HRS SYSTEMS, INC., 208 Southside Square, Petersburg, Tennessee, 37144 (hereinafter referred to as "LICENSOR") agrees to grant, and the Customer (hereinafter referred to as "LICENSEE"), agrees to accept, the following terms and conditions for the use of HRS Systems Software (hereinafter referred to as “SOFTWARE”).
1.1 Grant of License. Subject to all of the terms and conditions of this Agreement, LICENSOR grants to LICENSEE a non-transferable, non- sublicensable, non-exclusive license during the applicable Subscription Term (as defined below) to use the object code form of the software products specified in an Order Form (“SOFTWARE”) internally, but only in accordance with (a) the technical specification documentation generally made available by LICENSOR to its customers with regard to the specific SOFTWARE (“Documentation”), (b) this Agreement and (c) any volume, user, field of use, configuration or other restrictions set forth in the applicable Order Form or this Agreement. “SOFTWARE” shall also include any Documentation and any Support and Maintenance releases of the same specific Software product provided to LICENSEE under this Agreement.
1.2 Subscription Terms and Renewals. The SOFTWARE is licensed under each Order Form on a subscription basis (“Subscription”). The term of any Subscription shall be twelve (12) months commencing on the start date specified on the applicable Order Form (unless otherwise designated in the Order Form) (“Subscription Term”). If no Subscription start date is specified on the applicable Order Form, the start date shall be one business day after payment is received for the SOFTWARE. Unless terminated earlier in accordance with Section 4, each Subscription Term will automatically renew upon expiration of the initial Subscription Term for additional successive one (1) year terms unless either party gives the other prior written notice of cancellation at least thirty (30) days prior to expiration of the then-current term. Unless otherwise specified on the Order Form, the rates for any Subscription Term renewals shall be LICENSOR’s then-current Subscription rates.
1.3 Installation and Copies. LICENSEE may download and install on LICENSEE’s computers for use only by LICENSEE’s employees as many copies of the SOFTWARE as is designated on the applicable Order Form. Each license may be used on only one computer, though the license may be moved from one computer owned by LICENSEE to another .
1.4 License Restrictions. LICENSEE shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the SOFTWARE or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the SOFTWARE by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to LICENSOR); (b) distribute, sell, sublicense, rent, lease or use the SOFTWARE (or any portion thereof) for time sharing, hosting, service provider or like purposes; (c) remove any product identification, proprietary, copyright or other notices contained in the SOFTWARE; (d) modify any part of the SOFTWARE, create a derivative work of any part of the SOFTWARE, or incorporate the SOFTWARE into or with other software, except to the extent expressly authorized in writing by LICENSOR; or (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the SOFTWARE.
Except for the limited license rights expressly provided herein, LICENSOR retains all rights, title and interest in and to the SOFTWARE (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof. LICENSEE acknowledges that it is obtaining only a limited license right to use the SOFTWARE and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to LICENSEE under this Agreement or otherwise.
3.1 Payment. All payments are non-refundable (except as expressly set forth in this Agreement) and shall be made in U.S. dollars. Payment terms shall be as follows: (a) Unless otherwise specified on the applicable Order Form, for each initial Subscription Term under an Order Form, SOFTWARE shall be delivered within two business days upon receipt of payment by LICENSOR. (b) for each renewal Subscription Term, within thirty (30) days after LICENSOR’s invoice for the renewal Subscription fees. LICENSOR will send such renewal invoices no sooner than sixty (60) days prior to the expiration of the then-current Subscription Term. (c) Unless otherwise specified on the applicable Order Form, all Professional Services fees, training fees, and setup fees are due within thirty (30) days of LICENSOR’s invoice. LICENSEE shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of LICENSOR). Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
3.2 Procurement Agent. LICENSEE hereby notifies LICENSOR that LICENSEE’s Procurement Agent is authorized to place Order Forms, receive invoices and make payments to LICENSOR on LICENSEE’s behalf. LICENSOR is entitled to rely and act upon any Order Form submitted by the Procurement Agent and LICENSEE shall remain liable for any invoices that remain unpaid by its Procurement Agent or which are paid late. If any refunds are required to be provided to LICENSEE under this Agreement, LICENSOR will refund amounts paid by the Procurement Agent to the Procurement Agent, and the Procurement Agent will be responsible for refunding the corresponding amount to LICENSEE. LICENSEE acknowledges and agrees that it is granted permission to use its Procurement Agent under this Agreement solely as a matter of convenience in connection with LICENSEE’s order management process. LICENSOR shall have no liability or obligation to the Procurement Agent and the Procurement Agent obtains no rights under or in connection with this Agreement, including, without limitation, any license or other right to use the SOFTWARE.
3.3 Delivery. All SOFTWARE and Documentation shall be delivered by electronic means unless otherwise specified on the applicable Order Form.
4.1 Term. This Agreement is effective as of the Effective Date and expires on the day that the Subscription Terms for all SOFTWARE licensed hereunder have expired. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
4.2 Termination. Upon any expiration or termination of this Agreement, LICENSEE shall cease any and all use of any SOFTWARE and destroy all copies thereof and so certify to LICENSOR in writing within 5 days of such termination.
4.3 Survival. Sections 1.4 (License Restrictions), 2 (Ownership), 3 (Payment and Delivery), 4 (Term of Agreement), 5.6 (Disclaimer), 7 (Limitation of Liability), 10 (Confidential Information), 12 (General), and LICENSEE’s right to Work Product and ownership of LICENSEE Content described in Section 7 shall survive any termination or expiration of this Agreement.
LICENSOR warrants and represents to the LICENSEE the following:
5.1 That each Licensed SOFTWARE program will conform to LICENSOR's prevailing published Program Specifications when delivered to LICENSEE.
5.2 The LICENSOR is the sole owner of all right, title and interest in and to the Licensed Programs.
5.3 That the Licensed SOFTWARE does not infringe upon any patent(s) theretofore issued in the United States or upon any other patent application pending.
5.4 That no other persons, firm or corporation has any right, title or interest in and to the Licensed SOFTWARE and that LICENSEE shall have the right to use the Licensed SOFTWARE as herein provided.
5.5 That the LICENSOR has the full power to grant the rights and privileges herein granted to the Licensee pursuant to the Agreement.
5.6 EXCEPT FOR THE EXPRESS WARRANTY STATED ABOVE, LICENSOR GRANTS NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ON ANY LICENSED PROGRAM, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF LICENSOR FOR DAMAGES INCLUDING, BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES OCCURRING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF LICENSED PROGRAMS.
LICENSEE agrees not to provide or otherwise make available any Licensed Program, including but not limited to flow charts, logic diagrams and source codes, in any form, to any person other than LICENSEE's or LICENSOR's employees without prior consent from LICENSOR, except during the period any such person is on LICENSEE's premises with LICENSEE's permission for purposes specifically related to LICENSEE'S use of the Licensed Program. LICENSEE agrees to take appropriate action by instruction, agreement, or otherwise with all employees or other persons permitted access to Licensed Programs to satisfy his obligations under this Agreement with respect to use, copying modification, and protection and security of Licensed Programs.
LICENSOR at its own expense will defend any action brought against LICENSEE to the extent that it is based on a claim that any Licensed SOFTWARE used within the scope of the license hereunder infringes a United States patent or copyright, provided: LICENSEE notifies LICENSOR promptly in writing of the action (and all prior claims relating to such action) and LICENSOR has sole control of the defense and all negotiations for the settlement or compromise. In the event any Licensed Programs become, or in LICENSOR's opinion are likely to become, the subject of a claim of infringement of a patent or copyright, LICENSOR may at its option either secure the LICENSEE's right to continue using the Licensed Programs, replace or modify them to make them non-infringing, or if neither of the foregoing alternatives is reasonably available to LICENSOR, discontinue the Licensed SOFTWARE upon one month notice.
If, however, the Licensed SOFTWARE is not the subject of a claim of patent or copyright infringement, LICENSEE may notify LICENSOR in writing during the one month after LICENSOR's notice of discontinuance that LICENSEE elects to continue to be licensed with respect to the Licensed SOFTWARE until there has been an injunction or the claim has been withdrawn, and agrees to undertake at LICENSEE's expense the defense of any action against LICENSEE and to indemnify LICENSOR with respect to all costs, damages, and attorney's fees attributable to such continued use after such notice is given to LICENSOR; it being understood that LICENSOR may participate at its expense in the defense of any such action if such claim is against LICENSOR. LICENSOR shall have no liability for any claim of copyright of patent infringement based on use of other than a current unaltered release of the Licensed SOFTWARE available from LICENSOR if such infringement would have been avoided by the use of a current unaltered release of the Licensed SOFTWARE available from LICENSOR. THE FOREGOING STATES THE ENTIRE LIABILITY OF LICENSOR WITH RESPECT TO INFRINGEMENT OF ANY COPYRIGHTS OR PATENTS BY THE LICENSED PROGRAMS OR ANY PARTS THEREOF.
LICENSEE agrees that LICENSOR's liability hereunder for damages shall not exceed the charges paid by LICENSEE for the particular Licensed SOFTWARE or related materials for any lost profits, or for any claim or demand against the LICENSEE by any other party, No action, regardless of form arising out of the transactions under this Agreement, maybe brought by either party more than one year after the cause of action has accrued, except that an action for nonpayment may be brought within one year after the date of last payment.
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by LICENSOR (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of LICENSOR without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. Without limiting the foregoing, Customer shall ensure that its Procurement Agent is subject to written confidentiality terms that are no less protective of LICENSOR than the terms of this Agreement. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For clarity, the above confidentiality restrictions do not apply to Customer’s use of licensed SOFTWARE.
This Agreement represents the entire and integrated agreement between the parties and supersedes all prior negotiations, representations of agreements, either written or oral.
If any of the provisions of this Agreement are invalid under any applicable statute or rule of law, they are, to that extent, deemed omitted.
This Agreement shall be governed by the laws of the State of Georgia.
License Version 20200304-H1-2a