SOFTWARE LICENSE AGREEMENT
(Licensee Accessing Licensed Software Online)
THIS SOFTWARE LICENSE AGREEMENT (this “Agreement”) contains the terms and conditions on which Shadow-Soft, L.L.C., a Georgia limited liability company (“Shadow-Soft”) grants to you (“Licensee”) a License (defined below). By you clicking your acceptance of this Agreement on an icon made available on an applicable website, you are agreeing to be bound by this Agreement in its entirety, to be effective as of the date that you click such acceptance (the “Effective Date”). If you are entering into this Agreement within your scope of employment or in connection with your engagement as an independent contractor, then the defined term “Licensee” also includes your employer or principal contractor, as applicable, and you warrant and represent to Shadow-Soft that you are authorized to enter into this Agreement on such employer’s or such principal contractor’s behalf.
WHEREAS, Shadow-Soft is the sole owner of certain software commercially referred to as “SecurePaaS” that is configured to improve development and integration by providing automated application configuration, user/role management, dynamic policy creation, security audit monitoring and a user-friendly API (collectively, the “Licensed Software”); and
WHEREAS, Licensee desires a non-exclusive license to utilize a version of the Licensed Software and Shadow-Soft is willing to grant Licensee such a non-exclusive license, subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
1.1. License Grant. Subject to the terms and conditions set forth in this Agreement, Shadow-Soft hereby grants to Licensee and Licensee accepts from Shadow-Soft, a non-exclusive, limited, non-transferrable, non-sub-licensable, revocable right and license to utilize a version of the Licensed Software and any corresponding documentation solely for the purpose of testing the possible integration of the Licensed Software with Licensee’s software/systems and/or for Licensee’s internal business purposes (the “License”). Shadow-Soft hereby reserves all rights in and to the Licensed Software not expressly granted in this Agreement. This license is not a sale of the original or any copy of the Licensed Software. The License grants Licensee the right to use the Licensed Software on two (2) Java Virtual Machines within the proof-of-concept architecture.
1.2. Ownership. Licensee acknowledges that the Licensed Software is the valuable, confidential, and proprietary property of Shadow-Soft, the development of which required the investment of substantial time, effort and financial resources by Shadow-Soft, and further acknowledges that Shadow-Soft shall retain exclusive title to the Licensed Software both during the term and after the termination of this Agreement. Licensee agrees that, both during the term of this Agreement and after its termination, it will not contest, directly or indirectly, Shadow-Soft’s ownership, title, right or interest in the Licensed Software. Without limitation, Licensee acknowledges the validity of any copyrights, patents, or trade secrets (collectively “Intellectual Property”) that may arise out of the Licensed Software, agrees that any rights in and to the Intellectual Property in the Licensed Software shall remain the exclusive property of Shadow-Soft at all times, and agrees that it will take no action inconsistent with such rights. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, LICENSEE SHALL NOT, IN WHOLE OR IN PART, AT ANY TIME DURING THE TERM OF OR AFTER THE TERMINATION OF THIS AGREEMENT: (i) SELL, TRANSFER, ASSIGN, LEASE, RENT, OR SUBLICENSE THE LICENSED SOFTWARE TO ANY THIRD PARTY; (ii) DISCLOSE, COPY OR REPRODUCE IN ANY MANNER, DISPLAY, OR DISTRIBUTE THE LICENSED SOFTWARE TO ANY THIRD PARTY; (iii) MODIFY, DISASSEMBLE, DECOMPILE, REVERSE ENGINEER OR TRANSLATE THE LICENSED SOFTWARE; OR (iv) ALLOW ANY PERSON OR ENTITY TO COMMIT ANY OF THE ACTIONS DESCRIBED IN (i) THROUGH (iii) ABOVE. Licensee shall take appropriate action, by instruction, agreement, or otherwise, with respect to its employees and contractors permitted under this Agreement to have access to the Licensed Software, to ensure that all of Licensee's obligations under this Section shall be satisfied.
