This Software License Agreement (“Agreement”) is a valid and legally binding agreement between LinkPoint360, LLC (“Licensor”) with its principal place of business at 68 White Street, Suite 2, Red Bank, NJ 07701, and you (“Licensee” or “you”). YOU UNDERSTAND THAT YOU MUST ENTER INTO THIS AGREEMENT IN ORDER TO USE OR COPY THE LICENSOR SOFTWARE AS LICENSED IN SECTION 2 HEREUNDER. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT BY CLICKING THE “ACCEPT” BUTTON ON THIS PAGE, YOU ARE AGREEING TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND THAT YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT. You further agree that the date on which you click the “ACCEPT” button on this page shall be the effective date of this Agreement (“Effective Date”).
WHEREAS, Licensor is the owner of a certain Software program(s); and
WHEREAS, Licensee desires to obtain a license, and Licensor desires to grant a license for the Software program(s) specified herein;
NOW THEREFORE, the parties hereto mutually agree as follows:
1.1. “Software” shall mean the software program(s) that you are installing via the installation program packaged with this Agreement in object code form, their database structure/schema, related documentation and all Upgrades, all owned by Licensor.
1.2. “Upgrade” or “Upgrades” shall mean any new versions, fixes, enhancements, service packs or other revisions of the Software as may be commercially released in the future at Licensor’s sole discretion.
1.3. “Affiliates” shall mean any entity which directly or indirectly controls, is controlled by, or is under common control with a party for as long as such relationship remains in effect. Except for the provisions of Sections 5 and 6 herein, the term “Licensee” shall be interpreted to include Licensee and its Affiliates.
Subject to the provisions of this Agreement, Licensor hereby grants to Licensee, and Licensee accepts from Licensor, a term-limited, renewable, world-wide, non-exclusive, non-transferable and revocable license to use the Software. Except for Trial License use as described below, this grant of license is subject to the payment of the Fees (as defined herein), and is valid only during the Term (as defined herein). Under this Agreement:
2.1. Licensee may use the Software under the usage restrictions for the number of licenses purchased (“Seats”) as specified herein, only for the processing of Licensee’s own business. For each Seat, the Software may be installed on a maximum of three (3) computers, however, a given Seat may not be used on more than one computer concurrently. For the avoidance of doubt, under no circumstances may a user ID for a given Seat be shared, or used by more than one person. The Software may be used only by Licensee’s employees, its third party contractors and its customers; provided that Licensee shall be solely responsible for the acts and omissions of its third party contractors and customers, and shall insure that any third party use of the Software complies with this Agreement.
2.2. For those Licensor Software products that are designed to integrate with SalesForce.com, Licensee understands and agrees that the license grant of Section 2.1 is expressly limited such that a given Software license key may only be used by users within a single SalesForce.com Org (as defined below). Licensee use of such Software with more than one SalesForce.com Org will require purchase of separate license keys for each such Org. A SalesForce.com “Org” means a separate set of SalesForce.com customer data and product customizations stored in a logically separate database (i.e., in a database that is segregated from other databases through password controlled access).
2.3. Licensee may make one copy of the Software in machine-readable form solely for backup purposes. Any such backup copy of the Software must include all copyright notices and any other proprietary legends on the original copy of the Software.
2.4. Trial License and License Purchase. Upon installation of the Software, you may use the Software for a limited trial period as determined by Licensor in its sole discretion (e.g., seven (7) days) (the “Trial Period”), subject to the terms and conditions of this Agreement (the “Trial License”). Such Trial License will be valid only during the Trial Period, after which the Trial License is revoked and the Software will be disabled unless you have remitted the Fees for paid Subscription License(s). If, during the Trial Period or thereafter, you wish to purchase Subscription License(s) for the Software, you may do so on a per user Seat basis. You may purchase Subscription Licenses either online via our website or by sending a purchase order to our sales department. Upon your payment of Fees, we will provide you with activation license key(s), and grant you license(s) for the number of Seats purchased that will be valid for renewable one (1) year periods (“Subscription License(s)”). At the end of each one (1) year period, the Software will be disabled unless you have remitted the Fees for an additional year period in advance.
