This Leostream License Agreement, including in the case of a paid license the Purchase Order Form which is incorporated by reference herein (this “Agreement“), is a binding agreement between Leostream Corporation and the person or entity (a) identified on the Purchase Order Form as the licensee of the Software in the case of a paid license or (b) downloading and installing the Software on a trial basis (in each case, “Licensee“).
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING OR INSTALLING THE SOFTWARE. BY DOWNLOADING OR INSTALLING THE SOFTWARE ON A TRIAL BASIS OR EXECUTING AND RETURNING THE PURCHASE ORDER FORM IN THE CASE OF A PAID LICENSE YOU ARE ACCEPTING AND AGREEING ON BEHALF OF LICENSEE TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. THIS AGREEMENT, AND IN THE CASE OF A PAID LICENSE, THE SOFTWARE MAINTENANCE AND SUPPORT SUPPLEMENTAL TERMS AND CONDITIONS AND THE PURCHASE ORDER FORM, TOGETHER REPRESENT THE ENTIRE AGREEMENT BETWEEN THE PARTIES CONCERNING THE LICENSING OF THE SOFTWARE AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.
LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY DOWNLOADING AND INSTALLING THE SOFTWARE ON A TRIAL BASIS OR BY EXECUTING AND RETURNING THE PURCHASE ORDER FORM IN THE CASE OF A PAID LICENSE YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II), YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD OR INSTALL THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Authorized Users” means that number of individuals who are authorized to use the Software pursuant to the license granted under this Agreement, as set forth on the Purchase Order Form or, if the Software is licensed on trial basis, such number of individuals as is specified by Licensor at the time of the Software is downloaded by Licensee.
“Authorized Desktops” means each unique Desktop which is licensed to use the Software pursuant to the license granted under this Agreement, as set forth on the Purchase Order Form.
“Desktop” means a virtual machine, physical machine, blade, workstation, Terminal Services/Remote Desktop Services session or other hosted resources available for allocation in the Software.
“Documentation” means the user manuals, porting guides, reference manuals, programmer’s manuals, and installation manuals included with the Software Package, or other documentation provided by the Licensor to you relating to the Software Package.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Licensee” has the meaning set forth in the preamble.
“License Fees” means the license fees, including all taxes thereon, specified on the Purchase Order Form and paid by Licensee for the license granted under this Agreement.
“Licensor” means Leostream Corporation and its licensors, if any.
“Mirrored Production Environment” has the meaning set forth in Section 2(c).
“Open Source Software” means any software or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software or similar permissive or copyleft licensing or distribution models, including software, documentation or other material licensed or distributed, or those generally understood to be an open source license or distribution model.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Purchase Order Form” means the purchase order form filled out and submitted by or on behalf of Licensee, and accepted by Licensor, for Licensee’s purchase of the license for the Software granted under this Agreement.
“Software” means only Licensor’s Leostream software package, which includes the Leostream Connection Broker, Leostream Gateway, Leostream Agent and Leostream Connect client, and associated media, printed materials, and online or electronic documentation, for which Licensee is purchasing a license, as expressly set forth in the Purchase Order Form.
“Software Package” means the Software and any Open Source Software components distributed with the version of the Software for the operating system (Linux or Windows) downloaded by Licensee.
“Support Fee” means the annual fee payable by Licensee for additional one year periods of support and maintenance after the one year anniversary of the date of delivery of the Software.
“Term” has the meaning set forth in Section 11.
“Test Environment” has the meaning set forth in Section 2(b).
“Third Party” means any Person other than Licensee or Licensor.
“Third Party Software” means software products owned and licensed directly by third parties to you.
“Users” means end users whose hosted resource connections are managed by the Software.
“Update” has the meaning set forth in Section 7(b).
2.
