ERADANI MASTER SOFTWARE LICENSE AGREEMENT
1. Preamble and Recitals.
1.1 The Effective Date of this Agreement is the effective date of the initial Order for Software and/or Services to which this Agreement is linked.
1.2 This Agreement shall apply to all orders for Materials, including Software, and Services (“Orders”) executed by Customer, including Customer’s Affiliates where applicable, with respect to Materials, including Software, Maintenance and Support, Services, Professional Services, and all Statements of Work executed by the parties.
2. Definitions. In addition to the terms defined elsewhere in the Agreement, capitalized terms shall have the meaning set forth in Schedules B and C of this Agreement.
3.1. Grant of License
3.1.1. Subject to the terms and conditions of this Agreement, Eradani hereby grants to Customer and Customer accepts a limited, non-exclusive, non-transferable, non-sublicensable, revocable license, to install and use the Software only for Customer’s own internal business operations, in the quantities described in an Order in accordance with the applicable Documentation.
3.1.2. If the Software furnished to Customer is Evaluation Software, its license shall be for a term of thirty (30) days from delivery, and shall be used by Customer solely for purposes of internal evaluation and development, and not for production. Notwithstanding anything in this Agreement to the contrary, Evaluation Software is provided “AS-IS,” without warranty or indemnification of any kind.
3.1.3. If Customer requires additional Software or unit licenses, Customer will be required to pay, in advance, additional license fees to Eradani, as set forth in the applicable Order, and any valid amendment or addendum to this Agreement.
3.1.4. Customer is authorized to make a reasonable number of copies of the Software for back up purposes only, and not for production. Any copies shall be retained solely during the Term, and shall be subject to the provisions of section 8.4, below, upon termination of this license.
3.2 Reservation of Rights. The Software and the Documentation, are provided as a license and not a sale. Customer has no ownership interest in the Software or the Documentation. Eradani reserves all rights not expressly granted herein. Customer shall not use or copy the Software or the Documentation except as is expressly authorized in this Agreement. The Software and the Documentation are protected by United States copyright laws and international treaty provisions. Customer must treat the Software and Documentation like any other copyrighted material. Customer shall not knowingly take any action that would cause the Software or the Documentation to be placed in the public domain. Without limiting the generality of the foregoing, Customer has no right to receive or access any source code except where Eradani determines that it is necessary for the operation of the Software. No implied licenses are granted hereunder.
3.3. Restrictions and Compliance. Customer shall not, and shall not permit others to (i) make unauthorized copies, modify, reverse-engineer, distribute, sublicense, decompile or disassemble any Materials or create any derivative works thereof; (ii) create any derivative works, functionally equivalent works, or translations based upon the Materials; (iii) access or use the Materials in order to compete with Eradani or to assist someone else to compete with Eradani; (iv) use the Materials for any purposes in any manner directly or indirectly in violation of any law, including Customer-Specific Laws, regulation, mandate or court order or in the aid of any unlawful act or undertaking; (v) take any action that jeopardizes Eradani’s rights or the rights of its Third Party Suppliers, licensors or partners in any Materials; (vi) use the Materials in a manner that is defamatory, harassing, infringing or otherwise causes damage or injury to any person or property; (vii) transmit viruses or other deleterious code; or (viii) damage, disable or impair the Materials or any other party’s use of Eradani’s or its Third Party Suppliers’, licensors’, or partners’ products or services. Customer may not encumber, transfer, sell, time share, assign, rent, lease any of its rights granted in this Agreement. Customer represents and warrants that (a) neither Customer, any Affiliate, nor any user are on any government-issued list of restricted persons or entities including the Commerce Department Entity List, Denied Persons List or Unverified List, the Treasury Department Specially Designated Nationals and Blocked Persons List, and the State Department Debarred Parties List; and (b) Customer will not export or re-export, directly or indirectly, any Materials of any kind provided by Eradani to any countries outside the United States except as permitted under the U.S. Commerce Department’s Export Administration Regulations.
3.4. Documentation. By downloading, installing, or copying the Software or any update, fix or patch thereto, Customer accepts the then-current Documentation that governs the use of the product.
3.5. Additional Software. Order issuance and payment of all associated License Fees are required prior to the use of any additional quantities and types of Software beyond the scope of the Software previously licensed hereunder.
3.6. Ownership of Software and related intellectual property. As between Eradani and Customer, all intellectual property rights in the Materials are and will remain the sole and exclusive property of Eradani or its Third-Party Suppliers, licensors or partners as applicable. Eradani and its licensors, Third Party Suppliers, or partners retain full ownership of all intellectual property rights in the Materials and in all copies, modifications, adaptations, enhancements, modifications and Derivative Works (including any improvement or development) thereof. To the extent that any right, title or interest in or to any Eradani intellectual property may not automatically vest in Eradani by operation of law, Customer irrevocably transfers, assigns and conveys all right, title, and interest therein to Eradani. At Eradani’s request and expense Customer will promptly take any action and execute any documents necessary to vest full title in Eradani or its licensor
3.7. Feedback. Customer hereby assigns ownership of all intellectual property rights in any report, feedback or other information concerning the Software provided by Customer to Eradani hereunder.
3.8. Third Party Technology. Except as otherwise required by law or by underlying third party license agreements, any third-party technology provided as part of a Software product is limited to use only with that product.
3.9. Delivery and Acceptance. Eradani will deliver Software pursuant to Orders placed under this Agreement. In the case of electronic delivery, delivery shall occur when the Software has been uploaded onto the download site and Customer is provided all necessary passwords for download from the site. In the case of physical shipment, delivery shall be f.o.b. shipping point. Acceptance shall be deemed to occur upon delivery of the Software.
