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SOFTWARE LICENSE AND SUPPORT AGREEMENT APPLICABLE TO MESSAGEWAY AND MOVEIT SOFTWARE
This License and Support Agreement ("Agreement") is entered into as of today ("Effective Date"), by and between Ipswitch, Inc., with offices located at 83 Hartwell Avenue, Lexington, MA 02421 ("Licensor") and YOU ("Licensee").
WHEREAS, the parties hereto wish to provide the terms and conditions under which Licensor will supply Licensee Software (as defined below) for the term provided herein; and
WHEREAS, Licensee desires to obtain, and Licensor is willing to grant to Licensee a nonexclusive, royalty-free, perpetual, nontransferable license to use the Software subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants and undertakings contained herein and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
1. DEFINITION OF TERMS
1.1 "Software" means the Licensor’s standard, unmodified computer software programs in object code form for the MessageWay or MOVEit programs purchased by Licensee.
1.2 "Confidential Information" means any confidential information concerning the Software, Licensor’s and Licensee's business in general, all data pertaining to Licensor’s and Licensee's customers, and the terms and conditions of this Agreement.
1.3 "Total Fees" means the total sum for the Software, which includes license fees, first year support fee and any services.
1.4 "Taxes" means all sales, use, excise, value added, and other taxes and duties however designated levied by any taxing authority. Taxes shall not include any levies by any taxing authority based upon the net income of Licensor.
1.5 "Third Party" means any party other than Licensor or Licensee or their respective employees.
1.6. "Critical Problem" means a failure of the Software to perform in essential compliance with the material specifications set forth in its documentation, such failure being of the nature that Licensee is unable to utilize the Software for its operational purposes.
2. LICENSE
2.1 Licensor agrees to furnish the Software to Licensee and does hereby grant to Licensee a non-exclusive, royalty-free, non-transferable, perpetual license, without the right to sub-license, to use the Software, in its object code form only, on its premises, for the purpose of processing Licensee’s own electronic file exchange with its customers (the "License").
2.2 For use as authorized, Licensee may copy reasonable quantities of any standard end user documentation; and may copy machine language code, in whole or in part, in reasonable quantities, in printed or electronic form, for use by Licensee for archive, back-up, disaster recovery, or emergency restart purposes, or to replace copies made on defective media. Licensee shall reproduce and include Licensor’s proprietary rights and copyright notices on all such copies, in whole or in part, of the Software.
2.3 The License allows Software to be installed on one production server and also on one non-production server.
2.4 The License includes the unlimited right to distribute and use the Java Web browser plugins, Java and Windows command-line clients, the MOVEit Wizard ActiveX control, MOVEit Xfer, or other end-user components, as applicable.
2.5 Notwithstanding anything contained herein to the contrary, Licensee shall not allow any Software to be used on an external commercial (fee based) time-sharing basis or service bureau arrangement of any kind. As an exception to the preceding sentence, Licensee may use the Software to provide private cloud services to one (1) end user customer of Licensee specifically identified to Ipswitch, provided that Licensee completes and returns Schedule 1 to Ipswitch (available upon request from Ipswitch Sales Department) prior to providing such services.
2.6 Licensee assumes responsibility for selection of the Software to achieve Licensee’s intended results and for the use and valid operation of the Software.
2.7 Licensee acknowledges that the Software (including any and all modifications, enhancements, or customizations thereof) consists of proprietary products of Licensor or its third party suppliers, and the proprietary rights that protect such property may include, but are not limited to, U.S. and international copyrights, trademarks, patents and trade secret laws of general applicability. All right, title and interest in and to the Software are and shall remain with Licensor or its third party suppliers, as applicable. This Agreement does not convey to Licensee any interest in or title to the Software, but only a limited right of use revocable in accordance with its terms.
2.8 Licensee shall not: decompile, disassemble, reverse engineer, extract, or otherwise produce any source code of the Software; disclose, divulge, communicate, or allow access to the Software to any person except Licensee’s authorized agents, employees, or other parties expressly authorized hereunder, or as expressly permitted hereunder.
