WHEREAS, the Licensor develops, sells or leases certain software to be used in dry-cleaning retail operations and of other uses (“Arbelsoft Software” or the “Licensed Programs”);
WHEREAS, the Licensee desire to purchase, lease, or otherwise have use of Arbelsoft Software and the Licensor desire to sell, lease, or otherwise make available use of Arbelsoft Software to the Licensee;
NOW, THEREFORE, in consideration of mutual covenants hereinafter contained and other good and valuable considerations the receipt and legal sufficiency of which is hereby acknowledged, parties agree as set forth below.
1. Deemed Acceptance. The terms and conditions of the EULA shall be deemed accepted and agreed to by use of the EULA in the absence of signed agreement.
2. Grants of Nonexclusive License. (a) Grant of License. The Licensor grant to the Licensee nonexclusive license to access and use the Software developed and made available to the Licensee by the Licensor (the “License”). The License is limited to use of Arbelsoft Software only on the number of computer workstations at their specifically designated location(s) for which the Licensee pay ARBELSOFT's then current License fee. The terms herein shall apply to all License types and to all Licenses that the Licensee now have or may hereafter acquire from ARBELSOFT and shall apply to the Software and all updates and manuals thereto which the Licensee have or hereafter receive regardless of the medium used to deliver them to the Licensee. Except as otherwise expressly provided herein, the Licensor and its license are the sole and exclusive owners of the Software. All rights to the Arbelsoft Software not expressly granted to the Licensee are reserved by ARBELSOFT. The License is limited to ARBELSOFT's applicable copyrights and trademarks. The Licensee may not distribute, license, sell, lend, transfer or assign the License or Software to others in any manner or form nor permit others to directly or indirectly use the Software or any part of it without the express prior written consent of the Licensor. In particular, the Licensee may not, directly or indirectly, permit others to access or use the Software nor License through any type of hosting arrangement, whether or not such user owns a License with the Licensor. The Licensee may also not act as a reseller of the Software, whether Purchase or Service type, without express prior written permission from ARBELSOFT. In addition, the Software may only be used at the physical site registered with ARBELSOFT and may not be moved to a different site without ARBELSOFT's prior written consent. The Licensee may not remove, modify, or obscure any copyright, trademark or other proprietary rights or notices that are contained in or on the Software or any packaging of the Software.
(b) DELIVERY OF LICENSED PROGRAMS. The Licensor shall use its best efforts to deliver the Licensed Programs promptly after receipt of purchase order and export license (if required).
(c) MAINTENANCE & SUPPORT. The Licensor will provide to the Licensee the following support with respect to the Software: (i) If during the 1st year of this Agreement, the Licensee notifies the Licensor of a substantial program error respecting the Software, or the Licensor has reason to believe that error exists in the Software and so notifies the Licensee, the Licensor shall at its expense verify and attempt to remedy such error within thirty (30) working days after the date of notice. If the corrective action taken does not cure the problem reported, then the Licensee may terminate this Agreement, but without refund of any amount paid to the Licensor or release of any amounts due Licensor at the time of termination. (ii) In the event the Licensee has technical questions in the use of the Software during the 1st year of this Agreement, the Licensee may submit the questions to the Licensor. The Licensor shall provide consulting to answer such questions without charge to the Licensee up to a maximum of sixteen (16) hours for each licensed program. (iii) If the Licensee desire to continue the Software support specified in this section, the Licensee shall pay to the Licensor maintenance fee(s) set forth in the Customer Care Plans.
3. CONFIDENTIALITY. (a) The Licensee acknowledge that the Software is copyrighted and is the property of the Licensor and ARBELSOFT's licensor and that it contains valuable trade secrets and confidential information proprietary to the Licensor and its licensors. The Licensee agree to hold the Software in strict confidence, and not to disclose the contents of any Software to any third person. The Licensee agree not to directly or indirectly copy the Software, attempt or effectuate any modification, translation, decompiling, disassembling or reverse engineering any part of the Software.
(b) The Licensee recognize that the Arbelsoft Software and its support programs are proprietary information and confidential trade secrets of great value to the Licensor. The Licensee agrees not to provide or to otherwise make available in any form the Licensed Programs, or any portion thereof, to any person other than employees of the Licensee without express prior written consent of the Licensor. The Licensee further agrees to treat the Licensed Programs with at least the same degree of care with which the Licensee treats its own confidential information and in no event with less care than is reasonably required to protect the confidentiality of the Licensed Programs.
