Please read this agreement carefully. This is a legal agreement between you and AscendoSoft Inc. for the software product identified above, which includes computer software and related documentation.
Capitalized terms used herein shall be defined as follows:
1.2 “Software” means the proprietary computer software owned or distributed by AscendoSoft, regardless of format or media, for which Client is granted a License (as defined in paragraph 2.1 below), and related user documentation, and subsequent up-dates, regardless of form or media.
II. LICENSE AND ACCEPTANCE
2.1 Licenses Granted. AscendoSoft hereby grants Client a nonexclusive, nontransferable, non-assignable (subject to Section 8.11) license to use the Software solely for Client’s own internal data processing operations, and in accordance with specifications contained in the applicable documentation; and to copy the Software for archival or backup purposes only. All archival and backup copies of the Software are subject to the provisions of this Agreement, and all titles, trademarks, and copyright and restricted rights notices shall be reproduced in such copies.
2.2 Copyright. Client shall not copy, modify, display, transfer to another entity, or use the Software in whole or in part, except as expressly provided for in this license. Client shall not cause or permit the reverse engineering, disassembly, or decompilation of the Software. Client understands and acknowledges that the Software and the systems, ideas, methods of operation, and information contained therein are proprietary trade secret information of AscendoSoft. Software is protected by the U.S. Copyright Laws. Use and its disclosure must be carefully and continuously controlled. All copyright and trademarks must be left in all sources or documentation.
2.3 Verification. AscendoSoft reserves the right to audit Software for use as described in this Agreement.
III. PAYMENT PROVISIONS
3.1 Invoicing and Payment. Initial license and Support Services fees are due and payable no later than thirty (30) calendar days after the Effective Date (unless otherwise agreed upon in the initial Order Form). Subsequent fees include, but are not limited to renewal of support services, additional licenses, or consulting work. Such fees are due and payable no later than thirty (30) calendar days from the date of invoice (unless otherwise agreed upon in the Order Form). Any failure by Client to timely pay an invoice shall constitute a material breach of this Agreement.
3.2 Taxes. The fees listed in this Agreement do not include taxes. If AscendoSoft is required to pay sales, use, property, value-added, or other federal, state or local taxes based on the Licenses granted in this Agreement or on Client’s use of Software, then such taxes shall be billed to and paid by Client; this shall not apply to taxes based on AscendoSoft’s income.
IV. LIMITED WARRANTY, LIMITATIONS ON LIABILITY
4.1 Limited Warranty. For a period of one (1) year from Effective Date (the “Warranty Period”), AscendoSoft warrants that the Software, under normal use, will perform in accordance with specifications contained in the applicable documentation.
4.2 Non-infringement Warranty. AscendoSoft represents and warrants that the Software, when properly used as contemplated herein, will not infringe or misappropriate any United States copyright, trademark, patent, or the trade secrets of any third persons. Upon being notified of such a claim, AscendoSoft shall, at its option (i) defend through litigation or obtain through negotiation the right of Client to continue using the Software in question; (ii) rework the Software in question so as to make it non-infringing while preserving the original functionality, or (iii) replace the Software in question with functionally equivalent software. If none of the foregoing alternatives provide an adequate remedy, then Client’s exclusive remedy is to request a return of the amounts paid for the Software in question. All corrections shall be as fully warranted as the original work through expiration of the original Warranty Period.
4.3 Limitation of Remedies. AscendoSoft’s entire liability and Client’s exclusive remedy under this Section 4 for any breach of warranty relating to or arising from the Software (other than infringement as described in paragraph 4.2 above) shall be replacement or repair with appropriate corrections of the Software not meeting warranty during the Warranty Period, or if such replacement or repair cannot be effected promptly, return by AscendoSoft to Client of all applicable fees paid for Software hereunder not to exceed the total license fees paid to AscendoSoft by Client under this Agreement within the previous twelve (12) months.
4.4 Except as specifically set forth herein, AscendoSoft makes no representation or warranty, express or implied, with respect to the Software, its non-infringement, title, utility, merchantability or fitness for a particular purpose, or any implied indemnities, or covenants, representations or warranties made during the course of trade or course of dealing or otherwise.
In no event shall AscendoSoft be liable for any indirect, special, incidental or consequential damages, including but not limited to costs of procurement of substitute products or services, loss of use, loss of data, business interruption, failure to remove personally identifiable information, or lost profits, arising from or in connection with this agreement or the use of the Software. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
4.5 Each party shall be liable to the other, and each shall indemnify the other for any injury or damages resulting from or related to its gross negligence or willful misconduct of the company, its agents or representatives in connection with the performance of its obligations and/or the exercise of its rights hereunder.
THE PROVISIONS OF THIS SECTION “IV” ALLOCATE CERTAIN MATERIAL, COMMERCIAL RISKS BETWEEN ASCENDOSOFT AND CLIENT. CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT ASCENDOSOFT’S PRICING REFLECTS THIS ALLOCATION OF COMMERCIAL RISK, EXCLUSIVE REMEDIES AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
V. TERM AND TERMINATION
5.1 Term. This Agreement shall begin on the Effective Date and shall continue in full force and effect until or unless terminated as provided herein. Software is provided with a full use ten (10) day evaluation period after which time this agreement terminates unless Software is purchased. No refunds will be allowed after purchase of Software.
5.2 Termination. This Agreement may be terminated by either party upon 30 days’ prior written notice to the other party, given after the other party has materially breached the provisions of this Agreement, and effective if the other party has not cured such breach within such 30 day period. Such notice shall specify the basis for termination, except in the case of breaches due to failure to pay, for which the non-breaching party may terminate upon 15 days’ prior written notice if the breaching party does not cure such failure to pay within such 15-day period. Any termination or expiration shall not relieve Client of its obligation to pay AscendoSoft hereunder for work performed prior to the effective date of such termination or expiration.
