THIS BOMGAR STARTER SERVICE SOFTWARE AGREEMENT (this "Agreement") is entered into as of the date (the "Effective Date") specified in the Acceptance Form referencing the Online Services between Bomgar Corporation (f/k/a NetworkStreaming, Inc.), a Mississippi corporation ("Licensor"), and the individual or entity set forth in the Acceptance Form ("Customer"). Customer enters into and accepts this Agreement and the terms and conditions hereof as of the Effective Date by either (i) indicating Customers acceptance at the log-in or other screen for such purpose, (ii) by Customers use of the Software/Online Services, or (iii) signing the Acceptance Form.
These Standard Terms and Conditions shall govern the rights and obligations of Customer and Licensor with respect to all issues regarding the use of the Software products and the Online Services. In consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. Access; License.
(a) Access. Subject to the terms, conditions, and limitations set forth in this Agreement including the payment of the License Fee, Licensor hereby grants to Customer a revocable, non-proprietary, non-transferable, nonexclusive, limited access to the Online Services for the sole purpose of providing remote assistance between Customer and its clients. Licensor will issue to Customer a reasonable number of usernames and passwords necessary to access the Online Services. Customer is responsible for preserving the secrecy of its usernames and passwords.
(b) License. Subject to the terms, conditions, and limitations set forth in this Agreement including the payment of the License Fee, Licensor hereby grants to Customer a revocable, non-exclusive, non-transferable, limited, non-proprietary Object Code License to do the following: (i) solely in support of the internal business activities of Customer, use and execute the Starter Service Software online for concurrent use by the number of Log-In Users as Licenses granted on the Acceptance Form (for example, one License would allow one Log-In User at a time) and/or only on the number of Seats indicated on the Acceptance Form for AccessDesk Software licenses; and (ii) use the Documentation only in conjunction with the installation and use of the Software. The License granted hereunder does not include any other rights except as expressly specified herein. Any use or copying of the Software or Documentation not expressly authorized hereunder is prohibited and a breach of this Agreement. Except as specifically permitted in this Agreement, Customer shall not directly or indirectly (A) use any Confidential Information to create any software or documentation that is similar to any of the Software or Documentation; (B) encumber, transfer, rent, lease, time-share or use the Online Services or Software in any service bureau arrangement; or (C) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify the Online Services or Software or permit or suffer any third party to engage in any of the acts proscribed in clauses (A) through (C).
2. Third Party Software License. All Third Party Software is licensed to Customer in accordance with a separate license agreement(s) included with the Software, and subject to any restrictions set forth herein or in the Documentation. Customer agrees to abide by all of the terms and conditions of such Third Party Software license agreements, and a breach of any such agreement will be considered a material breach of this Agreement. Except as expressly set forth herein or in a written agreement between Licensor and Customer, Licensor shall have no responsibility with respect to any Third Party Software, and Customer will look solely to the licensor(s) of the Third Party Software for any remedy. Licensor claims no right in the Third Party Software, and the same is owned exclusively by the licensor(s) of the Third Party Software. LICENSOR PROVIDES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH RESPECT TO ANY THIRD PARTY SOFTWARE. Except as may otherwise be provided in the Third Party Software license agreements, Customers license to such Third Party Software terminates at such time as Customers license to the Software terminates.
3. Title. (a) Title to Software and Documentation. All right, title, and interest in and to the Online Services, Software and the Documentation, including, without limitation, the media on which the same are furnished to Customer, are and shall remain the sole and exclusive property of Licensor. Except for the License, Customer acknowledges that no right, title, or interest in or to the Online Services, Software or the Documentation is granted pursuant to this Agreement, and no such assertion shall be made by Customer. (b) Title to Upgrades. All right, title, and interest in and to any Upgrades to the Online Services, Software or Documentation shall lie with Licensor. (c) Proprietary Materials. Customer acknowledges that the Online Services, Software and Documentation are works copyrighted under federal copyright law and embody valuable confidential and secret information of Licensor, the development of which required the expenditure of considerable time and money by Licensor. Customer shall not in any manner or under any circumstances use, copy, modify, enhance, merge, reverse engineer, reverse assemble, decompile, or in any way alter the Online Services, Software, or Documentation or any copy, adaptation, transcription, or merged portion thereof or otherwise attempt to derive source code therefrom. Customer shall not permit or suffer any person to remove any proprietary or other legend or restrictive notice contained or included in any material provided by Licensor, and Customer shall not permit or suffer any person to reproduce or copy any such material except as specifically provided in this Agreement. Customer agrees to maintain any and all of Licensors copyright and other notices on the Online Services, Software, and Documentation and shall reproduce such notices on any and all permitted copies, in whole or in part, thereof. Customer understands and agrees that the Software may be protected by devices, including but not limited to, key codes and password protection that disables use of the Software except in accordance with the uses allowed hereunder. Customer will not attempt, directly or indirectly, to disable, bypass, or defeat such devices. Customer will not take any action that jeopardizes Licensors proprietary rights or acquire any right in the Software or the Confidential Information. Licensor will own all rights in any copy, translation, modification, adaptation, or derivation of the Software or other items of Confidential Information, including any improvement or development thereof. Customer will obtain, at Licensors request, the execution of any instrument that may be appropriate to assign these rights to Licensor or perfect these rights in Licensor's name. (d) Secure Handling and Inspection. Customer shall keep unauthorized persons from having access to the Online Services and Software. Customer hereby permits Licensor reasonable access to all premises where the Software may be installed or used, during normal business hours, and upon reasonable notice in order to inspect the Software and to confirm compliance with the terms hereof. (e) Third Party Access. Customer shall not allow any third party to have access to the Software without Licensors prior written consent.
4. Fees and Payments. (a) Fees. Customer shall pay to Licensor the License Fees and other charges and expenses set forth in the Acceptance Form. For any fees payable after completion of the delivery and/or installation obligations hereunder, Licensor may modify such fees at its discretion upon notice to Customer at least sixty (60) days prior to the due date of such fees. If no payment terms are set forth on the Acceptance Form, Customer shall make payment upon the earliest of receipt of (i) any invoice, or (ii) use of the Online Services and/or Software. Customer shall pay for all additional services provided and costs incurred by Licensor which are not described herein on a time-and-expenses basis in accordance with Licensors then standard rates as established by Licensor from time to time. All such payments shall be paid in full when due, without right of deduction or set-off. (b) Past-Due Charges. Customer agrees to pay a charge for any amounts that are more than thirty (30) days past due at the rate of the lesser of (i) one and one-half percent (1.5%) per month or (ii) the greatest rate allowed by law. (c) Taxes. All fees paid or payable to Licensor are exclusive of any federal, state, or local excise, sales, use, intangible, value added, or other taxes assessed or imposed with respect to the Online Services, Software, and/or Documentation provided hereunder. Customer is solely responsible for the payment of any and all taxes resulting from this License, the use of the Online Services, Software, or this Agreement, except for any federal, state, or local income tax imposed on Licensor in connection with revenues associated with this Agreement. Customer hereby agrees to hold harmless Licensor from and against any and all claims and liabilities arising from Customers failure to report or pay any such taxes, if any and to promptly pay any such taxes that may become due. (d) Electronic Funds Transfer (EFT). Customer authorizes its credit card or bank to make monthly payments automatically once a month to Licensor from the account indicated on the Acceptance Form (or otherwise provided to Licensor). Customer is in full control of its account and if Customer decides to discontinue the automatic payment service, Customer will give Licensor thirty (30) days written notice. To ensure proper billing, Customer must provide any changes to its billing information to Licensor in writing, no later than the 20th of any month in which a change is made. If Licensors efforts to obtain payment using the Customers billing information are not successful, Licensor will notify Customer and discontinue Customers access to the Online Services and terminate the License. Such access and License will be discontinued until such time as all past due payments are properly made.
