END USER LICENSE AND SERVICES AGREEMENT
READ THE FOLLOWING LICENCE AGREEMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE. BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON OR LEAVE THE WEBSITE.
This End User License and Services Agreement (the “Agreement”) is between Upstream Works Software Ltd. (“UWS“), with offices at 7777 Weston Road, Suite 1000, Woodbridge, Ontario Canada, L4L 0G9 and “You” the company who has elected to license the Product (“End User”) and duly agreed to the terms of this Agreement by delivering to UWS or its resellers (“Reseller”) an Order to license the Product (as defined below). The effective date of this Agreement is the date accepted by agreeing to these terms and clicking the Accept button. (“Effective Date”).
In consideration of the mutual promises set out below and for other good and valuable consideration, receipt of which being hereby acknowledged, UWS and End User agree as follows:
Section 1. DEFINITIONS
1.01 Defined Terms. In addition to the terms defined above and elsewhere in this Agreement, the following terms as used in this Agreement shall have the meanings set forth below:
“Acceptance” shall mean formal signed acceptance, an End User’s first production use of UWS Software, 90 days after delivery of UWS Software to the End User, or resolution of all Severity 1 or 2 issues determined in the End User’s acceptance testing phase, whichever comes first.
“Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with End User, where “control” is defined as the ownership of at least fifty percent (50%) of the equity or beneficial interests of such entity.
“Agreement” shall mean this agreement, all attached exhibits and any other documents made a part hereof or incorporated by reference herein, including any mutually executed written amendments hereto and all Orders.
“Data Protection Requirements” shall mean the Data Protection Act 1998 and all other applicable legislation implementing European Community Directives 95/46, 2002/58 and 2009.136, and any subsequent European Union legislation in relation to the protection of personal data implemented in England and Wales and any similar or equivalent legislation in any other relevant jurisdiction.
“Documentation” shall mean the operating manuals, including a description of the functions performed by the UWS Software, user instructions, technical literature and all other related materials in the English language, in both eye-readable and machine-readable, printable form, which may, from time to time, be supplied to End User by UWS or Reseller to facilitate the use and application of the UWS Software.
“End User License Agreement” or “EULA” shall mean this Agreement.
“License” means the right of End User to use the Product, granted by UWS as outlined in this Agreement;
“License Fee” means any monies or consideration paid to UWS or Reseller for the right to use the Product in accordance with this Agreement;
“Maintenance and Support” means the Software maintenance and support services more particularly described in Section 5.
“Maintenance Start” occurs upon expiration of the Warranty Period.
“Product” means UWS Product.
“Order” means a valid amendment, order form, or purchase order submitted by End User or its Affiliates including a list of UWS Products and Services to be provided by UWS or its Reseller. When End User orders UWS Products through a Reseller under End User’s agreement with the Reseller, UWS confirms that except as set forth herein, as between UWS and End User, this Agreement governs such UWS Products and Services.
“Reseller” means a reseller of UWS Product and installation and/or Maintenance and Support services for the UWS Product (the “Services”) that are provided by either the UWS or Reseller.
“Services” means the services that UWS agrees to perform pursuant to a Statement of Work.
“Site” means End User’s facilities at the address set forth in an Order.
“Statement of Work” means a statement of work that is entered into between the End User or Reseller and UWS under this Agreement and executed by the parties. A Statement of Work includes any amendments thereto made by way of program change requests. (“SOW”).
“System” means the computer hardware and operating systems of End User upon which the UWS Product has been installed for use.
“Third Party Software” shall mean any software not developed by UWS.
“UWS Integrated Software” means any custom software developed by UWS or a third party on its behalf that integrates with any UWS Software for End User pursuant to an Order as defined in an SOW.
“UWS Product” means the UWS Software, Third Party Software, and UWS Integrated Software provided to End User by UWS or a Reseller for End User.
“UWS Software” shall mean, collectively or individually, the software programs described in an Order, in object code format, and including all corrections, modifications, enhancements and updates to such software which may be provided from time to time to End User by UWS or its Reseller pursuant to the terms of this Agreement or any support agreement entered into between UWS and End User and, where applicable, the terms of any agreement between End User and a Reseller.
Section 2. GRANT OF LICENSE
2.01 License. Subject to the terms and conditions of this Agreement, UWS grants End User a perpetual, revocable, non-transferable (except as set forth herein), non-exclusive license for the number of Authorized Users specified in an Order to: (i) install and use the UWS Product on behalf of itself and its Affiliates in accordance with any usage limitations as set forth in an Order at the Site; (ii) make only such copies of the UWS Product as are necessary for the installation or reasonable for archival and backup purposes. End User shall reproduce on such copies all proprietary notices that appear on the original copy. All copies shall be located at the Site.; (iii) copy the Documentation as reasonably necessary to give effect to the license provided End User does not alter or delete any proprietary notices; (iv) allow End User Affiliates to exercise any of the rights granted herein, in whole or in part; (vi) transfer and/or assign the UWS Product and this license, in whole or in part, to any End User Affiliate; and (v) sublicense to its contractors, direct and indirect, the right to exercise any of the rights granted herein, in whole or in part, solely in connection with their performance of services for End User or End User Affiliates; provided, however End User may not grant any rights to such subcontractors greater than those granted to End User herein.
