HelpSystems, LLC SOFTWARE LICENSE AND SERVICES AGREEMENT

-Perpetual-

 

This software license and service agreement (“Agreement”) is made by and between HelpSystems LLC (HelpSystems) and the entity on whose behalf such individual accepts this Agreement (“Client’) formed by installing or updating the Software. Please read all the terms and conditions set forth in this Agreement before accepting this Agreement. By installing or updating the Software Client herby agrees to, and agrees to be bound by, the terms and conditions set forth in this Agreement, and represents to HelpSystems that it is authorized to do so. If you do not agree to all the terms of this Agreement or if you do not have the authority to bind the Company or organization on whose behalf you are accepting this Agreement, do not install or update the Software.

 

SECTION 1.   Definitions.

 For the purposes of this Agreement, the following terms have the meanings set forth below:

1.1        “Additional   Services”   shall   mean   implementation or integration services; training services; programming or coding services; data conversion services; or on-site consultation, other than those services provided by Maintenance defined in Section 1.9, provided by HelpSystems at the request of the Client.

1.2         “Authorized Device” shall mean a server, partition, computer, or any other virtual or otherwise emulated hardware system controlled or owned by Client and sanctioned by HelpSystems.

1.3         “Authorized User” shall mean a designated person or number of persons who are granted access to the Software by HelpSystems.

1.4      “Confidential Information” means any material, data, or information in whatever form or media of a party to this Agreement that is provided or disclosed to the other, and shall include, the Services rendered by HelpSystems to Client, the Software licensed by HelpSystems to Client, financial and operational information, and other matter relating to the operation of HelpSystems’ or Client’s business, including information relating to actual or potential customers, accounting, finance or tax information and pricing information.

1.5          “Invoice” shall mean any statement of charges issued by HelpSystems for Software, Maintenance, or Services.

1.6         “Effective Date” shall mean the date the Client accepts this Agreement.

1.7         “Functional Specifications” shall mean those system and operational requirements set forth in the Software Documentation to which the Software shall conform.

1.8         “License Fees” shall mean the fees paid to HelpSystems for the right to use the version of the Software which is current at the time of the Effective Date. All fees are non-refundable.

1.9        “Maintenance” shall mean providing the Client with (a) access to HelpSystems’ technical assistance; (b) access to HelpSystems’ self-service utilities; and (c) access to updates, and enhancements of the Software.

1.10       “Maintenance Fees” shall mean the fees paid to HelpSystems for Maintenance. All fees are non-refundable.

1.11       “Maintenance Period” shall mean the period of time that HelpSystems will provide Maintenance. The initial Maintenance Period shall commence and expire on the dates indicated on the Invoice. The Maintenance Period may be renewed by the Client in accordance with Section 7.

1.12       “Services” shall mean collectively any Maintenance and Additional Services provided by HelpSystems.

1.13       “Software” shall mean the products delivered to Client under the terms of this Agreement, including all updates, add-ons, and enhancements created by HelpSystems for those products.

1.14       “Software Documentation” shall mean any tutorials, technical publications, and materials supplied with the Software which include system requirements for implementation and operation of the Software as well as the Functional Specifications of the Software.

 

SECTION 2.   Scope and Term of Agreement.

This Agreement sets forth the terms and conditions under which HelpSystems shall license the Software and provide Maintenance and Services to Client. This Agreement shall remain in effect unless and until terminated by HelpSystems or Client in accordance with Section 10.

 

SECTION 3.   Software License.

3.1      Subject to the terms and provisions of this Agreement, as well as the payment of License Fees, HelpSystems hereby grants to Client, or an Authorized User of the Client, a perpetual, non-exclusive, non-transferable, and non-assignable license to use the version of the Software which is current at the time of the Effective Date for Client’s internal business purposes. The license covers the version of the Software which is current at the time of the Effective Date and any available Software Documentation.

3.2      Client may install or otherwise utilize the Software on an Authorized Device. The Software may not be moved to another device. If the Client desires to move the Software to another device, the Client shall secure the prior approval of HelpSystems, which may be granted subject to an additional fee.     Client shall not alter, copy, modify, adapt, reverse engineer, decompile, disassemble, or create derivative works from the Software, nor take any other action intended to reproduce the source code of the Software or any part thereof without the prior written consent of HelpSystems. The Client shall not remove any copyright or proprietary rights notices from the Software and shall reproduce all such notices on any copies made in accordance with this Section 3.2.

