BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT AND USING THE SOFTWARE YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE, THE TERMS “YOU” OR “YOUR” OR “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CODNITONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE. YOU MAY NOT ACCESS THE SOFTWARE IF YOU ARE SPLAN’s DIRECT COMPETITOR, EXCEPT WITH SPLAN’s PRIOR WRITTEN CONSENT. YOU MAY NOT ACCESS THE SOFTWARE FOR BENCHMARKING OR OTHER COMPETITIVE PURPOSES.
- “SPLAN Technology” shall mean the Software and any and all improvements or derivative works thereof, technology, trade secrets and other intellectual property exclusively owned or controlled by SPLAN excluding Third Party Software and Customer Technology.
- “Business Third Parties” shall mean any third party, including service providers, consultants, systems integrators and the like, who work for Customer offsite or onsite. Business Third Parties may be licensed as Users. Service providers of the hosted Software shall be subject to written agreement(s) with Customer that include use and confidentiality restrictions that are at least as protective of SPLAN’s Technology and intellectual property rights as those set forth in this Agreement and whose work for Customer requires them to administer the Software in a hosted environment controlled by Customer.
- “Customer Affiliate” shall mean a corporation in which Customer owns more than fifty percent (50%) of the voting securities. Any such entity shall be considered a Customer Affiliate for only such time as Customer continues to own such equity interest. Customer Affiliate may be licensed as Users under this Agreement but may not be a “party” until such time Customer Affiliate and SPLAN enter into a separate agreement or an amendment to this Agreement.
- “Customer Technology” shall mean information, software, data files, materials, technology, trade secrets and other intellectual property exclusively owned or controlled by Customer, excluding SPLAN Technology.
- “Effective Date” shall mean the date Customer accepts this Agreement by installing the Software.
- “Employees” shall mean employees, full or part-time, who are employed by Customer and under its direct supervision. Employees may be licensed as Users.
- “Evaluation Term” shall mean the limited restricted term wherein SPLAN shall authorize Customer to evaluate the Subscription Services of the Software. The Evaluation Term shall be listed on an Order Schedule.
- “Initial Term” shall mean the term of the initial Services offering wherein SPLAN shall provide to Customer Subscription services of the Software. The Initial Term shall be listed on an Order Schedule along with any renewal terms.
- “Maintenance Services” shall mean technical support services provided by SPLAN for the Software which are included in the Subscription Services fees listed on an Order Schedule.
- “Order Schedule” shall mean a separate ordering document between SPLAN and Customer which describes the SPLAN Software licensed by Customer and all the related Fees which is executed by both parties. The Order Schedule also includes any applicable Initial Term for the Services. In the event SPLAN has authorized an evaluation or demonstration of the Software or Subscription Services the Evaluation Term shall be listed on the Order Schedule
- Server(s)” shall mean the authorized number of Server(s) licenses Customer is authorized to use, load and install the Software onto pursuant to the terms and conditions of this Agreement. If the Software licensing model restricts the number of authorized Servers, the restriction shall be listed on an Order Schedule.
- “Software” shall mean a machine executable copy of the object code of the SPLAN proprietary software products which are licensed to Customer to use with the Subscription Service or if applicable an Evaluation Term or subsequent renewal terms, including the related Customer manuals and documentation, in either printed or electronic form as described on an Order Schedule. Software does not include the Third Party Software defined herein.
- “Subscription Services” shall mean the Subscription Services delivered to Customer by SPLAN which includes SPLAN’s proprietary Software products. Services also include Maintenance Services for the Software which are included in the Fees paid by Customer for the Initial Term Services or if applicable the Evaluation Term or subsequent renewal terms.
- “Users” shall mean an Employee or Business Third Party or Customer Affiliate who are authorized by Customer to use the Software. If the licensing model restricts the number of authorized Users, said restriction shall be listed on an Order Schedule.
2. LICENSE RIGHTS:
- A. Software. Subject to Customer’s compliance with the terms and conditions of this Agreement and the payment of Fees, SPLAN grants to Customer a nonexclusive, nontransferable (other than set forth in this Agreement), non-sublicensable, limited term license as stated on an Order Schedule, to (i) access the Software on a Server hosted by SPLAN; or (ii) install (or allow Business Third Parties to install) and use the Software, in object code form only, solely for Customer’s internal business purposes; and (iii) allow the number of Users authorized on the Order Schedule to use the Software, in object code form only, solely for Customer’s internal business purposes. Customer may install (or allow Business Third Parties to install) the Software solely on Servers on Customer’s premises or provisioned to Customer as part of a “virtual private cloud” hosted by a third party hosting service provider (“Service Provider”); provided that with respect to any installation on Servers provided by Service Providers: (a) the Software is exclusively used for the benefit of Customer and Customer’s internal business operations; and (b) Customer shall be liable for the acts or omissions of such Service Provider or any other person or entity that, if committed by Customer, would be a violation of any terms of this Agreement. SPLAN reserves all rights not expressly granted herein. There are no implied rights.