2.02 End User is licensed under this Agreement to use the UWS Product on any operating system UWS is supporting as of the date of the Order for the applicable UWS Product. Further, if the UWS Product is then covered by Maintenance and Support, End User shall have the right to use the UWS Product on any other UWS supported operating system added after the date of the applicable Order (subject to any express limitations on the number of production copies), without charge. If necessary, UWS shall deliver to End User from time to time upon request such other copies of the UWS Product as is necessary for End User to use the UWS Product on the covered operating systems (subject to any express limitations on the number of production copies).
2.03 UWS Products may be deployed by End User in a production environment using virtualization technology.
2.04 The foregoing represent the only rights granted to, and (together with the applicable license limit [such as number of users, etc.], if any, expressly stated in the applicable Order which shall apply only to production copies) restrictions placed on (in addition to those in Section 4), End User with respect to the UWS Products and/or Documentation.
2.05 Title. UWS shall retain all right, title and interest, including without limitation copyright, patents, trade secrets and/or any other intellectual property rights, in and to the UWS Product and all associated documentation and modifications or translations thereof (excluding any modifications or translations made by End User or its Affiliates for its use in accordance with Section 2.01 above). End User shall not acquire any rights in the UWS Product or any associated documentation other than those specified in this Agreement. In order to protect UWS’ proprietary rights in the UWS Product, End User agrees not to intentionally remove UWS’ copyright notice or any other proprietary legends thereon.
2.06 Delivery. UWS will deliver the UWS Product to End User at the Site in accordance with the timeframe and in the manner to be mutually agreed by the parties.
2.07 Installation. End User shall ensure that the UWS Product is installed (i) by UWS, or (ii) by installers certified by UWS. UWS has no obligation to install any UWS Software under this Agreement. If End User wishes to retain UWS to provide installation services, the parties shall negotiate and enter into a separate services agreement and Statement of Work for such Services.
Section 3. LICENSE CONSIDERATION
3.01 License Fees and Payment. Upon receipt of an accepted Order, UWS or its Reseller will provide licenses to permit use of the UWS Product in accordance with this Agreement and the Order. In consideration for the rights and licenses to the UWS Products hereunder End User shall make payments to UWS or its Reseller according to the terms of this Agreement, any Order, and End User’s agreement with the Reseller, as applicable. For any UWS Products ordered by End User or its Affiliates from a Reseller, End User will pay all fees and applicable taxes for such UWS Products and Services to the Reseller and UWS agrees that such payment to the Reseller constitutes full and final satisfaction of End User’s payment obligations under the Agreement with respect to the applicable UWS Product and Services, regardless of whether Reseller fails to remit payment to UWS, in whole or in part, under Reseller’s separate agreement with UWS, but such payment and such foregoing agreement by UWS shall not constitute a waiver by UWS of any claim by UWS for any breach of this Agreement by End User (other than for non-payment). UWS acknowledges and agrees that End User’s agreement to pay Reseller and other agreements by End User under this Agreement constitute good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by UWS, for the UWS Products and Services provided, and other obligations of, and performance by, UWS under this Agreement
3.02 Taxes. For any orders between End User and UWS, and not End User and a Reseller, End User shall pay or reimburse all applicable transaction-based taxes (exclusive of taxes on UWS’s net income) and assessments (“Taxes”) arising on or measured by amounts payable to UWS under this Agreement or furnish UWS with evidence acceptable to the taxing authority to sustain an exemption therefrom. UWS shall provide reasonable cooperation to End User if End User contests any proposed Taxes. UWS shall promptly refund to End User any Taxes or portions thereof previously paid by End User and refunded to UWS. Any taxes on orders between End User and a Reseller will be subject to the agreement between End User and the Reseller and Section 3.01 above.
Section 4. END USER OBLIGATIONS
4.01 End User shall: (a) provide an available telephone line for technical support and (b) hold the UWS Product in confidence for the benefit of UWS and/or its suppliers using no less degree of care then it uses to protect its own confidential information. End User shall not itself or enable a third party to (a) use the UWS Product for any purpose other than permitted by this Agreement, (b) reverse engineer, decompile, or disassemble the Product, modify, enhance, adapt or translate the UWS Product except as explicitly approved in writing by UWS, (c) use the UWS Product on behalf of any third party as a service bureau, or on a “software as a service” basis, or otherwise; (d) use, reproduce, modify, lease, rent, permit concurrent use of, or distribute the UWS Product other than as expressly permitted in this Agreement; (e) make UWS Product available to third parties; (f) prepare or create derivative works of the UWS Product; or (g) remove or modify any proprietary notices from the UWS Product.
4.02 Export Compliance. End User will comply with all applicable U.S. export administration regulations with respect to the UWS Products and/or Documentation provided that UWS has notified End User of the applicable U.S. export regulations and restrictions and UWS Product(s) affected. UWS will assist End User, at no charge to End User, in obtaining the necessary licenses, authorizations and/or approvals to export the UWS Products and Documentation.
Section 5. SOFTWARE MAINTENANCE
5.01 UpKeep Customer Support. UWS provides UpKeep Customer Support (“UCS”), for the first fifteen (15) months following Acceptance (three (3) months for the Warranty Period and an additional twelve (12) months), at additional cost which is to be indicated as part of any Orders delivered to UWS or its Reseller in accordance with the terms and conditions contained in the Upkeep Customer Support Agreement. Subsequent annual UCS periods may be contracted from a Reseller by End User.
5.02 Maintenance and Support Obligation. UWS shall make Maintenance and Support which substantially conforms to the provisions of this Article 5 available for purchase by End User for a period of at least seven (7) years following Acceptance for each UWS Product.
Section 6. CONFIDENTIAL INFORMATION
6.01 Confidential Information. A party may from time to time disclose (the “Disclosing Party”) to the other party (the “Receiving Party”) certain Confidential Information (as hereinafter defined) of the Disclosing Party. Except as expressly permitted by this Agreement, for a period of three (3) years from the termination of this Agreement, the Receiving Party shall protect the Confidential Information of the Disclosing Party from unauthorized dissemination, using its best efforts to prevent unauthorized disclosure. The Receiving Party shall not use the Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and shall limit the disclosure of the Confidential Information of the Disclosing Party to the employees or agents of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement, and who are, with respect to the Confidential Information of the Disclosing Party, bound in writing or other acknowledgement by confidentiality terms no less restrictive than those contained herein. Notwithstanding the foregoing, Confidential Information may be disclosed if such disclosure is required by law or by the order of a court or similar judicial or administrative body; provided, however, that the Receiving Party shall notify the Disclosing Party of such requirement immediately in writing, and shall cooperate reasonably with the Disclosing Party, at the Disclosing Party’s expense, in obtaining a protective or similar order with respect thereto.
6.02 Definition of Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall mean (a) the UWS Software including any customization services in both object and source code forms, and any related technology, idea, algorithm or information contained therein, including without limitation any trade secrets related to any of the foregoing; (b) a party’s product plans, designs, costs, prices and names, non-published financial information, marketing plans, distribution lists, business opportunities, personnel, research, development or know-how; (c) any information designated by the Disclosing Party which, at the time of disclosure, is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential as confidential in writing or, if disclosed orally would; (d) the terms and conditions of this Agreement, and (e) any information that the Receiving Party knows is confidential or proprietary or would be reasonably expected to be confidential or proprietary based on the nature of such information; provided, however that Confidential Information will not include information that: (i) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the Receiving Party; (ii) is known and has been reduced to tangible form by the Receiving Party at the time of disclosure and is not subject to restriction; (iii) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; (iv) is lawfully obtained from a third party who has the right to make such disclosure; or (v) is released for publication by the Disclosing Party in writing.
6.03 Return of Confidential Information. The Receiving Party shall return to the Disclosing Party, destroy or erase all Confidential Information of the Disclosing Party in tangible form: (a) upon the written request of the Disclosing Party; or (b) upon the expiration or termination of this Agreement, whichever comes first, and in both cases, upon request from the Disclosing Party, the Receiving Party shall certify promptly in writing that it has done so.
Section 7. LIMITED WARRANTY AND DISCLAIMER
7.01 (a) Limited Warranty. UWS warrants that, for a period of 90 calendar days after Software Acceptance (the “Warranty Period”), that a) the UWS Software will substantially conform to the functional specifications in the Documentation and that the media on which the software is delivered will be free of defects, and b), the UWS Integrated Software will conform to the agreed upon Statement of Work. In the event of nonconformity of the UWS Software to such functional specification or of the UWS Integrated Software to the Statement of Work, End User shall notify UWS or Reseller and provide same with information in written or electronic form. End User expressly agrees that UWS does not represent or warrant that the UWS Product will meet the requirements of End User, that the UWS Product will operate in the combinations which may be selected for use by the End User (unless such combination is contemplated by the Documentation or the reasonable and ordinary use of the UWS Product), or that the operation of the UWS Product will be uninterrupted or error free. No warranty express or implied is offered on UWS Product that has been used without complete payment for all associated fees to UWS or Reseller related to the UWS Product at issue. Third Party Software shall be subject to any warranties UWS receives.
UWS’ sole liability and End User’s exclusive remedy with respect to breach of the foregoing limited warranty will be limited to the prompt error correction or UWS Product replacement, or, if neither is, in UWS’ opinion, commercially reasonable, refund of the license fee received by UWS or Reseller.
7.02 UWS further represents and warrants that: (i) it has the authority to enter into and perform under this Agreement; (ii) it has the right to give End User the rights set forth in this Agreement and in each UWS Product; (iii) it has the right to provide any and all information, products, software and/or services under this Agreement to End User, for use in performance of the of this Agreement; and (iv) it has the right to grant any of the software licenses granted under the terms of this Agreement to End User.
7.03 UWS’s sole liability and End User’s exclusive remedy with respect to breach of the foregoing limited warranty will be limited to the prompt error correction or UWS Product replacement, or, if neither is, in UWS’s opinion, commercially reasonable, refund of the license fee received by UWS or Reseller.
7.04 Services Warranties. UWS represents, warrants and covenants that all Services shall be performed (a) in accordance with the requirements of this Agreement including any requirements set forth in the applicable Order; and (b) in a good and workmanlike manner, and (c) will not, unless otherwise agreed between the parties contain any open source software that requires: (i) any software that requires as a condition of use, modification and/or distribution of such software, that such software: (A) be disclosed or distributed in source code form; (B) be licensed for the purpose of making derivative works; and (C) can be redistributed only free of enforceable intellectual property rights (e.g., patents); and/or (ii) any software that contains, is derived in any manner (in whole or in part) from, or statically or dynamically links against any software specified under (i).
