Software License Agreement
OnQue Technologies, Inc., a California corporation (“Company”) owns the rights in and to the COBRA OnQue software and the COBRAnswers software (collectively, the “Software”) and all related documentation (the “Documentation”). The Software and the Documentation are protected under the trademark, copyright, trade secret, unfair competition and other intellectual property laws of the United States, the State of California, International Treaties, and the laws of other jurisdictions throughout the world. Access to, and use of, the Software and the Documentation shall be governed by this Software License Agreement (“Agreement”).
Access to, and the right to use, the Software is for the limited time of your subscription. If the subscription expires and is not renewed, the Software will cease to function with the limited exception of permitting you to view or print the data entered into the Software prior to the expiration of the subscription.
BY PURCHASING THE SOFTWARE, YOU (HEREINAFTER “LICENSEE”) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS AN AGREEMENT ENFORCEABLE UNDER CALIFORNIA LAW INCLUDING, WITHOUT LIMITATION, THE UNIFORM ELECTRONIC TRANSACTIONS ACT.
IF YOU ARE INSTALLING THE SOFTWARE OR DOCUMENTATION ON BEHALF OF SOMEONE OTHER THAN YOURSELF , YOU ARE ALSO CONFIRMING THAT THE OTHER PERSON (WHETHER AN INDIVIDUAL OR A BUSINESS ENTITY) HAS ALREADY RECEIVED, READ AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAS AGREED TO BE THE LEGALLY RESPONSIBLE PERSON REFERRED TO AS “LICENSEE” UNDER THIS AGREEMENT.
(a) Grant. Company grants to Licensee, a temporary, non-exclusive, non transferable, revocable license to use the Software’s executable code and the Documentation solely for its intended purpose and function (the “License”). Licensee may (i) install the Software and the Documentation on any single server or personal computer for use solely by Licensee and (ii) copy the Software and the Documentation for back-up and archival purposes. If Licensee is a business entity, Licensee may permit multiple employees to use the Software but only one employee may use the Software at a time.
(1) Licensee shall not reverse engineer, decompile, disassemble or otherwise attempt to discern the source code, operational flow, data structures, and object structures of the Software or any of Software’s components, data files, libraries or modules. This restriction does not apply to any right that is (i) permitted by law and (ii) not waived by Licensee under this Agreement.
(2) The Software may not be used simultaneously by multiple users. Multiple copies of the Software may be installed on the same server or personal computer only if an additional serial number is purchased from Company for each copy.
(3) Licensee shall only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which the Software and Documentation are used.
(4) Licensee shall only use the Software for the benefit of Licensee. Licensee shall not lease, rent, distribute, or sublicense the Software to third parties. Except with Company’s prior written consent, the Software shall not be used to provide, or in connection with, any commercial service or application that is for the benefit of third parties.
(5) Except as expressly authorized herein, Licensee is prohibited from any and all uses of the Software and the Documentation including, without limitation, the copyrighted contents, trademarks, service marks, trade names, and other proprietary rights.
(c) Persons With Access. Licensee shall ensure that each person who has access to the Software or Documentation is notified of, and complies with, the terms, conditions, and restrictions of this Agreement.
(d) Export Restrictions. Licensee shall not export or re-export the Software and the Documentation, or any part thereof, to any country, region, person or entity in violation of the U.S. Department of Commerce’s Export Administration Regulations (15 CFR chapter VIII, subchapter C) or any other statute, regulation or treaty restricting or controlling exportation.
2. Term; Expiration.
(a) Initial and Renewal Terms. Unless otherwise agreed to by Company, the License commences on Licensee’s ordering of software and will continue in effect for one year (the “Initial Term”). Prior to expiration, Licensee may renew the License for a limited time by paying Company’s then current renewal fee (each a “Renewal Term”). The Initial Term and all Renewal Terms are collectively referred to as the “Term” of this Agreement.
(b) Effect of Expiration. On the expiration of the License, the Software will cease to function with the limited exception of permitting Licensee’s data to be viewed or printed.
3. Termination. If Licensee fails to comply with any of the terms of this Agreement, Company will have the right to terminate this Agreement by providing notice of such termination to Licensee. Licensee may terminate this Agreement at any time by providing written notice to Company of such termination. On any termination of this Agreement, Licensee shall immediately cease all use of the Software and the Documentation and shall certify destruction of all copies of the Software and the Documentation. Licensee’s obligation to pay any accrued fees, costs, or other compensation to Company shall survive termination of this Agreement.
4. Internet Access. Certain features and functionality of the Software require access to the internet or other online connectivity. This connectivity is provided solely by Licensee and at Licensee’s sole expense.
