Terms & Conditions of End User License Agreement
These are the terms and conditions applicable to End User License Agreement between OpenMethods, Inc., a California corporation with offices in Los Angeles, CA 90046 (“OpenMethods”) and End Users for the software and products of OpenMethods that are identified on a Schedule to an End User License Agreement, on any additional Schedules entered into by the parties, or in purchase orders accepted by OpenMethods and its licensors during the term of an End User License Agreement, including all associated Documentation (“Products”). Products do not include any third party software.
1. GRANT OF LICENSE, SUPPORT SERVICES AND CONFIDENTIALITY.
1.1 License Grant. The license granted to End User is a nonexclusive, nontransferable license to install and use the Products for End User’s internal use.
1.2 License Conditions.
(a) Ownership. OpenMethods owns all rights, title and interest in and to the Products, the Derivative Works and the Confidential Information. OpenMethods’ rights include all intellectual property rights.
(b) Copying. End User may make a reasonable number of copies of each Product for back-up purposes. All copies of the Products, Documentation and Confidential Information must contain OpenMethods proprietary rights notices as prepared by OpenMethods from time to time.
(c) Application Service Provider. End User may not use the Products on an application service provider, in connection with a service bureau or for the benefit of any third party.
(d) Restrictions. End User shall not itself, or through any parent, subsidiary, affiliate, agent or other third party: (i) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any Products or the Documentation to a third party; (ii) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Products, in whole or in part, (iii) use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Products or encourage others to do so (iv) allow access or permit use of the Products by any users other than Authorized Users; (vi) create, develop, license, install, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Products, any additional licensing terms provided by OpenMethods via Documentation, notification, and/or the terms of an End User License Agreement ; (vi) modify or create derivative works based upon the Products; or (vii) disclose the results of any benchmark test of the Products to any third party without OpenMethods’ prior written approval.
1.3 Confidentiality. Each party to an End User License Agreement acquires only the right to use the other party's Confidential Information under the End User License Agreement and these Terms and Conditions, and does not acquire any rights of ownership or title in the other party's Confidential Information. Confidential Information does not include any information that is (i) or becomes available to the general public due to no fault of recipient; (ii) in recipient's possession prior to the disclosure; or (iii) disclosed to Recipient by a third party who is under no obligation to hold that information in confidence; or (iv) is independently developed by the Recipient. Each party will hold in confidence any Confidential Information received by it from the other and will protect the confidentiality of such with the same degree of care that it exercises with respect to its own information of like import, but in no event less than reasonable care, for a period of three years after termination of an End User License Agreement ; provided, however, that to the extent either party has disclosed information to the other that constitutes a trade secret under law, the Recipient agrees to protect such trade secrets for so long as the information qualifies as a trade secret under applicable law. The Confidential Information will be used only by the Recipient in the course of its business relationship with the Discloser. Recipient agrees: (a) not to copy, duplicate, disclose or deliver all or any portion of the Confidential Information to third parties without the express written consent of the discloser and (b) to return it to the other party upon request. Each party will only disclose Confidential Information to its employees and consultants having a need to know for the purposes of an End User License Agreement. Recipient is liable for all acts and omissions of its employees and consultants that such act or omission would be a breach of an End User License Agreement if it had been done by recipient. Each party will notify and inform such employees of each party's limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information and will obtain or have obtained its employees' agreements to comply with such limitations, duties, and obligations. Each party agrees to give notice to the other party immediately after learning of or having reason to suspect a breach of any of the proprietary restrictions set forth in this Section. In the event that a party is required to disclose Confidential Information pursuant to law, that party will notify the other party of the required disclosure with sufficient time to seek relief, cooperate with the other party in taking appropriate protective measures, and will make such disclosure in the fashion which maximizes protection of the Confidential Information from further disclosure. Recipient will promptly return all of the other party’s Confidential Information (and any copies thereof) to the discloser immediately upon the request of the discloser or if requested, destroy all Confidential Information, and any copies thereof, and certify such destruction in writing within ten (10) days of such request and signed by an authorized representative. OpenMethods is free to use and incorporate into its products and services any general ideas, know-how, and or techniques that are inherently disclosed to OpenMethods by End User under an End User License Agreement. Nothing in an End User License Agreement will, or is intended to, limit OpenMethods’ ability to develop or enhance its products and services in any manner whatsoever, including use of residual knowledge, provided OpenMethods does not disclose or otherwise use or make available any of End User’s Confidential Information.
2. ACCEPTANCE AND DISCLAIMER.
2.1 Acceptance. All Products are accepted when the Products are initially made available for End User to use.
2.2 Disclaimer. OPENMETHODS EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, GUARANTEES, CONDITIONS AND UNDERTAKINGS WITH RESPECT TO THE PRODUCTS, SUPPORT SERVICES, AND DOCUMENTATION, THE CONFIDENTIAL INFORMATION AND THEIR PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3. LIMITATION OF LIABILITY. OpenMethods’ total aggregate liability for any cause of action arising under or in connection an End User License Agreement or otherwise (whether arising in tort, contract or otherwise) will be limited in an amount not to exceed the fees End User actually paid for the Product or service (or any part thereof) giving rise to the cause of action. Under no circumstances will either party be liable for any incidental, special, punitive, indirect, exemplary or consequential damages arising out of, or in connection with, an End User License Agreement or otherwise, including but not limited to, liability for lost profits, business interruption or loss of business, even if advised of the possibility thereof.