7.05 Exclusions. THE WARRANTIES SET FORTH IN SECTION 7.01 ARE THE ONLY WARRANTIES PROVIDED BY UWS FOR THE UWS SOFTWARE AND ANY UPKEEP CUSTOMER SUPPORT. TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, UWS DISCLAIMS, ON BEHALF OF ITSELF AND ITS LICENSORS AND RESELLERS ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS (i) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, NON-INFRINGEMENT, OR SUCCESSFUL SYSTEM INTEGRATION, (ii) THAT THE UWS SOFTWARE ARE ERROR-FREE, (iii) THAT OPERATION OF THE UWS PRODUCT WILL BE SECURE OR UNINTERRUPTED, OR (iv) THAT THE UWS PRODUCT WILL MEET END USER’S REQUIREMENTS.
7.06 Indemnity. Subject to Section 7.05, UWS will defend or settle any claim brought or allegation made against End User by a third party that UWS Software, Services or Documentation, or End User’s use or deployment of the UWS Software, Services or Documentation infringes upon, misappropriates or otherwise violates such party’s trademark, copyright or patent valid in Canada, the United States or the United Kingdom. UWS’ obligations under this Section 7.06 are subject to the conditions that End User (i) notifies UWS in writing of any such claim promptly upon learning of it (provided UWS’ indemnification obligations hereunder shall only be lessened to the extent End User’s failure to provide such notice materially impacts UWS’ ability to defend against such claim) and allows UWS to have sole control of the defense and all related settlement negotiations, and (ii) cooperates with UWS, at UWS’ expense, in defending or settling the claim. UWS has no obligation with respect to any settlement, payment or admission made, or cost or expense incurred, without UWS’ prior written consent. This Section 7.06 states UWS’ entire liability and End User’s exclusive remedy for infringement claims, actions, suits, and proceedings relating to the subject matter of this Agreement.
UWS may, at its sole discretion, elect to defend, compromise, or settle the claim, in which event End User shall provide all reasonable available information, assistance, and authority to enable UWS to do so, provided UWS reimburses End User for such activity. End User may elect nonetheless to continue to defend those aspects of the action against End User that End User deems, in its sole discretion, to be necessary. In such event, UWS shall provide all reasonable available information, assistance, and authority to enable End User to do so, provided End User reimburses UWS for such activity, and further provided that UWS shall not be responsible for indemnifying End User for any damages, costs, or fees associated with such elected defense. End User shall have no authority to settle any claim on behalf of UWS.
7.07 Exceptions. UWS will have no liability for any claim or allegation that is based upon:
(a) use of a version of the UWS Software that is not a supported version; or
(b) any modification of the UWS Software that was not made by UWS.
UWS will not be liable for damage, loss, or other liability to the extent the same falls within the scope of liability for which End User is responsible under Section 7.06.
If the UWS Product or any portion or component thereof is held or is believed by UWS to infringe upon a third party’s rights,
UWS may, at its option and expense:
(a) obtain for End User a license to continue using such item; or
(b) modify the UWS Product so that it becomes non-infringing; or
(c) if neither of the foregoing alternatives is reasonably available, and with End User’s consent (which shall not be unreasonably withheld), terminate End User’s license to use such UWS Product and refund to End User a prorated portion of the License Fees paid by End User therefor.
7.09 Indemnification by End User.
End User will defend or settle any claim brought or allegation made against UWS or a UWS Affiliate by a third party (i) arising out of the combination, operation or use of the UWS Software with any other item, (ii) arising out of the overlaying or other modifications by End User of third-party content; or (iii) based on use of the UWS Software by or on behalf of End User after UWS has notified End User of its belief (supported by reasonable basis) that such activities may constitute an infringement of the intellectual property rights of a third party. End User’s obligations under this Section 7.09 are subject to the conditions that UWS (i) notifies End User in writing of any such claim promptly upon learning of it (provided End User’s indemnification obligations hereunder shall only be lessened to the extent UWS’ failure to provide such notice materially impacts End User’s ability to defend against such claim) and allows End User to have sole control of the defense and all related settlement negotiations, and (ii) cooperates with End User, at End User’s expense, in defending or settling the claim. End User has no obligation with respect to any settlement, payment or admission made, or cost or expense incurred, without End User’s prior written consent.
7.10 Exclusion of Certain Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR A BREACH OF SECTION 6, NEITHER PARTY WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY (i) LOSS OF PROFITS, BUSINESS OR DATA, (ii) INTERRUPTION OF ANY BUSINESS, OR (iii) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHTSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH IN THIS AGREEMENT.
7.11 Claims by Third Parties. NEITHER PARTY NOR ITS AFFILIATES WILL BE LIABLE FOR ANY CLAIM AGAINST THE OTHER PARTY BY ANY THIRD PARTY, EXCEPT AS PROVIDED IN SECTION 7.06 or 7.09.
7.12 Limit of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 7.06, SECTION 7.09 AND FOR BREACH OF SECTION 6, THE TOTAL LIABILITY OF EITHER PARTY FOR DAMAGES OR CLAIMS IN ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY USED, WILL NOT EXCEED THE FEES PAID OR PAYABLE BY END USER TO UWS (OR A RESELLER) UNDER THIS AGREEMENT AS OF THE DATE ON WHICH THE CLAIM ARISES.
