Evovlen Configuration Management 4.0

EULA - End User License Agreement

This Master License Agreement ("Agreement") is made and is effective as of the later of the two signature dates set forth below (“Effective Date”), by and between ESI Software, Ltd, a wholly owned subsidiary of Evolven Software, Inc. (“Evolven”), a Delaware Corporation having its principle place of business at 21 Hamelacha Street, Rosh HaAyin, Israel 48091; and Licensee (“Licensee”).
WHEREAS, Licensee desires to obtain a license from Evolven to use certain Software Products (as defined hereunder); and WHEREAS Evolven is willing to grant such rights and licenses on the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement and any exhibits incorporated herein, the following capitalized terms shall have the following meaning:
1.1 "CPU" - means a unit of a computer''s Central Processing Unit. When counting the aggregate number of CPUs that include a computer or computers that are virtualized, a CPU shall be the higher of either the number of physical Central Processing Units or the number of Virtual Central Processing Units created by the virtualization software. In the case of multiple core computers, Intel multi-core shall be counted as half the number of cores (e.g. a quad-core Intel Central Processing Unit shall count as two CPUs), and non-Intel multi-core Central Processing Units, each core will be counted as a CPU (e.g. a quad-core IBM Power6 will be counted as 4 CPUs).
1.2 "Documentation" - means the user''s guides and technical manuals delivered by Evolven to Licensee pursuant to the applicable PO.
1.3 “Intellectual Property Rights” - means all intangible legal rights, titles and interests evidenced by or embodied in all: (i) inventions (regardless of patentability and whether or not reduced to practice), improvements thereto, and patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations in part, revisions, extensions, and reexaminations thereof; (ii) trademarks, service marks, trade dress, logos, trade names, and corporate names, together with translations, adaptations, derivations, and combinations thereof, including goodwill associated therewith, and applications, registrations, and renewals in connection therewith; (iii) any work of authorship, regardless of copyrightability, copyrightable works, copyrights (including droit morale) and applications, registrations, and renewals in connection therewith; (iv) mask works and applications, registrations and renewals in connection therewith; (v) trade secrets and Confidential Information; and (vi) other proprietary rights and any other similar rights, in each case on a worldwide basis, and copies and tangible embodiments thereof, in whatever form or medium.
1.4 "Licensee''s Premises" - means Licensee''s principal premises per the sales proposal provided to Licensee.
1.5 “New Release” - means a new version of the Software Product that includes or adds new functionality or adds substantially new features to the Software Product, including any major enhancements, as designated by a progressing of the version number left of the decimal point following the version initially delivered hereunder.
1.6 “Software Product” means the object code version of Evolven''s proprietary software as further detailed in Schedule 1.5, related documentation, user manuals, Updates and all other written and/or electronic materials relating thereto, if provided by Evolven to Licensee in connection therewith.
1.7 “Updates” - means, with respect to any element of the Software Product, a new version of such element that includes bug fixes and minor enhancements to the Software Product, as designated by a progressing of the version number right of the decimal point following the version initially delivered hereunder, and which is made available at no additional cost by Evolven to its customers generally.
2. License Grant. Subject to the terms and conditions of this Agreement and upon receipt of payment in full by Evolven, Evolven grants to Licensee and Licensee accepts from Evolven a perpetual, fully paid-up, royalty-free, non-exclusive, non-transferable, internal license to install copies of the Software Product on computers located at Licensee''s Premises and use the Software Product in accordance with the Documentation provided with the Software Product ("License"). The License shall be limited to installation of the Software Products'' Agents (data collectors) on the amount of CPUs not to exceed the amount set forth in the applicable PO (defined hereunder)..
3. Reservation of Rights. Other than the rights explicitly granted in this Agreement, Licensee shall have no other rights, express or implied, in the Software Product. Without limiting the generality of the foregoing, Licensee agrees and undertakes not to: (i) sell, lease, sublicense or distribute the Software Product, or any part thereof, or otherwise transfer the Software Product to any third party; (ii) reverse engineer, decompile, disassemble, or otherwise reduce to human-perceivable form the Software Product''s source code; (iii) modify, revise, enhance, or alter the Software Product; (iv) copy or allow copies of the Software Product to be made; (v) use any backup or archival copies of the Software Product, or any part thereof, or allow any third party to use such copies, for any purpose other than to replace an original copy in the event of the destruction of the Software Product components, if the Software Product becomes defective; (vi) place the Software Product onto a server so that it is accessible via a public network; and (vii) represent that it possesses any proprietary interest in the Software Products.
4. Title & Ownership. EVOLVEN DOES NOT SELL OR TRANSFER TITLE IN THE SOFTWARE PRODUCT, OR ANY PART THEREOF, TO LICENSEE. All Intellectual Property Rights evidenced by or embodied in and/or attached/connected/related to the Software Product, any part and/or derivatives thereof, are and shall be owned solely and exclusively by Evolven. Nothing in this Agreement shall constitute a waiver of Evolven''s Intellectual Property Rights under any law, or be in any way construed or interpreted as such.
5. Order and Delivery. Licensee may purchase, from time to time, licenses to the Software Product from Evolven, in accordance with the terms and conditions of this Agreement, by submitting purchase orders to Evolven (each, a “PO”). Each of Licensee''s POs which are accepted in writing by Evolven shall be deemed to incorporate all the terms and conditions of this Agreement. Whenever the provisions of a PO conflict with the provisions of this Agreement, the provisions of this Agreement shall prevail. A PO may be modified only by a written instrument signed by both parties. The initial PO is attached hereto as Schedule 5 ("Initial PO").
6. Maintenance Services. Pursuant to receipt in full of the Maintenance Fee set forth below, Evolven shall provide Licensee, during the applicable maintenance period, with technical support and maintenance services for the Software Product during Evolven''s Normal Working Hours, in accordance with Evolven''s standard support policies ("Maintenance Services"). Maintenance Services shall include the provision by Evolven to Licensee, free of additional charge, of any Updates which Evolven generally makes available to its customers. In addition, Evolven shall keep Licensee advised of any New Releases of the Software Product, or part thereof, if and as such New Releases are made available by Evolven, and Evolven shall, upon Licensee''s request, offer such New Releases for additional consideration, as shall be determined between the parties at the time. It is hereby understood that Evolven''s providence of the above Maintenance Services is contingent upon Licensee''s proper use of the Software Product for which it was intended, and shall not apply to damage caused by abuse, misuse, alteration, neglect, or unauthorized repair or installation, or by the use or attempted use of Software Product other than that supplied and supported by Evolven, or in the event that the Software is altered, modified or adjusted in any manner by any third party other than Evolven. In addition, Evolven shall furnish the Maintenance Services only for the current release level of the Software Product and the previous two (2) release levels of the Software Product, and Licensee is aware that resolutions offered in the course of the provision of Maintenance Services may require the installation of patches or new releases by Licensee.
7. Fees & Payment.
7.1 License Fees. Licensee shall pay the amount of license fees due to Evolven in accordance with the associated PO. Payment terms shall be set forth in each PO, and in any event all payments shall be due within thirty (30) days of receipt of Evolven''s invoice. Any payment or part of a payment that is not paid by Licensee to Evolven when due shall bear interest at the rate of 1.5% per month (but in no event more than the maximum rate allowed by applicable law), and shall constitute sufficient cause for Evolven to immediately suspend its performance hereunder and terminate this Agreement and the licenses granted herein. All payments shall be made in U.S. Dollars by wire transfer to an account designated by Evolven.
7.2 Maintenance Fees. Maintenance Services shall be available to Licensee on an annual fee basis of eighteen percent (18%) of Evolven''s then effective license fees List Price (“Maintenance Fee”). In the event that Licensee, having opted to discontinue Maintenance Services, later wishes to renew Maintenance Services, such Maintenance Services may be renewed by Evolven, at its sole discretion, subject to payment by Licensee of a reinstatement fee equal to one hundred percent (100%) of the sum of the fees for any previously unpaid maintenance period(s) plus full payment for the subsequent annual maintenance period.
7.3 Taxes. Licensee is solely responsible for payment of any taxes (including, without limitation, sales or use taxes, Value Added Taxes, employee-related taxes, intangible taxes, and property taxes, and only excluding taxes related to Evolven ''s income) resulting from the acceptance of the License or from the possession and use of the Software Product. If any such taxes are required to be withheld, Licensee shall pay an amount to Evolven such that the net amount payable to Evolven after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement. Licensee agrees to hold harmless Evolven from all claims and liabilities arising from Licensee''s failure to report or pay any such taxes.
8. Warranties. Evolven warrants that, to the best of its knowledge, it has the right to grant Licensee the license to use the Software Product. Evolven warrants that upon delivery, the Software Product shall substantially perform in accordance with the functional specifications in the product Documentation. Evolven does not warrant, however, that use of the Software Product will be uninterrupted or that the operation of the Software Product will be error-free or secure. Evolven''s sole liability for any breach of this warranty shall be, in Evolven''s sole discretion, to replace or repair the defective Software Product. The foregoing warranties are contingent upon Licensee''s proper use of the Software Product, and shall not apply to damage caused by abuse, misuse, alteration, neglect, or unauthorized repair or installation, or by the use or attempted use of software other than that supplied and supported by Evolven. Only if Licensee informs Evolven of the defect in writing within 5 days of delivery, and provides evidence of the date the License was delivered, will Evolven be obligated to honor this warranty. Evolven will use reasonable commercial efforts to repair or replace pursuant to the foregoing warranty within 30 days of being so notified. The foregoing constitutes Licensee''s sole and exclusive remedy for breach by Evolven of any warranties made under this Agreement.
9. Disclaimer of Warranty. THE WARRANTY SET FORTH ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE PRODUCT, MAINTENANCE SERVICES OR ANY OTHER ITEMS PROVIDED HEREUNDER. EVOLVEN DOES NOT WARRANT THAT THE SOFTWARE PRODUCT OR ANY MAINTENANCE SERVICES WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION.
10. Limitation of Liability. IN NO EVENT SHALL EVOLVEN''S LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEED THE AMOUNT PAID TO EVOLVEN FOR THE PO THAT GAVE RISE TO THE CLAIM OR ACTION, AND IF NO SUCH PO IS SO APPLICABLE THEN EVOLVEN''S LIABILITY SHALL NOT EXCEED THE AMOUNTS PAID BY LICENSEE TO EVOLVEN HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT. IN NO EVENT WILL EVOLVEN BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT EVOLVEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Confidentiality
11.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain information regarding the Disclosing Party''s business, including technical, marketing, financial, planning and other confidential or proprietary information, whether in writing, orally or visually (“Confidential Information”). Regardless of whether marked or identified, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party.
11.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party''s duty hereunder. The Receiving Party will protect the Disclosing Party''s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
11.3 Exceptions. The Receiving Party''s obligations under Section 12.2 with respect to any Confidential Information of the Disclosing Party shall not apply to and/or shall terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party''s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, or (ii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party''s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
12. Term and Termination
12.1 Term. This Agreement shall commence on the Effective Date, and shall continue until terminated in accordance with the terms hereunder.
12.2 Termination by Licensee. Licensee may terminate this Agreement without the right of refund at any time upon sixty (60) calendar days'' prior written notice to Evolven, provided that Licensee pays all outstanding amounts owed prior to the date of termination.
12.3 Termination for Breach. Either party may terminate this Agreement at any time by giving written notice to the other party if the other party is in breach or default of any material provision of this Agreement, and the breaching party fails to cure the breach or default, within thirty (30) days after being given written notice, specifying details of the breach or default and requiring the same to be remedied.
12.4 Termination in the Event of Default. Either party may terminate this Agreement immediately, in the event the other party: (i) is judged bankrupt or insolvent; (ii) makes a general assignment for the benefit of its creditors; (iii) a trustee or receiver is appointed for such party or for any of its property; or (iv) any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
12.5 Consequences. Upon termination of this Agreement pursuant to Section 13.2, 13.3 or 13.4 above, Licensee will: (i) immediately cease use of the Software Product; (ii) return the Software Product and all copies thereof, as well as the Documentation to Evolven; (iii) erase or otherwise destroy all copies of the Software Product in its possession, which is fixed or resident in the memory or hard disks of its computers; (iv) return to Evolven any and all Confidential Information then in its possession; and (v) certify in writing to Evolven that all copies and partial copies of the Software Product related Documentation and Confidential Information have been either returned to Evolven or otherwise erased or destroyed and deleted from any computer libraries or storage devices and are no longer in use by Licensee. Without derogating from the foregoing, upon termination of this Agreement Evolven shall return to Licensee any of Licensee''s Confidential Information in its possession and shall certify in writing its compliance thereof.
13. General Terms
13.1 Governing Law. This Agreement shall be governed by the laws of the State of New York, without reference to its conflict of laws rules. Any dispute arising from or related to this Agreement shall be brought exclusively before the competent courts of New York, New York.
13.2 Assignment. This Agreement or any part thereof may not be assigned by Licensee to any third party without Evolven''s prior written consent. Evolven shall be entitled to assign this Agreement, in whole or in part, at its discretion.
13.3 Severability. Should any provision of this Agreement be held to be invalid, that provision shall be replaced with a valid provision implementing the intent of the parties at the time of the signing of this Agreement.
13.4 Force Majeure. Except for Licensee''s obligation to pay amounts due under this Agreement, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party''s failure to perform its obligations hereunder when such failure is due to events beyond its control, including, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.
13.5 Survival. Anything to the contrary notwithstanding, the following Sections shall survive any termination of this Agreement: 3 (Reservation of Rights), 4 (Title and Ownership), 9 (Disclaimer of Warranty), 10 (Limitation of Liability), 11 (Confidentiality), 12.4 (Consequences), 13.1 (Governing Law), 13.5 (Survival), and 13.7 (Notices).