2.9 Licensee shall not isolate, extract, or otherwise utilize any components embedded in the Software for any purposes other than those supported by the core functions of the Software. Embedded Third Party components shall not be installed or configured, administered, customized, or directly accessed by way of component APIs independent from the APIs and functions of the Software. Embedded Third Party components shall not be independently upgraded or changed in any way except through officially released Ipswitch patches, updates or versions.
3. SUPPORT
3.1 Standard Support Coverage. If and for so long as Licensee purchases annual support, Licensor shall provide to Licensee unlimited telephone support and remote diagnostic assistance during Licensor’s normal business hours. Licensor shall respond to support calls within one (1) hour of the initial call for such support by Licensee.
3.2. Extended Support Coverage. Extended Support Services ("Extended Support") provides Licensee with 24-hour, 7 day per week emergency assistance with guaranteed two (2) hour callback. Such service shall be restricted to Critical Problems. The Extended Support shall be available to Licensee either as specified and prepaid in Licensee’s annual software support fee, or if not so specified, at the current fixed hourly rate for Extended Support provided by Licensor with a two (2) hour minimum charge per incident.
3.3 Licensor shall provide to Licensee at no charge Software updates and enhancements to licensed products when made available generally to Licensor’s other customers, if and for so long as Licensee purchases annual support.
4. TERM
The term of this Agreement and the license grant shall begin on the Effective Date and continue until it is terminated under Section 10. Support may be renewed annually upon Licensee’s payment of Licensor’s then current fee for annual support for so long as Licensor offers support services.
5. PAYMENT
5.1 Licensee shall be responsible for and shall pay all applicable Taxes (including any interest and penalties thereon) if any, imposed by taxing authorities by reason of the sale and delivery of products herein provided. In no event will Licensee be obligated to pay taxes on Licensor’s income.
5.2 Each payment to be made to Licensor under this Agreement shall be paid by Licensee.
6. WARRANTIES
6.1 Licensor warrants that the Software will perform in essential compliance with the material performance specifications set forth in its documentation for a period of one year following the Effective Date. In the event the Software does not so perform, Licensor shall resolve any such defect in a timely manner, or, at its option replace the defective portion thereof at no additional cost to Licensee, or refund the Software license fees paid, reduced by thirty-three per-cent (33%) per year from the Effective Date of this Agreement.
6.2 Licensor warrants that the services described in this Agreement shall be performed in a professional manner and with the standard of care and diligence in the industry, as well as industry standards of documentation, methodology, and control.
6.3 THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED AND SELLER DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. INTELLECTUAL PROPERTY INDEMNITY
7.1 Licensor will defend Licensee and hold it harmless against any claim or action that alleges that the use of the Software infringes a patent, copyright, trade secret, or other proprietary right of a Third Party (a "Claim"), and Licensor will pay resulting costs, damages, and reasonable attorney fees awarded, provided that: (i) Licensee notifies Licensor in writing within thirty (30) days after learning that the Claim has been brought or might be asserted; (ii) allows Licensor sole control of the defense and all related settlement negotiations; and (iii) provides Licensor with the information, authority, and all assistance reasonably requested by the Licensor to provide the aforementioned defense. Licensee shall have the right to be represented in any such Claim by its own counsel, at its own expense.
7.2 In addition to Licensor’s obligations under Section 7.1, if as a result of any such Claim, Licensee is enjoined from using the Software, Licensor will, at its sole option and expense (i) procure for Licensee the right to continue to use the Software; or (ii) replace or modify the Software so that it becomes non-infringing, which replacement or modification must be functionally equivalent, so as to settle such claim, or (iii) refund the Software fees paid, reduced by thirty-three per-cent (33%) per year or portion from the Effective Date of this Agreement and refund the annual software support fees paid for the current period. The indemnity hereunder shall not apply if and to the extent that the Claim results from (i) a correction or modification of the Software not provided by Licensor; (ii) a failure to promptly install and utilize an update; or (iii) the combination of the Software with any items not provided by Licensor.
8. LIMITATION OF LIABILITY
8.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR INDIRECT, INCIDENTAL, SPECIAL, ECONOMIC, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER IN TORT OR IN CONTRACT, INCLUDING LOSS OF PROFITS ARISING OUT OF THE USE OF OR THE INABILITY TO USE IPSWITCH PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO THE LOSS OF PROFITS, BUSINESS, GOODWILL, DATA, OR COMPUTER PROGRAMS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT LIMIT LICENSOR’S OBLIGATIONS TO INDEMNIFY LICENSEE FOR ANY CLAIMS FOR DAMAGES AGAINST LICENSEE FOR INFRINGEMENT ON INTELLECTUAL PROPERTY.
8.2 Notwithstanding anything contained in this Agreement to the contrary, Licensor’s cumulative liability to Licensee or any party resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the license fees paid to Licensor for the applicable Software.
9. NON-DISCLOSURE
9.1 Each party agrees to hold as confidential all Confidential Information received by such party ("Recipient") from the other party ("Disclosing Party"). All Confidential Information shall remain the property of Disclosing Party. Confidential Information will be returned to Disclosing Party at the termination of this Agreement.
9.2 Recipient will use the same care and discretion to avoid disclosure of Confidential Information as it uses with its own similar information that it does not wish disclosed, but in no event less than a reasonable standard of care for the industry and materials in question. Recipient may use Confidential Information only in the furtherance of the purposes of this Agreement. Recipient may disclose Confidential Information to (i) its employees and employees of its affiliates who have a need to know; and (ii) any other party with Disclosing Party’s written consent. Recipient may disclose Confidential Information to the extent required by law. However, Recipient agrees to give Disclosing Party prompt notice and make a reasonable effort to obtain a protective order. The provisions of this paragraph survive any termination of this Agreement.
9.3 No obligation of confidentiality applies to any Confidential Information that Recipient (i) already possesses without obligation of confidentiality; (ii) develops independently; (iii) rightfully receives without obligation of confidentiality from a third party. No obligation of confidentiality applies to any Confidential Information that is, or becomes, publicly available without breach of this Agreement.
9.4 The terms of this Section 9 shall survive termination of this Agreement or any Schedules.
10. TERMINATION
10.1 Licensee may terminate this Agreement at any time by returning the Software, documentation, and all copies thereof to Licensor or by certifying their destruction. Licensee shall receive no refund of any fees or other amount on termination unless this Agreement is terminated under Section 6.1 or 7.2(iii) above.
10.2 Licensor may terminate this Agreement if (i) Licensee fails to pay any license or other fees or any part thereof, or (ii) Licensee breaches any material term or condition of this Agreement and does not remedy such breach within thirty (30) days after receiving written notice thereof. Licensor may terminate this Agreement immediately on written notice, if (a) Licensee copies, distributes or discloses the Software in violation of this Agreement or otherwise breaches its duty of confidentiality, or (b) bankruptcy or insolvency proceedings are instituted by or against Licensee, or a receiver is appointed, or if the Software in Licensee’s possession is the object of attachment, sequestration or other comparable action, and any such proceeding or action is not vacated or terminated within sixty (60) days after commencement or filing. Upon any termination of this Agreement, Licensee shall (x) immediately cease all use of the Software, (y) return the Software, documentation, and all copies thereof to Licensor or certify their destruction, and (z) notify all third parties using the Software through Licensee to do the same.
10.3 Exercise of the right of termination afforded to either party in this Agreement shall not prejudice the legal rights or remedies either party may have against the other in respect of any breach of the terms of this Agreement.
10.4 Upon the termination of this Agreement for any reason, both parties shall return to the other as appropriate all Software and Confidential Information in the other’s possession or, with the other’s approval, destroy such information with certification by an officer.
11. NOTICES
Any notice required or permitted to be given hereunder shall be given by: (i) Registered or Certified Mail, Return Receipt Requested, postage prepaid; (ii) by confirmed facsimile; or (iii) by nationally recognized courier service to the other party at the addresses set forth above or to such other address as a party may designate in writing. All such notices shall be effective upon receipt.
