Software License Agreement
This Software License Agreement (the “Agreement”) is entered into between Flexagon, LLC (“Flexagon”) and the person or entity (the “Client”) identified in an Order Form accepted by Flexagon and referencing this Agreement. This Agreement shall be considered effective as of the date indicated on the Order Form.
FLEXAGON PROVIDES ITS SOFTWARE AND SUPPORT SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CLIENT ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON OR INDICATING ACCEPTANCE IN ANY OTHER METHOD INDICATED IN THE ORDER PROCSSING, THE INDIVIDUAL SUBMITTING THE ORDER FORM (A) ACCEPTS THIS AGREEMENT AND AGREES THAT CLIENT IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) SUCH PERSON IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CLIENT IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, SUCH PERSON HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT AND BIND CLIENT TO ITS TERMS. IF CLIENT DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, FLEXAGON WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO CLIENT.
This Agreement (including any Exhibits and Policies identified below, which are hereby incorporated by reference) sets forth the terms and conditions under which Flexagon will license certain proprietary Software to Client and provide Support Services for use of Software by Client.
1. SOFTWARE LICENSE
1.1. Software and Support. Flexagon shall provide the Software and Support Services described in the Order Form and in the Flexagon Support Services Policy (the “Support Services Policy”). The Support Services Policy is available at https://support.flexagon.com/support/home. To the extent that an Exhibit includes any Professional Services, the terms of Exhibit 2 shall apply. Client acknowledges and agrees that Flexagon shall not have direct access to Client’s information technology infrastructure or environments in order to provide Support Services or Professional Services.
1.2. Access Rights. Flexagon grants a limited, revocable, non-transferable and non-exclusive license to Client and its authorized Users to access and use the Software and Documentation during the Term solely for Client’s internal business purposes in accordance with this Agreement and the scope set forth in clickwrap 1.
1.3. Client Obligations. As a condition of the rights granted to Client and Flexagon’s performance under this Agreement, Client shall (i) ensure that its authorized Users follow the processes described in the Order Form and otherwise comply with the terms and conditions of this Agreement; (ii) make all reasonable attempts to provide Flexagon with all cooperation and information necessary for Flexagon to perform its obligations under this Agreement; (iii) obtain, at Client’s sole expense, all necessary and appropriate computer equipment, operating systems, third party software, connectivity and environments necessary to use the Software; and (iv) be responsible for its Users’ access to and use of the Software.
1.4. Ownership. As between Flexagon and the Client, Flexagon retains all right, title and interest in and to the Software and Documentation. Client shall not remove or allow the removal of any trademark, copyright or other proprietary marking or notice placed by Flexagon on the Software or Documentation. The Software may include or require software, content, data, or other materials, that are owned by parties other than Flexagon (including, but not limited to open source software components that the Software is bundled with or links to) and that are subject to terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). Client’s use of such third-party items shall comply with all Third-Party Licenses. Any breach by Client or any of its Users of any Third-Party License is also a breach of this Agreement. Additional information regarding the Third-Party Licenses can be found in the Flexagon support portal, accessible at https://support.flexagon.com/support/home. WHD/10541232.4 2
1.5. Restrictions. Client and its Users are expressly prohibited from, directly or indirectly (i) reverse engineering or attempting in any other manner to discover the source code, underlying algorithms, or technology of the Software; (ii) renting, leasing, selling, assigning, transferring, reproducing, downloading, storing, publishing, retransmitting, disseminating, distributing, disclosing, circulating, adapting, translating, decompiling, disassembling, commercially exploiting, or otherwise using the Software, in any form or by any means, except as expressly permitted under this Agreement; (iii) copying, modifying, altering or creating derivative works of or based on the Software; and (iv) sublicensing the Software, using the Software to provide services for any third party (such as business process outsourcing or service bureau-type services), or using the Software for commercial timesharing or other rental or sharing arrangements. Upon reasonable advance notice to Client, Flexagon shall have the right to conduct periodic audits to confirm Client’s compliance with this Agreement. Client agrees to fully cooperate with any such audit, which shall not unreasonably interfere with Client’s business activities. To the extent that an audit reveals unauthorized use of the Software, Client shall, at Flexagon’s election, immediately cease such unauthorized use and/or pay the fees applicable to the scope of Client’s actual use of the Software and the costs of the audit, at Flexagon’s sole discretion.
