License Agreement
BY CLICKING THE “I ACCEPT” BUTTON OR INSTALLING OR USING THE SOFTWARE APPLICATION, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS LICENSE AGREEMENT ON BEHALF OF YOUR COMPANY (IF APPLICABLE), AND YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY THEM. YOU UNDERSTAND AND ACKNOWLEDGE THAT THIS LICENSE AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND YOUR COMPANY AND ASSET INTERTECH, INC. IF YOU REJECT OR DO NOT ACCEPT THE TERMS OF THIS LICENSE AGREEMENT, YOU ARE NOT AUTHORIZED TO USE ANY OF ASSET INTERTECH, INC.’S SOFTWARE, AND YOU WILL NOT BE ALLOWED TO DOWNLOAD OR USE ANY OF ASSET INTERTECH, INC.’S SOFTWARE.
THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SOFTWARE BETWEEN LICENSEE AND ASSET INTERTECH, INC., AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.
Licensee understands and agrees that if the Licensee did not license this software from ASSET InterTech, Inc. or its authorized distributors or resellers, or Licensee chooses not to agree with these license provisions, the software shall be promptly returned to ASSET InterTech, Inc.
This Agreement (“Agreement”) is between the purchaser of this license and its agents and representatives (collectively, “Licensee”) and ASSET InterTech, Inc., a Texas corporation, and its subsidiaries (collectively, “ASSET”).
This Agreement governs ASSET’s grant of a license to Licensee to use the Licensed Products, as defined below.
1. DEFINITIONS.
1.1. “ASSET Hardware” means the ScanWorks® or Arium Controllers, interface pods, buffer boards, IO modules, probes, demonstration boards, and cables and connectors from those boards to the interface pods provided by ASSET to Licensee.
1.2. “Boundary scan” means the IEEE 1149.1/JTAG, IEEE 1149.6 and related standards used in connection with the testing of printed circuit boards.
1.3. “Chip IP” means the software (including without limitation firmware) developed or provided by ASSET that is used for validation, testing or debugging of a printed circuit board. The Chip IP will be delivered securely for use within Field Programmable Gate Array (FPGA) or memory devices. The Chip IP is delivered as a downloadable software program.
1.4. “Designated Equipment” means (a) for licenses that are restricted to Use on only one computer (“Single User License”), the individual computer on which the Software is first installed,(b) for licenses that permit the Use of the Software on more than one computer (“Network Campus License”, “Network Worldwide License” or “Subscription”), the computer server on which the Software licensing mechanism is first installed and the computers on the type of network (i.e., local-area or wide-area) for which a license fee has been paid. If there is no agreement between Licensee and ASSET with respect to the type of license, each license shall be deemed to be a Single User License and (c) for licenses of the Chip IP, all printed circuit boards that Licensee validates, tests or debugs using a ScanWorks FPGA-based or Processor-based test software license, but only until Licensee completes such validation, testing and debugging, at which time such printed circuit boards shall no longer be deemed Designated Equipment and Licensee shall remove and permanently delete the Chip IP from such printed circuit boards.
1.5. “Designated Location” means the street address where the Designated Equipment resides.
1.6. “Licensed Products” or “Software” means:
(i) ScanWorks or SourcePoint software and design verification computer programs, the Chip IP (if licensed as provided in Section 3.6), and all error corrections, Updates and Upgrades (as defined below) provided by ASSET to Licensee, in machine readable form (the “Software”);
(ii) all written and electronic materials generally made available by ASSET for the Software (the “Documentation”);
(iii) the code block(s) software for use with the Software; and/or
(iv) all software, code and executable instructions that are contained or embedded in the ScanWorks or Arium controllers, pods, buffer boards, IO modules, probes and demonstration boards provided to Licensee by ASSET;
provided that such term as used in this Agreement is limited to those Licensed Products that were ordered by Licensee and provided by ASSET while this Agreement is in effect.
1.7. “Proprietary Information” means: (a) ASSET’s marketing, product, business, and other strategies and plans; (b) any other information of ASSET disclosed in tangible form and marked or identified as proprietary or confidential; and (c) the source code, object code, internal design and implementation techniques of the Software. Excluded from Proprietary Information is any information that is: (i) rightfully in the public domain; (ii) rightfully in Licensee’s possession prior to receipt from ASSET or a representative of ASSET; (iii) rightfully learned by Licensee from a third party not in violation of any obligation of confidentiality or other right; or (iv) developed independently by Licensee without use of or reference to the Proprietary Information.
1.8. “Software Maintenance and Support Policy” means ASSET’s policy for providing Software Maintenance and Support Services, as it may be amended, modified or supplemented from time to time in ASSET’s sole discretion.
1.9. “Software Maintenance and Support Services” means the Software maintenance and support services provided by ASSET pursuant to the Software Maintenance and Support Policy.
1.10. “Territory” means the country of the Designated Location.
1.11. “Update(s)” means a new release of a particular Software program that provides error corrections or enhanced functionality and for which ASSET does not charge a license or update fee to licensees of that Software program if then covered by the Software Maintenance and Support Policy.
1.12. “Upgrade(s)” means a Software program with greater or different capability than the Software, but providing the same essential functionality, to be upgraded and for which ASSET charges a fee to Licensees of the Software to be upgraded.
1.13. “Use” means copying all or any portion of the Software into a computer or transmitting it to a computer for processing of its instructions or displaying any portion of the Software in connection with the processing of such machine instructions.
2. PAYMENT AND INSTALLATION.
2.1. Payment. Licensee shall pay in full for the Licensed Products due upon the receipt of the invoice date, provided, however, that payment may become immediately due and payable if Licensee’s account becomes delinquent. Licensee shall pay for each installment delivery of Licensed Products.