12. GOVERNING LAW
This Agreement will be governed by the substantive laws of the Commonwealth of Massachusetts, without reference to provisions relating to conflict of laws.
13. EXPORT LAW
The Software may not be downloaded or otherwise exported or re-exported to any country subject to U.S. trade sanctions governing the Software, sanctioned countries including those restricted under License Exception ENC under Sections 740.17 (A) and (B)(3) of the Export Administration Regulations set forth by the United States Department of Commerce, Bureau of Industry and Security, or by citizens or residents of such countries except citizens who are lawful permanent residents of countries not subject to such sanctions, or by anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's Table of Denial Orders.
14. GENERAL
14.1 Licensor and Licensee expressly agree they are acting as independent contractors and under no circumstances shall any of the employees of one party be deemed the employees of the other for any purpose. This Agreement shall not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other except as expressly authorized herein.
14.2 The section headings used herein are inserted only as a matter of convenience and for reference and shall not affect the construction or interpretation of this Agreement.
14.3 If any provision of this Agreement is held to be unenforceable or invalid, the other provisions shall continue in full force and effect.
14.4 The failure of either party to insist on strict performance of any of the provisions hereunder shall not be construed as the waiver of any subsequent default of a similar nature.
14.5 This instrument constitutes the complete and exclusive statement of the Agreement between the parties on the subject matter hereof unless superseded by a written agreement executed by specifically identified and duly authorized representatives of each party.
ZIP.exe and UNZIP.exe utility license:
This is version 2003-May-08 of the Info-ZIP copyright and license. The definitive version of this document should be available at ftp://ftp.info-zip.org/pub/infozip/license.html indefinitely. Copyright (c) 1990-2003 Info-ZIP. All rights reserved. For the purposes of this copyright and license, "Info-ZIP" is defined as the following set of individuals: Mark Adler, John Bush, Karl Davis, Harald Denker, Jean-Michel Dubois, Jean-loup Gailly, Hunter Goatley, Ian Gorman, Chris Herborth, Dirk Haase, Greg Hartwig, Robert Heath, Jonathan Hudson, Paul Kienitz, David Kirschbaum, Johnny Lee, Onno van der Linden, Igor Mandrichenko, Steve P. Miller, Sergio Monesi, Keith Owens, George Petrov, Greg Roelofs, Kai Uwe Rommel, Steve Salisbury, Dave Smith, Christian Spieler, Antoine Verheijen, Paul von Behren, Rich Wales, Mike White This software is provided "as is," without warranty of any kind, express or implied. In no event shall Info-ZIP or its contributors be held liable for any direct, indirect, incidental, special or consequential damages arising out of the use of or inability to use this software. Permission is granted to anyone to use this software for any purpose, including commercial applications, and to alter it and redistribute it freely, subject to the following restrictions: 1. Redistributions of source code must retain the above copyright notice, definition, disclaimer, and this list of conditions. 2. Redistributions in binary form (compiled executables) must reproduce the above copyright notice, definition, disclaimer, and this list of conditions in documentation and/or other materials provided with the distribution. The sole exception to this condition is redistribution of a standard UnZipSFX binary (including SFXWiz) as part of a self-extracting archive; that is permitted without inclusion of this license, as long as the normal SFX banner has not been removed from the binary or disabled. 3. Altered versions--including, but not limited to, ports to new operating systems, existing ports with new graphical interfaces, and dynamic, shared, or static library versions--must be plainly marked as such and must not be misrepresented as being the original source. Such altered versions also must not be misrepresented as being Info-ZIP releases--including, but not limited to, labeling of the altered versions with the names "Info-ZIP" (or any variation thereof, including, but not limited to, different capitalizations), "Pocket UnZip," "WiZ" or "MacZip" without the explicit permission of Info-ZIP. Such altered versions are further prohibited from misrepresentative use of the Zip-Bugs or Info-ZIP e-mail addresses or of the Info-ZIP URL(s). 4. Info-ZIP retains the right to use the names "Info-ZIP," "Zip," "UnZip," "UnZipSFX," "WiZ," "Pocket UnZip," "Pocket Zip," and "MacZip" for its own source and binary releases.