This END USER LICENSE AGREEMENT (“Agreement”) is entered into by and between the end user of the Sound Intelligence Software (as defined below) (“Customer”) and Sound Intelligence Inc. (“Sound Intelligence” or “Licensor”) (each a “Party” and collectively the “Parties”), and is valid and effective as of the date on which Customer has agreed to this Agreement (the “Effective Date”) by clicking on Customer’s “I AGREE” box below (at the end of this Agreement) OR BY DOWNLOADING, INSTALLING, ACTIVATING OR COPYING OR OTHERWISE USING THE SOFTWARE. This Agreement contains the sole and exclusive terms and conditions pursuant to which Customer shall license use of the Software.
Section 1 – License
Customer agrees to pay the subscription-based license fee (“License Fee”) to Sound Intelligence’s Reseller (“Reseller”) of the software, hardware, and associated information and materials (“Software”) provided to Customer for the term defined in and pursuant to the terms of the agreement between Customer and Reseller (“Customer’s Reseller Agreement”). Customer agrees that any breach of Customer’s Reseller Agreement constitutes a material breach of this Agreement.
Upon the Effective Date, Sound Intelligence hereby grants to Customer a non-exclusive, non-transferable, and revocable license to the Software (“License”), which shall include the following Customer rights only: (a) to access and use the Software during the Term (as defined below) for Customer’s business purposes only, with the license code to be provided by Licensor; (b) to copy the Software solely for back-up or archival purposes only, and for Customer’s own internal use only; and (c) to install and use the Software at Customer’s premises, provided, however that such installation and use complies with the terms and conditions as set forth in this Agreement.
The License granted hereunder shall be for the Software solely in the object code form, and the human readable (source code) form of the Software shall not be licensed or disclosed to the Customer, is not part of the License set forth in this Agreement, and remains confidential and proprietary to Licensor.
Customer agrees and acknowledges that any professional services purchased from Licensor, including but not limited to setup support, training, implementation, or customization, (collectively "Professional Services”) are subject to Sections 5, 6, and 7 of this Agreement.
2. Additional License Restrictions and Duties
Customer agrees that the Software is copyrighted and is not in the public domain. Title to all intellectual property rights, including, but not limited to, patents, copyrights, trademarks, service marks and trade secret rights in and title to all copies of the Software (in any form) and all derivative works, updates, modifications, improvements, and enhancements thereto are and will remain the property of, Licensor. No title to or interest in such rights is transferred or assigned to Customer in this Agreement. Customer shall not modify, disclose, or use for any purpose, other than Customer’s business purposes, any proprietary, copyrighted, or confidential information in connection with the Software.
Subject to and without limiting the foregoing, Customer shall not: (a) assign, lease, transfer, sublicense or encumber any portion of the Software; (b) reverse engineer, decompile or disassemble all or any portion of the Software; and/or (c) create, write, or develop derivative work or any other program, data, or information based on Sound Intelligence’s confidential information.
Customer shall take all reasonable and appropriate actions, by instruction, agreement or otherwise, in order to comply with Licensor’s rights and Customer’s duties set forth herein, including without limitation any and all actions to prevent or limit the ability of any person or entity from accessing or using the Software in a manner that is inconsistent with or contrary to the terms of this Agreement.
Customer agrees to hold harmless and indemnify Licensor for any claims, causes of action, damages and/or liabilities (including without limitation attorneys’ fees) to which Licensor is subject arising from or relating in any manner to any unauthorized use of the License as set forth herein.
Customer agrees and acknowledges that it has the sole and exclusive responsibility and duty to satisfy and comply with any and all laws governing data security and privacy, including without limitation any applicable statute, regulation, and/or guideline applicable to Customer and its operations. Customer also agrees and acknowledges that Licensor may collect and use data or information for the sole purpose of developing, enhancing, and improving the Software.
3. Term and Termination
This License commences on the Effective Date and shall remain in force through the subscription term agreed with Reseller under Customer’s Reseller Agreement (the “Term”), subject to automatic annual renewals unless otherwise agreed with Reseller, unless terminated in accordance and compliance with this Section 3.
