SOFTWARE USER AGREEMENT
754 W. Annoreno Drive
Addison, IL 60101
Albiware, Inc. Software License Agreement
WHEREAS, Albiware has created and owns certain software called Albiware, which is a enterprise resource planning software (the “Software”) and intends to provide a license to Customer for the use of its software; and
WHEREAS, Customer wishes to acquire a license from Albiware to use certain software identified herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth, the parties agree as follows:
1. SOFTWARE LICENSE.
1.1 Subject to the terms and conditions of this Agreement, Albiware grants to Customer a perpetual non-exclusive license to use those certain computer software programs described in Software Proposal (the “Software”) in object code form only to be installed in and utilized with the Hardware. Notwithstanding anything else, as between the parties, Albiware retains all title to, and, except as expressly and unambiguously licensed herein, all rights to the Software, the source and object codes and any customizations, updates and corrections to the Software, all copies and portions thereof, all user guides, reference guides, training manuals and other documentation related thereto (collectively, the “Documentation”), and all intellectual property and proprietary rights therein. The license under this Section 2 does not constitute a sale of the Software or any portion of it.
1.2 Customer shall utilize the Software at Customer’s business locations. In the event Customer wishes to utilize the Software at any other location, it shall first obtain Albiware’s written consent, which shall not be unreasonably withheld. Customer shall not copy the Software without Albiware’s written consent. The original and any complete or partial copies of the Software that are made by Customer, are the sole property of Albiware and may not be gifted, sold or otherwise transferred to any third party without the prior written consent of Albiware.
2. NETWORK WIRING, CABLE, ETC.
2.1 No electric power, network wiring, cable, or conduit is included in the License Price. Subject to the terms of Section 5.4 below, Customer shall be solely responsible for obtaining all network wiring, conduit, cable and fittings necessary for the operation of the Software.
2.2 Network servers or any hardware or software related to network operation, PC workstations, voice boards, microphones, speakers or printers are not included in the License Price except as specified in .
3.1 Customer will pay Albiware the total licensing fees described in for the Software (the “License Price”).
3.2 Payments shall be made on the date(s) specified in . If Customer fails to pay any portion of the License Price within ten (10) days of the due date, Albiware reserves the right to suspend and/or terminate Customer’s license of the Software.
3.3 Customer shall pay interest on any outstanding balance, computed at the rate of Eighteen percent (18%) per annum, from the due date thereof until such amount is paid.
3.4 The License Price is exclusive of taxes and Customer shall pay any and all such taxes, other than taxes on the income of Albiware. If by law Albiware is chargeable with the collection and payment of any tax to be paid by Customer and Albiware actually pays such amount, the amount thereof shall be added to the Purchase Price.
4.1 Software – The Software will be delivered by Albiware in accordance with the installation proposal set out in .
5.1 Software – Unless otherwise specified in writing, the Software will be installed by Albiware to Customer in accordance with the schedule set out in .
5.2 The cost, installation and functioning of all products not provided by Albiware including, without limitation, electric power, electrical wiring, cabling, telephone equipment, computers, modems, printers, tables, etc. shall be Customer’s sole responsibility. Upon Customer’s request, Albiware will provide specifications with respect to the foregoing items and consultation with respect thereto. Consulting rates for such services are $200.00 per hour.
6.1 Albiware will provide instruction and training to Customer’s personnel as described in software proposal. Additional training will be supplied, when requested, at $200.00 per hour (plus expenses) for such services, subject to negotiation at the time such additional training is request.
7. SOFTWARE SUPPORT
7.1 Albiware will provide reasonable ongoing software support to Customer on an as-needed basis.
8. ALBIWARE’S WARRANTIES.
8.1 Albiware represents, warrants and covenants to Customer that:
8.1.1 it is a corporation in good standing under the laws of the State of Illinois with full authority to execute and perform this Agreement; the execution and performance of which have been duly authorized by Albiware and is enforceable against Albiware.
