Ektron Perpetual Software License Agreement

This Software License Agreement (the “Agreement) contains the terms and conditions upon which Ektron, Inc., a Delaware Corporation with a principal place of business at 542 Amherst Street, Nashua, NH 03063, (“Ektron”) grants to you (“Licensee”) a license to use the Licensed Software (as defined below) on the terms and conditions identified herein.

BY INSTALLING, COPYING, OR OTHERWISE USING THE LICENSED SOFTWARE, LICENSEE AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSEE MAY NOT INSTALL, COPY OR USE THE LICENSED SOFTWARE.

 

1. Definitions

 

1.1    Annual Maintenance Services Fee: means the fee for the Maintenance Services identified as such in the Order Form. 

1.2    Authorized System(s): means computer systems, storage devices and networks owned, operated or under the supervision and control of Licensee.

1.3    Authorized User (otherwise referred to as “Named User”): means any individual employee, agent or contractor of Licensee accessing or using the Licensed Software solely on behalf and for the benefit of Licensee in the operation of Licensee’s business. Such user shall have a username and password registered in the Licensed Software through single sign on or directly within Ektron’s work-area.

1.4    Current Release: means the latest Upgrade of the Licensed Software offered by Ektron for general commercial distribution.

1.5    Documentation: means Ektron’s standard user manuals and/or related documentation generally made available to Licensees of the Licensed Software.

1.6    Delivery Date: means the date on which delivery of the Licensed Software is deemed complete pursuant to Section 4 of this Agreement.

1.7    Domain: means a resolving web address that displays a website for view by an intended audience. This could be internal to the Licensee’s network or external to the public. A domain is defined as (e.g.) http://xyz.com and any pages post forward-slash (e.g.) http://xyz.com/site1. A domain allows for regional extensions (e.g. .com; .co.uk, .fr) if localized through the CMS work-area, using the same website application and templates. A sub-domain is considered by Ektron to be a separate domain (e.g.) http://abc.xyz.com.

1.8    Effective Date: means the date of the Order Form specifying the applicable Licensed Software.

1.9    Licensed Software: means the executable, object code version of Ektron’s proprietary software specifically identified in the Order Form. 

1.10  Maintenance Services: means the maintenance and support services for the Licensed Software to be provided by Ektron, under this Agreement as described in the Order Form.

1.11  Order Form: means the Ektron order form or purchase agreement produced by Ektron to detail certain terms of the transaction between Licensee and Ektron pursuant to this Agreement.

1.12  Server: means one installation or application instance of a physical or virtual server with a maximum of four (4) central processing units.

1.13  Update: means service packs, patches, and or hotfixes. 

1.14  Upgrade: means the release of a new version of the Licensed Software which Ektron makes available under Maintenance Services.

 

2. License

        

2.1    Subject to the terms and conditions of this Agreement, Ektron hereby grants to Licensee a perpetual, non-exclusive, non-transferable, non-sublicenseable right and license to install and operate the Licensed Software on Authorized Systems and for the number of Authorized Users, Domains, or Servers set forth in the Order Form. Licensee shall use the Licensed Software solely in accordance with applicable Documentation provided by Ektron, solely for use by Authorized Users, and solely for Licensee’s internal business purposes. 

2.2    Subject to the terms and conditions of this Agreement, Ektron hereby grants to Licensee a non-exclusive, non-transferable, non-sublicenseable right and license to use, and make copies of the Documentation, solely for internal use by Authorized Users in connection with the Licensed Software. Licensee acknowledges that no right is granted to modify, adapt, translate, publicly display, publish, create derivative works of, or distribute the Documentation.

 

3. Payment

 

3.1    If Licensee purchases the Licensed Software directly from Ektron, the following terms and conditions apply:

3.1.1   Licensee shall pay to Ektron, without offset or deduction, the License Fees specified in the Order Form.

3.1.2   Ektron will invoice Licensee on the Delivery Date. Invoices are due and payable within thirty (30) days from the date of invoice. For all amounts outstanding more than 30 days, Licensee agrees to pay to Ektron a finance charge of 1.5% per month.

3.1.3   Licensee must notify Ektron in writing of any dispute or disagreement with invoiced charges within fifteen (15) days after the date of invoice. Absent such notice, Licensee shall be deemed to have agreed to the charges as invoiced upon expiration of such time period.

