Please read this agreement carefully. To complete your order for the product and/or service you’ve requested, you must first read and accept the terms and conditions of this agreement (“Agreement”). Submission of your order constitutes acceptance of these terms and conditions.
Customer is subject to the terms and conditions of this Agreement whether Customer accesses or obtains the Licensor Software directly from the Website or through any other source. By Using, installing, and/or Operating the Licensor Software, Customer agrees to be bound by the terms of this Agreement. If Customer does not agree to the terms and conditions of this Agreement, Licensor is unwilling to license the Licensor Software to Customer. In such event, Customer may not Use, install, and/or Operate Licensor Software in any way. The Customer will not Use, Operate, or install Licensor Software on any computers, workstations, personal digital assistants, smart phones, mobile phones, hand-held devices, or other electronic devices for which the Software was designed (each a “Client Device”), unless or until Customer accepts the terms of this Agreement.
IF CUSTOMER CHOOSES TO ACCEPT THIS AGREEMENT, CUSTOMER MAY DO SO BY EITHER (1) CHECKING “I AGREE TO TERMS AND CONDITIONS OF THIS AGREEMENT” USING THE DESIGNATED CHECK BOX OR (2) PRINTING OUT THIS AGREEMENT, PHYSICALLY SIGNING IT, SCANNING THE SIGNED COPY, AND SENDING IT TO [email protected] OR TO THE ADDRESS COMMUNICATED BY A LICENSOR REPRESENTATIVE. CUSTOMER’S CLICK OF THE “I AGREE TO TERMS AND CONDITIONS OF THIS AGREEMENT” BUTTON IS A SYMBOL OF CUSTOMER’S SIGNATURE AND BY CLICKING ON THE “I AGREE TO TERMS AND CONDITIONS OF THIS AGREEMENT” BUTTON, CUSTOMER CONSENTS TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE. CUSTOMER’S SIGNATURE CONFIRMS THAT CUSTOMER AGREES TO TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN CUSTOMER SHOULD NOT SIGN THE AGREEMENT AND CUSTOMER WILL NOT BE ALLOWED TO USE, INSTALL, AND/OR OPERATE THE LICENSOR SOFTWARE.
LICENSOR MAY, IN ADDITION TO ELECTRONIC OR PHYSICAL EXECUTION OF THIS AGREEMENT, APPROVE THIS DOCUMENT AND THE CUSTOMER AS PARTY HERETO BY SENDING A LICENSE REGISTRATION KEY TO CUSTOMER IN CASE CUSTOMER IS GRANTED AN IN-HOUSE LICENSE AS DESCRIBED BELOW IN SECTION 2.1. LICENSOR RESERVES THE RIGHT TO TURN DOWN ANY OFFERS BY ANY CUSTOMER IN ITS ABSOLUTE DISCRETION, AND IN CASE OF SUCH REFUSAL, IF CUSTOMER MADE ANY PAYMENTS PRIOR TO LICENSOR’S ACCEPTANCE THEREOF, SUCH PAYMENTS WILL BE REFUNDED TO CUSTOMER. FOR AVOIDANCE OF DOUBT, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, LICENSOR RESERVES THE RIGHT NOT TO ACCEPT THIS AGREEMENT AND NOT TO PROVIDE CUSTOMER WITH THE RIGHT TO USE, INSTALL, AND/OR OPERATE THE LICENSOR SOFTWARE AS CONTEMPLATED HEREUNDER FOR ANY REASON WHATSOEVER OR NO REASON AT ALL.
1.1. “Affiliate” shall mean, with respect to a given Person, any person or entity which, directly or indirectly, controls, is controlled by, or is under common control with, the given Person; “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).
1.2. “Confidential Information” shall mean any information, product, document or other material of any nature relating to or concerning Licensor or Customer and/or their Affiliates, that is provided or made available to receiving Party either before or after the Effective Date, directly or indirectly in any form whatsoever, including in writing, orally, and machine readable, and including, but not be limited to, any correspondence, memoranda, notes, e-mails, formulas, samples, equipment, compilations, blueprints, business information, technical information, know-how, information regarding patents, patent applications, software, computer Object Code or Source Code, algorithms, high-level structures, graphic user interfaces, ongoing research and development, business plans, business or marketing strategies or plans, products or product development strategies or plans, information concerning current and future products and services, customers, suppliers and markets, price lists and pricing information, financial statements and forecasts, computerized or other magnetically filed data, methods and techniques, manufacturing processes, developments, inventions, designs, drawings, engineering specifications, hardware configuration information, trade secrets, financial information of Licensor or Customer and/or their Affiliates and any other business records and information, including without limitation the information about this Agreement, the use or disclosure of which might reasonably be construed to be contrary to the interests of disclosing Party, including information of third parties subject to confidentiality obligations and which one Party may share with the other Party, provided, however, that Confidential Information shall not include information which: (i) that is already in the possession of receiving Party before receipt from disclosing Party; (ii) is or becomes rightfully in the public domain without no fault of disclosing Party; (iii) is received by receiving Party from a third party who or which is not under any obligation of confidentiality or restriction on use or disclosure concerning such information, or (iv) is disclosed under operation of law to the public or to a third party without a duty of confidentiality. If a Party asserts one of the four exceptions to Confidential Information above, then such Party shall prove such assertion by proper forms of documentary evidence.
1.3. “Customer Marks” shall mean all proprietary indicia and designations of origin, trademarks, trade names, trade dress, service marks, service names, symbols, logos, and other distinct brand elements that appear from time to time in properties, products, ventures and services of Customer or any of its Affiliates, together with any modifications to the foregoing made by such parties during the term of this Agreement.
1.4. “Documentation” shall mean user manuals, training materials, Software and product descriptions and specifications, technical manuals, supporting materials, maintenance know how, text and graphic elements of all user interfaces and any modifications or upgrades of the foregoing, developed and published electronically or otherwise for use in connection with Licensor Materials, Software, and Licensor Server, provided or made available by Licensor from time to time.
1.5. “End User” shall mean any Person that licenses Software for his, her, or its use and not for redistribution.
1.6. “Governmental Authority” means any court or federal, state, municipal, or other governmental or quasi-governmental authority, department, commission, board, agency or instrumentality, foreign or domestic, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any Licensor or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.
1.7. “Hosted Data” shall have the meaning set forth in Section 5.1(b).
1.8. “Intellectual Property Rights” shall mean all forms of intellectual property rights and protections that may be obtained for, or may pertain to Licensor Materials, Documentation, Software, Server, Confidential Information, and Parties’ trademarks and may include, without limitation:
1.9. “Licensor Marks” shall mean all proprietary indicia and designations of origin, trademarks, trade names, trade dress, service marks, service names, symbols, logos and other distinct brand elements that appear from time to time in properties, Software, ventures, and services of Licensor or any of its Affiliates, together with any modifications to the foregoing made by such parties during the Term of this Agreement.
1.10. “Licensor Materials” shall mean any and all software solutions and/or model concepts created and developed by Licensor, including Third Party Software, and licensed to Customer under this Agreement as further set forth in the Exhibit A.
1.11. “Licensor Server” shall mean that certain portion of Licensor’s servers, which are allocated to the Customer for its Use as licensed as a Hosted SaaS License defined below in Section 2.1.
1.12. “License Registration Key” shall mean, with regard to the In-House License defined below in Section 2.1., a serial number provided by Licensor that enables Customer to activate and use the Software.
1.13. “Object Code” shall mean computer programs assembled or compiled in a magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse-assembly, reverse-compiling, or Reverse Engineering.
1.14. “Operate” shall mean accessing, downloading, storing, loading, installing, executing, displaying, and copying Licensor Materials, Documentation, Software, and Server, as applicable, into the memory of a computer or otherwise benefiting from using the functionality of the Licensor Software in accordance with the Documentation.
1.15. “Person” means any individual, partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or Governmental Authority.