7.13 Acknowledgement. The parties acknowledge that the terms and conditions of this Agreement, including without limitation the amount of fees payable hereunder, are in consideration of the allocation of risks between End User and UWS and the limitations and exclusions of liability set out herein.
7.14 Limitation for Illicit Code. UWS assumes no liability whatsoever or any responsibility for protection against any type of Illicit Code that is not specifically delivered to End User as part of the UWS Products, specifically but not limited to:
- a) Email Support. End User is responsible for all email filtering, specifically including virus checking and SPAM filtering. In addition, End User is responsible for all archiving and backing up of all email messages that are processed by the System.
(b) Web Support. End User is responsible for all protection against any Illicit Code that may be contracted by the opening or pushing of Web pages to either End User’s System or from End User to its customers.
(c) VoIP Support. End User is responsible for all protection against any Illicit Code that may be contracted by the delivery of a Voice over IP (“VOIP”) data packet to the End User System.
(d) Other Data Channels. For customers who use alternate data channels, specifically including but not limited to Chat, SMS, Social Media, WebRTC, Skype, or Facebook, End User is responsible for all protection against any Illicit Code that may delivered in any format via these data channels or as a result of these data channels usage.
For the purposes of this section “Illicit Code” means any software disabling procedure or other materials, including but not limited to any key, node, lock, instruction, time-out function, time bomb, virus, device, malicious logic, worm, Trojan horse, “back door”, bug, error, defect, or trap door that: (i) might disable, limit or affect the UWS Product functionality or operation; (ii) may cause or allow the UWS Product to replicate, transmit or activate itself; or (ii) may cause or allow the UWS Product to access, disable, alter, damage, or erase any computer network, server, data, or application services.
7.15 Survival. The provisions of this section shall survive termination of this Agreement.
Section 8. INTELLECTUAL PROPERTY
8.01 UWS Products. End User agrees that all intellectual property, including without limitation any improvements, inventions, industrial designs, literary, artistic or musical works, computer programs and other creations, data, topographies, concerns and trade secrets, copyrights, trademark rights and patent rights (collectively, “Intellectual Property”) embodied in the UWS Product, is the exclusive property of UWS or its suppliers. UWS agrees that any pre-existing or independently created Intellectual Property owned by End User that is embodied in the Intellectual Property will remain the property of End User.
8.02 UWS Integrated Software. UWS and End User agree that, unless otherwise set forth in a mutually executed amendment to this Agreement, UWS will retain ownership of Intellectual Property rights in any UWS Integrated Software, excluding any Confidential Information or pre-existing Intellectual Property of End User.
Section 9. MISCELLANEOUS
9.01 Government Rights. The Product shall be deemed “commercial computer software” and “commercial computer software documentation” pursuant to DFAR Section 227.7202 (and any successor sections). The use of the Product including, but not limited to, its reproduction and display, by the United States of America and/or any of its instrumentalities, regardless of form (collectively “Government”) shall be governed by this Agreement
9.02 Severability If any part of this Agreement is unenforceable because of any rule of law or public policy, such unenforceable provision shall be severed from this Agreement, and this severance shall not affect the remainder of this Agreement.
9.03 Entire Agreement. This Agreement, including all exhibits, schedules and attachments, constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous negotiations, proposals, commitments, and understandings of any nature whatsoever. There are no representations or warranties with respect to the subject matter of this Agreement other than those expressed herein. No consent, modification or change of terms of this Agreement shall bind either party unless in writing signed by both parties. The terms of this Agreement and the licenses herein shall prevail notwithstanding any conflicting terms or legends which may appear on, with or in the UWS Products or Materials. In addition, any notices, legends, shrink-wrap, browser wrap, click wrap or other agreement or other terms, whether additional, different or inconsistent with those of this Agreement, presented by UWS in connection with the UWS Products or Materials shall be void and of no effect even if presented or purportedly accepted after the date of this Agreement and will not be considered an amendment to this Agreement unless expressly set forth as such, in writing signed by both parties, and specifically referencing this Agreement and the section(s) being modified.
9.04 Term and Termination. (a) This Agreement will remain in effect for the duration of all licenses and services purchased hereunder. Expiration of any license or term of service hereunder shall not affect this Agreement as applies to any other licenses or services hereunder. UWS may terminate this Agreement and any license granted hereunder by written notice if End User:
(i) breaches its obligations under Section 4.02 or 6 (Confidentiality);
(ii) materially breaches any other term of this Agreement and fails to cure such breach within thirty (30) days following written notice from Licensor;
(iii) admits in writing its inability to pay its debts as they become due, applies for or consents to the appointment of a trustee, receiver, or other custodian, makes a general assignment for the benefit of its creditors, or initiates any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency law; or
(iv) becomes subject to any bankruptcy, dissolution or liquidation proceedings which are not dismissed or resolved within one-hundred twenty (120) days.
(b) Termination for UWS’ Default. End User may terminate this Agreement by written notice if UWS:
(i) breaches its obligations under Section 6 (Confidentiality);
(ii) materially breaches any other term of this Agreement and fails to cure such breach within thirty (30) days following written notice from End User;
(iii) admits in writing its inability to pay its debts as they become due, applies for or consents to the appointment of a trustee, receiver, or other custodian, makes a general assignment for the benefit of its creditors, or initiates any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency law; or
(iv) becomes subject to any bankruptcy, dissolution or liquidation proceedings which are not dismissed or resolved within one-hundred twenty (120) days.
(c) Effects of Expiration or Termination. Upon expiration of this Agreement or termination for any reason whatsoever:
(i) all licenses granted to End User hereunder shall terminate;
(ii) End User will promptly cease using the UWS Product; and
(iii) End User will promptly destroy (or return if requested by UWS) all copies of the UWS Software in End User’s possession or control and, if requested by UWS, provide a certificate stating that End User has done so, signed by an officer of End User.
(d) Other Remedies and Consequences. The termination or expiration of this Agreement or any license granted hereunder does not prevent or limit either party from pursuing any other remedy or remedies available to it at law or equity, including without limitation injunctive relief, nor does such termination or expiration relieve End User of any remaining obligation hereunder to pay amounts otherwise due to UWS. Except to the extent otherwise provided in this Agreement, upon expiration or termination of this Agreement for any reason, each party will promptly return or destroy (at the other party’s option) all copies of the other party’s Confidential Information in such party’s possession or control.
9.05 Waiver. The failure of either party to insist in one or more instances upon strict performance of the covenants of this Agreement, or to exercise any right or option herein contained, shall not be construed a waiver, or relinquishment for the future, and such covenant and/or right or option shall remain and continue in full force and effect. Any waiver shall be effective only if made in writing.
9.06 Orders. Each Order shall form an integral part of this Agreement. No terms contained in any Order (other than the Products and/or Services and associated quantities or durations listed therein), or any acceptance or confirmation or similar document issued by Company, shall be binding on the parties unless specifically agreed to in writing by both parties.
9.07 Assignment. This Agreement and the License granted hereunder may not be assigned, sub licensed or otherwise transferred by either party under any circumstances whatsoever without prior written consent from the non-assigning party, except that: (a) End User may assign this Agreement to an Affiliate; and (b) either party may assign this Agreement in connection with a merger, reorganization or sale of all or substantially all of such party’s assets, provided that the surviving or acquiring entity is not a material competitor of the non-assigning party, the non-assigning party is notified of the transaction prior to the closing of the transaction, the surviving entity or purchase expressly assumes this Agreement and Company’s obligations hereunder, and, if requested by the non-assigning party, acknowledges such assumption in writing to the non-assigning party. Any permitted assignee or any successor-in-interest of a party shall take assignment or assumption subject to all of the terms and conditions of this Agreement. Any purported assignment of this Agreement in contravention of this Section 9.07 shall be null and void and, without limiting any other rights or remedies available under this Agreement, at law or in equity, the non-assigning party may immediately terminate this Agreement without further liability.
9.08 Governing Law and Dispute Resolution This Agreement and all schedules shall be governed a) in accordance with the laws of the State of New York and the federal laws of the United States applicable therein if the End User Site is within the United States, b) in accordance with the laws of the United Kingdom and Wales if the End Use Site is within the United Kingdom, Ireland or Continental Europe, or c) accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and the federal laws of Canada applicable therein if the End User Site is anywhere else. Any trial by jury shall be waived by the parties to the greatest extent permitted by applicable laws.
9.09 Notices. All notices required hereunder shall be in writing and shall be deemed to have been given and received when delivered in person or upon receipt (or refusal) when mailed by registered or certified mail, return receipt requested, postage prepaid, or by End User Priority overnight delivery service, to the respective address first set forth above or as provided herein.
9.10 Independent Contractors; Beneficiaries. In performing their obligations, and exercising their rights, under this Agreement, the parties shall be independent contractors, and neither shall have the authority to bind or act as agent for the other. No partnership, joint venture, or other business organization is created by this Agreement. Except as otherwise expressly provided herein, there are no third party beneficiaries of this Agreement.
9.11 English. This Agreement is in the English language only, which language is controlling in all respects, and no versions in any other language will be binding on the parties.
9.12 Compliance with Laws. Each of the parties will comply with all applicable laws and regulations. Without limitation, End User will not import, export, or re-export, directly or indirectly, any UWS Product to any country in violation of the laws and regulations of any applicable jurisdiction, including without limitation the United States of America. UWS represents and warrants that it is not required to obtain approvals from any governmental entity to execute this Agreement or to perform its obligations hereunder.
9.13 Severability, Waiver. The invalidity or unenforceability of any provision of this Agreement shall not affect the remaining provisions of this Agreement, which will remain in full. No waiver of any default or breach of a provision hereof shall be binding unless in writing, nor shall the waiver of any default or breach affect a party’s rights with respect to any other or future default or breach.
9.14 Force Majeure. Neither party will be liable for failure or delay in the performance of its obligations, other than payment of money, due to strike, riot, fire, flood, natural disaster, or other cause beyond such party’s control, provided that such party gives prompt written notice of such condition to the other party and resumes its performance as soon as practicable. If either party’s performance under this Agreement is delayed for one-hundred and eighty (180) days or more, the other party may terminate this Agreement.
9.15 Cumulative Remedies. Except as expressly indicated, no right or remedy conferred by this Agreement is exclusive of any other right or remedy available at law or in equity.
9.16 Interpretation. Section headings are for convenience only and shall not be deemed to be part of this Agreement. Use of the terms “hereunder”, “herein”, “hereby”, and similar terms refer to this Agreement.
9.17 Execution. This Agreement may be signed in counterparts, each of which will be deemed an original, but all of which together will constitute a single instrument.
9.18 Third Parties. Except as expressly provided in this Agreement, a person who is not a party to this Agreement may not enforce any of its terms under the UK Contracts (Rights of Third Parties) Act 1999.
9.18 Data Protection. Each party must comply with all Data Protection Requirements that apply to it in relation to any personal data (as defined in the UK Data Protection Act 1998) processed in accordance with this Agreement.
ATTACHMENT A – SERVICE TYPES
This UpKeep Customer Support Services addendum (the “Addendum”) amends the End User Licenses and Services Agreement executed contemporaneously with this Addendum (the “Base Agreement”) by and between Upstream Works Software Ltd (“UWS“) and You, the End User identified in the executed Purchase Order and acting as an integral part of this UCS Agreement, and is effective on the expiration date of the associated warranty for the Products (“Effective Date”) as set forth in the End User Software License Agreement executed by UWS and the End User attached hereto. This Agreement is incorporated into the End User Software License Agreement (EULA) as an addendum.
WHEREAS as of the commencement of services UWS has provided the “Products” as outlined in the End User License Agreement (“EULA”) at End User’s request;
Therefore, UWS and End User agree as follows:
- Definitions. The following terms are in addition to the definitions contained in the EULA or Purchase Order:
1.1. Version is the release level associated with the Licensed Products as delivered to End User by UWS at time of product Delivery. Each component of the Licensed Product may have an independent Version. UWS will provide the latest or next-to-latest version of the product available at the time of product delivery. UWS may, at its discretion, include a later Version of any listed Product.
1.2. Product Update is any Version change to the Licensed Product designated by the second decimal place (e.g., 7.23, 7.24)
1.3. Product Upgrade is any Version change to the Licensed Product which provides additional functionality to the End User for a Product, and is designated by the whole number and single decimal designation or the Version (e.g., 7.2, 7.3).
1.4. Third Party Software is any software provided by UWS that is owned by a third party.
- Bound by EULA. End User expressly agrees that it remains fully bound by and subject to all of the terms and conditions of the EULA, and any terms and conditions set for in such EULA shall continue to be binding on the End User in addition to the terms and conditions set forth in this UCS Agreement. In the event of any conflict between the terms and provisions of this UCS Agreement and the terms and provisions of such EULA, the terms of this UCS Agreement shall prevail to the extent of the conflict.
- UpKeep Customer Support. UWS agrees to provide and End User or Reseller agrees to accept Maintenance Service as described in Schedule B to this UCS Agreement (“UpKeep Customer Support”) on the UWS Products and Integrated Software licensed to the End User.
UpKeep Customer Support may be carried out by UWS at UWS’ premises, End User’s premises or elsewhere, as mutually agreed to.
UWS’s service obligations under this UCS Agreement at any time shall be limited to the then current whole number Upgrade Version of the Product (i.e., Version 2.x) and all subsequent point releases within that Upgrade Version. Customers may be required to upgrade to the latest point release at the request of UWS. UWS will provide support for the last point release prior to a whole number Upgrade Version for a period of eighteen (18) months after the release of the subsequent whole number Upgrade Version. UWS shall have no obligations with respect to Product which has been altered by any party other than UWS without the prior written consent of UWS, or has been used otherwise than as provided in the governing EULA, or has not been used or stored in accordance with the instructions contained in the relative documentation. UWS shall have no obligation to repair or replace faulty magnetic tapes or discs on which the Product may be stored.
Nothing in this UCS Agreement shall impose an obligation on UWS to modify the UWS Product or to produce or release a new Version of the Product.
UpKeep Customer Support shall not include the following: (a) resolving software problems attributable to modifications or enhancements to the Products not created by UWS as part of the supplied Services; (b) consulting services, including application design, training, installation, implementation, or customisation unless specifically outlined in this UCS Agreement; and (c) resolving software problems attributable to the operation of the Products in conjunction with computer systems or software not authorised or specified by UWS.
- Customized Software.
4.1. Customized by UWS. If the system includes customized software developed for End User by UWS, and UCS has been purchased for such customized software, UWS warrants that software will operate as per specification and will repair any defects as per the terms of this UCS Agreement. As part of this UCS Agreement, UWS will maintain the integrated source code at its facilities under source control for End User. For software developed jointly by End User and UWS, UWS shall support the portions of software implemented by UWS.
4.2. Customized by “Approved Developers”. If the system includes customized software developed by an End User “Approved Developer”, then UWS will support all UWS-supplied components up to the UWS programming API. An “Approved Developer” is one who meets the minimum pre-requisites for using UWS integration toolkits and had taken UWS “Approved Developer Training”. UWS makes no representations or warranties for support of customized software developed by End User and makes no response time guarantees for any problems reported as a result. UWS will, if requested, provide ‘per diem’ assistance in trouble shooting End User customization problems.
4.3. Other Customization. If customized software is developed by non-Approved End Users, End User will be responsible for providing positive proof that the reported non-conformance is a result of the UWS products. The validity of ‘positive proof’ is in the opinion of UWS staff. UWS will provide support to End User for UWS-supplied components that interact with the End User developed software on a ‘per diem’ basis only. If UWS, in its sole opinion, believes that the reported problem is not related to the End User Customization, then it will provide support as per the general terms of this Agreement for its products. UWS makes no representations or warranties for support of a system using customized software developed by non-Approved End Users and makes no response time guarantees for any problems reported as a result.
4.4. Support Restrictions. To support any customized software, UWS must (a) maintain the complete source code for the customization and have free and complete access to the software for purposes of providing warranty and support, or (b) maintain a unique Image ID for the executable software module containing the customization, consisting of a date and file size, executable software checksum, or some other uniquely identifying mark, and have remote access to a debug system containing the full source and compile system sufficient to debug and support the software. In the case of b), response times are measured from the time UWS is provided access to this system. If the executable customized software module does not match the source maintained by UWS due to end use changes, or if the Image ID does not match that maintained and certified by UWS, then the software will be supported as per 4.2 or 4.3 above.
4.5. Exclusions. This UCS Agreement does not cover changes to any integrated or customized software that are required for functional reasons or due to product upgrades (either UWS products or integrated products) across major releases.
- Term. The term of this UCS Agreement shall commence on the Effective Date for renewals, or the expiry of the product warranty period, and shall continue for a period of year(s) specified in the relevant purchase order (the “Term”). Thereafter, this UCS Agreement shall be renewed automatically from year to year unless one party notifies the other in writing of its desire to permit the UCS Agreement to expire at the expiration of the then current term at least 60 days in advance of an annual renewal date.
- Charges. During the currency of this UCS Agreement, End User agrees to pay the annual charges established from time to time by UWS for the service described in this UCS Agreement and as listed in the attached Purchase Order. Such charges do not include taxes or duties. Specific charges for the first year of UpKeep Customer Support are listed in the Purchase Order. Future payments will be calculated on the base services cost and licenses cost adjusted for any new supported components, and increased no more than in accordance with the following formula:
where F is the relevant fee for the first year, CPIi is the Consumer Price Index published by the federal government last published prior to the anniversary date concerned, and CPIii is the Consumer Price Index last published prior to the date hereof.
- New licenses or features. From time to time the End User may extend its Product purchases from UWS to support larger numbers of licensed agents or new features. Upon expiration of the Warranty Period, these purchases will be automatically covered by this UCS Agreement. Payment for the first year for new Product purchases shall be made in advance, and the applicable pro-rata service fees shall be levied thereafter to coincide with the Anniversary date of this Agreement. Should the first year maintenance payments for additional Product purchases extend beyond the anniversary date of this Agreement, and should this Agreement be cancelled at the Anniversary date, then the outstanding maintenance amount will be amortized across all licensed Products and a new maintenance termination date calculated accordingly.
- Payment. UpKeep Customer Support charges shall be payable in advance, and thereafter annually in advance. All charges shall be invoiced by UWS and shall be paid by End User according to the payment terms identified in the Purchase Order. UWS may terminate UpKeep Customer Support if all past due, undisputed invoices are not paid by the UpKeep Customer Support renewal date. If UpKeep Customer Support has terminated because of non-renewal or non-payment, and End User desires to reinstate UpKeep Customer Support, UWS will reinstate available UpKeep Customer Support within 24 months after termination of UpKeep Customer Support if End user pays UWS: (a) all undisputed invoices, (b) the annual UpKeep Customer Support fee for the next one year UpKeep Customer Support Term, and (c) a reinstatement fee equal to 2% per month of the total annual UCS fee dating back to the date of termination.
- Expenses. UWS shall be responsible for payment of all expenses hereunder in carrying out the UpKeep Customer Support. Notwithstanding the foregoing, should travel by UWS personnel be required by End User, End User will reimburse UWS for all reasonable expenses pursuant to invoices delivered to End User in respect of same that have been pre-approved by End User.
- Warranty. All services will be provided in a commercially reasonable manner; all service personnel will be sufficiently and adequately trained for the type of service they are providing. Unless otherwise stated in this UCS Agreement, UWS offers no warranty express or implied, including, but not limited to, implied warranties or conditions of merchantable quality and fitness for a particular purpose, warranties with respect to response times or problem resolution and warranties arising by statute or otherwise in law or from a course of dealing or usage of trade, with respect to the UpKeep Customer Support provided under the terms of this UCS Agreement.
- Termination. In the event that either party fails to comply with any term or condition of this UCS Agreement and the default has not been cured within thirty (30) days following receipt of written notice given by the other specifying such default, the other shall be entitled, in addition to any other rights it may have under this UCS Agreement or otherwise under law, to terminate this UCS Agreement by giving written notice to take effect immediately.
Either party shall have the option exercisable by written notice given to the other to terminate this UCS Agreement immediately if the other enters into or is placed into receivership, becomes insolvent, voluntarily or involuntarily becomes bankrupt, makes an assignment for the benefit of its creditors, ceases to carry on business, or is wound up.
UWS shall have the option exercisable by written notice given to End User to terminate this UCS Agreement ninety (90) days from the date of such notice, and will provide a pro-rata refund of any unused fees prepaid by the End User.
End User shall have the option exercisable by written notice given to UWS to terminate this UCS agreement for Missed response Times as indicated in Schedule C.
This UCS Agreement shall be automatically terminated if the EULA with respect to the Product is terminated with no refunds due.
The right of either party to terminate this UCS Agreement shall not be affected by its failure to take action with respect to any previous default.
- Third Parties. Except as expressly provided in this Agreement, a person who is not a party to this Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
Updated: July 9, 2018