1. Definitions
As used herein, the following terms will have the following meanings:
1.1 “Agreement” means these Terms and Conditions of Use.
1.2 “Customer” means the party accepting these Terms and Conditions of Use.
1.3 “Customer Data” means any data, information or material proprietary to Customer or the other parties working on the Project and entered into the Software.
1.4 “Documentation” means the user documentation pertaining to the use of the Software and made available to Customer by Vendor.
1.5 “Party” means either Vendor or Customer; collectively they are the “Parties.”
1.6 “Primary Customer” means the party that entered into the Subscription Agreement with Vendor to purchase a subscription to use the Software on the Project.
1.7 “Project” means the project identified in the Subscription Agreement.
1.8 “Software” means the vPlanner software program, in object code only, provided by Vendor to Customer, including any Upgrades thereto provided by Vendor to Customer.
1.9 “Subscription Agreement” means the vPlanner Subscription Agreement between Primary Customer and Vendor.
1.10 “Term” has the meaning set forth in the Subscription Agreement.
1.11 “Upgrades” means any maintenance patches, new releases or new versions for any Software provided to Customer by Vendor.
1.12 “Vendor” means Ghafari Associates, L.L.C.
2. License Grants and Limitations
2.1 Purchase by Primary Customer. Customer is being provided access to the Software because the Primary Customer’s has purchased pursuant to the Subscription Agreement a subscription to the Software for use on the Project. (If Customer is the Primary Customer then the terms and condition of this Agreement shall be of no force or effect and the Subscription Agreement shall govern Customer’s use of the Software.)
2.2 Software Subscription. Subject to all the terms and conditions of this Agreement, Vendor hereby grants to Customer, and Customer hereby accepts, a nonexclusive, nontransferable, nonsublicensable subscription and license during the Term under Vendor’s intellectual property rights in the Software to use any number of copies of the Software solely for work on the Project and pursuant to and in accordance with the other restrictions set forth herein. The Software may also be copied, in whole or in part, as may be necessary and incidental for archival and backup purposes or to replace a corrupted or defective copy.
2.3 Documentation License. Subject to all the terms and conditions of this Agreement, Vendor hereby grants to Customer, and Customer hereby accepts, a nonexclusive, nontransferable, nonsublicensable license during the Term under Vendor’s intellectual property rights in the Documentation to use and copy the same in support of Customer’s permitted use of the Software.
2.4 Restrictions.
2.4.1 General. Customer agrees to be bound by and observe the proprietary nature of the Software and Documentation as provided in this Agreement. Customer agrees to take the actions necessary to fulfill its obligations hereunder by instruction or agreement with its employees or agents who are permitted access to the Software or Documentation. Customer will only give access to the Software or Documentation on a need-to-know basis.
2.4.2 Proprietary Rights. Customer hereby acknowledges that the Software contains valuable trade secrets and confidential information of Vendor. Title to and all patents, copyrights, trade secrets, and other proprietary rights in or related to the Software and Documentation (including all of the parts thereof) are and will remain the exclusive property of Vendor, whether or not specifically recognized or perfected under the laws of the United States or a foreign jurisdiction. Customer will not acquire any right in the Software or Documentation except the limited rights specified in this Agreement, or take any action that jeopardizes Vendor’s’ proprietary rights. Unless otherwise specifically agreed in writing, Vendor will own all rights in any copy, translation, modification, adaptation, or derivation of the Software, including any improvement or development thereof, whether or not authorized by Vendor. At the request of Vendor, Customer will execute and deliver to Vendor any instrument that may be appropriate to assign these rights to Vendor or perfect these rights in Vendor’s name.
2.4.3 No Implied Licenses. Any use, modification or distribution of the Software or Documentation by Customer outside the scope of the licenses granted herein is expressly prohibited.
2.4.4 No Reverse Engineering. Customer will not, and will not knowingly permit others to: (a) modify the Software; or (b) decompile, reverse-engineer, disassemble, or otherwise attempt, directly or indirectly, to obtain or create source code for the Software. Notwithstanding the foregoing, decompiling the Software is permitted solely to the extent the laws of Customer’s jurisdiction give Customer the right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that Customer must first request such information from Vendor and Vendor may, in its sole discretion, either provide such information to Customer or impose reasonable conditions, including a reasonable fee, on such use of the Software to ensure that Vendor’s’ proprietary rights in the Software are protected.
2.4.5 Unauthorized Distribution or Copying. Customer will not, and will not knowingly permit others to: (a) lease, license, sublicense, transfer or assign any of its rights under this Agreement; (b) sell, rent, or distribute the Software, including providing access to the Software or using the Software to operate a service bureau or on a timesharing basis; or (c) use, copy, duplicate or otherwise reproduce all or any part of the Software or Documentation, other than in strict accordance with this Agreement. Any breach of the foregoing will be considered a material breach of this Agreement that is incapable of cure.