5. Term. Subject to satisfaction of all of Customers obligations hereunder or unless sooner terminated in accordance with this Agreement, the term of the License shall be for the initial term and any additional terms. The initial term of the License shall be for the period set forth in the Acceptance Form, but if no initial term is set forth in the Acceptance Form, the initial term shall be one (1) year from the Effective Date. The Agreement shall automatically renew for successive one year terms unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the annual term. Licensor may terminate this Agreement upon sixty (60) days written notice to Customer in the event that Licensor discontinues providing the Online Services to its customers.
6. Termination. (a) Conditions. In addition to any other rights of termination set forth herein, this Agreement and the License granted hereunder shall terminate (i) immediately upon termination of the license to any Third Party Software to the extent such Third Party Software is necessary for part of the operation of the Software; (ii) immediately upon the breach by the Customer or any of its officers, employees and/or agents of Sections 3,4 or 10, or (iii) upon ten (10) days after notice from Licensor to Customer in the event that Customer or any of its officers, employees and/or agents has breached or violated any provision of this Agreement (except Sections 3,4, and 10). (b) Action Upon Termination. In addition to any other remedies Licensor may have, upon termination of the License, Customer shall within five (5) days return to Licensor the Software, Documentation, Confidential Information (as defined in Section 10), and copies thereof, or upon request by Licensor, in its sole discretion, destroy the same and certify in writing that same have been destroyed together with the manner, date, and time of such destruction. Termination shall not release Customer and Customer shall remain liable to Licensor for all amounts incurred and/or due and payable as of the effective date of termination. (c) Survival of Terms. The provisions of Sections 3,4,7, 8, 10, 12, and 13 (and all other provisions which by their nature would extend beyond the term of this Agreement) shall survive the termination of this Agreement.
7. Disclaimer, and Limitation of Liability.
(a) DISCLAIMER. CUSTOMER IS SOLELY RESPONSIBLE FOR ITS USE OF THE ONLINE SERVICES AND SOFTWARE AND SHALL AT ALL TIME USE THE ONLINE SERVICES AND SOFTWARE IN COMPLIANCE WITH ALL APPLICABLE LAWS. THE SOFTWARE, DOCUMENTATION, UPGRADES, AND ONLINE SERVICES ARE PROVIDED TO CUSTOMER ON AN "AS IS" BASIS ONLY, AND LICENSOR MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, REGARDING OR RELATING TO THE SAME, OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO CUSTOMER PURSUANT TO THIS AGREEMENT OR OTHERWISE. TO THE MAXIMUM EXTENT ALLOWED BY LAW, LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT (EXCEPT AS PROVIDED IN SECTION 8 OF THIS AGREEMENT) WITH RESPECT TO SAID MATERIALS OR THE USE THEREOF LICENSOR DOES NOT WARRANT OR REPRESENT THAT THE OPERATION OF THE ONLINE SERVICES, SOFTWARE, OR UPGRADES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECTS IN THE ONLINE SERVICES, SOFTWARE, UPGRADES, OR DOCUMENTATION, ARE CORRECTABLE OR WILL BE CORRECTED. LICENSOR SHALL HAVE NO RESPONSIBILITIES OR LIABILITY FOR INCORRECT DATA OR INFORMATION INPUTTED INTO THE ONLINE SERVICES OR SOFTWARE OR FOR ERRORS IN OUTPUT, CALCULATIONS, OR RESULTS CAUSED BY THE SAME OR THIRD PARTY SOFTWARE. LICENSOR DOES NOT WARRANT THAT THERE ARE NO DISCREPANCIES BETWEEN THE ONLINE SERVICES/SOFTWARE AND DOCUMENTATION.
