(END USER LICENSE TERMS AND CONDITIONS)
The following terms used in this Agreement, whether in singular or plural form, shall have the meanings as set forth below for purposes of this Agreement only:
1.1 “Affiliate” shall mean any corporation, company, partnership, joint venture, firm or other entity that now or at any time during the term of this Agreement, directly or indirectly, controls, is controlled by or is under common control with Subscriber. For the purpose of this definition, “control” shall mean the direct or indirect ownership or possession of (i) at least fifty percent (50%) of the shares of the subject entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, for the election of the corresponding managing authority), at least fifty percent (50%) interest in the income of such entity, or, if the maximum percentage of such shares or interest that a foreign investor may own is less fifty percent (50%), the maximum percentage that may, under local law, be owned by a foreign investor, or (ii) the power to direct or cause the direction of management, business affairs or policies of the subject entity.
1.2 “Software Subscription” shall mean a subscription to access those on premises software products provided by CyberTech pursuant to this Agreement (the “On Premises Software Products”) as described in Exhibit A.
2.1 Subject to the terms and conditions of this Agreement, CyberTech hereby grants to Subscriber and its Affiliates (hereinafter jointly referred to as “Subscriber”) a non-exclusive, non-transferable (except as provided in the Assignment section below) subscription to install, access and use those On Premises Software Products described in Exhibit A during the term of this Agreement.
2.2 The On Premises Software Products will be hosted on a platform selected by Subscriber and approved by CyberTech, and certain licenses may be required to operate the On Premises Software Products as further described in Exhibit A.
2.3 CyberTech agrees to provide basic support for the On Premises Software Products provided pursuant to this Agreement at no additional charge. CyberTech further agrees to use commercially reasonable efforts to make support available 24 hours a day, 7 days a week. Additional installation or support services, if any, that CyberTech has agreed to perform for Subscriber are identified in Exhibit C and are subject to the terms and conditions of this Agreement except as specifically provided for in that exhibit.
2.4 CyberTech has no responsibility for either providing or maintaining the operating environment for the On Premises Software Products.
2.5 Subscriber acknowledges it is responsible for its users’ compliance with this Agreement, that it will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software Subscription or the On Premises Software Products, and that it will notify CyberTech promptly of any such unauthorized access or use.
2.6 Subscriber agrees to use the Software Subscription during the term of this Agreement only in accordance with any applicable laws and government regulations.
2.7 Subscriber shall not make the Software Subscription or the On Premises Software Products available to anyone other than authorized users; and further agrees not to sell, resell, rent, or lease either the Software Subscription or the On Premises Software Products to any party that has not been authorized by CyberTech. Subscriber further agrees not to modify, interfere with or disrupt the integrity or performance of the On Premises Software Products, or third-party data contained therein; or attempt to gain unauthorized access to the code of the On Premises Software Products.
2.8 CyberTech reserves all rights, title and interest in and to the software used to provide the On Premises Software Products, including all such related intellectual property rights. No rights are granted to Subscriber hereunder other than as expressly set forth herein.
3.1 In consideration for the Software Subscription, the On Premises Software Products, and the other rights granted by CyberTech to Subscriber under this Agreement, Subscriber agrees to pay CyberTech in accordance with the payment schedule set forth in Exhibit B to this Agreement for the initial term of this Agreement.
3.2 All payments called for under this Agreement shall be in United States currency, due thirty days after invoice (the “Payment Period”), and payable to CyberTech at CyberTech Systems & Software, Inc., 1301 West 22nd Street, Suite 308, Oak Brook, IL 60523, USA. by check or wire transfer:
If any payments have not been received by CyberTech by the end of the Payment Period, then the charges that have not been paid will accrue late interest at the maximum non-usurious rate permitted by applicable law, compounded monthly, from the date such payment was due until the date payment is received. In such circumstances, CyberTech may condition future Software Subscription renewals on a Payment Period shorter than that specified herein and may recover all costs of collection including, for example, attorneys’ fees and expenses.
4.1 The Agreement (including all grants, obligations and provisions herein) shall become effective as of the Effective Date and shall continue in full force and effect for the term set forth in Exhibit B subject to Subscriber complying with the terms and conditions of this Agreement. If no minimum term is set forth in Exhibit B, the minimum term will be three (3) years. Thereafter, this Agreement will automatically renew for additional one (1) year periods of time, unless ninety days written notice is provided by either party to the other.
4.2 CyberTech may terminate this Agreement if Subscriber violates any of the terms or conditions of this Agreement. In the event of a breach of the terms and conditions of this Agreement, including without limitation the failure to pay amounts owed, the this Agreement and the license to all of the On Premises Software Products provided under this Agreement as identified in part in Exhibit A, will be deemed to be terminated and revoked and Subscriber shall not make use of the On Premises Software Products. In such circumstance, notice of termination will be provided to Subscriber in the manner provided for in this Agreement. Subscriber agrees that the failure to comply with this section will result in irreparable harm to CyberTech, entitling CyberTech to injunctive relief and appropriate compensation with the court.
