THIS LICENSE AGREEMENT (this “Agreement”) is dated this ________, 2021, between Riversand Technologies, Inc, a Texas corporation (“Licensor”)and the end user (“Licensee”). Licensor and Licensee are sometimes individually referred to herein as a “Party” and collectively as the “Parties.”
Licensor has developed and is the owner of (i) certain Internet-enabled computer software applications known as ___________, as more fully described and defined herein as the “System” and (ii) related documentation, as more fully described and defined herein as the “Documentation”; and Licensee desires to receive from Licensor a non-exclusive, non-transferable sublicense to access and use the System and Documentation of Licensor for the purpose of accessing the System and receiving the services specified herein, all on the terms and conditions set forth herein; and from time to time, Licensee may desire to permit experts and vendors (“Permitted Third Parties”) under its control and direction to access and use the System and Documentation for the limited purpose related to the project for which Licensee may retain the Permitted Third Parties. The Parties agree as follows:
1. Grant of License; Permitted Uses and Restrictions.
1.1 Limited License Grant. Subject to the terms and conditions of this Agreement, and any agreed to Addenda, Licensor hereby grants to Licensee, and Licensee hereby accepts from Licensor, a non-exclusive, non-transferable and non-assignable license to access and use the computer software application(s) described in Exhibit A attached hereto and made a part hereof (the “System”) and the related documentation described in Exhibit A (the “Documentation”).
1.2 Ownership Rights. Licensee agrees that (1) the System and Documentation are proprietary to Licensor, and Licensee shall not have any right, title or interest in or to such System or Documentation except to access and use the System and to use the Documentation in accordance herewith; (2) all applicable common law and statutory rights in and to the System (in any form or medium, including all source code and object code versions of the System) and the Documentation, including, without limitation, all rights and copyrights therein, shall be and will remain the property of Licensor; (3) the System and Documentation contain proprietary information, including trade secrets, know-how and confidential information, that are and shall remain the exclusive property of Licensor; (4) Licensee, together with all its employees, agents and other representatives, shall maintain the confidentiality of this information unless specifically authorized herein to disclose such information; and (5) Licensee shall not in any way download, copy, duplicate, reproduce, modify, de-compile or otherwise attempt to reverse engineer the System or any portion thereof or any function provided thereby.
1.5 Permitted Uses; Viruses. Licensee shall use the System and the Documentation solely for the Licensee’s own internal computing requirements and Licensee’s ancillary business purposes. Licensee shall have only the limited use rights specifically granted by this Agreement and the license granted under Section 1.1. Licensee agrees that it will use reasonable efforts to ensure that no viruses or harmful code are introduced into the System or the Platform of Licensor Licensee is responsible for any and all costs including replacement costs that result from a virus or other harmful code introduced into the System or Platform while the System or Platform is under the control of the Licensee. Further, Licensee understands that a violation of the provisions of this paragraph may result in the immediate termination of this Agreement and the licenses granted hereunder.
2. Installation, Documentation and Training.
2.1 Installation and Setup. Licensee shall be responsible for installation and setup of the System.
2.2 Documentation. Documentation is available through a link.
2.3 Training. Training is available from Licensor at standard rates.
3. Maintenance and Support.
3.1 System Maintenance and Support. Licensor shall provide System maintenance and support to Licensee as follows:
(a) Help Desk Support. Licensor shall provide Licensee with telephone assistance for Licensee inquiries related to access and use of the System and the reporting of errors or other problems with the System, during the hours set forth on Exhibit A. Such support shall include reasonable assistance in connection with access and use by Licensee of Upgrades and new Releases for the System.
(b) Error Corrections. If Licensor is notified by Licensee of an error or other problem regarding the System and such error or other problem can be verified, Licensor shall use commercially reasonable efforts to correct the error or other problem as soon as practicable.
(c) Platform Availability, Support and Security. Exhibit B attached hereto sets forth the uptime availability commitment of Licensor with respect to the Platform, as well as the Platform disaster recovery, security and redundancy measures employed by Licensor.
3.2 Updates. During the Term of this Agreement, Licensor may make Updates to the System available to Licensee by access through the Designated Equipment, at no additional cost to Licensee. As used in this Agreement, “Updates” means minor enhancements, improvements, extensions or other minor modifications to the System that Licensor agrees to make available without charge to its customers or licensees.
