DPA") as may be updated by CGS if required by applicable laws, which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. For the purposes of the Standard Contractual Clauses attached to the DPA, when and as applicable, Licensee and its applicable Affiliates are each the data exporter, and Licensee's signing of this Agreement, and an applicable Affiliate's signing of an Order Form, shall be treated as signing of the Standard Contractual Clauses and their Appendices.

  1. Limitation of Liability:
    1. THE LIABILITY OF CGS WITH RESPECT TO ITS OBLIGATIONS TO LICENSEE UNDER THE AGREEMENT OR OTHERWISE, FOR ANY REASON AND UPON ANY CAUSE OF ACTION, EXCEPT UNDER SECTION 9 ABOVE, SHALL BE LIMITED TO THE LICENSE FEES PAID TO CGS BY LICENSEE UNDER THE AGREEMENT FOR THE RESPECTIVE SOFTWARE THAT IS THE SUBJECT OF SUCH LIABILITY.
    2. CGS SHALL NOT BE LIABLE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR LOST PROFITS, EVEN IF CGS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OF LICENSEE IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, TO BREACH OF CONTRACT, LOSS OF PROFITS, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER CLAIMS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN FAIRLY ALLOCATE AMONG THE PARTIES THE RISKS OF PRODUCT AND SERVICE NON-CONFORMITY AND THE LICENSE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF DAMAGES SET FORTH IN THE AGREEMENT.
    3. CGS shall be entitled to reimbursement from the Licensee of all costs and expenses incurred by CGS, including without limitation, reasonable attorneys’ fees, in seeking relief under the Agreement.
  2. Notice:     Any notices to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested; confirmed facsimile transmission; or delivery by recognized overnight delivery service, with the recipient’s signature required. Notices sent by mail or overnight delivery shall be addressed to the parties at the addresses above, but each party may change such address by written notice in accordance with this paragraph. Notices will be deemed communicated as of actual receipt except that mailed notices will be deemed communicated as of three (3) days after mailing.
  3. Entire Agreement of the Parties:  The Agreement, together with its Schedules and Exhibits supersedes any and all agreements, either oral or written, between the parties hereto with respect to the matters specifically addressed herein and contains all the covenants and agreements between the parties with respect to the CGS Software. Each party to the Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not embodied herein, and that no other agreement, statement, or promise not contained in the Agreement shall be valid or binding. Any modification of the Agreement will be effective only if it is in writing and signed by the parties hereto.
  4. Force Majeure: In no event shall CGS be liable to Licensee, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement, if and to the extent such failure or delay is caused by events beyond CGS’ reasonable control, including but not limited to, acts of God, flood, fire, earthquake, explosion, war, sabotage, pandemics, failures or delays in transportation or communications, failures or substitutions of equipment, labor disputes, stoppages or slowdowns or other industrial disturbances, strikes, accidents, shortages of labor, fuel, raw materials or equipment or technical failures.
  5. Publicity. During the term of this Agreement, CGS shall be entitled to include Licensee’s name on its Licensee lists and in its marketing and other promotional material, including, without limitation, on its website and in press releases.

 