4.3 If funds are not appropriated or if funds are not otherwise made available to Subscriber for continued performance of this Agreement for any fiscal period covered by the Agreement, the Agreement shall be automatically terminated as of the beginning of the fiscal year for which funds were not appropriated or otherwise made available; however, this will not affect either the Subscriber’s rights nor CyberTech’s rights under any other termination provision in the Agreement. The effect of a termination of the Agreement pursuant to this provision will be to discharge both the Subscriber and CyberTech from future performance of the Agreement, but not from their obligations existing at the time of termination. In the event of termination of the Agreement by Subscriber, CyberTech shall be reimbursed for any non-recurring costs incurred but not recovered through amortization in the price of the goods delivered under the Agreement.
6.1 Each Party warrants and covenants to the other that: (i) it has the right to enter into this Agreement; and (ii) there are no liens, conveyances, mortgages, assignments, encumbrances or other agreements to which it is a party or by which it is bound, which would prevent or impair the full exercise of all substantive rights granted to the other party pursuant to the terms and conditions of this Agreement.
6.2 CYBERTECH PROVIDES AND SUBSCRIBER ACCEPTS THE ON PREMISES SOFTWARE SERVICE “AS IS.” CYBERTECH PROVIDES NO WARRANTIES AS TO THE FUNCTION OR USE OF THE SOFTWARE PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CYBERTECH DOES NOT WARRANT THAT THE FUNCTIONS PROVIDED BY THE ON PREMISES SOFTWARE PRODUCTS PROVIDED UNDER THIS AGREEMENT WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT THE ON PREMISES SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. SUBSCRIBER ACKNOWLEDGES THAT CYBERTECH DOES NOT CONTROL SUBSCRIBER’S USE OF THE ON PREMISES SOFTWARE PRODUCTS PROVIDED UNDER THIS AGREEMENT, AND FURTHER ACKNOWLEDGES THAT CYBERTECH DOES NOT CONTROL THE QUALITY OR ACCURACY OF ANY DATA PROVIDED BY SUBSCRIBER THAT IS PROCESSED BY THE ON PREMISES SOFTWARE PRODUCTS PROVIDED UNDER THIS AGREEMENT.
6.3 THE TOTAL LIABILITY OF THE LICENSOR FOR ALL DAMAGES PURSUANT TO THE AGREEMENT, OR OTHERWISE ARISING IN CONNECTION WITH THE AGREEMENT, SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY SUBSCRIBER TO CYBERTECH. IN NO EVENT SHALL CYBERTECH BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY.
6.4 Every party further represents and warrants that in executing this Agreement, it does not rely on any promises, inducements, or representations made by any party or third party with respect to this Agreement or any other business dealings with any party or third party, now or in the future.
6.5 CyberTech accepts responsibility for direct damage to client’s premise or property caused by the negligence or intentional acts of CyberTech representatives. In no event shall CyberTech be liable for indirect, incidental, special or consequential damages, including loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.
6.6 Subscriber acknowledges that CyberTech does not control Subscriber’s use or operation of the On Premises Software, and further acknowledges that CyberTech does not control the quality or accuracy of the data provided by Subscriber that is processed by the On Premises Software.
6.7 CyberTech has no responsibility for any claim that arises in whole or in part as a result of data provided by the Subscriber.
6.8 Every party represents and warrants that it is not presently the subject of a voluntary or involuntary petition in bankruptcy or the equivalent thereof, does not presently contemplate filing any such voluntary petition, and does not presently have reason to believe that such an involuntary petition will be filed against it.
6.9 Subscriber agrees that nothing in this agreement grants it the right to use any of CyberTech’s trade names, trademarks, service marks, and logos.
6.10 Subscriber understands that all recommendations given by CyberTech to the Subscriber are subject to the terms and conditions of this Agreement. CyberTech assumes no liability for Subscriber’s failure to follow recommendations.
7.1 CyberTech agrees to defend, indemnify and hold harmless Subscriber from and against any direct damages that arise directly from i) any third party claim asserted against Subscriber which asserts that the On Premises Subscription Service infringes upon or violates the intellectual property rights of such third party, so long as the third party claim does not assert that the infringement or violation has arisen at least in part because of the Subscriber-provided data or Subscriber’s use of that data and ii) direct damage to client’s premise or property caused by the negligence or intentional acts of CyberTech representatives.
