Reference is made to a certain purchase order (the “Purchase Order”) between you (the “Licensee”) and Plataine Ltd. and its subsidiaries (the “Company”).
The Company has developed and owns all rights and interests in certain computer software program(s) (the “Software”) and services described in the Purchase Order (the “Services”).
YOU ARE ENCOURAGED TO READ THESE TERMS CAREFULLY.
- LICENSE GRANT FOR SERVICES
1.1 Grant of License. Subject to payment of the fees detailed in the Purchase Order (the “Fees”) and pursuant to the terms and conditions of this Agreement, Company hereby grants Licensee limited, non-exclusive, non-transferable license to use the Software and receive the Services.
1.2 Restrictions. Licensee shall not: (a) rent, lease or transfer the Software and/or Services or any portions thereof to any other party except as expressly provided herein; (b) allow use of the Software and/or Services to any other party; (c) copy the Software; or (d) reverse compile, disassemble, decompile or modify the Software in any form or by any means.
2.1 Licensed Software. The Software will be delivered through the Company’s website and/or by the Company’s representative using a secure log-in delivered to Licensee. Licensee retains the right to agree on testing and approval of installation of licensed Software before actual installation is completed by Company.
2.2 Services. Subject to compliance with the terms of the Purchase Order and pursuant to the terms and conditions of this Agreement, Company (directly, or through any of its agents) shall provide Licensee with the Services, as outlined in the Purchase Order. Services will only be provided to unmodified Software and through a single Licensee-designated contact. Company may discontinue the Services during any period that Licensee remains in arrears of any of the Fees owed to Company hereunder.
2.3 Payment Terms. Each payment of the fees shall be due and payable within thirty (30) days from the date of the Company’s invoice. All amounts not paid within thirty (30) days of the due date shall bear interest at the rate of 1.5% per month from the date due until paid. Failure of Licensee to pay any amounts when due shall constitute sufficient cause for Plataine to terminate this Purchase Order and the licenses granted hereunder.
2.4 Taxes. Licensee shall be responsible for any and all applicable taxes, customs, duties, use, excise, sales and value-added taxes, tariffs or withholding taxes imposed as a result of the transactions contemplated by this Purchase Order. If a taxing authority determines that Company did not collect all applicable taxes, Licensee shall remain liable to Company for such additional taxes, but not any interest or penalty assessed as the result of Company’s failure to timely collect such additional taxes.
- RIGHTS OF COMPANY
3.1 Rights Retained by Company. Company retains ownership of all rights, interests and title in the Software and Services and in the copies thereof and Licensee acknowledges that all rights, title and interest in and to the Software and Services and any software platform on which the Software is based including any patches, workarounds, updates, upgrades, enhancements and modifications thereto provided to the Licensee and any and all trademarks, trade names, copyrights, patents and other intellectual property rights used or embodied in or in connection therewith, are and shall remain in the sole and exclusive ownership of Company, subject only to the rights and licenses expressly granted by Company hereunder.
3.2 Proprietary Rights. Licensee shall make no claim of right to any of the Software, Service, any software platform on which the Software is based and all related documentation (the “Documentation”), to be supplied by Company hereunder (the “Company’s IP”) and acknowledges that as between Company and Licensee, such Company’s IP is proprietary to Company.
3.3 Preservation of Notices. Appropriate copyright notices shall be placed on the materials supplied by Company. Licensee shall not remove any such copyright notices and other proprietary rights notices, including third party notices, that were included in any of the Company’s IP as delivered by the Company.
3.4 Company may use Licensee’s name and logo on its website and in its promotional materials to state that Licensee is a customer of Company. Licensee agrees to serve as a reference customer of Company and shall cooperate with Company’s reasonable marketing and referencing requests (including the preparation of a case study). Upon the execution of this Agreement, Company may issue a press release announcing the existence of this Agreement and any other relevant information, provided that the content of the press release is first approved in writing by Licensee (such approval not to be unreasonably withheld).
- WARRANTIES AND LIMITATIONS
4.1 Power and Authority. Each party warrants to the other party that it has sufficient right and authority to enter into this Agreement, and to grant the rights and assume all of their respective rights and obligations set forth herein.