5.3 Actions Upon Termination. Upon termination of this Agreement for any reason, Client shall immediately cease using, uninstall, and destroy the Software, and any copies or portions thereof, in any form and recorded on any medium or device.
VI. SUPPORT SERVICES
6.1 Terms And Conditions.
A. Term of Support. “Support Services” shall commence at the Effective Date until one (1) year from the date of purchase. Support Services shall automatically renew each year thereafter and Client shall pay AscendoSoft the following year’s total Support Services fee thirty (30) days prior to the expiration of the then current term, unless Client provides AscendoSoft with a notice of termination thirty (30) days prior to such expiration (the “Support Services Period”).
B. Software Updates. AscendoSoft will provide to Client software updates to correct problems in the Software verified by AscendoSoft, and other updates, including minor feature changes and performance improvements, made generally available to AscendoSoft’s customers to which AscendoSoft provides Software support.
C. New Releases and Enhancements. AscendoSoft will provide to Client all new releases, upgrades and enhancements to the Software, including new product features and major functionality improvements, which are of general interest and which are announced by AscendoSoft as being available. This enhancement service does not cover new software products, new or alternate operating environments, or translation of the software into a language other than English.
D. Telephone/Email Assistance. AscendoSoft will assist Client by reasonable contact from AscendoSoft’s service location, in identifying, verifying and resolving problems in the use and operation of the Software.
6.2 The Software, upgrades and any updates and/or enhancements provided hereunder shall remain the sole property of AscendoSoft. Client shall not assert any right, title, or interest in such works except for the non-exclusive license granted to Client hereunder.
6.3 Disclaimer of warranty and limitation of liability for AscendoSoft Support Services.
A. Except as expressly set forth in this agreement, AscendoSoft expressly disclaims any and all warranties, express or implied, concerning the Support Services hereunder, including any warranty of merchantability or fitness for a particular purpose, or any implied indemnities.
B. In no event shall AscendoSoft’s cumulative liability for any claim arising in connection with Support Services hereunder exceed the total Support Services fees paid to AscendoSoft by client under this agreement within the previous twelve (12) months.
C. In no event shall AscendoSoft be liable for costs of procurement of substitute services, or for any loss of data, loss of use, interruption of business, failure to remove personally identifiable information, lost profits or any other consequential, incidental, indirect or special damages, however caused and on any theory of liability, arising out of this agreement or the Software. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
D. Either party shall be liable to the other, and each shall indemnify the other for any injury or damages resulting from or related to its gross negligence or willful misconduct of the company, its agents or representatives in connection with the performance of its obligations and/or the exercise of its rights hereunder for the Support Services.
By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Confidential information shall be limited to the Software and other information clearly marked as “Confidential”.
A party’s Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no act of omission of the other party; or (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; or (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.
The parties agree, both during the term of this Agreement and for a period of two years after termination of this Agreement, to hold each other’s Confidential Information in confidence. The parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information 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 provisions of this Agreement.
8.1 Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed by the parties hereto or by any third person to create the relationship of principal and agent or partnership or of any association between any of the parties hereto other than independent contracting parties.
8.2 Governing Law. This Agreement shall be governed by, construed and enforced in accordance with the internal laws of the State of Washington, USA without giving effect to principles and provisions thereof relating to conflict or choice of laws.
8.3 Notice. All written notices under this Agreement shall be deemed to have been given if sent by email, certified or registered mail, or express courier to AscendoSoft’s or Client’s primary address as listed in this Agreement.
8.4 Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
8.5 Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
8.6 Consent to use of Data. Client agrees that AscendoSoft and its affiliates may collect and use technical information gathered as part of the product support services, if any, related to the Software. AscendoSoft may use this information solely to improve our products or to provide customized services or technologies to Client and will not disclose this information in a form that personally identifies Client.
8.7 Links to Third Party Sites. AscendoSoft is not responsible for the contents of any third-party sites or services, any links contained in third-party sites or services, or any changes or updates to third-party sites or services. AscendoSoft is providing these links and access to third-party sites and services to Client only as a convenience, and the inclusion of any link or access does not imply an endorsement by AscendoSoft of the third-party site or service.
8.8 Agreement to Backup System. Client agrees that it will be the responsibility of the Client to create periodic backups of the data and documents stored within the Software as often as the Client deems appropriate. AscendoSoft is not liable in any way for the loss of business information, data, or documents due to system or computer failure, regardless of whether the failure is caused from hardware or software malfunctions.
8.9 Export Administration. If the Software is for use outside the United States, Client agrees to comply fully with all relevant regulations of the United States Department of Commerce and with the United States Export Administration Act to assure that the Software and media are not exported in violation of United States law.
8.10 Entire Agreement. This Agreement constitutes the complete Agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the Software specified herein. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party.
8.11 Transfer and Assignment. Client shall not sell, transfer or assign any right or obligation hereunder without the prior written consent of AscendoSoft in each instance.
8.12 Force Majeure. Neither party shall be in default of the terms hereof if a breach is due to a natural calamity, act of government, or similar cause beyond the control of such party; provided, however, that should such force majeure endure for more than ninety (90) days, the non-breaching party may terminate this Agreement, at its election, subject to Section 5.
8.13 Survival. Sections III, IV, 6.2, 6.3, VII, and VIII shall survive any partial or complete termination or expiration of this Agreement.