Under this Agreement except as permitted under Section 2, Licensee may not:
3.1. Make or distribute copies of the Software;
3.2. Decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human perceivable form, except as permitted by law;
3.3. Attempt to remove any copyright notices or other reference to Licensor’s ownership of the Software appearing on the Software or any materials and documentation provided therewith;
3.4. Rent, lease, sublicense or resell the Software;
3.5. Modify or create derivative works based upon the Software or any part thereof;
3.6. Permit any third party to use the Software, or use the Software for purposes of processing the data of any third party; or
3.7. Use the Software to violate (intentionally or unintentionally) any applicable local, state, national or international law or regulation, including, but not limited to, U.S. export laws.
Licensor’s duties under this Agreement shall be as follows:
4.1. Support. Licensor shall provide telephone support of the Software during the Term (as defined herein) to answer questions and help troubleshoot any difficulties that Licensee may have in using the Software. There is no limit to the number of support calls that Licensee may place during the Term, however, live support will only be provided by Licensor between the hours of 8:30 AM and 6:00 PM EST, on normal business workdays. The support under this Agreement does not include any on-site support by Licensor.
4.2. Online Support. Licensee shall have Internet access to Licensor’s knowledge base and other help facilities posted on Licensor’s web site, to allow Licensee to obtain solutions to problems by querying this knowledge base.
4.3. Upgrades. During the Term, Licensor shall provide to Licensee all Upgrades without any additional charge.
5.1. Fees. In consideration for the grant of license, and in consideration for Licensor’s support obligations herein, Licensee shall pay annual license and services fees (“Fees”) as specified by Licensor at the time of license purchase. Licensor may increase the Fees yearly in its sole discretion.
5.2. Billing. Licensor will bill Licensee annually in advance, and Licensee agrees to remit payment of the Fees in U.S. dollars within thirty (30) days of invoice date, subject to termination of this Agreement.
5.3. Seats. Licensee may request an increase in the number of Seats by written notice at any time, and may request a decrease in the number of Seats via written notice sent at least thirty (30) days in advance of the expiration of the current annual term. Upon receipt of either such notice, Licensor will issue a notice to you identifying the revised number of Seats and corresponding annual Fees. The annual Fees for requests to increase the number of Seats will be prorated to reflect the amount of time remaining in the current annual term. For the avoidance of doubt, Licensee may not otherwise decrease the number of Seats during the current annual term and/or receive any corresponding refund of Fees.
6.1. Term. This Agreement shall continue in force for an initial term of one (1) year from the Effective Date (“Initial Term”), and upon the expiration of this Initial Term, this Agreement shall be automatically renewed for successive one (1) year terms (each a “Renewal Term”), provided that Licensee has paid the Fees for the next Renewal Term in advance. This Agreement shall automatically terminate at the end of the Initial Term or the current Renewal Term as applicable if Licensee fails to pay the Fees for the next Renewal Term in advance. The Initial Term plus all successive Renewal Terms up until the date of termination shall be collectively referred to as the “Term” of this Agreement.
6.2. Termination for Cause. Either party will have the right to terminate this Agreement for cause at any time if the other party is in breach of any material term which such party fails to cure within thirty (30) days after receiving non-breaching party’s notice of the breach and intention to terminate. Such termination will become effective automatically upon expiration of the cure period in the absence of a cure. In the event that Licensee so terminates this Agreement for cause due to material breach by Licensor, Licensee will be entitled to a pro rata refund of the Fees for the current one year period actually paid by Licensee up to the date of termination.
6.3. Termination for Convenience. Licensee may terminate this Agreement at any time for convenience, however, no Fees shall be refundable upon such termination for convenience.
6.4. Effect of Termination. All rights in the Software granted to Licensee hereunder shall cease upon any expiration or termination of this Agreement. Upon such expiration or termination, Licensee shall immediately cease any use of the Software. Within ten (10) days after any such expiration or termination, Licensee shall return or destroy all copies of the Software and any other related Licensor Confidential Information or proprietary materials in its possession or control; and certify to Licensor in writing that it no longer retains any copies of such Software or materials.
The parties may enter into follow-up consulting agreements to be negotiated on a time and materials basis, at Licensor’s then prevailing rates, should Licensee require any of the following additional services that are NOT covered by this Agreement:
Notwithstanding the foregoing, Licensor will provide assistance in installing, configuring and testing the Software if Licensee purchases the GoLive service as an additional paid service.
Regardless of who owns the media on which the Software resides or is distributed, the Software expressly remains the intellectual property of Licensor, and Licensor retains all right, title and interest in and to the Software and all copies thereof. Licensor expressly reserves all rights not specifically granted in this Agreement.