3.10. Software Warranty. Subject to the Exclusions, Eradani warrants to Customer that the Software as delivered, unless subject to accident, abuse, or unauthorized repair, modification or enhancement, will operate in substantial conformity with the Documentation for a warranty period of ninety (90) days from delivery of the Software (“Warranty Period”). If an actual noncompliance with this warranty is reported by Customer to Eradani during the Warranty Period, Eradani will, at its sole election, either (i) repair or replace the Software such that it substantially conforms to the Documentation; or (ii) terminate the license and refund the license fees paid for the non-compliant Software. Any refund provided hereunder shall be deemed a revocation of the license granted for the refunded Software. Customer will immediately return to Eradani or destroy all copies of the refunded Software in Customer’s possession or control. Customer acknowledges that the Software functions solely as a conduit for transmission and storage of data. Eradani is not responsible for and will have no liability for the content, accuracy, completeness, timeliness, security, integrity, utility, or applicability of the data stored or transmitted using the Software.
3.11. Media Warranty. If Eradani delivers the Software on tangible media, Eradani warrants that the media will not be defective under normal use, for a period of ninety (90) days from delivery of the media. Eradani will replace any defective media returned to it within the warranty period at no charge to Customer.
3.12. Disabling Code. Eradani will implement measures consistent in all material respects with industry practices to ensure that the Software as distributed by Eradani does not contain any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design that could erase data or programming or otherwise cause the Software to become inoperable or incapable of being used in the full manner for which it was designed and created. The use of license keys that limit use of the software in accordance with the associated order and the occurrence of “pop-up” reminders to register the Software on a periodic basis will not constitute a breach of the foregoing warranty.
3.13. Evaluation Software Warranty Disclaimer. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, EVALUATION SOFTWARE IS PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND.
3.14. Third Party Software Warranty Disclaimer. The Software may contain or be accompanied by certain freeware, open source, or other third-party components, which, if included, are provided under the terms of the applicable license that governs its use. CONSEQUENTLY, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, ERADANI’S PROVISION OF THIRD-PARTY COMPONENTS TO CUSTOMER IS ON “AS IS” BASIS WITHOUT WARRANTY FROM ERADANI OF ANY KIND. ERADANI HEREBY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (i) ALL WARRANTIES AND INDEMNITIES WITH RESPECT TO THE THIRD-PARTY COMPONENTS, EXPRESS OR IMPLIED, AND (ii) ALL LIABILITY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST DATA OR LOST PROFITS, HOWEVER ARISING, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4. Maintenance and Support.
4.1. Maintenance and Support Services. During the term of Customer’s Subscription pursuant to this Agreement, and provided that Customer has paid all applicable fees and is otherwise in compliance with the terms of this Agreement, Eradani shall provide maintenance and support services in accordance with its then-current standard maintenance and support policies (“Maintenance”). A copy of the current maintenance and support policies is available upon request from Eradani. Customer shall provide Eradani with the cooperation, materials, information, access and support that Eradani deems to be reasonably required to allow Eradani to provide the Software and Maintenance. Eradani’s obligations with respect to Maintenance are expressly conditioned upon Customer providing the cooperation, materials, information, access and support. Eradani will provide the Maintenance only to Customer, and not to any third-party or client of Customer. If and to the extent that Customer has bundled the Software with other products and has provided such bundled products to third parties under an approved Eradani Authorized Reseller agreement, it shall be the obligation of Customer, and not of Eradani, to provide support and maintenance services to those third parties in accordance with the terms of the Eradani Authorized Reseller agreement.
4.2. Maintenance and Support Services Warranty. Eradani warrants that it shall provide Maintenance and Support and Services in a manner prevailing in the industry using qualified personnel. Customer’s sole and exclusive remedy for Eradani’ breach of this warranty is Eradani will re-perform the defective service.
4.3.Customer Site. If Eradani provides Services at a Customer site, Customer will ensure that the location will be safe for occupation and use by Eradani’s employees and contractors. Customer will defend and indemnify Eradani and Eradani’s employees and contractors for any damage to person or property incurred by them as a result of any unsafe condition at a Customer site. Eradani’s employees and contractors will comply with all reasonable Customer safety and security policies communicated to Eradani by Customer.
Maintenance Services do not include Professional Services, which will only be provided if they are subject to a separate Order and Statement of Work agreed to by the parties.
5. Professional Services. Section 5 shall apply to all Professional Services ordered by Customer and provided by Eradani.
5.1. Statements of Work. Eradani will provide the Professional Services, including any Deliverables, described in statements of work executed by the parties (each a “Statement of Work” or “SOW”).
5.2. Staffing. Eradani will make all staffing decisions in its performance of the Professional Services including use of subcontractors. Eradani will be responsible for the performance of any subcontractors retained by Eradani to perform Professional Services for Customer.
5.3. Resources. Customer shall make available in a timely manner at no charge to Eradani all data, facilities, data, equipment or other resources reasonably required by Eradani to perform the Professional Services.
5.4. Fees. Customer shall pay Eradani for the Professional Services in accordance with the fees set forth in the Statement of Work. Customer shall reimburse all reasonable travel and other expenses incurred by Eradani in performance of the Professional Services. Unless provided otherwise in the applicable Statement of Work, Eradani shall invoice Customer on a monthly basis as Professional Services are performed and expenses are incurred.
5.5. Ownership. Upon payment of fees specified in the related SOW, all specifications, designs, processes, techniques, concepts, code, discoveries and inventions made or developed in connection with the Professional Services, that are NOT part of Eradani Software or Documentation, including but not limited to Deliverables, Creations and Customizations (all of which belong to Eradani), shall be the sole and exclusive property of Customer. All Eradani Software, derivative works and all related materials shall remain the exclusive property of Eradani.
