This Services and Software License Agreement (“Agreement”) is effective between INTEGRITY Security Services LLC, 30 W. Sola Street, Santa Barbara, CA, 93101 (henceforth “ISS” or “Licensor”) and you (“Customer”) as of the first date of your access to and/or use of the Services, Licensed Programs and/or Hardware (defined below) set forth in the Licensor Quotation provided to Customer. Customer acknowledges Customer understands and agrees to all the terms and conditions set forth in this Agreement by Customer’s use of the Services, Licensed Programs and/or Hardware. If Customer does not agree to all the terms and conditions set forth in this Agreement, Customer shall not use any of the Services, Licensed Programs or Hardware and shall immediately return the same to ISS. In consideration of the mutual covenants and promises herein contained, it is agreed as follows:
I. SERVICES AND SOFTWARE LICENSE: Subject to the terms and conditions of this Agreement, ISS grants to Customer a non-transferable and non-exclusive license to use the services (“Services”) and binary software program(s), henceforth (“Licensed Program(s)” or “Program(s)”), as installed on the hardware (“Hardware”) as listed in a Licensor Quotation or as hosted by ISS as a Service in accordance with a Licensor Quotation, solely in conjunction with Customer’s Product specified in a Licensor Quotation, upon the following terms and conditions set forth herein. Subject to the terms and conditions of this Agreement, ISS grants and Customer hereby accepts a non-transferable and non-exclusive license to use and distribute the ISS distributable software as listed in a Licensor Quotation (“Distributable Software”) delivered in source code, object code and/or binary form, provided the Distributable Software is linked with Customer’s application programs and incorporated in binary code form into Customer’s Product specified in a Licensor Quotation (“Distribution License”). The Distributable Software shall be deemed “Licensed Programs” or “Programs” hereunder. No distribution of the Licensed Programs is permitted, except for the Distributable Software as expressly set forth in this Section.
A. Conditions: The Services, Licensed Program(s) and Hardware are supplied by ISS as identified in a Licensor Quotation to deliver certificates created by the Licensed Programs and Hardware solely to the Customer’s Products as defined in a Licensor Quotation. Notwithstanding the foregoing, the Distributable Software may be distributed only when it is linked with Customer’s application programs and incorporated in binary code form into Customer’s Product. All right, title, and interest in and to the Services and Licensed Program(s) and all related material are and shall at all times remain the sole property of ISS and third party licensors (Suppliers). Customer may use the Services, Licensed Program(s) and Hardware only in connection with the operation and management of Customer’s own business as set forth in this Section. Customer is not authorized to grant sublicenses for use of the Services, Licensed Program(s) or Hardware or to permit usage of the same on a time-sharing system for any purpose.
A.1. AUTHORIZED USERS: Notwithstanding anything to the contrary set forth in the Agreement prohibiting subcontracting, the parties agree that Customer shall be granted the right to subcontract the rights to use the Services, Licensed Program(s) and Hardware solely as set forth in Section I for the purpose of assisting Customer’s development efforts in accordance with the terms and conditions of the Agreement to subcontractors that are not direct competitors of ISS and Affiliates of Customer that are not direct competitors of ISS (“Authorized Users”). “Affiliates” of Customer are entities that are under the control of, controlled by, or under common control with Customer; “control” means to have the right to exercise more than 50% of the voting shares of an entity.
A.2. AUTHORIZED USER RESTRICTIONS: Customer acknowledges, agrees and warrants that the Authorized User (i) shall abide by the terms of the Agreement as though the Authorized User was the Customer and had executed the Agreement as a licensee of the Services, Licensed Program(s) and Hardware (except that the Authorized Users shall not have the right to sublicense); (ii) shall not incorporate, integrate, employ or otherwise use in the Authorized User’s software any concepts, ideas, technology or other intellectual property learned from the Authorized User’s use of the Services, Licensed Program(s) and Hardware hereunder; (iii) shall not disassemble or reverse compile, reverse engineer, or otherwise attempt to learn the source code underlying the Licensed Programs or Hardware, or any algorithms or methods underlying the same; and (iv) shall not conduct an evaluation of the Services, Licensed Program(s) and Hardware to determine functionality or to test, benchmark or otherwise assess the same.
A.3. AUTHORIZED USER INDEMNIFICATION: Customer shall indemnify, defend, and hold harmless ISS against any and all claims, costs, damages, liabilities, judgments and attorneys’ fees resulting from or arising out of any breach of Section I.A.1. or I.A.2. of this Agreement by Customer and/or any action by any Authorized User inconsistent with the requirements of these Sections.
B. FEES: Payment in full for the fees for the Services, Licensed Program(s) and Hardware and maintenance, as defined in a Licensor Quotation, must be made by Customer (either directly to ISS or through a duly appointed distributor with whom a Customer Purchase Order was placed) in consideration of the license granted herein. Payments by check must be drawn on a United States bank in United States currency. Customer agrees to pay all applicable sales, use, import, or other taxes or duties, and any other fees or withholding related to the purchase of Services, Licensed Programs, Hardware(s) or maintenance updates thereof. Payments shall be due and payable net thirty (30) days after 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. Customer shall make no offset for any amounts due to ISS regardless of the justification for such intended offset.
C. TERM: This Agreement shall become effective upon Effective Date and remain in effect for three (3) years from the date hereof unless otherwise set forth in a Licensor Quotation and or terminated earlier pursuant to its terms, and Customer shall have the right to use the Services, Licensed Program(s) and Hardware during such period, however, if a Licensor Quotation has a designated “Subscription Period,” then the use of the Services, Licensed Program(s) and Hardware set forth in such Licensor Quotation shall only be for the Subscription Period set forth in such Licensor Quotation, and shall last only as long as Customer pays the fees or such Subscription Period (i.e., annual fees must be paid prior to the applicable annum).
D.PROTECTION OF PROPRIETARY MATERIAL: The term “Proprietary Material” shall mean the Services, the Hardware, and the Licensed Programs and all methods, design, implementation and concepts utilized therein and any and all technical and non-technical information including but not limited to patent, copyright, trademark, trade secret, proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, features, lack of features, limitations, deficiencies, errors, defects, bugs, vulnerabilities, feature limitations, security issues, performance metrics, benchmark results, penetration testing results, and similar studies, user experience, software source documents, manuals and documentation related to the Services, Licensed Program(s) and Hardware, and methods and concepts embodied therein, and formulae related to current and future proposed products and services of ISS or its licensors or Suppliers, including, without limitation, information concerning research, intellectual property, experimental work, development, design details and specifications, architecture, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, pricing, availability time frames, business models, sales and merchandising, marketing and communications plans and information of ISS or its licensors or Suppliers, and the terms and existence of this Agreement. “Proprietary Material”, however does not include: i) Information which is or becomes available in the public domain (other than through unauthorized disclosure by or caused by Customer); ii) Information disclosed or made available to Customer by a third party without restriction and without breach of any relationship of confidentiality; iii) Information independently developed by Customer where Customer establishes that such development was accomplished without access to the Proprietary Material of ISS. Customer expressly acknowledges that the Proprietary Material is confidential and proprietary property of ISS and hereby agrees to receive and maintain it as it would Customer’s own confidential and proprietary material. Customer shall not cause or permit disclosure of any Proprietary Material to any person other than Customer’s employees and consultants whose responsibilities require access to such material without the prior written consent of ISS, and Customer shall ensure such employees and consultant’s adhere to the terms of this Section I.D. Customer shall not disassemble or reverse compile, reverse engineer, or otherwise attempt to learn the source code underlying the Licensed Programs (and firmware embedded in the Hardware), or any algorithms or methods underlying the same. Customer shall include any copyright and proprietary right notice provided by ISS in or on all Proprietary Material. Customer shall not copy, in whole or in part, any of the Proprietary Material except that Customer may make a machine-readable copy of Licensed Program(s) for back-up or archival purposes. Customer shall take all reasonable steps to safeguard the Proprietary Material, and to ensure that no unauthorized person shall have access to any of it and that no unauthorized copy, in whole or in part, shall be made. Customer’s obligations under this paragraph shall survive any termination or expiration of this Agreement.