(b) LIMITATION OF DAMAGES. IN NO EVENT SHALL LICENSOR, AND/OR LICENSORS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, DISTRIBUTORS, MARKETING PARTNERS, RESELLERS, PARENT, AFFILIATES OR SUBSIDIARIES (COLLECTIVELY THE LICENSOR PARTIES) BE LIABLE FOR ANY LOSS OF DATA OR INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT, OR THE USE OR INABILITY TO USE ANY SOFTWARE OR ONLINE SERVICES, BASED ON ANY THEORY OF CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LICENSOR PARTIES CUMULATIVE LIABILITY TO CUSTOMER FOR ALL CLAIMS RELATING TO DEFECTIVE SERVICES/SOFTWARE SHALL NOT EXCEED THE FEES PAID BY THE CUSTOMER TO LICENSOR FOR THE ONLINE SERVICES/SOFTWARE GIVING RISE TO THE CLAIM. LICENSOR PARTIES SHALL NOT BE LIABLE FOR CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST LICENSOR PARTIES MORE THAN TWO YEARS AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE.
8. Indemnification. (a) Infringement. To the extent Customer is not otherwise in breach of the terms of this Agreement, Licensor will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Licensor Software directly infringes any United States copyright or misappropriates any trade secret recognized as such under the Uniform Trade Secret Law, and Licensor will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. (b) Conditions. Licensors obligations under the preceding paragraph will respect to an action are conditioned on (i) Customer notifying Licensor promptly in writing of such action, (ii) Customer giving Licensor sole control of the defense thereof and any related settlement negotiations, and (iii) Customer cooperating with Licensor in such defense (including, without limitation, by making available to Licensor all documents and information in Customers possession or control that are relevant to the infringement or misappropriation claims, and by making Customers personnel available to testify or consult with Licensor or its attorneys in connection with such defense). (c) Licensors Options. If the Licensor Software becomes or, in Licensors opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Licensor may, at its option, (i) procure for the Customer the right to continue using such Licensor Software, (ii) replace or modify such Licensor Software so that it becomes non-infringing without substantially compromising its functionality, or, if (i) and (ii) are not reasonably available to Licensor, then (iii) terminate Customers license to the allegedly infringing Licensor Software and pay to Customer an amount not to exceed any prepaid License Fees. THIS SECTION SETS FORTH THE ENTIRE OBLIGATION OF LICENSOR AND CUSTOMERS SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS AND ACTIONS. (d) Exclusions. Notwithstanding the foregoing, Licensor shall have no liability for (i) any modifications made to any software, hardware, firmware, other materials that are made or requested by Customer; (ii) compliance with Customers designs, specifications, or instructions; (iii) use of technical information or technology provided by Customer; (iv) use of Software or Third Party Software in a manner or with software or hardware not approved or prohibited by Licensor; or (v) claims in which Customer or any affiliate of Customer has an interest. Customer agrees to indemnify, defend, and hold Licensor harmless from and against any claim, liability, cost, or expense (including attorneys fees) related to a claim of infringement arising out of any of the principals outlined above. (e) Indemnification for Breach or Use of Software. Customer shall indemnify, defend, and hold harmless Licensor, its affiliates, officers, directors, shareholders, agents employees and contractors from and against any and all losses, liabilities, obligations, claims, suits, costs, expenses, damages, or judgments of any kind or nature whatsoever (including reasonable attorneys fees and other reasonable expenses associated with, and any costs incurred) pursuing indemnification claims hereunder, whether actual or threatened, resulting from or in any way connected with (i) a breach of this Agreement by Customer, its employees, contractors or agents; (ii) use of the Online Services and/or Software by Customer or any of its employees, contractors, agents or any third party who makes use of the Online Services and/or Software or any copies of Software, including without limitations, any and all claims, actions, suits, or proceedings alleging fraud, breach of security, violation of applicable data privacy laws or any other applicable laws, breach of contract or negligence.
9. Termination. (a) Conditions. In addition to any other rights of termination set forth herein, this Agreement and the License granted hereunder shall terminate (a) immediately upon termination of the license to any Third Party Software to the extent such Third Party Software is necessary for part of the operation of the Software; (b) immediately upon the breach by the Customer or any of its officers, employees and/or agents of Sections 1,4, 5, or 10, or (c) upon ten (10) days after notice from Licensor to Customer in the event that Customer or any of its officers, employees and/or agents has breached or violated any provision of this Agreement (except Sections 1,4,5, and 10). (b) Action Upon Termination. In addition to any other remedies Licensor may have, upon termination of the License, Customer shall within five (5) days return to Licensor the Software, Documentation, Confidential Information (as defined in Section 10), and copies thereof, or upon request by Licensor, in its sole discretion, destroy the same and certify in writing that same have been destroyed together with the manner, date, and time of such destruction. Termination shall not release Customer and Customer shall remain liable to Licensor for all amounts incurred and/or due and payable as of the effective date of termination. (c) Survival of Terms. The provisions of Sections 2,4,5,7, 8, 10, 12, and 13 (and all other provisions which by their nature would extend beyond the term of this Agreement) shall survive the termination of this Agreement.