2.2. Installation. Licensee shall be responsible for installation of the Licensed Products.
3. LICENSE GRANT.
3.1. Perpetual License. If this Software has been provided to Licensee for use in the productive course of business, ASSET hereby grants, and Licensee accepts, a non-transferable, non-sublicensable, perpetual (as reflected by the version of the Software provided to and paid for by Licensee), non-exclusive, limited license to Use the Licensed Products in machine-readable form only, and only on the Designated Equipment at the Designated Location, and only for Licensee’s internal, normal business purposes. The Licensed Products shall not be used under any circumstance whatsoever directly or indirectly in a computer service business or service bureau or in a rental or commercial timesharing arrangement.
3.2. Subscription License. If this Software has been provided to Licensee for use in the productive course of business, ASSET hereby grants, and Licensee accepts, a non-transferable, non-sublicensable, time-based (as reflected by the version of the Software provided to and paid for by Licensee), non-exclusive, limited license to Use the Licensed Products in machine-readable form only, and only on the Designated Equipment at the Designated Location, and only for Licensee’s internal, normal business purposes. The Licensed Products shall not be used under any circumstance whatsoever directly or indirectly in a computer service business or service bureau or in a rental or commercial timesharing arrangement. The Subscription License will expire and terminate on the date specified in the Licensed Products. During the term of an Subscription License, ASSET shall provide Licensee with maintenance and support services for the Software as follows: (i) telephone support and web-based support from ASSET customer support personnel during ASSET’s normal support business hours, subject to ASSET’s normal prioritization procedures; (ii) software Updates for the Software as deemed appropriate by ASSET: (iii) upon customer request for ScanWorks customers only, up to four (4) hours of web-based (using Zoom, Teams, Webex, etc.) ramp-up training for new users or as a refresher for current users limited to one user for free: (iv) upon customer request for ScanWorks customers only, free memory, flash or cluster model development is included, however component model request are not included in this free offer. Those models can be developed by ASSET as part of a services engagement. Promptly upon the expiration of the Subscription License, and without any notice or demand from ASSET, Licensee shall either: (a) purchase another Subscription license for the Software pursuant to the term of this Agreement, or (b) return the Software and all related materials to ASSET.
3.3. Limited-Term License. If this Software has been provided to Licensee for use in the productive course of business, ASSET hereby grants, and Licensee accepts, a non-transferable, non-sublicensable, time-based (as reflected by the version of the Software provided to and paid for by Licensee), non-exclusive, limited license to Use the Licensed Products in machine-readable form only, and only on the Designated Equipment at the Designated Location, and only for Licensee’s internal, normal business purposes. The Licensed Products shall not be used under any circumstance whatsoever directly or indirectly in a computer service business or service bureau or in a rental or commercial timesharing arrangement. The Limited-Term License will expire and terminate on the date specified in the Licensed Products. During the term of an Limited-Term License, ASSET shall provide Licensee with maintenance and support services for the Software as follows: (i) telephone support and web-based support from ASSET customer support personnel during ASSET’s normal support business hours, subject to ASSET’s normal prioritization procedures; and (ii) software Updates for the Software as deemed appropriate by ASSET. Promptly upon the expiration of the Limited-Term License, and without any notice or demand from ASSET, Licensee shall either: (a) purchase another Limited-Term license for the Software pursuant to the term of this Agreement, or (b) purchase a standard license for the Software pursuant to the terms of this Agreement; or (c) return the Software and all related materials to ASSET.
3.4. Evaluation License. If this Software has been provided for evaluation by Licensee or Licensee has not paid to ASSET all applicable charges for this Software, then ASSET grants to Licensee only a non-exclusive, non-transferable, limited-term evaluation license solely for internal use of the Software, and solely for the purpose of testing and evaluating the Software to determine if Licensee will pay for a standard license to the Software as provided above in this Section 3 (an “Evaluation License”). The Evaluation License will expire and terminate on the earlier to occur of (i) the date specified in the Licensed Products or (ii) the date that ASSET notifies Licensee that the Evaluation License is terminated. Licensee shall not use the Software pursuant to an Evaluation License in the productive course of business or for any purpose other than testing and evaluating the Software as described above. During the term of an Evaluation License, ASSET shall provide Licensee with maintenance and support services for the Software as follows: (i) telephone support and web-based support from ASSET customer support personnel during ASSET’s normal support business hours, subject to ASSET’s normal prioritization procedures; and (ii) software Updates for the Software as deemed appropriate by ASSET. Promptly upon the expiration of the Evaluation License, and without any notice or demand from ASSET, Licensee shall either: (a) purchase a standard license for the Software pursuant to the terms of this Agreement; or (b) return the Software and all related materials to ASSET.
3.5. Beta License. If this Software has been provided for testing by Licensee without charge, then ASSET grants to Licensee only a non-exclusive, non-transferable, limited-term evaluation license solely for internal use of the Software, and solely for the purpose of testing the Software (a “Beta License”). Licensee shall not use the Software pursuant to a Beta License in the productive course of business or for any purpose other than testing the Software as described herein. Such testing will include, but not be limited to (i) development of a product design that uses the full capabilities of the Software, (ii) reporting to ASSET of all errors discovered in the Software and working with ASSET to isolate the causes of the errors, (iii) writing an evaluation report of the Software at the conclusion of the testing and submitting it to ASSET, which report will include test results, bug reports, suggested error corrections, suggestions for improvements to the Software and any other information deemed important by Licensee and (iv) providing bi-weekly status updates by telephone or email to ASSET. Licensee will make available to ASSET all reports and other materials relating to Licensee’s testing of the Software, and Licensee will review and discuss with ASSET such reports and other materials, and the testing of the Software generally, at times reasonably convenient to Licensee. All ideas and suggestions for enhancement, improvement, correction and other changes to the Software provided by Licensee to ASSET shall become and remain the property of ASSET free of any charge or royalty, exclusively, and Licensee shall have no rights therein and no right to compensation therefor. This Beta License shall be effective as of the date Licensee first receives the Software and shall remain in effect only for ninety (90) days, unless this Agreement or this Beta License is terminated prior thereto by either party. A Beta License may be terminated by either party at any time for any reason or for no reason, upon prior written notice to the other party. During the term of a Beta License, ASSET shall provide Licensee with telephone support and web-based support from ASSET customer support personnel during ASSET’s normal support business hours, subject to ASSET’s normal prioritization procedures. Promptly upon the expiration of this Beta License, and without any notice or demand from ASSET, Licensee shall return the Software and all related materials to ASSET and remove and permanently delete all copies and versions of the Software.