3.1.4   All fees and charges are exclusive of applicable excise, sales, use, value added, property, GST or similar taxes and fees, customs, duties and tariffs, as well as any penalties or fines imposed on the foregoing, and all of the foregoing shall be paid by the Licensee (or at the option of Ektron, Ektron may include in its invoices the taxes for which the Licensee is liable, with the exception of GST). If Licensee is an entity in Australia, Licensee herby agrees that the GST will be paid directly to the Australian Tax Office by the Licensee in accordance with the requirements of such office.

 

4. Delivery

 

4.1    As soon as commercially practicable after the execution of the Order Form, Ektron shall deliver the Software to Licensee’s contact listed therein via email delivery. On the date that Ektron makes the Licensed Software available to Licensee via email delivery to Licensee’s contact, delivery of the Licensed Software shall be deemed complete.

 

5. Rights, Restrictions, and Resposibilities

 

5.1    Licensee acknowledges and agrees that it shall be responsible for all acts or omissions of Authorized Users. Any act or omission by an Authorized User which, if undertaken by the Licensee, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Licensee. Licensee shall undertake reasonable efforts to make all Authorized Users aware of the provisions of this Agreement as applicable to such Authorized User’s use of the Licensed Software, and shall cause Authorized Users to comply with such provisions.

5.2    Licensee will not use the Licensed Software or Documentation for any purpose beyond the scope of the license granted herein. Such prohibited uses include, but are not limited to (i) authorizing or permitting use of the Licensed Software or Documentation by persons or entities other than Authorized Users; (ii) using the Licensed Software except as set forth within the Documentation; (iii) using any “add-on” products without appropriate licensing or purchase; (iv) marketing or distributing the Licensed Software or the Documentation; (v) assigning, sublicensing, selling, leasing or otherwise transferring or conveying, or encumbering Licensee’s rights under the license granted herein; (vi) modifying or creating any derivative works of the Licensed Software, Documentation, or any component thereof; (vii) decompiling, disassembling, reverse engineering or otherwise attempting to obtain or perceive the source code from which any component of the Licensed Software is compiled or interpreted. Licensee acknowledges that nothing in this Agreement shall be construed to grant Licensee any right to obtain or use such source code.

5.3    Ektron will have the right, at its own expense, upon reasonable prior notice, to periodically inspect and audit Licensee’s use of the Licensed Software and Documentation for purposes of determining Licensee’s compliance with the terms and conditions herein. Licensee agrees to cooperate with Ektron in the performance of any such audit, and shall provide to Ektron such access to Licensee’s relevant records, data, information, personnel and/or facilities as Ektron may reasonably request for such limited purposes.

5.4    Use of the Licensed Software and Documentation by Licensee shall comply with all applicable laws, statutes, regulations, ordinances or other rules. Additionally, Licensee acknowledges that Ektron makes no representation or warranty that the Licensed Software may be exported without appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.

 

6. License Keys

 

6.1    Licensee expressly acknowledges that the Licensed Software contains mechanical license keys which enable Licensee to initiate use of the Licensed Software. Such key(s) may be specific to particular hardware or equipment and will be provided to Licensee solely in accordance with Ektron’s then-current policies regarding the issuance of license keys. When Licensee requests a change in keys (for example, due to changes in such hardware or equipment, server ID, domain name, etc.), Licensee shall destroy any keys being replaced within 60 days of receipt of the new license keys from Ektron.

 

7. Term and Termination

 

7.1    This Agreement shall commence on the Effective Date and shall continue so long as Licensee complies with the terms of this Agreement and uses the Licensed Software in compliance with this Agreement.

7.2    In the event of a material breach of any of the terms of this Agreement, the non-breaching party shall have the right to terminate this Agreement upon thirty (30) days prior written notice specifying the breach to the other, provided that such breach has not been cured within said thirty (30) day period. In the event of non-payment by Licensee, Ektron may terminate this Agreement immediately upon written notice if Licensee fails to pay outstanding invoices within ten (10) days of receiving written notice of such non-payment. 

7.3    In the event of termination of this Agreement by Ektron for Licensee’s material breach, Licensee shall, upon the effective date of such termination, cease using the Licensed Software and, at Ektron’s discretion, immediately return to Ektron or destroy the Licensed Software and Documentation, and all copies thereof. In the event of destruction, Licensee shall provide Ektron with an affidavit of destruction in a form acceptable to Ektron certifying that it has destroyed all copies of the Licensed Software and Documentation. Where Licensee terminates Maintenance Services only, the License to the Licensed Software continues in full force and effect and Licensee is not required to return or destroy the Licensed Software and Documentation.

7.4    Either party may terminate this Agreement immediately upon written notice after the other party has executed an assignment for the benefit of creditors or filed for relief under any applicable bankruptcy, reorganization, moratorium, or similar debtor relief laws, or in the event that a receiver has been appointed for the other party or any of its assets or properties, or an involuntary petition in bankruptcy has been filed against such other party, which proceeding or petition has not been dismissed, vacated, or stayed within thirty (30) days.

 

8. Ownership and Proprietary Rights

 

8.1    Ektron retains all right, title and interest in and to the Licensed Software, the Documentation and associated intellectual property rights. Licensee acknowledges that it neither owns nor acquires any rights in any of the foregoing not expressly granted by this Agreement.

 

9. Warranty

 

9.1    Ektron warrants, for the benefit of Licensee only, that the Licensed Software will perform in all material respects in accordance with the description in the Documentation for a period of three (3) months from the Delivery Date. Ektron does not warrant the use of the Licensed Software will be uninterrupted or error free, nor that program errors will be corrected. This warranty shall not apply to any error or failure resulting from (i) machine error, (ii) Licensee's failure to follow operating instructions, (iii) negligence or accident, or (iv) modifications to the Licensed Software by any person or entity other than Ektron. In the event of a breach of warranty, Ektron will use commercially reasonable efforts to repair all or any relevant portion of the Licensed Software. If such remedy fails of its essential purpose, Ektron will refund the paid license fees for the Licensed Software only. This warranty is valid solely if Ektron receives written notice of breach of warranty no later than thirty (30) days after the warranty period expires. The remedies set forth in this Section are Licensee’s sole and exclusive remedies, and Ektron’s sole and exclusive obligations, in the event of a breach of any warranty hereunder.

 

10. Limitations of Warranties

 

10.1  EXCEPT AS SET FORTH IN THE AFOREMENTIONED SECTION, THE LICENSED SOFTWARE, DOCUMENTATION AND MAINTENANCE SERVICES ARE SOLD “AS IS” AND WITHOUT ANY WARRANTIES AS TO THE PERFORMANCE, NONINFRINGEMENT, MERCHANTIBILITY, DESIGN, OR OPERATION OF THE LICENSED SOFTWARE. NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE IS OFFERED. EKTRON DOES NOT REPRESENT THAT THE LICENSED SOFTWARE OR MAINTENANCE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET LICENSEE’S REQUIREMENTS. EXCEPT AS DESCRIBED IN THE AFOREMENTIONED SECTION, ALL WARRANTIES, EXPRESS AND IMPLIED, ARE HEREBY DISCLAIMED.

 

11. Limitation of Liability

 

11.1  NEITHER EKTRON OR ITS SUPPLIERS SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER OR ARISING OUT OF, OR IN ANY WAY RELATED TO THIS AGREEMENT, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE, AND INCLUDING ANY LOSS OF PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OF DATA OR USE OF DATA, INTERRUPTION OF BUSINESS, EVEN IF EKTRON OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. THE CUMULATIVE LIABILITY OF EKTRON TO LICENSEE FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES THEN PAID TO EKTRON BY LICENSEE UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURANCE OF THE CAUSE OF ACTION. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

 

12. Maintenance Services

 

12.1  Ektron shall provide Maintenance Services as specified within Ektron’s Order Form. At the Licensee’s discretion, Maintenance Services may be renewed for an additional twelve (12) months, at the initial fee, plus a five percent (5%) increase. In an event where Licensee opts to not renew their Maintenance, Licensee will lose the rights to the services provided by Maintenance; specifically standard technical support, and the right to receive Updates and Upgrades. Reinstatement of Maintenance Services shall be subject to applicable reinstatement fees.

12.2  Licensee shall notify Ektron of changes to contact information for Maintenance Services renewals. Ektron shall send renewal notices via email approximately 45 days in advance of expiration.

 

13. Assignment

 

13.1  Ektron shall be entitled to assign this Agreement in whole or in part, and its rights and obligations hereunder, without advance notice and without cost, to any current and future parent, subsidiary or affiliate of such assigning party and to a business entity in connection with a merger, or sale or contribution of some or all of its assets. Written confirmation notice of any assignment will be given by Ektron to Licensee as soon as commercially reasonable. Otherwise, all rights and obligations are not assignable without prior written consent of the Licensee, which consent shall not be unreasonably withheld.

 

14. Dispute Resolutions

 

14.1  In the event of any dispute or disagreement between the Parties hereto either with respect to this Agreement or the subject matter thereof, each party will appoint a neutral representative whose task it will be to meet for the purpose of endeavoring to resolve such dispute or to negotiate for an adjustment to such provision. No formal proceedings for the resolution of such dispute may commence until either representative concludes in good faith that an amicable resolution through continued negotiations of the matter in the issue does not appear likely. Pending resolution of any such dispute by settlement or final judgment (including disputes not yet in litigation), this Agreement shall remain in full force and effect.

14.2  Notwithstanding the foregoing, either party may seek preliminary restraining orders, preliminary injunctions or other equitable relief from a court of competent jurisdiction pending the completion of the procedure set forth herein.

This Section will survive the expiration or termination of this Agreement.

 

15. Choice of Law and Venue

 

15.1  Except as otherwise set forth in Section 15.2 and 15.3 below, this Agreement and its performance and all claims arising from the relationship between the parties contemplated herein shall be governed by, construed and enforced in accordance with the laws of the State of New Hampshire without regard to conflict of laws principles thereof. The parties agree that any action brought in connection with this Agreement shall be maintained only in a court of competent subject matter jurisdiction located in the State of New Hampshire or in any court to which appeal there from may be taken. The parties hereby consent to the exclusive personal jurisdiction of such courts in the State of New Hampshire for all such purposes. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from governing this License.

15.2  If Licensee is taking delivery of and installing the Software in any country in the European Union, this Agreement and its performance and all claims arising from the relationship between the parties contemplated herein shall be governed by, construed and enforced in accordance with the laws of the England without regard to conflict of laws principles thereof. The parties agree that any action brought in connection with this Agreement shall be maintained only in a court of competent subject matter jurisdiction located in England. The parties hereby consent to the exclusive personal jurisdiction of such courts in England for all such purposes. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from governing this License.

15.3  If Licensee is taking delivery of and installing the Software in any country in Australia, this Agreement and its performance and all claims arising from the relationship between the parties contemplated herein shall be governed by, construed and enforced in accordance with the laws of the New South Wales without regard to conflict of laws principles thereof. The parties agree that any action brought in connection with this Agreement shall be maintained only in a court of competent subject matter jurisdiction located in New South Wales or in any court to which appeal there from may be taken. The parties hereby consent to the exclusive personal jurisdiction of such courts in New South Wales for all such purposes. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from governing this License.

 

16. Severability

 

16.1  If any provision of this License is to be held unenforceable, such holding will not affect the validity of the other provisions hereof.

 

17. Statute of Limitation and Attorney Fees

 

17.1  No action arising from or related to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued, except that an action for non-payment may be brought within two (2) years after the date such amount was due. To the extent that Ektron must commence or defend litigation arising out of or related to this Agreement, including but not limited to litigation to collect any amounts owed hereunder, Licensee agrees that it shall pay Ektron’s associated costs and fees, including legal fees, if and to the extent that Ektron prevails.

 

18. Waiver; Severability

 

18.1  Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein.  The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.

 

19. Modification; Entire Agreement

 

19.1  This Agreement, including any Order Form, contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto and is binding upon the parties and their permitted successors and assigns.

19.2  Ektron may amend this Agreement at any time by posting an updated version of this Agreement on this site and notifying its customer base in a manner in which Ektron generally delivers important notices and announcements regarding the Licensed Software to its customers.

19.3  Except as otherwise provided herein, only a written instrument that refers to this Agreement or the Order Form, and is duly signed by the authorized representatives of both parties may amend this Agreement or such Order Form. The terms and conditions contained in any purchase order issued by Licensee shall be of no force or effect, even if the order is accepted by Ektron.

19.4  In the event of a conflict in terms among the Agreement and an Order Form, the Agreement shall control unless the Order Form expressly states the provision that it wishes to amend. This Agreement shall apply to all Software and Maintenance Services ordered by Licensee or delivered to Licensee by Ektron.

 

20. Headings

 

20.1  The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.

 

21. Notices

 

21.1  Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service, in each case addressed to the receiving party at its address set forth on an Order Form. Either party may change its address by giving written notice of such change to the other party.

 

22. Use of Name

 

22.1  Licensee agrees that Ektron may (i) use Licensee’s name in Ektron’s customer list and, (ii) upon approval by Licensee, issue a press release generally describing the party’s relationship under this Agreement.

 

23. Relationship of the Parties

 

23.1  Ektron and Licensee are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever.

23.2  Neither party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other party's name or on its behalf.

 

24. Force Majeure

 

24.1  Except for the obligation to make payments, nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.

 

[End of Perpetual Software License Agreement]