10. Confidential Information. Customer, on its own behalf and on behalf of its employees, officers, directors, agents, and affiliates, during the term of this Agreement and thereafter, covenants and agrees that it will not use, disclose, divulge, disseminate or otherwise make available to any third party any Confidential Information or otherwise make use of any Confidential Information, without the prior written consent of Licensor except as expressly allowed herein. Customer shall use the highest commercially reasonable degree of care to protect the Confidential Information, including ensuring that its employees or consultants with access to such Confidential Information have agreed in writing not to disclose the Confidential Information. Customer shall immediately provide Licensor copies of such written agreements with employees or consultants upon Licensors request. Customer shall bear the responsibility for any breaches of confidentiality by its employees, contractors, and consultants. Within fifteen (15) days after request by Licensor, Customer shall either return to Licensor all originals and copies of any Confidential Information and all information, records and materials developed therefrom by Customer, or destroy the same. Nothing herein shall prevent Customer from disclosing all or part of the Confidential Information as necessary pursuant to the lawful requirement of a governmental agency or when disclosure is required by operation of law; provided that prior to any such disclosure, Customer shall use reasonable efforts to (a) promptly notify Licensor in writing of such requirement to disclose, and (b) cooperate fully with Licensor in protecting against any such disclosure or obtaining a protective order. For purposes hereof, "Confidential Information" shall mean all confidential, proprietary or secret information of Licensor, including without limitation, information provided to Customer that is marked or made known to be "Confidential" (or words of like effect), the Software, and the Documentation. Customer recognizes and acknowledges that the use or disclosure of Confidential Information in a manner inconsistent with the provisions of this Agreement shall cause Licensor immeasurable damage for which adequate remedy at law may not be available. Licensor shall therefore be entitled to obtain injunctive and other equitable relief for the breach or threatened breach of this section, without the requirement to post bond. The rights under this section shall be cumulative of all other rights of Licensor. The foregoing obligations shall not apply if and to the extent that Customer establishes that: (i) the information communicated was already known to Customer, without obligation to keep it confidential, at the time of its receipt directly or indirectly from Licensor; (ii) the information communicated was received by Customer in good faith from a third party lawfully in possession thereof and having no obligation to keep such information confidential; (iii) the information is independently developed by Customer without use of any Confidential Information received from Licensor; or (iv) the information communicated was publicly known at the time of its receipt by Customer or has become publicly known other than by a breach of this Agreement or other action by Customer.
11. Export Controls. Customer shall comply fully with all export and import laws, regulations, orders, and policies of the U.S., or any other applicable jurisdiction. Customer acknowledges and agrees it is solely responsible for compliance with any and all import and export restrictions, and other applicable laws, in the U.S. or any other applicable jurisdiction, and that Licensor has no further responsibility after the initial distribution to you within the original country of sale. Customer represents that neither the United States Bureau of Export Administration nor any other federal agency has suspended, revoked or denied Customers export privileges, and Customer will not use or transfer the Software for end use relating to any nuclear, chemical or biological weapons, or missile technology unless authorized by the U.S. Government by regulation or specific license.
12. General Provisions.
(a) Independent Parties. The parties acknowledge, one to the other, that Licensor is an independent contractor to Customer, and Licensor may engage in other business activities at its sole discretion. This Agreement does not in any way create or constitute a relationship of employment, partnership, or a joint venture between the parties.