3.6. Chip IP License.
(a) If Licensee has obtained a valid ScanWorks FPGA-based or Processor-based test software license, then ASSET also grants to Licensee a non-transferable, non-sublicensable, non-exclusive limited license to use the Chip IP in machine readable form only, and only on the Designated Equipment at the Designated Location, and only for Licensee’s internal use solely for the purpose of validating, testing and debugging printed circuit boards in conjunction with Licensee’s Use of the ScanWorks FPGA-based or Processor-based test software (a “Chip IP License”). The Chip IP License shall be coterminous with Licensee’s license to use the ScanWorks FPGA-Controlled Test Software, and Licensee’s Chip IP License shall immediately and automatically terminate if and when Licensee’s license to use the ScanWorks FPGA-Controlled Test Software terminates. Licensee agrees not to use the Chip IP for any purpose other than the purposes specifically enumerated above in this Section 3.6. Promptly upon termination of the Chip IP License as provided above, Licensee shall remove and permanently delete, and not retain, all copies and versions of the Chip IP. Licensee also agrees to remove and permanently delete the Chip IP from all printed circuit boards as provided in the definition of Designated Equipment. During the term of the Chip IP License, ASSET shall provide Licensee with maintenance and support services for the Chip IP as follows: (i) telephone support and web-based support from ASSET customer personnel during ASSET’s normal support business hours, subject to ASSET’s normal prioritization procedures; and (ii) software Updates for the Chip IP as deemed appropriate by ASSET.
(b) Notwithstanding anything in this Agreement to the contrary, Licensee is not licensed to integrate the Chip IP with Licensee’s designs targeted for FPGAs or printed circuit board design, and Licensee agrees not to take such action.
3.7. Intellectual Property Rights. All intellectual property rights in and to the Licensed Products shall remain the sole and exclusive property of ASSET (and/or its suppliers, if applicable), and ASSET reserves all rights with respect to such intellectual property. Licensee shall have no rights, title, or interest in or to the Licensed Products other than the license expressly granted in this Agreement. The Software and Documentation are protected by U.S. and international copyright laws, treaties, and conventions; the Software and Documentation are copyrighted works under U.S. and foreign laws; and the Software and Documentation are protected as trade secrets and Proprietary Information of ASSET. ScanWorks and SourcePoint are registered trademarks of ASSET. No right, license, or interest to such trademark is granted hereunder, and Licensee agrees that no such right, license, or interest shall be asserted by Licensee with respect to such trademark. Licensee is prohibited from modifying, disabling, and may not modify, disable, circumvent, avoid, bypass, remove, deactivate, impair or otherwise interfere with features of the Software that enforce license restrictions or limit or report technical or statistical information regarding the Software or its use to ASSET. The Software may contain such features, and Licensee agrees that ASSET may use such features. Licensee may not distribute, sell, sublease, assign, give, or transfer in any way the original or any copies of the Licensed Products.
3.8. Type of License; Use on Designated Equipment. Use of the Software is restricted to the Designated Equipment at the Designated Location on (a) in the case of a Single User License, only on a single computer or (b) in the case of a Network Campus License, via a local-area network within only the Designated Location for only the number of seats for which a license fee has been paid, (c) in the case of a Network Worldwide License, via a wide-area network for only the Designated Locations for only the number of seats for which a license fee has been paid or (d) in the case of a license of the Chip IP, as provided in the definition of Designated Equipment. For purposes of this Section 3.8, the number of seats Licensee is using at a given time will be equal to the number of computers at the Designated Location that at that time have the Software or any portion of the Software loaded into temporary memory, or RAM, or that are processing the Software or any of its instructions. Accessing the Software from any location other than the Designated Location via local- or wide-area networking technology, or any other means, including without limitation over the Internet, is prohibited unless Licensee has paid the appropriate Network Worldwide License fee for the applicable Software and is subject to the restrictions set forth herein. With respect to all ScanWorks or SourcePoint Software licenses, the quote, the part number or the product description will identify the type of license (e.g., perpetual, subscription, limited-term, evaluation or beta).
3.9. Transfers. Licensee may change the Designated Equipment or Designated Location but only after giving five (5) days prior written notice to ASSET; provided, however, that if the Designated Equipment becomes inoperable, Licensee may change the Designated Equipment so long as Licensee notifies ASSET in writing (by e-mail) of the change promptly following such change. Licensee shall pay ASSET’s standard transfer charges prior to the change in Designated Location. If the Licensed Products are not covered by the Software Maintenance and Support Policy at the time of a change in Designated Equipment or Designated Location, Licensee shall pay ASSET’s then standard charges for any assistance provided by ASSET to change the Designated Equipment or Designated Location. Licensee shall certify to ASSET in writing the current Designated Equipment and Designated Location. After changing the Designated Equipment in accordance with this Section 3.9, Licensee agrees not to retain any copies of the Software on the computer(s) from which the Software was transferred.
4. PROTECTION OF PROPRIETARY INFORMATION.
4.1. Ownership. The Proprietary Information of ASSET shall remain confidential and proprietary to ASSET.
4.2. Source Code. Licensee shall not attempt to reverse engineer, decompile or disassemble the Software or any portion thereof, or otherwise derive its source code.
4.3. Copy. In the case of a Single User License, Licensee may make one copy of the Software and Documentation solely for backup and archival use and must retain ASSET’s and/or its suppliers’ copyright, trademark, confidentiality, and other notices on such copy. In the case of a Network Campus License or as Network Worldwide License, Licensee may make copies of the Software solely for the purpose of loading the Software on the Designated Equipment, and the use of the Software shall be subject to the seat restrictions in Section 3 and the other provisions of this Agreement.
4.4. Destruction of Software. Licensee shall erase and permanently delete the Software from all Designated Equipment prior to retiring such equipment from active use and in the event of termination of this Agreement or the license with respect to the Software.
4.5. Inclusion with Other Software. Licensee may Use the Software within or in conjunction with any other software, but must comply with Section 4.4 upon termination of this Agreement, and any Use shall always remain subject to this Agreement.
4.6. Libraries and Applications Software. You may create applications for your internal use only, using libraries and application software included within the License. The modified or derivative applications created using the License are not subject to this Agreement except to the extent they may infringe upon the License.
4.7. Confidentiality. Licensee shall not disclose, provide or otherwise make available the Proprietary Information of ASSET to any person, other than authorized employees of Licensee who have signed agreements with Licensee providing for the reasonable protection of the Proprietary Information, without ASSET’s prior written consent, signed by an authorized officer of ASSET. Licensee shall also protect the Proprietary Information through instructions to its employees, access limitations, and the like, no less securely than if it were Licensee’s own intellectual property. Licensee shall not use the Proprietary Information except to the extent permitted hereunder. No media containing the Software, nor any Documentation, shall be transferred, reproduced, or used in any way, other than as expressly permitted by this Agreement.
4.8. Privacy of Supplied Information. Licensee agrees to allow ASSET to collect non-personal information pertaining to Licensee and its end users of the Software and use it for the purpose of installation, support, licensing and/or execution of the Software. The type of non-personal information collected by ASSET may include but is not limited to the Software licensed to Licensee and Licensee’s computer host IDs and IP addresses.
5. SOFTWARE MAINTENANCE and support POLICY.
ASSET recommends that all Software be covered by ASSET’s Software Maintenance and Support Policy. Upon payment by Licensee of ASSET’s Software maintenance and support fees then in effect, ASSET will provide the Software Maintenance and Support Services as described below in this Section 5.
5.1. Term of Software Maintenance and Support Services. The Software Maintenance and Support Services shall be provided for an initial term of one year from the date of first Use, access or delivery of the Software, and thereafter for successive periods of support renewal terms of one year each, unless and until terminated pursuant to Section 5.8 below. ASSET’s provision of the Software Maintenance and Support Services shall be conditioned upon Licensee’s payment of the Software Maintenance and Support Services fee as provided in Section 5.2.
5.2. Software Maintenance and Support Services Fee. To obtain Software Maintenance and Support Services under the Software Maintenance and Support Policy, Licensee shall pay the annual Software Maintenance and Support Services fee then in effect for the Licensed Products. All such fees are due and payable in full at the start of each Software Maintenance and Support Service term for such Licensed Products described in Section 5.1. ASSET may increase its annual Software Maintenance and Support Services fees effective only as of the beginning of a Software Maintenance and Support Service term. If Licensee and ASSET agree, the term of Software Maintenance and Support Services may be modified and Software Maintenance and Support Services fees prorated such that the term of Software Maintenance and Support Services for all Licensed Products used by Licensee expire on the same date. Software Maintenance and Support Services fees do not include excise, sales, use, value added, or other similar taxes, nor any duties. Licensee shall reimburse ASSET for all such taxes and duties incurred by ASSET in connection with this Agreement. If an Upgrade is provided to Licensee and covered by the Software Maintenance and Support Services, Licensee shall pay an additional Software Maintenance and Support Services fee equal to the amount by which the annual Software Maintenance and Support Services fee for the Upgrade exceeds the annual Software Maintenance and Support Service fee for the Licensed Products.
5.3. Maintenance Support Services Provided. ASSET will provide Licensee with the following Software Maintenance and Support Services during the support term for the Licensed Products: (a) telephone diagnostics and assistance in the use of the Licensed Products in accordance with the Documentation during normal, weekday business hours, excluding holidays; (b) providing and regularly updating the ASSET support web site, an Internet-based case management system, and the ASSET Web Library, a website that contains a variety of models and support functions; (c) delivery of Updates upon their general commercial releases by ASSET; and (d) delivery of Upgrades upon their general commercial releases by ASSET, provided that Licensee has ordered the Upgrade and paid the applicable Upgrade fee. ASSET will use commercially reasonable efforts to respond promptly to all reasonable Software Maintenance and Support Service requests from Licensee. ASSET shall determine the timing and frequency of its Update and Upgrade deliveries in its sole discretion. If Licensee and ASSET mutually agree, ASSET will provide Software Maintenance and Support Services to Licensee that are not covered under this Section 5.3. If such services are ordered by Licensee and provided by ASSET, they shall be governed by this Agreement and provided during normal business hours, excluding holidays observed by ASSET, and Licensee shall pay ASSET’s then current charges for such services. For certain Software problems, ASSET may require Licensee to furnish a test case and sufficient documentation to allow recreation of the Software problem. At Licensee’s request, ASSET and Licensee will execute a mutually agreeable confidentiality agreement regarding the test case and documentation furnished to ASSET.
5.4. Excluded Services. The following services are not included under Section 5.3: (a) services arising out of, resulting from or with respect to, (i) the relocation, movement, improper operation, neglect, or misuse of the Licensed Products; (ii) Licensee’s failure to maintain proper site or environmental conditions; (iii) the use of the Software with any software or hardware for which its use is not recommended in the Documentation; (iv) the fault of Licensee or Licensee’s agents or employees; (v) any attempt at repair or service resulting from or required as a result of neglect, misuse, or accidental damage of the products; (vi) alterations or modifications to the Licensed Products performed by other than ASSET or a party authorized by ASSET to perform such alterations or modification; (vii) the use of the Licensed Products for other than the purposes for which they were designed; (viii) any casualty, act of God, or the unauthorized act of any third party; (ix) the failure or interruption of any electrical power, telephone, or communication service or like cause; (x) any other cause external to the Licensed Products except ordinary Use in accordance with the license granted in Section 3; (xi) furnishing supplies, accessories, or media; (xii) the support of software developed by Licensee or obtained from third parties; (xiii) a guarantee that there will be a software update during the term of this Agreement; (xiv) on-site service; and (xv) Software that is not the then-current production release or the immediately preceding release (if more than 180 days has elapsed since the date a production release subsequent of the Software has occurred); (b) any service or product not specifically set forth in Section 5.3; (c) service at Licensee’s location; (d) hardware and related supplies; and (e) training.
5.5. Additional Services. If ASSET performs software maintenance and support services at Licensee’s request beyond the scope of the Software Maintenance and Support Services specified herein, or outside the principal period of maintenance, those services shall be requested in writing by Licensee and billed to Licensee at ASSET’s then current charges for the services and materials provided. ASSET shall not be obligated to perform any additional services.
5.6. Discontinued Licensed Products. ASSET reserves the right to replace a Licensed Product that is discontinued or retired by ASSET with a replacement Licensed Product, and negotiate with Licensee the difference in price, if any.
5.7. Support Services Cease. If Licensee ceases paying for Software Maintenance and Support Services as described herein, ASSET shall have no further obligations hereunder. Licensee understands and agrees that if Licensee discontinues and then resumes the use of Software Maintenance and Support Services, Licensee will be required to pay ASSET a reinstatement fee in accordance with ASSET’s Software Maintenance and Support Policy then in effect, plus the maintenance fee for the term of Software Maintenance and Support Services then commencing.
5.8. Renewal. Either ASSET or Licensee may choose not to renew Software Maintenance and Support Services as described in this Section 5 at any time by notifying the other party of this fact prior to commencement of the next annual service term. After notification, ASSET will continue to provide Software Maintenance and Support Services through the end of the paid term. If Licensee chose not to renew Software Maintenance and Support Services, ASSET shall have no further obligation to support Licensee or Licensee’s employees.
5.9. Contact Person. If requested by ASSET, Licensee shall designate one person who must be properly trained in the operation and use of the Licensed Products to serve as Licensee’s contact person for all services performed under this Agreement. All requests for service under this Agreement shall be made by Licensee through such contact person.
6. LIMITED WARRANTY AND DISCLAIMER.
6.1. Evaluation or Beta License. THE LICENSED PRODUCTS AND ALL OTHER ITEMS AND SERVICES PROVIDED IN CONNECTION WITH ANY EVALUATION OR BETA LICENSE HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6.
6.2. Other Software Licenses. With respect to any Software license hereunder other than Evaluation Licenses and Beta Licenses, ASSET warrants that the Software will conform substantially to its Documentation for thirty (30) days from delivery. Licensee must obtain a return authorization number from ASSET before returning the Software to ASSET. If ASSET confirms a material non-conformity of the unaltered Software to the Documentation as reported by Licensee, ASSET will use commercially reasonable efforts to remedy the nonconformance. ASSET does not warrant that the operation of the Licensed Products will be uninterrupted or error free, nor does it guarantee that its remedial efforts will correct any nonconformance. Corrections and replacements will be warranted for the remainder of the original warranty period. IF ANY SOFTWARE FAILS TO COMPLY MATERIALLY WITH ANY LIMITED WARRANTY SET FORTH IN THIS SECTION 6 AND ASSET DOES NOT REMEDY SUCH FAILURE PURSUANT TO THIS SECTION 6, ASSET’S SOLE OBLIGATION AND LIABILITY, AND LICENSEE’S EXCLUSIVE REMEDY, FOR SUCH FAILURE SHALL BE LIMITED: TO THE REFUND OF THE LICENSE FEE PAID FOR SUCH SOFTWARE, UPON THE RETURN OF SUCH SOFTWARE TO ASSET, IN WHICH EVENT THIS AGREEMENT SHALL TERMINATE. ASSET will have no obligation for non-conformities in the Software that are caused by accident, abuse, or misuse of the Software or for any other reason specified in Section 5.4.
6.3. Software Maintenance and Support Services. ASSET warrants that the Software Maintenance and Support Services referred to in Section 5, and all other maintenance and support services ASSET provides Licensee under this License Agreement (collectively the “Maintenance and Support Services”), will be performed in a professional and workmanlike manner. For Maintenance and Support Services that do not conform to the limited warranty above, Licensee is entitled to re-performance of the services, or if ASSET cannot perform the services as warranted, Licensee is entitled to a refund of the fee paid to ASSET that is allocable to the non-conforming services. CORRECTION OF NON-CONFORMITIES AS PROVIDED ABOVE SHALL BE LICENSEE’S EXCLUSIVE REMEDY AND SHALL CONSTITUTE FULFILLMENT OF ALL LIABILITIES OF ASSET, WHETHER IN WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE WITH RESPECT TO THE MAINTENANCE AND SUPPORT SERVICES.
6.4. Hardware. The following provisions of this Section 6.4 will apply to all ASSET Hardware sold by ASSET to Licensee under this Agreement.
(a) Limited Warranty. ASSET warrants that any ASSET Hardware sold by ASSET to Licensee under this Agreement will be free from defects in materials and workmanship for a period of one (1) year from the date of shipment. If any such ASSET Hardware proves defective during such warranty period, ASSET, at its option, either will repair the defective hardware without charge for parts and labor, or will provide a replacement in exchange for the defective hardware. ASSET’S RESPONSIBILITY TO REPAIR OR REPLACE DEFECTIVE ASSET HARDWARE IS THE SOLE AND EXCLUSIVE REMEDY PROVIDED TO LICENSEE FOR BREACH OF THIS WARRANTY.
(b) Warranty Services Provided. In order to obtain service under this warranty, Licensee must notify ASSET in writing of the defect before the expiration of the warranty period and obtain shipping instructions from ASSET for the defective hardware. Licensee shall be responsible for packaging and shipping the defective hardware to ASSET with shipping charges prepaid. ASSET shall pay for the return of the hardware to Licensee in the United States. Licensee shall be responsible for paying all shipping charges, duties, taxes, and any other charges for hardware returned to any other locations.
(c) Warranty Exclusions. This warranty shall not apply to any defect, failure or damage caused by improper use or improper or inadequate maintenance and care. ASSET shall not be obligated to furnish service under this warranty (a) to repair damage resulting from improper use or connection to incompatible equipment, (b) to service the hardware that has been modified or integrated with other products when the effect of such modification or integration increases the time or difficulty of servicing the hardware, (c) to repair or replace cables that become defective or unacceptable for their intended use due to wear and tear, or (d) arising out of, resulting from or with respect to (i) the relocation, movement, improper operation, neglect, or misuse of the ASSET Hardware or Licensed Products, (ii) Licensee’s failure to maintain proper site or environmental conditions, (iii) the use of the ASSET Hardware or Software with any software or hardware for which its use is not recommended in the Documentation, (iv) the fault of Licensee or Licensee’s agents or employees, (v) any attempt at repair or service resulting from or required as a result of neglect, misuse, or accidental damage of the products, (vi) alterations or modifications to the ASSET Hardware or Licensed Products performed by other than ASSET or a party authorized by ASSET to perform such alterations or modification, (vii) the use of the ASSET Hardware or Licensed Products for other than the purposes for which they were designed, (viii) any casualty, act of God, or the unauthorized act of any third party, (ix) the failure or interruption of any electrical power, telephone, or communication service or like cause, (x) any other cause external to the ASSET Hardware or Licensed Products except ordinary Use in accordance with the license granted in Section 3, or (xi) support of hardware obtained from third parties.
(d) Replaced Products or Consignment Inventory. Hardware that is replaced by ASSET is the property of ASSET. If ASSET provides replacement hardware, Licensee agrees to ship the hardware that is replaced to ASSET within 30 days of Licensee’s receipt of replacement hardware any such replaced hardware not returned to ASSET within such time period will be invoiced to Licensee, and Licensee agrees to pay ASSET the current list price of such hardware. ASSET may ship replacement hardware to Licensee that is either new or refurbished, and ASSET agrees to test any such refurbished hardware to confirm that it meets the same specifications as new hardware.
6.5. DISCLAIMERS. ASSET MAKES NO CONDITIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, WRITTEN OR ORAL, EXCEPT AS EXPRESSLY STATED IN THIS SECTION 6. ASSET DISCLAIMS ALL OTHER CONDITIONS AND WARRANTIES, EXPRESSED AND IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ALL WARRANTIES COVERING HARDWARE OTHER THAN THE ASSET HARDWARE AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND FREEDOM FROM INFRINGEMENT WITH RESPECT TO THE LICENSED PRODUCTS AND ALL OTHER PRODUCTS, SUPPORT SERVICES, OTHER SERVICES, MATERIALS, DOCUMENTATION, AND OTHER ITEMS FURNISHED UNDER, OR IN CONNECTION WITH, THIS AGREEMENT. THIS LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
7. INFRINGEMENT.
7.1. ASSET to Defend. ASSET will defend, at its own expense, any action against Licensee based on a claim that the Licensed Products infringe a United States patent or United States copyright or involves misappropriation of a trade secret. ASSET agrees to pay any money damages (other than exemplary or punitive damages) awarded against Licensee attributable solely to any such infringement, disclosure or misuse. ASSET will pay such damages or costs as are finally awarded against Licensee for such infringement or misappropriation provided that Licensee gives ASSET: (a) prompt written notice of any such action and of all prior related claims; (b) sole control of the defense and settlement of such action; and (c) full cooperation in any defense or settlement. ASSET shall not be liable for any fees, costs, or damages incurred without such prompt written notice, control, and cooperation.
7.2. Exclusive Remedy. Should any Licensed Product become, or in ASSET’s opinion be likely to become, the subject of a claim of infringement or trade secret misappropriation as set forth in Section 7.1, ASSET shall, at its option and expense: (a) obtain for Licensee the right to continue using the Licensed Product; (b) replace or modify the Licensed Product so its use becomes non infringing or otherwise lawful; or (c) terminate the license granted hereunder with respect to the infringing Licensed Product or subcomponent and refund the applicable license fee paid by Licensee for the Licensed Product, less a reasonable allowance for past use based on straight-line depreciation over a three-year period.
7.3. Disclaimer. Notwithstanding the foregoing, ASSET shall have no liability for any claim of infringement of a patent, copyright or other intellectual property right or trade secret misappropriation, based on the use of the Licensed Products: (a) on a computer or other device for which it was not designed; (b) with any other product not supplied by ASSET; (c) in any manner or purpose for which the Licensed Products were not designed; (d) if the infringement or misappropriation could have been avoided by Licensee’s use of the most current version of the Licensed Products; (e) if it has been modified by anyone other than ASSET; or (f) that infringes on intellectual property rights or trade secrets owned by Licensee or any of its affiliated companies.
7.4. Exclusive Remedy. THIS SECTION 7 STATES LICENSEE’S EXCLUSIVE REMEDY AND ASSET’S SOLE LIABILITY FOR THE LICENSED PRODUCTS OR SOFTWARE INFRINGING ON THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR CONSTITUTING A MISAPPROPRIATION OF THE TRADE SECRETS OF THIRD PARTIES.
7.5. Licensee Obligation to Notify ASSET of Infringement. Licensee shall immediately notify ASSET in the event that Licensee discovers any infringement of ASSET’s rights in the Software or any violation by Licensee of the terms of this Agreement.
8. LIMITATION OF LIABILITY.
8.1. Limitation of Liability. EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 7 OF THIS AGREEMENT, ASSET’S (AND ITS SUPPLIERS’) ENTIRE LIABILITY, AND LICENSEE’S EXCLUSIVE REMEDY, FOR ANY AND ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR RELATED TO ANY ITEM OR SERVICE PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE LICENSE AND MAINTENANCE FEE PAID TO ASSET BY LICENSEE IN CONNECTION WITH THE LICENSED PRODUCTS. IN NO EVENT SHALL ASSET (NOR ANY OF ITS SUPPLIERS) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF DATA, LOST PROFITS, AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS), ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY PRODUCT, SERVICE, OR OTHER ITEM PROVIDED UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER IN BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ASSET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MALFUNCTION OF A COMPUTER OR COMPUTER NETWORK MAY MAKE THE SOFTWARE UNAVAILABLE. LICENSEE AGREES THAT ASSET SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SOFTWARE IS UNAVAILABLE DUE TO THESE MALFUNCTIONS.
8.2. Limitations Period. Neither party may bring any action under this Agreement for any cause whatsoever more than two (2) years after the occurrence giving rise to such cause of action, regardless of the date of discovery thereof; provided however, that this Section 8.2 shall not apply to any action brought by ASSET for violations of Section 3 or Section 4 and actions brought by ASSET to protect its intellectual property rights.
8.3. Mission Critical Applications. UNLESS OTHERWISE AGREED IN WRITING BY ASSET, THE LICENSED PRODUCTS ARE NOT DESIGNED NOR INTENDED FOR ANY MISSION CRITICAL APPLICATIONS, WHERE A “MISSION CRITICAL APPLICATION” IS ANY APPLICATION IN WHICH FAILURE OF ANY OF THE LICENSED PRODUCTS COULD RESULT, DIRECTLY OR INDIRECTLY, IN BODILY INJURY OR DEATH. SHOULD LICENSEE USE THE LICENSED PRODUCTS FOR ANY SUCH MISSION CRITICAL APPLICATION, ASSET SHALL NOT BE LIABLE TO LICENSEE FOR CLAIMS, COSTS, DAMAGES, AND EXPENSES AND ATTORNEYS’ FEES ARISING OUT OF, DIRECTLY OR INDIRECTLY, ANY CLAIM OF PRODUCT LIABILITY, BODILY INJURY, OR DEATH ARISING IN ANY WAY OUT OF SUCH MISSION CRITICAL APPLICATION, WHETHER OR NOT ASSET OR ANY CONTRACTOR WAS NEGLIGENT IN THE DESIGN, MANUFACTURE, OR WARNING OF THE LICENSED PRODUCTS OR ANY OF ITS PARTS.
9. DEFAULT AND TERMINATION.
9.1. Default. ASSET may, by written notice to Licensee, terminate this Agreement, including the licenses granted hereunder, if any of the following events occur: (a) the failure of Licensee to pay ASSET in full any fee or charge due to ASSET if payment is not rendered within ten (10) days after Licensee receives written notice that payment is overdue; (b) any breach of any material term or obligation of this Agreement if not remedied within thirty (30) days after Licensee receives written notice of such breach; (c) any material breach of Section 3 or Section 4 effective immediately upon written notice from ASSET; or (d) the insolvency of Licensee.
9.2. Termination. Licensee’s right to use the Licensed Products shall cease upon termination without further action. Within seven (7) days of termination, Licensee shall return to ASSET the Licensed Products, including the original and all copies of all Documentation and Software, together with a certification by a duly authorized representative of Licensee that all copies of the Software not returned have been destroyed.
9.3. No Waiver; Remedies Cumulative. Termination shall be in addition to, and not a waiver of, any remedy available to ASSET at law, equity or under this Agreement. All remedies hereunder and under applicable law shall be cumulative.
9.4. Survival. Notwithstanding the foregoing, the provisions of Sections 2.1, 3.7, 4, 5.4, 6, 7, 8, 9.2, 9.3, 9.4, and 10 shall survive termination.
10. GENERAL.
10.1. Other Agreements. This Agreement supersedes all prior oral and written agreements and understandings between the parties related to the subject matter hereof, and constitutes the complete and exclusive statement of such agreement. All orders for Licensed Products issued by Licensee while this Agreement is in effect shall be governed by the terms and conditions of this Agreement exclusively, and the terms and conditions contained in any purchase order issued by Licensee shall be of no force or effect, even if the order is accepted by ASSET.
10.2. Headings. Headings in this Agreement are for convenience only, and shall be disregarded when interpreting the terms hereof.
10.3. Government Compliance. If all or part of the Designated Equipment is located outside the United States of America, Licensee shall, unless otherwise required by applicable law, at its expense obtain all approvals from and make all necessary reports and filings to, the government of the country or jurisdiction in which the Software is delivered to Licensee, as necessary for the parties to enter into and perform this Agreement.
10.4. Assignment. Neither this Agreement nor any of Licensee’s rights or obligations under this Agreement shall be assigned or transferred by Licensee without ASSET’s prior written consent and any attempted assignment or transfer without such consent shall be void. Licensee agrees that this Agreement binds Licensee and each of its employees, agents and persons associated with it, including Licensee’s affiliated and subsidiary firms, corporations and other organizations. ASSET may assign this Agreement and its rights and obligations hereunder without Licensee’s consent.