3.3 New Releases. During the Term of this Agreement, Licensor may make available to Licensee any new Releases of the System by remote access through the Designated Equipment. As used in this Agreement, “Releases” means enhancements or modifications to the System or new or supplementary modules that function in conjunction with the System, which represent the next generation of the System. Such new Releases shall be made available to Licensee at the same time Licensor makes them publicly available to its other customers or licensees of the System.
3.4 Obligations of Licensee. Licensee shall provide Licensor and its authorized agents with access to and use of all information and system facilities necessary or desirable to provide timely services under Section 3 of this Agreement. Licensee shall read and follow the instructions set forth in the Documentation, to the best of its abilities. Licensee shall take remedial corrective action, if necessary, under the direction of Licensor’s personnel and/or its authorized agent. In addition, following release of any Update or New Release, Licensee shall switch to such Update or New Release within a reasonable period of time following its release, but in any event prior to the release of the next Update or New Release.
3.5 Licensor shall provide the services contemplated in this Section 3 only with respect to the System accessed through operation of the Licensor Installed Software
4. Limited Warranties; Disclaimer of Further Warranties; Limitations on Liability.
4.1 Warranty of Title/Ownership. Licensor warrants that it is the owner or otherwise has the necessary rights in the System and the Documentation to grant the rights granted herein to Licensee. In addition, Licensor warrants it is the owner or otherwise has the necessary rights in the Designated Equipment and the Licensor Installed Software furnished by Licensor to Licensee hereunder. Licensee acknowledges that Licensor retains its ownership or other rights in and to the System, the Designated Equipment and the Licensor Installed Software, subject to the terms of this Agreement.
4.2 Conformance to Specifications. Licensor warrants for the sole benefit of Licensee that, if used by Licensee in accordance with the terms of this Agreement, the System will substantially conform to the specifications set forth by Licensor. Upon discovery of any nonconformance, Licensee shall promptly notify Licensor of such nonconformance. Licensor shall attempt to correct any nonconformity to which it has been properly notified as soon as reasonably practicable through the means it determines to be most appropriate, whether by telephone instructions, the issuance of updating documentation, or other methods. THE FOREGOING IS LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE WARRANTY SET FORTH IN THIS SECTION 4.2.
4.3 Warranty Exclusions. Notwithstanding the warranty provisions above, Licensor shall not have any warranty obligations with regard to the System if: (a) Licensee has used or is using the System in any manner for which is was not intended, or in any way that does not conform to any written instructions in the Documentation, (b) Licensee has accessed the System from other than the Designated Equipment or the Designated Site, (c) Licensee or any third party has modified, or attempted to modify, the System or has installed Unsupported Software in the Designated Equipment, (d) the Designated Equipment or the Authorized Software has been subjected to an extreme power surge or electromagnetic field, whether or not through the fault of Licensee, (e) Licensee has failed or refused to implement System changes recommended by Licensor or has failed or refused to operate the most current Update or New Release level released by Licensor; or (f) Licensee has failed to adequately protect its ID and Password.
4.4 Limitations on Warranty. The warranty obligations set forth in this Section 4 for the System are strictly limited to System errors. Errors caused by hardware or other equipment malfunctions or failures are expressly excluded from these warranty obligations. In addition, any errors or problems caused by any third party software applications utilized by Licensee (including Unsupported Software) which are not required to access the System are excluded from these warranty obligations.
4.5 No Further Warranties. LICENSOR DOES NOT MAKE ANY WARRANTIES THAT THE SYSTEM WILL SATISFY LICENSEE’S SPECIFIC REQUIREMENTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, LICENSOR DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SYSTEM, THE PLATFORM WHICH SERVES THE SYSTEM, THE MAINTENANCE AND SUPPORT SERVICES PROVIDED HEREUNDER, OR THE DOCUMENTATION, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. LICENSOR ASSUMES NO RESPONSIBILITY FOR AND HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE MAY NOT APPLY. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS, AND LICENSEE MAY HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE.