9.1. Performance Warranties. Licensor warrants that during the Term the Software will perform in substantial conformance with the documentation supplied by Licensor as part of the Software
9.2. Other Warranties. Licensor warrants to Licensee that during the Term:
9.2.1. the Software will not infringe upon, violate or misappropriate the intellectual property rights of any third party;
9.2.2. Licensor has the right to grant the licenses under this Agreement, free and clear of any and all agreements, liens, adverse claims, encumbrances or other interests of any third party;
9.2.3. the Software will not knowingly contain any viruses, “trojan horses” or other malicious or harmful code, subject to Section 9.3, below, and Licensor will test the Software using industry standard virus detection tools to verify the absence of any malicious or harmful code prior to shipment to Licensee; and
9.2.4. the Software is not subject to any license that requires that other software or documentation that incorporates or is used with the Software be disclosed or distributed in source code form, or be licensed for the purpose of making derivative works.
9.3. Lockout Mechanism. Notwithstanding any other provision of this Agreement, the parties hereby understand and agree that the Software does contain a lockout mechanism that provides Licensor with the technical capability to disable the Software (the “Lockout”). Licensor hereby warrants that it will not use the Lockout to disable the Software except under the conditions that Licensee has failed to pay undisputed and overdue subscription Fees, or has otherwise materially breached this Agreement.
9.4. EXCEPT AS SET FORTH IN THE EXPRESS LIMITED WARRANTIES OF SECTIONS 9.1, 9.2 AND 9.3, THE SOFTWARE IS PROVIDED “AS IS”, AND LICENSOR MAKES NO OTHER WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED. LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
9.5. Licensor makes no representation or warranty that the Software will: (i) be uninterrupted, timely, secure, complete, accurate or free from defects except as specified in Section 9.1; (ii) operate in conjunction with hardware, operating systems, environments or software not specified or approved by Licensor, or that are incompatible with the current release or update of the Software per Licensor specifications; or (iii) operate correctly in the event that Licensee fails to install new Upgrades provided by Licensor.
9.6. Licensor expressly makes no warranties regarding protection of Licensee data, and bears no responsibility for establishing procedures for the creation of back-up copies or security of Licensee data or other information.
9.7. No oral or written information or advice given by Licensor, its dealers, agents or employees shall create a warranty of any kind, or in any way increase the scope of this warranty.
9.8. IF ANY JURISDICTION DISALLOWS THE DISCLAIMER OF ANY WARRANTY HEREUNDER, THEN TO THE EXTENT ALLOWABLE BY APPLICABLE LAW, SUCH WARRANTIES SHALL BE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE EFFECTIVE DATE.
9.9. If Licensee deems that the Software fails to perform as warranted in Section 9.1 hereunder, Licensee shall so notify Licensor and provide a detailed description of the problem. If after analyzing the problem, Licensor determines that the problem is genuine, Licensor shall make commercially reasonable efforts to correct the problem. In such case, Licensee’s sole remedy shall be to receive within a commercially reasonable time, an Upgrade issued by Licensor that addresses the problem. Licensee agrees to cooperate and work closely with Licensor in a prompt and reasonable manner in connection with Licensor’s correction efforts. If Licensor fails to correct, cure or otherwise remedy a material malfunction, Licensee may terminate this Agreement and Licensor will refund a pro rata portion of pre-paid Fees.
9.10. Licensor shall have no responsibility with respect to the Software:
9.10.1. to the extent that it has been altered in any way;
9.10.2. where any failure to perform arises out of use of the Software in conjunction with other software or hardware not supplied or recommended by Licensor; or
9.10.3. with respect to any media damaged by accident, abuse or misapplication.
9.11. THE WARRANTY REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ANY OTHER REMEDIES WHICH MIGHT OTHERWISE BE AVAILABLE AT LAW AND/OR IN EQUITY.
10.1. EXCEPT REGARDING BREACH OF CONFIDENTIALITY, INDEMNIFICATION OR INFRINGEMENT OF THE SOFTWARE INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF DATA, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE PARTY WITH THE ALLEGED LIABILITY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10.2. Except regarding breach of confidentiality, indemnification or infringement of the Software intellectual property rights, under no circumstances shall either party’s aggregate liability hereunder for any form of damages exceed the Fees paid during the most recent one (1) year period.