This Agreement and License shall immediately terminate if: (i) Customer breaches any provisions of this Agreement (including any breach of Customer’s Reseller Agreement), including without limitation any breaches of the warranties set forth in Section 5 below and/or any failure to pay any License Fee as required by the Agreement; (ii) Customer becomes bankrupt or insolvent; or (iii) Customer and Sound Intelligence agree in writing to terminate this Agreement. The above grounds for termination are collectively referred to herein as “for cause.”
Termination of the License shall be in addition to any other remedies that either Party may have.
In addition to termination of this Agreement for cause by Licensor as set forth above, Licensor also may, upon any of the “for cause” grounds for termination, in its sole and reasonable discretion, limit the License, terminate access to the Software, and/or withhold or suspend any Services.
Upon termination of this Agreement: (i) Customer's right to gain access to and use of the Software shall end and Customer shall, and shall cause its Affiliates to, immediately cease access to and use of the Software; (ii) Customer shall pay all outstanding License Fees owed, if any; (iii) Each Party shall destroy the other Party’s proprietary and confidential information, if any, and confirm and warrant such destruction of proprietary and confidential information within three (3) days of termination; (v) Customer shall destroy any and all copies of the Software, and confirm and warrant such destruction of all Software copies in writing to Licensor within three (3) days of termination; and (iv) All of Customer's rights and all Licenses granted under this Agreement shall end, provided that any and all provisions of this Agreement necessary for the interpretation and enforcement of Customer’s post-termination duties shall survive termination of this Agreement.
4. Documentation and Updates
Concurrently with the delivery of the Software, Licensor or Reseller shall, at its expense, provide Customer with Licensor’s manuals, installation guides and other documentation in English which shall be sufficient to enable Customer to use the Software (collectively, the “Documentation”).
Licensor may, in its sole discretion, provide updates, enhancements and revisions to the Software or Documentation as appropriate or necessary to update such Software or Documentation.
5. Warranty, Limitations, and Disclaimer
Licensor warrants that the Software does not infringe, misappropriate, or otherwise violate the intellectual-property rights of any third party (Licensor’s “IP Warranty”). This IP warranty does not apply to, and is expressly excluded from covering, any third-party software or open-source software used by or contained within the Software, including the open-source software which may be covered by and subject to restrictions in other license agreements. By accepting this Agreement, you are also accepting such open-source software license terms, if any. Copyrights to open-source software are held by the copyright holders indicated in the copyright notices in source files.
Customer warrants that its signatory to this Agreement has actual and apparent authority to enter into this Agreement.
Customer agrees and acknowledges that Licensor makes no representations or warranties of any kind with regard to the Software, which is licensed and provided to Customer on an “AS IS” basis, and that the Software may contain errors and defects.
Customer also agrees and acknowledges that the Software is not intended to cure, diagnose, or treat a disease or condition; the Software is not intended to alter any body structure or function; and the Software is not a medical device, whether or not used in connection or conjunction with a medical device.
Customer acknowledges and agrees that SI may collect and process certain data relating, as applicable, to the installation and use of Software (“System Data”). SI will use System Data for the purposes of facilitating the provision of updates and upgrades of the Software, support and other services to you with regard to the Software and further development of the Software, other software and other technologies.
Customer further acknowledges and agrees that Licensor has no obligation, responsibility, duties, and/or liabilities for any modifications, integrations, customizations, configurations, and/or use by Customer of the Software.
Subject to and without waiving or limiting the foregoing: (a) Customer is solely responsible for its actions, inactions, and decisions regarding the use of the Software, including without limitation the settings, configuration, integration, and/or operation of the Software (individually and collectively, “Customer’s Software Use”); (b) Customer is solely and exclusively responsible and liable for any alleged or actual claims, losses, damages, injuries, causes of action, liabilities, expenses, and/or fees (including attorneys’ fees) that are alleged to be caused in whole or part by Customer’s Software Use; and (c) Licensor has no responsibility, duties, liabilities, or obligations regarding any: (i) software and services provided by any person or entity that is not a Party to this Agreement (including without limitation any reseller and/or integrator of the Software); (ii) Customer owned, leased or licensed hardware or software, (iii) Customer's local area network, wide area network, internet access and telecommunication lines; (iv) Customer's network equipment, including firewalls, routers, switches, hubs and wi-fi; (v) software problems created through Customer's actions, inactions, negligence, fault, or use of the Software other than as expressly provided for in the Documentation; or (vi) any force majeure event as defined by governing law.
