This License Agreement is a legal agreement between you (either an individual or a single entity, a "Licensee") and Falcon Solution, Inc. ("FS"). The following terms and conditions shall govern any installation or use of the Licensed Products referenced on this Site. Such Licensed Products include without limitation computer software, associated media, any printed materials and any online or electronic documentation.
A. Grant of License. FS grants to Licensee a non-assignable, nontransferable, and non-exclusive license, during the Term (as defined in Section 10 hereof), to use the Licensed Products solely for its own internal use and benefit, subject to the terms and conditions specified herein. No license is granted to Licensee for any other purpose. None of the rights granted by FS hereunder may be sold, assigned, distributed, transferred or sublicensed to any other person, in any media (including electronic media), without the prior written consent of FS.
B. Maintenance Releases, Upgrades and Support Services.
This Agreement does not of itself provide for the licensing or
provision of any Maintenance Releases or Upgrades with respect
to the Licensed Products, or the provision of any technical support,
maintenance or installation services on the part of FS. The license
of the Licensed Product and the payment of any license fees are
unrelated to and not conditioned upon the provision of any such
Releases or Upgrades or support services. The terms and conditions
by which any such Maintenance Releases or support services (if
any) are to be licensed or provided must be set forth in a separate
maintenance and support services agreement entered into between
Licensee and FS ("Support Services Agreement"). Provision
of any Upgrades are at the discretion of FS, may be subject to
additional license and fee terms, and are not included within
the scope of any Support Services Agreement unless FS and Licensee
expressly agree to the contrary therein.
2. Scope of Use
The Licensed Products are licensed for use only by Licensee as specified on the Site. For the purpose of this Agreement, "use" means loading Licensed Products into RAM, a hard disk or other storage device. Except to the extent otherwise expressly permitted by applicable law, Licensee shall not attempt, nor permit others to attempt, to reverse compile, decompile, disassemble or reverse engineer or otherwise attempt to derive the program code for the Licensed Products, or from other information made available by FS to Licensee.
In consideration of the license granted hereunder by FS to Licensee, Licensee will pay to FS the License Fees specified on the Site for the Licensed Products. Payment is due prior to first use or installation and shall be made by credit card payment to FS as specified in the payment terms section of the Site. All sales are final; there are no refunds.
4. Title, Risk of Loss and Non-Transferability
As between the parties hereto, FS or its licensors retains all right, title and interest in and to the Licensed Products, including all copyright, trade secret, trademark and patent and other intellectual property rights embodied therein, subject to the terms of the license granted hereunder. All rights not expressly granted hereunder by FS are reserved by FS or its licensors, and all materials supplied to Licensee under this Agreement shall remain the sole property of FS. After installation of Licensed Products by Licensee, Licensee shall be solely responsible for and bear all risk of loss thereon. The license to use Licensed Products hereunder is personal to Licensee and solely for Licensee's own internal use and benefit. Licensee shall not transfer, sublicense, or deliver Licensed Products or such license to another location or provide or otherwise make Licensed Products available to anyone other than Licensee's personnel, including but not limited to any service bureau or time share clients, unless Licensee shall have obtained FS's prior written consent in each case. Any attempt to sub-license, or transfer Licensed Products in violation of the foregoing shall be void, of no effect, and be deemed a material breach of this Agreement.
5. Non-Disclosure and Non-Reproduction of Proprietary Information
A. Confidential Information. Licensee understands and agrees that Licensed Products constitute confidential and proprietary information of FS and/or its licensors that embodies valuable trade secrets. Licensee agrees not to duplicate or otherwise reproduce, directly or indirectly, said Licensed Products in whole or in part or any materials relating thereof (except that Licensee may make such limited number of copies of Licensed Products as is necessary for archival or back-up purposes). Licensee agrees to take all reasonable steps to ensure that no unauthorized persons shall have access to Licensed Products and that all authorized persons having access to said Licensed Products while in the possession of such will adhere to all conditions stated in this Section.
B. Proprietary Notices. Licensee will not alter or remove any copyright, trade secret, patent, proprietary and/or legal notices contained on or in copies of the Licensed Products. The existence of any such copyright notice on the Licensed Products shall not be construed as an admission, or be deemed to create a presumption, that publication of such materials has occurred.