(a) License Grant and Scope. Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users and/or on its Authorized Desktops, as applicable, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:
(i) Install in accordance with the Documentation the Software as follows:
(A) Leostream Connection Broker. Licensee may install a single stand-alone instance of the Leostream Connection Broker on its server. The Licensee may install multiple instances of the Leostream Connection Broker on its server(s) only where all instances are attached to a common database to create a single Leostream cluster.
(B) Leostream Gateway. Licensee may install any number of instances of the Leostream Gateway to support the number of Authorized Users or Authorized Desktops as is specified on the Purchase Order Form.
(C) Leostream Agent and/or Leostream Connect. Licensee may install that number of instances of the Leostream Agent and/or Leostream Connect as is required to support the number of licensed Authorized Users or licensed Authorized Desktops, as applicable, specified on the Purchase Order Form. If the Purchase Order Form specifies that the Software is licensed on an “Authorized User” basis, this refers to the number of “active” Authorized Users allowed under this Agreement. Each Authorized User who has a “Signed In” time in the immediately prior thirty (30) day period is counted as an active Authorized User for purposes of determining the number of Authorized Users. If the Purchase Order Form specifies that the Software is licensed on an “Authorized Desktop” basis, this refers to the number of “active” Authorized Desktops allowed under this Agreement. Each Authorized Desktop that has a “Last Connect Time” in the immediately prior thirty (30) day period is counted as an active Authorized Desktop for the purpose of determining the number of Authorized Desktops. Additional Authorized Users or Authorized Desktops, as applicable, may be added upon payment of additional License Fees for such additional Authorized Users or Authorized Desktops. Any changes to the number or identity of Authorized Users or Authorized Desktops may only be made by request to Licensor, and Licensee may not reassign any Active User or Active Desktop licenses without prior written approval by Licensor. The terms “Signed In” time and “Last Connect Time” mean, as applicable, the most recent time that the Authorized User or Authorized Desktop, as applicable, has accessed the Software.
(ii) Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes.
(b) Test Environments. Upon execution and acceptance by Licensor of a Purchase Order Form specifying a Test Environment, and payment of all fees set forth therein, Licensee may use the Software in a non-production, technical environment and on the platforms and configurations specified in the Documentation, solely for internal development and testing in connection with the functionality of Licensee’s licensed Software (“Test Environment”). The creation, sharing, viewing, refreshing and/or revising of visualizations or data sources and any similar content development or review is not a permitted use for the Test Environment. Licensee’s installation, activation or use of a copy of the Software in a Test Environment is limited to 12 Authorized Users, unless otherwise provided for in the Purchase Order Form. Licensee’s use of the Software in a Test Environment may be concurrent with Licensees’s use of the licensed Software in a production environment as provided for above, and such use is conditioned on Licensee having an authorized license for the Software. Any additional licenses for Test Environments other than what is described in this subsection can be purchased by Licensee and shall be subject to the additional terms and conditions contained in the applicable Purchase Order Form. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY AND ALL USE OF THE SOFTWARE IN A TEST ENVIRONMENT IS NOT SUBJECT TO ANY WARRANTY WHATSOEVER, AND PROVIDER DISCLAIMS ANY AND ALL WARRANTIES.
(c) Mirrored Production Environment. Upon execution and acceptance by Licensor of a Purchase Order Form specifying a Mirrored Production Environment, and payment of all fees set forth therein, Licensee may use the Software in a mirrored production environment and on the platforms and configurations specified in the Documentation, for any purpose which Licensee is entitled to use its main, production Software license, including for disaster recovery purposes (“Mirrored Production Environment”). Licensee’s installation, activation or use of a copy of the Software in a Mirrored Production Environment is limited to the same Authorized Users or Authorized Desktops as provided in this Agreement and in Licensee’s Purchase Order Form for its Software license, except in the case of disaster recovery where inoperable Authorized Desktops may be replaced with alternate Desktops that are appropriate for disaster recovery, which must be accessed by the same users as in the production environment. Licensee’s use of the Software in a Mirrored Production Environment may be concurrent with Licensee’s use of the licensed Software in a production environment as provided for above, and such use is conditioned on Licensee having an authorized license for the Software. Any additional licenses for Mirrored Production Environments other than what is described in this subsection can be purchased by Licensee and shall be subject to the additional terms and conditions contained in the applicable Purchase Order Form.