8.1.3 it owns the Software and has the right to enter into this Agreement and to sell the Hardware, license the Software and provide the Services as described herein.
8.1.4 the Software will be developed and, subject to variations consistent with practical testing, and inspection will perform substantially in accordance with the Documentation and will not infringe on any intellectual property rights of any third party.
8.1.6 the Services shall be performed in accordance with all written specifications therefor and consistent with applicable industry standards and the version of the Software and Documentation delivered to Customer will be the complete, current version.
8.2 Albiware’s warranties do not apply to any software or hardware that is not provided by Albiware pursuant to this Agreement.
8.3 Albiware’s warranties with respect to the Software shall continue through the date of this Agreement. Notice of any warranty claim must be presented in writing to Albiware within the warranty period or otherwise shall be barred. Upon receipt of a warranty claim, Albiware will examine the Software and undertake commercially reasonable steps to cure any warranty claim. THE WARRANTIES STATED HERE ARE THE SOLE AND EXCLUSIVE WARRANTIES EXPRESSED OR IMPLIED BY ALBIWARE. ALBIWARE DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALBIWARE DOES NOT PROMISE THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NOTWITHSTANDING ANYTHING ELSE, ALBIWARE WILL NOT BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY CLAIMING RIGHTS THROUGH CUSTOMER FOR ANY DAMAGE OR LOSS DUE TO THE INEFFECTIVENESS, DEFECT, OR FAILURE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION, ANY BUSINESS INTERRUPTION, LOST PROFITS, OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. ALBIWARE’S LIABILITY SHALL IN NO EVENT EXCEED THE LICENSE PRICE SET FORTH IN OR APPROPRIATE PORTION THEREOF. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ALBIWARE’S LIABILITY PURSUANT TO ITS INDEMNIFICATION OBLIGATIONS HEREUNDER SHALL IN NO EVENT EXCEED TWO TIMES THE LICENSE PRICE HEREUNDER.
8.4 Albiware shall keep the Software free and clear of any claims, liens or encumbrances that might interfere with Customer’s continuing use of the Software.
9. CUSTOMER’S WARRANTIES.
9.1 Customer represents, warrants and covenants to Albiware that:
9.1.1 it is a Company in good standing under the laws of the State of Illinois with full authority to execute and perform this Agreement; the execution and performance of which have been duly authorized by Customer and is enforceable against Customer.
9.1.2 as of the date of execution of this Agreement (a) Customer has not sought and has no present intention to voluntarily seek the protection of the bankruptcy laws; (b) Customer has no information that if known to creditors of Customer (i) would cause Customer to voluntarily seek the protection of the bankruptcy laws or (ii) might reasonably cause such creditor to subject Customer to any proceeding under the bankruptcy laws.
10. PROPERTY RIGHTS AND RESTRICTIONS ON USE
10.1 Customer recognizes that the Software, and customizations, updates or corrections, if any, are the property of, and all rights thereto, are owned by Albiware. Customer also acknowledges that such are a trade secret of Albiware, are valuable and confidential to Albiware, and that its use
and disclosure must be carefully and continuously controlled. Title to the Software, and customizations, updates or corrections, if any, shall at all times remain with Albiware.
10.2 Customer shall keep the Software, and customizations, updates and/or corrections, if any, free and clear of any claims, liens and encumbrances attributable to the use or possession of the Software by Customer. Any act of Customer, whether voluntarily or involuntarily, purporting to create a claim of encumbrance shall be void.
10.3 The Software is for the sole use of Customer and shall be used only for the purpose
set forth in this Agreement. Customer shall treat the Software, and customizations, updates and/or corrections, if any, as confidential and proprietary, and shall protect it in the same manner that it protects the confidentiality of its own information. While this Agreement is in effect, or while Customer has custody and possession of the Software, Customer will not:
provide or make available the Software to any person or entity other than employees of Customer who have a need to know consistent with Customer’s use thereof under this Agreement; or
10.3.2 create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering or otherwise, the source program or any part thereof from the object program or other information made available to Customer pursuant to this Agreement.
Customer agrees to promptly notify Albiware if it obtains information as to any unauthorized possession, use or disclosure of the Software by any person or entity, and further agrees to cooperate with Albiware in protecting Albiware’s proprietary rights.
11.4 If Customer, its officers, agents, or employees, breach any provision of this Agreement, such breach must be cured within thirty (30) days of receipt of Albiware’s written notice describing such breach. If such breach is not cured within the thirty (30) days after receipt of the notice, Customer shall pay Albiware reasonable monetary payments for loss and/or damages related to such breach.
11.1 Albiware shall defend any claim or proceeding brought against Customer, to the extent that it is based on (i) an assertion that Customer’s use of the Software or any part thereof under this Agreement constitutes an infringement of any United States patent, copyright, trademark or trade secret, or contractual or proprietary rights of any third party, or (ii) Albiware’s negligence, willful misconduct or breach of its representations and warranties or obligations under this Agreement, and shall indemnify Customer against all costs, damages and expenses of any kind (including reasonable attorney’s fees) incurred by Customer arising from such claim, provided (i) that Customer notifies Albiware in writing of any such claim or proceeding within thirty (30) days after Customer’s receipt of written notification of said claim; (ii) that Customer shall reasonably assist in the defense and/or settlement of such claim at Albiware’s expense; and (iii) that Albiware shall have sole control of the defense of such claim or proceeding and all negotiations for its compromise or settlement.
11.2 If the Software is found to be in violation of a U.S. patent or copyright, Albiware shall, at its sole option and expense, and in addition to its foregoing indemnification obligation:
11.2.1 Procure for Customer the right to continue to use the Software;
11.2.2 Replace the Software with a compatible, functionally equivalent non-infringing product;
11.2.3 Modify the Software to make it non-infringing without impairing Customer’s ability to use the Software as intended, with the modification subject to Customer’s written approval, which approval shall not be unreasonably withheld; or
11.2.4 If none of the above alternatives is reasonably feasible, refund to Customer the unamortized amount of the License Price (as amortized on a straight-line basis over five years from the date of this Agreement). If the entire License Price is refunded, this Agreement will be terminated on payment of the refund.
11.3 Albiware shall have no liability hereunder to the extent that such claim is based upon (i) Customer’s modification of the Software, except if Albiware shall have developed such modification for Customer, (ii) Albiware’s compliance with Customer’s specifications, if any, or (iii) combination of Software with other products, Albiware shall also not have any obligation under Section 12.1 (i) where Customer continues the allegedly infringing activity after being notified thereof and after being informed of and provided with modifications that would have avoided the alleged infringement or (ii) where Customer’s use of the Software is incident to an infringement not resulting primarily from the Software or is not strictly in accordance with the license granted hereunder.
11.4 This Section 12 states Customer’s exclusive remedy for any claim of or action for infringement by any Software provided hereunder.
12. ALBIWARE’S CONSULTING SERVICES
12.1 If Customer determines that it wishes to retain Albiware to provide consulting services to modify or customize the source code for the Software for Customer’s particular needs, the parties shall enter a written addendum to this Agreement setting forth the conditions under which such services shall be provided.
12.2 Customer acknowledges and agrees that all developed, modified or customized Software and all rights, title and interest in and to any code and all other works and materials (“Works”) created by and/or developed by Albiware pursuant to such consulting services, and all intellectual property rights therein, shall be owned solely and exclusively by Albiware. Notwithstanding the foregoing, Albiware grants to Customer a perpetual non-exclusive license to use any such developments, modifications or customizations as set forth in this Agreement.
12.3 Customer shall not be liable for the payment of any federal, state or local taxes or contributions imposed or required under unemployed insurance, social security or income tax laws with respect to Albiware’s employees engaged in performance of services for Customer hereunder. Customer shall be liable for the payment of any sales taxes imposed by any federal, state or local agencies with respect to Albiware’s services performed for Customer hereunder.
13.1 In the course of performance of this Agreement, each party may have access to confidential and proprietary information (“Proprietary Information of the Disclosing Party”) of the other. The receiving party will be held in confidence and will not use or disclose other than for purposes of this Agreement any Proprietary Information of the Disclosing Party which has been identified as such in writing without the prior written consent of the disclosing party. The receiving party shall not be obligated under this Section 14 with respect to information that the receiving party can establish, by reasonably competent evidence, is or becomes generally known through no fault of the receiving party or was known to the receiving party prior to disclosure by or on behalf of the disclosing party, was received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information or was independently developed by the receiving party.
13.2 Nothing contained in this Agreement shall restrict Albiware’s right to use Customer and its employees, independent contractors and/or agents’ confidential, personal and business information (“Customer’s information”) for purposes of research and product development. Customer expressly agrees and permits Alibware access to use any of its Customer’s information stored, inputted, kept or provided in the Software for the purpose of research, product development and to develop trends in the restoration business. Albiware (i) shall not disclose any of Customer, its employees, independent contractor and/or agents’ personally identifiable information to third parties, (ii) shall only use or disclose Customer’s information only as permitted by this Agreement or as required by law, (iii) shall use appropriate safeguards to prevent the unauthorized use or disclosure of Customer’s information other than as permitted by this Agreement, and (iv) shall report to Customer any unauthorized use or disclosure of Customer’s information.
14. LITIGATION/ATTORNEY’S FEES
14.1 The parties agree that any dispute between them or requiring litigation whether or not arising under this Agreement–shall only be commenced and determined within DuPage County, Illinois as constituting the parties’ sole and exclusive choice of venue wherein Albiware maintains its business offices and/ or its registered agent. Except as provided in Paragraph 12.4, the prevailing party’s actual attorneys’ fees and costs related to the litigation shall be promptly paid by the party that did not prevail in the litigation.
15. TERM AND TERMINATION
Customer may cancel at any time At the termination of this Agreement, Customer shall return the software and any other licensed products to Albiware within seven (7) business days. Albiware will return any of Customer’s stored information at the termination of this Agreement.
16.2 Albiware in no event shall be liable for delays in shipment or delivery, failure to manufacture, or other failure to perform its obligations under this Agreement caused by any event reasonably beyond Albiware’s control including, but not limited to, acts of God, acts of Customer, fire, floods, epidemics, war, riot, accidents at the place of manufacture, strikes, labor disputes, governmental control, force majeure, or any other contingency, whether or not similar to the foregoing, beyond Albiware’s control. Should any act of Customer delay Albiware’s performance under this Agreement, the period of delay shall be added to Albiware’s time for performance.
16.3 This Agreement shall be governed by the laws of the State of Illinois without giving effect to choice of law principles.
16.4 In the event of the filing of petition in bankruptcy by or against Customer, or the appointment of a receiver for Customer, or the insolvency of Customer, Albiware may refuse to make further deliveries.
16.6 This Agreement is not assignable by Customer or Albiware except by prior written agreement of both parties.
16.7 If any part of this Agreement shall be held to be void or unenforceable, such part will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
16.8 The failure of any party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights, each waiver requiring a writing signed by the waiving party.
16.9 All notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to be given when personally delivered or three (3) days after being sent by certified or registered mail, postage pre-paid, return receipt requested, or one (1) day after being sent by reputable overnight courier with tracking capabilities, or when sent by facsimile, telecommunication or other electronic means with a confirmation copy sent by one of the other means allowed hereunder, to the other party at the respective addresses set forth in this Agreement or at such other address as may be designated from time to time pursuant to the provisions of this paragraph.
16.10 The headings in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement.