SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is entered into between Set Professional Pty Ltd. ("Set Professional"), whose principal place of business and post office address is P.O Box 60692, Titirangi, Auckland, New Zealand 0640 and you the ("Licensee").
Whereas Set Professional Pty Ltd hereby grants and Licensee hereby accepts, upon the terms and conditions hereinafter set forth, a nontransferable and non-exclusive license to use the Computer Software Program Product(s) herein after known as Set Professional & or Key Elements (the "Software").
Whereas Licensee understands the Software is subject to United States export laws and regulations. Licensee must comply with all domestic and international export laws and regulations that apply to the software. These laws may include restrictions on destinations, end users and end use.
WHEREAS LICENSEE FURTHER UNDERSTANDS THAT BY USING THE SOFTWARE, LICENSEE ACCEPTS THESE TERMS. IF YOU DO NOT ACCEPT THEM, DO NOT USE THE SOFTWARE.
LICENSE OF SOFTWARE:
In consideration of Licensee's purchase of Software, Set Professional Pty Ltd grants to Licensee the personal, nontransferable and non-exclusive license(s) to use the Software, with a licensed computer according to the following:
(a) "Standalone PC User" License. If any user requires use on a standalone personal computer (PC), then any Standalone PC User License will permit Licensee to use the Software purchased but only on one personal computer. If Software is to be used on two or more standalone PCs, then Licensee must license each additional standalone PC a user license of the Software.
(b) "Concurrent Network User" License. If any user requires use on a networked personal computer (PC), then any Concurrent Network User License will permit Licensee to use the Software purchased but only on a single database server. Licensee must license the additional concurrent users attached to each database server. Also, if Software is to be used on two or more database servers, then Licensee must purchase additional copies of Software modules for each database server.
OWNERSHIP OF SOFTWARE:
Licensee acknowledges that Software and all copyright, other right, title and interest therein, are the sole property of Set Professional Pty Ltd or its licensers, and that Licensee shall gain no right, title or interest in the Software by virtue of this Agreement other than the non-exclusive right to use as expressly granted herein. Without limiting the foregoing, Licensee specifically acknowledges Set Professional's exclusive ownership of any modification, translation or adaptation of Software, and any other improvement or development based thereon, which is developed, supplied, installed or paid for by or on behalf of Licensee. Software, including all its Documentation is copyrighted by Set Professional. Nothing in this License Agreement constitutes a waiver of Set Professional's rights under the U.S. and International copyright laws.
RESTRICTIONS ON USE:
Licensee represents warrants and agrees that the Software will be used only for the benefit of Licensee and its subsidiaries (companies more than 50% owned and controlled by Licensee). Licensee may not use Software in a ASP format, portal service, service bureau business or timesharing environment. Licensee may not rent or grant sub licenses, leases or other rights in Software to others. Licensee may not use the Software in a multiplexer environment, where one PC connects to another PC to avoid purchase of Software licenses. Licensee shall implement all reasonable measures necessary to safeguard Set Professional's ownership of Software, including without limitation: (i) to allow its employees, agents and third parties access to Software only to the extent necessary to permit the performance of their ordinary services to their Licensee; (ii) to cooperate with Set Professional in the enforcement of such compliance by Licensee's employees, agents and third parties; (iii) not to permit the removal or alteration of any copyright or confidentiality labels or notices contained in Software; (iv) not to dissemble, decompile or reverse engineer Software; and (v) not to duplicate or reproduce Software, except that Licensee may make one archival copy and, if necessary, one copy to run temporarily on a replacement computer for backup in an emergency, and then in either case only if all copyright and confidentiality notices are included in the copy. Licensee may make working copies of the training databases. Licensee shall take all reasonable steps necessary to ensure that Software and Documentation, or any portion thereof, is not made available or disclosed by Licensee or by any other person, firm or corporation. Licensee agrees to exercise the requisite degree of control and supervision so that all individuals having access to Software and Documentation under this Agreement shall observe and perform this nondisclosure covenant. Licensee shall hold Set Professional harmless against any loss, cost, expense, claim or liability resulting from breach of this nondisclosure obligation. Licensee acknowledges that use or disclosure of Software in violation of this Agreement may cause irreparable harm to Set Professional. Set Professional indemnifies Licensee for actions based on violation of any third party's copyright.
