LICENSE AGREEMENT
FOR COMPUTER SOFTWARE PRODUCTS AND RELATED SERVICES
TERMS AND CONDITIONS
ENTIRE AGREEMENT. This Agreement, including any Schedules and as amended by any signed addendum attached hereto, constitutes the entire agreement between Anchor and Customer, and supersedes any prior contracts, agreements, proposals, purchase orders, understandings, representations, correspondences, or communications relating to the subject matter hereof. Customer has not been induced to enter into this Agreement by any representations or promises not specifically stated herein. This Agreement may be modified only by written instrument exercised by authorized representatives of Anchor and Customer.
TERM OF AGREEMENT. This Agreement is effective from the date executed by Anchor and will continue unless cancelled in accordance with the terms and conditions outlined herein. Following the initial period, Customer shall have the option to renew the license for successive 12-month periods. Such option to renew shall be automatically exercised for successive 12-month periods unless Anchor receives written notice of termination sixty (60) days or more prior to the end of each 12 month period. Anchor shall invoice Customer for each 12 month period at the then prevailing price(s), which amount shall be deemed due and payable to Anchor upon receipt of invoice by Customer.
RESTRICTED USE. Anchor retains title to, and ownership of, the Anchor software designated by this Agreement. It is expressly stipulated that Anchor software constitutes Anchor proprietary information and trade secrets, whether or not all or part of said Anchor software is validly copyrighted or patented. The Customer shall not sell, sub-license, transfer, publish, disclose, archive, display, or otherwise make available the Licensed Product(s) or copies thereof to others. Use of the Licensed Product(s) is restricted to the United States. The Customer may use the Licensed Product(s) solely for its own business purposes. The Customer is prohibited from using any trademarks or service marks belonging to Anchor, without prior written permission. The Customer is prohibited from any unauthorized use or duplication of the licensed material. The Customer acknowledges that the Licensed Product(s) contain valuable and confidential information of Anchor and embodies trade secrets developed by Anchor at a great cost and expense. Accordingly, during the term of the Agreement and thereafter, the Customer will (i) take reasonable steps to protect the proprietary and intellectual property rights of Anchor; (ii) take reasonable security precautions to protect the Licensed Products from unauthorized use, disclosure, and copying. Such precautions to be at least as protective of the rights of Anchor in the software as the Customer uses to protect its own like information; (iii) take appropriate action with its employees and other parties that have access to the Licensed Product(s). (i.e. bind them to adhere to the nondisclosure and limited use obligations).
PRICES AND PAYMENT TERMS. Customer shall pay Anchor the License Fee, Maintenance Fee, Subscription Fee, and any other fees, if applicable, as set forth in this Agreement or Schedules or Addendum(s), attached. At Anchor’s option, a payment plan may be permitted and, if so permitted, it is shown on the face or Schedule A of this Agreement. Such payment plan may include finance charges at a rate not to exceed the highest rate allowed by law. Customer shall also pay Anchor for other goods and/or services furnished by Anchor at prices in effect on the date such goods and/or services are furnished. These prices do not include and Customer shall pay any sales tax, use tax, other taxes, duties, personal property taxes or Federal, State or Local governmental charges based upon the transaction of this Agreement, exclusive of Anchor’s net income or corporate franchise taxes. Payment terms are net cash payable 30 days from date of invoice, unless otherwise specified in this Agreement. If any payment is more than 15 days late the Customer will be in default of the terms of this Agreement and Anchor may, at its option, forgo providing Maintenance and Subscription Services. To cure such default the Customer would be required to make all back payments due under the terms of this Agreement. If payments are more than 60 days past due (1) interest penalty shall accrue from the due date at the lesser of eighteen percent (18%) per annum or the highest rate allowed by law and (2) all payments under this Agreement (including acceleration of any future payments under any payment plan) will become due and payable immediately. Customer understands and agrees that its use of the software is absolutely dependent upon timely payment of all fees due herein. Access to the software may be through a password or other security code given or transmitted to the Customer by Anchor only after timely receipt of all fees. The prices and payment terms are confidential and in no case shall Customer discuss or communicate that information to any third party.
CONFIDENTIAL USE. The Customer may use the Licensed Product(s) only as set forth in this Agreement and acknowledges that these products are the confidential and valuable property of Anchor. The software and files of Anchor or any part thereof, may not be reproduced, distributed, published or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, storage in an information retrieval system, or otherwise, without the prior written permission of Anchor.Accordingly, during the term of this Agreement and thereafter, the Customer agrees to secure and protect Anchor’s proprietary and intellectual property rights (each module, software product and documentation thereof) in a manner consistent with the stipulations of this Agreement. The Customer agrees to take appropriate action by instruction or written agreement with its employees and third parties, who are permitted access to each of the Licensed Products, to insure that Anchor’s confidential property rights are protected.