2. MAINTENANCE SERVICES.
2.1. Software Upgrades. As used herein “Software Upgrades” shall mean enhancement, updates, and/or new versions of the Licensed Software. Shadow-Soft may provide Licensee with Software Upgrades as they are released by Shadow-Soft. Any Software Upgrades furnished to Licensee pursuant to this Agreement shall be considered “Licensed Software” as defined herein and shall be licensed to Licensee subject to the terms and conditions of this Agreement. Except as expressly provided herein, Shadow-Soft shall not be obligated to maintain or support the Licensed Software in any way.
2.2. Technical Support. Shadow-Soft may provide email and telephone support on a best efforts basis to Licensee for the Licensed Software during Shadow-Soft’s normal business hours of Monday through Friday, 9:00 a.m. to 4:30 p.m. EST, excluding holidays.
3. LICENSEE FEEDBACK. Licensee agrees to provide timely feedback to Shadow-Soft regarding the Licensed Software, including timely feedback on any bugs and other issues relating to functionality of the Licensed Software. Licensee shall use its best efforts to notify Shadow-Soft about any bugs or errors in the Licensed Software within two (2) days of discovering the same and will provide Shadow-Soft with a detailed enough description of such bugs or errors to enable Shadow-Soft to reasonably be able to identify the cause. Licensee acknowledges and agrees that it will have no confidentiality obligations with respect to such feedback. Licensee agrees that Shadow-Soft will be free to copy, modify, create derivative works from, publicly display, disclose, distribute, and otherwise use the feedback for any and all commercial and non-commercial purposes.
4. LICENSEE FEE. Licensee Fees, if applicable, shall be detailed below in an appendix or as an addendum to this agreement but are not typically required for a short-term, hosted proof-of-concept.
5. AUDIT AND INSPECTION.
5.1. Licensee acknowledges and agrees that the Licensed Software is configured to automatically transmit to Shadow-Soft certain information regarding Licensee’s use of the Licensed Software, including information that could permit Shadow-Soft to assess Licensee’s compliance with Section 1 hereof. Licensee shall not make any attempts to thwart or otherwise frustrate such automated process.
5.2. Licensee shall further grant Shadow-Soft the right to inspect the premises of all of Licensee’s facilities wherein the Licensed Software is used, including without limitation Licensee’s books and records including computer servers, hard drives, laptops, and other devices utilized by Licensee in connection with the Software, so that Shadow-Soft can assess Licensee’s compliance with Section 1 hereof.
6.1. Mutual Representations. Each of the parties hereto represents and warrants to the other that:
6.1.1. This Agreement is not in conflict with any other agreements to which it is a party.
6.1.2. The execution, delivery and performance by such party of this Agreement have been duly authorized by all necessary action of such party, do not require any approval which has not been obtained, do not contravene the organizational documents of such party or any law, regulation, rule, or order binding on such party, and do not contravene the provisions of or constitute a default under any indentures, mortgage, contract, or other agreement or instrument to which it is a party.
6.2. Licensee’s Representations. Licensee represents and warrants to Shadow-Soft that:
6.2.1. Licensee shall be solely responsible for the use of the Licensed Software pursuant to the terms of this Agreement.
6.2.2. Licensee shall comply with all applicable laws and regulations and obtain all appropriate government approvals pertaining to the use of the Licensed Software.
7.1. Confidential Information. Shadow-Soft (the “Disclosing Party”) may provide to Licensee or its employees, consultants or agents (collectively, the “Receiving Party”), access to (i) Intellectual Property, information, knowledge or data with respect to Shadow-Soft’s business, products, services, trade secrets, technologies, systems, customers, marketing and service methods, discoveries, ideas, concepts, designs, drawings, specifications, techniques, computer flow charts and programs, computer software (whether owned or licensed by Shadow-Soft), hardware, firmware, models, data and data systems, documentation, manuals, diagrams, research and development efforts and results, technical, marketing, operation and performance information, know-how, business pricing policies, methods, practices, sales and marketing methods, inventions, processes, procedures, formulae, referral sources, employee lists or resumes, financial information, cost and revenue information, customer lists, information relating to past, present or prospective customers, information belonging to Shadow-Soft’s customers, and/or information of another person or entity which Shadow-Soft is legally obligated to keep confidential pursuant to a written agreement or otherwise; and (ii) all oral or written analyses, compilations, studies, notes of conversations, or other documents prepared for or by Shadow-Soft (collectively, “Confidential Information”). Confidential Information shall include the terms and conditions of this Agreement. Each party hereto acknowledges that the Disclosing Party has a legitimate interest in maintaining the confidentiality of the Confidential Information.
7.2.1. Except as may be otherwise be required by law or compelled by legal process, the Receiving Party shall treat as confidential all Confidential Information of the Disclosing Party, shall not use such Confidential Information except for the purposes of this Agreement or as otherwise authorized in writing, shall implement reasonable procedures to prohibit the disclosure, duplication, misuse, or removal of the Disclosing Party’s Confidential Information, and shall not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such party under this Agreement and subject to confidentiality obligations at least as protective as those set forth in this Agreement.
7.2.2. Without limiting the foregoing, the Receiving Party shall use at least the same procedures and degree of care that it uses to prevent the disclosure of its own Confidential Information to prevent the disclosure of Confidential Information disclosed to the Receiving Party by the Disclosing Party under this Agreement, but in no event less than reasonable care.
7.3. Exceptions. The foregoing restrictions shall not apply to information that:
7.3.1. is known to the Receiving Party at the time of the communication to the Receiving Party, as shown through documentary evidence;
7.3.2. has become publicly known through no wrongful act of the Receiving Party, its employees, consultants or agents;
7.3.3. has been rightfully received from a third party authorized to make such communication without restriction; or
7.3.4. has been approved for release by the written authorization of the Disclosing Party.
7.4. Remedies. The parties hereto acknowledge and agree that the rights under this Agreement are of a specialized and unique character and that immediate and irreparable damage will result to the Disclosing Party if the Receiving Party fails or refuses to perform its obligations under this Section 7 and, notwithstanding any election by the Disclosing Party to claim damages from the Receiving Party as a result of such failure or refusal, the Disclosing Party may, in addition to any other remedies and damages available, seek an injunction in a court of competent jurisdiction to restrain any such failure or refusal by the Receiving Party to perform or comply with its obligations hereunder.
8. INDEMNIFICATION. Licensee agrees to defend, indemnify, and hold Shadow-Soft, and its officers, directors, shareholders, agents and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred as a result: of (i) claims of a third party against Shadow-Soft based on Licensee’s use of the Licensed Software pursuant to this Agreement; (ii) a breach by Licensee of this Agreement; and/or (iii) Licensee’s negligence or intentional misconduct.
9.1. Term. The “Term” of this Agreement shall be for the period specified on the applicable webpage, or if not specified, for one (1) year from the Effective Date.
9.2. Early Termination. This Agreement shall be terminable by Shadow-Soft at any time by written notice or by terminating Licensee’s access to the Licensed Software.
9.3. Effect of Termination. Within five (5) days after the date of termination of this Agreement for any reason, Licensee shall return all original copies of the Licensed Software and document to Shadow-Soft and shall give Shadow-Soft written notice certifying that the original copies of the Licensed Software and any other material received from Shadow-Soft in connection with this Agreement have been returned to Shadow-Soft, and that the Licensed Software has been erased from all computer memories and storage devices within Licensee’s control and that Licensee has not retained any copies of the Licensed Software. In addition to all other remedies available to Shadow-Soft under this Agreement, Shadow-Soft shall be entitled to specific performance of Licensee’s obligations to return and erase the Licensed Software pursuant to this Section.
9.4. Survival of Certain Terms. The following shall survive any termination of this Agreement for any reason: Sections 1.2, 6, 7, 8, 9, 10, and 11.
