by George Demou
This Avtex Software Licenses Agreement contains the terms and conditions that govern the use of and grant of license for the Avtex Proprietary Software (“Avtex Software”). The Agreement is entered into by the parties to the Statement of Work (“SOW”) and will allow you or the entity that you represent (“You,” “Your” or “Client” ) to use and purchase Avtex Software from Avtex Solutions, LLC. (“Us,” “We,” “Our” or “Avtex”).
You have previously entered into a Master Sales Agreement or the Avtex Terms of Service (each, the “MSA”) between Avtex and You, which shall govern this Agreement. Any term not defined in this Agreement shall have the definition assigned to in the MSA. If there is any conflict between the sections or terms of this Agreement with the MSA, this Agreement shall prevail solely as it pertains to the Conflict.
You have entered into a SOW whereby You purchased Avtex Proprietary Software (“Avtex Software”) and related standard user Documentation (“Documentation”). This Agreement provides for the license by Avtex to You of Avtex Software owned by and licensed by Avtex hereunder and Documentation for the Avtex Software. Notwithstanding the foregoing, under the SOW, You may also obtain a license to software of other Third-Party Providers (the “Third-Party Software”). This Agreement applies only to the Avtex Software and does not apply to any Third-Party Software or its related documentation or other non-Avtex products which may be deliverables under the SOW.
By signing the SOW, You agree to and be bound by this Agreement. This shall constitute the entire Agreement between Avtex and You with respect to the subject matter hereof and cancels and supersedes any prior understanding and Agreements between the parties hereto with respect thereto. There are no representations, warranties, forms, conditions, undertakings or collateral Agreements, oral or written, express, implied or statutory, between Avtex and You other than as expressly set forth in this Agreement.
- License Grant. Subject to the terms of this Agreement, the MSA and the SOW, and Client’s payment of the applicable license fees pursuant to the terms of the MSA and the SOW, Avtex hereby grants to Client a limited, non-exclusive, non-transferable, non-sublicensable, perpetual, royalty free license to the Avtex Software and the Documentation within the agreed upon geographic location. Unless agreed to otherwise in the SOW, the license shall be considered a world-wide license.
- Use Restrictions. Client shall use the Avtex Software and Documentation only as expressly permitted hereunder. Client shall not, and shall not permit any other person to:
- Use the Avtex Software anywhere except in the Designated Locations, if the SOW describes or limits the servers on which the Avtex Software may be used (the “Designated Locations”);
- Alter or modify the Avtex Software or the Documentation;
- remove or modify any proprietary marking or restrictive legends placed on the Avtex Software or Documentation; or
- copy the Avtex Software, in whole or in part, except for back-up or archival purposes.
2. AVTEX PROPRIETARY SOFTWARE.
Client acknowledges that the Avtex Software is Avtex’s Intellectual Property and its proprietary Confidential Information. Client agrees that it will:
- use Avtex Software as necessary to perform its normal business operations in accordance with this Agreement;
- safeguard the Avtex Software from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information, but in no event less than a reasonable degree of care; and
- not permit any third party or unauthorized employee to:
- access, view, use, copy, modify or prepare derivative works of any part of the Avtex Software or the Documentation, except as expressly authorized in this Agreement;
- resell, distribute, rent, lease, sublicense, lend, give, market, commercialize, assign or otherwise transfer rights or usage of all or any part of the Avtex Software or Documentation, except as expressly authorized in this Agreement;
- reverse engineer, translate, disassemble, decompile, disable security measures or cause or allow discovery, disclosure or access to the source code (except to the extent that such a restriction would be a breach of applicable law) for any part of the Avtex Software or attempt to do so, except as expressly authorized in this Agreement;
- remove, obscure or alter the copyright, trademark or other proprietary notices affixed to or contained in the Software or the Documentation; or
- place the Software onto a server so that it is accessible via a public network such as the Internet.
Client agrees that violation of the provisions of this Section 2 might cause Avtex irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Avtex will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
All trademarks, service marks, patents, copyrights, trade secrets and other intellectual property rights in any and all Services hardware, Documentation, Deliverables and any other materials, products or services provided to You or used in providing Services to You (collectively, “Materials”) are and shall remain the exclusive property of Avtex, whether or not specifically recognized or perfected under applicable local law. Avtex reserve all rights not expressly granted in the Agreement and own all rights in all derivative works of the Materials and any copy, translation, modification, adaptation or derivation (including any improvement or development) of the Materials.
3. MAINTENANCE AND SUPPORT.
- Maintenance Releases and Patches. Provided this Agreement remains in effect and Client has an active, compliant Client Support Agreement (“CSA”) on file, Avtex shall make available to Client all maintenance releases and patches of the Avtex Software subject to the terms and conditions of the CSA.
- Support. Support of the Avtex Software shall be detailed in the CSA. An active, compliant CSA is required in order to receive Support Services on the Avtex Software.
- Maintenance Lapse. If Client fails to pay maintenance and support in accordance to the CSA, Client may continue to utilize the Avtex Software at the current maintenance release level as the date of the Maintenance Lapse until You Terminate this Agreement in accordance with Section 7. Late maintenance payments may be subject to back maintenance charges.
4. AVTEX WARRANTIES.
- Product Warranty. Avtex warrants to Client that the Avtex Software will substantially conform to the Documentation and be free from defects in materials and workmanship under normal use for ninety (90) days from the Effective Date (the “Product Warranty Period”). The warranty set forth in this Section 4 shall not apply to problems arising out of or related to:
- any change or modification of any aspect of Client’s network environment subsequent to the successful installation of the Avtex Software, including any modification, update or replacement of any hardware or software constituting a part of Client’s network environment;
- any use of the Avtex Software other than as specified in the Documentation, or combination, operation or use of the Avtex Software in or with, any technology or service not specified for Client’s use in the Documentation;
- the misuse, misapplication, negligence, or abuse of the Avtex Software;
- the alteration or modification of the Avtex Software by anyone other than Avtex;
- Client’s material breach of any provision of this Agreement; or
- Client’s failure to promptly install all maintenance releases and updates of the Avtex Software previously made available by Avtex to Client.
- Ownership. Avtex warrants to Client that it owns the Avtex Software and the Documentation and has the right to grant the licenses granted hereunder.
- Professional Services and Support Warranty. Avtex warrants that the Professional Services and Support will be performed in a professional and workmanlike manner and in accordance with applicable requirements of this Agreement and any applicable SOW. Your sole and exclusive remedy for breach of this warranty shall be for Avtex to re-perform non-conforming services.
- Limited Warranty. Except for the limited warranties set forth in this section 4, the software and the documentation are provided “As Is” without representation or warranty of any kind whatsoever. Without limiting the generality of the foregoing and to the fullest extent permissible under applicable law, Avtex, its affiliates, its licensors and its suppliers make no warranties, express, implied, statutory or arising by course of dealing, including implied warranties of merchantability, fitness for a particular purpose, non-infringement or title, in connection with the software, the documentation or any related products and solutions provided to you hereunder, and all such warranties are hereby disclaimed. Further, Avtex, its affiliates, its licensors and its suppliers do not and cannot warrant the performance or results you may obtain by using the software or the documentation. No employee, agent, dealer or distributor of Avtex is authorized to modify this limited warranty, nor to make any additional warranties with respect to the software or the documentation. Your sole warranty with respect to any third-party software or products is the warranty received from such third parties. Except as expressly provided in this agreement, Avtex makes no warranty, express or implied, with respect to third party software or products.
- Warranty Claim. To make a warranty claim, you must provide Avtex with written notice of the claim within the 90-day warranty period.
- Breach of Product Warranty. If the Avtex Software is non-conforming, Avtex shall take reasonable commercial efforts to reconfigure or replace the Avtex Software to make it conform. If Avtex does not reconfigure or replace the non-conforming Avtex Software, Customer may terminate its license to the non-conforming Avtex Software only within the Product Warranty Period by returning all copies of the non-conforming Avtex Software to Avtex, and by purging all copies thereof from its computer systems, and Customer shall upon such termination be entitled to receive a pro-rata refund of the license fees it paid for the non-conforming Avtex Software.
5. LIMITATION OF LIABILITY.
- Exclusion of Consequential Damages. Except for the gross negligence or indemnification obligations stated herein, in no event shall Either Party, including any respective officers, directors, agents or employees be liable for any loss of profits, loss of use, business or service interruption, cost of cover, or indirect, special, incidental, exemplary, punitive or consequential damages of any kind in connection with or arising out of the performance of this Agreement or the SOW even if the Party or its officers, directors, agents and employees have been advised of the possibility of such damages.
- Limitation of Liability. Avtex total liability for any loss, cost, claim or damages in connection with the performance or contemplated performance of this agreement, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, will not exceed the fees paid or payable to Avtex in the twelve (12) months preceding the claim for the Avtex Software that actually caused the loss, cost, claim or damage. Client acknowledges and agrees that this limitation on liability forms a fundamental basis of the bargain hereunder, in the absence of which, the economic terms of this agreement would have been different. This section will not apply to damages that cannot be limited or excluded by law (in which event the limitation will be the minimum amount required by law).
6. INDEMNIFICATION BY AVTEX.
- Avtex agrees to defend Client against any claims by a third party that the Avtex Software or the Documentation infringes any property rights of any third party (including, without limitation, any patent, copyright, trademark or trade secret right of such third party) or that Avtex does not own the Avtex Software or Documentation. Client will promptly notify Avtex of any such claim and provide reasonable assistance to Avtex with respect to handling the claim. Client’s failure to provide timely notice or reasonable assistance will relieve Avtex of its obligations under this Section to the extent that Avtex has been actually and materially prejudiced by such failure. Avtex will have the sole right to select counsel, defend, negotiate and settle any such claim; provided that Avtex obtains the prior written approval of Client, which approval will not be unreasonably withheld, before entering into any settlement of a claim if such settlement would cause injunctive or other relief (including, without limitation, damages or payments to any third party) to be imposed against Client.
- Avtex shall not be obligated to indemnify if the actual or alleged infringement arises from:
- incorporation, combination or use of Avtex Software in or with any technology or service not provided by Avtex;
- modification of Avtex Software other than by or at the direct written instruction of Avtex;
- use of Avtex Software after Avtex’s notice to Client of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights
- failure to use corrections or enhancements made available by Avtex;
- distribution, marketing or use of the Avtex Software for the benefit of any third party;
- failure to follow instructions, specifications or directions provided by Avtex; or
- Avtex following the instructions, specifications or directions provided by Client provided that the Avtex Software would not have been infringing but for Avtex following the instruction, specifications, or directions provided.
- Notwithstanding the foregoing, Avtex will not indemnify, defend, or hold harmless the Client for Client’s use of the Avtex Software that is in or purportedly in violation of any law, whether local, State/Provincial, or Federal, of the United States or any other Country. As Avtex cannot predicate every possible circumstance of how the Client will use the Avtex Software, it is the Client’s responsibility to ensure their use of the Avtex Software is not in violation of law.
- Upon notice of an alleged infringement or if in Avtex’s opinion such a claim is likely, or alternatively, if Client’s rights hereunder are restricted by Avtex or a valid court order, then Avtex shall at its option and sole expense:
- procure the right for Client to continue using the alleged infringing material;
- revise the material with non-infringing material which is equivalent in features, functionality and quality;
- modify the material to make it non-infringing while retaining all original features, functionality and quality;
- refund Client fees paid for respective material based on a depreciated value over three (3) years.
7. INDEMNIFICATION BY CLIENT.
Client shall, at its expense, defend, indemnify and hold harmless Avtex from and against any third-party claim, action or lawsuit relating to or arising out of (i) Client’s breach of this Agreement, (ii) Client’s violation of applicable law, (iii) Client’s gross negligence, fraud or willful misconduct, or (iv) Client’s unauthorized use of Third-Party Software or any other property or assets of a third party, or an allegation that any Client application, materials, data, content, other information or use of the Solution or Work Product infringes, misappropriates or otherwise violates any intellectual property, proprietary or other rights of any third party.
8. TERM AND TERMINATION
- Termination by Avtex for Cause. Avtex may suspend or terminate this Agreement, and the license granted hereby, on thirty (30) days’ written notice, if Client breaches this Agreement and does not cure such breach to Avtex’s satisfaction within such thirty (30) day period.
- Termination by Client for Convenience. Client may terminate this Agreement, and the license granted hereby, on ninety (90) days’ written notice, to discontinue its use of Avtex Software.
- Effect of Termination. Upon termination of this Agreement or the license to Avtex Software, Client shall return to Avtex or destroy all Documentation in its possession, at Avtex’s discretion, and supply an affidavit to Avtex certifying such destruction. Further, Client shall Decommission and discontinue use of all affected Avtex Software and Avtex shall revoke all licenses keys to the Avtex Software, as well any custom developed or stock code to the Avtex Software. Any unauthorized use of Avtex Software after termination shall be considered a breach of confidentiality.
- Termination by Client for Change of Service Provider. Client may terminate this Agreement by switching service providers for the maintenance of the system that the Avtex Software integrates into for its operation. Client shall provide no less than ninety (90) days’ notice of its intent to switch service providers. Client understands that any other service provider, aside from Avtex, will not be able to support, maintain, perform custom development for or upgrade the Avtex Software. As Avtex’s Intellectual Property, Avtex cannot allow another service provider access to the license key or source code for the Avtex Software. Client, in its discretion and at its expense, shall either:
- Decommission all the Avtex Software with Avtex’s assistance, removing all licenses, license keys, source code, customized intergeneration’s, etc. before switching service providers. Client will lose all access to and use of the Avtex Software. Client shall be able to retain backups and data from the Avtex Software solely as required by law; or
- Continue to use the Avtex Software under the new service provider, unsupported and unmaintained at the current release or patch on the Client’s system at the date of termination. Client, Avtex, and the new service provider shall be required to enter into a confidentiality agreement recognizing Avtex’s proprietary rights in the Avtex Software and agree to appropriate confidentiality provisions, including, but not limited to, that it will not copy the Avtex Software or use it for its own benefit or attempt to decompile, deconstruct, or reverse engineer any of the Avtex Software.
- Similar Materials and Services. Subject to the confidentiality provisions of the MSA, nothing in this Agreement precludes or limits will restrict Avtex' in any way from providing materials or services that are similar to materials or services provided or contemplated in this Agreement or the SOW or developing deliverables or other materials or services that are similar to or compete with any materials or services developed as a result of this Agreement, regardless of their similarity to any Materials, including Deliverables. Avtex is free to use any concepts, processes, techniques, improvements or other know-how developed by Avtex 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, Avtex makes no claim or rights to Client Confidential Information.
- Survival of Terms. All terms of this Agreement which, by their nature, are intended to survive termination of this Agreement will survive termination.
- Assignment. Neither party may assign its rights or obligations under the Agreement, either in whole or in part, except (1) with respect to a sale of substantially all of the assets of its business, merger, or change in the party’s ownership, (2) to an Affiliate or (3) with the prior written consent of the other party. Without limiting the preceding sentence, the rights and liabilities of the parties hereto shall bind and inure to the benefit of their respective successors and assigns.
- Compliance with Laws. Each party will comply with all laws, statutes, rules, regulations, ordinances and other pronouncements having the effect of law (collectively “Laws”) as applicable to a party and, in the case of Client, applicable to the Materials and their use. In no event will Avtex be responsible for providing, implementing, configuring, or coding the Materials in a manner that complies with any Laws that apply to Your business or industry, including without limitation, the Communications Act of 2003 as implemented by OFCOM, the UK Anti-Bribery Act, the Foreign Corrupt Practices Act, the FTC or FCC regulations or the Telephone Consumer Protection Act of 1991 (collectively “Client Specific Laws”). You will comply with Client Specific Laws, and in no event will Avtex be liable for any claim or action arising from or related to Client’s failure to comply with any Client Specific Laws it being understood that Client is solely liable for any such failure(s) and resulting claims or actions.
- Governing Law. This Agreement will be interpreted in accordance with the laws of the State of Minnesota, without regard to principles of conflicts of law. All disputes arising out of or related to this Agreement, and any document issued hereunder, shall be brought in the state or federal courts with appropriate subject matter jurisdiction located in Hennepin County, Minnesota. This venue shall be the sole and exclusive forum and for any litigation and the Parties waive any objection to the exclusive jurisdiction thereof, including Forum Non Conveniens. The Parties hereby waive any and all rights to a jury trial for any dispute. The Parties stipulate that the United Nations Convention for the International Sale of Goods and Article 2 of the Uniform Commercial Code shall not apply to this Agreement. The prevailing Party to any dispute shall be entitled to recovery of costs of the dispute, including reasonable attorney’s fees.