10.5. Force Majeure. Neither party shall be liable for any failure or delay in performing services or any other obligation under this Agreement (other than payment obligations), nor for any damages suffered by reason of such failure or delay, which is, indirectly or directly, caused by strike, riot, natural catastrophe or other act of God, or any other cause beyond either party’s reasonable control.
10.6. No Waiver. If either party fails to perform any of its obligations hereunder and the other party fails to enforce the provisions relating thereto, such party’s failure to enforce this Agreement shall not prevent its later enforcement.
10.7. Severability. If any provision of this Agreement is determined by a court to be, or becomes, invalid, unenforceable or illegal, such provision shall be (a) modified to be made valid, enforceable and legal in such a manner as to best effectuate the intent of the parties on the date hereof or (b) deemed eliminated where such modification is not practicable. The remainder of this Agreement shall remain in effect in accordance with its terms as modified by such modification or deletion.
10.8. Notices. All notices and correspondence under this Agreement shall be in writing and shall be delivered by personal service, electronically confirmed facsimile, express courier, certified mail, return receipt requested, or airmail. If to ASSET, Licensee shall deliver notice to the last address to which Licensee sent payment for Licensed Products, Software, or support services (or to any subsequent address communicated to Licensee in writing). If to Licensee, notice shall be delivered to the last address to which ASSET sent an invoice (or to any subsequent address communicated to ASSET in writing). All notices shall be deemed effective upon receipt if delivered personally or sent by express courier or electronically confirmed facsimile, and seven (7) days after mailing if sent by certified mail or airmail.
10.9. Governing Law. This Agreement, and all transactions hereunder, shall be governed by, and any arbitration hereunder shall apply, the laws of Texas, excluding (a) its rules regarding conflict of laws; (b) the United Nations Convention on Contracts for the International Sale of Goods; (c) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (d) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. The governing language of this Agreement shall be English.
10.10. Attorney Fees and Costs. If any legal action is brought in connection with this Agreement, the prevailing party shall be entitled to receive its reasonable attorney fees and costs in addition to any other relief it may receive.
10.11. Modifications. No modifications of this Agreement shall be binding upon either party unless made in writing and signed and delivered by an authorized representative of ASSET and Licensee.
10.12. RESTRICTED RIGHTS – Government Use. If Licensee is a U.S. Government entity, the Software and the Documentation are “commercial computer software” or “commercial computer software documentation.” Absent a written agreement to the contrary, the Government’s rights with respect to such Software or Documentation are limited by the terms of this Agreement, pursuant to FAR ‘ 12.212(a) and/or DFARS ‘ 227.7202-1(a), as applicable.
10.13. Dispute Resolution. All disputes arising out of, or relating to, this Agreement shall be finally resolved by arbitration conducted in the English language in Dallas, Texas, U.S.A., under the arbitration rules of the American Arbitration Association if Licensee is located in North America or under the commercial arbitration rules of the United Nations Commission on International Trade Law if the Licensee is located outside of North America. Three arbitrators with experience in computer software licensing matters shall be appointed by the American Arbitration Association. In arriving at their award, the arbitrators shall make every effort to find a solution to the dispute in the provisions of this Agreement and shall give full effect to all provisions of this Agreement. However, if a solution cannot be found in the language of this Agreement, the arbitrators shall apply the substantive (not the conflicts) law of the United States of America and the State of Texas. Both parties shall bear equally the cost of the arbitration (exclusive of legal fees and costs, all of which shall be allocated in accordance with Section 10.10). All decisions of the arbitrator(s) shall be final and binding on both parties and enforceable in any court of competent jurisdiction. The parties hereby agree to exclude any right of application or appeal in connection with any question of law arising in the course of the arbitration or out of the award. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement, and the parties hereto consent to the jurisdiction of the United States Federal District Courts for the Northern District of Texas and the Texas State Courts sitting in Dallas County for judicial acceptance or confirmation of the award after it has been entered by the arbitral tribunal. For purposes of receiving service of process or other legal summons in connection with obtaining judicial acceptance or confirmation of any arbitral award and subsequent judgment in the United States Federal courts, the parties hereby agree that its agents are authorized to receive service of process by mail at the notice address under this Agreement. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction, or similar equitable relief.
10.14. Third Party Beneficiary Rights. Licensee acknowledges that portions of the Software and related Documentation are licensed to Licensor by third parties for inclusion in the Product(s) and that such third parties are intended third party beneficiaries of the provisions of this Agreement.
10.15. Duty to Back Up Data. Licensee acknowledges and agrees that it is Licensee’s responsibility to maintain periodic backup copies of all data and programs used in conjunction with the Software to prevent catastrophic loss.
10.16. Taxes. Licensee agrees to pay all taxes (including but not limited to sales, use, excise, and value-added taxes), tariffs, duties, customs fees or similar charges imposed or levied on all Software Licensee acquires, with the exception of taxes on ASSET’s net income.
10.17. Inspection Rights. Licensee shall maintain complete and accurate records concerning its use of the Software. ASSET shall have the right to enter the premises of Licensee at any time upon reasonable request during regular business hours in a nondisruptive manner, for the purpose of inspecting the location and use of the Software and Documentation and the standard procedures of Licensee to ensure that the Licensee’s use of the Software is in compliance with the terms of this Agreement. Licensee shall reasonably cooperate with ASSET with respect to any such audit. The audit will be conducted at ASSET’s expense, unless the audit reveals that Licensee has underpaid the amounts owed to ASSET by more than US $10,000, in which case Licensee will reimburse ASSET for all costs and expenses incurred by ASSET in connection with such audit. Licensee agrees to pay ASSET within ten (10) days of written notification any underpayment discovered during such audit.
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Version 7.0, December 13, 2021 ©2009-2021, ASSET InterTech, Inc.