5. Protection of Private and Proprietary Information. The Software receives, processes, stores, and generates output containing private and proprietary information. Although the Software contains certain features to assist with the protection of this information (e.g. database encryption and optional password protection), Licensee understands and agrees that it is Licensee’s sole responsibility to select and implement the process, procedure and technology for protecting access to, and use of, such information.
6. Current Data Required. Licensee understands and agrees that the Software incorporates a database of information necessary for the correct processing of Licensee’s data. Licensee is solely responsible for obtaining the current Software and database from Company’s internet web site using the Software’s update function. Licensee’s failure to install and use the most current Software and database may cause the Software to produce reports, data files, graphics or other information that are invalid, incorrect or contain errors.
7. Technical Support. Company will provide technical support and other support services in connection with the Software as provided in Company’s then current technical support program including, without limitation, fee based support services. Notwithstanding the prior sentence, Licensee acknowledges and agrees that Company shall not be obligated to provide technical support or other support services arising from or related to the Software or the Documentation. Company, in its sole discretion, shall have the right to expand, reduce, modify, or eliminate such services, if any at all.
8. Proprietary Property Rights.
(a) All right, title and interest in and to the Software and the Documentation is owned by Company. The Software includes one or more components licensed from third party suppliers and such suppliers own the rights to their respective components. Except for the License, no term or provision of this Agreement shall be interpreted as a sale, assignment, or transfer of any right, title or interest in the Software, the Documentation, or any portion or component thereof, to Licensee or any third party.
(b) OnQue Technologies, COBRAnswers, OnQue Connections, COBRA OnQue, HR OnQue and every other designation used in connection with a product or service of Company are the trademarks and registered trademarks of Company. Other product, service and company names mentioned on or in connection with the Software may be the trademarks, service marks, or trade names of their respective owners.
9. LIMITED WARRANTY; DISCLAIMER OF WARRANTY.
(a) COMPANY WARRANTS THAT FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE OF ACQUISITION BY THE ORIGINAL USER, THE SOFTWARE, IF OPERATED AS DIRECTED, WILL SUBSTANTIALLY ACHIEVE THE FUNCTIONALITY DESCRIBED IN THE DOCUMENTATION. COMPANY ALSO WARRANTS THAT THE MEDIA CONTAINING THE SOFTWARE AND THE DOCUMENTATION, IF PROVIDED BY COMPANY, IS FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP AND WILL SO REMAIN FOR NINETY (90) DAYS FROM THE DATE THE SOFTWARE IS ACQUIRED BY THE ORIGINAL USER.
(b) COMPANY, ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES DO NOT MAKE ANY WARRANTY THAT ACCESS TO AND USE OF THE SOFTWARE AND THE DOCUMENTATION WILL BE UNINTERRUPTED, SECURE, COMPLETE OR ERROR FREE.
(c) THE SOFTWARE STORES, PROCESSES, COPIES, TRANSMITS AND DISPLAYS MATERIAL, DATA, AND INFORMATION PROVIDED BY PARTIES OTHER THAN COMPANY. COMPANY DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR THE CONTENT OF SUCH MATERIAL, DATA, AND INFORMATION. COMPANY, ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES DO NOT MAKE ANY WARRANTY THAT ACCESS TO SUCH THIRD PARTY MATERIAL, DATA, AND INFORMATION WILL BE UNINTERRUPTED, SECURE, COMPLETE OR ERROR FREE.
(d) THE SOFTWARE PROVIDES LINKS TO INTERNET WEB SITES OPERATED BY PARTIES OTHER THAN COMPANY. SUCH MATERIAL, DATA, INFORMATION, AND LINKS ARE ONLY PROVIDED FOR THE CONVENIENCE AND REFERENCE OF USER. COMPANY DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR THE CONTENT OF SUCH WEB SITES. THE INCLUSION OF SUCH LINKS TO WEB SITES DOES NOT IMPLY ANY ENDORSEMENT BY COMPANY OR ANY ASSOCIATION BY COMPANY WITH THOSE PERSONS WHO OWN AND/OR ARE RESPONSIBLE FOR SUCH WEB SITES OR THE MATERIAL, DATA, AND INFORMATION CONTAINED THEREIN. COMPANY, ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES DO NOT MAKE ANY WARRANTY AS TO THE ACCURACY OF ANY DOMAIN NAME OR LINK.
(e) THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND, TO THE FULL EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF PERFORMANCE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXCLUDED.
