Equipment Sales and Software License Agreement
TERMS AND CONDITIONS
The terms and conditions of this Equipment Sales and Software License Agreement (“Agreement”) will apply to all Program licenses granted, Equipment purchased and Installation, Training and Support services provided by Vendor pursuant to and identified on one or more Order Schedules (as defined below).
1.1 “Documentation” means the user guides and manuals for installation and use of a Product that Vendor makes generally available.
1.2 “Equipment” means the Vendor hardware designated in a relevant Order Schedule, which Customer is purchasing pursuant to this Agreement.
1.3 “Installation Date” means: (a) for a Product that Vendor is responsible for installing, the business day on which Vendor installs it in good working order in accordance with the relevant Documentation; (b) for a Product that Customer is responsible for installing, the date on which Vendor ships it to Customer; or (c) if no delivery is necessary, the effective date of the relevant Order Schedule.
1.4 “Installation” means the installation services made generally available by Vendor for Products.
1.5 “Intellectual Property Rights” means patent, copyright, trademark, trade secret and any other intellectual property rights.
1.6 “Order Schedule” means the standard Vendor form by which a Customer orders Products, Installation, Support or Training, and which is agreed to by the parties.
1.7 “Products” means Programs licensed and Equipment purchased pursuant to this Agreement and the relevant Order Schedule.
1.8 “Program” means the Vendor software and firmware, in object code form only, designated in a relevant Order Schedule, and the media, Documentation and Updates provided by Vendor to Customer and for which Customer is granted a license pursuant to this Agreement.
1.9 “Support” means the support and maintenance services made generally available by Vendor for Products.
1.10 “Training” means the training courses made generally available by Vendor for Products.
1.11 “Update” means a subsequent release of the Program, which Vendor makes generally available for Program licensees at no additional license fee other than media and handling charges, provided Customer has paid for Support for such licenses for the relevant time period or is entitled to such Update under a warranty hereunder. Updates will not include any release, option or future product that Vendor separately licenses.
2.1 Orders and Order Acceptance. Customer may place orders under this Agreement by signing Order Schedules. The terms and conditions set forth in this Agreement and in any Order Schedule will control in the event that there are different or additional terms set forth in any purchase order or other ordering document submitted by Customer, or any acceptance form or invoice issued by Vendor. The terms and conditions of any Order Schedule will control over any conflicting terms and conditions set forth in this Agreement. On or before the effective date of the relevant Order Schedule, Customer will issue a purchase order or like document acceptable to Vendor for the Products and services ordered.
2.2 Order Changes. Unless otherwise specified in this Agreement or an Order Schedule, any changes to an Order Schedule must be mutually agreed upon by the parties in writing, and may require a change in fees (reflecting the inclusion, deletion or substitution of Products and Vendor’s direct costs of processing such change).
3.1 Delivery. Vendor will make commercially reasonable efforts to meet any delivery date specified in the relevant Order Schedule. All Products provided hereunder will be shipped to the Customer address designated in the relevant Order Schedule. In the absence of specific routing instructions, Vendor reserves the right to select the common carrier and method of shipment for the Products.
3.2 Title and Risk of Loss. All Products provided hereunder will be delivered to Customer on an EX Works (Origin) basis, at which point title to Equipment and media will pass to Customer.
3.3 Installation. Installation included in an Order Schedule will be provided under Vendor’s standard installation procedures for Products in effect on the date of such Order Schedule, which are available on request. Any installation services required by Customer beyond these standard installation procedures must be provided pursuant to and as described and priced under a separate agreement.
4. CHARGES AND PAYMENT
4.1 Fees and Charges. Customer agrees to pay the fees and charges for Products and Support specified on Order Schedules. Vendor will sell and/or license the Products and Support to Customer at Vendor’s then-current standard list prices for Product and Support. Vendor reserves the right to modify its published list prices at any time during the term of this Agreement. Fees may include one-time or installment payments (for example, for Equipment, Installation and Program licenses) and recurring fees (for example, periodic charges for Support). Customer will additionally pay any additional charges outlined in an Order Schedule.
4.2 Invoicing and Payment. Vendor may invoice for all fees as of the date of shipment of Product, or, in the case of services provided hereunder, the date such services are ordered, or, in the case of renewal of Support, up to sixty (60) days prior to the end of the current Support period, or as specified in the Order Schedule. All fees will be due and payable within thirty (30) days of the invoice date. Any amounts payable by Customer hereunder that remain unpaid after the due date will be subject to a late charge equal to the lesser of one and one-half percent (1.5%) per month and the maximum rate allowable by law from the due date until such amount is paid. Restrictive endorsements or other statements on checks accepted by Vendor will not apply. Customer agrees to reimburse Vendor for reasonable attorneys’ fees and any other costs associated with collecting delinquent payments.
