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HomeMy WebLinkAboutPREFERRED STRATEGIES - CONTRACT - CONTRACT - LAUNCHER SOLUTION KIT LICENSELAUNCHER SOLUTION HIT LICENSE AGREEMENT -IMPORTANT-Read This Carefully Before Installing the Software. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND PREFERRED STRATEGIES, LLC ("PS"). BEFORE CONTINUING WITH THE INSTALLATION OF THE PROGRAM, YOU MUST READ, ACKNOWLEDGE AND ACCEPT THE TERMS AND CONDITIONS OF THE SOFTWARE LICENSE AGREEMENT THAT FOLLOWS. 1. GRANT OF LICENSE. Preferred Strategies, ("PS") grants you a nonexclusive and limited license to use the Launcher Solution Kit Software accompanying this License Agreement, solely in accordance with the terms and conditions of this License Agreement. The Software is licensed, not sold, to you. 2. INSTALLATION AND USE. You may install and use the Software only in the configuration and for the number of licenses ordered by you. In order to exercise your rights to the Software under this License Agreement you must activate your copy of the Software in the manner described in the license document provided to you. Preferred Strategies may control the number and type of licenses and the use of the Software by key codes. You may exercise your rights to the Software under this License Agreement after the License Agreement is signed and submitted to Preferred Strategies. This License Agreement can be mailed to Preferred Strategies, LLC at 2425 Porter Street, Suite 20 Soquel, CA 95073 or faxed to (888) 232-7337. Once this agreement is received by PS, PS will send you your license code that will be used to activate the product. Once the Software is licensed to you, you may modify the contents of the Launcher Solution Kit to fit the needs of your ID Edwards EnterpriseOne and/or World environment. Preferred Strategies is not liable for any modifications made by you to the contents of the Launcher Solution Kit. 3. LICENSE TYPES. The Launcher Solution Kit is licensed on an Enterprise basis. Business Objects Crystal Reports and/or Business Objects Enterprise licenses are not transferable to PS to be used for the Launcher Solution Kit. 3.1 Evaluation/Not for Resale License. If you acquired an Evaluation or Not For Resale license, you may install the software for a period consistent with the license code provided to you by PS. You are acquiring only the limited right to use a single copy of the Software for evaluation purposes. You are not acquiring any rights to the Software itself. You may not re -sell or otherwise transfer an Evaluation or Not for Resale License. 4. OTHER RESTRICTIONS. Except as expressly permitted by this License Agreement, you hereby acknowledge and agree that: (a) you will Access the Software only in connection with the processing and distribution to your employees, customers and business partners of: (i) your data, and (ii) any third -party data you have a right to process and distribute; (b) you will not use the Software, by itself or with other applications, on a timesharing basis or to operate a service bureau facility or service provider business for the benefit of third -parties unless you first acquire an Application Service Provider License from PS; (c) you will not modify or translate the Software except as necessary to configure the Software using the menus, options and tools provided for such purposes and contained in the Software; (d) you will not in any way reverse engineer, disassemble or decompile the Software or any portion thereof except to the extent and for the express purposes authorized by applicable law notwithstanding this limitation; (e) you will provide Access to the Software only as allowed in this Agreement; (f) you will not sublicense, assign, rent, sell, lease, distribute or otherwise transfer the Software or any of the rights granted by this License Agreement, unless you obtain a separate license from PS for such purposes (for example, you may not embed the Software into another application and then distribute such to third parties or provide access to the Software in a service provider model without first contacting PS and acquiring an OEM or ASP license from PS); (g) This license agreement does not in itself give you any right to distribute the Software. If you want to distribute the Software, you must obtain a Software distribution license from PS, e.g., an OEM or reseller license. Subject to the written consent of PS, this Agreement may be assigned by you to any entity which assumes your obligations and acquires ownership of or the right to use and license the PS' products. 5. MAINTENANCE. If you purchased maintenance services, PS will provide to you fixes, maintenance releases and major releases to the Software for which you are a then -current paid subscriber of maintenance, together with the relevant documentation updates, that from time to time are implemented and generally made available by PS to maintenance subscribers at no additional charge (the "Maintenance Services"). At PS' discretion, fixes, maintenance releases and major releases will either be posted on the Preferred Strategies web site or electronic bulletin board for download or will be shipped to the address designated by you. PS' obligation to provide any Maintenance Services extends only to the most recent version of the Business Objects Crystal Enterprise and/or JD Edwards EntepriseOne or World versions. Maintenance updates to the Launcher Solution Kit will not include modifications made by you to existing content already installed and configured for your environment. New content provided through updates will need to be installed and configured by you. FOR MAINTENANCE SERVICES AGREEMENT, PS DOES NOT MAKE, AND FULLY DISCLAIMS, ANY EXPRESS OR IMPLIED CONDITIONS OR WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PS DOES NOT WARRANT THAT ALL ERRORS OR DEFECTS IN THE PRODUCT CAN OR WILL BE CORRECTED UNDER THIS AGREEMENT. 