4. TERM AND TERMINATION.
4.1 Term. The license for a Product commences on the Effective Date shown on the applicable Order Schedule or SOW and continues for as long as the payment of Product licenses are current.
4.2 Termination. Either party may terminate an End User License Agreement and/or any license to a Product by giving written notice to the other, if the other party fails to remedy any breach of an End User License Agreement within 30 days after its receipt of notice of breach and intent to terminate. Either party may terminate an End User License Agreement immediately If the other party: (i) admits in writing its inability to pay its debts generally as they become due; (ii) makes a general assignment for the benefit of creditors; (iii) institutes proceedings to be adjudicated a voluntary bankrupt or consent to the filing of a petition of bankruptcy against it; (iv) is adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (v) seeks reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or (vi) has a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee or assignee in bankruptcy or insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs.
4.3 Effect of Termination. On termination of an End User License Agreement or any license to any Product for any reason, the following will occur:
(a) All rights granted to the affected Products, all related Documentation and Confidential Information will immediately terminate.
(b) Upon termination of an End User License Agreement, End User must either return the affected Products, and all related Documentation, Derivative Works and Confidential Information to OpenMethods or de-install and destroy the Products, all associated Documentation, Derivative Works and Confidential Information and certify such destruction in writing to the OpenMethods. Additionally, upon termination, each party will immediately return to the other party all Confidential Information in its possession, custody or control in whichever form held (including all copies or embodiments of the Confidential Information) and will cease using any trademarks, service marks and other designations of the other party.
(c) All rights and obligations granted under Sections 1.2, 1.3, 2.2, 3, 5 and 6 will survive termination of an End User License Agreement.
(d) OpenMethods will not be liable for damages, losses, costs or expenses of any kind due to the termination of an End User License Agreement, including those arising from the loss of prospective sales, any expenses incurred or investments made in connection with establishing, developing or maintaining either party's business.
(e) Except as provided in Section 5.3(d), termination will not affect any claim, liability or right of an End User or OpenMethods arising prior to the termination.
5.1 Acceptance. The terms and conditions set forth herein are deemed accepted when the Products are made available to an End User.
5.2 Restricted Rights Legend - U.S. Government. The Products acquired by the United States of America, its agencies and/or instrumentalities are and will be provided with RESTRICTED RIGHTS FOR SOFTWARE DEVELOPED AT PRIVATE EXPENSE. Use, duplication or disclosure by the U.S. government is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at 48 C.F.R. 252.227 or DFAR 52.227, as applicable.
5.3 Export. End User will not export the Products in violation of the export laws of the United States or of any other country.
5.4 Force Majeure. OpenMethods will not be liable for delay or failure in performing any of its obligations hereunder due to force majeure events such as natural disasters, floods, earthquakes, and other "acts of God," as well as uncontrollable events such as war and terrorist attacks.
5.5 Assignment. End User may not assign an End User License Agreement or otherwise transfer the use of any Products, whether by operation of law or otherwise, without the prior written consent of OpenMethods.
5.6 Independent Parties. Neither End User nor OpenMethods is a legal representative or agent of the other or is legally a partner of the other.
5.7 Entirety. In the event that a Schedule to an End User License Agreement is in conflict with the terms of an End User License Agreement, the Schedule will control. Delivery of an executed counterpart of an End User License Agreement by facsimile or any other reliable means shall be deemed to be as effective for all purposes as delivery of the manually executed counterpart. An End User License Agreement may not be amended except in writing and signed by an authorized representative of both parties. No waiver of rights by either party may be implied from any actions or failures to enforce rights under an End User License Agreement. Purchase orders will be for the sole purpose of defining quantities, prices and describing the Products and Services to be provided under an End User License Agreement, and to this extent only are incorporated as a part of an End User License Agreement and all other terms in purchase orders are rejected.
5.8 Severability. Each of the provisions of an End User License Agreement is severable from all of the other provisions. The invalidity or unenforceability of any provision will not affect or impair the remaining provisions, which will continue in full force and effect.
5.9 Governing Law / Jurisdiction. An End User License Agreement will be governed by the laws of California without regard for its choice of law provisions. Any dispute arising under an End User License Agreement must be brought exclusively in a court of competent jurisdiction located in Los Angeles, CA and each party irrevocably consents to such personal jurisdiction in such forum and waives all objections to this venue.
“Affiliate” means an entity that a party, directly or indirectly, controls, an entity that controls a party or an entity that is under common control with a party. For purposes of this provision, control means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity.
“Confidential Information” includes, subject to Section 1.3, all information furnished by either party to the other in oral, written or machine-readable form, or in any other medium, which (a) has value to the disclosing party because it is not generally known, and (b) the disclosing party uses reasonable efforts to protect.
“Derivative Work" means any work based on or incorporating all or any portion of a Product, including mechanical or electronic reproduction, translation, adaptation, change of media or other form, which would represent a violation of OpenMethods and its licensor’s copyright in the Product if done without OpenMethods and its licensor’s consent.
"Documentation" means the user manuals, implementation manuals and system administration manuals that accompany a Product, as well as Upgrades of such manuals, in electronic and/or paper formats.