3. Open Source Software. The Software Package includes Open Source Software components which will differ depending on which operating system you install the Software on (Windows or Linux) as some Open Source Software components are distributed only with the version of the Software Package that runs on Linux, some Open Source Software components are distributed only with the version of the Software Package that runs on Windows and some Open Source Software components are distributed with both such versions of the Software. Open Source Software components are licensed under the terms of applicable open source license agreements included in the materials relating to such Open Source Software. You must review the licenses within the individual components to understand your rights under them. The licenses can be found at https://downloads.leostream.com/Leostream_os_licenses.zip. These open source libraries are not modified and are not subject to GNU.
4. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
(a) use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;
(b) provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;
(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof or otherwise reduce the Software to a human-perceivable form;
(f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
(g) copy the Software or Documentation, in whole or in part;
(h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
(i) use the Software or Documentation in violation of any law, regulation, or rule; or
(j) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.
5. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
6. Compliance Measures.
(a) During the Term, Licensor may, in Licensor’s sole discretion but no more than twice in any twelve-month period, audit Licensee’s use of the Software to ensure Licensee’s compliance with this Agreement. Licensor also may, in its sole discretion, audit Licensee’s systems once within twelve months after any termination of this Agreement to ensure Licensee has ceased use of the Software and removed all copies of the Software from such systems as required hereunder. The Licensee shall fully cooperate with Licensor’s personnel conducting such audits and provide all access requested by the Licensor to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information.
(b) If the audit determines that the Licensee’s use of the Software exceeds or exceeded the use permitted by this Agreement then:
(i) Licensee shall, within ten (10) days following the date of Licensor’s written notification to Licensee thereof, pay to Licensor the retroactive License Fees for such excess use and, unless Licensor terminates this Agreement pursuant to Section 6.1(d)(iii), obtain and pay for a valid license to bring Licensee’s use into compliance with this Agreement. In determining the Licensee Fee payable pursuant to the foregoing, (x) unless Licensee can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by Licensor hereunder, and continued uninterrupted thereafter, and (y) the rates for such licenses shall be determined without regard to any discount to which Licensee may have been entitled had such use been properly licensed prior to its commencement (or deemed commencement).
(ii) If the use exceeds or exceeded the use permitted by this Agreement by more than five percent (5%), Licensee shall also pay to Licensor, within ten (10) days following the date of Licensor’s written request therefor, Licensor’s reasonable costs incurred in conducting the audit.
(iii) If the use exceeds or exceeded the use permitted by this Agreement by more than ten percent (10%), Licensor shall also have the right to terminate this Agreement and the license granted hereunder, effective immediately upon written notice to Licensee.
Licensor’s remedies set forth in this Section 6(b) are cumulative and are in addition to, and not in lieu of, all other remedies the Licensor may have at law or in equity, whether under this Agreement or otherwise.
7. Maintenance and Support.
(a) Subject to Section 7(e), the license granted hereunder entitles Licensee to the basic software maintenance and support services described from time to time on Licensor’s website located at https://www.leostream.com/support-policy:
(i) for one (1) year following the date set forth on the Purchase Order Form (the “Maintenance Term”); and
(ii) thereafter, the Maintenance Term will be extended for successive one (1) year periods (or such other periods as are mutually agreed upon in writing by Licensee or Licensor) but solely upon Licensee’s payment in full of the applicable Support Fee for each such successive period.
Such support services shall be provided on the terms and conditions herein and as set forth at the above URL.
(b) The annual Support Fee shall be calculated as follows: Number of Authorized Users or Authorized Desktops, as applicable, multiplied by twenty percent (20%) of Licensor’s then current list price per Authorized User license fee or per Authorized Desktop license fee, as applicable.
