This AGREEMENT governs the use of software by and between Point Software Inc., a Massachusetts corporation with its principal place of business in East Longmeadow, Massachusetts ("POINT") and you the Client (“CLIENT”) .
WHEREAS, POINT's primary business is to provide contract consulting and programming services including the design, manufacture and sale of software applications intended but for but not limited to Municipal government; and
WHEREAS, CLIENT, wishes to enter into a Software LICENSE AGREEMENT with POINT.
NOW, THEREFORE, POINT hereby agrees to grant and CLIENT agrees to accept a nonexclusive license USE the "SOFTWARE" upon the following terms and conditions:
a) The term "SOFTWARE" shall mean any software program developed by POINT that exists in machine readable form furnished by POINT to CLIENT such that CLIENT may operate the SOFTWARE.
b) "USE" grants term licensing to use SOFTWARE by AUTHORIZED USERS.
c) "AUTHORIZED USERS" means any employee of CLIENT given password access to the SOFTWARE by POINT. CLIENT specifically understands and agrees that POINT does not agree to provide password access to the SOFTWARE to any person or entity that might provide any form of competitive services to POINT and/or is not a direct employee of CLIENT.
The "SOFTWARE" LICENSE AGREEMENT granted under this Agreement authorizes CLIENT on a nonexclusive basis and subject to the terms and conditions of the Agreement, to USE the SOFTWARE licensed.
This "SOFTWARE" License is subject to the right of POINT to inspect the machine(s) to be used with the "SOFTWARE" and is subject to POINT's right to approve the machinery prior to delivery of the "SOFTWARE".
YOU MAY NOT USE, COPY, MODIFY, OR TRANSFER THE SOFTWARE, OR ANY COPY, MODIFICATION OF MERGED PORTION, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS LICENSE. IF YOU MAKE A USE BEYOND THE LICENSE GRANTED IN THIS SOFTWARE LICENSE AGREEMENT (INCLUDING PROVIDING, ALLOWING OR SUFFERING ACCESS TO THE SOFTWARE BY SOMEONE OTHER THAN AN AUTHORIZED USER), TRANSFER POSSESSION OF ANY COPY, MODIFICATION OR MERGED PORTION OF THE SOFTWARE TO ANOTHER PARTY YOUR LICENSE IS AUTOMATICALLY TERMINATED, UNLESS THE EXPRESS WRITTEN CONSENT OF POINT IS GRANTED.
3. DELIVERY AND PAYMENT OF SOFTWARE
Subject to the terms and conditions herein set forth, POINT hereby agrees to deliver one copy of the "SOFTWARE" to CLIENT. CLIENT shall pay for the "SOFTWARE" in accordance with Invoicing as presented to CLIENT.
Subject to funding, POINT hereby gives CLIENT the option for License Renewals which shall include Annual Licensing Renewal and Update Services (ALRUS). The term of such renewal will occur in either one (1) year or three
(3) year increments, commencing each July 01. The software shall have built automatic expirations for non renewed Licensing and CLIENT may not continue to use the SOFTWARE without renewing the USE of the SOFTWARE.
4. TERM AND TERMINATION
This "Software License Agreement" will continue in (1) year OR (3) year increments commencing each July 01, unless otherwise terminated according to item 4.(b) as stated below; or, upon conditions set forth in this Agreement.
CLIENT agrees upon such termination to destroy the "SOFTWARE" together with all copies and modifications in any form. The provisions of Item 4.(b) stated below, regarding destruction, inspection and certification upon termination of this Agreement shall apply in the event of termination regardless of cause.
SIXTY (60) DAYS prior to the expiration of this term, CLIENT may either:
a) Renew this Software License including Annual License Renewal and Update Services under the same terms and conditions except that POINT Reserves the right to modify the RATE SCHEDULE for such renewal; or
b) Terminate the Software License Agreement by sending written notice to POINT at any time prior to the expiration date. Within ten (10) days of the expiration of this term, CLIENT shall destroy the original and all copies of all modifications of the "SOFTWARE" and will certify to the best of its knowledge in writing to POINT.
CLIENT shall allow POINT upon five (5) days written notice to inspect for destruction of the "SOFTWARE". Termination shall not relieve either party of any obligation incurred prior thereto.
