SOFTWARE LICENSE AGREEMENT
This Software License Agreement is made and entered into with effect from the date of delivery of the software (the "Effective Date") by between Orpak Systems. ("Licensor") to the customer detailed under the applicable Order Acknowledgment. ("Licensee").
1.1 Confidential Information means information concerning inventions, know-how, trade secrets and other proprietary Licensor information or information of its licensors, including Licensor’s disclosure of the Licensed Software, Documentation and trade secrets relating to the Licensed Software and any modifications thereof.
1.2 Fees. means either license fees, royalties or any other compensation required for the Licensed Configuration of the Licensed Software.
1.3 Licensed Configuration. means to the extent applicable, as indicated on the License Key, the choice of features, maximum number of licensed ports, or any other specifications, as approved in writing by Licensor.
1.4 License Key. means, to the extent applicable, the code provided by Licensor to Licensee, which enables the Licensed Software to operate in accordance with the specified Licensed Configuration.
1.5 Licensor Storage. means the applicable storage solution which could be either cloud-based, on-premise or other hosting solution as indicated by the Licensor.
1.6 Licensed Software. means the software licensed under this Agreement in Object Code. Licensed Software includes any updates, upgrades, and any other modifications thereof, delivered to Licensee under this Agreement but excludes Open Source Software. In the event that Licensor restricts the number of units managed by the software or there is a license key limiting the type of software options or configurations used, such limitations apply as part of this definition.
1.7 Open Source Software. means software subject to the provisions of open source licenses, including but not limited to, Apache Software License, BSD License, Mozilla Public License, GPL, GNU or any other similar license.
1.8 Source Code. means the human readable form of the machine-readable code of the Licensed Software.
2. LICENSE GRANT. Subject to the payment of Fees, Licensor hereby grant to Licensee, and Licensee hereby accepts from Licensor, subject to the terms of this agreement, a limited, non-exclusive, non-transferable object code license to use the Licensed Software only for internal purpose on Licensor’s Storage.
Licensee shall not use the Licensed Software in any way other than explicitly set forth in this Agreement. Without derogating from the above Licensee: (i) will not market, sub-license, or otherwise disclose or distribute the Licensed Software; (ii) Will not modify, decompile, reverse engineer, disassemble or otherwise attempt to reveal the Source Code of the Licensed Software.
Except as otherwise stated in this license grant, Licensor reserves unto itself and its successors and assigns any right not specifically granted.
3. INSTALLATION, SUPPORT AND MAINTENANCE. Unless otherwise specified in writing by an authorized representative of the Licensor, Licensee assumes responsibility for installation of the Licensed Software. As of the lapse of the warranty period Licensor shall make available to Licensee third level maintenance and support services, available at Licensor then-prevailing rates and subject to Licensor’s Maintenance and Services Agreement.
4. CONFIGURATION CHANGES/SOFTWARE UPGRADES. Licensee acknowledges that it is licensing the Licensed Software with a particular configuration and/or features. In the event that Licensee wishes to activate additional and/or different configuration or features it is obliged to report such issue to Licensor and be liable to pay any difference in price.
5. PAYMENT OF FEES. (a) In consideration of the rights and licenses granted under this Agreement, Licensee shall pay Licensor the agreed upon Fees; (b) Payment Terms. payment for Fees due to Licensor shall be thirty (30) days from date of invoice unless agreed otherwise in a written agreement signed by Licensor and Licensee. Unless otherwise provided, all payments are to be in United States dollars. In the event Licensor is required to bring legal action to collect delinquent accounts, Licensee agrees to pay reasonable attorney's fees and cost of suit and collection. Late payments shall be charged interest at LIBOR + 2% one-month rates, or the maximum rate permitted by law, if lower. (c) All prices are exclusive of any present or future sales, revenue, withholding, value added, tax, import duty (including brokerage fees, handling and other charges) or other taxes applicable to the licensing of any Licensed Software. Such taxes when applicable shall be paid by Licensee unless Licensee provides a proper tax exemption certificate. Failure to make due payments shall be considered as material breach of this Agreement.
6. INTELLECTUAL PROPERTY. Licensor is the owner of, and has full title to, directly or indirectly, all trademark, service marks and design marks used in connection with the Licensed Software, as well as any and all other intellectual property rights (including, but not limited to, all patents, copyrights, trademarks, trade secrets etc.) in or to the Licensed Software and to all modifications, improvements and derivative works (by whomever produced) thereof ("Licensor’s IP"). Licensee acknowledges such Licensor’s ownership and the right of Licensor to control the use or display of Licensor's IP by Licensee.