4.3 Currency. Customer will pay all amounts due to Vendor in the currency of the relevant Order Schedule, unless otherwise agreed. Vendor and Customer will arrange for such payment to be made in a mutually convenient manner as agreed between them from time to time.
4.4 Security Interest. Vendor will have a purchase money security interest in the Products, and in any proceeds thereof, including insurance proceeds, to secure payment of any amounts due until they are paid in full. Vendor will retain the rights and remedies of a secured creditor until payment in full is received for the purchased Products. Customer agrees to execute and deliver all documents reasonably requested by Vendor to protect and maintain Vendor’s security interest.
All prices payable under this Agreement are exclusive of tax. Customer will pay or reimburse Vendor for all value-added, sales, use, property and similar taxes, and all other mandatory payments to government agencies of whatever kind imposed with respect to products or services provided by Vendor under this Agreement or with respect to transactions under this Agreement, except taxes imposed on the net income of Vendor. If a transaction is exempt from tax, then Customer will provide Vendor with a valid exemption certificate or other evidence of such exemption in a form acceptable to Vendor.
6.1 Limited License. Vendor hereby grants and agrees to grant to Customer a non-exclusive, non-transferable license (without the right to sublicense, unless otherwise stated in the Order Schedule):
(a) to use the Products specified on an Order Schedule under this Agreement solely for Customer’s own business operations, solely on the equipment on which the Products, as applicable, were first installed for production operation or, on a temporary basis, on a backup system if such equipment is inoperative, consistent with the limitations specified or referenced in this Agreement, an Order Schedule or the Documentation;
(b) to use the Documentation provided with the Products in support of Customer’s authorized use of the Products; and
(c) to copy the Programs for archival or backup purposes, and to make a sufficient number of copies for the intended use described in the Documentation, provided that all titles and trademark, copyright and restricted rights notices are reproduced on all such copies.
6.2 Restrictions. Customer will not copy or use the Products (including the Documentation) except as expressly permitted by this Agreement. Customer may not relicense, sublicense, rent or lease the Products or use the Products for third-party training, commercial time-sharing or service bureau use, unless expressly permitted by the relevant Order Schedule. Customer will not, and will not permit any third party to, reverse engineer, disassemble or decompile any Product, except to the extent expressly permitted by applicable law, and then only after Customer has notified Vendor in writing of its intended activities.
6.3 Media Replacement. Vendor will provide Customer with a replacement copy of a Program for a minimal media charge if Customer demonstrates to Vendor’s reasonable satisfaction that the original media for such Program has been lost or damaged.
6.4 Transfer. If the Equipment purchased hereunder is sold or assigned to a third party, Customer will remove all Programs from such Equipment prior to delivery to the third party. Vendor may grant the new owner or assignee a license to the relevant Programs, provided that the new owner or assignee agrees to Vendor’s then-current Program license terms and conditions (including Vendor’s then-current fees) and such other terms as Vendor may reasonably require.
6.5 Verification. At Vendor’s written request, and not more frequently than is reasonable under the circumstances,
(a) Customer will verify in writing that any Program under license is being used pursuant to the provisions of this Agreement and the relevant Order Schedule, and
(b) Vendor may audit Customer’s use of the Program electronically or at Customer’s facilities. Any such audit at Customer’s facilities will be conducted during regular business hours and no audit will unreasonably interfere with Customer’s business activities. If an audit reveals that Customer has underpaid fees to Vendor, then Customer will be invoiced for such underpaid fees.
6.6 License Term. If not otherwise specified on the Order Schedule, each Program license granted under this Agreement will continue perpetually until terminated under Section 9.3(b), 10.3 or 11.
Vendor will retain all rights, title and interest in and to the Intellectual Property Rights in the Products and any derivative works thereof, subject only to the limited license set forth herein. Customer does not acquire any other rights, express or implied, in the Products. Vendor will acquire no rights in Customer Confidential Information (as defined in Section 12.1, below), which may be included in any derivative work unless expressly agreed otherwise. Customer will retain all rights, title and interest in and to data created by Customer’s operation of the Programs, including, without limitation, recorded and analyzed data (“Customer Data”). Customer will provide Vendor access to such Customer Data and grants Vendor and its licensors the right to use such Customer Data to test and refine the Programs.
8. SUPPORT AND TRAINING
Any Support or Training included in an Order Schedule will be Vendor’s support and training offerings as of the date of such Order Schedule, descriptions of which are available on request.
9. WARRANTIES AND REMEDIES
9.1 Warranties. Vendor hereby represents and warrants to Customer that:
(a) each piece of Equipment will be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the Installation Date;
(b) each Program will perform the functions described in the Documentation for a period of ninety (90) days from the Installation Date;
(c) the media on which the Programs are delivered will be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the Installation Date; and
(d) the Installation, Support and Training provided under this Agreement will be performed consistent with generally accepted industry standards.