1.16. “Reverse Engineering” shall mean the examination, disassembly, decompilation, decryption, simulation, code tracing of object code or executable code, debugging, or analysis of the Software or Confidential Information to determine its Source Code, structure, organization, internal design, constituent technologies, algorithms, or encryption devices.
1.17. “Software” shall mean the Birdview is a project planning software, including, but not limited to, associated Licensor proprietary software and solutions including all forms of code, such as Source Code and Object Code, any upgrades, modified versions, updates, and additions thereto, in any form and on any media including all fixes, modifications, enhancements and new releases of the foregoing, which is technically characterized by the exclusive administration and storage of all master data, including, without limitation, variant management related information, such as feature models and variant models by specific components of the Licensor Materials and all related Documentation included therewith in any form and on any media and all fixes, Updates, modifications, enhancements and new releases of the foregoing and those related materials sold and/or used in connection therewith.
1.18. “Source Code” shall mean the human-readable form of the computer programming code and related system documentation including all comments and any procedural code.
1.19. “Third Party Software” shall mean third party software products combined with Licensor Materials to create Software and may be used by Customer solely in accordance with the licenses granted herein and by such third parties, as applicable, during and after the expiration of this Agreement.
1.20. “Updates” shall mean new versions of the Software provided by Licensor as outlined in Sections 2.2 and 2.3.
1.21. “Website” shall mean the Internet website(s) maintained by or on behalf of Licensor from which the Licensor Software is available for license pursuant to the License from Licensor as specified hereto in Section 2. The Website is currently located at https://www.easyprojects.net/.
2.1. License Grant and Versions. Licensor grants to Customer the following rights and privileges (the “License”) and Customer hereby accepts such License:
2.2. License Fees. Customer shall transmit to Licensor License Fee(s) for the applicable License (as specified in Section 2.1) as described and indicated in the Ordering Document, Licensor Quotes, as agreed in writing between by the Licensor and Customer, or as set indicated in the then-current pricing list on Licensor Website in the Pricing section located at https://www.easyprojects.net/hosted-pricing-page/.
2.3. Updates to Hosted SaaS License. Licensor may provide and implement Updates and upgrades to the Software licensed under Hosted SaaS License at its sole discretion in such form as Licensor finds appropriate, from time to time.
2.4. Updates to In-House Software.
2.6. Third Party Software. In order to Operate the Software, Customer may be required to install and use additional third-party software which may be recommended by Licensor but is not licensed hereunder and not under Licensor’s control. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant Customer any rights or licenses with regard to such third-party software or to entitle Customer to use such software. All Third Party Software licensors retain all right, title, and interest in and to such Third Party Software, and all copies thereof, including all copyright and other intellectual property rights. Customer’s use of any Third Party Software shall be subject to, and Customer shall comply with, the terms and conditions of this Agreement, and the applicable restrictions and other terms and conditions set forth in any Third Party Software documentation or printed materials, including without limitation all applicable end user license agreements.
3.1. Customer agrees that all right, title, and interest in and to Software, including Updates, modifications, developments, improvements, enhancements, and all Intellectual Property Rights are, and always shall remain, the sole and exclusive property of Licensor.
3.2. Customer acknowledges that the Source Code for the Software is proprietary to Licensor and constitutes trade secrets of Licensor. No right to disclose, use, print, copy, or display Software in whole or in part is granted hereby, except as expressly provided herein. Licensor retains the right to market and distribute the Software worldwide through retail, distribution, and any other marketing channels. Nothing in this Agreement shall preclude Licensor from marketing, distributing, licensing, selling, leasing, maintaining, or servicing any Software worldwide through retail, distribution, and any other marketing channels, to any distributor, dealer or customer.
3.3. Except as otherwise specifically provided herein, Customer may not transfer or assign any of the rights granted to Customer under this Agreement or any of Customer’s obligations pursuant hereto.
3.4. Customer agrees that it may not sell, loan, rent, lease, loan, license, sublicense, publish, display, distribute, or otherwise transfer to a third party the Software, any copy or use thereof, in whole or in part, without Licensor’s prior written consent nor rent, sublicense, lease, loan, or resell the Software or the License granted hereunder.
3.5. Customer may not permit third parties to benefit from the use or functionality of the Software via a timesharing, service borrowing, or other arrangement.
3.6. Customer may be obliged to provide Licensor data of Customer’s company if Licensor has doubts about the authenticity of data provided during registration or in case of the unlawful use of the program.
3.7. Except as otherwise expressly set forth in this Agreement, Customer, without Licensor’s advance written consent, shall not:
4.1. Customer Representations and Warranties. Customer represents and warrants that:
4.2. Licensor Representations and Warranties. Licensor represents and warrants as follows:
5.1. Personal Data.
5.2. Securing Hosted Data under Hosted SaaS License. If the Software is licensed under a Hosted SaaS License, Hosted Data shall be secured by Licensor’s pursuant to the industry standards, including the use of automated back-up systems, secure servers, and restricted access to back-office systems with regard to the Software provided however that Customer acknowledges and agrees that (i) such measures, procedures and standards cannot guarantee absolute and complete security and integrity of Hosted Data, and (ii) Licensor shall not be liable for the loss or modification of any Hosted Data or Customer materials due to failure of such security measures, procedures and standards . Other than as provided in Section 4.2(e) Licensor makes no guarantee or warranty and assumes no liability for the security of any Hosted Data on Software, including “secure servers.” Customer shall maintain separate backups of any data that made part of Hosted Data as described Section 4.2(b). Customer shall use strong passwords, keep them discreet and otherwise ensure security of access to its data and account hosted under the Hosted SaaS License. Licensor’s backup systems with regard to the Software are reserved for Licensor use only and are not available to Customer for the purposes of requesting data whereby such missing or defective data is a result of circumstances unrelated to Licensor’s system failures or breach of security.
6.1. Limited Warranty. Licensor represents and warrants that the Software will operate substantially in accordance with the Documentation during the Term if operated strictly pursuant to and in accordance with the Documentation and Specifications, including without limitation, strict compliance with Licensor’s requirements to the Customer’s hardware, software, operating system and interoperability. Licensor specifically disclaims any warranty with regard to any third party software or product operating in conjunction with the Software.
6.2. NO IMPLIED OR OTHER WARRANTIES. EXCEPT FOR THE WARRANITES SET FORTH IN SECTION 6.1 OR ANY WARRANTY, CONDITION, REPRESENTATION, OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO CUSTOMER IN ITS JURISDICTION, THE SOFTWARE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY WHATSOEVER AND LICENSOR MAKES NO PROMISES, REPRESENTATIONS, OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, REGARDING OR RELATING TO THE SOFTWARE OR CONTENT THEREIN OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO CUSTOMER PURSUANT TO THIS AGREEMENT OR OTHERWISE. CUSTOMER ASSUMES ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE SOFTWARE TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. LICENSOR MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE AND THE ACCOMPANYING WRITTEN MATERIALS OR THE USE THEREOF. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. CUSTOMER HEREBY ACKNOWLEDGE THAT THE SOFTWARE MAY NOT BE OR BECOME AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND OMISSIONS OF THIRD PARTIES. THEREFORE, LICENSOR EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE. LICENSOR DISCLAIMS ANY AND ALL LIABILITY FOR THE LOSS OF DATA DURING ANY COMMUNICATIONS AND ANY LIABILITY ARISING FROM OR RELATED TO ANY FAILURE BY LICENSOR TO TRANSMIT ACCURATE OR COMPLETE INFORMATION TO CUSTOMER.
6.3. LIMITED LIABILITY; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. CUSTOMER ASSUMES THE ENTIRE COST OF ANY DAMAGE RESULTING FROM CUSTOMER’S USE OF THE SOFTWARE AND THE INFORMATION CONTAINED IN OR COMPILED BY THE SOFTWARE, AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR THE INCOMPATIBILITY OF THE SOFTWARE WITH ANY HARDWARE, SOFTWARE OR USAGE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR’S TOTAL LIABILITY TO CUSTOMER FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SOFTWARE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
6.4. Notwithstanding any provision to the contrary herein, the liability of each Party to the other for any claim whatsoever related to the Software or this Agreement, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the total amount of payments paid or payable by Customer to Licensor during the previous twelve (12) month period in connection with the licensed Software relating to such liability.
7.1. Customer shall keep Confidential Information of Licensor in strict confidence and shall not make use of Confidential Information for any purpose other than in connection with this Agreement and to implement reasonable security measures to protect such Confidential Information, but without limitation to the foregoing, shall use best efforts to maintain the security of the License Registration Key provided to Customer when Customer is granted an In-House License by Licensor and/or its authorized resellers or distributors, provided that notwithstanding the foregoing, any embedded License Registration Key information in the html source shall not be deemed a public disclosure or a violation of this Agreement.
7.2. Customer shall notify Licensor if disclosure of Confidential Information is necessary to comply with the requirements of any law, government order, regulation, or legal process prior to such disclosure and Customer, at Licensor request, shall use best efforts to seek an appropriate protective order in connection with such legal process and, if unsuccessful, to use best efforts to assure that confidential treatment will be accorded to the disclosed Confidential Information.
7.3. Customer shall take all necessary steps to ensure compliance by its employees or its other representatives with Customer’s obligations under this Agreement.
7.4. Customer shall keep and maintain accurate books, records, reports, and customer data relating to Software for a period of two (2) years following expiration or termination of this Agreement.
7.5. Customer shall in Operating the Software and in using any report or information derived as a result of Operating this Software, comply with all applicable international, national, state, regional and local laws and regulations, including, without limitation, privacy, trademark, patent, anti-spam, copyright and obscenity law and Customer shall not use the Software for unethical, illegal, prohibited practices or in violation of any obligation to a third party in using, operating, accessing or using any of the Software or its functionality and shall not assist any other person or entity to so violate any obligation to a third party.
7.6. Customer shall in exercising its rights and performing its obligations hereunder, comply with all applicable international, national, governmental, quasi-governmental and/or local laws and regulations, including without limitation, relevant embargo and export laws and regulations, and assure that, in connection with performance of its obligations pursuant to this Agreement, or arising or relating therefrom, no Software, Documentation, Confidential Information or any portion thereof, and any information relating thereto or to this Agreement, is exported, transshipped, or re-exported, directly or indirectly any to any individual, group, organization, entity or nation in violation of any applicable law.
7.7. Customer shall ensure that Users are properly trained and possess sufficient knowledge and qualifications in the field.
Term. The term of this Agreement (as may be extended from time to time, “Term”) shall begin upon the Effective Date and shall continue, unless otherwise terminated pursuant hereto, for the term specified in the License granted hereunder and/or in the Ordering Document, provided, however, that (i) the Customer acknowledges and agrees that for monthly and other term subscriptions, the Agreement will be extended and renewed automatically pursuant to the same terms and conditions unless the subscription is cancelled by the Customer prior to the commencement of the renewal period, (ii) this Agreement shall be deemed terminated if Customer committed any willful or material breach of this Agreement, and (iii) in case of termination of this Agreement for any reason other than willful violation of this Agreement by Licensor, there shall be no refunds or reimbursements of License Fees for any unused portion of the billing cycle.
8.2. Termination. This Agreement may be terminated as provided below:
8.3. Customer’s Actions upon Termination. In the event of termination or expiration of this Agreement, Customer will no longer be authorized to Use and/or Operate the Software in any way.
8.4. Surviving Provisions. Notwithstanding any provisions to the contrary herein, the provisions of Sections 3, 4, 5, 6, 7, 8, and 9 shall survive the termination or expiration of this Agreement and such termination or expiration shall not release Customer or Licensor of their respective obligations regarding the Confidential Information, Customer’s obligations with respect to Intellectual Property Rights or any duties, liabilities or obligations which by the terms hereof or in context are to survive termination.
9.1. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Province of Ontario, Canada without reference to conflicts of law rules and principles and the courts located in Toronto Ontario shall have exclusive jurisdiction to hear any matter arising out of this Agreement. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded..
9.2. No Assignment. This Agreement, including without limitation any Licenses granted hereunder, may not be assigned, in whole or in part, by either Party without the prior written consent of the other Party, provided that Licensor shall have the right to assign this Agreement or any of its right hereunder, without Customer’s prior consent, to its distributors or affiliates or in connection with a merger, acquisition or sale of all of the assets of Licensor.
9.3. Remedies. If Customer breaches, or threatens to commit a breach of, any of the covenants set forth herein, Licensor will be entitled, in addition to any other rights Licensor may enjoy, to obtain injunctive or other equitable relief by any court of competent jurisdiction to restrain any actual or threatened breach or otherwise to specifically enforce the provisions of this Agreement, it being agreed that such breach or imminent breach will cause irreparable injury to Licensor and money damages alone would not be an inadequate remedy and would fail to fully compensate Licensor for such Customer’s breach. The rights and remedies of the Parties to this Agreement are cumulative and not alternative. Customer further agrees to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such equitable relief and that this provision is without prejudice to any other rights that the Parties hereto may have for any failure to perform this Agreement.
9.4. Legal Costs of Prevailing Party. The substantially prevailing Party in any legal action, including arbitration, brought by one Party against the other and arising out of this Agreement shall be entitled, along with any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorney’s fees. Such fees may be set by the court in the trial of such action or may be enforced in a separate action brought for that purpose. Such fees shall be in addition to any other relief that may be awarded.
9.5. Taxes. Each Party is responsible for complying with the collection, payment, and reporting of all taxes imposed by any Governmental Authority applicable to its activities in connection with this Agreement. None of the Parties is responsible for taxes that may be imposed on the other Parties. Notwithstanding anything to the contrary herein, Customer shall be solely responsible for any sales, use, value added and similar taxes collections, payments and related registrations arising in any way out of or relating to this Agreement. If a certificate of exemption or similar document or proceeding is to be made in order to exempt the sale from sales or use tax liability, Customer will obtain and provide Licensor with such certificate, document, or proceeding. Customer acknowledges and agrees that any shipments of the Software shall accompanied by an invoice, , customs declaration and/or any other documentation as may be required indicating the full value of the Software pursuant hereto and may be insured, at the sole discretion of Licensor, for the full value or any portion thereof.
9.6. Publicity. The Parties shall work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters. The Licensor may identify Customer to the public as a customer of the Licensor and describe in a customer case study the services and solutions delivered by the Licensor to Customer. The Licensor may also issue one or more press releases, containing an announcement of the execution and delivery of this Agreement and/or the implementation of the Product by Customer. Neither Party shall disclose the terms of this Agreement to any third party other than its outside counsel, auditors, and financial and technical advisors, except as required by law.
9.7. Severability. If this Agreement or any provision thereof is, or the transactions contemplated hereby are, found by a court of competent jurisdiction to be invalid, void, unenforceable for any reason or inconsistent or contrary to any valid applicable laws or official orders, rules and regulations, in whole or in part, the inconsistent or contrary provision of this Agreement shall be null and void and such laws, orders, rules and regulations shall control and, as so modified, this Agreement shall continue in full force and effect and the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law; provided, however, that nothing herein contained shall be construed as a waiver of any right to question or contest any such law, order, rule or regulation in any forum having jurisdiction.
9.8. No Waiver. No provision of the Agreement will be considered waived unless such waiver is in writing and signed by the Party that benefits from the enforcement of such provision. No waiver of any provision in the Agreement, however, will be deemed a waiver of a subsequent breach of such provision or a waiver of a similar provision. In addition, a waiver of any breach or a failure to enforce any term or condition of the Agreement will not in any way affect, limit, or waive a Party’s rights under the Agreement at any time to enforce strict compliance thereafter with every term and condition of the Agreement.
9.9. Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent the performance is rendered impossible by strike, fire, flood, governmental acts, or orders or restrictions.
9.10. Additional Actions. The Parties will each perform such acts, execute and deliver such documents and instruments, and do such other things as may be reasonably requested to accomplish the transactions contemplated by this Agreement and to carry out the purpose and intent hereof.
9.11. Notice to U.S. Government End Users. The Software and accompanying Documentation are deemed to be “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” respectively, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights, including any use, modification, reproduction, release, performance, display, or disclosure of the Software and accompanying Documentation, as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States and Canada.
9.12. No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties and, except as otherwise provided herein, no other Person will have any right, interest, or claim under this Agreement.
9.13. Notices. All claims, instructions, consents, designations, notices, waivers, and other communications in connection with the Agreement (“Notifications”) will be in writing. Such Notifications shall be deemed properly made (a) when received if delivered personally, (b) if delivered by facsimile transmission when the appropriate telecopy confirmation is received; (c) upon the receipt of the electronic transmission by the server of the recipient when transmitted by electronic mail, (d) if sent within the Canada or USA, on the next business day after timely deposit with a nationally recognized overnight delivery service, or (e) if sent internationally, within five (5) days after deposit with an internationally recognized express delivery service, in each case when transmitted to a Party address or location indicated on the execution page or the invoicing terms.
9.14. Signatures. In addition to electronic execution or a click on the “I agree,” the delivery of a copy of this Agreement or such other document bearing an original signature by facsimile transmission or a scanned image of the original signature, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.
9.15. Counterparts. This Agreement and any documents pursuant hereto may be separately executed by the Parties in two (2) or more counterparts and all such counterparts shall be deemed an original, but all of which together shall constitute one and the same instrument and will be binding on the Parties as if they had originally signed one copy of the Agreement.
Copyright © 2021 Logic Software, Inc. and its licensors. All rights are expressly reserved. The program and accompanying documentation are the copyrighted property of their respective owners and protected by copyright laws and international intellectual property treaties. Logic Software, Inc.’s name and logo, and all related product and service names, design marks and slogans are the trademarks or registered trademarks of Logic Software, Inc. All other product and service marks contained herein are the trademarks of their respective owners. Any use of Logic Software, Inc. or third parties’ trademarks or logos without the prior written consent of Logic Software, Inc. or the applicable trademark owner is strictly prohibited.
|LICENSOR||Logic Software Inc.
Licensor Software and Types of Licenses
Licensor Software is Birdview, the latest task and project management software for managing and tracking many types of projects.
Customer can use Licensor Software via two methods:
Licensor Software Uptime for the Software licensed under the Hosted SaaS License: ninety-nine percent (99%) uptime guaranty.
Licensor shall use reasonable industry efforts to keep the Software running. However, Licensor cannot and shall not guarantee 100% uptime of its Software. Licensor’s Software is guaranteed to be available and capable of forwarding IP packets ninety-nine percent (99%) of the time as averaged over the life of a one (1) year time period (the “Service Period”).
Downtime shall consist of packet loss, which is sustained in excess of fifty percent (50%) for fifteen (15) consecutive minutes. If Licensor sustains downtime (a disruption of service) of a duration of more than one percent (1%) in the aggregate during the Service Period, then Customer may elect to cancel this Agreement and Licensor will reimburse Customer, on a daily pro-rated basis upon request subject to any fees paid to Licensor for which Software service was unavailable and/or not rendered. For the calculation, Licensor assumes a total of thirty (30) days within a Service Period, which provides a total of 720 hours. Licensor guarantees 99% of this time period, or 713 hours to be free of downtime, as defined in this paragraph. Customer shall remain liable to Licensor for all other fees associated with the Software service incurred prior to the termination of the Software service. This guarantee shall not apply for disruption of service to End Users that is due to network congestion on the Internet or other related disruptions on the Internet that are not related to Licensor’s Software and/or services. It is very possible that Licensor’s Software is fully operational, but an End User’s access to the media is disrupted by means of independent backbone carrier issues. Customer must provide information supporting the claim of this violation such as trace route and / or PING data produced during the time of the incident.