SYSTEM LOCATION. The Customer may only use the Licensed Products on the type and number of computers with the Operating System(s) and at the Facility Location(s) noted in Sections 5, 6 and 7 on the face of this Agreement. The Customer may not use the Licensed Products at other locations without the prior approval of Anchor.
MAINTENANCE AND SUBSCRIPTION SERVICES. The term of Maintenance and Subscription Services for each Licensed Product is stated in Schedule A of this Agreement. The Maintenance services referred to in this paragraph consists of Anchor providing reasonable amounts of (1) consultation via telephone to assist Customer in the use of the Licensed Product(s) and (2) all enhancements to the Licensed Product(s) developed by Anchor and generally made available to other Anchor customers that use the Licensed Product(s). The Subscription Services referred to in this paragraph consists of Anchor providing updates of databases or files on a periodic basis, which may be required for specific software products. In the case of Software as a Service (“SaaS”), Anchor shall perform all software upgrades, enhancements, and backups of the server(s) located in Anchor’s facility. Excluded from Maintenance Services are support calls necessitated by: 1) acts of God (i.e. floods, lightning, storms, power failures, etc.); 2) fire; 3) political insurrection; and 4) negligence or misuse on the part of the Licensee or Licensee’s agent. Support calls for services excluded from this agreement will be billed at Anchor’s hourly rate then in effect plus any travel expenses (if applicable). Licensee shall be advised if a service call is billable prior to the service being provided.
COMPUTER MAINTENANCE AND REPAIR. Unless otherwise stated in this Agreement, Customer shall be responsible for the maintenance, repair technical support, or any other computer issues related to the computer equipment at Customer’s site that is used with the Licensed Product(s), whether or not such equipment is supplied by Anchor under this agreement. Any computer used to operate the Licensed Product(s) must conform to Anchor’s specifications for the minimum computer configuration required to operate the Licensed Product(s).
WARRANTY. Notwithstanding any other provisions of this Agreement, Anchor warrants that the Licensed Product(s) shall be free from defects in material workmanship and operational failure. This warranty is effective for 12 months from the date of this Agreement. Upon written notice by Customer, Anchor agrees, at no cost to Customer, to take reasonable and prompt action to correct such defects and make such additions, modifications or adjustments to the Licensed Product(s) as may be necessary to keep it in operating order in accordance with Anchor’s standard documentation, or, at Anchor’s sole option, terminate this Agreement. If the Agreement is terminated for that reason, Customer would not be required to make any further License Fee payments (installment or otherwise) pursuant to the Licensed Product(s) in question. This shall be the sole and exclusive obligation of Anchor and the sole and exclusive remedy to the Customer hereunder. In the event Customer changes or modifies the Licensed Product(s) in any manner, the warranty would be immediately terminated and subsequently Customer would make all remaining payments due under the Agreement and Customer releases Anchor from any obligations or liability pursuant to the warranty.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM CUSTOM AND USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, EACH OF WHICH IS EXPRESSLY DISCLAIMED.
DISCLAIMER. Anchor hereby disclaims any and all warranties, except as stated in Paragraph 9 above, of any kind or nature regarding the Licensed Product(s), whether expressed or implied, including any warranty of results, performance, merchantability, suitability, or fitness for a particular purpose. In no event will Anchor be responsible for any damage to the Licensed Product(s) as a result of or related to the use of any other product and/or modification(s) to the system running the Licensed Products(s). In the event Customer damages the Licensed Product(s), Anchor will charge an applicable fee for system support to correct the damage. Damages arising from such action will not be a part of the standard Maintenance Services of the Licensed Product(s). Modification of the software is prohibited at all times. Further, no tampering or unauthorized disassembly of the Licensed Product is permitted.
LIMITED LIABILITY. The Customer must comply with all the terms and conditions described in this Agreement. Any breach of the Agreement by Customer may result in the suspension or termination of its license, without any liability to Anchor. Anchor shall not incur any liability that arises out of the use of its products by the Customer. Anchor will not be liable for direct, indirect, special, incidental, consequential, or other similar damages arising out of use of, or inability to use the Licensed Product(s), even if Anchor is advised of the possibility of such damages. In no event shall Anchor be liable for any lost profits, or other special, consequential or punitive damages, even if Anchor has been advised of this possibility of such damages, or for any claim against Customer by any other party except with regard to an action for infringement of an intellectual property right, for which Anchor shall indemnify and hold harmless to Customer.