(c) If Licensee does not pay an applicable Support Fee, the Maintenance Term shall immediately and automatically expire and Licensor’s obligation to provide support and maintenance hereunder shall terminate. Upon expiration of the Maintenance Term, Licensee may only reinstate support and maintenance hereunder for the Software by paying to Licensor the Support Fee for the current one year period and a reinstatement fee equal to the aggregate amount of the applicable Support Fees backdated to the date when the Maintenance Term expired.
(d) Maintenance and support services will include provision of such updates, bug fixes, patches, and other error corrections (collectively, “Updates“) as Licensor makes generally available free of charge to all licensees of the Software then entitled to maintenance and support services. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Licensor may provide all Updates via download from a website designated by Licensor and that Licensee’s receipt thereof will require an internet connection, which connection is Licensee’s sole responsibility. Licensor has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.
(e) Licensor has no obligation to provide maintenance and support services, including Updates:
(i) for Software licensed on a trial basis;
(ii) for any but the most current version or release of the Software;
(iii) for any copy of Software for which all previously issued Updates have not been installed;
(iv) any Open Source Software, beta software, software that Licensor makes available for testing or demonstration purposes, temporary software modules, or software for which Licensor does not receive a license fee;
(v) if Licensee is in breach under this Agreement;
(vi) if Licensee has not paid the Support Fee for the then current Maintenance Term; or
(vii) for any Software that has been modified other than by Licensor, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation.
8. Collection and Use of Information.
(a) Licensee acknowledges that Licensor may request information from Licensee, regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through the provision of maintenance and support services. Before submitting any information to Licensor, please review our Privacy Policy.
(b) Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:
(i) improving the performance of the Software or developing Updates; and
(ii) verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.
(c) Unless otherwise specified in a Purchase Order Form, Licensor may use, and Licensee hereby grants Licensor a royalty-free license to use, Licensee’s name and logo for sales, marketing, social media, internet and public relations purposes.
9. Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor and its licensors and service providers, if any, reserve and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.
10. Payment. All License Fees and Support Fees are payable in advance in the manner specified in the Purchase Order Form and are non-refundable.
11. Term and Termination. This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term“).
(a) If the Software has been downloaded and installed on a trial basis, this Agreement and the trial license granted hereunder shall expire on the thirtieth (30th) day following the date of installation.
(b) Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation.
(c) Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after Licensor provides written notice thereof.
(d) Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
(e) Upon termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation. No termination shall affect Licensee’s obligation to pay all License Fees and Support Fees that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case except as set forth in Section 12.1(c)(ii).
12. Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer.
(a) Solely with respect to Software for which Licensor receives a License Fee, and not with respect to use in a Test Environment, Licensor warrants that, for a period of ninety (90) days following delivery of the Software will substantially contain the functionality described in the Documentation, and when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith.
THE FOREGOING WARRANTIES DO NOT APPLY, AND LICENSOR STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.
(b) The warranty set forth in Section 12(a) will not apply and will become null and void if Licensee breaches any material provision of this Agreement, or, whether or not in violation of this Agreement, the Software:
(i) has been altered or modified by anyone except Licensor;
(ii) has not been installed, operated, repaired, or maintained in accordance with the Documentation or other written instructions of Licensor;
(iii) has been damaged, or been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or
(iv) is licensed, at no charge, to Licensee for beta, evaluation, testing or demonstration purposes.
(c) If, during the period specified in Section 12(a), any Software covered by the warranty set forth in such Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to the Section 12(b), Licensor will, subject to Licensee’s promptly notifying Licensor in writing of such failure, at its sole option, either:
(i) repair or replace the Software, provided that Licensee provides Licensor with all information Licensor requests to resolve the reported failure, including sufficient information to enable the Licensor to recreate such failure; or
(ii) refund the License Fees paid for such Software, subject to Licensee’s ceasing all use of and, if requested by Licensor, returning to Licensor all copies of the Software.
If Licensor repairs or replaces the Software, the warranty will continue to run from the initial date specified on the Purchase Order Form, and not from Licensee’s receipt of the repair or replacement. The remedies set forth in this Section 12(c) are Licensee’s sole remedies and Licensor’s sole liability under the limited warranty set forth in Section 12(a).
(d) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12(a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON LICENSEE UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS AND LICENSOR SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
(e) IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.
(f) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
(g) (USA only) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS AND LICENSEE MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
13. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENTOR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE THAT IS THE SUBJECT OF THE CLAIM.
(c) (USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO LICENSEE AND LICENSEE MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
(d) THE LIMITATIONS SET FORTH IN SECTION 13(a) AND SECTION 13(b) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
14. Indemnification.
(a) Each party (the “Indemnifying Party”) will indemnify, defend and hold the other party and its stockholders, directors, employees and agents (in each case, an “Indemnified Party”) harmless from and against all damages and expenses of any kind (including reasonable attorneys’ fees) (collectively, “Damages”), incurred for third party claims arising out of or in connection with (i) any material misrepresentation or breach of any material representation, warranty or obligation by the Indemnifying Party under this Agreement, (ii) any negligent or unlawful act by the Indemnifying Party in its performance of this Agreement or (iii) infringement by the Indemnifying Party of third party intellectual property rights, except in each case to the extent that such Damages arise out of any action by the Indemnified Party. In addition to the foregoing, Licensee will indemnify, defend and hold Licensor harmless from and against all Damages incurred for third party claims arising out of or in connection with any breach of any material representation, warranty or obligation by any User under Software Terms of Use.
(b) A party seeking indemnification will promptly notify the other party in writing of any claim, provided that failure to give notice will only relieve the Indemnifying Party of liability if the Indemnifying Party has suffered actual material prejudice by such failure. The Indemnifying Party will (i) control the defense of any such claim; (ii) reimburse the Indemnified Party for any reasonable legal expenses directly incurred in such defense, as such expenses are incurred; and (iii) have the right to consent to judgment on, or otherwise settle, an indemnified claim with the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld; provided that the Indemnified Party may withhold its consent if the judgment or settlement imposes an unreimbursed or continuing obligation on the Indemnified Party or does not include an unconditional release of each Indemnified Party.
15. Export Regulation. The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the US.
16. US Government Rights. Each of the Documentation and the Software is a “commercial item” as that term is defined in Section 2.101 of the Federal Acquisition Regulation (“FAR”), 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR § 12.212, 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) Sections 227.7202-1, 227.7202-3 and 227-7202-4 of the Defense Federal Acquisition Regulation Supplement (“DFARS”), 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) FAR § 12.212, with respect to all other US Government licensees and their contractors. If, for any reason, FAR § 12.212 or DFARS §§ 227.7202-1 or 227.7202-3 or these license terms are deemed not applicable, Licensee hereby acknowledges that the Government’s right to use, duplicate, or disclose the software and related Documentation are “Restricted Rights” as defined in 48 C.F.R. § 52.227-14(a) (May 2014) or DFARS § 252.227-7014(a)(15) (Feb 2014), as applicable. Manufacturer is Leostream Corporation, 77 Sleeper St., PMB 02-123, Boston, Massachusetts, 02210.
17. Federal Contract Clause: This contractor and subcontractor shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, national origin, and for inquiring about, discussing or disclosing compensation. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.
18. Miscellaneous.
(a) All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America located in Boston, Massachusetts or the courts of the Commonwealth of Massachusetts located in Middlesex County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
(b) Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Licensor’s reasonable control.
(c) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Purchase Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section 18(c)).