(c) The Licensee hereby acknowledges that Arbelsoft shall own all Intellectual Property Rights in the Service, including any software available through the Service, each Current Release and New Release, and all modifications, customizations and additions to the Service and any software available through it.Intellectual Property Rights means patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
4. TERM and TERMINATION. (a) This Agreement shall take effect upon execution by both parties and continue in effect for a term of one year. This Agreement shall automatically renew itself in successive terms of one year each until terminated as herein provided.
(b) If the Licensee participate via Web Hosting or Subscription, the Licensee must pay the applicable License fee until your License is terminated or expired. The Licensor may terminate such License as to some or all of Licensee's workstations at any time by a written notice to the Licensee, in which case such termination shall be effective as of the last day of the calendar month immediately following the month in which Licensor's written termination notice is received by the Licensee. At the Licensor's election, the Licensee's Web Hosting and Subscription shall also terminate upon failure to timely pay any amount owed to ARBELSOFT. Upon termination of Web Hosting or Subscription, the Licensee shall immediately cease the use of the Software and the Licensor may take all action it deems appropriate to prevent continued use of and/or access to the Software by the Licensee. If the Licensee Purchase a License, then the Licensee may continue to use the Software for each workstation for which the Licensee paid the Purchase Price and the Licensee will acquire updates or modifications to the Software only by paying for the Licensor's Customer Care program.
(c) The Licensor may terminate this Agreement if the Licensee is in default of any of the terms and conditions of this Agreement and fail to correct such default within ten (10) days after written notice thereof from the Licensor.
(d) The Licensor may terminate this Agreement if the Licensee is found to be using an unauthorized copy of the program.
5. LIMITED WARRANTY. The Licensor warrants that the Software will perform substantially in accordance with the latest version of written materials posted by the Licensor on its Web site. Defective Software will at the Licensor's option, be corrected, replaced or repurchased by the Licensor. For Purchased Licenses, this limited warranty shall expire and terminate one year after initial purchase of the License.
6. LICENSEE FEE. (a) The Licensee shall pay, upon delivery of the Licensed Programs, the license fees set forth in Exhibit A attached hereto and made a part hereof.
(b) License fees do not include any shipping, duties, bank fees, sales, use, excise or similar taxes due.
7. OWNERSHIP. The original and any copies of the Licensed Programs, made by Licensee, including translations, compilations, partial copies, modifications, and updates, are the property of the Licensor at all times.
8. WARRANTY DISCLAIMER. The Licensor licenses and the Licensee accepts, the Licensed Programs “AS IS.” Arbelsoft Inc PROVIDES NO WARRANTIES AS TO THE FUNCTION OR USE OF THE LICENSED PROGRAMS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED PROGRAM IS WITH LICENSEE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED PROGRAMS WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE.
9. LIMITATION OF LIABILITY. THE LICENSOR's LIABILITY TO THE LICENSEE UNDER ANY PROVISIONS OF THIS AGREEMENT FOR DAMAGES FINALLY AWARDED SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID HEREUNDER BY THE LICENSEE TO THE LICENSOR. IN NO EVENT SHALL THE LICENSOR BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY.
10. NOTICES. All notices in connection with this Agreement shall be in writing and may be given by certified, registered, or first class mail or personally delivered at the address set forth on the front page. For purposes of this Agreement, a notice shall be deemed effective upon personal delivery to the party or if by mail five days after proper deposit in a mail box.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective representatives, heirs, successors and assigns except as otherwise provided herein.
12. SEVERABILITY. In the event any provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in force as if such invalid or unenforceable provision were not a part.
13. GOVERNING LAW/FORUM. This Agreement shall be governed and interpreted by the laws of the State of New Jersey. Bergen County, New Jersey shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder. Both parties hereby consent to submit to such personal and exclusive jurisdiction.
14. NON-ASSIGNMENT. This Agreement and the licenses granted hereby may not be assigned, sublicensed, or otherwise transferred by the Licensee without the prior written consent of the Licensor in each instance.
15. EXPORT REGULATIONS. The Licensee understand that the Licensor is subject to regulation of the U.S. Government, including the U.S. Departments of Commerce and State of New Jersey, which prohibit export or diversion of certain technical products to certain foreign countries. The Licensee warrant and represent that it will comply in all respect with the export and re-export license requirements and restrictions set forth in the laws and regulations governing export license for the Licensed Programs. The Licensee agree to indemnify and hold the Licensor harmless from any loss, damages, liability or expenses incurred by the Licensor as a result of the Licensee’s failure to comply with any export regulations or restrictions.
16. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, and merges and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters. This Agreement shall take precedence over any additional or conflicting terms which may be contained in the purchase order or the Licensor's order acknowledgment form.