REQUIRED THIRD-PARTY SOFTWARE:
Licensee shall, at Licensee's own expense, acquire and maintain a licensed copy of the most current version of such other computer software as Set Professional shall reasonably require.
GENERAL TERMS AND CONDITIONS
Set Professional Pty Ltd warrants that the Software, after proper installation, will operate as described in the then-current user documentation provided to Licensee. Licensee understands that updates and changes are often undocumented and until incorporated in an upgrade (A DOCUMENTED RELEASE) ARE STILL UNDER DEVELOPMENT AND THEREFORE, Set Professional Pty Ltd WILL NOT WARRANT THESE UPDATES AND CHANGES.
Set Professional MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND Set Professional HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY AND ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER IS INTENDED TO INCLUDE ALL OPERATING CHARACTERISTICS OF THE SOFTWARE.
(a) LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY, SHALL BE LIMITED TO SET PROFESSIONALS CORRECTION OF THE SOFTWARE TO OPERATE IN CONFORMITY WITH THE DESCRIPTION IN THE THEN-CURRENT USER DOCUMENTATION UNLESS THE FOLLOWING IS MUTUALLY AGREED TO BETWEEN SET PROFESSIONAL PTY LTD AND LICENSEE:
(i) THE DOCUMENTATION WILL BE MODIFIED WITH AN ADDENDUM TO ACCURATELY REFLECT THE ACTUAL OPERATION OF THE SOFTWARE; OR
(ii) THE LICENSEE WILL BE PROVIDED WITH A WORKAROUND TO OPERATE THE SOFTWARE IN AN ACCEPTABLE MANNER AND DOCUMENTATION WILL BE MODIFIED WITH AN ADDENDUM TO REFLECT THE WORKAROUND OPERATION OF THE SOFTWARE.
(b) If Licensee finds physical defects in the media on which the Software is distributed or in the Documentation, Set Professional Corporation will replace the media or Documentation at no charge.
(c) None of the foregoing warranties or remedies shall apply to the extent that any alleged infringement or defect derives from:
(i) a combination of the Software with any program, equipment or device not approved by Set Professional;
(ii) any modification or customisation of the Software by or on behalf of Licensee; or
(iii) Licensee's failure to install promptly or properly any Updates, or Upgrades provided by Set Professional under this Agreement.
These remedies shall be available to Licensee during the period covered by the SOFTWARE MAINTENANCE PROGRAM. If the Licensee is not a current subscriber to the SMP then the above remedies do not apply. If the remedy fails in its essential purpose, Set Professional shall have the option, in its sole discretion, to refund a portion of the prepaid yearly SMP fee, but in no event shall Set Professional's liability exceed the amount of three (3) months of the yearly SMP fee paid by Licensee.
LIABILITY AND INDEMNIFICATION:
(a) Set Professional shall not be liable to Licensee for any delay or failure by Set Professional to perform its obligations under this Agreement or otherwise if such delay or failure arises from any cause or causes beyond the reasonable control of Set Professional, including but not limited to accident, extreme weather and other Acts of God, failure of utility or communications services, labor disputes, or acts of governmental agencies or other third parties not under Set Professional's control.
(b) IN NO EVENT SHALL SET PROFESSIONAL BE LIABLE TO LICENSEE OR A THIRD PARTY FOR LOSS OF PROFITS, OR FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY BREACH OF THIS AGREEMENT. SPECIFICALLY, SET PROFESSIONAL SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR INSTALLATION OR FOR LOSS OF DATA, OR FOR BUSINESS INTERRUPTION, OR FOR DAMAGE TO LICENSEE'S BUSINESS REPUTATION.