UNLESS OTHERWISE PRECLUDED BY LAW, LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE SOFTWARE AND/OR ANY PROFESSIONAL SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FOR THE AVOIDANCE OF DOUBT, CUSTOMER ACKNOWLEDGES AND AGREES THAT LICENSOR DOES NOT WARRANT THAT THE USE OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT LICENSOR SHALL NOT BE RESPONSIBLE FOR ANY LOST CUSTOMER DATA, THAT CUSTOMER IS RESPONSIBLE FOR SECURING INDEPENDENT BACKUP OF ALL CUSTOMER DATA AND OTHER CONTENT, AND THAT CUSTOMER IS SOLELY AND EXCLUSIVELY LIABLE AND RESPONSIBLE FOR COMPLIANCE WITH ANY AND ALL APPLICABLE DATA SECURITY AND PRIVACY LAWS IN CONNECTION WITH CUSTOMER’S SOFTWARE USE AND/OR OTHERWISE.
SUBJECT TO AND WITHOUT WAIVING OR LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR ALSO MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT: (a) THE SOFTWARE AND/OR PROFESSIONAL SERVICES WILL SATISFY ANY SPECIFICATIONS OR OTHER STANDARDS; (b) CLIENT’S BUSINESS AND/OR OPERATIONS WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS; (c) CLIENT’S DATA OR INFORMATION WILL BE SECURE OR NOT OTHERWISE ACCESSED, STOLEN, LOST, MISUSED, ENCRYPTED, MISAPPROPRIATED, MISUSED, DISRUPTED, IMPACTED, AND/OR CORRUPTED; AND/OR (d) ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
6. Limitation of Liability
EXCEPT WITH RESPECT TO A BREACH BY CUSTOMER OF THE LICENSE AND ANY TERMS AND CONDITIONS SET FORTH HEREIN, NEITHER PARTY (INCLUDING ITS AFFILIATES, REPRESENTATIVES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSOR'S AUTHORIZED VENDORS, SUPPLIERS AND DISTRIBUTORS) SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGES OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, INCOME, OR BUSINESS OPPORTUNITIES (EACH AND ALL OF WHICH, FOR PURPOSES OF CLARITY, ARE BARRED EVEN IF ALLEGED TO BE “DIRECT” DAMAGES), EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF. LICENSOR'S (INCLUDING LICENSOR'S AFFILIATES’, RESELLERS’, REPRESENTATIVES’, AND/OR AUTHORIZED VENDORS’) TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ANY LOSS, COST, CLAIM OR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES ACTUALLY PAID TO LICENSOR BY RESELLER FOR THE SOFTWARE AT ISSUE IN THE PREVIOUS TWELVE (12) MONTH PERIOD PRIOR TO THE INITIATION OF ANY CLAIM BY CUSTOMER.
7. Indemnification
Licensor shall defend, indemnify, and hold harmless Customer from and against any liability, damages, fees, expenses, losses, demands, costs (including defense costs), expenses, and fees (including attorneys’ fees) arising from or caused by a claim against Customer by a third party that Licensor breached the IP Warranty set forth in Section 5 of this Agreement (an “IP Claim”). Customer shall provide notice to Licensor of any IP Claim, within ten (10) days of Customer’s notice of any such claim. Failure to provide such notice shall negate and nullify Customer’s indemnification rights. Licensor shall have sole and absolute discretion to control the defense of any IP Claim, including the right to retain counsel and reach any settlement.
Customer shall defend, indemnify, and hold harmless Licensor and its present and former partners, principals, directors, employees, agents, attorneys, and contractors (collectively the “Licensor Indemnitees”) from and against any liability, damages, fees, expenses, losses, demands, costs (including defense costs), expenses, and fees (including attorneys’ fees) arising from or related in any manner to: (a) Customer’s Software Use, (b) any third-party claim regarding Customers’ Software Use, (c) any third-party claim regarding any alleged or actual act or omission of Customer and/or its present and former partners, principals, directors, employees, agents, attorneys, and/or contractors, and/or (d) Client’s data and/or information security and/or any allegation or claim that any data or information was, has been, or may be accessed, stolen, lost, misused, encrypted, misappropriated, misused, disrupted, impacted, and/or corrupted.
8. General Provisions
a. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without regard to its governing conflicts of laws.
b. The Parties agree that any dispute arising in connection with the interpretation of this Agreement or the performance of any Party under this Agreement or otherwise relating to this Agreement will be treated in accordance with the following procedures:
The dispute shall be referred for resolution first to the Chief Executive Officer and/or President of Licensor and his/her counterpart at Customer. Such procedure will be invoked by either Party presenting to the other a "Notice of Request for Resolution of Dispute" (a "Notice") identifying the issues in dispute sought to be addressed hereunder. A personal, telephonic, or video conference of those executives will be held within ten (10) days after the delivery of the Notice. In the event that the conference between these executives, for any reason, does not take place or does not resolve the dispute, either Party shall at any time thereafter refer the dispute to binding arbitration by a panel of three (3) arbitrators located in Chicago, Illinois or such other location as mutually agreed upon between the Parties, in accordance with the rules of Judicial Arbitration and Mediation Services (“JAMS”). Each of the Parties will name one arbitrator. The third arbitrator will be selected by the two named arbitrators from the list of the current active arbitrators of JAMS. The arbitration will be binding, final, not appealable, enforceable, and in lieu of any right to sue or seek other arbitration in any court or tribunal, claim or suit. The arbitration award shall be in writing and shall specify the legal basis for the award.
c. Neither Party may assign this Agreement or any right or obligation arising under this Agreement without the prior written consent of the other Party, except that Licensor may assign this Agreement to an affiliate or as part of a merger or acquisition or sale of all or substantially all of its assets or shares, provided that the affiliate or surviving or acquiring entity agrees in writing to be bound by this Agreement.
d. If any provision of this Agreement is found invalid or unenforceable under any applicable laws or regulations, that provision will be deemed stricken from this Agreement, and the invalidity or unenforceability will not invalidate any other provision of this Agreement.
e. This Agreement constitutes the final and complete expression of all the terms and conditions with respect to the subject matter of this Agreement, and supersedes all prior proposals, understandings, and negotiations between the Parties, whether written or not. Any representations, oral statements, promises, or warranties made by either Party that differs in any way from the terms and conditions of this Agreement shall be of no force or effect.
f. No waiver of any right under this Agreement shall be deemed to be a waiver of any future such right or of any other right arising under this Agreement. No addition to or amendment, modification, or waiver of any provision of this Agreement shall be binding upon either Party unless made in writing and signed by a duly authorized representative of that Party.
e. Any notice required or permitted under this Agreement shall be deemed adequate and sufficient if sent to the following: (1) to Sound Intelligence: by email to SalesOperations@soundintel.com; (2) to Customer: by any email address or other contact information provided by Customer to Reseller, or by Reseller to Licensor, and/or any other email address or other contact information reasonably available for Customer.
CUSTOMER AGREES AND ACKNOWLEDGES THAT: (A) CUSTOMER HAS HAD REASONABLE NOTICE OF TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING A FULL AND FAIR OPPORTUNITY TO REVIEW THIS AGREEMENT; (B) CUSTOMER ACCEPTS THIS AGREEMENT, AND THIS AGREEMENT IS A VALID AND ENFORCEABLE CONTRACT BETWEEN CUSTOMER AND LICENSOR; AND (C) THE PERSON CLICKING THE “I AGREE” LINK OR DOWNLOADING, INSTALLING, ACTIVATING OR COPYING OR OTHERWISE USING THE SOFTWARE HAS ACTUAL AND APPARENT AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER.