End User License Agreement
SOFTWARE SYSTEM INFRASTRUCTURE, LLC
END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (“Agreement”) by and between SSI and Licensee is made and entered into effective as of the Effective Date. By using the Software or Documentation, or otherwise assenting to this Agreement, Licensee agrees to and is bound by this Agreement. If Licensee does not agree to all terms and provisions of this Agreement, do not use the Software or Documentation.
SSI may modify the terms of this Agreement from time to time and any such modifications shall be effective immediately upon posting of the modified version. SSI will use commercially reasonable efforts to provide adequate notice of any such modifications. If you continue to access and/or use the Software or Documentation Licensee accepts such modified terms. If Licensee does not agree to such modified terms, do not continue to access and/or use the Software or Documentation.
1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
1.1 “Competitor” means an individual or entity that, directly or indirectly, as an employee, independent contractor, officer, manager, director, governor, owner, principal, partner, shareholder, member, agent, consultant or joint venturer calls upon, attempts to call upon, diverts, takes away, solicits, attempts to solicit, provides or contracts with individuals or entities with respect to services or software that are substantially similar to the Software.
1.2 “Competitive Use” means benchmarking, monitoring or testing availability or performance, or any other competitive use, including, but not limited to, creating services or software that are substantially similar to the Software
1.3 “Confidential Information” means any and all information or data which is disclosed or otherwise made available by SSI to Licensee in any tangible or oral form, including, but not limited to, development and/or financial plans, ideas, concepts, drawings, designs, discoveries, improvements, specifications, formulas, trade secrets, prototypes, processes, notes, memoranda and reports concerning SSI’s past, present or future research, technology, know-how, computer programs, products, sales and marketing plans, financial statements and business plans, product plans and/or costs, deliverables, the Software, Documentation and any other information, oral or written, that is designated as confidential or proprietary or should reasonably be considered confidential or proprietary.
1.4 “Disabling Code” means computer code designed to interfere with the normal operation of the Software or a third party’s hardware or software, or any program routine, device or other undisclosed feature, including, but not limited to, a time bomb, virus, software lock, drop-dead device, malicious logic, worm, Trojan horse, or trap door which is designed to delete, disable, deactivate, interfere with or otherwise harm the Software or a third party’s hardware or software.
1.5 “Documentation” means the electronic or physical technical documentation, manuals and user guides made available by SSI pursuant to this Agreement that describe the structure and functionality of the Software, as updated from time to time. Documentation shall not include demos, marketing materials, proposals or similar content.
1.6 “Effective Date” means the date of Licensee’s acceptance of this Agreement.
1.7 “Licensee” means the individual or entity specified in the administrative interface of SSI’s online store as the licensee of the Software and Documentation.
1.8 “Permitted Derivative Works” means Licensee’s modification of the Software or other creation of derivative works based on the Software, provided such Permitted Derivative Works must provide prominent attribution to SSI in the source code of such Permitted Derivative Works.
1.9 “Software” means the Software Systems Infrastructure, LLC – Software Development Kit. Software shall include any new releases, updates, upgrades and modifications (collectively “Upgrades”) which SSI makes available to Licensee under the terms of this Agreement.
1.10 “SSI” means Software System Infrastructure, LLC, a Minnesota limited liability company, its successors and assigns.
1.11 “Use“ means to (i) download and/or install the Software, (ii) access, run or execute any component of the Software, and (iii) create Permitted Derivative Works of the Software.
2.1 License Grant. Subject to the terms and conditions of this Agreement and the payment of all applicable license fees, SSI hereby grants Licensee a perpetual (but subject to termination as provided in Section 4 below), limited, non-exclusive, non-transferable license: (i) to Use the Software solely for Licensee’s internal business purposes; and (ii) to use the Documentation in conformity with the Use of the Software.
2.2 License Restrictions. Except as expressly permitted in this Agreement, Licensee shall not, and shall not assist any third party to, (i) sublicense, rent, lease, use, permit use of, modify, create derivatives of or make available any part of the Software or Documentation; (ii) decompile, reverse engineer or otherwise attempt to discover any underlying code which is part of the Software; (iii) use the Software other than in accordance with this Agreement and Documentation; (iv) export any part of the Software or Documentation outside of the United States without SSI’s prior written consent and in accordance with applicable law; (v) have any right to receive a copy of the Software’s source code; (vi) use the Software to create or transmit any Disabling Code or any data, content or materials of any type that are illegal, threatening, obscene, defamatory, harmful, invasive to privacy or similar rights of SSI or a third party or that infringe or violate any rights of any party, including, but not limited to, any patent, copyright, trademark, trade secret or any proprietary or other right of SSI or a third party; and/or (vii) copy (but not alter) the Documentation other than as necessary for Software System Infrastructure, LLC – End User License Agreement Licensee’s permitted Use of the Software, provided that Licensee shall reproduce and include any proprietary rights notices or symbols appearing on or in the Documentation on all copies.
2.3 Accessibility. Licensee shall be solely responsible for providing, maintaining and ensuring compatibility with all hardware, software, electrical or other physical requirements for use of the Software, including, without limitation, telecommunications and internet service provider access, connections, links, operating systems, web browsers or other equipment, programs and services required to use the Software.
2.4 Support and Maintenance. Licensee acknowledges and agrees that SSI is not obligated to provide any support or maintenance for the Software. SSI may from time to time, in its sole discretion, provide Upgrades to the Software.
2.5.1 Fees. Licensee shall pay all fees for the Software and Documentation as specified in the administrative interface of SSI’s online store (“Fees”). All Fees paid are nonrefundable. The terms and conditions of this Agreement shall control all payment terms, notwithstanding any conflicting terms stated on any other document supplied by Licensee.
2.5.2 Taxes. All Fees are exclusive of sales and other taxes and Licensee is solely responsible for payment of (or reimbursement for) any applicable federal, state, local and city taxes, except for any taxes based on SSI’s net income.
3. Ownership and Restrictions.
3.1 Ownership. Licensee acknowledges and agrees that as between Licensee and SSI, SSI is and shall remain the exclusive owner of the Software, the Documentation, the Confidential Information and all patent, copyright, trade secret, trademark and other intellectual property rights therein. SSI has two patents pending covering technology within the Software. SSI hereby grants Licensee a royaltyfree, non-exclusive, non-transferable license to the pending patents for the term of such patents (but subject to termination as provided in Section 4 below) and solely as necessary for Licensee’s permitted Use of the Software. Except as expressly recited herein, no rights or obligations are to be implied from this Agreement and no license is hereby granted, directly or indirectly, under any patent, trade secret, copyright or other intellectual property right now held by, which may be obtained by or which are or may be licensable by SSI. SSI expressly reserves all rights not expressly set forth in this Agreement. SSI acknowledges and agrees that as between SSI and Licensee and subject to SSI’s ownership rights in any underlying SSI intellectual property rights and Confidential Information, Licensee is and shall remain the exclusive owner of Permitted Derivative Works and all patent, copyright, trade secret, trademark and other intellectual property rights therein. Licensee is solely responsible for the accuracy, integrity and reliability of Permitted Derivative Works.
3.2 Proprietary Materials. Licensee acknowledges that the Software and the Documentation are proprietary to SSI and are protected by intellectual property and other laws. Licensee agrees not to change or delete any copyright or proprietary notices contained on or provided through the Software, the Documentation or Third Party Products.
3.3 Licensee License Grant. Licensee hereby grants to SSI a royalty-free, perpetual, irrevocable, world-wide, non-exclusive, transferable, sublicensable (through multiple tiers) license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display, including digitally or electronically, (i) all Permitted Derivative Works, and (ii) any business information, ideas, concepts or inventions submitted by Licensee to SSI, including, in each case, all intellectual property rights therein. Licensee shall promptly disclose all Permitted Derivative Works to SSI upon SSI’s written request.
4. Term and Termination.
4.1 Term. This Agreement will commence upon the Effective Date and shall remain in effect until terminated in accordance with the terms of this Agreement (the “Term”).
4.2 Termination for Material Breach. SSI may terminate this Agreement for cause if the Licensee breaches a material term or condition of this Agreement and fails to cure such breach within ten (10) days of receipt of written notice of the breach. Further, SSI may terminate this Agreement for cause immediately upon written notice of termination, if (i) Licensee makes an assignment of all or part of its assets for the benefit of creditors, or becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors (collectively “Petitions”), if such Petitions are not dismissed within sixty (60) days of filing, or (ii) Licensee fails to inform SSI of a Petition in writing within five (5) business days of the filing of the Petition. A material breach of this Agreement shall include, but not be limited to, Licensee’s breach of Sections 2.1, 2.2, 2.5, 3.3, 5, 6.1, 7.1, 9, 12 and 24.
4.3 Effect of Termination. Licensee shall pay for all Fees incurred and/or accrued up to and including the effective date of termination of this Agreement. Upon termination of this Agreement, (i) Licensee’s license rights under this Agreement to the Software and Documentation shall immediately terminate, (ii) Licensee shall certify to SSI within ten (10) days following the effective date of such termination that Licensee has destroyed or has returned the Software, the Documentation, and all copies thereof, and (iii) Licensee shall return to SSI all documents and other tangible manifestations in whatever form of the Confidential Information (as defined below) and all copies and reproductions thereof, or, if SSI so requests, immediately destroy any such Confidential Information (and all copies and reproductions thereof), and certify such return and/or destruction to SSI.
5. Representations and Warranties. Licensee represents and warrants that (i) this Agreement constitutes the legal, valid and binding obligation of Licensee enforceable against Licensee in accordance with its terms, subject to the principles of equity, bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally; (ii) Licensee has all requisite authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by Licensee; and (iii) Licensee is not a Competitor and shall not attempt to engage in or engage in, or assist a third party to attempt to engage in or engage in, any Competitive Use of the Software or the Documentation.
6. Confidential Information.
6.1 Confidentiality Obligation. Licensee shall keep all Confidential Information confidential and shall not use or disclose Confidential Information except as permitted under this Agreement or as otherwise necessary to exercise its rights and fulfill its obligations under this Agreement. Licensee shall inform all of its employees, contractors and consultants with a need to know Confidential Information of their obligations under this Agreement and such contractors and consultants must agree in writing to be bound by confidentiality obligations as least as restrictive as those set forth in this Agreement, either by means of an agreement directly with SSI or pursuant to an agreement with Licensee. Licensee shall use the same degree of care it uses to protect its own proprietary information (but in no event less than a reasonable degree of care) to prevent the unauthorized use or disclosure of Confidential Information. Except as otherwise expressly provided, Licensee may not “reverse engineer,” make derivatives or adaptations, duplicate or copy in any fashion any of the Confidential Information, in whole or in part, without the prior written consent of SSI. Licensee shall immediately notify SSI of any use or disclosure of Confidential Information not permitted by this Agreement of which it becomes aware.
6.2 Exceptions. Licensee shall have no obligation to preserve the confidentiality of any information which (i) was previously known to Licensee free of any confidentiality obligation and not through an unauthorized disclosure; (ii) becomes publicly available by any means other than unauthorized disclosure; or (iii) is independently developed by Licensee without reliance on any of the Confidential Information. Licensee shall bear the burden of proof for relying on any of the foregoing exceptions of which it becomes aware. Notwithstanding anything to the contrary, in the event that Licensee is legally compelled to disclose any of the Confidential Information pursuant to a subpoena, order, process or other requirement of a judicial or other governmental agency, Licensee may disclose such Confidential Information provided that Licensee (i) notifies SSI as soon as practicable prior to making such legally compelled disclosure, (ii) provides any reasonably requested assistance to SSI in obtaining a protective order, and (iii) only discloses that portion of the Confidential Information that, in the opinion of Licensee’s legal counsel, it is legally compelled or otherwise required to disclose.
6.3 Enforcement. It is recognized that damages in the event of a breach or threatened breach of the covenants set forth in this Section 6 will be difficult, if not impossible, to ascertain. It is therefore agreed that SSI, in addition to, and without limiting, any other remedy or right that it might have, shall have the right to an injunction against Licensee issued by a court of competent jurisdiction, enjoining Licensee from violating the provisions of this Section 6. Licensee hereby consents to the issuance of any preliminary or permanent injunction without bond.
7. Indemnification and Assumption of Risk.
7.1 Indemnification. To the fullest extent permitted by law, Licensee shall indemnify, defend and hold SSI, its employees, members, managers, governors, suppliers, agents, contractors, suppliers, affiliates, representatives, successors and assigns harmless from and against any liability, loss, claim, action, demand and/or expense (including, but not limited to, reasonable attorneys’ fees) (collectively “Claims”) arising out of or related to (i) Licensee’s breach of the terms of this Agreement, and/or (ii) claims that any Permitted Derivative Works, or Licensee’s or its supplier’s other hardware, software or products (or the provision of the Software in connection therewith) violate or in any way infringe on any patent, copyright, trademark, trade secret or any proprietary or other right of a third party, including, but not limited to, any third party agreement binding Licensee or such hardware, software, content or products. SSI shall (a) notify Licensee of any Claim(s) of which it becomes aware, (ii) permit Licensee sole control to defend, compromise or settle Claim(s), provided Licensee may not settle any Claim(s) without the consent of SSI where the settlement involves a remedy other than the payment of money, and (iii) provide reasonable information, assistance and authority at Licensee’s expense to enable Licensee to defend Claim(s). Licensee may otherwise participate in the defense or settlement of any Claim(s) at its own expense.
7.2 Assumption of Risk. Licensee understands the risks associated with the access to and use of the Software and Documentation. Licensee acknowledges that Licensee is using the Software and Documentation at Licensee’s own risk and Licensee is personally responsible for verifying their suitability for Licensee’s needs.
8. Disclaimer and Limitation of Liability.
8.1 Disclaimer. THE SOFTWARE, DOCUMENTATION AND ANY INFORMATION RELATED TO OR PROVIDED THROUGH THE SOFTWARE OR DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SSI DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT) WITH REGARD TO THE SOFTWARE OR DOCUMENTATION, OR WITH RESPECT TO ANY INFORMATION RELATED TO OR PROVIDED THROUGH THE SOFTWARE OR THE DOCUMENTATION. SSI DOES NOT WARRANT THAT THE SOFTWARE OR THE DOCUMENTATION WILL BE SECURE OR ERROR-FREE. LICENSEE AGREES THAT THE ENTIRE RISK ARISING OUT OF LICENSEE’S USE OF THE SOFTWARE AND THE DOCUMENTATION REMAINS SOLELY WITH LICENSEE, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
8.2 Limitation of Liability. EXCEPT WITH RESPECT TO SSI’S GROSS NEGLIGENCE OR WILLFULL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SSI OR ITS AFFILIATES, EMPLOYEES, MEMBERS, MANAGERS, GOVERNORS, AGENTS, CONTRACTORS, SUPPLIERS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS BE LIABLE UNDER ANY LEGAL THEORY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RESULTING FROM THIS AGREEMENT, THE SOFTWARE OR DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTEREST OR INTERRUPTION OF BUSINESS, WHETHER BASED UPON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, DUTY TO WARN AND STRICT LIABILITY), WARRANTY OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF SSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SUBJECT TO THE LIMITATIONS CONTAINED IN THIS AGREEMENT, EXCEPT WITH RESPECT TO SSI’S GROSS NEGLIGENCE OR WILLFULL MISCONDUCT, SSI AND ITS AFFILIATES, EMPLOYEES, MEMBERS, MANAGERS, GOVERNORS, AGENTS, CONTRACTORS, SUPPLIERS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS SHALL ONLY BE LIABLE TO THE EXTENT OF ACTUAL, DIRECT DAMAGES INCURRED BY LICENSEE, NOT TO EXCEED THE FEES PAID BY LICENSEE TO SSI UNDER THIS AGREEMENT IN THE THREE (3) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES. THE EXISTENCE OF MULTIPLE CLAIMS SHALL NOT INCREASE THIS LIMIT.
8.3 Acknowledgement. LICENSEE HEREBY ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT AND THE SOFTWARE AND DOCUMENTATION WOULD NOT BE PROVIDED TO LICENSEE ABSENT SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OF CERTAIN LIABILITIES, SO THE ABOVE MAY NOT APPLY TO LICENSEE.
9.Information and Audits. Upon SSI’s prior written request, Licensee shall promptly provide SSI and/or its agents with remote and/or physical access during normal business hours to Licensee facilities and any other location reasonably related to Licensee’s use of the Software or Documentation, along with all records, documents, policies and procedures relating to the Software and Documentation, for purposes of enabling SSI and/or its agents to determine compliance with the terms of this Agreement. Licensee hereby consents to and will not prohibit the installation of any monitoring or auditing tools on Licensee’s hardware and software to verify such compliance. If Licensee learns that Licensee is not in compliance with this Agreement, then Licensee shall promptly pay to SSI the then current list price for any coverage from the date of such overage, plus a ten percent (10%) surcharge, and the reasonable costs of conducting the foregoing determination and any subsequent determinations for the purpose of verifying the resolution of such issues.
10. Relationship. Nothing in this Agreement shall be construed to make the parties partners, joint venturers, representatives or agents of each other, nor shall either party so represent to any third person. No employer-employee relationship is intended to be created by this Agreement. Licensee acknowledges and agrees that it is responsible for all acts and omissions of its employees, contractors and agents. All acts and omissions of Licensee’s employees, contractors and agents shall be deemed Licensee’s acts and omissions.
11. Credit Card Payments. If Licensee elects to pay any Fees by credit card payment, and such method of payment is approved by SSI, in its sole discretion, Licensee is responsible for providing a valid credit card number at the time Licensee registers to pay by credit card. Licensee represents and warrants that Licensee is an authorized user of the credit card number provided, and Licensee agrees to pay all charges resulting from Licensee’s use of a credit card, including, but not limited to, any unauthorized charges incurred prior to Licensee notifying SSI of such charges. Licensee agrees that SSI may pass Licensee’s credit card information and personally identifiable information to its designated service provider(s) for their use in processing credit card payments.
12. Compliance with Applicable Laws. Licensee agrees that Licensee will not use the Software and Documentation in violation of federal, state or local law or other applicable rules or regulations. If Licensee Uses the Software from outside the United States, Licensee does so at Licensee’s own risk and responsibility for compliance with laws of Licensee’s jurisdiction.
13. Governing Law and Disputes. This Agreement shall be governed by, construed and enforced according to the laws of the State of Minnesota, without regard to its conflict or choice of law principles. Any action arising out of or relating to this Agreement shall be brought only in the state or federal courts of Hennepin County, Minnesota, and all parties expressly consent to such court’s jurisdiction and irrevocably waive any objection with respect to the same, including any objection based on forum non conveniens.
14.Headings. Section and subsection headings are not to be considered part of this Agreement. They are included solely for convenience and not intended to be full or accurate descriptions of the content hereof.
15. Successors and Assigns. Licensee may not assign this Agreement, or any of its rights or obligations hereunder, without the prior written consent of SSI, and any attempted assignment without SSI’s prior written consent shall be null and void. For the avoidance of doubt, SSI may assign this Agreement, or any of its rights or obligations hereunder, in the event of a transfer of all or substantially all of SSI’s assets or SSI’s restructuring. SSI shall make reasonable efforts to provide Licensee written notice of such assignment. All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
16. Severability. Should any provision of this Agreement be held invalid or unenforceable, such invalidity will not invalidate the whole of this Agreement, but rather that invalid provision will be amended to achieve as nearly as possible the same effect as the original provision and the remainder of this Agreement will remain in full force and effect.
17. Parties in Interest. Nothing in this Agreement is intended to confer upon any person other than the parties hereto, and their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement, nor is anything in this Agreement intended to relieve or discharge the liability of any other party.
18. Force Majeure. Neither party shall be responsible for delays or failures of performance resulting from acts beyond the reasonable control of such party, except for payment obligations. Such acts shall include, but are not limited to, acts of God, strikes, public internet and private internet connection failures, lockouts, riots, acts of war, acts of terror, epidemics, government regulations superimposed after the Effective Date, fire, communication line failures, power failures, earthquakes and other disasters. In such an event, the delayed party shall give written notice to the other party and shall do everything reasonably possible to resume performance.
19. Survival. Any sections (or portions thereof) that either expressly by their terms, or in order to give full effect to their provisions must, survive the expiration or termination of this Agreement, shall so survive.
20. Waiver. Either party’s failure to insist upon strict enforcement of any provision(s) of this Agreement shall not be construed as a waiver of any provision or right. To be effective, any such waiver must be in writing and signed by the waiving party, and shall be effective only in the specific instance and for the specific purpose for which given.
21. Publicity. Unless otherwise requested by Licensee in writing, SSI may publicize Licensee’s selection to do business with SSI, including Licensee’s name and Licensee’s logos and/or marks. SSI acknowledges and agrees that any such use of Licensee’s name, logos and/or marks shall inure to the benefit of Licensee.
22. Entire Agreement. This Agreement (including the documents incorporated herein by reference) constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties with respect to the subject matter hereof. There are no warranties, representations or agreements among the parties with respect to the subject matter hereof, except as set forth or referred to herein.
23. Notices. Except as otherwise provided, notices under this Agreement shall be in writing and shall be deemed given when (i) delivered personally, (ii) three (3) business days after the date sent by certified mail, postage prepaid with return receipt requested, or (iii) upon written confirmation of delivery by recognized international carrier sent by overnight service, to the respective party as set forth below. A party may change its notice address upon five (5) days written notice to the other party.
To SSI: Software System Infrastructure, LLC
Attn: SSI Legal Notices
13570 Grove Drive #226
Maple Grove, MN 55311
To Licensee: As specified in the administrative interface of SSI’s online store as Licensee’s address.
24. Further Assurances. Licensee agrees to sign and deliver such other documents, instruments and agreements and to take such further action as is reasonably requested by SSI to consummate or to evidence the consummation of the transactions and license grants intended and otherwise contemplated herein, including, without limitation, Section 3.3.
Last Updated: August 19, 2015