C. Injunctive Relief. In the event of any unauthorized disclosure of confidential information by Licensee, FS may elect to terminate this Agreement as provided in Section 10 hereof. Because unauthorized use or transfer of the License Products may diminish substantially the value of such materials and may irrevocably harm FS and/or its licensors, if Licensee breaches the provisions of this Section 5.C., FS and/or its licensors will be entitled to injunctive and/or other equitable relief, in addition to other remedies afforded by law, without any requirement for the posting of a bond.
Licensee agrees to indemnify, defend and hold harmless FS, its affiliates and licensors and their respective officers, directors, employees, agents, and contractors, (collectively the "Indemnified Parties"), from and against any and all claims, suits, damages and expenses (including without limitation reasonable attorney, accountant and expert fees and related costs of investigation) asserted against or incurred by any of the Indemnified Parties that, directly or indirectly, arise out of, or relate to in any manner, the use, misuse, or inability to use the Licensed Products by Licensee or any of its officers, directors, employees, agents, contractors and customers; provided Licensee is promptly notified in writing of any such suit or claim against FS and further provided that FS grants Licensee sole control of the defense and any related settlement negotiations and cooperates with Licensee in the defense of such claim.
7. Limitations of Liability
A. IN NO EVENT WILL FS BE LIABLE FOR ANY LOST REVENUE, LOST PROFITS, DATA OR EQUIPMENT, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES (HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF FS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) WITH RESPECT TO THE LICENSED PRODUCTS MADE AVAILABLE HEREUNDER TO LICENSEE TO THE FULLEST EXTENT PERMISSIBLE BY LAW.
B. IN NO EVENT WILL FS'S LIABILITY FOR DAMAGES WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT EXCEED THE SUM OF ALL AMOUNTS PAID BY LICENSEE TO FS UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE FACTS UNDERLYING SUCH CLAIM OR CAUSE OF ACTION FIRST ARISE.
C. LICENSEE ASSUMES THE ENTIRE RESPONSIBILITY FOR THE SELECTION AND USE OF THE LICENSED PRODUCTS, FOR THE USE OF THE OUTPUT THEREOF, AND FOR DECISIONS MADE AND ACTIONS TAKEN BASED ON THE OUTPUT THEREOF. LICENSEE AGREES THAT WITH RESPECT TO ANY LICENSED PRODUCTS DISTRIBUTED BY FS UNDER LICENSE FROM A THIRD PARTY, THE BENEFIT OF THIS SECTION 7 SHALL EXTEND TO SUCH THIRD PARTY LICENSOR.
D. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION 7 WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE AMOUNTS PAYABLE HEREUNDER REFLECTS THIS ALLOCATION OF RISK BETWEEN THE PARTIES.
FS IS FURNISHING THE LICENSED PRODUCTS ON AN "AS IS" BASIS ONLY, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR CONFORMANCE TO DESCRIPTION. IN PARTICULAR, FS DOES NOT WARRANT THAT THE LICENSED PRODUCTS WILL BE FREE OF ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR SUITABLE FOR THE LICENSEE'S BUSINESS OR OPERATIONAL REQUIREMENTS.
9. Taxes and Duties
Unless Licensee provides FS with a copy of a valid tax exemption certificate, in which case FS will exempt Licensee in conformity with applicable law, Licensee shall pay or, upon receipt of invoice from FS, shall reimburse FS for all sales, use, property, customs, excise or other taxes (however designated and whether foreign or domestic, but not including taxes based upon FS's net income) imposed on Licensee, or required to be collected by FS, or imposed on Licensed Products or the use thereof, irrespective of whether included in any invoice sent to Licensee at any time by FS.
10. Term and Termination
A. Term. This Agreement shall commence upon the Effective Date and shall continue until the first anniversary of the Effective Date (the "Initial Term"). Thereafter, this Agreement may be renewed for an additional one year term (a "Renewal Term") upon Licensee's payment of a renewal license fee as set forth in the payment terms on the Site. The Initial Term together with any Renewal Terms are collectively referred to herein as the "Term".
B. Termination. Notwithstanding the foregoing, FS shall have the right, exercisable at its sole discretion, to terminate this Agreement immediately by written notice thereof in the event of any breach of obligation by Licensee under Section 2 (Scope of Use) or Section 5 (Non-Disclosure and Non-Reproduction of Proprietary Information).