6. COPYRIGHT. The Software is copyrighted by PS and/or its suppliers and is protected by United States copyright and patent laws and international treaty provisions. You may not copy the Software except: (a) to provide a backup copy; or (b) to install the Software components licensed by you, as set forth in Sections 1, 2 and 3, into computers as part of executing the Software. Solely with respect to the documentation included with the Software, you may make a reasonable number of copies (either in hardcopy or electronic form), provided that such copies shall be used only by licensed end users in conjunction with their use of the Software and are not republished or distributed to any third party. You must reproduce and include all copyright notices, trademarks or other proprietary legends of PS and its suppliers on any copy of the Software or documentation made by you. Any and all other copies of the Software and/or the documentation made by you are in violation of this License Agreement. 7. OWNERSHIP. You agree that PS and/or its suppliers retain all right, title and interest in and to the Software and all copies at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. You agree that you neither own nor hereby acquire any claim or right of ownership to the Software or to any related patents, copyrights, trademarks or other intellectual property. You agree to use reasonable efforts to prevent and protect the contents of the Software from unauthorized disclosure or use. PS and/or its suppliers reserve all rights not expressly granted to you. PS's suppliers are the intended third party beneficiaries of this License Agreement and have the express right to rely upon and directly enforce the terms set forth herein. Any data, content or information accessed through the Software is the property of the applicable data/content/information owner and may be protected by applicable copyright law. This License Agreement gives you no rights to such data, content or information. 8. LIMITED WARRANTY AND REMEDY. (a) PS hereby warrants to you that: (i) for a period of ninety (90) days from delivery of the Software, the Software will substantially conform to the functional description set forth in its associated documentation; and (ii) for a period of ninety (90) days from delivery the physical media (e.g., diskettes or CD-ROM) and physical documentation containing the Software will be free from defects in materials and workmanship. Any implied warranties on the Software and media are limited to ninety (90) days from delivery, to the extent such warranties cannot be disclaimed under Section 8(c) below. The above warranties specifically exclude defects resulting from accident, abuse, unauthorized repair, modifications, or enhancements, or misapplication. PS does not warrant that use of the Software will be uninterrupted or error free. Delivery of additional copies of, or revisions or upgrades to, the Software, including releases provided under a maintenance program, shall not restart or otherwise affect the warranty period. (b) Your exclusive remedy for breach of the above -stated limited warranty shall be, at PS's option, either: (i) correction or replacement of the Software with product(s) which conform to the above - stated limited warranty; or (ii) return of the price paid for the Software and termination of this License Agreement with respect to those copies not in compliance. Such remedy shall be provided to you by PS only if you give PS written notice of any breach of the above -stated limited warranty, not later than ninety (90) days following your receipt of the Software. (c) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, PS AND ITS SUPPLIERS AND DISTRIBUTORS MAKE NO WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE AND ANY SERVICES FURNISHED IN CONNECTION WITH THIS LICENSE AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS: (I) OF MERCHANTABILITY; (II) OF SATISFACTORY OR MERCHANTABLE QUALITY; (II1) OF FITNESS FOR A PARTICULAR PURPOSE; (IV) OF NONINFRINGEMENT; OR (V) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION. 9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PS OR ITS OFFICERS, EMPLOYEES, DISTRIBUTORS, SUPPLIERS OR AFFILIATES BE LIABLE FOR: (I) COSTS OF SUBSTITUTE GOODS OR SERVICES; (II) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, WHETHER IN AN ACTION OF CONTRACT OR TORT, EVEN IF PS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (III) ANY CLAIM AGAINST YOU BY ANY THIRD PARTY; AND (IV) ANY DAMAGES, LOSSES OR INJURIES TO YOU, OR THOSE CLAIMING THROUGH YOU, IN EXCESS OF THE FEES PAID BY YOU FOR THE SOFTWARE OR SERVICES DIRECTLY CAUSING THE LIABILITY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING ALLOCATION OF RISK IS REFLECTED IN THE FEES CHARGED UNDER THIS LICENSE AGREEMENT. SOME STATES/JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 10. TERMINATION. This License Agreement is effective until terminated under this Section 10. You may terminate this License Agreement at any time by providing PS with written notice, provided that you have complied with the return and/or destruction policy set forth below. However, you shall receive a refund of your license fee only if this License Agreement is terminated in compliance with Section 8 hereof. This License Agreement may be terminated by PS if: (i) you fail to pay the license fees and other charges set forth at the time of your order; or (ii) you fail to comply with any of the terms and conditions set forth in this License Agreement and do not remedy such failure within thirty (30) days after receiving notice thereof. Upon any termination of this License Agreement, you agree to: (i) immediately cease all use of the Software, including the use and distribution of any Custom Applications incorporating the Software; (ii) either return the Software to PS or destroy same, and certify to PS, in writing, that all copies and partial copies thereof have been returned or completely destroyed and are no longer being used; and (iii) notify all third parties using the Software through you to comply with the foregoing. Sections 6, 7, 8(c), 9, 10, 11, 12, and 13 shall survive any termination of this License Agreement. 