11.1. Licensor will defend and indemnify Licensee against a claim that the Software furnished and used within the scope of this Agreement infringes the intellectual property rights of a third party, provided that:
11.1.1. Licensee will notify Licensor in writing within thirty (30) days of the claim, unless the failure or delay in so notifying Licensor does not materially adversely affect Licensor’s ability to defend or settle such claim;
11.1.2. Licensor has sole control of the defense and all related settlement negotiations; and
11.1.3. Licensee will provide Licensor with reasonable assistance, information and authority necessary to perform Licensor’s obligations under this section.
11.2. Licensor shall have no liability for any claim of infringement based on:
11.2.1. use of a superseded or altered release of Software if the infringement would have been avoided by the use of a current unaltered release of the Software that Licensor provides to Licensee; or
11.2.2. the combination, operation or use of any Software furnished under this Agreement with software, hardware or other materials not furnished by Licensor if such infringement would have been avoided by the use of the Software without such software, hardware or other materials.
11.3. In the event the Software is held or is believed by Licensor to be infringing, Licensor shall have the option, at its expense, to (a) modify the Software to be noninfringing; (b) obtain for Licensee a license to continue using the Software; or (c) terminate the license for the infringing Software and refund a pro rata portion of Fees paid for the most recent one (1) year period.
The provisions of this Agreement relating to limited warranties, remedies, limitations of liability and indemnification are fundamental elements of the basis of the bargain between Licensor and Licensee, and reflect an expressly agreed-upon and accepted allocation of risk between the parties. Thus, the Fees charged by Licensor and to be paid by Licensee have been set to reflect this allocation of risk. The parties hereby acknowledge and confirm that Licensor would not be able to economically provide the Software to Licensee at the Fees specified herein without such limitations.
13.1. Confidential Information. Information is deemed “Confidential Information” hereunder if the receiving party to whom it is disclosed has actual knowledge or reasonably should know that the information is confidential or proprietary, including without limitation proprietary software, technical information, know-how, trade secrets, processes, marketing data, customer lists, business/financial information, and pricing information.
13.2. Obligations of Non-Disclosure and Protection. Neither party shall disclose any Confidential Information of the other party to anyone other than the receiving party’s employees or subcontractors specifically performing under this Agreement. The receiving party shall protect the Confidential Information of the disclosing party with at least the same degree of care as it uses to protect its own Confidential Information of a similar nature, but in no case with less than a reasonable degree of care. The foregoing obligations shall not apply to any information that: 1) is publicly known at the time of its disclosure, 2) is lawfully received by the receiving party from a third party, not under an obligation of confidentiality to the disclosing party, 3) is published or otherwise made known to the public by the disclosing party, or 4) was generated independently by the receiving party before disclosure by the disclosing party.
13.3. Disclosure Required By Law. The receiving party’s disclosure of any of the disclosing party’s Confidential Information: (1) in response to a valid order by a court or other governmental body; (2) as otherwise required by law; or (3) as necessary to establish the rights of either party under this Agreement shall not be a breach of this Agreement; so long as the receiving party provides prompt prior written notice thereof to the disclosing party to enable disclosing party to seek a protective order or otherwise prevent the disclosure. Further, the receiving party shall disclose only the minimum amount of the disclosing party’s Confidential Information that it is legally required to furnish and, where appropriate, will exercise its best efforts to obtain written assurances that confidential treatment will be accorded to such Confidential Information.
13.4. Equitable Enforcement. In the case of a breach of the confidentiality provisions of this section, the parties hereby agree that their respective remedies at law are inadequate, and consent to equitable enforcement of their obligations under said sections, by a court of appropriate equity jurisdiction hereunder.
13.5. GDPR Data Addendum. If Licensee is subject to the EU General Data Protection Regulation (“GDPR”) or similar data protection laws, Licensee agrees to the separate Licensor Data Protection Addendum, that Licensor will provide to Licensee under separate cover, and the parties will execute.
Licensee agrees that the Software qualifies as a “commercial item” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, or if this Agreement is direct, Government end users will acquire, the Software with only those rights set forth in this Agreement. Use of either the Software constitutes agreement by the Government that the Software is “commercial computer software” and/or “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein. The manufacturer is Licensor as identified herein.