(c) THE OBLIGATIONS OF SET PROFESSIONAL AND THE RIGHTS AND REMEDIES OF LICENSEE SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE GIVEN IN SUBSTITUTION FOR ALL OTHER WARRANTIES, OBLIGATIONS, AND LIABILITIES OF SET PROFESSIONAL. THEY REPLACE ANY RIGHTS, CLAIMS AND REMEDIES OF LICENSEE AGAINST SET PROFESSIONAL, EITHER EXPRESSED OR IMPLIED, ARISING BY LAW OR OTHERWISE, USAGE OF TRADE, AND ANY OBLIGATION OR LIABILITY OF SET PROFESSIONAL OR RIGHT, CLAIM OR REMEDY OF LICENSEE FOR TORT, OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES.
(d) Licensee agrees to indemnify and hold Set Professional harmless and to defend Set Professional from any and all claims, losses, liabilities, and damages, including reasonable attorneys' fees, resulting from injuries to persons or property, or loss of data, arising from, growing out of, or connected with the use or operation of the Software which is not due solely to Set Professional's negligence.
CONFIDENTIALITY AND LIMITED DISCLOSURE:
The Software, Documentation, and all information received from Set Professional under this Agreement constitute proprietary, confidential and trade secret information developed by Set Professional and used in its business. This information is a valuable business asset of Set Professional and its protection is essential to Set Professional's continued operation. Licensee accordingly agrees that in consideration of Set Professional's limited disclosure to Licensee of the proprietary, confidential and trade secret information covered by this Agreement, Licensee will hold such information in strictest confidence and Licensee will exercise at least the same degree of care it would exercise to safeguard the confidentiality of its own computer software. The care taken by Licensee to safeguard Set Professional's proprietary, confidential and trade secret information shall not fall below the standard for confidentiality prevalent in the computer software industry.
The licensing and services covered by this Agreement are provided by Set Professional for the sole use of Licensee in its normal business operation. Licensee agrees that the Software, Documentation, and related material developed by Set Professional and licensed to Licensee hereunder, and all information received from Set Professional under this Agreement shall be and remain solely the property of Set Professional. No part of the Software and/or information shall be duplicated in any manner, or disclosed to others, in whole or in part, without the prior written consent of Set Professional; provided however, that duplication may be made by Licensee solely to provide adequate back-up to its system to protect against loss of programs or data.
After thirty (30) days written notice (via certified mail, return receipt requested) to a party of its failure to perform or comply with any of its obligations contained herein, including failure to pay all due amounts payable by Licensee hereunder, the other party may terminate this Agreement. If such nonperformance or noncompliance is not substantially corrected, then such termination shall constitute the sole remedy of either party hereto in such event, except that Set Professional's right to recover any unpaid amounts due hereunder shall survive the termination.
(a) Entire Agreement. This Agreement, and the documents and papers executed in accordance with the provisions herein, embrace and include the entire transaction between the parties hereof, and may not be changed except by written document signed by both parties hereto.
(b) Sever-ability. If any term, covenant, condition or provision of this Agreement, or the application of this Agreement to any person or circumstance shall be determined invalid or unenforceable, the remaining provisions of this Agreement shall not be affected and shall be deemed valid and fully enforceable to the extent permitted by law.
(c) Benefit. This Agreement shall not be assignable by either party and shall be binding upon and inure to the benefit of the parties hereto, their respective heirs and successors.
(d) Construction. This Agreement is being entered into and shall be construed and interpreted in accordance with the laws of the State of Washington.
(e) Counterparts; Electronic Signature. This Agreement is executed when licensee installs the Software by checking box stating "I agree to the terms of the Set Professional license agreement"
(f) Paragraph Headings, Gender and Number. Paragraph headings are not to be construed as binding provisions of this Agreement; they are for the convenience of the parties only. The masculine, feminine, singular and plural of any word or words shall be deemed to include and refer to the gender and number appropriate in the context.
(g) Attorneys' Fees. In any action brought to enforce any provision of this document, the prevailing party shall be entitled to recover from the other party all reasonable costs and reasonable attorneys' fees incurred by the prevailing party.
(h) Interpretation. All parties participated in the negotiation and preparation of this Agreement. Accordingly, this Agreement shall not be construed either for or against any party, but this Agreement shall be interpreted and construed in accordance with the general tenor of the language in an effort to reach an equitable result. The parties expressly waive and repudiate any rule of law which attaches any significance to which party prepared this Agreement.
(i) No Third-Party Beneficiaries. No provision of this Agreement is intended nor shall any provision of this Agreement be interpreted to create any benefit to any person or entity not a party to this Agreement.
(j) Alternative Dispute Resolution.
(1) Negotiation. In the event there is a dispute among the parties arising out of or relating to this Agreement, the parties shall attempt in good faith to resolve that dispute promptly by negotiation. Any party may give each other party written notice that a dispute exists (a "Notice of Dispute"). The Notice of Dispute shall include a statement of such party's position. Within ten (10) days of the delivery of a Notice of Dispute, the parties will meet at a mutually acceptable time and place, in Pierce County Washington, and attempt to resolve the dispute. All documents and other information or data on which each party relies concerning the dispute shall be furnished or made available on reasonable terms to each other party at least five (5) business days before the first meeting of the parties.
(2) Mediation. If the dispute has not been resolved by negotiation within twenty (20) days after the delivery of a Notice of Dispute, the parties agree that all disputes or claims relating to this Agreement shall be submitted to Judicial Arbitration & Mediation Services, Inc. ("JAMS") for mediation. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, describing the subject of the dispute and the relief requested. The mediation session shall be conducted in Pierce County, Washington. The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel and in scheduling the mediation proceedings. The parties agree to participate in the mediation in good faith, and to share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties or by the mediator are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving any of the parties, provided that evidence otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
(3) Arbitration. All disputes, claims or controversies relating to this Agreement that are not resolved by mediation shall be submitted to final and binding arbitration before an arbitrator named by agreement of the parties from the JAMS panel, or if no such arbitrator is named, before an arbitrator selected by JAMS pursuant to the Washington Uniform Arbitration Act, RCW Chapter 7.04A (the "Arbitration Act"). Questions of arbitrability or the scope of the parties' agreement to arbitrate shall be determined by the arbitrator. Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration with JAMS, with a copy to the other parties, at any time following the initial mediation session or after forty-five (45) days from the date of filing the written request for mediation, whichever occurs first. The mediation may continue after the commencement of arbitration if the parties so desire. Unless otherwise agreed in writing by the parties, the mediator shall be disqualified from serving as arbitrator in the case. The arbitration will be conducted before a single arbitrator in accordance with the provisions of JAMS Streamlined Arbitration Rules in effect at the time of filing of the demand for arbitration; provided, however, that such rules shall be supplemented to permit the joinder of parties and claims and the consolidation of arbitrations in the manner provided in the Washington Civil Rules for Superior Court. The arbitration proceedings will be conducted in Pierce County, Washington. The parties will cooperate with JAMS and with one another in selecting an arbitrator from the JAMS panel, and in scheduling the arbitration proceedings. The parties agree to participate in the arbitration in good faith. To the fullest extent permitted by law, the parties waive any right to claim any punitive or exemplary damages against each other. The prevailing party shall be entitled to recover from the other party all reasonable costs and reasonable attorneys' fees incurred by the prevailing party. The provisions of this section and any judgment upon and confirming any arbitration award may be entered and enforced by any court with competent jurisdiction. Except as otherwise provided in the Arbitration Act, the judgment confirming an arbitration award shall be binding, final and not appealable.