2. WARRANTIES
2.1. Client Warranty. Client warrants that: (i) it has full authority to enter into this Agreement and perform its obligations under this Agreement; and (ii) it and its Users will access the Software only for lawful purposes and will not violate any applicable laws or regulations or the rights of any third party in connection with use of the Software.
2.2. Flexagon Warranty. Flexagon warrants that (i) it has full authority to enter into this Agreement and perform its obligations under this Agreement; (ii) beginning on the Effective Date of this Agreement and extending so long as this Agreement is in effect and Client continues to timely pay for the Software (the “Warranty Period”), subject to any limitations under the Support Services Policy, the Software will conform in all material respects to the Documentation; (iii) its Support Services and Professional Services will be performed in a professional and workmanlike manner and in accordance with generally accepted industry standards; and (iv) it or its licensors owns or licenses all right, title, and interest in the Software.
3. REMEDIES
Subject to Sections 6.1 and 6.2, as Client’s sole and exclusive remedies for damage or loss in any way connected with the Software, whether attributable to Flexagon’s negligence or breach of any obligation, in the event Client timely reports, during the Warranty Period, a material defect in the Software, Flexagon shall correct such defect within a reasonable time in accordance with industry practices and standards.
4. LIABILITY LIMITATIONS AND DISCLAIMERS
4.1. Flexagon shall have no liability or responsibility for errors or other problems in the Software caused by (i) misuse of the Software by Client or any of its Users; (ii) Client’s or any User’s use of the Software in a manner not reasonably contemplated under this Agreement; or (iii) problems arising out of the malfunction of Client’s computer equipment or any third-party software. WHD/10541232.4 3
4.2. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED “AS IS,” WITH NO WARRANTIES, REPRESENTATIONS, OR GUARANTEES WHATSOEVER. ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CUSTOM AND USAGE IN TRADE ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, FLEXAGON DISCLAIMS ANY WARRANTIES, REPRESENTATIONS, OR LIABILITY FOR THE PERFORMANCE OF THE INTERNET, COMPATIBILITY WITH CLIENT’S COMPUTER SYSTEMS, EXISTENCE OF ANY MALICIOUS CODE OR OTHER DISABLING DEVICE, UNAUTHORIZED ACCESS TO OR USE OF CLIENT’S INFORMATION BY A PARTY OTHER THAN FLEXAGON, OR THE SECURITY, EFFICIENCY, AVAILABILITY, PERFORMANCE OR ACCURACY OF THE SOFTWARE OR ITS CONTENT. FLEXAGON DOES NOT WARRANT THAT ACCESS TO THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
4.3. IN NO EVENT SHALL FLEXAGON BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.4. Except for Client’s payment obligations under this Agreement, Client’s breach of Sections 1.2 (Access Rights) or 1.5 (Restrictions), and either party’s indemnity obligations set forth in Section 6 (Indemnity), in no event shall either party’s liability for monetary loss or damages under this Agreement exceed the amounts paid by Client to Flexagon during the twelve (12) month period preceding the causation of damages.
5. CONFIDENTIALITY
5.1. “Confidential Information” means the Software, Documentation, terms and conditions of this Agreement, and any financial, statistical, business, technical, copyrightable, and/or confidential or proprietary information relating to a party’s business which is disclosed by either Flexagon or Client to the other party in order to carry out this Agreement and is not generally known or available publicly.
5.2. Except as otherwise provided in this Agreement, each party agrees that it shall not use or disclose to any third party any Confidential Information of the other party. Each party shall instruct its personnel to keep such information confidential by using the same care and discretion that it uses for its own Confidential Information, but no less than reasonable care. Each party may disclose Confidential Information to its third party consultants or service providers, on a need-to-know basis, who have been specifically retained to perform services in connection with this Agreement, provided that all such third parties are informed of and agree to be bound by confidentiality terms no less protective than those under this Agreement.
5.3. The obligations set forth in this Section 5 shall not apply to any information that the recipient can demonstrate (i) is published or otherwise becomes available to the general public through no fault of the recipient or parties under its control or supervision; (ii) was obtained by the recipient from another party not under a confidentiality obligation to the discloser; (iii) was in the recipient’s possession without proprietary restrictions prior to the date of disclosure; or (iv) was developed without reference to the Confidential Information.