10. LIMITATION OF LIABILITY. IF COMPANY BREACHES THIS WARRANTY, OR ANY OTHER TERM OF THIS AGREEMENT, COMPANY'S SOLE LIABILITY SHALL BE, IN COMPANY'S SOLE DISCRETION, ONE OR MORE OF THE FOLLOWING: (A) TO REPLACE THE DEFECTIVE MEDIA; (B) TO ADVISE HOW TO ACHIEVE SUBSTANTIALLY THE SAME FUNCTIONALITY WITH THE SOFTWARE AS DESCRIBED IN THE DOCUMENTATION THROUGH A PROCEDURE DIFFERENT FROM THAT SET FORTH IN THE DOCUMENTATION; OR (C) REFUND THE LICENSE FEE, IF ANY, PAID FOR THE SOFTWARE AND THE DOCUMENTATION. SOFTWARE OR DOCUMENTATION THAT IS REPAIRED, CORRECTED OR REPLACED SHALL BE COVERED BY THIS LIMITED WARRANTY FOR THE PERIOD REMAINING UNDER THE WARRANTY THAT COVERED THE ORIGINAL SOFTWARE OR, IF LONGER, FOR THIRTY (30) DAYS AFTER THE DATE COMPANY SHIPPED THE REPLACEMENT SOFTWARE. COMPANY’S OBLIGATION UNDER THIS LIMITED WARRANTY IS CONDITIONED ON USER NOTIFYING COMPANY OF THE PROBLEM WITH THE SOFTWARE DURING THE APPLICABLE WARRANTY PERIOD AND PROVIDING EVIDENCE OF THE DATE THE SOFTWARE WAS ACQUIRED BY USER. IN NO EVENT WILL COMPANY BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR ANY OTHER TYPE OF DAMAGES ARISING OUT OF THE USE, OPERATION, OR EXPIRATION OF THE SOFTWARE OR ENTERING INTO THIS AGREEMENT. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
11. Indemnification. Licensee agrees to indemnify, defend, and hold harmless Company, its officers, directors, agents and employees, from and against any claims, demands, damages, and costs (including attorneys' fees and costs) arising out of or related to any claims that Licensee has (i) infringed the intellectual or other proprietary rights of a third party as a result of the unauthorized use of the Software or Documentation, (ii) violated a law, statute, or regulation as a result of the unauthorized use of the Software or Documentation, or (iii) violated any terms of this Agreement.
12. Restrictions on Assignments, Sublicensing and Transfer. Licensee shall not directly or indirectly assign, sublicense, transfer or encumber any rights under this Agreement, whether involuntary, by operation of law or otherwise, and any assignment, sublicense, transfer or encumbrance, without the prior written consent of Company, shall be void.
13. General Provisions
(a) Disclaimer of Agency. Nothing contained in this Agreement shall be construed to constitute the parties as partners, joint venturers, co-owners, agents or otherwise as participants in a joint or common undertaking, or to constitute employment of a party hereto.
(b) Arbitration. Except for the right of any party to apply to a court of competent jurisdiction for injunctive relief, any controversy or claim arising out of or related to this Agreement shall be resolved by arbitration in Sonoma County, California in accordance with the Commercial Arbitration Rules of JAMS, including, if applicable, any expedited rules therein. Arbitration shall be conducted by one arbitrator. The arbitrator shall have the authority to grant injunctive relief in a form substantially similar to that which would otherwise be granted by a court of law. The arbitrator’s award including, without limitation, on issues of liability, causation and remedies shall be limited to and consistent with the statutes, regulations, and case law of the United States and the State of California. Under no circumstances may the arbitrator amend the terms of this Agreement or make any award contrary to the clear intent of the parties as expressly set forth herein. The arbitrator shall not have the authority to award exemplary or punitive damages. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
(c) Attorneys' Fees. In any action, proceeding or arbitration to enforce this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs.
(d) Governing Law. This Agreement shall be governed by the laws of the State of California as applied to transactions taking place wholly within California between California residents.
(e) Severability. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable as applied to any circumstance, the remainder of this Agreement and the application of such provision to other persons or circumstances shall be interpreted so as best to effect the intent of the parties hereto. The parties further agree to replace any such void or unenforceable provision of this Agree¬ment with a valid and enforceable provision that will achieve, to the extent pos¬sible, the economic, business, and other purposes of the void or unenforceable provision.
(f) Entire Understanding; Waiver. This Agreement constitutes the complete and exclusive statement of the agreement among the parties about the described subject matter. It supersedes all prior written and oral statements, including any prior representation or statement. No waiver or modification of any of the terms of this Agreement shall be valid unless in writing, signed by the party to be bound.