5.6. Change Orders. If Customer desires to change an executed SOW, Eradani will consider Customer’s request and if acceptable to Eradani, the parties will execute a revised SOW or a Change Order. Customer understands that revisions to an SOW may require payment of additional fees and may require changes to the work schedule. Any such additional fees or schedule changes will be mutually agreed and identified in the revised SOW or Change Order.
5.7. Warranty. Eradani warrants that it shall provide Professional Services in a professional and workpersonlike manner. Customer’s sole and exclusive remedy for Eradani’ breach of this warranty is Eradani will at its option, (i) use commercially reasonable efforts to re-perform the defective Professional Services; or (ii) provide a refund to customer for the non-conforming Professional Services. In the event of a refund, Customer’s license to Professional Services issued in connection with Section 3 will immediately terminate.
5.8. Custom Software Development. Custom software development and Creations are not provided as part of Eradani Software Maintenance and Support. Custom software development may be provided for an additional fee, and will be subject to an additional statement of work signed by the parties.
6. Payments; Taxes.
6.1. Payments. Customer shall pay all fees and other charges within thirty (30) days of the invoice date. All payments shall be made in United States dollars.
6.2. Sales and Other Taxes. All fees billed by Eradani do not include taxes. Customer shall pay all sales tax, use tax, value added tax, goods and services tax, transaction tax or similar excise tax due to any taxing authority with respect to transactions related to this Agreement. If Eradani is required by any taxing authority to collect and remit any such taxes to a taxing authority, Eradani shall invoice any those taxes to Customer and Customer shall pay Eradani for those taxes.
6.3. Withholding Taxes. If Customer is required by any taxing authority to withhold taxes from payments made to Eradani hereunder, then Customer shall deduct such withholding tax from the payment to Eradani and shall pay the tax to the taxing authority on behalf of Eradani. Customer shall obtain for and provide to Eradani, within ninety (90) days after submitting such withholding tax, the original tax certificate or receipt issued by the taxing authority evidencing the tax payment and sufficient documentation to allow Eradani to apply for an appropriate tax credit. If Customer does not provide the original tax certificate or receipt issued by the taxing authority, Customer shall be liable for and shall reimburse Eradani for the amounts deducted as withholding taxes from the payment. The parties agree to take all reasonable steps to reduce or eliminate withholding taxes under applicable law including income tax treaties.
6.4. Late Fees. Without prejudice to any other rights of Eradani under this Agreement, fees or refund of expenses not received by Eradani by the date due shall be subject to a charge of one and a half percent (1½%) per month, or the maximum charge permitted by law, whichever is less.
7. Term. The initial Subscription Term under this Agreement commences on the Effective Date and shall continue for a period of twelve (12) months, or until terminated by Eradani or Customer as provided herein. Thereafter, the Subscription Term automatically renews for successive twelve (12) month periods (each a “Renewal Term”) unless Customer or Eradani provides written notice of its election to not renew at least sixty (60) days prior to the applicable renewal date. During the sixty (60) day period prior to the expiration of the then-current Subscription Term, Eradani shall send Customer an Invoice for fees payable by the Customer for the Renewal Term. If Customer fails to pay the Subscription fees prior to the date set forth on the invoice, and in any event prior to the expiration date of the then-current Subscription Term, Eradani may charge Customer an additional fee, at its sole discretion, as a condition of reinstatement of the Subscription during the Renewal Term. Subject to Customer’s agreement, the fee for Renewal Term may be charged annually by Eradani to the Customer’s credit card during the sixty (60) day period prior to the applicable renewal date. Subscription fees are subject to change in Eradani’s sole discretion. All Subscription fees are non-refundable.
8.1 Expiration. This Agreement, including the Subscription, will terminate upon expiration of the initial Subscription Term, or of the applicable Renewal Term, as set forth in section 7, above, unless terminated in accordance with sections 8.2 or 8.3, below.
8.2 Termination upon Breach. Should a party materially breach any of its obligations under this Agreement, and the breach is not cured (if capable of a cure) within thirty (30) days of receiving written notice of the breach from the non-breaching party, then the material breach shall be deemed an “Event of Default,” which entitles each non-breaching party, at its sole option, to terminate the Agreement, effective upon the date specified in its notice of termination. If the material breach is not capable of a cure, the non-breaching party may terminate this Agreement upon ten (10) days written notice.
8.3 Other Termination. To the extent permitted under applicable law, a party may terminate this Agreement upon thirty (30) days written notice to the other party on or after the occurrence of any of the following events: (a) the appointment of a trustee, receiver or custodian for all or substantially all of the property of the other Party, or for any lesser portion of such property, if the result materially and adversely affects the ability of the other party to fulfill its obligations hereunder, which appointment is not dismissed within sixty (60) days; (b) the determination by a court or tribunal of competent jurisdiction that the other party is insolvent such that the other party’s liabilities exceed the fair market value of its assets; (c) the filing of a petition for relief in bankruptcy by the other party on its own behalf, or the filing of any such petition against the other party if the proceeding is not dismissed or withdrawn within sixty (60) days thereafter; (d) an assignment by the other party for the benefit of creditors; or (e) the dissolution or liquidation of the other party.
8.4 Effect of Termination. Upon termination of this Agreement for any reason: (i) all of Customer’s rights and license to use the Materials, including the Software, will terminate immediately; (ii) within five (5) business days after termination, Customer will return to Eradani or purge all copies of the Materials and deliver to Eradani an affidavit signed by an officer, owner or managing partner of Customer confirming that these actions have been completed.
8.5. Survival. All terms of this Agreement which, by their nature, are intended to survive termination of this Agreement will survive termination, including without limitation, all payment obligations, use restrictions, ownership terms, confidentiality obligations, disclaimers and limitations of liability.
9. Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTIONS 3 AND 5.7, (A) THE MATERIALS AND SERVICES ARE PROVIDED “AS IS,” (B) NEITHER ERADANI, NOR ANY OF ITS LICENSORS, MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OF STATUTORY, AND (C) ERADANI AND ITS LICENSORS EXPRESSLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THAT USE BY CUSTOMER WILL BE UNINTERRUPTED OR ERROR OR DEFECT FREE. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE MATERIALS OR SERVICES NECESSARY TO ACHIEVE CUSTOMER’S INTENDED RESULTS. TO THE EXTENT THAT ERADANI CANNOT DISCLAIM A WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
10. LIMITATION OF LIABILITY
10.1. NEITHER ERADANI NOR ITS THIRD PARTY LICENSORS, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, SHALL BE LIABLE FOR (A) ANY LOSS OF DATA, FAILURE OF SECURITY MECHANISMS, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOST PROFITS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, OR (B) ANY COST OF COVER OR ANALOGOUS COSTS RELATED TO THE PROCUREMENT OF REPLACEMENT GOODS OR SERVICES, ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.2. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE AGGREGATE TOTAL LIABILITY OF ERADANI, INCLUDING ITS LICENSOR, FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO ERADANI FOR THE MATERIALS AND SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
10.3. THE LIMITATIONS OF LIABILITY IN SECTION 10 REFLECT AN ALLOCATION OF RISK BETWEEN CUSTOMER AND ERADANI WITH RESPECT TO MATERIALS AND SERVICES PROVIDED, AND IF NOT INCLUDED THE ECONOMIC TERMS OF THIS AGREEMENT WOULD HAVE BEEN DIFFERENT.
10.4. NOTWITHSTANDING THE FOREGOING SECTION, ANY EVALUATION SOFTWARE IS PROVIDED GRATUITOUSLY AND, THEREFORE NEITHER ERADANI NOR ITS THIRD PARTY LICENORS SHALL BE LIABLE UNDER ANY THEORY FOR ANY DAMAGES SUFFERED BY CUSTOMER RELATED TO THE EVALUATION SOFTWARE.
10.5. Shortened Statute of Limitations. No action arising out of or related to this Agreement may be brought by either party more than one (1) year after the cause of action to which it relates first becomes known (or ought to have become known) to the party bringing such an action.
11.1. Indemnification by Eradani for Infringement of Third-Party Intellectual Property Rights. Subject to the Exclusions, Eradani shall, defend Customer against any third party claim that the Software, standing alone, and as used within the scope of this Agreement, infringes on that third party’s valid and enforceable US patent or copyright (“Infringement Claim”) and indemnify Customer from the resulting costs and damages awarded against Customer to the third party making the Infringement Claim, by a court of competent jurisdiction or agreed to in a settlement approved by Eradani, provided that Customer (a) provides Eradani with) prompt written notice of any such claim or action, or possibility thereof; (b) grants Eradani sole control and authority over the defense and settlement of the Infringement Claim, and (c) reasonably cooperates in responses to Eradani’s requests for assistance. Eradani will have the exclusive right to defend any Infringement Claim, and Customer may not settle or compromise an Infringement Claim without Eradani’s prior written consent.
11.2 Eradani Options. Should the Software become, or in Eradani’s opinion likely to become, the subject of an Infringement Claim, Eradani may at its sole option and expense, either: (a) procure for the Customer the right to use the infringing Software as provided herein; (b) replace the infringing Software with non-infringing, functionally equivalent, Software; (c) modify the infringing Software so that it is not infringing; or (d) demand return of the infringing Software and upon such demand the license(s) granted to Customer under this Agreement shall terminate and Eradani shall refund the fees paid to Eradani by the Customer for the then-applicable Subscription term, less a pro rata portion of the Subscription fee reflecting the portion of the Subscription term that preceded the termination. Upon exercise of option (d), Eradani shall have no liability to the Customer arising out of Customer’s continued usage of the Software. Except as specified above, ERADANI will not be liable for any costs or expenses incurred without its prior written authorization. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF ERADANI, AND REPRESENT THE SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INFRINGMENT CLAIM.
11.3 Exclusions. Eradani will have no obligations for claims of Infringement resulting from any Exclusions, as defined in the “Definitions” section of this Agreement. Notwithstanding anything in the Agreement, Eradani shall have no obligation to indemnify customers with respect to claims that third-party products, material or services infringe on another party’s intellectual property rights.
11.4 Indemnification by Customer. Customer shall indemnify, defend, and hold harmless, including payment of reasonable attorney fees, Eradani, its affiliated entities, its third-party licensors, and their respective shareholders, directors, officers, employees and agents (collectively “Eradani Indemified Parties”), from and against any and all losses, damages, claims, liability, judgments and expenses arising out of or related to Customer’s (a) use of the Software, (b) breach of this Agreement, (c) any third party claim of infringement of intellectual property rights to the extent that the claim arises out of or relates to any combination of Software, other Materials or Services provided by Eradani with products, software, data or business processes not supplied by Eradani, or (d) any circumstances arising out of the Exclusions.