5.4 If the recipient is required to disclose any Confidential Information of the discloser pursuant to applicable law or order, the recipient shall, to the extent feasible, give the discloser prior written notice of such proposed disclosure sufficient to give the discloser a reasonable opportunity to contest such disclosure. If, after providing such notice and assistance as required herein, the recipient remains required to disclose any Confidential Information, the recipient shall disclose no more than that portion of the Confidential Information which it is legally required to disclose, and, upon the discloser’s request, shall use WHD/10541232.4 4
commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment. For purposes of this Section 5, the “discloser” means the party that owns or possesses the Confidential Information and the “recipient” means the party to which the Confidential Information is disclosed.
6. INDEMNITY
6.1. Flexagon shall indemnify, defend and hold harmless Client from and against any third party claim against Client, filed in a United States Court, to the extent such claim specifically asserts that the Software (in the form supplied to Client by Flexagon and when used in accordance with the Documentation) directly infringes any United States copyright, patent, trademark, or trade secret (an “IP Claim”) and Flexagon will pay those costs and damages finally awarded or settled (under terms acceptable to Flexagon) against Client based on such IP Claim, provided that (i) Client promptly notifies Flexagon in writing of any such IP Claim but in no event later than thirty (30) days after becoming aware of such IP Claim and no later than reasonably required to avoid prejudicing Flexagon’s ability to defend against such IP Claim; (ii) Client allows Flexagon to solely control the defense of such IP Claim; (iii) Client cooperates fully in the defense of such IP Claim, to the extent commercially reasonable; (iv) Client does not make any admission or disclosure or take any other action prejudicial to Flexagon; and (v) such IP Claim does not relate to (a) any improper or unauthorized use or modification of the Software; (b) the combination or merger of the Software with any hardware or software not supplied by Flexagon or not authorized in writing by Flexagon to be so combined or merged; or (c) any materials, software or other items developed according to Client’s particular designs or specifications.
6.2. If a final judgment is entered against Client on any such IP Claim, or if in Flexagon’s reasonable opinion Client is likely to become subject to a successful IP Claim, then Client shall permit Flexagon, at Flexagon’s option and expense, either to: (i) procure for Client the right to continue using the Software; or (ii) replace or modify the Software so that it becomes non-infringing, with material functionality being substantially equal. If neither (i) nor (ii) is commercially practicable, Flexagon shall terminate Client’s access to the Software and provide a refund of any prepaid but unused fees paid by Client to Flexagon for use of the Software. Flexagon will not compromise or settle any IP Claim on terms that would obligate Client to make any payment or would have a material adverse effect on Client, without Client’s prior written consent, which shall not be unreasonably withheld or delayed. Sections 6.1 and 6.2 set forth the entire and exclusive liability of Flexagon regarding any claimed infringement or misappropriation by the Software of any patent, trademark, trade dress, trade secret, copyright or other intellectual property rights of any third party.
6.3. Client shall indemnify, defend and hold harmless Flexagon from and against any third party claim against Flexagon arising from or related to (i) the use of any products sold or distributed by Client using the Software; (ii) the negligent or willful acts of Client; (iii) violation of any terms or conditions of this Agreement; (iv) misuse of the Software; (v) violation of any applicable law or regulation; or (vi) infringement of any United States copyright, trademark, patent, trade secret or other intellectual property rights by any designs or specifications provided by Client to Flexagon or by any Customer-provided information, data or content. Flexagon shall promptly notify Client in writing of any such claim and shall cooperate fully in the defense of such claim to the extent commercially reasonable. Client shall pay those costs and damages finally awarded or settled against Flexagon based on such claim.
7. PAYMENT
7.1. Fees are set forth in the Order Form, and shall be invoiced by Flexagon in accordance with the invoicing terms specified in the Order Form.
7.3. Unless otherwise expressly provided in this Agreement, Client shall pay all invoices within thirty (30) days of the invoice date. Flexagon reserves the right to charge Client interest at one and one-half percent (1.5%) per month on any undisputed invoiced amount Client fails to pay within thirty (30) days from the date of invoice, calculated from the invoice date. Client shall promptly notify Flexagon of the basis for WHD/10541232.4 5
any good faith dispute on any invoice issued. Flexagon reserves the right to withhold performance of any obligations arising under this Agreement in the event of Client’s non-payment when due of any amounts owed to Flexagon which are not the subject of a good faith dispute.
7.4. To the extent any services under an Exhibit require travel and expenses, Client agrees to reimburse Flexagon for all actual, documented and reasonable travel and out-of-pocket expenses incurred by Flexagon in connection with this Agreement that are reimbursable under Client’s standard travel and expense policy.
7.5 Client shall pay to Flexagon all shipping, insurance and taxes (including, without limitation, those for sales, use, property, excise, value added, and gross receipts) levied on this Agreement or the Software, except taxes based on Flexagon’s net income.
8. TERM AND TERMINATION
8.1. Term. The initial Term of this Agreement shall commence on the Effective Date and continue for the term specified in the Order Form. Thereafter, this Agreement shall automatically renew on an annual basis at then current pricing unless either party provides at least thirty (30) days written notice of termination to the other party.
8.2. Termination. (i) Either party may terminate this Agreement upon a material breach by the other party of any term or condition contained in this Agreement that remains uncured thirty (30) days after written notice specifying such breach. (ii) In the event of non-payment by Client of any fees, Flexagon may terminate this Agreement if Client fails to provide the required payment or a written notice of why Client believes the amount is not owed within five (5) business days after receiving Flexagon’s notice of termination. If Flexagon disagrees with Client, Flexagon may terminate in accordance with Section 8.2(i). (iii) Flexagon reserves the right to immediately suspend or disable Client’s access to the Software upon a material breach by Client that, in Flexagon’s reasonable determination, presents or threatens imminent harm to Flexagon or third parties, including without limitation a breach of Sections 2.1(ii) or (iii).
8.3 Effect of Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Client shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect Client’s obligation to pay all that may have become due before such expiration or termination, or entitle Client to any refund, in each case except as set forth in this Agreement or any Exhibit.
9. MISCELLANEOUS
9.1. Assignment. Neither this Agreement or any rights granted under this Agreement may be sold, leased, assigned or otherwise transferred in whole or in part by Client, and any such attempted assignment shall be void and of no effect without the advance written consent of Flexagon. Flexagon may assign this Agreement: (i) pursuant to a merger or change of control or (ii) to an assignee of all or substantially all of Flexagon’s assets. Any purported assignment in violation of this section shall be void.
9.2. Independent Contractors. Flexagon and Client are independent contractors and this Agreement shall not be construed to create any fiduciary relationship or other relationship of partnership, joint venture, employment, franchise or agency between them. Neither party will have any authority to bind the other or create or assume obligations on the other party’s behalf or to act or purport to act as agent or representative on behalf of the other party without the other party’s prior written consent.
9.3. Governing Law; Dispute Resolution. This Agreement shall be governed under and construed by the internal laws of the State of Wisconsin, USA, exclusive of its conflict of laws provisions. (i) In the event of a dispute between the parties, senior executives of each party shall first meet promptly in order to attempt to resolve the dispute prior to commencing legal action. If the dispute remains unresolved after WHD/10541232.4 6
this meeting, either party shall have the right to commence any legal proceeding in accordance with this Section 9.3. (ii) Subject to Section 9.3(iii) below, any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The arbitration shall be conducted in Milwaukee, Wisconsin before at least one arbitrator with experience in the technology industry. The arbitrator may award to the prevailing party all or part of the costs of the arbitration, including the fees of the arbitrator and reasonable attorneys’ fees. (iii) Notwithstanding the foregoing, in the event (a) Client fails to make payments required under this Agreement, Flexagon may elect to bring its claim for payment or (b) either party breaches the other party’s confidentiality or intellectual property rights, the non-breaching party may seek injunctive and other relief, in the state or federal courts located in Wisconsin and each party consents to such exclusive jurisdiction.
9.4. Notices. All notices required to be given pursuant to this Agreement shall be in writing to a party’s address indicated on this signature page of this Agreement and shall be deemed effective (i) when received in the event of service by certified mail, return receipt requested or by overnight courier; or (ii) when sent via facsimile or e-mail transmission (with a written copy sent simultaneously by mail or overnight courier). Any facsimile or e-mail transmittal of any document related to this Agreement shall be treated in all manner and respects as the original document.
9.5. Force Majeure. Flexagon shall not be liable for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control including, without limitation, domain name server issues outside of the direct control of Flexagon, labor strikes or shortages, riots, insurrection, fire, flood, storm, explosion, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, and power, communications, internet or network failures.
9.6. Publicity. Flexagon may use Client’s name in press releases, product brochures, sales presentations, marketing materials and financial reports indicating that Client is or has been a Flexagon client with Client’s prior consent.