4.2 Warranty. Company warrants that during the Warranty Period (as defined below) the Software shall perform substantially in accordance with the applicable Documentation provided by Company to Licensee. Company shall not be liable to the extent any defect or error in the Software is caused, or contributed to, by (i) modifications without the prior written consent of Company; (ii) use, operation, or installation of the Software not in accordance with the Documentation and instructions for use and/or in the event of abuse or corruption of the Software; (iii) maintenance and/or repair of the Software not by Company or in accordance with Company’s approval and instructions; (vi) use of the Software with incompatible hardware, software or equipment; or (v) due to causes external to the Software, such as, but not limited to, accidents, disaster, power failure or electric power surges. For avoidance of doubt, Licensee will not be responsible for any damage done to the Software due to uploading of Licensee’s information in accordance with the Documentation and instructions for use. For perpetual license the Warranty Period shall be 30 days from delivery of the Software. For SAAS, the Warranty Period shall be during the term of the SAAS agreement.
4.3 Limitation of Warranty. Company does not warrant that the use of the Software will be uninterrupted, error-free or completely secure. Company shall not be responsible for the backup of any data provided by Licensee.
4.4 No other Warranties. THE FOREGOING WARRANTY OF COMPANY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR
4.5 PURPOSE. COMPANY SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE SERVICE SHALL OPERATE UNINTERRUPTED OR ERROR FREE.
5.1 Licensee expressly acknowledges that the Software and Documentation are confidential and proprietary to Company, and Licensee agrees to maintain them and information regarding their design and implementation as confidential information, using at a minimum the same degree of care as is used for Licensee’s own trade secrets, and not to disclose them to any third party without Company’s prior written authorization, other than as provided for herein.
- LIMITATION OF LIABILITY
6.1 Licensee assumes full responsibility for the adaptation of the Software to the specific cutter machinery and the materials the Licensee will be using with the Software. Distances showing in the Software may vary from one cutter to the other, and from one material to another material.
6.2 IN NO EVENT SHALL COMPANY BE LIABLE TO LICENSEE FOR ANY REASON, WHETHER IN CONTRACT OR IN TORT, FOR ANY DIRECT DAMAGES ARISING OUT OF USE OF THE SOFTWARE OR SERVICES OR OTHERWISE, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS RECEIVED FOR THE SPECIFIC SOFTWARE GIVING RISE TO SUCH LIABILITY DURING THE TWELVE MONTH PERIOD PRECEDING THE INTERPOSITION OF THE CLAIM.
6.3 UNDER NO CIRCUMSTANCES WILL COMPANY OR ITS RESPECTIVE RELATED PERSONS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE.
- INDEMNIFICATION AGAINST INFRINGEMENT
7.1 The Software is intended for use only with properly licensed media, content and content creation tools. Licensee has full responsibility to ascertain whether any copyright, patent or other licenses are necessary and to obtain any licenses to such media and content. Licensee agrees to use only those materials for which Licensee have the necessary patent, copyright and other permissions, licenses, and/or clearances. Licensee agrees to hold harmless, indemnify and defend Company, its officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys’ fees and costs) arising out of or relating to any claims that Licensee have encoded, copied, compressed, enabled, used, published, displayed, or transmitted any content or materials in violation of another party’s rights.
7.2 The Company shall defend and indemnify Licensee from any costs and damages awarded against Licensee by a court of competent jurisdiction, or paid in settlement, in connection with a third-party claim, suit or proceeding that Licensee’s use of the Software or Services in accordance with this Agreement infringes the third party’s intellectual property rights. Company’s obligations under this section do not apply: (i) to any third-party open source software that may be included in the Software, and (ii) if the alleged infringement is based on the Licensee’s data or any use of the Software or Services except as authorized by Company in writing or as provided herein. Without derogating from the foregoing defense and indemnification obligation, if Company believes that the Software or Services, or any part thereof, may infringe a third party’s intellectual property rights, then Company may in its sole discretion: (a) obtain (at no additional cost to Licensee) the right to continue to use the Software and Services, or (b) replace or modify the allegedly infringing part of the Software and Services so that it becomes non-infringing while giving substantially equivalent performance. If Company determines that the foregoing remedies are not available on reasonable economic terms, Company may require that use of the Software and Services (or part thereof) cease and, in such an event, Licensee shall receive a prorated refund of applicable fees paid for the unused portion of the remainder of the term for the Software and Services (or part thereof) that are terminated. This section states Company’s entire liability and Licensee’s sole remedy for any infringement of any intellectual property rights with respect to the Software and Services.
- TERM, TERMINATION
8.1 Term. The term of this Agreement shall be for a period of one year from the Effective Date, and thereafter it shall be renewed automatically for additional periods of one year each, unless either party advises the other party, with a prior written notice served at least 60 days before the end of such year, of its election to terminate this Agreement (each such one year term, the “Term”). In addition, this Agreement may be terminated pursuant to Sections 8.2 or 8.3 below.
8.2 Termination for Default. Upon any material breach of the obligations under this Agreement by either party, the party committing the breach shall be deemed in default. The other party may terminate this Agreement, including the license granted herein, upon thirty (30) days written notice to the defaulting
party. Such termination shall become effective unless the defaulting party shall cure all aspects of the default to the satisfaction of the terminating party within the thirty (30) day period.
8.3 Termination for Insolvency. Should either party: (a) become insolvent; (b) make a general assignment for the benefit of its creditors; (c) file or have filed against it a petition in bankruptcy or seeking re- organization; (d) have a receiver appointed; (e) institute any proceedings for liquidation or winding up; then the other party may, in addition to other rights and remedies it may have, terminate this Agreement immediately, by a written notice.
8.4 Licensee’s Obligation Upon Termination. In the event this Agreement is terminated, Licensee shall, on the effective date of termination, immediately discontinue the use of the Software and/or Service and any and all portions thereof, within 14 days after the effective date of termination, Licensee shall deliver to Company or to Company’s authorized representative, all confidential information of the Company including all Company’s IP. At Company’s option, all copies of Software and related materials may be destroyed by Licensee, who shall then provide Company with written certification of compliance with this provision.
8.5 Unpaid Amounts. Immediately upon termination, any earned but unpaid Fees shall become immediately due and payable by Licensee to Company.
8.6 Survival of Obligation. Sections 1.2, 3, 5, 6, 7, 8.4, 8.5, 8.6, 9.1 and 9.7 shall survive any termination of this Agreement.
9.1 Assignment. This Agreement may not be assigned by either party without the express written consent of the other party, except that Company may assign or transfer this Agreement, in whole or in part, to any of its affiliates or to any successors to substantially perform all that part of Company business to which this Agreement relates. Subject to the foregoing, any assignee hereunder shall be subject to all of the terms, conditions and provisions of this Agreement.
9.2 Binding Effect. Subject to the limitations herein above expressed, this Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, personal representatives, guardians, heirs and assigns.
9.3 Agreement Prevails. In the event that any provision of any Purchase Order or receipt issued by Licensee is inconsistent with the provisions of this Agreement, then the terms of this Agreement will prevail.
9.4 Force Majeure. Neither party shall be responsible for delays or failures in performance resulting from acts beyond the control of such party. Such acts shall include but not be limited to acts of God, acts of war or civil disruption, governmental regulations imposed after the fact, public utility failures, industry wide shortages of labor or material, or natural disasters.
9.5 Compliance. Company and Licensee each agree that it will perform its obligations under this Agreement in accordance with all applicable laws, rules and regulations now or hereafter in effect. Licensee agrees to comply with the export laws and regulations of the United States and any other country with jurisdiction over the Company’s IP and the Software and Services.
9.6 Severability. If any term or provision of the Agreement shall be found to be illegal or unenforceable, this Agreement shall remain in full force and effect and such term or provision shall be deemed stricken.
9.7 Governing Law/Jurisdiction. This Agreement shall be governed in all respects by the laws of the State of New York, USA, without regard to its conflict of laws principles. The courts of New York City, NY, USA shall have sole and exclusive jurisdiction over the parties and the subject matter of any dispute arising out of or relating to this Purchase Order and Licensee consents to the sole jurisdiction of such courts.