4.6 Limitation on Aggregate Liability; Indemnification.
(a) IN NO EVENT SHALL LICENSOR OR ANY OF ITS PERSONNEL, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES OR AGENTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING FROM THIS AGREEMENT (INCLUDING THE ATTACHMENTS AND EXHIBITS HERETO), THE PERFORMANCE OR FAILURE TO PERFORM ANY OBLIGATIONS UNDER THIS AGREEMENT, OR RESULTING FROM THE FURNISHING, PERFORMANCE, USE OR LOSS OF USE OF THE SYSTEM, THE SERVICES OR MATERIALS DELIVERED TO LICENSEE HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY INTERRUPTION OF BUSINESS OR LOSS OF REVENUE, PROFITS OR GOODWILL, WHETHER RESULTING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, STATUTE OR ANY OTHER THEORY OF LIABILITY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OF CONSEQUENTIAL DAMAGES, SO THE ABOVE MAY NOT APPLY IN THAT LIMITED REGARD.
(b) LICENSEE AGREES THAT THE MAXIMUM AGGREGATE AMOUNT OF DAMAGES FOR WHICH LICENSOR MAY BE LIABLE UNDER THIS AGREEMENT, RESULTING FROM ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO $1,000.
4.7 Savings Clause. The Parties agree that the indemnities and limitations of liability in this Agreement shall be effective only to the maximum extent, scope, or amount permitted by applicable law, and should be so construed, interpreted, and enforced. If any provision or portion of the indemnity or limitation language in this Agreement is determined to exceed the extent, scope, or amount permitted by the applicable law, or found to be void, unenforceable, or against public policy, the language in this Agreement shall be construed, interpreted, and enforced so as to preserve, to the maximum extent, scope or amount possible, the indemnity or limitation which is permitted by the applicable law. Only those portions found to be void, unenforceable, or against public policy shall be deleted, and the remainder of the language shall be read and enforced to the fullest extent possible under applicable law.
5. Confidentiality Obligations.
5.1 Information. The Parties acknowledge that each Party may have access to certain of the other Party’s confidential and proprietary information in connection with this Agreement (“Confidential Information”). Each Party will take all reasonable precautions necessary to safeguard the confidentiality of the other Party’s Confidential Information, including those required under this Agreement, those taken by such Party to protect its own confidential information and those which the other Party may reasonably request from time to time.
5.2 Confidentiality. Licensee acknowledges that the System and Documentation constitute a valuable trade secret and contain confidential and/or proprietary information of Licensor. Licensee shall not disclose or make available, directly or indirectly, all or any portion of the System or the Documentation to any third party. Licensee further agrees to take all reasonable precautions to reserve the confidentiality of Licensor’s System and Documentation and shall assume responsibility that its employees, sublicensees, assignees and Permitted Third-Parties will similarly preserve this information against third parties. Licensee shall take no steps in attempting to reverse engineer the Licensor’s System and Documentation.
5.3 Survival of Obligations. Licensee agrees that its non-disclosure obligations under this Section 7 shall survive the termination or expiration of this Agreement.
5.4 Notification of Disclosure. In the event Licensee has or obtains knowledge that any third party has gained unauthorized access to the System, Documentation or other confidential information hereunder by, through or under Licensee, Licensee shall promptly notify Licensor in writing of the full particulars of such access or disclosure.
5.5 Equitable Remedies. In the event of any actual or threatened breach of the provisions of this Section 7, Licensor may have no adequate remedy at law and, therefore, shall be entitled to immediate injunctive and other equitable relief.
5.6 Exceptions to Nondisclosure Obligation. Licensee agrees that if Licensee is legally compelled to disclose any portion of the System or Documentation, by oral questions, oral or written depositions, interrogatories, requests for production of documents, subpoena, civil investigative demand or similar process, Licensee shall promptly notify Licensor after receipt of such notice to compel disclosure, by telecopy to Licensor, so that Licensor may, at its sole option, seek an appropriate protective order. Licensee agrees to exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded any information or documents so disclosed.