11. EXPORT CONTROLS. None of the Software or underlying information or technology may be exported or re-exported into (or to a national or resident of) any country in violation of the laws and administrative regulations of the United States or any other applicable jurisdiction. You specifically agree not to export or re-export any of the Restricted Components (i) to any country\region to which the U.S. has embargoed or restricted the export of goods or services, which currently include, but are not necessarily limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan, the Taliban and Syria, or to any national of any such countryregion, wherever located, who intends to transmit or transport the Software back to such countryregion; (ii) to any person or entity who you know or have reason to know will utilize the Software in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You warrant and represent that neither the BXA nor any other U.S. federal agency has suspended, revoked or denied your export privileges. By installing and/or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country. 12. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) (or an equivalent provision, e.g., in supplements of various U.S. government agencies, as applicable), all U.S. Government users acquire the Software with only those rights set forth herein. Manufacturer is Preferred Strategies, LLC, 2425 Porter Street, Suite 20, Soquel, CA 95073. You must affix the following legend to each copy of the Software: "Use, duplication, reproduction, or transfer of this commercial software and accompanying documentation is restricted in accordance with FAR 12.212 and DFARS 227.7202 and by a license agreement. Contact: Preferred Strategies, LLC, Attn: Contracts Department, 2425 Porter Street, Suite 20, Soquel, CA 95073." 13. AUDIT. During the term of this License Agreement and for three (3) years after termination or expiration, you will maintain complete records regarding your use and distribution of the Software. Upon reasonable notice to you, PS may audit, at PS's expense, your computer systems, books and records to determine your compliance hereunder. In the event any such audit reveals that you have underpaid PS by an amount greater than five percent (5%) of the amounts due PS in the period being audited, or that you have knowingly breached any material obligation hereunder, then, in addition to such other remedies as PS may have, you shall pay or reimburse to PS the cost of the audit. 14. ORDER TERMS. Purchase orders conforming to PS purchase order requirements may be accepted from qualified companies. Payment terms are net-30 days from date of invoice. FOB Preferred Strategies facility. All pre-printed terms of any purchase order are disclaimed and of no effect. PS makes no price guarantees and specifically disclaims price guarantees of any kind contained in any purchase order. You are responsible for payment of all applicable sales, use, consumption, VAT, GST, and other taxes and all applicable export and import fees, custom duties and similar charges, luding taxes based on Preferred Strategies net income. LC)- o R A 1b 15. GENERAL. Except as otherwise preempted b nit States federal law, this Lice se Agreement is governed by the laws of the State of Ga ' , United States, without reference to conflict of laws provisions or the United Nations 1980 Convention on Contracts for the International Sale of Goods and any amendments thereto. If any provision of this License Agreement is ruled invalid, such invalidity shall not affect the validity of the remaining portions of this License Agreement. This License Agreement constitutes the entire agreement between you and PS, and supersedes any prior agreement, whether written or oral, relating to the subject matter of this License Agreement. This License Agreement may not be modified except by an instrument in writing duly signed by an authorized representative of each of the parties. If you are acquiring the Software on behalf of an entity, you represent and warrant that you have the legal capacity to bind such entity to this License Agreement. All terms of any purchase order or other ordering document submitted by you shall be superseded by this License Agreement. In the event you and PS have executed a mutually agreed upon Enterprise Software License Agreement ("ESLA") and acquired the Software pursuant to such ESLA, the terms of the ESLA shall govern your use of the Software and the terms of this License Agreement shall be superseded by the ESLA. The product name for the Software is a trademark or registered trademark of PS. Should you have questions concerning this License Agreement, please contact a PS office, or write to: Preferred Strategies, LLC, Attn: Contracts Department, 2425 Porter Street, Suite 20, Soquel, CA 95073. Please indicate below whether you accept, or do not accept, the terms and conditions of this software license agreement. CC PREFERRED STRATEGIES, LLC ("PS") CV8- r L`r—2 r hstOther") Signature: Signature Print Name: Print Nara /Se Title: Title: Date: Date: � —T No Text