5. PROPRIETARY RIGHTS AND CONFIDENTIALITY
a) The parties agree that the "SOFTWARE" furnished by POINT to CLIENT hereunder has been developed by POINT as a trade secret at POINT's expense and is, and shall remain, the sole property of POINT. No right to print or copy, in whole or in part, the "SOFTWARE" is granted hereunder except as expressly provided.
b) CLIENT shall have the right to make a backup copy of the software and any data as maybe required for business purposes to assure availability for use by CLIENT.
c) CLIENT agrees not to (i) decompile, disassemble or reverse engineer the "SOFTWARE", (ii) use or disclose or divulge to others any data or information relating to the "SOFTWARE" and/or the technology, ideas, concepts, know-how, and techniques embodied therein or (iii) make any use of the SOFTWARE beyond the license granted by Section 2 of this SOFTWARE LICENSE AGREEMENT. Such obligation of confidentiality and nonuse shall not be deemed to include disclosure or other such use of such data or information to the extent that CLIENT can prove the data or information;
i) is or will become publicly known within the public domain (other than by acts attributable to CLIENT or any of its officers, agents, employees, or representatives
ii) was known to CLIENT prior to POINT's disclosure thereof (other than through the business
dealings of CLIENT and POINT or any other customer of POINT); or
iii) has been or hereafter is independently conceived by any officer, agent, employee, or representative of the customer, who had not had access to such information from POINT or any of its customers.
Information shall not be deemed to be in the public domain by reason of the general licensing and other commercial disposition of the "SOFTWARE" by POINT in the ordinary course of its business.
d) No articles contained in this Section 5. shall prohibit CLIENT or any of its officers, agents, shareholders, employees, or representatives from:
i) using its or their general technical skills when not otherwise inconsistent with the terms hereof; or
ii) disclosing data or information pursuant to any enforceable administrative or judicial order, provided, however, that such data or information shall not be deemed in the public domain solely by reason of such order.
e) CLIENT further agrees:
i) not to copy, reproduce or duplicate, or allow to be copied, reproduced or duplicated, in whole or in part, except for backup purposes and no other purpose, the "SOFTWARE", or any related materials furnished by POINT, to CLIENT hereunder without the prior written consent of POINT, which shall not be reasonably withheld.
ii) not to provide or otherwise make available any "SOFTWARE" or related materials in any form to any person or organization, without the prior written consent of POINT, which shall not be reasonably withheld; and
iii) that it will take appropriate action with its officers, agents, shareholders, employees or representatives, by instruction, agreement or otherwise to satisfy its obligations under this Agreement with respect to use, copying, modification, protection, and security of the "SOFTWARE" and related materials. Without limiting the generality of the foregoing,
i) in any event devote the same degree of care to protecting the "SOFTWARE" as it devotes to the protection of its own confidential and proprietary information; and
ii) have the right to disclose or exhibit the software to consultants to CLIENT in normal business activity, understanding that this right does not include allowing any non-employee of CLIENT to make USE of the software or have AUTHORIZED USER access.
f) In the event of any breach or threatened breach of the provisions of this Section 5., POINT shall, in addition to all other rights and remedies available to it at law or in equity, be entitled to a temporary or permanent decree or order of restraining and enjoining such breach and CLIENT shall not plead in defense thereto that there is an adequate remedy at law, it being expressly acknowledged and understood that such damages at law will be an inadequate remedy in the event of such breach or threatened breach. In addition to other relief provided for this Section (e) and regardless of the amount in controversy, POINT shall be awarded reasonable attorney's costs incurred in any such action.
g) If, together with the foregoing provisions of this Section 5., CLIENT has actual notice of any
unauthorized possession, use or knowledge of any part of the "SOFTWARE" or physical embodiment thereof, or any other information made available pursuant to this Agreement to have such possession, use or knowledge, CLIENT agrees to notify POINT promptly of the circumstances surrounding such unauthorized possession, use or knowledge.
h) POINT warrants that it has all necessary rights, title and interest in the SOFTWARE as to enable it to enter into this Agreement. In the event of any legal action, such as shall interfere with CLIENT's use of the of the Software, POINT shall either provide acceptable substitute software, or obtain for CLIENT, the ongoing use of said Software, during the term of this Agreement. Unless either of these alternatives has been accomplished within 14 business days of such interference, CLIENT shall have the right to terminate this Agreement, and POINT shall indemnify CLIENT if
the right to use POINT=s products are challenged.
6. EXCLUSION OF WARRANTIES/LIMITATIONS OF LIABILITY
THE SOFTWARE IS PROVIDED "AS IS" AND POINT GIVES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH REGARD TO ANY LICENSED PROGRAM AND EXPRESSLY EXCLUDES ALL WARRANTIES OR MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, EXCEPT THAT THE SOFTWARE WILL OPERATE IN ACCORDANCE WITH PROGRAM DOCUMENTATION. POINT SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ENTIRE RISK AS TO THE FUNCTIONAL PERFORMANCE OF THE PROGRAM IS WITH CLIENT. POINT DOES NOT WARRANT THAT THE OPERATION OF THE PROGRAM SHALL BE UNINTERRUPTED OR ERROR FREE, BUT SUCH ERRORS SHALL NOT INTERFERE WITH THE INTENDED USE OF THE SOFTWARE, PURSUANT TO THE OBLIGATIONS OF POINT UNDER THE TERMS AND CONDITIONS OF AN UPDATE AND SUPPORT AGREEMENT.