10. WARRANTY EXCLUSION AND LIMITATION ON LIABILITY.
10.1. Warranty Exclusions. THE LICENSED SOFTWARE IS PROVIDED BY SHADOW-SOFT “AS-IS” AND “AS AVAILABLE” AND SHADOW-SOFT MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE LICENSED SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SHADOW-SOFT MAKES NO WARRANTY WITH RESPECT TO, AND LICENSEE ACCEPTS SOLE RESPONSIBILITY FOR, THE INSTALLATION AND USE OF THE LICENSED SOFTWARE, ANY RESULTS OBTAINED FROM SUCH USE, AND THE SELECTION, USE OF AND RESULTS OBTAINED FROM ANY OTHER PROGRAM, PROGRAMMING EQUIPMENT OR SERVICES OPERATED OR APPLIED IN CONNECTION WITH THE LICENSED SOFTWARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SHADOW-SOFT ALSO MAKES NO WARRANTY THAT THE LICENSED SOFTWARE WILL MEET LICENSEE’S TECHNICAL OR OTHER REQUIREMENTS. SHADOW-SOFT DOES NOT REPRESENT OR WARRANT THAT THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR THAT THE LICENSED SOFTWARE IS ERROR-FREE, PROBLEM-FREE, OR WITHOUT OTHER LIMITATIONS. NO REPRESENTATIONS, WARRANTIES OR GUARANTEES WHATSOEVER ARE MADE AS TO THE ACCURACY, ADEQUACY, AVAILABILITY, RELIABILITY, TIMELINESS, COMPLETENESS, SUITABILITY OR APPLICABILITY OF THE LICENSED SOFTWARE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE LICENSED SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO THE SHORTEST PERIOD OF TIME REQUIRED BY LAW. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SHADOW-SOFT, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
10.2. Limitation of Liability. SHADOW-SOFT’S SOLE AND ENTIRE LIABILITY UNDER THIS AGREEMENT, FOR ANY REASON, AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL NOT EXCEED TEN U.S. DOLLARS (US$10.00). IN NO EVENT SHALL SHADOW-SOFT NOR ANY PERSON INVOLVED IN THE CREATION, PRODUCTION, DELIVERY OR INSTALLATION OF THE LICENSED SOFTWARE BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF PROFITS, LOSS OF DATA, LITIGATION, OR THE LIKE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE LICENSED SOFTWARE, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.1. No Implied Rights. Except as expressly provided for in this Agreement, nothing contained herein shall be construed as conferring any license or other rights, by implication, estoppel, or otherwise, under any patents or patent applications, trade secrets, proprietary information, copyrights, trademarks, trade names, or trade dress of either party.
11.2. Force Majeure. Neither party shall be liable to the other for delay or failure in performance of any of the obligations imposed by this Agreement if such failure is beyond the reasonable control of such party due to force majeure. Force majeure shall include any action of the elements of fire, accident, riot, labor disturbance, failure or lack of transportation facilities, issuance of governmental laws, orders, or regulations, or other cause, whether similar or dissimilar, beyond the reasonable control of the party required to perform. The party whose performance is impeded by the force majeure condition shall notify promptly the other party upon the discovery of the force majeure condition, indicating the anticipated duration and effect of the force majeure condition, and such party shall be diligent in attempting to remove such force majeure condition.
11.3. Compliance with Law. Each party hereto shall comply with, and shall not be in violation of, any applicable statutes, laws, ordinances, rules, regulations, or other governmental orders that affect the performance by that party under this Agreement.
11.4. Injunctive Relief. Licensee acknowledges that any breach of Licensee’s obligations under this Agreement may result in irreparable injury for which Shadow-Soft shall not have an adequate remedy at law. Accordingly, if Licensee breaches or threatens to breach any of Licensee’s obligations under this Agreement, Shadow-Soft shall be entitled, without showing or proving any actual damage sustained, to a temporary restraining order, preliminary injunction, permanent injunction, and/or order compelling specific performance, to prevent the breach of Licensee’s obligations under this Agreement. Nothing in this Agreement shall be interpreted as prohibiting Shadow-Soft from pursuing or obtaining any other remedies otherwise available to it for such actual or threatened breach, including recovery of damages.