15.1. Independent Contractors. The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
15.2. Notices. Any notice, request, consent, demand or other communication required or permitted to be given by this Agreement shall be in writing. The parties agree that electronic records in accordance with the requirements of applicable governing law (e.g., the federal E-SIGN act and/or the state law Uniform Electronic Transactions Act (“UETA”)) satisfy the requirement for notices to be in writing under this Agreement. Either party may give notice by means of electronic mail to an e-mail address as provided and agreed to by the other party to be suitable for receiving such notices hereunder. Either party may also elect to give notice by written communication sent by recognized overnight delivery service or first class mail or pre-paid post to the addresses identified below. Any written notice delivered personally shall be deemed communicated as of actual receipt; and notices sent by mail shall be deemed to have been given three (3) calendar days (excluding Saturdays, Sundays and national holidays) after the time when the same was deposited in the mail as set forth in the preceding sentence; and notices sent by email shall be deemed to have been given twelve (12) hours after sending.
If to Licensor:
68 White Street, Suite 2,
Red Bank, NJ 07701
or to such other address as may be specified by either party hereto upon notice given to the other.
15.3. Force Majeure. Each party shall be excused from performing any of its obligations hereunder, in whole or in part, as a result of delays caused by the other party or a third party or by an act of God, war, riot, civil commotion, explosion, fire, government action, court order, epidemic or other circumstance beyond its reasonable control If any of the above-enumerated circumstances prevent, hinder or delay performance of either party’s obligations hereunder for more than thirty (30) calendar days following written notice of the circumstance, the party not prevented from performing shall have the right to terminate this Agreement without liability or penalty as of the date specified by such party in a written notice of termination to the other party.
15.4. Taxes. The Fees do not include any applicable federal, state or local taxes and any such taxes or governmental charges with respect to the Software, including sales or use taxes (but exclusive of income or corporate franchise taxes) (“Taxes”). All such Taxes shall be paid by Licensee.
15.5. Binding Nature. Subject to all other provisions herein contained, this Agreement shall be binding on the parties and their successors and permitted assigns.
15.6. Assignment. Licensee shall not assign or otherwise transfer this Agreement, or any part hereof, nor delegate any of its duties hereunder, whether by operation of law or otherwise, to any third party or affiliate without the prior written consent of the Licensor. Notwithstanding the foregoing, either party may assign or otherwise transfer this Agreement to a third party without requiring consent from the other party in the event of a sale, merger or other divestiture of substantially all of that party’s assets to such third party, and the existence and terms of this Agreement may be disclosed in confidence to such third party for the sole purpose of effecting such assignment or transfer, provided that the assigning party must give notice of any such assignment or transfer to the other party at least sixty (60) days prior to the time at which such assignment or transfer shall take effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each of the parties and their respective successors and permitted assigns, and shall not otherwise give rise to any rights to parties other than the immediate parties hereto, including but not limited to third party beneficiary rights.
15.7. Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable any other part of this Agreement, but the Agreement shall be construed as not containing the particular provision or provisions held to be invalid or unenforceable.
15.8. Waiver. No delay or omission by either party hereto to exercise any right occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition or agreement herein contained.
15.9. Governing Law; Exclusive Jurisdiction. This Agreement, and all the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement or the transaction(s) contemplated by it, shall be governed by, construed and enforced in accordance with the law of the State of New Jersey (excluding any conflict of laws provisions of the State of New Jersey that would refer to and apply the substantive laws of another jurisdiction). Any suit or proceeding relating to this Agreement shall be brought in the state courts of New Jersey. Each of the parties consents to the exclusive personal jurisdiction and venue of the state courts located in New Jersey.
15.10. No Construction Against Drafter. The parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.
15.11. Entire Agreement; Modification. This Agreement sets forth the entire, final and exclusive agreement between the parties as to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, between the parties. This Agreement may be modified only pursuant to a writing executed by authorized representatives of the parties. The parties expressly disclaim the right to claim the enforceability or effectiveness of: (a) any oral modifications to this Agreement; and (b) any other amendments that are based on course of dealing, waiver, reliance, estoppel or other similar legal theory. The parties expressly disclaim the right to enforce any rule of law that is contrary to the terms of this Section.
15.12. No Third Party Beneficiaries. Nothing in this Agreement shall create any rights in any third party beneficiaries, and Licensor has no obligation to any third party by virtue of this Agreement.
15.13. Headings. The paragraph headings of this Agreement are for convenience and shall be given no legal significance.
15.14. Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument.
15.15. Survival. The following sections shall survive any termination of this Agreement: 1 (Definitions), 7.4 (Effect of Termination), 8 (Proprietary Rights), 10 (Limits of Liability), 11 (Indemnification), 13 (Confidentiality), and 15 (General).