7. LIMITATION OF LIABILITY
POINT shall have no liability or responsibility of any kind to CLIENT or any other person or entity for any loss of damage directly or indirectly caused by, or resulting from the use or operation of the "SOFTWARE", including without limitation, any injuries to persons or property, interruption of service, loss of business or anticipatory profits or consequential or incidental damages.
Liability for any material breach by POINT of this agreement shall be limited to the cost of the program for the unused portion of the license term, any unused portion of related maintenance and servicing costs and the reasonable costs of any legal action necessary to recover the same.
No remedy referred in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available at law or in equity. No delay by POINT or CLIENT in exercising any of its rights or remedies hereunder upon a breach by the other party shall be deemed to be a waiver of such rights or remedies. No express or implied waiver by either party of any breach by the other party hereunder shall in any way be, or construed to be, a waiver of future or subsequent breach. In addition, in any case where CLIENT has provided, allowed or suffered USE of the SOFTWARE by any non-employee of CLIENT, in addition to the immediate termination of the License granted by this Agreement, POINT shall have the right to collect
an amount equal to the total fee(s) paid or payable to said non-employee by CLIENT, together with all costs of collection and enforcement of POINT'S rights, including all attorney fees incurred by POINT.
All notices required or permitted to be given or delivered to any party hereunder shall be in writing, and shall be deemed to given when delivered by hand, or when deposited in the United States Mail, certified or postage prepaid, to the parties at the following addresses, or such other address as either party shall hereafter furnish to the other in writing:
POINT POINT SOFTWARE, INC.
000 Xxxxx Xxxx Xx., Xxxxx 0000 Xxxx Xxxx Xxxxxxxxxx, XX 00000 Attention: Xxxxx X. Xxxxx, President
CLIENT Registered Address of CLIENT
This Agreement shall be binding upon and inure to the benefit of the legal representatives, successors and assigns of POINT and CLIENT, provided, however, that this Agreement and the rights and obligations of CLIENT hereunder, may not be assigned or transferred, voluntarily or involuntarily, by operation of law, without the prior written consent of the other party, such assignment, whether voluntary or by operation of law, unless with the prior written consent of the other party shall give either party the right to terminate said agreement.
This Agreement will be governed by the laws of the Commonwealth of Massachusetts.
This Agreement, together with the Exhibits attached hereto, shall operate as a single, integrated contract and constitutes the entire agreement between the parties, and deemed in-force upon installation of the Software.
CLIENT AGREES THAT THIS IS THE COMPLETE EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT. In the event of a conflict between the terms of this Agreement and the terms of any purchase or similar document executed in connection herewith, the terms of this Agreement may not be modified or amended except by agreement in writing signed by the party against whom the enforcement of any such modification or change is being sought.
In the event that any provision of this Agreement or the application thereof to any person or in any circumstances shall be determined to be invalid, unlawful, or unenforceable to any extent, the remainder of this Agreement, and the application of such provision to persons or circumstances other than those as to which it is determined to be unlawful, invalid or otherwise unenforceable, shall not be effected thereby, and each remaining provision
of this Agreement shall continue to be valid and may be enforced to the fullest extent permitted by law.
SOFTWARE LICENSE AGREEMENT
ALRUS - ANNUAL LICENSE RENEWAL AND UPDATE SERVICE
POINT, will provide update and support services for any licensed copies of its software products, provided fees for such services are paid in full at the time of a service request. Services will include telephone and email support during normal business hours of Point Software Inc., excluding holidays, some exceptions apply. Calls for this purpose will be handled in a timely fashion, however it is understood that the person or persons requested may not be immediately available at the time of your call.
Further, POINT will correct errors or programming flaws brought to its attention which prevent the software from operating in accordance with the program documentation. This service does not mandate that Point Software will redesign its software to a new functional specification requested by the customer. Such requests are deemed customization, and will be subject to consulting and programming charges to be billed separately.
POINT will occasionally update a customers software either on-site or remotely to correct any problems detected. When requested customers are expected to assist Point Software in this effort. Additionally, customers are required to have any corrections installed as requested by Point Software. CLIENTS are also required to have a means of internet connectivity that is satisfactory to POINT to allow for remote connectivity and support.
These services do not provide for any data loss resulting from misuse or machinery failure. Should this occur Point Software can in some instances repair physically corrupted data, subject to consulting and programming charges billed separately.
These services do not provide for any hardware failure, and or cost or repair of such equipment. Hardware purchased through Point Software generally have conditional warranties of service, which are manufacturer specific. Point Software assumes no liability with regard to hardware.