IMPORTANT – PLEASE READ THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT CAREFULLY. BY INSTALLING OR USING THE ESSENTIALS BUNDLE SOFTWARE, (1) YOU ACKNOWLEDGE THAT YOU AGREE TO BE BOUND BY THIS AGREEMENT, AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT YOU SHOULD DISCONTINUE THE DOWNLOAD AND USE OF THE ESSENTIALS BUNDLE SOFTWARE.
This SOFTWARE LICENSE AGREEMENT (this “Agreement”) is entered into between Centigon Solutions Inc., a California corporation, whose business address is 6440 Lusk Blvd. D207, San Diego CA 92121 (“Licensor”), and the individual or authorized representative of the company installing the Licensed Software (the “Licensee”), as of the date Licensee accepts the terms of this Agreement by installing the Licensed Software (the “Effective Date”). This Agreement sets forth the terms under which Licensee may use the proprietary software described in Exhibit One (the “Licensed Software”), as well as any documentation, user manuals, and related materials provided by Licensor with the Licensed Software (collectively, the “Licensed Documentation”).
1. GRANT OF LICENSE. Subject to the terms of this Agreement, Licensor hereby grants to Licensee a worldwide, nonexclusive, nontransferable, non-sublicensable, fee-bearing license to use the object code version of the Licensed Software as a single, undivided unit, and to use the Licensed Documentation exclusively in connection with the Licensed Software, solely for Licensee’s internal business purposes (the “License”). Each License is granted for only one (1) individually named user (the “Named User”). Each individual wishing to use the Licensed Software and/or the Licensed Documentation must have his or her own Named User License.
2. OWNERSHIP; RESTRICTIONS. The Licensed Software and Licensed Documentation are being licensed, and not sold, to Licensee. All right, title, and interest in and to the Licensed Software and Licensed Documentation are and shall remain at all times the sole and exclusive property of Licensor and its licensors. Licensee’s rights in or to the Licensed Software and Licensed Documentation are limited to those rights explicitly set forth in this Agreement. Licensee shall not copy, translate, reverse engineer, decompile, disassemble, sell, distribute, sublicense, display, host, outsource, disclose or otherwise commercially exploit or make available to any third party the Licensed Software, or modify, enhance, or otherwise change or supplement the Licensed Documentation, in any way, without the prior written permission of Licensor. If Licensee is an agency or instrumentality of the United States Government, the Licensed Software and Licensed Documentation are “commercial computer software” and “commercial computer software documentation” within the meaning of applicable Federal Acquisition Regulations (as may be amended or supplemented from time to time), and Licensee’s use of the Licensed Software and Licensed Documentation is governed exclusively by this Agreement.
3. PAYMENTS. In consideration of the rights granted hereunder, Licensee shall pay to Licensor or has paid to Licensor’s reseller for each single Named User License.
4. TRAINING. Licensor shall provide no training as part of this Agreement.
5. TRADEMARKS; NOTICES. “Centigon Solutions”, and any other trademarks used on or in connection with the Licensed Software or Licensed Documentation are trademarks of Licensor (except for those trademarks which are included with or related to the Third Party Components) (the “Trademarks”). Any use of or goodwill arising from the use of the Trademarks shall accrue solely to Licensor, who shall remain the sole owner of the Trademarks. Licensee shall not use the Trademarks, or any trademarks which are included with or related to the Third Party Components, in any way without the express written consent of Licensor or the applicable third party owner. Licensee shall not remove, alter, cover or modify any copyright, trademark, trade name, patent or other proprietary notice affixed on any copies of the Licensed Software or Licensed Documentation.
6. TERM AND TERMINATION.
6.1 License Term. Subject to Licensee’s payment of Fees, the term for the license granted in this Agreement for the Licensed Software will begin on the Effective Date (the “License Term”).
6.2 Expiration of the License Term. The License shall automatic renew for each subsequent year unless Licensee notifies Licensor in writing of termination at least thirty (30) days before the end of each License Term. Support Terms. Licensor reserves the right to change the terms of this Agreement annually at its sole discretion. Licensee will be notified in writing of any such changes of Fees or this Agreement.
6.3 Termination for Breach. Either party may terminate this Agreement immediately if: (i) the other party is in material breach of the Agreement; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party has been in material breach of this Agreement on 2 or more separate occasions notwithstanding any cure of such breaches.
6.4 Upon termination of this Agreement for any reason, Licensee shall immediately stop all use of the Licensed Software and Licensed Documentation.
7. SUPPORT, UPGRADES, MAINTENANCE. Licensor shall provide support, upgrades, and maintenance without any additional charge during the first license License Term. Support and Maintenance fees are assessed one year after the purchased date. Licensee can opt out of support and maintenance agreement.