12.1. “Confidential Information” means the non-public information that is exchanged between the parties, provided that such information is: (a) identified as confidential at the time of disclosure by the disclosing party (“Discloser”), or (b) disclosed under circumstances that would indicate to a reasonable person that the information ought to be treated as confidential by the party receiving such information (“Recipient”). For the avoidance of doubt, Eradani Confidential Information includes the Software, Materials, Services and technical information relating to the Software, Materials and Services.
12.2. Usage and Obligations. A Recipient may use the Confidential Information that it receives from the other party solely for the purpose of performing activities contemplated under this Agreement. Recipient shall not disclose the Confidential Information to any third party. A Recipient shall protect it by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication as the Recipient uses to protect its own confidential information of a like nature. The Recipient may disclose the Confidential Information to its employees with a need to know in order to fulfill the purpose of this Agreement, who are bound by nondisclosure obligations at least as protective of the Discloser’s rights as this Agreement.
12.3. Exclusions. This provision imposes no obligation upon a Recipient with respect to Confidential Information that: (i) is or becomes public knowledge through no fault of such Recipient; (ii) was in the rightful possession of Recipient before receipt from the Discloser and was not subject to a duty of confidentiality; (iii) is rightfully received by the Recipient without any duty of confidentiality; (iv) is disclosed generally to a third party by the Discloser without a duty of confidentiality on the third party; or (v) is independently developed by the Recipient without use of the Confidential Information.
12.4. Required Disclosures. The Recipient may disclose the Discloser’s Confidential Information as required by law or court order provided: (i) Recipient promptly notifies the Discloser in writing of the requirement for disclosure affording opportunity for Discloser to take protective actions; and (ii) discloses only as much of the Confidential Information as is required, maintaining all proprietary notices affixed to such Confidential Information. Upon request from the Discloser or upon termination of the Agreement, the Recipient shall return all Confidential Information.
12.5. Injunctive Relief. Each party will retain all right, title and interest to such party’s Confidential Information. The parties acknowledge that a violation of the Recipient’s obligations with respect to Confidential Information may cause irreparable harm to the Discloser for which a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, Discloser shall be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions hereof.
12.6. Similar Materials and Services. Notwithstanding anything to the contrary, Eradani will be free to use any concepts, processes, techniques, improvements or other know-how developed by Eradani in the course of performance of this Agreement (even if similar to materials, products and Services provided hereunder) free from any use restriction or payment obligation. For the avoidance of doubt, but subject to this Agreement, including this Section 12.6, Eradani does not claim any rights to any of Customer’s Confidential Information.
12.7. Customer acknowledges and agrees that Eradani (i) does not require Protected Health Information (“PHI”) or Personally Identifiable Information (“PII”) to perform its Services, and (ii) is not processing or transmitting PHI or PII under this Agreement. Customer shall comply with all laws concerning the disclosure of PHI and PII. Unless PHI or PII is required for Eradani to perform its Services, Customer shall not send or disclose PHI or PII to Eradani. If Customer needs to disclose PHI or PII to Eradani, Customer shall follow Eradani’ written instructions when disclosing such PHI or PII to Eradani.
13. Audit and Verification.
13.1. Audit. Customer agrees that Eradani may audit the Customer’s use of the Software solely for the purpose of determining Customer’s compliance with the provisions of this Agreement. Customer further agrees to maintain records sufficient for Eradani to verify compliance with the provisions of this Agreement during the Term of this Agreement and for two (2) years thereafter.
13.2. Remedy. If any such examination conducted by Eradani or its representatives determines the Customer has used any Software beyond its authorized use or is otherwise not in compliance with the terms and conditions of the Agreement, then in addition to any legal remedies or equitable relief that may be available to Eradani, Customer shall be subject to charge for all expenses incurred by Eradani for any such examination. Without, prejudice to the foregoing, if shortfall in payment to Eradani is so disclosed, Eradani will notify the Customer in writing of the shortfall and Customer shall pay directly to Eradani all amounts specified, within thirty (30) days of Eradani notification to Customer of such shortfall.
14.1. Compliance with Laws.
14.1.1 Customer-Specific Laws. Eradani will not be responsible for ensuring that the Materials, or Customer’s use thereof, comply with any laws or regulatory requirements that apply to Customer’s business or industry. As such, regardless of anything to the contrary, Customer is solely responsible for ensuring that Customer’s use of any Materials is in accordance with Customer-Specific Laws.
14.1.2 US Government Restricted Rights. If Customer and or the end user, if applicable, is a government end user, then this provision applies. The Software provided in connection with this Agreement has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227- 7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.
14.2. Export Restrictions. Customer acknowledges that the Materials may be subject to export controls under the U.S. Export Administration Regulations as well as end-user, end use and destination restrictions issued by the United States government and other governments. Customer will strictly comply with all export and import control laws and regulations of the United States and foreign jurisdictions in which the Materials are used, and in particular, Customer will not export or re-export the Materials without all required United States and foreign government licenses. Customer will cooperate fully with Eradani in any official or unofficial audit or inspection relating to these controls, regulations or restrictions. Customer will defend, indemnify, and hold harmless Eradani and it third-party licensors from and against any violation of such laws or regulations by you or any of your agents, officers, directors or employees.
14.3. Assignment and/or Transfer. Neither this Agreement, nor any rights granted to Customer hereunder, may be assumed by any party, or assigned or otherwise transferred by Customer, directly or indirectly, in whole or in part, whether by operation of law or otherwise, without the prior written consent of Eradani. Eradani may freely assign or otherwise transfer any or all of its rights and obligations under this Agreement. The following, without limitation, shall be deemed an assignment or transfer for purposes of this Agreement: (i) any sale of assets involving this Agreement, (ii) any acquisition, dissolution, merger, consolidation, divestiture (including such by way of establishing a new company), or other business combination or reorganization of or affecting Customer, whether or not Customer is the surviving entity, and (iii) any change in control of fifty percent (50%) or more of the voting power, stock or other equity interest entitled to vote for or select the directors, manager(s) or equivalent body of Customer, whether by way of forward merger, reverse triangular merger, reorganization or other business combination, in one or a series of transactions. Any purported assignment or transfer in contravention of this section 14.3 shall be null and void. Subject to the foregoing, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective permitted successors and assigns.