C. Effects of Termination. Upon any termination or expiration of this Agreement for any reason, all rights and obligations of the parties under this Agreement shall cease except for (i) the obligations of Licensee to pay to FS any license fees or other amounts payable that have accrued prior to the effective date of such termination or expiration, (ii) the rights and obligations of the parties under any provision of this Agreement which, by its expressly stated terms, is intended to survive the termination of this Agreement for a specified period, which provision shall survive such termination or expiration for such specified period.
11. General and Miscellaneous Provisions
A. Public Announcements. Licensee grants FS permission to name Licensee as a customer. Licensee also grants FS permission to name Licensee and use Licensee's logo on the FS Website, in FS marketing or advertising material, and in any media coverage related to FS, subject to the terms of Licensee's Trademark policy.
B. Governing Laws. This Agreement shall be governed by, and construed in accordance with, the substantive laws of the Commonwealth of Massachusetts, United States of America, without regard to its principles of conflicts of laws. Licensee hereby consents to the exclusive jurisdiction and venue of the courts located in Boston, Massachusetts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
C. Force Majeure. Neither party will be liable for any failure, deficiency or delay in the performance of its obligations (but excluding only obligations to make payments) under this Agreement due to events or conditions beyond that party's control if the party makes reasonable efforts to perform. In the event of such a force majeure, the affected party will be entitled to a reasonable extension of time for the performance of its obligations under this Agreement.
D. Export Controls. The Licensed Products and technical data delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export or import as may be required after delivery to Licensee. Licensee agrees to cooperate fully with any official or unofficial audit or inspection that relates to export controls. Licensee shall have sole responsibility for obtaining any licenses and permits that are required by any nation to possess or use the Licensed Products, and agrees to indemnify, defend and hold harmless FS with respect to any claims or causes of action that may arise as result of any breach by Licensee of the foregoing obligation.
E. Notice to Government End-Users. The Software and any accompanying documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government or its contractors is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or any successor regulation or as set forth in the particular department or agency regulations or rules which provide FS or its licensors with protection equivalent to or greater than that clause.
F. Assignment. This Agreement shall be for the benefit of, and binding on, the parties hereto and their respective permitted successors and assigns. Neither party may assign this Agreement, nor any interest herein may be assigned, in whole or in part, without the prior written consent of the other, such consent not to be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, this Agreement shall be assignable without any condition of prior consent by FS to any of its affiliates or to a third party acquirer or successor of FS, whether by sale of stock, merger, sale of all or substantially all assets, recapitalization or other business consolidation or combination. Any purported assignment in violation of the foregoing shall be null and void.
G. Waiver. No provision of, right, power or privilege under this Agreement shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of either party, its agents, or employees, but only by an instrument in writing signed by an authorized individual of the waiving party. No waiver by either party of any breach or default of any provision of the Agreement by the other party shall be effective as to any other breach or default, whether of the same or any other provision and whether occurring prior to, concurrent with, or subsequent to the date of such waiver.
H. Severability. The invalidity, illegality or unenforceability, in whole or in part, of any provision, term or condition hereof shall not affect the validity and enforceability of the remainder of such provision, term or condition or of any other provision, term or condition, and, to the extent possible, such invalid, illegal or unenforceable provision shall be replaced by a provision most nearly reflecting the fundamental objectives of the original provision.
I. Status of the Parties. Nothing in this Agreement shall be construed to place FS and Licensee in a relationship of agents, partners or joint venturers, and neither party shall have the power to obligate or bind the other party in any manner whatsoever without the prior written consent of the other.
J. Integration; Amendments. This Agreement, including all Schedule(s) and Exhibit(s) hereto, constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersede all previous and contemporaneous agreements and understandings, whether oral or written, between the parties hereto with respect to the subject matter of this Agreement. No change, modification or revision of this Agreement shall be valid unless assented to in writing and signed by both parties. In the event of any conflict between the terms and conditions of this Agreement or any Schedule(s) or Exhibit(s) hereto and Licensee's purchase order, if any, or any so-called shrink wrap license affixed to any License Products, the conflicting terms and conditions of this Agreement or its Schedule(s) and/or Exhibit(s) hereto shall govern.