8. WARRANTY. Licensor warrants that the Licensed Software will conform to the performance standards and specifications set forth in the Licensed Documentation if the Licensed Software is properly installed and used in an appropriate operating environment. Licensor’s sole responsibility under this warranty shall be limited to correcting the portion of the Licensed Software that fails to perform substantially in accordance with the said specifications or, at the option of Licensor, refunding the applicable license fees, in which event Licensee shall return all copies of the Licensed Software and related Documentation or destroy that which is not returned. Licensor does not warrant that the Licensed Software will meet Licensee’s requirements or will operate in the combination that Licensee selects for use, or that the operation of the Licensed Software will be uninterrupted or error free, or that all defects in the Licensed Software will be corrected by Licensor. Licensor shall have no liability under the foregoing warranty if (a) Licensee decompiles, reverse engineers, or modifies the Licensed Software without Licensor’s prior written consent, (b) Licensee fails to give Licensor written notice of the claimed breach of warranty, or (c) the failure to perform is caused in whole or in part by persons other than Licensor or by products, equipment, or computer programs not furnished by Licensor.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS SECTION, THE LICENSED SOFTWARE AND LICENSED DOCUMENTATION ARE PROVIDED AS-IS AND AS-AVAILABLE, AND LICENSOR MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS.
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR ANY THIRD PARTY, UNDER THIS AGREEMENT OR THROUGH THE USE OF THE LICENSED SOFTWARE OR LICENSED DOCUMENTATION, FOR ANY AMOUNTS REPRESENTING LOSS OF PROFITS, LOSS OR INACCURACY OF DATA, LOSS OF BUSINESS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, OR INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF LICENSEE OR ANY THIRD PARTY. LICENSOR’S AGGREGATE LIABILITY IN CONTRACT, TORT, OR OTHERWISE TO LICENSEE OR ANY THIRD PARTY ARISING FROM THIS AGREEMENT OR THE USE OF THE LICENSED SOFTWARE SHALL BE LIMITED TO THE LICENSE FEES PAID BY LICENSEE UNDER THIS AGREEMENT.
10. EXPORT. The Licensed Software and Licensed Documentation may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee shall strictly comply with all such laws and regulations, and has sole responsibility to obtain authorization to export or import the Licensed Software and Licensed Documentation, as may be required. Licensee shall indemnify, defend, and hold Licensor, and its affiliates and licensors (and their shareholders, members, managers, officers, directors, employees, and agents) harmless from and against any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach of Licensee’s obligations under this section. Licensee’s obligations under this section shall survive the expiration or termination of this Agreement.
11. GENERAL PROVISIONS.
a. Complete Agreement. This Agreement is the parties’ entire agreement relating to the subject matter of this Agreement, and supersedes any prior or contemporaneous agreements, understandings, or proposals as to the subject matter of this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties.
b. Notice. Any notice or communication required or permitted in this Agreement shall be in writing and shall be delivered by email. Any email directed to Licensor shall be addressed to support@centigonsolutions.com. Any email directed to Licensee shall be addressed to the last known email address in Licensor’s records for Licensee.
c. Governing Laws and Venue. This Agreement and performance under this Agreement shall be governed exclusively by the laws of the State of California without regard to any considerations of conflicts of law. FOR ANY DISPUTE RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS OF THE COUNTY OF SAN DIEGO, CALIFORNIA.
d. Severability. If any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
e. Assignment. Licensee may not assign, sublicense, or otherwise transfer, without the prior written consent of Licensor, its rights, duties, or obligations under this Agreement to any person or entity, in whole or in part, and any purported attempt to do so is void and of no effect. Notwithstanding the foregoing, Licensee may assign this Agreement in its entirety as part of the sale of Licensee’s business or substantially all of its assets
f. Waiver. The delay or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of such right or any further right under this Agreement.
g. Headings. The headings appearing at the beginning of the several sections contained in this Agreement have been inserted for identification and reference purposes only and shall not be used in the construction and interpretation of this Agreement.
h. No Construction Against Drafter. If an ambiguity or question of intent arises with respect to any provision of this Agreement, the Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring either party by virtue of authorship of any of the provisions of this Agreement.
i. Force Majeure. Each party shall be excused from performance and shall not be liable for any delay (except as to any payment requirements) in whole or in part, caused by the occurrence of any contingency beyond the reasonable control either of the excused party or its subcontractors or suppliers including, but not limited to, war, sabotage, insurrection, riot or other act of civil disobedience, act of public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof affecting the terms hereof, accident, fire, explosion, flood, severe weather or other act of God, or shortage of labor or fuel or raw materials.
j. Equitable Remedies. Licensee agrees that Licensor would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore Licensor shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Licensor may otherwise have available under applicable laws.
LICENSEE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS.