CMS Software License Agreement

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BRODIEWARE LIMITED D/B/A NEWHAVEN SOFTWARE ("NHS") IS WILLING TO LICENSE ITS "CMS" SOFTWARE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SOFTWARE LICENSE AND SUPPORT AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY CLICKING ON "I ACCEPT", YOU WILL INDICATE YOUR AGREEMENT WITH THEM. ALL REFERENCES TO "WE", "US", OR "OUR" SHALL MEAN NHS. YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND YOUR ENTITY TO THESE TERMS, IN WHICH CASE "YOU" OR "YOUR" SHALL REFER TO YOUR ENTITY AND ANY OF YOUR AFFILIATES THAT AGREE IN WRITING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY, THEN WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU.

SOFTWARE LICENSE AND SUPPORT AGREEMENT
GENERAL TERMS AND CONDITIONS
THIRD PARTY SOFTWARE LICENSES

  • 1. CMS Software; Third Party Software Licensed Under Separate Agreements.
    • 1.1 The Software licensed under this Agreement is our Commerce Management System known as "CMS", and consists of NHS' proprietary computer programs in object code form only and user manual, including any updates or upgrades provided by NHS (the "Software").
    • 1.2 THIRD PARTY SOFTWARE IS LICENSED UNDER SEPARATE AGREEMENTS THAT CAN BE VIEWED AT: http://updates.newhavensoftware.com/docs/thirdparty.pdf. YOUR ACCEPTANCE OF THESE GENERAL TERMS AND CONDITIONS IS ALSO AN ACCEPTANCE OF THESE THIRD PARTY AGREEMENTS AND ACKNOWLEDGEMENT OF ANY THIRD PARTY DISCLOSURES THAT ARE VIEWABLE AT THE ABOVE URL.
  • 2. Subscription License Grant; Term; Guaranteed Payment.
    • 2.1 Subject to this Agreement and limited to the Term (defined below), we grant to you a worldwide, non-exclusive, nontransferable (except as expressly permitted herein) license to use the Software only for purposes described in our user manual. Your use of the software is limited to the authorized use stipulated in purchase order form(s) signed by the parties ("Order Forms"). You may outsource the operation of the Software solely for your internal use. We retain sole and exclusive ownership rights of all intellectual property embodied in the Software, and we reserve all rights not expressly granted in this Agreement.
    • 2.2 The term of this Agreement will commence on the effective date and continue for term stipulated in the applicable Order Form ("Initial Term"), unless terminated earlier as provided in this Agreement, and then shall automatically renew for subsequent one (1) year terms thereafter, unless either of us gives written notice of non-renewal at least ninety (90) days prior to the end of the then current term (the Initial Term and subsequent renewal terms being referred to as the "Term"). Except for a termination of this Agreement by you for cause, in the event of any termination of this Agreement for any reason prior to the expiration of the Initial Term, the entire balance of unpaid subscription fees for the remainder of the Initial Term shall accelerate and become due and payable immediately in a lump sum.
    • 2.3 Subject to the guaranteed payment provision provided in Section 2.2, you may terminate this Agreement and the license granted herein at any time for convenience by providing thirty (30) days written notice to us.
    • 2.4 You may acquire additional licenses, modules, add-ins, products, and services from time to time by executing mutually acceptable Order Forms.
  • 3. Restrictions. You may not: (i) distribute or transfer the Software, or permit others to use the Software, except for outsourced data centers; (ii) modify or translate the Software; (iii) reverse engineer, decompile, or disassemble the Software, except to the extent this restriction is expressly prohibited by applicable law; (iv) create derivative works based on the Software; (v) merge the Software with another product; (vi) copy the Software, except for a reasonable number of Software copies for back-up and archival purposes; or (vii) remove or obscure any proprietary rights notices or labels on the Software. All rights not expressly granted herein are expressly reserved by us.
  • 4. Monitoring Rights. You agree that we may access the Software electronically on your servers via a web service for purposes of monitoring your compliance with this Agreement. You agree to maintain that all servers and workstations that access the Software also maintain continuously access to the Internet.
  • 5. Subscription Fees; Taxes; Fee Increases.
    • 5.1 You agree to pay subscription fees in accordance with the applicable Order Form. Subscription fees consist of a single fee payable periodically that covers the licensing of the Software and the Maintenance and Support Services described in Section 6 below. Subscription fees do not cover optional professional services, such optional professional services to be included in a separate work order. Fees are exclusive of sales, use, or other transaction-based taxes, and you agree to pay all such charges either as levied by taxing authorities or invoiced by us.
    • 5.2 At least ninety (90) days prior to the end of the Initial Term or any subsequent renewal term, we reserve the right to notify you of an increase in subscription fees to become effective for the next renewal term; provided, however, that the increase shall not exceed 5% over the subscription fees for the then-current term. Notwithstanding anything to the contrary contained herein, you may terminate this Agreement for convenience by written notice to us within thirty (30) days of your receipt of our notice regarding the fee increase, such termination to be effective upon the expiration of the then-current term.
  • 6. Maintenance and Support Services. The following services are included in the subscription fees, unless indicated otherwise below.
    • 6.1 Normal Hours. Our normal hours of operation are 7:00 am to 6:00 pm Pacific Time, Monday through Friday, excluding federal holidays and up to five (5) additional days at our discretion (we will provide you with advance notice of such days by email) ("Normal Hours"). Each of these days is deemed to be a "Working Day".
    • 6.2 Help Desk Services. Our "Help Desk" support services include (during Normal Hours): (i) issue determination; (ii) issue resolution including telephone consultation, configuration changes, validation that Software operates in accordance with our user manual, , and access to our website support files. At our discretion, we may provide you with Help Desk support during times other than our Normal Hours and/or beyond the maximum number of monthly and/or annual support Incident limits (if applicable) at our then standard rates, and in such event, you will be responsible for paying for such additional Help Desk support.
    • 6.3 Software Enhancements. Our Software enhancements provided at no additional charge include any minor release, update, modification or "bug fix" (designated by a renumbered release number such as 9.0 to 9.1) which does not necessarily provide materially new functionality, as determined by us in our sole discretion, and made generally available to our supported customers. We do not charge for major enhancements that include major functional revision to the Software (designated by a renumbered release number such as 8.1 to 9.0).
    • 6.4 Maintenance Services. Our maintenance services include reasonable commercial efforts to correct and resolve errors that (i) are reproducible and that cause substantial non-conformity with our documentation, and (ii) which you report to us. We may perform remote diagnostics to determine the existence and nature of an error. You agree to promptly provide us with all information requested by us to reproduce such errors. For each such error, we will use reasonable commercial efforts to provide you with a work-around, a software patch or, if we are unable to provide you with either of the foregoing, a specific action plan for addressing the error, including a good faith estimate of the time required to correct and resolve the error. You agree to notify us immediately of any suspected error and to provide reasonable detail of the nature of and circumstances surrounding the error. "Reasonable detail" includes complete Software, hardware, and network configuration information as requested by us. We may perform any error correction work via remote telecommunications. If such remote support is unavailable, in our opinion, to satisfactorily resolve any confirmed error, we may require you to provide data files on removable media via overnight courier (or other shipping method that provides end-to-end tracking) or other mutually agreed upon electronic medium at your expense.
    • 6.5 Response Times. NHS will use reasonable commercial efforts to communicate with you, by telephone, e-mail, fax, or our website within the following targeted Response times, regarding errors that you reports during Normal Hours. For purposes of this Agreement, a "Response" means our acknowledgment of a reported error, and does not necessarily mean that a resolution will be achieved.
    • 6.6 Failure Levels. Failure levels determined by us are: (i) fatal - Software not operational; (ii) severe impact - failure of Software functionality or intermittent system failure; (iii) degraded operations - non-critical features consistently malfunction; (iv) minimal impact - attributes and/or operational modules fail to operate according to our specifications.
    • 6.7 Response Times For Platinum Plus Plan. Our Response times for the Platinum Plan are: (i) fatal - 1 Working Day; (ii) severe impact - 2 Working Days; (iii) degraded operations - 3 Working Days; (iv) minimal impact - next scheduled maintenance release for the Software.
