CLIENT End User License Agreement
This End User License Agreement (“Agreement”) is a legal agreement between the entity identified in the associated Quote (“Customer”) and Applied Computer Services, Inc. (“ACS”). Customer agrees that this Agreement is binding and enforceable like any written negotiated agreement signed by Customer. This Agreement applies to and governs Customer’s use of ACS Software (defined below).
BEFORE CUSTOMER AGREES TO THE AGREEMENT, CAREFULLY READ THIS AGREEMENT. IF YOU ARE A CORPORATION, PARTNERSHIP LIMITED LIABILITY COMPANY OR OTHER ENTITY, THEN THE PERSON SIGNING THIS AGREEMENT ON THE ENTITY’S BEHALF REPRESENTS THAT HE OR SHE IS AUTHORIZED TO SIGN FOR AND BIND THE ENTITY. IF YOU ARE NOT AUTHORIZED TO SIGN FOR AND BIND THE ENTITY, THEN DO NOT AGREE TO THE TERMS AND CONDITIONS AND DO NOT ACCESS OR USE THE SOFTWARE. BY CLICKING “I ACCEPT” BELOW, OR OTHERWISE DOWNLOADING, INSTALLING OR USING THE ACS SOFTWARE, YOU ARE SIGNING THIS AGREEMENT, AND ARE AGREEING THAT CUSTOMER IS BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT.
1.1 “ACS Software” means the ACS computer software described in the Quote, including all applicable Documentation and any updates and new releases thereto provided to Customer pursuant to this Agreement.
1.2 “Confidential Information” means confidential information that is disclosed by a party (“Discloser”) to the other party (“Recipient”), or which Recipient has access to in connection with this Agreement, and that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party, because of the circumstances of disclosure or the nature of the information itself. Confidential Information may be disclosed in written or other tangible form or by oral, visual or other means. Confidential Information of ACS includes, without limitation, the ACS Software and Documentation.
1.3 “Customer Data” means any data or information contained in any database, template or other similar document provided by Customer to ACS, or to which ACS has access, in connection with Customer’s use of the ACS Software.
1.4 “Documentation” means the designated written and online materials including videos, specifications or other forms furnished or made accessible by ACS that describe the features, functionality or operation of the ACS Software.
1.5 “Intellectual Property Rights” means all worldwide intellectual property rights, including without limitation, copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered.
1.6 “License Detail” means the document delivered to Customer (physically or electronically) upon Customer’s purchase of licenses indicating the ACS Software being licensed by ACS along with fees and other terms. More than 1 License Detail may be subject to this Agreement.
1.7 “Quote” means ACS’s quotation documents (whether physical or electronic) including price lists, identifying the ACS Software being proposed by ACS, along with fees and other terms. More than 1 Quote may be subject to this Agreement.
1.8 “Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the ACS Software on behalf of Customer.
2. LICENSE GRANT; RESTRICTIONS.
2.1 Software License. Subject to the terms of this Agreement and each associated License Detail document, including, without limitation, the payment of the Fees, ACS hereby grants to Customer, during the Term, a non-exclusive, non-sublicensable, non-transferable (except as permitted in Section 11.3) license to use the ACS Software, in executable code form only, by the number and type of Users identified in and in accordance with the License Detail document, solely for Customer’s internal business purposes and not for resale or to provide services to third parties. User’s may only use ACS Software for the benefit of Customer. Customer is responsible and liable for each User’s compliance with this Agreement.
2.2 Restrictions. Customer acknowledges that the ACS Software and the structure, organization, and source code thereof constitute valuable trade secrets of ACS. Accordingly, except as expressly permitted in Section 2.1 or as otherwise authorized by ACS in writing, Customer will not, and will not permit any third party to (a) modify, adapt, alter, translate, or create derivative works from the ACS Software; (b) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the ACS Software to any third party, (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the ACS Software; or (d) otherwise use or copy the ACS Software except as expressly allowed under Section 2.1 above.
3. DELIVERY. The ACS Software will be delivered electronically in accordance with ACS’s standard process. The ACS Software will be deemed accepted upon delivery.
4. SUPPORT SERVICES. ACS will provide upgrades, support, online training, and maintenance as set forth in the Quote.
5. FEES; PAYMENT.
5.1 Fees. As consideration for the license granted to Customer for use of the ACS Software during the Term and the provision for Support Services by ACS under this Agreement, Customer will pay ACS the fees (“Fees”) described in the Quote or invoice.
5.2 Payment; Taxes. All Fees will be billed in advance and are due (a) for US Customers paying directly within thirty (30) days of receipt of invoice and (b) for all non-US and 3rd party intermediaries due upon placement of order unless otherwise agreed to in the Quote. All Fees are non-refundable. ACS may charge interest on overdue amounts at the rate of 1½% per month, or at the highest legal interest rate, if less. ACS reserves the right (in addition to any other rights or remedies ACS may have) to suspend Customer’s ability to use the ACS Software and/or discontinue Support Services if the applicable Fees are more than thirty (30) days overdue until such Fees are paid in full. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, or other transactions contemplated under this Agreement. Customer is responsible for any bank transfer fees incurred by the Customer’s originating and intermediary bank.
6. DISCLAIMER. ACS HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE AND SUPPORT SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE SOFTWARE IS PROVIDED “AS IS” WITH ALL FAULTS.
7. CONFIDENTIAL INFORMATION.
7.1 Protection of Confidential Information. Customer acknowledges that under normal use of ACS Software, ACS has no need to receive any Customer data. Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by the Agreement, and will disclose the Confidential Information of Discloser only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Discloser’s Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
7.2 Exceptions. Recipient’s obligations under Section 7.1 with respect to any Confidential Information of Discloser will terminate if such Confidential Information: (a) was already known to Recipient at the time of disclosure by Discloser; (b) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to, or use of, Discloser’s Confidential Information. In addition, Recipient will be allowed to disclose Confidential Information of Discloser to the extent that such disclosure is required by law or by the order of a court of similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
8. TERM AND TERMINATION.
8.1 Term. The term of the Agreement will begin on the Initial Purchase Date (as defined in the associated License Detail document) and continue until terminated earlier by either party as provided in Section 8.2.
8.2 Early Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after receipt written notice of such breach. Additionally, either party can terminate this Agreement upon written notice to the other party. Upon the termination of this Agreement for any reason, (a) any amounts owed to ACS under this Agreement before such termination will become immediately due and payable; and (b) each party will return to the other all property (including any Confidential Information and Customer Data) of the other party in its possession or control and (c) Customer will discontinue use of and destroy or return to ACS all copies of the ACS Software. The rights and duties of the parties under Sections 1, 2.2, 5, 6, 7, 8.2, 9, 10 and 11 will survive the termination or expiration of this Agreement.
9.1 By Customer. If any action is instituted by a third party against ACS (a) arising out of or relating to Customer’s use of the ACS Software (including claims by any customer or business partner of Customer); or (b) alleging that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of ACS and shall pay all damages attributable to such claim which are finally awarded against ACS or paid in settlement of such claim. Customer shall have no obligation under this Section 9.1 for any claim or action that arises out of a breach of this Agreement by ACS.
9.2 Conditions. Any party that is seeking to be indemnified under the provision of this Section 9 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (i) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (ii) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (iii) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.
10. LIMITATION OF LIABILITY. ACS’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), THE ACS SOFTWARE AND THE SUPPORT SERVICES, WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID TO ACS BY CUSTOMER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER’S FORMAL WRITTEN NOTICE OF THE CLAIM FOR LIABILITY HEREUNDER. ALL CLAIMS THAT CUSTOMER MAY HAVE AGAINST ACS WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL ACS BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE OF ANY CONFIDENTIAL INFORMATION OR DATA OR OF THE ACS SOFTWARE OR ACS SOFTWARE, EVEN IF ACS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
11. GENERAL PROVISIONS
11.1 Publicity. ACS and Customer may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. All public announcements by either party concerning this Agreement are subject to prior written approval by Customer and ACS, which approval shall not be unreasonably withheld. The parties will use reasonable efforts to review and approve public announcements within three (3) days of submittal. Unless otherwise requested in writing, Customer agrees to allow ACS to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of ACS and a user of the ACS Software.
11.2 Proprietary Rights. The ACS Software and Documentation, and all worldwide Intellectual Property Rights therein, are the exclusive property of ACS and its licensors. All rights in and to the ACS Software not expressly granted to Customer in this Agreement are reserved by ACS and its licensors. Customer will not remove, alter, or obscure any proprietary notices (including copyright notices) of ACS or its licensors on the Software or the Documentation. The Customer Data, and all worldwide Intellectual Property Rights therein, are the exclusive property of Customer. ACS may only use Customer Data as permitted by Customer under this Agreement. All rights in and to the Customer Data not expressly granted to ACS in this Agreement are reserved by Customer.
11.3 Assignment. Neither party may assign any rights or obligations arising under this Agreement, whether by operation or law or otherwise, without the prior written consent of the other; except that ACS may assign this Agreement without consent of Customer to any successor to all or substantially all its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to the foregoing limitation, this Agreement shall inure to the benefit of and shall be binding on the successors and assigns of the parties.
11.4 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court sitting in Denver, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If a dispute arising under this Agreement results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys’ fees of the prevailing party.
11.5 Force Majeure. ACS will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond ACS’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, telecommunications failures or delays, computer failures involving hardware or software not within ACS’s possession or reasonable control and acts of vandalism (including network intrusions and denial of service attacks), but only if such unavailability results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes.
11.6 Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the address set forth above (each party may change its address from time to time upon written notice to the other party of the new address). Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested) (c) sent via fax with confirmation of receipt, or (d) sent by recognized air courier service with signature on delivery.
11.7 Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.8 Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
11.9 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.
11.10 Entire Agreement. This Agreement, including all associated Quotes, License Detail documents, exhibits and attachments, is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.