E. TERMINATION: ISS may terminate this Agreement if Customer fails to comply with any of the terms and conditions of this Agreement. This Agreement shall automatically terminate upon filing of any petition under the Bankruptcy Code by or against Customer, upon any assignment for the benefit of creditors of Customer, or upon dissolution of Customer. Within thirty (30) days after the date of expiration or earlier termination of the license under this Agreement, Customer shall: i) return to ISS all Hardware and existing copies of the Licensed Program(s) and other Proprietary Materials; or ii) Customer shall allow an ISS representative witness in person while the original(s) and all copies of the Licensed Program(s), Hardware and other Proprietary Materials, in whole or in part, are destroyed, and none of the Program(s) shall remain resident on or in any CPU or archival device. In the event of the expiration of a Subscription Period set forth in a Licensor Quotation, this Section shall apply to the Licensed Programs set forth in such Licensor Quotation. Upon termination or expiration of this Agreement, any payments due hereunder and Sections I.A.3., I.B., I.D, I.E, I.F, I.G, IV.B, IV.C, IV.D and IV.E shall survive.
F. EXPORT/GOVERNMENT CONTRACTING: Customer agrees to comply with any and all applicable laws, including but not limited to export laws, regulations, orders and other rulings or decrees of the United States and any applicable jurisdictions. Customer agrees that it shall not, and shall not allow third parties to, supply the Services, Licensed Program(s) and Hardware to a unit or agency of the United States government or any other government without prior written authorization by ISS, and then only pursuant to terms set forth by ISS.
G. AUDIT: Upon fifteen (15) days prior written notice and not more than once per calendar year, ISS, at its expense, shall have the right itself or through a representative, to examine and audit, at Customer’s place of business during normal business hours, records of Customer related to compliance of Customer with the terms of this Agreement. A late payment penalty of one and one-half percent (1.5%) or the highest rate allowed by law, whichever is lower, per month for the period of time from the date when payment should have been made (prior to the audit) to the date when payment is made shall be added to the additional fees payable. In the event it is determined as a result of an audit that Customer has underpaid fees payable during any particular quarter, Customer shall immediately pay such amount to ISS. In the event it is determined as a result of an audit that Customer has underpaid fees payable during any particular quarter, Customer shall reimburse ISS for its entire cost of the audit within thirty (30) days of receiving a written request therefor.
II. MAINTENANCE: Only upon payment in full of the Maintenance Fees set forth in a Licensor Quotation, ISS shall provide maintenance service for the Licensed Programs to Customer solely upon the terms set forth in this Section II for the maintenance term set forth on such Licensor Quotation beginning on the date the Licensed Programs are delivered to Customer. If (i) no maintenance term is set forth in a Licensor Quotation, (ii) the Licensed Programs are not licensed to Customer on a subscription basis, and (iii) there is a maintenance fee set forth in the Licensor Quotation and such fee is paid in full by Customer, then the maintenance period shall be deemed to be one (1) year.
A. Maintenance Services Provided: Error corrections, enhancements, and documentation updates (“Revisions”) may be initiated from time to time by ISS and furnished to Customer. In addition, ISS shall use its reasonable efforts to correct, in a timely manner, coding errors reported to ISS in writing by Customer. Telephone consultation will be provided on a timely basis at the option of ISS. ISS cannot guarantee that all coding errors will be corrected or that all Revisions will be compatible with previous versions. A Licensor Quotation shall define the service level provided by ISS.
B. ELIGIBILITY: In order to continue to be eligible to receive Revisions hereunder, Customer must be current in the payment of fees and charges due ISS under this Agreement and must have accepted and installed the Revision most recently provided by ISS under this Agreement. In the event Customer chooses not to renew, or otherwise terminates maintenance of the Licensed Programs, Customer shall pay a fifty percent (50%) fee (1.5 times the normal fee) for subsequent renewal. In the event ISS chooses to discontinue maintenance of Program(s), ISS agrees to notify Customer in writing thirty (30) days in advance and ISS shall, at its discretion elect to do any or all of the following: a) replace the Licensed Program(s) with a comparable product, if one exists, subject to monetary adjustments depending upon the cost of the replacement product relative to that of the Licensed Program(s), b) reimburse the Customer a prorata amount (discounted monthly on a straight line basis over one (1) year) for a non-subscription license and discounted on a straight line basis over the Subscription Period for a subscription license) of the Maintenance Fee already paid, c) assign maintenance of Licensed Program(s) to a third party at no cost to the Customer. Payment of fees for maintenance does not ensure the longevity or continuance of Maintenance for the Licensed Program(s) beyond the then current Maintenance period.