7.2 If Subscriber claims indemnification hereunder arising from any claim or demand of a third party, the Subscriber shall promptly notify CyberTech in writing of the basis for such claim or demand setting forth the nature of the claim or demand in reasonable detail. The failure of Subscriber to so notify CyberTech shall relieve CyberTech of any obligation hereunder. Except as specifically provided herein, if any proceeding is brought by a third party against Subscriber and Subscriber gives notice to CyberTech pursuant this Agreement, CyberTech shall be entitled to participate in such Proceeding and, to the extent that it wishes, to assume the defense of such Proceeding, if (i) CyberTech provides written notice to Subscriber that CyberTech intends to undertake such defense, and by such notice it shall be established that CyberTech shall indemnify Subscriber against all damages resulting from or relating to such third-party claim as provided in this Article. Subscriber shall, in its discretion, have the right to employ separate counsel (selected by it) in any such action and to participate in the defense thereof, and the fees and expenses of such counsel shall be paid by Subscriber. Subscriber shall cooperate with the Indemnifying Party and its counsel in the defense or compromise of such claim or demand.
7.3 With respect to any third-party claim subject to indemnification under this Article, (i) both the Subscriber and CyberTech, as the case may be, shall keep the other Person informed of the status of such third-party claim and any related Proceedings at all stages thereof if such Person is not represented by its own counsel, and (ii) the parties agree to render (each at its own expense) to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any third-party claim.
7.4 With respect to any third-party claim subject to indemnification under this Article, the parties agree to cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of all confidential information and the attorney-client and work-product privileges. In connection therewith, each party agrees that: (i) it will use commercially reasonable efforts, in respect of any third-party claim in which it has assumed or participated in the defense, to avoid production of confidential information (consistent with applicable Legal Requirements), and (ii) all communications between any party hereto and counsel responsible for or participating in the defense of any third-party claim shall, to the extent possible, be made so as to preserve any applicable attorney-client or work-product privilege.
8.0 GENERAL PROVISIONS
8.1 All notices to, demands, consents, and communications that any party to this Agreement may desire to give to the other, and/or may be required under this Agreement, must be in writing. The notice shall be effective upon receipt in the United States after having been sent by registered or certified mail or sent by facsimile transmission; and addressed to the address designated below:
For notice to CyberTech:
CyberTech Systems & Software, Inc.
1301 West 22nd Street, Suite 308
Oak Brook, IL 60523 USA
With a copy via email and regular mail to:
Joseph M. Vanek
Vanek, Vickers & Masini, P.C.
55 W. Monroe, Suite 3500
Chicago, Illinois 60603
or to such address that the party to whom notices are to be sent may from time to time designate in writing.
8.2 No failure or delay to act upon any default or to exercise any right, power or remedy hereunder will operate as a waiver of any such default, right, power or remedy.
8.3 All disputes, controversies and claims arising out of or in connection with this Agreement, or the breach, termination or invalidity hereof, will be settled through friendly consultation among the parties. If the dispute cannot be settled through friendly consultation within thirty (30) days after written notice is first given of the dispute, then it will be settled by arbitration in accordance with the rules and procedures as established by the American Arbitration Association. The arbitrations will take place in Chicago, Illinois. There will be one arbiter to be mutually agreed upon by the parties. If no arbiter can be mutually agreed upon, the American Arbitration Association will appoint one at the request of the parties. The arbitration fee and both parties’ attorney’s fees will be borne by the losing party. In the course of arbitration, the parties will continue to execute the Agreement insofar as is reasonably practical except the part of the Agreement which is under arbitration. If, for any reason, an arbiter or court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. All arbitration claims must be brought within one year of the date the claimant knew or should have known of the claim, and in no event will a claim be permitted beyond the time period provided for by the statute of limitations that would apply if the claim were brought in a court of law or equity. This article will survive the term or termination of this Agreement.
8.4 This Agreement, together with the attached exhibits, constitutes the entire understanding of the parties with respect to its subject matter and supersedes all prior oral or written negotiations, agreements and understandings. This Agreement may not be modified or amended except in writing duly signed by authorized persons on behalf of the parties hereto.
8.5 If any provision of this Agreement is or becomes or is deemed invalid, illegal or unenforceable under the applicable laws or regulations of the United States, or any other jurisdiction, such provision will be deemed amended to the extent necessary to conform to applicable laws or regulations or, if it cannot be so amended without materially altering the intention of the parties, it will be stricken, and the remainder of this Agreement will remain in full force and effect.
8.6 The validity, construction, interpretation and performance of this Agreement, and any disputes or legal actions arising under or from this Agreement, shall be governed by the laws and regulations of the United States of America and the State of Illinois, as applied to contracts made and to be performed entirely within the State of Illinois.
8.7 Each Party agrees to take or cause to be taken such further actions, and to execute, deliver and file or cause to be executed, delivered and filed such further documents and instruments, and to obtain such consents, as may be reasonably required or requested in order to effectuate fully the purposes, terms and conditions of this Agreement.
8.8 The captions and headings used in this Agreement are inserted for convenience only, do not form a part of this Agreement, and shall not be used in any way to construe or interpret this Agreement.
8.9 This Agreement may be executed (including, without limitation, by facsimile signature) in one or more counterparts, with the same effect as if the Parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one Agreement.