14.4. Relationship of the Parties. The parties are independent contractors. Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party has any authority to bind the other party.
14.5. Governing Law; Jurisdiction; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, without reference to its conflicts of law provisions, and, where applicable, with the federal law of the United States. Any dispute arising out of or related to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts for Alameda County, California, and the parties hereby consent to the personal jurisdiction of those courts.
14.6. Severability, Waiver. If any provision of this Agreement is found to be illegal, invalid or unenforceable, that provision shall be enforced to the maximum extent permissible, and the other provisions of this Agreement shall remain valid and enforceable. The failure of a party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions, or a waiver of any other provisions of this Agreement.
14.7. Force Majeure. To the extent that either party to this Agreement shall be wholly or partially prevented from the performance of any obligation or duty placed on the party by reason of or through strikes, stoppage of labor, riot, fire, flood, acts of war, insurrection, accident, order of any court, act of God, pandemics, or specific cause reasonably beyond the party’s control and not attributable to its neglect or nonfeasance, in such event, the time for the performance of such obligation or duty shall be suspended until such disability to perform is removed. Determination of force majeure shall rest solely with: Eradani. Notwithstanding the above, nothing herein shall excuse Customer’s failure to perform its payment obligations.
14.8. Publicity. Eradani may use the name of Customer in any press release, public disclosures, case studies, advertising or materials (collectively “Marketing Materials”) distributed to prospective or existing customers of Eradani. For the above purpose, Eradani may use Customer’s trademarks, service marks, logos or branding according to Customer’s branding guidelines, which Customer will make available to Eradani.
14.9. Notices. All notices and consents will be in writing and will be sent pre-paid by first class mail or by overnight delivery using a nationally recognized and reputable overnight courier. Such notices and consents will be deemed received five (5) business days after deposit if sent by mail and one (1) business day after deposit if sent by overnight courier. Notices to Eradani and to Customer will be sent to the following addresses or such other address as a party may notify the other party in writing:
If to Eradani:
833 Mendocino Avenue
Berkeley, CA 94707
If to Customer:
The Customer Contact at the Billing Address listed on the Services Order./
14.10. Entire Agreement. The Orders for Software and/or Services, this Agreement, including its Schedules, any Statements of Work, and any executed Amendment(s) and Addendum(s) are the complete and entire Agreement between the parties concerning the subject matter hereof. The provisions of this Agreement shall supersede any conflicting or additional provisions on any purchase order or Order, including any entire agreement clause or other clause on any such Order which generally purports to supersede all previous agreements, with the exception of special terms noted on an Eradani Software and Service Order Form signed by the Eradani CEO.
MAINTENANCE AND SUPPORT POLICIES
These Maintenance and Support Policies set forth the maintenance and support services provided by Eradani with respect to the Software licensed by Customer under the Master Software License Agreement between Eradani and Customer (“Agreement”). These policies are subject to revision by Eradani from time to time, in its sole discretion.
Notwithstanding anything set forth in the Agreement, including this Schedule A, Eradani shall have no obligation to provide Maintenance and Support unless Customer is current on all fees and costs due under the Agreement, and is otherwise in compliance with its terms.
1.1. “All Relevant Information” means the information deemed necessary by Eradani to enable the successful identification and resolution of a service request.
1.2. “Maintenance and Support” means the maintenance and support services described herein, including (i) Maintenance, Minor and Major Releases, if any, and appropriate Documentation to the Software; (ii) telephone or email assistance with respect to the Software (iii) Customer access to Eradani support personnel eight (8) hours per day, five (5) days per week, as set forth herein. Telephone assistance shall comprise: (A) clarification of functions and features of the Software, (B) clarification of Documentation pertaining to the Software and (C) error verification, analysis and resolution. Maintenance and Support services do not include Professional Services, which may be purchased for a separate fee by Customer under another agreement.
1.3. “Release” means a version of any Software containing functional enhancements, modifications, extensions, error corrections or bug fixes. Releases are only provided as part of the Software during the term of the license.
1.4. “Major Release” means a Release that constitutes a substantial change to the Software content and fixes to previously determined defects, and may include architectural changes. Eradani retains full discretion to define what is included or excluded from a Major Release.
1.5. “Minor Release” means a Release that includes primarily new features, functions, and fixes to previously determined defects. Eradani retains full discretion to define what is included or excluded from a Minor Release.
1.6. “Maintenance Release” means a Release that includes primarily fixes to previously determined defects but does not include new features or functions.
Capitalized terms used, but not defined herein, shall have the meanings ascribed to them in the Agreement, including its Schedules, executed by the parties.
2. Maintenance and Support.
2.1. Commencement of Services; Term. Customer shall receive Maintenance and Support for the Software during the term of the Agreement, including any Renewal Terms; provided, however, that
2.2. Technical Support Procedures. Eradani shall use commercially reasonable efforts to correct material errors in the Software. . If remote resolution is not possible, Eradani may, upon mutual agreement, visit the Customer site to attempt to resolve the issues. In that case, Customer may be required to pay additional fees and travel expenses.