C. TERM and RENEWAL FOR NON-SUBSCRIPTION LICENSE: Renewals of the maintenance service for Licensed Programs licensed on a non-subscription basis shall be on a year to year basis at the then prevailing rate. The renewal fee shall be due and payable on the effective renewal date, and ISS shall notify Customer at least thirty (30) days beforehand. In the event Customer chooses not to renew, or otherwise terminates maintenance of the Licensed Programs, Customer shall pay a fifty percent (50%) fee (1.5 times the normal fee) for subsequent renewal.
D. TERM and RENEWAL FOR SUBSCRIPTION LICENSE: For Licensed Programs with a Subscription Period, as set forth in a Licensor Quotation, Customer shall receive maintenance service for the Licensed Programs during the Subscription Period, except as set forth in Section II.B. Maintenance service cannot be renewed separately. Maintenance service for the Licensed Programs can only be renewed together with the renewal of the Subscription Period for the use of the Licensed Programs, as set forth in a Licensor Quotation.
- INSTALLATION AND DELIVERY: ISS shall provide and install the Hardware and Licensed Programs and associated products, as appropriate, as defined in a Licensor Quotation.
- HOSTING SERVICES: ISS shall provide the hosting services set forth in a Licensor Quotation, if any.
A. Warranty: ISS warrants that for a period of three (3) months from the date of delivery of the Licensed Programs to Customer, that the Hardware upon which the Licensed Programs are delivered will be free of defects in material and workmanship. If during such warranty period, the Customer discovers such a defect in the Hardware, Customer shall immediately notify ISS and Customer’s exclusive remedy shall be, at ISS’s sole discretion, to either repair or replace such media so that it is free of defects of material and workmanship. This Section IV.A sets forth the sole and exclusive remedy of Customer for breach of warranty under this Agreement. ISS makes no other warranty with regard to Hardware.
B. Patent or Copyright Infringement and Indemnity: ISS will defend, indemnify and hold harmless Customer against a claim that the Licensed Programs infringe a U.S. trade secret, patent or copyright and will pay resulting defense costs, damages and attorney’s fees finally awarded, subject to the limitation of liability set forth in subsection IV.D, provided that: i) Customer promptly notifies ISS by written communication, of the claim ii) Customer cooperates with ISS in the defense; and iii) ISS has sole control of the defense and all related settlement negotiations. However, if the costs and damages attributable to a claim of infringement may exceed such limitation of liability, Customer may elect to defend against the claim provided ISS may fully participate in the defense and settlement of such claims. If such claim occurs, or in ISS’s opinion is likely to occur, Customer agrees to permit ISS at its option and expense, either to procure for Customer the right to continue using the Licensed Programs or to replace or modify the same so that it becomes non-infringing and provides as nearly as is reasonably possible, under the circumstances, the same capability as before. ISS shall have no obligation to defend Customer or pay costs, damages, or attorney’s fees for any claim based upon use of other than a current, unaltered release of the Licensed Programs if such infringement would have been avoided by the use of a current, unaltered release of the Licensed Programs.
C. DISCLAIMER OF WARRANTY: Other than the warranties set forth in subsection IV.A hereof, ISS makes no express or implied representations or warranties of any kind with respect to the SERVICES, HARDWARE OR LICENSED PROGRAMS and specifically makes no warranty of NON-INFRINGEMENT, merchantability or fitness for a particular purpose. The warranty set forth in subsections IV.A hereof does not apply to portions of the SERVICES, HARDWARE, OR LICENSED PROGRAMS, IF any, which are licensed by ISS from third parties. such portions are provided ‘as is.’