3.3      Client may be allowed to transfer its right to use the Software provided (a) Client is in receipt of the prior written consent of HelpSystems, which may be withheld by HelpSystems in HelpSystems’ sole discretion; (b) Client has paid any additional fee which HelpSystems may charge Client in HelpSystems’ sole discretion; and (c) Client transfers the most recent production release of the Software, including any and all updates to the Software.  Any transfer of Client’s right to use the Software made in violation of the terms and provisions of this Section 3.3 shall constitute a breach of this Agreement.

3.4      Client agrees that the Software will not be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act, or any other export laws, restrictions, or regulations.

 

SECTION 4.   Software Delivery and Installation.

4.1      Upon payment of the License Fee, HelpSystems shall make the version of the Software

which is current at the time of the Effective Date available to Client along with a permanent key. Whether by providing an electronic download, physical distribution, or any other form of conveyance, the software shall be deemed delivered once it is made available to Client. The Client may also access and utilize any Software Documentation related to the Software delivered under the terms of this agreement.

4.2      Client shall be responsible for installation of the Software on an Authorized Device that meets the requirements for operation of the Software as identified in the Software Documentation.

 

SECTION 5.   Nondisclosure of Confidential Information.

5.1      HelpSystems and Client agree that the party receiving Confidential Information shall exercise the same degree of care and protection with respect to the Confidential Information of the party disclosing the Confidential information that it would exercise with respect to its own Confidential Information and shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the disclosing party, without the prior written consent of the disclosing party, except the receiving party may disclose Confidential Information on a need-to-know basis, to employees, agents or representatives of the receiving party who are informed by the receiving party of the confidential nature of the Confidential Information and the obligations of the receiving party under this Agreement or in accordance with a judicial or other governmental order, but only if the receiving party promptly notifies the disclosing party of the order and complies with any applicable protective or similar order.  The receiving party will cause its employees, agents and representatives to comply with the provisions of this Section 5.1.

5.2      HelpSystems and Client agree that the party receiving Confidential Information will promptly notify the disclosing party of any unauthorized use or disclosure of Confidential Information, or any other breach of this Agreement; and assist the disclosing party in every reasonable way to retrieve any Confidential Information that was used or disclosed by the receiving party or an employee, agent and representative of the receiving party without the disclosing party’s specific prior written authorization and to mitigate the harm caused by the unauthorized use or disclosure.

5.3      HelpSystems and Client agree that the party receiving Confidential Information will not breach Section 5.1 or Section 5.2 by using or disclosing Confidential Information if the receiving party demonstrates that the information used or disclosed (a) is generally available to the public other than as a result of a disclosure by the receiving party or an employee, agent and representative of the receiving party; (b) was received by the receiving party from a third party without any limitations on use or disclosure; or (c) was independently developed by the receiving party without use of the Confidential Information.

5.4      HelpSystems and Client agree that upon the request of the party disclosing Confidential Information, the receiving party will (a) promptly return to the disclosing party all materials furnished by the disclosing party containing Confidential Information, together with all copies and summaries of Confidential Information in the possession or under the control of the receiving party, and provide written certification that all such Confidential Information has been returned to the disclosing party, or (b) promptly destroy all materials furnished by the disclosing party containing Confidential Information, together with all copies and summaries of Confidential Information in the possession or under the control of the receiving party, and provide written certification that all such Confidential Information has been destroyed by the receiving party.

5.5      HelpSystems and Client acknowledge and agree that the remedies available at law for any breach of this Agreement will, by their nature, be inadequate.   Accordingly, each party may obtain injunctive relief or other equitable relief to restrain a breach or threatened breach of this Agreement or to specifically enforce this Agreement, without proving that any monetary damages have been sustained.

 

SECTION 6.   Software Ownership Rights; Intellectual Property Rights and Intellectual Property Rights Indemnification by HelpSystems.

6.1      Client acknowledges and agrees that the Software and Software Documentation, and all intellectual property rights therein, are (a) the sole and exclusive property of HelpSystems; (b) protected by United States Copyright Law; and (c) the Software is a trade secret of HelpSystems.  Except to the limited extent required for Client to use the Software pursuant to the license granted in Section 3.1, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license in any existing or future intellectual property of HelpSystems. No title or ownership rights to the Software are transferred to Client by this Agreement, but shall remain with HelpSystems. All rights not expressly granted by HelpSystems with respect to the Software under this Agreement are reserved by HelpSystems.