  1. Export Restrictions: Licensee acknowledges that the CGS Software may be subject to U.S. export control laws, including the US Export Administration Act and its associated regulations. Licensee agrees to comply with all applicable international and national laws that apply to the CGS Software, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by the U.S. and other governments. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
  2. Partial Invalidity: If any term or provision in the Agreement or these terms and conditions is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify the Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
  3. No Waiver: No delay or failure on the part of either party in exercising any right, power or privilege under the Agreement or under any other documents or instruments given in connection with or pursuant to the Agreement shall impair any such right, power or privilege or be construed as a waiver of any event of default hereunder or any acquiescence therein. No waiver shall be valid against either party unless made in writing and signed by such party, and then only to the extent expressly specified therein.
  4. Governing Law: The Agreement and these terms and conditions will be governed by and construed in accordance with the laws of the State of New York, without regard to New York’s conflict of law principles. The sole jurisdiction and venue for any litigation arising out of the Agreement and/or these terms and conditions or breach thereof shall be the federal or state courts located in the City, County and State of New York. The parties agree to waive trial by jury in any action, proceeding or counterclaim brought by or on behalf of either party with respect to the Agreement.
  5. Counterparts: The Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.
  6. Headings: Section and subsection headings contained in the Agreement and these terms and conditions are inserted for convenience of reference only, shall not be deemed to be a part of the Agreement for any purpose, and shall not, in any way, define or affect the meaning, construction or scope of any of the provisions hereof.
  7. No Third Party Beneficiary: Except as expressly provided herein, the Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall have any right of action hereon, right to claim any right or benefit from the terms contained herein or deemed a third party beneficiary hereunder.
  8. Advice of Counsel: By executing the Agreement, Licensee acknowledges that it has been given/has had the opportunity to have been advised by independent counsel as to the ramifications of the terms and provisions of the Agreement. The signatories hereto have authority to act on behalf of the entity in executing the Agreement, for the purposes herein contained.
  9. Successors: The Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.

 

SCHEDULE A

ESCROW PROVISION AGREEMENT

  • Escrow Requirement (a) Deposit. Licensor has deposited with its Escrow Agent (the “Escrow Agent”), the source code to the CGS Software, including all existing technical manuals, system and program flow charts, file report and screen layouts, existing maintenance tools, a list of all third party development tools and all other documents and information that exist and are necessary or reasonably appropriate for a programmer to reconstruct, maintain, enhance, understand and program the CGS Software without Licensor’s aid or assistance (collectively, the “Source Code Materials”). Upon execution of the Agreement, Licensor shall add Licensee as a “beneficiary” under its Escrow Agreement, and Licensee shall receive written notification thereof from the Escrow Agent.
    1. Updates. Within thirty (30) days after the issuance of each new major release of the CGS Software, Licensor shall deposit with the Escrow Agent the Source Code Materials to such new release, as appropriate.
    2. Escrow Fees. Licensee shall, upon being invoiced, promptly pay an annual fee of $1,000, related to the escrow service. The term of the Escrow Provision Agreement described herein shall be one (1) full year, based upon a calendar year, and billed on an annual basis. If Licensee does not terminate this escrow arrangement in writing at least thirty (30) days prior to the end of its term, then it shall automatically renew each January 1st.  Fees for the initial calendar year shall be pro-rated based upon the start date of the Escrow Provision Agreement.
    3. Release from Escrow. The following shall constitute “Release Events”:
      1. The making by Licensor of a general assignment for the benefit of creditors, or the appointment of a general receiver of Licensee’s business;
      2. The filing of a petition under the United States Bankruptcy Code by or against the Licensor, which petition shall not have been dismissed within sixty (60) days after such filing; or
      3. Licensor ceasing to do business as a provider of computer software products, unless such event is a result of Licensor’s assignment of the Agreement to a party which acquires all of Licensor’s rights with respect to the CGS Software and which agrees to be bound by all of the terms contained herein;

No later than ten (10) business days after written notice from Licensee to Licensor, and by Licensor to the Escrow Agent that a Release Event has occurred, Licensee shall, if all fees hereunder are paid in full and Licensee is not otherwise in default under the Agreement, be entitled to receive, and the Escrow Agent shall be obligated to release to Licensee, the Source Code Materials placed on deposit with the Escrow Agent. Upon such a release, Licensee shall be deemed to have received all rights necessary to perpetually use Source Code Materials for its benefit, subject to subparagraph (e) below.

  1. Permitted Use. The Source Code released to the Licensee shall be used by Licensee solely to maintain the CGS Software, as defined, and shall be subject to every restriction on use and confidentiality set forth in the Agreement. Licensee agrees not to disclose the Source Code to third parties, except on a need-to-know basis, under an appropriate written agreement of confidentiality.
  2. All other terms and conditions of the Agreement remain in full force and effect.
We Are Here to Help
Contact Us