11.5. Notices. All notices, consents, waivers and other communications required or permitted to be given under this Agreement must be in writing and delivered by confirmed email or facsimile transmission, by a recognized courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the address as may be specified by either party to the other party in accordance with this Section.
11.6. Assignment. This Agreement shall bind and inure to the benefit of the parties and their respective permitted successors and assigns. Shadow-Soft shall have the right to assign or otherwise transfer its rights or obligations under this Agreement whether by contract or operation of law without Licensee’s consent. Licensee shall not have the right to assign, by contract, operation of law or otherwise, this Agreement or any of the rights, interests, or obligations hereunder without the prior written consent of Shadow-Soft. A successor in interest by merger, operation of law or purchase of the assets or entire business of Licensee or otherwise shall not acquire all or any portion of Licensee’s interests hereunder without the prior written consent of Shadow-Soft.
11.7. Entire Agreement; Amendment. This Agreement, any restrictions or other provisions on any applicable webpage, and any Non-Disclosure/Confidentiality Agreement entered into between the parties hereto, together constitute the entire and exclusive agreement between the parties hereto with respect to the subject matter hereof and supersedes and cancels all previous agreements, understandings, and communications, whether in oral or in writing, with respect to such subject matter. In the event of any conflict between this Agreement, other provisions on any applicable webpage, and/or any Non-Disclosure/Confidentiality Agreement, the language imposing the most stringent restrictions and obligations upon Licensee shall govern and control. This Agreement may not be amended or modified except by a written agreement executed by duly authorized representatives of the parties hereto.
11.8. Waiver. The failure of either party hereto at any time or times to require performance of any provision hereof shall in no manner affect the right of such party at a later time to enforce the same. No waiver by any party hereto of any condition, or the breach of any provision, term, covenant, representation, or warranty contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such condition or of the breach of any other provision, term, covenant, representation, or warranty of this Agreement.
11.9. Governing Law; Exclusive Jurisdiction. This Agreement shall be governed by and interpreted under the laws of the State of Georgia, without reference to conflict of laws principles. Each party hereto consents to the exclusive jurisdiction of the state and federal courts in the State of Georgia for purposes of any action brought under or as the result of a breach of this Agreement, and each party waives any objection thereto.
11.10. Attorneys’ Fees. If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith.
11.11. Independent Status of Parties. Nothing in this Agreement may be construed to constitute either party hereto as agent for, or partner of, the other party hereto. Neither party hereto has the right to bind the other party hereto, transact any business in the name or on behalf of the other party in any manner or form, or to make any promise or representation on behalf of the other party hereto.
11.12. Licensee Reference. Shadow-Soft may use Licensee’s name in any customer reference list or in any press release issued by Shadow-Soft regarding the licensing of the Software.
11.13. Severability. In case any one or more of the provisions contained in this Agreement is for any reason held to be unenforceable in any respect, such provision shall be modified to be made enforceable, or if that is not possible, this Agreement will be construed as if such provision had never been contained herein.
11.14. Descriptive Headings. The headings of the several sections of this Agreement are intended for convenience of reference only and are not intended to be a part of or affect the meaning or interpretation of this Agreement.
11.15. Click-Through Agreement. This Agreement may be executed by Licensee’s clicking an icon on an applicable webpage, with the effect being that this Agreement shall be binding on both Shadow-Soft and Licensee.
11.16. Informed Review. Each party acknowledges that it has received and reviewed this Agreement and that normal rules of construction, to the effect that ambiguities are to be resolved against the drafting party, shall not apply to this Agreement or to any amendments, modification, schedules, or attachments to this Agreement.