6.2      HelpSystems shall defend at its own expense any action against Client brought by a third party to the extent that the action is based upon a claim that the Software directly infringes any copyright filed in the United States or misappropriates any trade secret recognized as such under the Uniform Trade Secrets Act, and HelpSystems will  pay  those  costs  and  damages finally awarded  against  Client  in  any  such  action  that  are  specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. HelpSystems obligations under this Section 6.2 are conditioned on (a) Client notifying HelpSystems within ten (10) days of notice of such action, (b) Client giving HelpSystems  sole control of the defense thereof and any related settlement negotiations, and (c) Client cooperating with HelpSystems in such defense (including, without limitation, by making available to HelpSystems all documents and materials in Client’s possession or control that are relevant to the infringement or misappropriation claims, and by making Client’s personnel available to testify or  consult with HelpSystems or  its attorneys in connection with said defense). If the Software becomes, or in HelpSystems’ opinion is likely to become, the subject of an infringement or misappropriate claim, HelpSystems  may, at its option and expense, either (i) procure for client the right to continue using the Software; (ii) replace or modify the Software so that it becomes non- infringing, or (iii) terminate Client’s right to use the Software and give Client a refund or credit of the amounts actually paid by Client to HelpSystems  for the Software less a reasonable allowance for the period of time Client has used the Software.   HelpSystems will have no obligation with respect to any infringement or misappropriation claim based upon (1) any use of the Software not in accordance with the Agreement or for purposes not intended by HelpSystems; (2) any use of the Software in combination with other products, equipment, software, or data not supplied by HelpSystems; (3) any use of any release of the Software other than the most current release made available to Client; or (4) any modification of the Software made by any person other than HelpSystems. This Section 6.2 states HelpSystems’ entire liability and Client’s sole and exclusive remedy for infringement and misappropriation claims and actions.

 

SECTION 7.   Maintenance and Additional Services.

7.1            During the Maintenance Period HelpSystems will provide Client with Maintenance. HelpSystems’ continuing obligation to provide Maintenance is contingent on payment in full of the Maintenance Fees by Client to HelpSystems. HelpSystems maintenance agreements automatically renew for successive twelve (12) month periods unless Client provides written notice of its election to not renew sixty (60) days in advance of the renewal date. HelpSystems may allow Client to pay the annual maintenance fee by credit card (HelpSystems uses a PCI compliant third party system) and, with your agreement, HelpSystems can annually automatically charge the Client credit card upon the renewal date.  Within the sixty (60) day period prior to the expiration of the Maintenance Period, HelpSystems shall send Client an Invoice for Maintenance Fees for the next Maintenance Period. The Maintenance Fees charged to Client for the next Maintenance Period are subject to change in HelpSystems’ sole discretion. Client’s payment of the Maintenance Fee in response to an Invoice for Maintenance prior to the expiration date of the then current Maintenance Period, will extend the Maintenance Period until the new expiration date indicated on HelpSystems’ Invoice for Maintenance.  Client’s failure to pay the Maintenance Fees prior to the expiration date of the then current Maintenance Period shall constitute Client’s election to allow the Maintenance Period to expire without further notice from HelpSystems. If the Maintenance Period is allowed to expire, HelpSystems may condition any subsequent reinstatement of the Maintenance Period on payment by Client to HelpSystems of an additional fee set by HelpSystems in HelpSystems’ sole discretion.   

7.2      The Maintenance provided by HelpSystems during the Maintenance Period specifically and expressly does NOT include any Additional Services as defined in Section 1.1. Should Client require Additional Services, those Additional Services may be available subject to the payment of fees by Client to HelpSystems and as otherwise agreed to in writing by HelpSystems and Client.

7.3      In the event HelpSystems incurs any liability to Client, including but not limited to a credit balance and whether arising from this Agreement or otherwise, HelpSystems may, without notice to Client, set-off the amount of such liability against any liability of Client to HelpSystems, including but not limited to Maintenance Fees to be paid by Client to HelpSystems for Maintenance pursuant to Section 7.1.

 

SECTION 8.   Limited Warranty and Warranty Disclaimer.

8.1      HelpSystems warrants that (a) the Software shall substantially conform to the Functional Specifications and (b) that the Software Documentation shall be substantially free of errors. This warranty shall extend for ninety (90) days from delivery of the Software as set forth in Section 4.1.  In the event of any breach of the warranty set forth in this Section 8.1, HelpSystems’ sole and exclusive responsibility, and the Client’s sole and exclusive remedy, shall be for HelpSystems  to correct or replace, at no additional charge to Client, any portion of the Software found to be defective; provided, however, that if within a commercially reasonable period HelpSystems  neither corrects nor replaces the defective Software, then Client’s sole and exclusive remedy shall be to receive direct damages not to exceed the License Fees paid to HelpSystems.  HelpSystems does not warrant that the operation of the Software will be uninterrupted or error free or that the Software will meet the Client’s operational requirements. HelpSystems is not responsible for errors or defects in the Software caused by changes in or to the operating characteristics of the Client’s computer hardware or operating systems made after delivery of the Software as set forth in Section 4.1 or errors or defects in the Software caused by the interaction of the Software with third party programs or applications.  The warranty set forth in this Section 8.1 shall be void as to Software where noncompliance is caused or related to (a) the acts or omissions of non-HelpSystems personnel, agents, or third parties; (b) any alternations or modifications made to the Software by Client, its personnel or agents; (c) use of the Software other than in the operating environment specified in the Software Documentation; or (d) coding, information, or specifications created or provided by the Client.

8.2      HelpSystems   warrants  that  any  Services  provided  by  HelpSystems   pursuant  to  this  Agreement  shall  be performed in accordance with the prevailing professional standards of the software industry.  In the event of any breach of the warranty set forth in this Section 8.2, HelpSystems’ sole and exclusive responsibility, and the Client’s sole and exclusive remedy, shall be for HelpSystems  to correct, at no additional charge to Client, any portion of the Services found not to meet prevailing professional standards of the software industry; provided, however, that if within a commercially reasonable period HelpSystems  fails to correct the Services found not to meet prevailing professional standards of the software industry, then Client’s sole and exclusive remedy shall be to receive direct damages not to exceed the fees paid to HelpSystems  for the Services.

8.3      In the event of any breach of any provisions of this Agreement other than the warranties set forth in this Agreement, Client’s sole and exclusive remedy shall be to receive direct damages not to exceed the License Fee.

8.4      EXCEPT AS SET FORTH IN THIS SECTION 8, HELPSYSTEMS MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE OR SERVICES, OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY CLIENT. HELPSYSTEMS FURNISHES THE ABOVE WARRANTIES IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

SECTION 9.   Limitation of Liability.

9.1      HELPSYSTEMS SHALL NOT BE LIABLE FOR ANY (a) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT OR THE OPERATION OR USE OF THE SOFTWARE OR SERVICES INCLUDING SUCH DAMAGES, WITHOUT LIMITATION, AS DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST CUSTOMER BY ANY THIRD PARTY, EVEN IF HELPSYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (b) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY HELPSYSTEMS  TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND HELPSYSTEMS’ REASONABLE CONTROL; OR (c) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST HELPSYSTEMS  MORE THAN ONE (1) YEAR AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE.

9.2      NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, BUT EXCLUDING ANY CLAIMS FOR INDEMNIFICATION UNDER SECTION 6, HELPSYSTEMS’ LIABILITY UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, OR OTHERWISE SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY RECEIVED BY HELPSYSTEMS UNDER THIS AGREEMENT.

 

SECTION 10. Termination.

10.1    HelpSystems shall have the right to terminate this Agreement if (a) Client fails to pay any fees that are due, other than for Maintenance, within ten (10) days after receiving written notice of such obligation from HelpSystems; (b) Client breaches any provision of this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of such breach; or (c) a proceeding is instituted by or against Client seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking an entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property or taking any action to authorize any of the foregoing or similar actions by or against Client.

10.2       Client shall have the right to terminate this Agreement if (a) HelpSystems breaches any provision of this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of such breach; or (b) a proceeding is instituted by or against HelpSystems  seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking an entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property or taking any action to authorize any of the foregoing or similar actions by or against HelpSystems .

10.3    Upon any termination of this Agreement, Client shall make no further use of the Software and shall either return to HelpSystems or destroy originals and all copies of the Software and Software Documentation.  Client shall supply a written affidavit executed by an officer of Client to HelpSystems certifying that it no longer possesses any embodiments of the Software or Software Documentation. No refunds or credits will be due Client.

 

SECTION 11.        Governing Law; Venue.

HelpSystems and Client agree that this Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota without regard to conflict of laws principles.  Any action or proceeding seeking to enforce any provisions of, or based on any right or claim arising out of this Agreement will be brought against HelpSystems or Client in Hennepin County Circuit Court of the State of Minnesota or, subject to applicable jurisdictional requirements in the United States District Court of the District of Minnesota, and HelpSystems  and Client consent to  the  jurisdiction of  such courts (and of  the  appropriate appellate courts) in  any such  action or proceeding and waives any objection to such venue.

 

SECTION 12.         Waiver.

HelpSystems and Client agree that this Agreement may not be changed or modified, nor may any provision hereof be waived, except as agreed to in writing by HelpSystems and Client.

 

SECTION 13.         Severability.

If any provision of this Agreement is found to be illegal, invalid, or unenforceable, that provision shall not affect the validity or enforceability of this Agreement as a whole, and this Agreement shall then be construed in all respects as if such invalid or unenforceable provision was omitted.