2.4.6 Required Proprietary Notices. Customer will ensure that any copy it makes of the Software or Documentation contains the same proprietary notices that appear on or in the same as provided by Vendor to Customer and as otherwise reasonably required by Vendor.
2.5 Reasonable Cooperation. Customer shall, upon Vendor’s written request, provide reasonable cooperation (at Vendor’s expense) in order to secure and perfect the intellectual property rights in the Software. Customer shall promptly provide to Vendor all relevant facts upon becoming aware of a likelihood of infringement or other illegal use or misuse by any third party of the Software or any intellectual property rights of Vendor. Customer shall provide reasonable cooperation in any suits and actions related thereto, at Vendor’s request and expense.
2.6 Customer Data. Customer and the other parties working on the Project shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Vendor shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of Customer breach), Vendor shall make available to Customer a file of the Customer Data within 30 days of termination if Customer so requests at the time of termination. Upon termination for Customer breach, Customer’s right to access or use Customer Data immediately ceases, and Vendor shall have no obligation to maintain or forward any Customer Data.
2.7 Audit. Upon Vendor’s written request, Customer will provide to Vendor a signed certification: (a) verifying the Software is being used in accordance with the terms of this Agreement; and (b) listing the locations in which the Software is run. Vendor may, at Vendor’s expense and not more than once annually, audit Customer’s use of the Software and compliance with the terms hereof, upon notice to Customer. Any such audit will be conducted during business hours and will not unreasonably interfere with Customer’s business activities. Customer will provide Vendor with all reasonable assistance and information (including but not limited to copies of related software applications and other software) required to enable Vendor to determine whether Customer is in compliance with the subscription granted hereunder. If such audit reveals material nonconformance by Customer with this Agreement, Customer will reimburse Vendor all reasonable costs, fees, and expenses associated with such audit.
3. Termination
3.1 Termination of Subscription Agreement. Upon the termination of the Subscription Agreement, this Agreement shall immediately terminate without further action of the Parties.
3.2 Early Termination. Either Party may terminate this Agreement upon written notice if the other Party is in material breach of this Agreement and fails to correct such breach within thirty (30) days after written notice specifying the breach.
3.3 Effect of Termination. Upon termination of this Agreement, all subscriptions and licenses granted to Customer hereunder will immediately terminate. Termination of this Agreement by either Party will not limit either Party from pursuing any other remedies available to it, including injunctive relief, nor will such termination release Customer from any obligation to pay all fees that have accrued or that Customer has agreed to pay under this Agreement up to the date of termination. The Parties’ rights and obligations under Sections 2.4, 2.5, 2.6, 2.7, 3, 4, 5 and 6 will survive termination of this Agreement. If this Agreement expires or otherwise terminates, Customer will: (a) immediately cease using the applicable Software or Documentation; and (b) certify to Vendor within thirty (30) days of expiration or termination that Customer has destroyed or returned to Vendor the Software and all copies thereof remaining in Customer’s possession. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or merged into other materials.
4. Disclaimers and Limitations of Liability
4.1 DISCLAIMERS. THE SOFTWARE AND ANY SERVICES ARE PROVIDED STRICTLY “AS IS,” AND VENDOR DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO ANY SOFTWARE OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT. VENDOR DOES NOT WARRANT THAT THE SOFTWARE OR ANY SERVICES WILL MEET ANY CUSTOMER REQUIREMENTS NOT SET FORTH HEREIN, THAT THE SOFTWARE WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., "ALPHA" OR "BETA") RELEASES OF SOFTWARE ARE PROVIDED TO CUSTOMER, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
4.2 No Unauthorized Warranties. Except as may be done in accordance with Section 6.14, no statement by any Vendor employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify this Agreement in any way whatsoever.
4.3 LIMITATION OF LIABILITY. EXCEPT WITH REGARD TO CLAIMS BASED UPON CUSTOMER’S BREACH OF SECTION 2.4, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, SAVINGS, REVENUE, USE, DAMAGED OR LOST FILES OR DATA, OR BUSINESS INTERRUPTION, THAT MAY ARISE IN CONNECTION WITH THIS AGREEMENT, THE USE OR SUPPORT OF THE SOFTWARE, OR ANY MATTER WHATSOEVER, REGARDLESS OF THE CAUSE OF ACTION OR CHARACTERIZATION OF THE DAMAGES, EVEN IF THE PARTY SOUGHT TO BE HELD LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL VENDOR BE LIABLE FOR ANY DAMAGES FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR AGGREGATE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE USE OR SUPPORT OF THE SOFTWARE, OR ANY MATTER WHATSOEVER, REGARDLESS OF THE CAUSE OF ACTION OR CHARACTERIZATION OF THE DAMAGES, EXCEEDING THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD PRECEDING THE FIRST ACT GIVING RISE TO LIABILITY. NEITHER PARTY WILL BE LIABLE FOR ANY DAMAGES BASED ON ACTIONS OR OCCURRENCES THAT OCCURRED MORE THAN ONE (1) YEAR BEFORE THE OTHER PARTY PROVIDES NOTICE OF THE CLAIM. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT, AND WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES SPECIFIED HEREIN.