6. Term and Termination of Agreement.
6.1 Term. This Agreement shall become effective on the date the user first registers for the service and continues month to month. This Agreement shall automatically be renewed each month and the user’s credit card charged (if applicable)
6.2 Automatic Termination. This Agreement and the license granted hereunder shall automatically terminate if any of the following events have occurred:
(a) Licensee has admitted in writing its inability to pay its debts when due; a petition in bankruptcy is filed by or against Licensee; Licensee has assigned a substantial portion of its assets for the benefit of its creditors; if any receiver, trustee, or similar officer is appointed to take charge of Licensee’s business or properties; or if Licensee resigns from the applicable Trustee Panel and concurrently surrenders any cases under its administration or otherwise ceases doing business as a Bankruptcy Trustee; or
(b) Licensee shall fail to comply with any obligation or provision under this Agreement; or
(c) The Term of this Agreement expires and Licensor has provided notice of non-renewal in accordance with the terms of this Agreement.
6.3 Effect of Termination. Upon termination of this Agreement, Licensee agrees to (a) immediately cease any further use of the System and the Documentation, (b) promptly return such items, and all copies thereof, together with the Designated Equipment and the Licensor Installed Software to Licensor, and (c) certify to Licensor that it has retained no copies of the Documentation and acknowledge that it has no further right to use the System, the Documentation, the Designated Equipment or the Licensor Installed Software. Upon the termination of this Agreement, Licensor shall have no further obligations to Licensee. Licensor’s foregoing rights and remedies shall be cumulative and in addition to all other rights available to Licensor, at law or in equity.
7.1 Taxes. Licensee shall pay, when due, all taxes levied or assessed in connection with the possession, ownership or operation on Licensee’s use of the System, Documentation or Designated Equipment or in connection with amounts paid or received under this Agreement, including without limitation any sales or income taxes (other than any tax that is measured by or related to the net income of Licensor or to its corporate status in a state). If any such tax is paid by Licensor, Licensee shall promptly reimburse Licensor the amount paid. If any bona fide dispute as to the liability for a tax assessed against Licensee, Licensee may contest the validity or the amount of the tax in accordance with procedures of the taxing authority. Licensee shall not permit a tax sale or seizure against any assets of the Licensor.
7.2 Export. Licensee cannot export Licensor’s System including, but not limited to, the Designated Equipment and the Licensor Installed Software without Licensor’s prior written consent.
7.3 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REFERENCE TO ANY CONFLICT OF LAWS PRINCIPLES. The Parties agree that any dispute shall be tried in the federal and state courts in Harris County, Texas.
7.4 Construction and Interpretation. The Introduction and Recitals are considered a part of this Agreement. Words of any gender used in this Agreement include any other gender, and words in the singular include the plural, where the context requires. If any provision of this Agreement is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provision has the meaning which renders it valid. Headings used herein are descriptive only and shall have no legal force or effect whatsoever. The term “affiliate” as used in this Agreement is applicable to any company directly or indirectly owned or controlled by Licensor or its majority owner. The word “corporation(s)” as used in this Agreement includes limited liability companies and such other similar organizations as are duly formed and existing pursuant to state law. The word “partnership(s)” as used in this Agreement includes limited liability partnerships and such other similar organizations as are duly formed and existing pursuant to state law. All words in this Agreement are deemed to include all genders and the singular as well as the plural, as the context of this Agreement requires.
7.5 No Waiver. No waiver of any breach of the Agreement shall constitute a waiver of a subsequent breach.
7.6 No Assignment. Licensee shall not assign or attempt to assign, in whole or in part, this Agreement or any of its rights and obligations hereunder, without the prior written consent of Licensor. Nothing herein shall be construed to in any way limit Licensor’s rights to assign this Agreement and its rights and obligations hereunder.
7.7 Severability. Each provision contained in this Agreement shall for all purposes be construed to be separate and independent. If any provision of this Agreement or the application thereof to any person or circumstance will to any extent be invalid and unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions of this Agreement; and the remainder of the Agreement, and the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, it being hereby agreed that such provisions are severable and that this Agreement will be construed in all respects as if such invalid or unenforceable provisions were omitted. Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
7.8 Legal Fees. In the event that litigation occurs, the prevailing party shall be entitled to recover attorneys’ fees.
7.9 Binding Effect. This Agreement, and the rights and obligations hereunder, shall inure to the benefit of and be binding upon the undersigned Parties and their respective successors and permitted assigns.
7.10 Entire Agreement; Amendments. This Agreement constitutes the entire agreement of the Parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements and understandings (whether oral or in writing) with respect to the subject matter hereof. Any amendments or modifications to this Agreement must be in writing signed by both Parties.