9.2 Disclaimer. THE WARRANTIES IN THIS SECTION 9 ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Vendor does not warrant that the Products will operate in combination with other hardware, software, systems or data not provided by Vendor, except as expressly specified in the Documentation, or that the operation of the Products will be uninterrupted or error-free. Customer is responsible for the initial determination of whether a problem is caused by an Equipment or Program error; Vendor does not provide assistance on general use of the Products or problem diagnosis to Customers that have not ordered Support. All evaluation, “beta,” and pre-production releases of Products provided by Vendor to Customer will be provided under the terms of a separate beta agreement, but in any case are provided “AS IS” without warranty of any kind and use of any such release in a production environment is at Customer’s sole risk.
9.3 Exclusive Remedies. Customer must report to Vendor, pursuant to the notice provision of this Agreement, any breach of the warranties contained in Section 9.1 during the relevant warranty period. Customer’s sole and exclusive remedies, and Vendor’s entire liability, will be:
(a) for Equipment returned, the correction of the error or defect that caused the breach of warranty or, if Vendor is unable to make the Equipment operate as warranted, the replacement of defective Equipment;
(b) for Programs, to correct or provide a reasonable workaround for Program errors that caused the breach of warranty or, if Vendor is unable to make the Program operate as warranted, Customer will be entitled to terminate the Program license and recover the fees paid to Vendor for the Program license;
(c) for media, the replacement of defective media; and
(d) for Installation, Support and Training, the reperformance of the services or, if Vendor is unable to perform the services as warranted, Customer will be entitled to recover the fees paid to Vendor for the particular unsatisfactory services during the current service period.
9.4 Limitations. Vendor will have no obligations under Section 9.3 if the breach of warranty is caused by abuse, misuse, alteration, neglect, accidental damage or unauthorized repair, modification or installation of the Products, or the use or attempted use of software or hardware other than that supplied and supported by Vendor. Replacement or repair of a Product does not extend its warranty period beyond the original warranty expiration date.
10. INFRINGEMENT INDEMNITY AND REMEDIES
10.1 Infringement Indemnity. Vendor will defend Customer against a claim that a Product, as provided by Vendor to Customer and used within the scope of this Agreement, infringes any copyright, or any United States patent or trademark or incorporates any misappropriated trade secret (a “Claim”). Vendor will pay any liabilities, costs, damages or expenses, including reasonable attorneys’ fees, attributable to such a Claim that are awarded against Customer in a final judgment or settlement approved in advance and in writing by Vendor, provided that Customer:
(a) notifies Vendor in writing within thirty (30) days of commencement of the Claim;
(b) grants Vendor sole control of the defense and settlement of the Claim; and
(c) provides Vendor with all timely assistance, information and authority required for the defense and settlement of the Claim. Customer may retain its own counsel, at its expense, to monitor the defense and settlement of the Claim.
10.2 Exclusions. Vendor will have no obligations under Section 10.1 if
(a) the infringement is caused by the use of any non-Vendor product, information, design, specification, instruction, software, data or material in combination with the Product where such infringement would not have arisen but for such combination;
(b) the infringement is caused by the modification of the Product by a party other than Vendor where such infringement would not have arisen but for such modification; or
(c) the infringement is caused by the use of other than the current version of a Program, if the current version would be non-infringing and had been offered by Vendor to Customer.
10.3 Remedies. If a Product becomes, or Vendor believes is likely to become, subject to a Claim, Vendor will have the option, at its expense, to
(a) modify the Product to be noninfringing, or
(b) obtain for Customer a license to continue using the Product. If in Vendor’s sole judgment it is not commercially reasonable to perform either of the above options, then Vendor may terminate any license for the allegedly infringing Product and refund to Customer any purchase price or one-time software license fee paid for the Product less an amount equal to the depreciated portion of such price or fee calculated on a five (5) year straight-line basis.
THIS SECTION 10.3 SETS FORTH VENDOR’S SOLE OBLIGATIONS, AND CUSTOMER’S SOLE REMEDIES, IN THE EVENT OF ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY VENDOR OR THE PRODUCTS.
11.1 Termination of Agreement. Either party may terminate this Agreement, any Order Schedule (or portion thereof) or any Program license upon written notice if:
(a) the other party materially breaches any material term or condition of this Agreement or the relevant Order Schedule and fails to correct the breach within thirty (30) days following written notice specifying the breach;
(b) the other party applies for or consents to the appointment of a receiver, trustee or liquidator for substantially all of its assets or such a receiver, trustee or liquidator is appointed; or the other party has filed against it an involuntary petition for bankruptcy that has not been dismissed within thirty (30) days thereof, or files a voluntary petition for bankruptcy, or a petition or answer seeking reorganization, becomes or is adjudicated insolvent or bankrupt, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors or seeks to take advantage of any law relating to relief of debtors; or
(c) Customer materially breaches its obligations under Section 6.