4.4 Essential Basis of Bargain. Customer acknowledges and agrees that the fees charged by Vendor in the Subscription Agreement reflect the overall allocation of risk between the Parties, including by means of the provisions for indemnity, limitation of liability, and exclusive remedies described in this Agreement. Such provisions form an essential basis of the bargain between the Parties and a modification of such provisions would affect substantially the fees charged by Vendor. In consideration of such fees, Customer agrees to such allocation of risk and hereby waives any and all rights, through equitable relief or otherwise, to subsequently seek a modification of such provisions or allocation of risk.
5. Indemnity
5.1 Vendor Intellectual Property Indemnity. Vendor will defend or, at its sole option, settle, at its own expense any suit, action or proceeding brought in a court of competent jurisdiction against Customer by a third party to the extent it is based on or arises out of a claim that any Software infringes any United States patent issued or any copyright or trade secret arising under the laws of any jurisdiction (an “IP Action”), and Vendor will pay damages finally awarded against Customer in such IP Action, or those monetary damages agreed to by Vendor and the claimant in a monetary settlement of such IP Action; provided that Vendor will be relieved of the foregoing obligations unless Customer: (a) gives Vendor prompt written notice of each such claim; (b) tenders to Vendor sole control of the defense or settlement of each such IP Action; and (c) cooperates with Vendor in defending or settling each such IP Action. If Vendor receives notice of an allegation that any Software infringes or misappropriates a third party’s intellectual property rights, or if Customer’s use of any Software is prohibited by permanent injunction of a court of competent jurisdiction as a result of such an infringement or misappropriation, Vendor may, at its sole option and expense: (a) procure for Customer the right to continue using such Software as provided hereunder; (b) modify such Software so that it is no longer infringing; or (c) replace the Software with other Software of equal or superior functional capability. If none of the foregoing is in Vendor’s determination commercially reasonable, Vendor will have the right to terminate all subscriptions and licenses to such Software granted hereunder.
5.2 VENDOR IP INDEMNITY LIMITATIONS. THE RIGHTS GRANTED TO CUSTOMER UNDER SECTION 5.1 WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND VENDOR’S SOLE OBLIGATION FOR ANY ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY RIGHT. VENDOR WILL HAVE NO LIABILITY, INCLUDING UNDER SECTION 5.1, FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION BASED UPON OR ARISING OUT OF: (A) ANY SOFTWARE MODIFIED WITHOUT THE APPROVAL OF VENDOR; (B) ANY CUSTOMER OR THIRD-PARTY APPLICATION OR OTHER TECHNOLOGY; (C) USE OF THE SOFTWARE IN CONNECTION OR IN COMBINATION WITH EQUIPMENT, DEVICES, OR SOFTWARE NOT PROVIDED BY VENDOR (BUT ONLY TO THE EXTENT THAT THE SOFTWARE ALONE WOULD NOT HAVE INFRINGED); (D) DESIGN REQUIREMENTS OR SPECIFICATIONS PROVIDED BY CUSTOMER OR ANY OTHER PARTY WORKING ON THE PROJECT; OR (E) THE USE OF SOFTWARE OTHER THAN AS PERMITTED UNDER THIS AGREEMENT, OR IN A MANNER FOR WHICH IT WAS NOT INTENDED.
5.3 Customer Use Indemnity. Except with respect to infringement of third-party rights for which Vendor is obligated to indemnify under Section 5.1, Customer will defend at its own expense any suit, action or proceeding brought against Vendor and its agents, employees, officers or directors (the “Indemnified Parties”), by a third party based on any claim arising in connection with Customer’s use of the Software (a “Use Action”), and Customer will pay damages incurred by an Indemnified Party in such Use Action, or those damages agreed to in a settlement of such Use Action, and all reasonable attorneys’ fees incurred in connection therewith. Vendor will (a) notify Customer promptly in writing of each such Use Action, (b) tender to Customer sole control of the defense or settlement of each such Use Action at Customer’s expense, provided, however, Customer may not settle a Use Action in a manner that would have a material adverse impact on the business of an Indemnified Party without receiving the prior written consent of the Indemnified Party, and (c) cooperate and assist in such defense, at Customer’s expense. Vendor will have the right to participate at its own expense in any such Use Action or related settlement negotiations using counsel of its own choice.