SUSPENSION/TERMINATION. If the Customer at any time during the term of this Agreement fails to comply with or fulfill any of the terms or conditions stated herein, Anchor may send the Customer, as an interim measure, a suspension notice, or, at its sole discretion, send Customer a termination notice. A suspension notice shall state the reason(s) for suspension and direct the Customer to cease the identified activities until the Customer takes the necessary corrective actions and the corrective actions are verified and accepted by Anchor. A termination notice shall state the reason(s) for the termination. Upon suspension hereunder, Customer shall immediately cease use of the Licensed Product(s). Upon termination hereunder (1) the Customer shall immediately cease use of the Licensed Product(s), purge their computer systems of the Licensed Products and return all copies of the Licensed Product(s) and all documentation to Anchor, (2) at Anchor’s request, the Customer shall certify in writing, in a form acceptable to Anchor, that it has complied with its obligations according to this Agreement, and (3) all payments due (including acceleration of any future payments under any payment plans) to Anchor shall become due and payable immediately. Upon termination, Customer shall reimburse Anchor for all reasonable expenses (including legal fees) related to repossession and enforcement of Anchor‘s rights and remedies. Anchor shall not be obligated to provide any services after the termination or expiration of the Agreement. Suspension and termination shall be without liability to Anchor.
GENERAL PROVISIONS
NOTICES. All notices which either party hereto is required or may desire to give the other party hereunder shall be given by addressing the communication to the addresses set forth on the first page of this Agreement, and mailing it prepaid by certified mail (return receipt required), or via a nationally known overnight delivery service (receipt signature request). Such notices shall be deemed given on the date of receipt (or refusal).
GENERAL AND APPLICABLE LAW. All disputes shall be settled under the laws of and in the State of Texas and any suit to enforce this Agreement shall be maintained in Collin County, Texas. In the event that any part of this Agreement shall be found to be illegal or in violation of public policy, or any other reason unenforceable in law, such findings shall in no event invalidate the other parts of this Agreement. No action, regardless of form, arising out of this Agreement may be brought by either party more than three (3) years after the aggrieved party has knowledge of the occurrence which gives rise to the cause for such action. This Agreement may not be changed orally but only by an Agreement in writing which specifically refers to this Agreement, and/or its attachments and which is signed by each of the parties hereto
INDEMNIFICATION. Except as otherwise provided herein, Customer indemnifies and holds Anchor harmless from any costs, expenses, all third party claims or liabilities resulting from Customer’s use or possession of the licensed program.
ASSIGNMENT OR TRANSFER. This Agreement may not be assigned (by operation of law or otherwise) or otherwise transferred in whole or in part by the Customer, unless the Customer has received prior written permission from Anchor.
ENCUMBRANCE. Licensee shall not pledge, encumber, create a security interest in, or permit any lien to become effective on any property Licensed by this Agreement.
BINDING. This Agreement and all supplements thereto shall not be binding unless executed by a duly authorized representative of both parties. In addition, no waiver, alteration, or modification of any of the provisions shall be binding unless in writing and signed by a duly authorized representative of Anchor.
CAPTIONS AND HEADINGS. All titles, headings and captions contained in this Agreement are for convenience and reference purposes only and shall not be deemed a part of this Agreement.
SURVIVAL. The Customer must comply with all the terms and conditions as set in this Agreement, which shall survive any termination or expiration of the Agreement, except for their requirements to pay Anchor as otherwise referenced herein.
USE OF CUSTOMER INFORMATION. Anchor or its affiliated companies may use Customer’s name, trade name, and logos associated with the Customer for marketing and reference purposes (collateral materials, customer lists, advertising, etc.).
FORCE MAJEURE. Neither Customer nor Anchor shall be liable for delay or failure to perform, when such delay or failure is caused by fire, flood, any act of God, governmental order or regulation or any other causes beyond their control.
BENEFIT. This Agreement shall be binding upon and inure to the benefit of Anchor’s successors and assigns.
NON-SOLICITATION. Customer is prohibited from, directly or indirectly, recruiting and/or hiring of Anchor employees or contractors during the term or performance of this Agreement and for a period of one (1) year following the termination date of this Agreement.
NON-WAIVER OF RIGHTS. Any failure or delay on the part of Anchor to exercise or require performance of any of the terms, covenants, provisions, remedies or rights under this Agreement shall not operate as a waiver of any of its rights under the Agreement. No forbearance by Anchor to exercise any rights or privileges under this Agreement shall be construed as a waiver, but all rights and privileges shall continue in effect as if no forbearance had occurred. Acceptance by Anchor of payments made by Customer after default shall not be deemed a waiver of Anchor’s rights and remedies arising from Customer’s default. No covenant or condition of this Agreement may be waived except by the written consent of Anchor. Any such written waiver of any of the terms and conditions of this Agreement shall be effective only for a specific instance and the specific purpose given.