9.7. No Waiver. The failure by either party to insist upon strict enforcement of any provision of this Agreement shall not be construed as a waiver or relinquishment of the right to later assert or rely upon any such provision.
9.8. Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall remain valid and enforceable, unless the Agreement absent the invalid or unenforceable provision fails to meet the essential business purposes of the parties as expressed in this Agreement, and any provision held invalid or unenforceable shall automatically be revised with the least changes necessary to effect, to the fullest extent permitted by law, the intent of the parties as expressed in this Agreement.
9.9. Entire Agreement. This Agreement, including each of its exhibits, constitutes the entire agreement between the parties with respect to the subject matter hereof and replaces and supersedes all prior written and oral agreements, discussions, negotiations, commitments and understandings relating to the subject matter of this Agreement. Neither party has relied on any representation, promise, warranty, understanding or statement not set forth in this Agreement. This Agreement may be modified only in a writing signed by a duly authorized officer of each party. Client purchase orders may be submitted concurrently or later for funding and administrative purposes but terms and conditions contained therein shall have no force or effect.
9.10. Survival. Sections 1.4 (Ownership), 1.5 (Restrictions), 4 (Liability Limitations and Disclaimers), 5 (Confidentiality), 6.3 (Indemnity), 7 (Payment), 9 (Miscellaneous) and any other provisions that by their nature should survive termination or expiration of this Agreement, shall survive termination or expiration of this Agreement. WHD/10541232.4 7
9.11 Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Client is the US Government or any contractor therefor, Client shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 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) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
10. DEFINITIONS
10.1. “Documentation” means all official Flexagon technical manuals made generally available to Flexagon clients in association with Software licensed pursuant to this Agreement, excluding marketing or demonstration materials.
10.2 “Professional Services” means any implementation, training, or consulting services beyond the Support Services.
10.3. “Support Services” means the services set forth in the Flexagon Support Services Policy, available at www.flexagon.com/support.
10.4. “Software” means the software made generally available to Flexagon’s clients and licensed to Client under the terms of an applicable Exhibit.
10.5. “Term” means the initial term specified in the Order Form and any renewal term(s).
10.6. “Users” means Client’s employees, agents and independent contractors that use the Software for Client’s internal business purposes and includes anyone who (a) logs into FlexDeploy or uses its REST API (b) commits to source code repositories, whereby, FlexDeploy builds and deploys such source on their behalf (c) modifies source system code or configuration, whereby, FlexDeploy builds and deploys such source on their behalf.
For example, if three developers (users) commit changes to source control for an application and another administrator (user) logs into FlexDeploy to perform the build and deployment of their changes, the “User” count for the license agreement is four.
Exhibit 1
Professional Services Terms
These Professional Services Terms are subject to the terms of the Flexagon Software License Agreement (“License Agreement”). Capitalized terms not otherwise defined in this Exhibit 2 shall have the meaning under the License Agreement.
1. Performance of Services: Flexagon shall provide the Professional Services set forth in a referenced quote incorporated as an exhibit to the License Agreement (“Quote”). The Quote shall set forth the type of services to be performed, the anticipated term for performance of the Professional Services, and the related fees.
2. Services Warranty: In addition to the warranties in the License Agreement, Flexagon warrants for a period of thirty (30) days following delivery of any Professional Services (the “Warranty Period”) that such Professional Services will be performed in a professional manner in accordance with generally applicable industry standards. Flexagon’s sole liability (and Client’s exclusive remedy) for any breach of this warranty shall be for Flexagon to re-perform any non-conforming Professional Services, or, if Flexagon is unable to remedy such deficiency within thirty (30) days, to void the invoice for the non-conforming Professional Services. Flexagon shall have no obligation with respect to a warranty claim: (i) if notified of such claim after the Warranty Period or (ii) if the claim is the result of third-party hardware or software, the actions of Client or some other party or is otherwise caused by factors outside the reasonable control of Flexagon.
THE FOREGOING IS A LIMITED WARRANTY AND TOGETHER WITH ANY WARRANTIES UNDER THE LICENSE AGREEMENT, SETS FORTH THE ONLY WARRANTIES MADE BY FLEXAGON. FLEXAGON MAKES NO OTHER WARRANTIES, CONDITION, OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OR ANY WARRANTIES REGARDING THE PERFORMANCE OF ANY SOFTWARE OR HARDWARE PROVIDED OR INSTALLED BY FLEXAGON IN THE PERFORMANCE OF THE PROFESSIONAL SERVICES.