    • 6.8 Exclusions. The following services are not covered maintenance and support services and will be provided only by mutual agreement at our discretion regarding fees, deliverables, and delivery schedules, such services to be included in a separate Order Form: (i) support that relates to or involves any products, data, features, devices, or equipment not provided by us; (ii) you or a third party have altered or modified any portion of the Software in any manner without our prior written consent; (iii) you have not installed or used the Software in accordance with instructions provided by us, including failure to follow implementation procedures; (iv) you have failed to replace earlier versions of the Software with enhancements provided by us; (v) a party other than us (or a party not authorized by us) has serviced the Software and the Software no longer conforms to its specifications; (vi) any service for computer hardware, computer network, electrical, telephone, interconnection, or the installation or repair of accessories, alterations, parts or devices not furnished by us; or (vii) you are not in full compliance with the other terms of this Agreement.
    • 6.9 Additional Services. We may at our discretion agree to provide additional services regarding fees, deliverables, and delivery schedules, such services to be included in a separate Order Form.
  • 7. Virus Detection. We will test the Software prior to delivery for viruses, and we will remove any viruses detected.
  • 8. Limited Warranty; Disclaimer. We warrant that the Software will be free of errors and defects, and will conform to the user manual for a period of ninety (90) days from installation ("Warranty Period"). If you notify us of any such nonconformity, error, or defect within the Warranty Period, we will at our option repair or replace the Software at our sole cost and expense. This remedy is your sole remedy for breach of warranty. This warranty will not apply to non-conformities, errors, or defects due to any of the following: (i) misuse of the Software, (ii) failure by you to utilize compatible computer and networking hardware and software, (iii) interaction with software or firmware not provided by us, or (iv) any change in applicable operating system software. EXCEPT FOR THE FOREGOING WARRANTY WE DISCLAIM ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING IMPLIED WARRANTIES RESPECTING MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE.
  • 9. Open Source Software Disclaimers. Use of the Software or any portion thereof by you shall not result in any obligation under any open source license (such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that: (i) requires, or conditions the use of the Software on the disclosure, licensing or distribution of any source code, (ii) requires or conditions distribution of the Software to be for no charge, or (iii) otherwise imposes any limitation, restriction or condition on your right to use the Software.
  • 10. Intellectual Property Warranty and Indemnity.
    • 10.1 We warrant that we have the authority to license the rights to the Software which are granted herein. We will indemnify, defend and hold harmless you harmless from and against any lawsuit, liabilities, loss, cost or expense arising out of a third-party claim made against you that any Software infringes on any U.S. intellectual property right of a third party; provided, however, that we are notified in writing of such claim promptly after such claim is made upon you. We will have the right to control any defense of any claim. In no event shall you settle any such claim without our prior written approval. We will have no liability or obligation if the claim arises from (i) any alteration or modification to the Software other than by us, (ii) any combination of the Software with other programs or data not furnished by us, or (iii) any use of the Software prohibited by this Agreement or otherwise outside the scope of use for which the Software is intended.
    • 10.2 If any party is enjoined from using the Software, or if we believe that the Software may become the subject of a claim of intellectual property infringement, we, at our option and expense, may: (i) procure the right for you to continue to use the Software; (ii) replace or modify the Software so as to make it non-infringing; or (iii) terminate this Agreement, in which case we will refund to you (i) the unamortized portion of the license fees paid by you, based on amortization over a useful life of forty eight (48) months, (ii) a pro-rata portion of any and all prepaid fees for maintenance and support services for the then current Support Term (pro-rated on a twelve (12) month basis); and (iii) any and all fees for other services fees paid in advance by you for those services and/or deliverables not performed by us. These remedies are your sole remedies for claims of infringement.
  • 11. Consequential Damages Waiver. EXCEPT FOR CLAIMS ARISING OUT OF SECTION 10 ("INTELLECTUAL PROPERTY WARRANTY AND INDEMNITY)" AND SECTION 13 ("CONFIDENTIAL INFORMATION"), IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF THE PARTY CAUSING SUCH DAMAGES OR ANY AFFECTED SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
  • 12. Liability Cap. Except for claims arising out of Section 10 ("Intellectual Property Warranty And Indemnity)" and Section 13 ("Confidential Information"), in no event shall our aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, exceed any the sum total subscription fees payable by you during the three (3) months immediately preceding the claim.