CLIENT ACKNOWLEDGES THAT CLIENT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. CLIENT FURTHER AGREES THAT THE AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN HELPSYSTEMS  AND CLIENT AND THAT IT SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS, NEGOTIATIONS, DISCUSSIONS, AND PROPOSALS, ORAL OR WRITTEN, AND ANY AND ALL OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTERS OF THE AGREEMENT.

 

 

HelpSystems, LLC SOFTWARE LICENSE AND SERVICES AGREEMENT

-Subscription-

 

This subscription software license and service agreement (“Agreement”) is made by and between HelpSystems LLC (HelpSystems) and the entity on whose behalf such individual accepts this Agreement (“Client’) formed by installing or updating the Software. Please read all the terms and conditions set forth in this Agreement before accepting this Agreement. By installing or updating the Software Client herby agrees to, and agrees to be bound by, the terms and conditions set forth in this Agreement, and represents to HelpSystems that it is authorized to do so. If you do not agree to all the terms of this Agreement or if you do not have the authority to bind the Company or organization on whose behalf you are accepting this Agreement, do not install or update the Software.

 

SECTION 1.   Definitions.

 For the purposes of this Agreement, the following terms have the meanings set forth below:

1.1        “Additional   Services”   shall   mean   implementation or integration services; training services; programming or coding services; data conversion services; or on-site consultation, other than those services provided by Maintenance defined in Section 1.9, provided by HelpSystems at the request of the Client.

1.2         “Authorized Device” shall mean a server, partition, computer, or any other virtual or otherwise emulated hardware system controlled or owned by Client and sanctioned by HelpSystems.

1.3         “Authorized User” shall mean a designated person or number of persons who are granted access to the Software by HelpSystems.

1.4      “Confidential Information” means any material, data, or information in whatever form or media of a party to this Agreement that is provided or disclosed to the other, and shall include, the Services rendered by HelpSystems to Client, the Software licensed by HelpSystems to Client, financial and operational information, and other matter relating to the operation of HelpSystems’ or Client’s business, including information relating to actual or potential customers, accounting, finance or tax information and pricing information.

1.5           “Invoice” shall mean any statement of charges issued by HelpSystems for Software, Maintenance, or Services.

1.6         “Effective Date” shall mean the date the Client accepts this Agreement.

1.7         “Functional Specifications” shall mean those system and operational requirements set forth in the Software Documentation to which the Software shall conform.

1.8         “License Fees” shall mean the fees paid to HelpSystems for the right to use the version of the Software which is current at the time of the Effective Date. All fees are non-refundable.

1.9        “Maintenance” shall mean providing the Client with (a) access to HelpSystems’ technical assistance; (b) access to HelpSystems’ self-service utilities; and (c) access to updates, and enhancements of the Software.

1.10       “Maintenance Fees” shall mean the fees paid to HelpSystems for Maintenance. All fees are non-refundable.

1.11       “Maintenance Period” shall mean the period of time that HelpSystems will provide Maintenance. The initial Maintenance Period shall commence and expire on the dates indicated on the Invoice. The Maintenance Period may be renewed by the Client in accordance with Section 7.

1.12       “Services” shall mean collectively any Maintenance and Additional Services provided by HelpSystems.

1.13       “Software” shall mean the products delivered to Client under the terms of this Agreement, including all updates, add-ons, and enhancements created by HelpSystems for those products.

1.14       “Software Documentation” shall mean any tutorials, technical publications, and materials supplied with the Software which include system requirements for implementation and operation of the Software as well as the Functional Specifications of the Software.

1.15       “Subscription Period” shall mean the limited period of time, agreed upon by the parties, for which the license is granted.

 

SECTION 2.   Scope and Term of Agreement.

This Agreement sets forth the terms and conditions under which HelpSystems shall license the Software and provide Maintenance and Services to Client. The Subscription Period may be extended by agreement of the parties and  shall remain in effect unless and until terminated by HelpSystems or Client in accordance with Section 10.

 

SECTION 3.   Software License.

3.1      Subject to the terms and provisions of this Agreement, as well as the payment of License Fees, HelpSystems hereby grants to Client, or an Authorized User of the Client, a limited, non-exclusive, non-transferable, and non-assignable license to use the version of the Software which is current at the time of the Effective Date for Client’s internal business purposes for the Subscription Period. The license covers the version of the Software which is current at the time of the Effective Date and any available Software Documentation.

3.2      Client may install or otherwise utilize the Software on an Authorized Device. The Software may not be moved to another device. If the Client desires to move the Software to another device, the Client shall secure the prior approval of HelpSystems, which may be granted subject to an additional fee.     Client shall not alter, copy, modify, adapt, reverse engineer, decompile, disassemble, or create derivative works from the Software, nor take any other action intended to reproduce the source code of the Software or any part thereof without the prior written consent of HelpSystems. The Client shall not remove any copyright or proprietary rights notices from the Software and shall reproduce all such notices on any copies made in accordance with this Section 3.2.

3.3      Client may be allowed to transfer its right to use the Software provided (a) Client is in receipt of the prior written consent of HelpSystems, which may be withheld by HelpSystems in HelpSystems’ sole discretion; (b) Client has paid any additional fee which HelpSystems may charge Client in HelpSystems’ sole discretion; and (c) Client transfers the most recent production release of the Software, including any and all updates to the Software.  Any transfer of Client’s right to use the Software made in violation of the terms and provisions of this Section 3.3 shall constitute a breach of this Agreement.

3.4      Client agrees that the Software will not be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act, or any other export laws, restrictions, or regulations.

 

SECTION 4.   Software Delivery and Installation.


4.1      Upon payment of the License Fee, HelpSystems shall make the version of the Software

which is current at the time of the Effective Date available to Client along with a limited key. Whether by providing an electronic download, physical distribution, or any other form of conveyance, the software shall be deemed delivered once it is made available to Client. The Client may also access and utilize any Software Documentation related to the Software delivered under the terms of this agreement.

4.2      Client shall be responsible for installation of the Software on an Authorized Device that meets the requirements for operation of the Software as identified in the Software Documentation.

 

SECTION 5.   Nondisclosure of Confidential Information.

5.1      HelpSystems and Client agree that the party receiving Confidential Information shall exercise the same degree of care and protection with respect to the Confidential Information of the party disclosing the Confidential information that it would exercise with respect to its own Confidential Information and shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the disclosing party, without the prior written consent of the disclosing party, except the receiving party may disclose Confidential Information on a need-to-know basis, to employees, agents or representatives of the receiving party who are informed by the receiving party of the confidential nature of the Confidential Information and the obligations of the receiving party under this Agreement or in accordance with a judicial or other governmental order, but only if the receiving party promptly notifies the disclosing party of the order and complies with any applicable protective or similar order.  The receiving party will cause its employees, agents and representatives to comply with the provisions of this Section 5.1.

5.2      HelpSystems and Client agree that the party receiving Confidential Information will promptly notify the disclosing party of any unauthorized use or disclosure of Confidential Information, or any other breach of this Agreement; and assist the disclosing party in every reasonable way to retrieve any Confidential Information that was used or disclosed by the receiving party or an employee, agent and representative of the receiving party without the disclosing party’s specific prior written authorization and to mitigate the harm caused by the unauthorized use or disclosure.

5.3      HelpSystems and Client agree that the party receiving Confidential Information will not breach Section 5.1 or Section 5.2 by using or disclosing Confidential Information if the receiving party demonstrates that the information used or disclosed (a) is generally available to the public other than as a result of a disclosure by the receiving party or an employee, agent and representative of the receiving party; (b) was received by the receiving party from a third party without any limitations on use or disclosure; or (c) was independently developed by the receiving party without use of the Confidential Information.

5.4      HelpSystems and Client agree that upon the request of the party disclosing Confidential Information, the receiving party will (a) promptly return to the disclosing party all materials furnished by the disclosing party containing Confidential Information, together with all copies and summaries of Confidential Information in the possession or under the control of the receiving party, and provide written certification that all such Confidential Information has been returned to the disclosing party, or (b) promptly destroy all materials furnished by the disclosing party containing Confidential Information, together with all copies and summaries of Confidential Information in the possession or under the control of the receiving party, and provide written certification that all such Confidential Information has been destroyed by the receiving party.

5.5      HelpSystems and Client acknowledge and agree that the remedies available at law for any breach of this Agreement will, by their nature, be inadequate.   Accordingly, each party may obtain injunctive relief or other equitable relief to restrain a breach or threatened breach of this Agreement or to specifically enforce this Agreement, without proving that any monetary damages have been sustained.

 

SECTION 6.   Software Ownership Rights; Intellectual Property Rights and Intellectual Property Rights Indemnification by HelpSystems.

6.1      Client acknowledges and agrees that the Software and Software Documentation, and all intellectual property rights therein, are (a) the sole and exclusive property of HelpSystems; (b) protected by United States Copyright Law; and (c) the Software is a trade secret of HelpSystems.  Except to the limited extent required for Client to use the Software pursuant to the license granted in Section 3.1, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license in any existing or future intellectual property of HelpSystems. No title or ownership rights to the Software are transferred to Client by this Agreement, but shall remain with HelpSystems. All rights not expressly granted by HelpSystems with respect to the Software under this Agreement are reserved by HelpSystems.

6.2      HelpSystems shall defend at its own expense any action against Client brought by a third party to the extent that the action is based upon a claim that the Software directly infringes any copyright filed in the United States or misappropriates any trade secret recognized as such under the Uniform Trade Secrets Act, and HelpSystems will  pay  those  costs  and  damages finally awarded  against  Client  in  any  such  action  that  are  specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. HelpSystems obligations under this Section 6.2 are conditioned on (a) Client notifying HelpSystems within ten (10) days of notice of such action, (b) Client giving HelpSystems  sole control of the defense thereof and any related settlement negotiations, and (c) Client cooperating with HelpSystems in such defense (including, without limitation, by making available to HelpSystems all documents and materials in Client’s possession or control that are relevant to the infringement or misappropriation claims, and by making Client’s personnel available to testify or  consult with HelpSystems or  its attorneys in connection with said defense). If the Software becomes, or in HelpSystems’ opinion is likely to become, the subject of an infringement or misappropriate claim, HelpSystems  may, at its option and expense, either (i) procure for client the right to continue using the Software; (ii) replace or modify the Software so that it becomes non- infringing, or (iii) terminate Client’s right to use the Software and give Client a refund or credit of the amounts actually paid by Client to HelpSystems  for the Software less a reasonable allowance for the period of time Client has used the Software.   HelpSystems will have no obligation with respect to any infringement or misappropriation claim based upon (1) any use of the Software not in accordance with the Agreement or for purposes not intended by HelpSystems; (2) any use of the Software in combination with other products, equipment, software, or data not supplied by HelpSystems; (3) any use of any release of the Software other than the most current release made available to Client; or (4) any modification of the Software made by any person other than HelpSystems. This Section 6.2 states HelpSystems’ entire liability and Client’s sole and exclusive remedy for infringement and misappropriation claims and actions.

 

SECTION 7.   Maintenance and Additional Services.

7.1            During the Maintenance Period HelpSystems will provide Client with Maintenance. HelpSystems’ continuing obligation to provide Maintenance is contingent on payment in full of the Maintenance Fees by Client to HelpSystems. If the Subscription Period is extended HelpSystems maintenance may be extended upon payment of the Maintenance Fee.  Client’s failure to pay the Maintenance Fees prior to the expiration date of the then current Maintenance Period shall constitute Client’s election to allow the Maintenance Period to expire without further notice from HelpSystems. If the Maintenance Period is allowed to expire, HelpSystems may condition any subsequent reinstatement of the Maintenance Period on payment by Client to HelpSystems of an additional fee set by HelpSystems in HelpSystems’ sole discretion.   

7.2      The Maintenance provided by HelpSystems during the Maintenance Period specifically and expressly does NOT include any Additional Services as defined in Section 1.1. Should Client require Additional Services, those Additional Services may be available subject to the payment of fees by Client to HelpSystems and as otherwise agreed to in writing by HelpSystems and Client.

 

SECTION 8.   Limited Warranty and Warranty Disclaimer.

8.1      HelpSystems warrants that (a) the Software shall substantially conform to the Functional Specifications and (b) that the Software Documentation shall be substantially free of errors. This warranty shall extend for ninety (90) days from delivery of the Software as set forth in Section 4.1.  In the event of any breach of the warranty set forth in this Section 8.1, HelpSystems’ sole and exclusive responsibility, and the Client’s sole and exclusive remedy, shall be for HelpSystems  to correct or replace, at no additional charge to Client, any portion of the Software found to be defective; provided, however, that if within a commercially reasonable period HelpSystems  neither corrects nor replaces the defective Software, then Client’s sole and exclusive remedy shall be to receive direct damages not to exceed the License Fees paid to HelpSystems.  HelpSystems does not warrant that the operation of the Software will be uninterrupted or error free or that the Software will meet the Client’s operational requirements. HelpSystems is not responsible for errors or defects in the Software caused by changes in or to the operating characteristics of the Client’s computer hardware or operating systems made after delivery of the Software as set forth in Section 4.1 or errors or defects in the Software caused by the interaction of the Software with third party programs or applications.  The warranty set forth in this Section 8.1 shall be void as to Software where noncompliance is caused or related to (a) the acts or omissions of non-HelpSystems personnel, agents, or third parties; (b) any alternations or modifications made to the Software by Client, its personnel or agents; (c) use of the Software other than in the operating environment specified in the Software Documentation; or (d) coding, information, or specifications created or provided by the Client.