Licensee shall obtain no right, title or interest in or to any of Licensor’s IP including, without limitation, in connection with the Licensed Software. Any use of Licensor's IP (if at all) shall be subject to Licensor's prior written consent, and according to policies and guidelines communicated by Licensor. Licensee will not apply directly or indirectly to register any kind of right with respect to Licensor's IP which Licensee is permitted to use hereunder.
7. CONFIDENTIALITY. Licensee hereby acknowledges that the Licensed Software contains valuable Confidential Information of Licensor and its licensors. Licensee agrees to hold all such Confidential Information in confidence, and agrees not to disclose such Confidential Information, except as expressly permitted in Section 2 of this Agreement, to anyone other than Licensee's employees with a bona fide need to know, who shall be governed by a parallel confidentiality of equal or greater force. Additionally, Licensee agrees to use at least that degree of care which it uses to protect its own information of a similar proprietary nature, but in no event less than reasonable protection. Excluded from such Confidential Information is information that Licensee can prove by clear and convincing evidence that it had in its possession without confidential limitation prior to disclosure, which is known or becomes known to the general public without breach of this Agreement or which is received rightfully by Licensee and without confidentiality limitations from a third party or which is disclosed publicly by Licensor without substantially similar confidentiality restrictions. Licensee acknowledges that the unauthorized disclosure of such Confidential Information could cause irreparable harm and significant injury to Licensor which may be difficult to ascertain. Accordingly, Licensee shall indemnify Licensor against any loss and expense arising due to such unauthorized disclosure by Licensee. Furthermore, Licensee agrees that Licensor shall have the right to obtain an immediate injunction enjoining any such unauthorized disclosure.
8. THIRD PARTY SOFTWARE. Licensee acknowledges that portions of the Licensed Software may contain or be derived from materials of third-party licensors. In addition to the terms of this Agreement, such third-Party Software may be subject to additional terms.
9. WARRANTY. LICENSOR WARRANTS THAT FOR A PERIOD OF NINETY (90) DAYS THE LICENSED SOFTWARE SHALL OPERATE SUBSTANTIALLY IN ACCORDANCE WITH LICENSOR’S PUBLISHED SPECIFICATIONS (AS UPDATED FROM TIME TO TIME). LICENSOR DOES NOT WARRANT THAT THE LICENSED SOFTWARE IS ERROR FREE. LICENSOR FURTHER DOES NOT WARRANT OR REPRESENT THAT THE LICENSED SOFTWARE WILL ALWAYS WORK UNITERRUPTEDLY, BE COMPLIANT WITH NATIONAL OR INTERNATIONAL STANDARDS, SECURE, OR ERROR FREE. LICENSEE ACKNOWLEDGES THAT THE PERFORMANCE OF THE LICENSED SOFTWARE MAY BE AFFECTED BY THE ACTS OR OMISSIONS OF THIRD PARTIES AND OTHER CAUSES REASONABLY BEYOND LICENSOR’S CONTROL. EXCEPT FOR THE ABOVE WARRANTY THE LICENSED SOFTWARE IS PROVIDED TO LICENSEE AND ACCEPTED BY LICENSEE ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES AS TO TITLE, THE DESCRIPTION, QUALITY, MERCHANTABILITY, NON-INFRINGEMENT, COMPLETENESS, THE CONDITION OR CAPABILITY IN WHOLE OR IN PART, OF THE LICENSED SOFTWARE FITNESS FOR A PARTICULAR PURPOSE, ALL SUCH WARRANTIES BEING EXPRESSLY EXCLUDED AND DISCLAIMED. LICENSOR has no responsibility for claims based, in whole or part, on Non- LICENSOR products, items not provided by LICENSOR, or any violation of law or third-party rights caused by LICENSEE’s (or LICENSEE’s customers’ or end users’) content, materials, designs, specifications, modifications or use of a non-current version or release of the LICENSED SOFTWARE when an infringement claim could have been avoided by using a current version or release. THIS STATED EXPRESS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, LIABILITIES OR OBLIGATIONS OF LICENSOR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE DELIVERY, USE OR PERFORMANCE IN WHOLE OR IN PART, OF THE LICENSED SOFTWARE. THIS WARRANTY DOES NOT COVER AND LICENSOR AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR ANY FAILURE OR DEFECT AND THE RESULTING DAMAGE CAUSED BY THE USE OF THE SOFTWARE. SPECIFICALLY, THE ANALYSIS PERFORMED BY THE LICENSED SOFTWARE IS A RULE-BASED ANALYSIS AND LICENSOR ALL NOT BE LIABLE TO ANY LOSS OR DAMAGE ARISING AS A RESULT OF THE RELIANCE OF SUCH DATA. THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTY SHALL APPLY TO DEFECTS, FAILURES, DAMAGE, OR LOSS RESULTING FROM CORRECTIONS, REPAIRS OR SERVICE NECESSITATED BY: (i) LICENSEE’S USERS, OTHER EQUIPMENT OR ITS USE; (ii) ANY ACT OR OMISSION BY ANYONE OTHER THAN LICENSOR; (iii) POWER SHORTAGES, IRREGULARITIES, OR FAILURES; (iv) MODIFICATION OF THE LICENSED SOFTWARE BY ANYONE OTHER THAN LICENSOR; (v) OR ANY OTHER CAUSE BEYOND LICENSOR’S CONTROL.