2.3. Covered Version.; Exclusions and Disclaimer. Eradani shall provide Maintenance and Support for the current Major Release of the Software and the most current version of the immediately prior Major Release. Eradani shall not provide Maintenance and Support relating to flaws in operation arising out of: (i) any alterations, Customization of or additions to the Software performed by parties other than Eradani or at the express direction of Eradani; (ii) use of the Software not in accordance with the Agreement or Documentation; (iii) accident, negligence, or misuse of the Software; (iv) interconnection of the Software with other software not supported by Eradani; (v) modification of the database structure designed to be used by the Software: (vi) introduction or extraction of data into, or from any Eradani Software database, by any means other than the use of Eradani application programming interfaces; (vii) virus or hacker attacks; (viii) circumstances beyond Eradani’s reasonable control; (ix) shutdown for emergency intervention or security incidents; (x) Customer’s failure to comply with Eradani’s security and upgrade policies; or (xi) internet or other connectivity problems outside of the Eradani network.
3. Responsibilities for Maintenance and Support
3.1. Customer Responsibilities. Customer shall use commercially reasonable efforts to perform the following tasks with regard to Maintenance and Support:
- Maintain competent and complete technical understanding of Customer’s own technical infrastructure, including Software and versions deployed.
- Accurately characterize Software problems reported and describe their business impact, to include what is wrong, when it went wrong, if applicable, any changes to the Software environment and the steps that cause the problem to occur.
- Describe actions taken by Customer to try and resolve problems.
- Gather, validate and make available log, configuration and other files devoid of customer sensitive data for analysis.
- Provide timely and accurate responses to information requests, fixes and recommendations provided by Eradani.
- Apply revised Software and/or configuration options as directed by Eradani.
3.2. Eradani Responsibilities. Eradani shall use commercially reasonable efforts to perform the following tasks with regard to Maintenance and Support:
- Serve as the initial point of contact for Customers of the Software unless Software was purchased through an Eradani Authorized Reseller, in which case the Eradani Authorized Reseller will be the initial point of contact.
- Employ dedicated experts, trained in applicable Software, for the purpose of analyzing and resolving Cases.
- Have a dedicated support center with published business hours and contact details.
- Use an incident tracking system for capturing and managing Cases and customer satisfaction feedback.
- Answer Customer’s technical questions in relation to the operation of the Software.
- Work with the customer to isolate the problem to a Software component and, where reasonably practicable, reproduce in a lab environment.
- Provide timely and accurate responses to End User requests in line with Service Level Targets.
- Identify and communicate workarounds, where applicable, in order to resolve a Case.
- May attend End User site to further the investigation process, once all reasonable attempts to resolve the Case remotely prove unsuccessful.
- Direct End User to available Software and documentation, as appropriate, to resolve Cases.
4. Service Level Targets
Maintenance and Support shall be provided as set forth in Section 2 of Schedule A. Customer shall provide an accurate description of the problem and the severity of the problem, stating the circumstances that lead to the severity condition. The actual severity level may be mutually re-determined by both parties during the problem resolution process, but Eradani shall have the final authority as to the actual designation. Time targets as set out in the Support Guide for On-Premises Licenses shall come into effect following acknowledged receipt of All Relevant Information being supplied by Customer to Eradani.
In the event Eradani requests any software “dumps,” logs or any other documentation from Customer to resolve a reported problem, such documentation shall be forwarded through electronic means (email or ftp). Additional hardware, implementation and training services may be required for implementation of Releases.
Customer shall not unreasonably deny any request from Eradani to participate in remote access and investigation sessions to Customer servers.
1. Service levels
During the Subscription Term, Eradani shall provide Customer with Service Levels consisting of the following: (i) online, email, or telephone support regarding use and deployment of the Product (ii) Major and Minor releases of the same Products licensed by Customer during the subscription (“Maintenance”) and support with respect to Errors.
Support is available only in English.
Production system outage
Product in production environment is unusable and is severely impacting other critical business functions, and no workaround is available.
Key Functionality Impaired; No Workaround
The reported issue affects key functionality and/or causes some performance degradation, and no workaround is available. Other product features are still functional.
Moderate Impact with Workaround
Issue has moderate or minor impact on usage, and product remains functional. This category may include provisioning/change management requests, enhancement requests, common how-to questions, and any product issues with a viable workaround.
Includes minor, cosmetic, or documentation-related issues, and enhancement requests that are not time-sensitive. There is no material impact on the product’s existing features.
Eradani Order Form
The Order Form signed by authorized representatives of Customer and Eradani is incorporated into the Master Software License Agreement by this reference, and shall be attached hereto as an exhibit.
“Affiliate” means an entity directly or indirectly controlling, controlled by or under common control with Customer as of or after the Effective Date, for so long as the affiliated relationship is in effect (including Affiliates subsequently established by acquisition, merger or otherwise). An ownership interest or a voting interest of fifty percent (50%) or more of an entity will be deemed control of the entity.
“Applicable Law” means laws, statutes, rules, regulations, ordinances and other pronouncements having the effect of law of any governmental authority applicable to any party.
“Creations” mean all Derivative Works, source and object code, specification, designs, processes, techniques, concepts, discoveries and inventions made or developed in connection with the Services. Creations shall be the sole and exclusive property of Eradani.
“Customer” means the person or entity identified as the “Customer” in the Master Software License Agreement. Customer does not include any Affiliate of Customer, unless expressly approved in writing by an authorized representative of Eradani.
“Customer-Specific Laws” means Applicable Law governing Customer’s business or industry, including without limitation FTC or FCC regulations, the Telephone Consumer Protection Act of 1991, and/or HIPAA or HITECH, all as amended from time to time.
“Customization” means any alteration, derivation, modification, configuration or customization of the Software or Deliverable, regardless of whether developed by Eradani, Customer, or any other person or entity and regardless of whether developed using Eradani tools, methods, or training.
“Deliverables” means a Customization or other deliverable provided by Eradani to Customer pursuant to a Statement of Work.
“Derivative Work” means a new or modified work that is based on or derived from all or any part of the Software, including without limitation, a revision, modification, improvement, translation (including compilation or recapitulation by computer), localization, adaptation, abridgment, port, condensation or expansion, or any other form in which such a preexisting work may be recast, transformed or adapted. in any form, or of any work that would infringe any copyright if created without the authorization of the copyright holder, or any other intellectual property right in the Software or that uses trade secrets or other Confidential Information embodied in or used by the Software.
“Documentation” means any and all user documentation provided by Eradani in connection with the Software, and all Updates thereto
“Equipment” means the hardware and other equipment provided by a Third Party Supplier.
“Eradani Authorized Reseller” means an organization with an official, current signed agreement with Eradani authorizing it to resell Eradani products to End User Customers.
“Evaluation Software” means Software licensed only for Non-production usage, solely for the purpose of internal evaluation and demonstration. Evaluation Software is provided “AS-IS,” without any warranty or indemnification of any kind.
“Exclusions” means the following conditions that are excluded from Eradani’s warranty, defense and indemnity obligations: (i) Customer’s non-compliance with this Agreement, including any specified terms and conditions in any Materials, Order Form, Statement of Work, or documentation for any deliverable; (ii) Customer’s failure to use a supported version of the Software; or Customer’s failure to install and use the latest version of or any modifications to the Software provided or directed by Eradani; (iii) the development or use of any Customization unless the Customization was made by Eradani; (v) Customer’s business method(s) or process(es); (iv) Eradani’s compliance with Customer’s requests or instructions; (v) Customer’s content, data, or third party products, services or materials or customer provided items, including any combination, operation, or use of the Software or with any products, equipment, software, hardware, data, or business processes not supplied by Eradani if the alleged infringement would not have occurred without such combination, operation or use; (vi) any modification of the Software by a party other than Eradani if the infringement would have been avoided in the absence of the modifications or (vii) use of the Software if the infringement would have been avoided if the Software had been used in accordance with the Documentation. For the avoidance of doubt, Eradani will have no warranty, defense or indemnity obligations to the extent a breach or claim arises from any Exclusion(s).
“Fees” means (i) the fees Customer is required to pay Eradani to use the Software during the applicable Subscription Term, such as fees that are reflected on each applicable Order; (ii) the fees Customer is required to pay Eradani for any Services Customer engages Eradani to perform, such as fees that are reflected on each applicable Statement of Work, or an Order for Professional Services,
“Materials” means the Software, Third Party Products, if any, Customizations, Creations, Deliverables, Derivative Works, Maintenance and Support (including any updates, bug fixes, releases and upgrades), Eradani Confidential Information and any other information, products, services or materials provided or made available to Customer that are proprietary to Eradani or its Third-Party Suppliers, licensors, partners or suppliers.
“Non-production License” means a license under which the Customer has the right to use the Software (i) for “development, testing, quality assurance and training” (ii) on “cold standby” (A method of redundancy in which the secondary, i.e., backup system is only called on for disaster recovery or non-High Availability (HA) failover), or (iii) on “hot standby” (A method of redundancy in which the primary and secondary, i.e., backup systems run simultaneously for HA or Business Continuity). A “high availability” environment is a production system on hot standby or in active load-balancing configuration with the ability to act as backup in case of primary system failure.) Under the terms of a Non-production license, the Customer does not have the right to use the Software in its revenue-generating business operations.
“Order(s)” means the document by which Customer orders Software, Professional Services, or other goods and Services from Eradani. An Order shall include: (i) incorporation of this Agreement by reference; (ii) description of items being ordered, including quantity, version, and price as applicable (iii) billing address; and (iv) ship to location, if applicable. All Orders are irrevocable and non-refundable except as provided herein. Eradani reserves the right to waive any or all of the aforementioned requirements either in writing or by fulfilment of the Order.
“Production License” means a license under which the Customer has the right to use the Software in Customer’s revenue-generating business operations.
“Professional Services” means the professional services described in a Statement of Work [OR AN “ORDER”?] executed by the parties, and for which Customer shall pay an additional fee. Professional Services do not include Maintenance and Support services.
“Renewal Term” means any period of time beyond the initial Subscription Term during which the Subscription continues in force and effect.
“Services” shall mean Customer Application and Support Services, Professional Services, Packaged Services, Maintenance Services, and Support Services described in a Statement of Work and provided under this Agreement.
“Software” means the (i) proprietary Eradani software products that are provided by Eradani to Customer as specified in the applicable Order between Customer and Eradani, and (ii) all Updates with respect to such software products, and (iii) all related Materials, but excluding Third Party Products or services. Software will be provided only in object code format.
“Statement of Work” or “SOW” means a mutually executed document describing the Professional Services to be provided by Eradani pursuant to this Agreement.
“Subscription” means the Customer’s right to access and use the relevant Software, Documentation, and Support and Maintenance on a subscription basis, as and to the extent listed on an Order form.
“Term” means the period commencing on the Effective Date and expiring on the last day of the Subscription Term, including any renewals of the Term, subject to earlier termination as set forth in the Master Software License Agreement.
“Third-Party Products” means software or services provided by a Third-Party Supplier.
“Third-Party Supplier” means the supplier of Third-Party Products.
“Updates” means any and all updates, upgrades, new releases, modifications and/or supplements that may be provided by Eradani from time to time.