- B. Evaluation License. Subject to Customer’s compliance with the terms and conditions of this Agreement and authorization by SPLAN, which shall be stated on an Order Schedule, SPLAN hereby grants to Customer a nonexclusive, nontransferable limited Evaluation Term and restricted right, for internal evaluation purposes only, to use the Software to evaluate or demonstrate the Subscription Services. SPLAN reserves all rights not expressly granted herein. There are no implied rights.
- C. Customer Obligation. Customer is responsible for obtaining, configuring and maintaining all computer hardware, software and communications equipment needed to access and use the Software, and for paying all third-party access charges (e.g., ISP, telecommunications, hosting services, etc.) incurred while using the Software. Customer is responsible for the accuracy, quality and legality of Customer data. Customer acknowledges and agrees: (1) that Customer is responsible for its employees, Affiliates and Business Third Parties abiding by all local, state, national, and international laws and regulations applicable to Customer’s and such parties use of the Software; (2) not to use the Software for illegal purposes; (3) not to interfere or disrupt networks connected to the Software; and (4) that Customer assumes the risk for Customer’s workforce’s use of the Software. Customer shall be solely responsible for its actions and the actions of its employees, Affiliates and Business Third Parties. Customer shall not (a) make the Software available to anyone other than Users or Business Third Parties, (b) sell, resell, rent or lease the Software, (c) use the Software to store or transmit infringing, libelous, otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Software to store or transmit malicious code which means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, or (e) interfere with or disrupt the integrity or performance of the Software or any third party data contained therein. Customer is solely responsible for the proper configuration and security of any third party hosting environment upon which Customer installs the Software and shall comply with the relevant policies of its applicable Service Provider. Customer will indemnify, defend, and hold SPLAN harmless from and against any damages, expenses and costs arising from or relating to Customer’s use of the Software in a third party hosting environment and/or Customer’s failure to comply with the relevant policies of any applicable Service Provider.
- D. Third Party Licenses and Open Source. The SPLAN Software licensed above is the intellectual property of and is owned by SPLAN and its suppliers. The SPLAN proprietary Software may contain open source components which are licensed to Customer under the applicable open source licenses by open source components licensees (“Open Source Components”) and the SPLAN Software included in the proprietary Software licensed above, may also include proprietary software components from other vendors under applicable licenses and will be referred to (collectively as “Third Party Software”). Subject to the terms and conditions of this Agreement and the Third Party Software licenses and notices, Customer agrees and acknowledges that Customer (a) has reviewed and understands the Third Party Software Licenses posted at http://www.splan.com/docs/3rdparty.html and (b) shall abide at all time by the terms of any and all of the applicable Third Party Software licenses and notices. Additionally, Customer agrees and acknowledges that the Software consists of Third Party Software and that accordingly (i) SPLAN makes no representation that any component in the Software shall be error free and (ii) except as otherwise expressly provided herein, nothing in this Agreement shall be taken as imposing a requirement upon SPLAN to correct any errors otherwise make any improvements to any of the Third Party Software.
- E. Additional Users. In the event Customer allows Employees, Customer Affiliates or Business Third Parties to use or access the Software or Services such use shall be subject to the terms and conditions of this Agreement, and Customer accepts full responsibility for the acts or omissions of Employees, Customer Affiliates or Business Third Parties, and such parties shall not be a direct competitor of SPLAN and Customer shall indemnify SPLAN against losses or damages suffered by SPLAN arising from any misuse of the Software by Employees, Customer Affiliates or Business Third Parties.
- F. PASSWORDS. If applicable, SPLAN shall issue to Customer, or shall authorize a Customer administrator to issue, a password for each Users of the Software. Customer and its Users are responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the applicable Users. Customer is entirely responsible for any and all activities that occur under Customer's account and all charges incurred from use of the Software accessed with Customer’s passwords. Customer agrees to immediately notify SPLAN of any unauthorized use of the Customer's account and/or any other breach of security known to Customer. SPLAN shall have no liability for any loss or damage arising from Customer's failure to comply with these requirements.