  • 13. Confidential Information.
    • 13.1 Each party ("Receiving Party") acknowledges that they may receive confidential information from other party ("Disclosing Party"). In our case, we claim as confidential the algorithms, logic, design, and coding methodology embodied in the Software. In your case, you claim as confidential information regarding your business plans, technology environment, customer data, and your specific uses of the Software. The Receiving Party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to that Party's attorneys, accountants and other advisors as reasonably necessary), any of the Disclosing Party's Confidential Information.
    • 13.2 Confidential Information will not include that information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party, whether directly or indirectly, from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party, whether directly or indirectly, from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party. The Receiving Party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that such Receiving Party gives the Disclosing Party written notice thereof as soon as practicable and reasonably cooperates with the Disclosing Party to contest such disclosure.
  • 14. Injunctive Relief. We agree that any breach of any provision hereof regarding confidentiality or protection of intellectual property rights would constitute irreparable harm, and that the damaged party shall be entitled to specific performance and/or injunctive relief in addition to other remedies at law or in equity.
  • 15. Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, to the address set forth on the initial page hereof or at such other addresses as shall be designated in writing by either party to the other in accordance with this Section. Such notice will be deemed to be given when received.
  • 16. Assignment. This Agreement shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of each party, whether by merger, sale of assets, or other agreements or operation of law. Except as provided above, neither party shall assign this Agreement without the non-assigning party's prior written consent, which shall not be unreasonably withheld or delayed. Any attempted assignment in contravention of this Section shall be void and ineffective.
  • 17. Continuing Obligations. Those clauses the survival of which is necessary for the interpretation or enforcement of this Agreement shall continue in full force and effect in accordance with their terms notwithstanding the expiration or termination hereof, such clauses to include the following: (i) any and all warranty disclaimers, limitations on or caps of liability and indemnities granted by either party herein, (ii) any covenant granted herein for the purpose of determining ownership of, or protecting intellectual property rights, including without limitation, the confidential information of either party, or any remedy for breach thereof, (iii) your representations and warranties regarding permitted third parties and (iv) the payment of taxes, duties, or any money to either party hereunder.
  • 18. Non-Solicitation. You acknowledge the substantial amount of time, money, and effort that we have spent and will spend in recruitment of competent employees, associates and consultants, and you agree, for a period of five (5) years from the termination of this Agreement, not to employ or hire, solicit for employment, attempt to employ or actively assist any other entity in employing or soliciting for employment, any employee, associate or consultant of ours, without the our prior written consent. Each of us agrees that liquidated damages for breach of this non-hiring covenant shall be one hundred fifty percent (150%) of the total first year compensation payable to the former NHS employee, associate or consultant or $75,000, whichever is greater.
  • 19. Force Majeure. Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, epidemic, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or complete or partial failure of the Internet (not resulting from the actions or inactions of us), provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
  • 20. Export Laws. For all or any portion of the Software exported, re-exported, transported or transmitted outside the United States by any means, including without limitation, by physical delivery, email, electronic transmission, or download from a web site, you agree to comply fully with all relevant export laws and regulations of the United States to assure that neither the Software nor any direct product thereof, is exported directly or indirectly whether pursuant to a permitted transfer, or otherwise pursuant to the terms of this Agreement, in violation of the United States law. Upon request, we shall provide relevant information regarding our compliance with such laws and regulations.
  • 21. U.S. Government End-Users. The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
  • 22. Arbitration. Except for actions to protect Proprietary Rights or to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in King County, Washington. The arbitrator shall apply the laws of the State of Washington to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration.
  • 23. Jurisdiction and Venue; Applicable Law. You agree that the courts of King County, Washington, and the nearest U.S. District Court located in the State of Washington shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement. Each of us acknowledges and agrees that each of us shall not raise in connection therewith, and hereby waive, any defenses based upon venue, inconvenience of forum or lack of personal jurisdiction in any action or suit brought in accordance with the foregoing. The laws of the State of Washington shall apply to all issues in dispute, excluding its rules regarding conflicts of law.
  • 24. Miscellaneous. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, representations, and agreements. This Agreement may be modified only by a written agreement signed by the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This license is written in English and English is its controlling language.
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