(b) Assignment. Customers rights and obligations under this Agreement may not be assigned or transferred without the prior written consent of Licensor and any unauthorized assignment or transfer shall be null and void. Licensor may assign the Agreement or any of its rights and obligations under the Agreement to a third party which shall become automatically effective upon assignment. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the parties and their respective successors, executors, heirs, representatives, administrators and permitted assigns.
(c) Force Majeure. Customer agrees that Licensor shall not be liable for any losses and damage, including consequential damages, detention, or delay or failure to perform any services resulting from causes beyond the control of Licensor including, but not limited to, acts of God, acts or omissions on the part of Customer, delays in transportation, failure to obtain supplies not caused by the negligence of Licensor, changes in governmental regulations, war, or civil disturbance.
(d) Notices. All notices required to be given hereunder shall be given in writing and shall be delivered either by hand, by certified mail with proper postage affixed thereto, or by facsimile (with confirmation copy sent by certified mail) addressed to the signatory at the address set forth on the Acceptance Form, or such other person and address as may be designated from time to time in writing. All such communications shall be deemed received by the other party upon the earlier of actual receipt or actual delivery.
(e) Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions of this Agreement shall remain in full force and effect, provided that in such event the parties agree to negotiate in good faith enforceable substitute provisions which most nearly effect the parties' intent in entering into this Agreement.
(f) Governing Law; Venue, English Language. This Agreement shall be construed in accordance with the laws of the United States and of the State of Mississippi, applicable to contracts entered into and solely performed therein, without regard to that body of law pertaining to conflicts of law, and expressly excluding the United Nations Convention on Contracts for the International Sale of Goods. Except as necessary to obtain injunctive relief, Customer consents to submit to the exclusive jurisdiction of the state and federal courts in the state of Mississippi. The parties confirm that this Agreement and all related documentation are and will be drafted in English.
(g) Waiver. No waiver of any breach or default hereunder shall be considered valid unless in writing and signed by the party giving such waiver, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature.
(h) No Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any party other than the parties hereto and their respective corporate affiliates, heirs, successors and assigns, any rights or remedies under or by reason of this Agreement.
(i) Attorneys Fees. Customer shall reimburse Licensor for all reasonable costs (including attorneys' fees) incurred by Licensor in collecting late payments from Customer. In the event any dispute or litigation arises hereunder between any of the parties hereto, their heirs, personal representatives, agents, successors or permitted assigns, the prevailing party shall be entitled to all reasonable costs and expenses incurred by it in connection therewith (including, without limitation, all reasonable attorneys' and paralegals' fees and costs incurred before and at any trial, arbitration, or other proceeding and at all tribunal levels), as well as all other relief granted in any suit or other proceeding.
(j) License to Government. If any Software or Documentation, are acquired by or on behalf of a unit or agency of the United States Government (the "Government"), the Government agrees that such software or documentation is "commercial computer software" or "commercial computer software documentation" and that, absent a written agreement to the contrary, the Government's rights with respect to such software or documentation are limited by the terms of this Agreement, pursuant to FAR 12.212(a) and/or DFARS 227.7202-1 (a), as applicable. Any technical data related to such software or documentation are "Limited Rights Data" pursuant to FAR 52.227-14 with Alternate II, or, if applicable, are provided to the Government subject to DFARS 252.227-7015.
(k) Integration and Amendment. This Agreement and written documents referenced herein (including the Acceptance Form) constitute the entire Agreement of the parties superseding and extinguishing all prior agreements or understandings, representations or warranties, relating to the subject matter hereof. This Agreement may not be modified, or amended except by written agreement specifically referring to this Agreement signed by the parties hereto. Customer represents and acknowledges that in entering into this Agreement, it did not rely on any representations or warranties other than those explicitly set forth in this Agreement.
(l) Independent Audit. Licensor shall have the right upon reasonable advance written notice, to have an independent auditor verify Customers compliance with this Agreement. Customer shall make all applicable books and records available for such inspection during normal business hours at Customers principal place of business. Any such audit shall be at the expense of Licensor, unless such audit discloses an underpayment by the Customer for the audited period in excess of five percent (5%), in which case Customer shall reimburse Licensor for such expenses. If the audit discloses any underpayment by Customer, Customer shall promptly make payment to Licensor of such underpayment, together with interest.
(m) Public Relations. Subject to the other terms of this Agreement, Customer agrees to allow Licensor to use Customers name, logo, and a brief description of Customers business operations in marketing and public relations materials such as press releases, advertising, printed collateral, and/or Web site copy (collectively, "Copy"). Licensor is hereby allowed to refer to Customer as a customer of Licensor in such Copy.
(n) Construction. Every covenant, term and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any party.
(o) Representations. Customer represents and acknowledges that (i) it has read and understands this Agreement; (ii) it has had an opportunity to have its legal counsel review this Agreement; (iii) issuance of this license does not constitute general publication of the Software, the Documentation or other Confidential Information; and (iv) the individual accepting this Agreement on behalf of a corporation or other legal entity personally represents that he or she is duly authorized to accept this Agreement on behalf of such entity and that this Agreement is binding upon such entity.
(p) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but which together shall constitute the same instrument. Each party agrees to be bound by its own facsimiled signature, and agrees that it accepts the facsimiled signature of the other party hereto.
13. Definitions. Except as may otherwise be defined herein, the following terms are defined for the purposes of this Agreement as follows:
AccessDesk Software means the proprietary Software package of Licensor as indicated on the Acceptance Form which is licensed based on the number of Seats.
"Acceptance Form" means the Quote/Order or similar document (whether in written or electronic format), between Licensor and Customer referencing the licensing of the Software, access to the Online Services, Licensee Fee(s), and accepted by Customer and Licensor. The Acceptance Form is a material part of this Agreement.
Agreement means the Acceptance Form and this Agreement constituting the entire agreement between the Licensor and the Customer pertaining to the matters set forth therein.
"Starter Service Software" means the package of computer software programs, in object code or restricted source code form as identified on the Acceptance Form. Unless specifically indicated or the context requires otherwise, the term Starter Service Software shall include all Upgrades to the Starter Service Software provided to Customer by Licensor.
"Documentation" means the written or electronic documents, help files, and other textual matter that describes the specifications, functionality, and limitations, which are included with the Starter Service Software.
"License" means the revocable, non-exclusive, non-transferable, limited, non-proprietary right of online use granted to the Starter Service Software and Documentation which is subject to the restrictions set forth herein.
"License Fee" means the fees (as set forth on the Acceptance Form) paid by Customer to Licensor for the access to the Online Services and license to the Software granted herein during the term of this Agreement.
Licensor Software means the package of proprietary computer software programs, in object code or restricted source code form as identified on the Acceptance Form. Unless specifically indicated or the context requires otherwise, the term Licensor Software shall include all Upgrades to the Starter Service Software provided to Customer by Licensor.
"Log-In User(s)" means the individual user of the Online Services/Starter Service Software that is logged in to use the Online Services/Starter Service Software.
"Online Services" means the non-exclusive web based Software services provided by Licensor to its customers.
"Seat" means a computer, workstation, server, or other electronic device upon which the Software is installed or that may access the Software
Software means the package of computer software programs, in Object Code form as identified on the Acceptance Form. Unless specifically indicated or the context requires otherwise, the term Software shall include all Upgrades to the Software provided to Customer by Licensor. Software includes all Third Party Software.
"Third Party Software" means the package of computer software program(s) in object code or restricted code form that are owned and licensed by parties other than Licensor that is integrated with or made part of the Software, or otherwise necessary for the operation of the Software. Unless specifically indicated or the context requires otherwise, the term Third Party Software shall include all Upgrades to the Third Party Software provided to Customer by Licensor or by the applicable third party owner or licensor.
"Upgrade" means any modification, correction, enhancement, deletion, or substitution to Software, including but not limited to, any data file or module thereto, that may be provided by Licensor or a third party, whether under this Agreement, or any other agreement between Customer and Licensor. Upon the installation of any Upgrade of the Software, Customers License to previous versions of the Software terminates immediately.