8.2      HelpSystems   warrants  that  any  Services  provided  by  HelpSystems   pursuant  to  this  Agreement  shall  be performed in accordance with the prevailing professional standards of the software industry.  In the event of any breach of the warranty set forth in this Section 8.2, HelpSystems’ sole and exclusive responsibility, and the Client’s sole and exclusive remedy, shall be for HelpSystems  to correct, at no additional charge to Client, any portion of the Services found not to meet prevailing professional standards of the software industry; provided, however, that if within a commercially reasonable period HelpSystems  fails to correct the Services found not to meet prevailing professional standards of the software industry, then Client’s sole and exclusive remedy shall be to receive direct damages not to exceed the fees paid to HelpSystems  for the Services.

8.3      In the event of any breach of any provisions of this Agreement other than the warranties set forth in this Agreement, Client’s sole and exclusive remedy shall be to receive direct damages not to exceed the License Fee.

8.4      EXCEPT AS SET FORTH IN THIS SECTION 8, HELPSYSTEMS MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE OR SERVICES, OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY CLIENT. HELPSYSTEMS FURNISHES THE ABOVE WARRANTIES IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

SECTION 9.   Limitation of Liability.

9.1      HELPSYSTEMS SHALL NOT BE LIABLE FOR ANY (a) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT OR THE OPERATION OR USE OF THE SOFTWARE OR SERVICES INCLUDING SUCH DAMAGES, WITHOUT LIMITATION, AS DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST CUSTOMER BY ANY THIRD PARTY, EVEN IF HELPSYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (b) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY HELPSYSTEMS  TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND HELPSYSTEMS’ REASONABLE CONTROL; OR (c) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST HELPSYSTEMS  MORE THAN ONE (1) YEAR AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE.

9.2      NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, BUT EXCLUDING ANY CLAIMS FOR INDEMNIFICATION UNDER SECTION 6, HELPSYSTEMS’ LIABILITY UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, OR OTHERWISE SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY RECEIVED BY HELPSYSTEMS UNDER THIS AGREEMENT.

 

SECTION 10. Termination.

10.1    HelpSystems shall have the right to terminate this Agreement if (a) Client fails to pay any fees that are due, other than for Maintenance, within ten (10) days after receiving written notice of such obligation from HelpSystems; (b) Client breaches any provision of this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of such breach; or (c) a proceeding is instituted by or against Client seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking an entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property or taking any action to authorize any of the foregoing or similar actions by or against Client.

10.2       Client shall have the right to terminate this Agreement if (a) HelpSystems breaches any provision of this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of such breach; or (b) a proceeding is instituted by or against HelpSystems  seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking an entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property or taking any action to authorize any of the foregoing or similar actions by or against HelpSystems .

10.3    Upon any termination of this Agreement, Client shall make no further use of the Software and shall either return to HelpSystems or destroy originals and all copies of the Software and Software Documentation.  Client shall supply a written affidavit executed by an officer of Client to HelpSystems certifying that it no longer possesses any embodiments of the Software or Software Documentation. No refunds or credits will be due Client.

 

SECTION 11.        Governing Law; Venue.

HelpSystems and Client agree that this Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota without regard to conflict of laws principles.  Any action or proceeding seeking to enforce any provisions of, or based on any right or claim arising out of this Agreement will be brought against HelpSystems or Client in Hennepin County Circuit Court of the State of Minnesota or, subject to applicable jurisdictional requirements in the United States District Court of the District of Minnesota, and HelpSystems  and Client consent to  the  jurisdiction of  such courts (and of  the  appropriate appellate courts) in  any such  action or proceeding and waives any objection to such venue.

 

SECTION 12.         Waiver.

HelpSystems and Client agree that this Agreement may not be changed or modified, nor may any provision hereof be waived, except as agreed to in writing by HelpSystems and Client.

 

SECTION 13.         Severability.

If any provision of this Agreement is found to be illegal, invalid, or unenforceable, that provision shall not affect the validity or enforceability of this Agreement as a whole, and this Agreement shall then be construed in all respects as if such invalid or unenforceable provision was omitted.

CLIENT ACKNOWLEDGES THAT CLIENT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. CLIENT FURTHER AGREES THAT THE AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN HELPSYSTEMS  AND CLIENT AND THAT IT SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS, NEGOTIATIONS, DISCUSSIONS, AND PROPOSALS, ORAL OR WRITTEN, AND ANY AND ALL OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTERS OF THE AGREEMENT.