- G. Software Transfer. Customer may transfer the Software from one implementation to another at no additional Fees, so long as Customer provides SPLAN with ten (10) days prior written notice and Customer is responsible for the cost of any migration tools, additional third party software or Software or services required to transfer to the new implementation and Customer deletes the Software from the implementation no longer in use. The Software transfer shall not exceed the authorized number of licensed Server(s) and/or licensed Users, whichever is applicable.
3. LICENSE RESTRICTIONS
Except for the Open Source Components, all use of SPLAN source code is expressly prohibited by all types of Users under this Agreement. Except as expressly permitted under this Agreement, Customer may not: (i) distribute, disseminate, sublicense, copy, modify, reverse engineer, decompile, translate, dissemble or create a source code equivalent of the Software or Third Party Software or allow others to do so or (ii) use the Software or Third Party Software to provide software application services, time-sharing or service bureau services to third parties or (iii) disclose any SPLAN trade secret or Confidential Information. No right or license, express or implied, is granted hereunder for the use of any of SPLAN trade names, service marks or trademarks (collectively “Marks”) including without limitation, the distribution of Software utilizing any of SPLAN’s Marks. All rights not expressly granted under this Agreement are reserved by SPLAN. There are no implied rights granted herein.
4. PAYMENTS; FEES; EXPENSES; TAXES
Software Subscription Services fees (“Fees”) are described on the Order Schedule. If applicable, evaluation Fees are included on the Order Schedule and both Fees shall be subject to the terms and conditions of this Agreement. All travel expenses charged to Customer shall be reasonable and necessary to perform Services and upon Customer’s request, SPLAN shall provide written documentation to support the expenses. All Fees and expenses are due and payable by Customer thirty (30) days from the date of SPLAN’s invoice. In the event Customer has received any type of discounts on Fees and Customer fails to pay SPLAN as agreed under the terms of this Agreement, any and all discounts shall be on the Order Schedule. Undisputed overdue payments shall bear interest at a rate of 1½% per month or the maximum rate allowed by applicable law. All amounts payable under this Agreement are exclusive of all sales, use, and other taxes. Customer is responsible for all taxes assessed in connection with this Agreement, including sales, use, excise, value-added or governmental charges imposed on the licensing or the use of the Software. SPLAN shall be responsible for its own income taxes.
SPLAN agrees to deliver the Software specified on the Order Schedule by electronic means at a site designated by SPLAN. Customer will be deemed to have accepted the Software and Documentation on the date Customer is granted access to download such items.
6. MAINTENANCE SERVICES
Maintenance Services for the Software included in the Subscription Services shall be provided by SPLAN for the Software so long as Customer has paid all applicable Fees for the Software and Subscription Services.
Customer agrees to implement reasonable controls to ensure compliance with the intended use of the Software and Subscription Services authorized by this Agreement. SPLAN reserves the right to perform a compliance audit of Customer’s use of the Software and exact number of Users, and/or Server(s), Business Third Parties, Employees and Customer Affiliate Users any time during Customer’s normal business hours, upon reasonable written notice and at SPLAN’s expense.
8. LIMITED WARRANTIES AND DISCLAIMERS:
- A. Title: SPLAN represents and warrants it has the right, title or authority to grant the license to the Software.
- B. Limited Software Warranty: Except for the Software authorized during the Evaluation Term, SPLAN warrants for a period of sixty (60) days after delivery of the Software (i) the media on which each copy of the Software is furnished will be free of defects in materials; and (ii) the Software will operate substantially in accordance with the published specifications. For any breach of this warranty, SPLAN will promptly repair or replace any defective media or Software, which fails to comply with such warranty. In the event SPLAN is unable to repair or replace the Software, the applicable Software license Fees paid by Customer, upon the return of the nonconforming Software, will be refunded. The above is Customer’s sole and exclusive remedy and SPLAN’s sole and exclusive obligation and liability for breach of the Software product warranty. In the event theSoftware is authorized for use during the Evaluation Term as stated on an Order Schedule, the Software is provided to Customer “as is” with no warranties of any type whatsoever.