11.2 Effect of Termination. Termination of this Agreement, any Order Schedule (or portion thereof) or any Program license will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under any Order Schedule. The parties’ rights and obligations under Sections 4.4, 5, 6.2, 6.4, 6.5, 7, 9.2, 9.3, 9.4, 10, 11.2, 12 and 13 will survive termination of this Agreement or any Order Schedule. Upon any termination arising out of Customer’s breach of its payment obligations, Vendor will have all the rights of a secured creditor, including, without limitation, the right to repossess the Product, wherever found, and the right to enter the premises where the Product is located and disconnect, render unusable and remove it. Upon termination of any Program license, Customer will cease using, and will return to Vendor or destroy, all copies of the Programs licensed hereunder.
12.1 Confidential Information. By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Confidential Information will be limited to the Programs, the terms and pricing under this Agreement and all information clearly identified as confidential. A party’s Confidential Information will not include information that:
(a) is or becomes generally known to the public through no act or omission of the other party;
(b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
(c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or
(d) is independently developed by the other party without use of or reference to the disclosing party’s Confidential Information.
12.2 Restrictions on Disclosure and Use. The parties agree to hold each other’s Confidential Information in strict confidence during the term of this Agreement and for a period of five (5) years after termination of this Agreement. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party for any purpose except to the extent necessary to exercise its rights under this Agreement, and to treat Confidential Information of the other party with the same degree of care with which it would treat its own confidential information of a like nature, and in no case with less than a reasonable degree of care. Each party agrees not to use the other party’s Confidential Information for any purpose other than the performance of this Agreement. Each party agrees to limit the disclosure of Confidential Information to those of its employees and agents who have a need to know such Confidential Information, and each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. It will not be a breach of this section if Confidential Information is disclosed pursuant to subpoena or other compulsory judicial or administrative process, provided the party served with such process promptly notifies the other party and provides reasonable assistance so that the other party may seek a protective order against public disclosure.
13.1 Relationship Between the Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.
13.2 Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of California (as permitted by Section 1646.5 of the California Civil Code or any similar successor provision) without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. Any legal suit, action or proceeding arising out of or relating to this Agreement will be commenced in a federal court in the Southern District of California or in state court in the County of San Diego, California, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.
13.3 Force Majeure. Neither party will be liable under this Agreement because of any failure or delay in the performance of its obligations (except for payment of money) on account of strikes, shortages, riots, fire, flood, storm, earthquake, acts of God, hostilities or any other cause beyond its reasonable control.
13.4 Notice. Any notice, request, demand or other communication required or permitted hereunder will be in writing and will be deemed to be properly given upon the earlier of
(a) actual receipt by the addressee,
(b) five (5) business days after deposit in the mail, postage prepaid, when mailed by registered or certified airmail, return receipt requested, or
(c) two (2) business days after being sent via private industry courier to the respective parties at the addresses first set forth above or to such other person or address as the parties may from time to time designate in a writing delivered pursuant to this Section.
13.5 Limitation of Liability. In no event will either party be liable for any indirect, incidental, special, consequential or punitive damages, or damages for loss of profits, revenue, business, savings, data, use or cost of substitute procurement, incurred by either party or any third party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages or if such damages are foreseeable. In no event will Vendor’s liability for damages hereunder exceed the amounts actually paid by Customer to Vendor under this Agreement. The parties acknowledge that the limitations of liability in this Section 13.5 and in the other provisions of this Agreement and the allocation of risk herein are an essential element of the bargain between the parties, without which Vendor would not have entered into this Agreement. Vendor’s pricing reflects this allocation of risk and the limitation of liability specified herein.
13.6 Severability and Waiver. In the event that any provision of this Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or portion thereof) will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and remain in effect according to its stated terms and conditions. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
13.7 No Assignment. Customer may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Vendor. Any purported assignment, transfer, delegation or other disposition by Customer will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
13.8 Export Administration. Customer agrees to comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively, “Export Controls”). Without limiting the generality of the foregoing, Customer expressly agrees not to, and will require its representatives to agree not to, export, direct or transfer Products, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
13.9 Entire Agreement. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom will be deemed to amend or modify this Agreement. It is expressly agreed that the terms of this Agreement and any Order Schedule will supersede the terms in any Customer purchase order or other ordering document. Notwithstanding the foregoing, any restrictions on the use or exploitation of any Program in addition to those contained herein that are set forth in any unsigned or “shrinkwrap” license included in any package, media or electronic version of Vendor-furnished software will, as to such Program, supplement the restrictions contained herein.
[End of Agreement.]