10. LIMITATION OF LIABILITY NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT WILL LICENSOR'S TOTAL LIABILITY HEREUNDER EXCEED THE FEES PAID TO LICENSOR BY LICENSE HEREUNDER DURING THE PRECEDING TWELVE (12) MONTHS.
11. OPEN SOURCE SOFTWARE. Portions of the software may be Open Source Software and may be governed by and distributed under open source licenses, including the terms of the GNU General Public License (GPL), and terms of the Lesser General Public License (LGPL). In the event of any conflict between the terms of this Agreement or any license agreement and the terms of license agreement(s) that accompany the Open Source Software files, the applicable terms of the later license shall prevail. If any Open Source Software is provided in object code, and its accompanying license requires that it be provided in source code as well, Licensee may receive such source code by sending Licensor (to Licensor address specified in this SLA) US$15 to cover Licensor’s production and shipping costs, and a CD with the appropriate source code will be mailed to Licensee.
12. NOTICES. When any notice is required or authorized hereunder, such notice shall be given in writing by recognized express service or personal delivery addressed to the other party as specified above, or such other address as may be requested in writing by the party to be notified. A notice shall be deemed given ten (10) working days after deposit in the mail or at the time of delivery if delivered in person or within two (2) working days if given by facsimile.
13. TERM AND TERMINATION. This Agreement shall commence upon the effective Date and continue until terminated as set forth in this Agreement. Either party may terminate this Agreement immediately upon written notice for the material breach of the other party, which material breach is curable and has remained uncured for a period of thirty (30) days from the date of delivery of written notice thereof to the breaching party. Upon termination Licensee agrees (i) not to use the Licensed Software for any purpose whatsoever; (iii) not to distribute or market the Licensed Software; (ii) immediately destroy or return the Licensed Software to Licensor (iii) to certify to Licensor that such destruction has taken place. In case of termination by Licensor for material breach of Licensee, Licensor shall be entitled to block Licensee’s access to the Licensed Software without any further notice. Notwithstanding anything to the contrary, termination of this Agreement will not affect the rights of Licensor’s customers to continue to use the Licensed Software previously licensed in accordance with the terms of this Agreement.
14. SURVIVAL. Sections 2, 6, 7, 8, 9, and 10shall survive the expiration and termination of this Agreement for any reason. Provisions of the Sections which, by their nature, must remain in effect beyond the termination of this Agreement shall also survive. Payments which accrue or are due before termination of this Agreement shall survive the expiration or termination of this Agreement.
15. FORCE MAJEURE. In case of delays in delivery dates, owing directly or indirectly to any cause beyond Licensor control, the anticipated delivery dates shall be deemed extended for a period of time equal to the time lost due to any delay excusable under this provision. Licensor shall be entitled to an extension of time for commercially reasonable delays.
16. EXPORT CONTROL. Licensee shall comply with all export and re-export control laws of the United States and shall refrain from sales to countries proscribed by US Regulations or sales without a permit, if such permit is required.
17. APPLICABLE LAW. The application of the United Nations Convention on Contracts for the International Sale of Products is expressly excluded in its entirety from the Agreement. The terms and conditions contained herein shall be governed by and construed under the laws of the State of Israel without regard to its conflicts of laws rules. Any proceeding brought by a Party arising out of any dispute relating to these terms and conditions shall be submitted to the exclusive jurisdiction of the competent court in the city of Tel Aviv.