(d) This Agreement, together with the Purchase Order Form, all annexes, schedules, and exhibits attached hereto, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(e) Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Licensor’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 18(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(f) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(g) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(h) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(i) For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Purchase Order Form and all Annexes, Schedules, and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
(j) The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
ANNEX 1
AUTHORIZED USER TERMS OF USE
These Software Terms of Use (“Terms of Use“) govern your use of the Leostream Corporation software, which includes, as applicable, the Leostream Connection Broker, Leostream Gateway, Leostream Agent and Leostream Connect client (collectively, the “Software“), including all user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the Software or its use or specifications (the “Documentation”) provided to you (“you” or “your“) for use pursuant to and subject to a software license agreement (the “Leostream License Agreement“) between Leostream Corporation (“Licensor“) and your employer or other person or entity who owns or otherwise lawfully controls the computer on which the Software is installed (“Licensee“).
BY ACCESSING AND OR USING THE SOFTWARE YOU: (i) REPRESENT THAT YOU ARE DULY AUTHORIZED BY LICENSEE TO ACCESS AND USE THE SOFTWARE; AND (ii) ACCEPT THESE AUTHORIZED USER TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT USE OR ACCESS THE SOFTWARE AND YOU WILL HAVE NO LICENSE TO, AND MUST NOT ACCESS OR USE, THE SOFTWARE.
1. License Grant. Subject to your strict compliance with these Terms of Use, Licensor hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited license to use the Software solely in accordance with the Documentation, as installed on the equipment provided by Licensee and for Licensee’s internal business purposes. The foregoing license will terminate immediately on the earlier to occur of:
(a) the expiration or earlier termination of the Leostream License Agreement between Licensor and Licensee; or
(b) your ceasing to be authorized by Licensee to use the Software for any or no reason.
2. Use Restrictions. You shall not, directly or indirectly:
(a) use the Software or Documentation except as set forth in Section 1;
(b) copy the Software or Documentation, in whole or in part;
(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or any part thereof;
(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices included on or in the Software or Documentation, including any copy thereof;
(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise provide any access to or use of the Software or any features or functionality of the Software, for any reason, to any other person or entity, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
(h) use the Software or Documentation in violation of any law, regulation, or rule; or
(i) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.
3. Collection and Use of Information.
(a) Licensor may, directly or indirectly through the services of others, collect and store information regarding your use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, in connection with and by means of providing maintenance and support services.
(b) You agree that the Licensor may use such information for any purpose related to any use of the Software by you, including but not limited to: (i) improving the performance of the Software or developing updates; and verifying compliance with the terms of this Agreement and enforcing Licensor’s rights, including all intellectual property rights in and to the Software.
4. Intellectual Property Rights. You acknowledge that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under this Agreement, or any other rights to the Software other than to use the Software in accordance with the license granted under this Agreement, subject to all terms, conditions, and restrictions. Licensor reserves and shall retain its entire right, title, and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, subject to the license expressly granted to the Licensee in this Agreement. You shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.
5. Disclaimer of Liability. IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE. YOU ARE PROVIDED THE SOFTWARE PURSUANT TO THE SOFTWARE LICENSE AGREEMENT BETWEEN LICENSOR AND LICENSEE, SOLELY FOR THE BENEFIT OF LICENSEE AND AT LICENSEE’S DISCRETION. YOU ACKNOWLEDGE THAT YOU HAVE NO RIGHTS UNDER THAT AGREEMENT INCLUDING ANY RIGHTS TO ENFORCE ANY OF ITS TERMS. ANY OBLIGATION OR LIABILITY LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR LICENSORS OR SERVICE PROVIDERS, MAY HAVE WITH RESPECT TO YOUR USE OR INABILITY TO USE THE SOFTWARE SHALL BE SOLELY TO LICENSEE PURSUANT TO THAT AGREEMENT AND SUBJECT TO ALL LIMITATIONS OF LIABILITY SET FORTH THEREIN.
6. Export Regulation. The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
7. Governing Law. These Terms of Use are governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Massachusetts or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the Commonwealth of Massachusetts.