6. General
6.1 Export. Customer will comply fully with all applicable export laws and regulations of the United States of America, the European Union, and other countries (“Applicable Export Laws”) and assure that no Software is (a) exported, directly or indirectly, in violation of Applicable Export Laws; or (b) intended to be used for any purposes prohibited by the Applicable Export Laws, including nuclear, chemical, or biological weapons proliferation. The Parties agree not to take any actions that would cause either Party to violate the U.S. Foreign Corrupt Practices Act of 1997, as amended.
6.2 Government Customers. Software and Documentation are “commercial items,” as that term is defined at 48 C.F.R. 2.101, and the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, the Software and Documentation are provided to U.S. Government customers: (a) only as commercial end user items; and (b) only pursuant to this Agreement. The citations in this Section will be deemed updated as necessary from time to time to reflect any successor provisions of the same import.
6.3 Notice. All notices under this Agreement, including notices of address change, will be in writing and will be deemed to have been given when sent by (a) registered mail, return receipt requested, or (b) a nationally recognized overnight delivery service (such as Federal Express), to the President or General Counsel of the appropriate Party.
6.4 Legal Expenses. In the event legal action is taken by either Party to enforce its rights under this Agreement, all costs and expenses incurred by the prevailing Party, including reasonable attorneys’ fees and court costs, will be paid by the other Party.
6.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, unenforceable, or in conflict with any law of a federal, state, or local government, the validity of the remaining portions or provisions will remain in full force and effect.
6.6 Governing Law; Venue. This Agreement, and all matters arising under or related hereto, will be governed according to the laws of the State of Michigan, without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. All litigation arising under or related to this Agreement will be brought in a state or federal court located in Wayne County, Michigan, as permitted by law. Customer hereby consents to the personal jurisdiction of the above-referenced courts.
6.7 No Waiver. No failure on the part of either Party to exercise, and no delay in exercising, any right, power, or privilege will operate as a waiver thereof; nor will any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
6.8 Assignment. Neither Party may transfer or assign, by operation of law or otherwise, this Agreement or any right or duty arising hereunder to a third party without the other Party’s prior written consent. Any purported assignment in violation of this Section 6.8 will be void. Notwithstanding the foregoing, Vendor may assign this Agreement and its rights and obligations hereunder in its sole discretion to a successor entity in the event of corporate restructuring or an acquisition of Vendor, whether by stock or asset purchase, merger, or the like.
6.9 Independent Contractor. Vendor is an independent contractor and nothing in this Agreement or related to Vendor’s performance will be construed to create an employee relationship between Customer and Vendor or any Vendor employee or subcontractor.
6.10 No Third-Party Beneficiaries. This Agreement is an agreement between the Parties, and confers no rights upon any of the Parties’ employees, agents, contractors or customers, or upon any other person or entity.
6.11 Construction. All references in this Agreement to “Articles,” “Sections” and “Exhibits” refer to the articles, sections and exhibits of this Agreement. The words “hereof,” “herein” and “hereunder” and other words of similar import refer to this Agreement as a whole, as the same may from time to time be amended or supplemented, and not to any subdivision contained in this Agreement. The word “including” when used herein is not intended to be exclusive and means “including, but not limited to.” The word “or” when used herein is not intended to be exclusive unless the context clearly requires otherwise. Each of the Parties and their counsel have carefully reviewed this Agreement, and, accordingly, no rule of construction to the effect that any ambiguities in this Agreement are to be construed against the drafting Party will apply in the interpretation of this Agreement.
6.12 Force Majeure. Except with regard to any obligation to pay money hereunder, neither Party hereto will be held responsible for any delay or failure in performance hereunder caused in whole or in part by fire, strike, flood, embargo, labor dispute, delay or failure of any subcontract, power failure, telecommunications failure or delay, act of sabotage, riot, accident, delay of carrier or supplier, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other cause beyond such Party’s control. If any such contingency does occur, the time to perform an obligation under this Agreement affected thereby will be deemed extended by the length of time such contingency continues.
6.13 Entire Agreement. This Agreement, together with the Exhibits hereto, which are hereby incorporated herein by this reference, contain all the agreements, representations, and understandings of the Parties and supersedes any previous understandings, commitments, or agreements, oral or written, with respect to the subject matter of this Agreement.
6.14 Modification. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party that expressly states the sections of this Agreement to be modified; no other act, usage, or custom will be deemed to amend or modify this Agreement. Each Party hereby waives any right it may have to claim that this Agreement was subsequently modified other than in accordance with this Section 6.14.