- C. Disclaimers: EXCEPT AS SET FORTH IN THIS SECTION, SPLAN AND ITS THIRD PARTY SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY AS TO ANY ASPECTS OF THE SOFTWARE, THIRD PARTY SOFTWARE OR TO ANY SUBSCRIPTION SERVICES RENDERED INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY DISCLAIMED. SPLAN DOES NOT WARRANT THE OPERATION OF THE SOFTWARE OR SUBSCRIPTION SERVICES AND OR THIRD PARTY SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
SPLAN will defend Customer for all costs and damages finally awarded, including reasonable attorney’s fees and expenses, arising from a claim by a third party (who is not a party to this Agreement) that the SPLAN proprietary Software furnished and used within the scope of this Agreement infringes a copyright or patent, provided that: (i) Customer notifies SPLAN promptly in writing of the claim; (ii) SPLAN has sole control of the defense and all related settlement negotiations and (iii) Customer provides SPLAN with assistance, information and authority necessary to perform the above. SPLAN shall have no liability for any claim of infringement based on alterations or modifications of the Software, unless authorized and under the direction of SPLAN, or the combination, operation, or use of any Software furnished under this Agreement with programs or data or hardware not furnished or authorized in writing by SPLAN, if such infringement would have been avoided by the use of the Software without such programs or data or hardware. In the event the Software is held to infringe or Customer’s use of the Software is enjoined, SPLAN shall have at its option and expense the right to (a) modify the Software to be noninfringing; (b) obtain for Customer a license to continue using the Software; (c) substitute the Software with other substantially similar software reasonably suitable to Customer; or (d) if none of the foregoing remedies are commercially feasible, terminate the license for the infringing Software, refund the pro rata portion of the license Fees actually paid by Customer over a three (3) year term from the Effective Date. THE ABOVE STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SPLAN’s SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
10. LIMITATION OF LIABILITY
EXCEPT AS PROVIDED FOR IN THE INDEMNIFICATION SECTION, IN NO EVENT SHALL SPLAN’s OR IT’S SUPPLIERS HAVE ANY LIABILITY TO CUSTOMER FOR DAMAGES OF ANY NATURE WHATSOEVER (DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL) INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE ARISING FROM OR ASSICIATED IN ANY WAY WITH THE SOFTWARE, THIRD PARTY SOFTWARE OR SUBSCRIPTION SERVICES CUSTOMER’S USE OF THE SOFTWARE OR SUBSCRIPTION SERVICES, EVEN IF SPLAN IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK, WHICH IS SET FORTH IN THIS SECTION. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTIAL OR CONSEQUESNTIAL DAMAGES, AND AS A CONSEQUNECE SOME OF THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.
11. TITLE; OWNERSHIP; EQUITABLE RELIEF.
- A. Title. SPLAN, or its suppliers or licensors, retains title to all portions of the SPLAN Technology and any full or partial copies thereof and Customer shall retain title to all portions of the Customer Technology and any portions thereof. The Third Party Software is subject to applicable licensing.
- B. Ownership. The SPLAN Software are protected by copyright, including U.S. Copyright Law, patents, other intellectual and industrial property rights, international treaty provisions and applicable laws in the country where used and the Third Party Software is subject to applicable licensing. Customer hereby grants to SPLAN a non-exclusive, world-wide license to use the relevant Customer Technology solely to the extent necessary to perform the Services under this Agreement. In the event Customer is unable to obtain such right or otherwise acquire such information, materials or technology, SPLAN shall have the right to immediately terminate this Agreement.
- C. Equitable Relief. Each party acknowledges that any breach of its obligations with respect to the proprietary rights of the other party may cause such other party irreparable injury, for which there may be inadequate remedy at law and, therefore, such other party will be entitled to seek equitable relief in addition to all other rights and remedies available to it.
Confidential Information means (i) the Software, Order Schedule(s) and prices, terms in this Agreement; and (ii) any non-public information, data or know-how or intellectual property that has been disclosed by a party to this Agreement to the other party in writing, orally or by access to the disclosing party’s premises and identified by the disclosing party as confidential or proprietary. With respect to Confidential Information, the receiving party shall (i) use it solely for the purposes specifically provided in this Agreement; and (ii) not disclose it to a third party, other than employees on a need to know basis or consultants, affiliates, agents or subcontractors (third parties) under nondisclosure agreements at least as strict as this Agreement, provided that such third parties are not competitors of the disclosing party, for a period of five (5) years from the date of disclosure or in perpetuity if the Confidential Information constitutes a trade secret under applicable law. The receiving party is liable for any misuse of Confidential Information by third parties. The foregoing obligations do not apply to information that (a) was rightfully in the possession of, or was known by, the receiving party prior to its receipt from the disclosing party, free of any obligation of confidence; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by the receiving party from a third party, without an obligation to keep such information confidential; or (d) is independently developed by the receiving party without use of the Confidential Information. This section will not affect any other nondisclosure agreement between the parties. In the event the receiving party is required to disclose Confidential Information pursuant to a judicial or governmental order, or valid subpoena, such party will promptly notify the other party to allow intervention in response to such order. In the event the Customer is authorized by SPLAN to evaluate the Software as described in an Order Schedule, said results of the evaluation by Customer are deemed Confidential Information under this Agreement.