D. LIMITATION OF LIABILITY: WITH RESPECT TO MAINTENANCE SERVICES AND REVISIONS FURNISHED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, ISS SHALL NOT BE LIABLE FOR DELAY IN FURNISHING SERVICES OR REVISIONS. IN NO EVENT SHALL ISS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR TORT DAMAGES, DAMAGES ARISING IN CONNECTION WITH ANY CLAIM OR DEMAND AGAINST CUSTOMER BY ANY OTHER PARTY, DAMAGES ARISING FROM EQUIPMENT DOWN-TIME, OR LOSS OF DATA, OR EXEMPLARY OR PUNITIVE DAMAGES, WHETHER RESULTING FROM LOSS OF USE, DELAY OF DELIVERY, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, HARDWARE, OR LICENSED PROGRAM(S), THE PERFORMANCE OF THE SAME, OR ISS’S PROVISION OF OTHER SERVICES, GOODS OR OTHER EVENTS RELATING TO THE PROGRAM(S), EVEN IF ISS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS EXPLICITLY SET FORTH IN SUBSECTION IV.B: I) CUSTOMER SHALL INDEMNIFY AND HOLD ISS HARMLESS FROM AND AGAINST ANY LOSS, CLAIM, LIABILITY, DAMAGE, COST OR EXPENSE, INCLUDING ATTORNEY’S FEES, PAYABLE TO ANY PERSON OR ENTITY ARISING OUT OF OR RELATING TO THE CUSTOMER’S USE OF A THE SERVICES, LICENSED PROGRAM(S) AND HARDWARE. ISS SHALL NOT BE LIABLE FOR DAMAGES WITH RESPECT TO THE SERVICES, LICENSED PROGRAM(S) AND HARDWARE WHICH EXCEED THE AMOUNT OF THE FEES PAID TO ISS BY CUSTOMER HEREUNDER.
E. ENTIRETY OF AGREEMENT: This Agreement shall be governed by the laws of The State of California without regard to its conflict of laws provisions. With the exception of an action primarily seeking injunctive relief, any dispute, controversy or claim arising out of or relating to this Agreement, the subject matter thereof, or the breach thereof shall be settled by binding arbitration in Santa Barbara, California, in accordance with the Commercial Arbitration Rules then prevailing of the American Arbitration Association. Judgment upon any award made in an arbitration may be entered and enforced in any court of competent jurisdiction. Except as set forth in the previous sentence, any judicial action taken by either party against the other in connection with any dispute or arbitration under this Agreement shall be brought in Santa Barbara, California, in a State court having jurisdiction of the subject matter of the action, unless the judicial action includes claims with exclusive Federal jurisdiction, in which case such action shall be brought in Los Angeles, California in a Federal court having jurisdiction of the subject matter of the action; unless jurisdiction cannot there be obtained over, or venue is not there proper as to, an indispensable third party. Both parties expressly consent to the exercise of jurisdiction over them in the courts set forth in the previous sentence, as appropriate, by any court of competent jurisdiction and waive any rights they may have to have the action tried or determined in a different venue. This Agreement is the entire Agreement as to its subject matter and supersedes all prior Agreements and representations. Any rights and remedies secured by ISS under the Copyright Laws of the United States, international conventions and treaties, or under the laws of any state or locality, shall be deemed cumulative, and in addition to any rights and remedies arising under this Agreement. Any provision of Customer’s Purchase Order inconsistent with, or in addition to, the terms and conditions of this Agreement or an applicable Licensor Quotation shall not be binding on ISS and ISS’S failure to object to such provision shall not be construed as acceptance. No modification, waiver, cancellation of any provision of this Agreement shall be binding unless made in writing and signed by the parties. This Agreement shall be binding upon and inure to the benefit of the parties, and ISS’s third party licensors (Suppliers) if any, and the parties respective, permitted successors, assigns, and legal representatives, provided however, that the rights and duties of Customer hereunder with respect to a Program(s) may not be sold, assigned, sublicensed, or otherwise transferred by it, in whole or in part, without the prior written consent of ISS. If any provision of this Agreement is in violation of any applicable law, such provision shall to such extent be deemed null and void, and the remainder of this Agreement shall remain in full force and effect unless the invalid provision supplied an essential term of this Agreement.