13. TERM; TERMINATION.
- A. Term: The Initial Term for use of the Subscription Services for the Software is listed on an Order Schedule. The parties may renew the Initial Term upon written agreement Renewal Term(s). If applicable, the Evaluation Term authorized for the use of the Software is stated on the Order Schedule. At the expiration of the Evaluation Term, the Parties may agree to enter into the Initial Term and thereafter applicable Renewal Terms.
- B. Termination: Termination of this Agreement for any reason does not relieve Customer of its obligation to pay Fees accrued prior to the effective date of termination.
- C. Convenience: After all Fees have been paid by Customer under this Agreement, Customer may terminate this Agreement at any time upon written notice to SPLAN, however, SPLAN has no obligation to return any of the Software Subscription Services Fees to Customer. SPLAN may terminate at any time in the event Customer fails to pay Fees and fails to cure within fifteen (15) days from date of written notice, or Customer becomes a direct competitor of SPLAN. If applicable, SPLAN may terminate this Agreement at any time for any reason or no reason during the Evaluation Term for convenience upon written notice to Customer. Said termination is effective immediately.
- D. Cause: Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days written notice specifying the breach in detail.
- E. Survival. Sections that by their nature survive expiration or termination shall survive any expiration or termination of this Agreement.
Except pursuant to a merger, acquisition or business combination, a party may not assign this Agreement by operation of law or otherwise, without the prior written consent of the other party, which will not be unreasonably withheld. Any prohibited assignment or sublicense or transfer shall be null and void. This Agreement will be binding upon the successors and assigns of both parties. This Agreement shall not be assignable under any circumstances whatsoever during the Evaluation Term.
15. GOVERNING LAW.
This Agreement shall be governed and construed by the laws of the State of California, excluding its conflict of law rules.
16. ENTIRE AGREEMENT
This Agreement, together with the Schedules constitutes the entire agreement between the parties regarding Customer’s use of the Software and/or Subscription Services. No purchase orders, other Customer ordering documentation, email or any hand written or typewritten text which purports to modify or supplement this Agreement shall add to or vary the terms and conditions of this Agreement. Upon the execution by both parties, Schedule(s) shall be deemed incorporated into this Agreement. This Agreement replaces and supersedes any prior verbal understanding, written communications or representations made by the parties regarding the subject matter contained in this Agreement.
Customer will comply with all applicable laws and regulations in its use of the Software and Subscription Services. Customer may not export, re-export or otherwise transfer the Software except in full compliance with all applicable laws and regulations, including but not limited to the U.S. Export Administration Act and Regulations.
The parties may enter into a written amendment and or Order Schedule. No inconsistent, additional or different terms in another document will have any force or effect unless such terms are incorporated into a formal amendment to this Agreement signed by both parties. If applicable, at the end of the Evaluation Term, a new Order Schedule is required to continue any use of the Software in the Subscription Services.
Customer shall approve a mutually agreeable press release, which contains at least one quote from an executive of Customer, within thirty (30) days for the Effective Date. In the event SPLAN issues a press release which includes a Customer quote, SPLAN will obtain Customer’s prior written consent. Customer hereby agrees SPLAN may list Customer’s name on its list of customers using the Software and Subscription Services. Notices shall be in writing, sent to the addresses listed on the applicable Schedule and sent by overnight mail, courier, first-class mail or facsimile (followed by confirmation copy by mail), and are deemed received upon delivery. The parties shall not be liable for any failure to perform due to causes beyond its reasonable control. The failure to enforce any right will not be deemed a waiver of such or any other right, including the right to enforce a subsequent breach of the same obligation. In the event that any part of this Agreement is found to be unenforceable, the remainder shall continue in effect and such part shall be changed and interpreted so as to best accomplish the objectives of such part to the extent permissible by law and consistent with the intent of the parties as of the Effective Date. The parties are independent contractors and this Agreement will not be construed as a teaming agreement or joint venture.
If you have any questions or comments about our subscription license terms as outlined above, you can contact us at firstname.lastname@example.org
5500 Stewart Ave, Suite# 102,
Fremont, CA 94538 (USA)
Phone: 510-320-3305 | email@example.com
Copyright 2016 SPLAN, Inc.