The following SOFTWARE LICENSE TERMS AND CONDITIONS are applicable to the Software License(s) for the Product(s) defined herein.

MEANINGS:

“Product” means the software identified in the sales estimate or quote, sales order, any applicable Statement of Work, documentation, updates, and modifications. Products may include but are not limited to SMRTR Desktop Capture,  SMRTR CMS (NG),  SMRTR Proof of Delivery, SMRTR Supplier Compliance,  AP Essentials, OL Connect Professional, OL Connect Enterprise, DASH DDX, or DASH AP Robot.

“Source Code” shall mean the un-compiled source exit and utility programs or modules supplied by Licensor as part of or in addition to the LICENSEE Product code.

“Derivative Works” shall mean LICENSEE, LICENSEE agent, or custom Licensor work that contains or uses any program, service program, module, source code or object supplied by Licensor.

TERM / MAINTENANCE AND SUPPORT REQUIREMENT:

The term of the License for the Product(s)  herein shall become effective upon delivery of the Product(s).

Perpetual: LICENSEE has obtained a license for Perpetual use of the Software. With the  Perpetual use Software License, the LICENSEE is required to enter a one-year Software Maintenance and Support Agreement. Failure to renew the Software Maintenance and Support Agreement will not result in the termination of the Perpetual use Software License. Failure to renew will result in  LICENSEE not being eligible to receive technical support, upgrades, and maintenance from LICENSEE.  Following the initial Software Maintenance and Support Agreement term, LICENSEE must prepay the annual Maintenance and Support Agreement for all Licensed copies of the Product under the terms of the current posted Licensor Software Maintenance and Support policies as modified by Licensor from time to time. 

Subscription: LICENSEE has obtained Thirty-Six (36) month Subscription. With the Subscription Software License, Maintenance and Support is included in the Subscription Licensing Fee.

Support and Maintenance Service Level Agreement

TERMINATION: All maintenance, support and access to updates shall automatically terminate upon the material breach of the License Agreement, these Terms and Conditions  and/or upon the non-renewal of the current Subscription Software License.

TRADE SECRET:  LICENSEE acknowledges that Product(s) are the confidential and proprietary property of Licensor, and LICENSEE has been advised by Licensor that the Product(s), any source code, its output, and related documentation have been developed and maintained as valuable trade secrets. LICENSEE agrees to preserve the confidential nature of these trade secrets by (a) retaining and using the Product(s) in trust and confidence solely and exclusively for its own internal use, and (b) not permitting the use of the Product by, or the disclosure of information related to the Product to, unauthorized persons either during or after termination.

MODIFICATION AND DERIVATIVE WORKS: LICENSEE shall not modify, adapt, translate, copy, decompile, disassemble, reverse engineer or create derivative works based on the Product(s) or any part thereof. LICENSEE further agrees that any modifications or derivative works, whether permitted or not, shall be the exclusive property of Licensor, and LICENSEE hereby assigns all right, title, and interest in and to such modifications or derivative works to Licensor.

LIMITED WARRANTY: Each Product will conform to the written specifications and description contained in the Product documentation. In the event Product fails to conform to Product documentation, LICENSEE must immediately notify Licensor in writing. LICENSEE’S exclusive remedy shall be replacement of the Product. Licensor further warrants for LICENSEE’S benefit alone, that Licensor owns the Product(s), including all associated intellectual property rights, or otherwise has the right to grant LICENSEE the right and license provided in this Agreement, and that as of the date of this Agreement, to the best of Licensor’s knowledge, the Product(s) does not infringe any valid patents, copyrights, trademarks, or other proprietary rights of any third parties.

DERIVATIVE WORKS WARRANTY: For all Derivative Works specifically created by Licensor for LICENSEE a 90-day warranty is applicable from the date the Derivative Works are delivered to LICENSEE.

LIMITS OF LIABILITY:  EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE PRODUCT, AND ANY SOFTWARE CONTAINED THEREIN, ARE LICENSED “AS IS,” AND LICENSOR DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING.  IN NO EVENT SHALL LICENSOR, BE LIABLE TO LICENSEE OR ANY THIRD-PARTY FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR SPECIAL DAMAGES OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL LICENSOR’S LIABILITY UNDER ANY OR ALL PROVISIONS OF THIS AGREEMENT FOR ALL CAUSES OF ACTION ON A CUMULATIVE BASIS EXCEED THE PAYMENTS ACTUALLY MADE TO LICENSOR UNDER THIS AGREEMENT OR THE ANNUAL MAINTENANCE SUBSCRIPTION AGREEMENT DURING THE IMMEDIATELY PRECEDING 12 MONTH PERIOD, WHICHEVER IS GREATER. IN NO EVENT SHALL LICENSOR, BE LIABLE TO LICENSEE OR ANY THIRD-PARTY FOR ANY DAMAGES ARISING OUT OF THIRD-PARTY CONDUCT OR CAUSED BY THIRD-PARTY PRODUCT.

WAIVER: Failure by either Party to enforce at any time or for any period of time any provisions of this Agreement shall not be construed as a waiver of such provisions and shall in no way affect a Party’s right to later enforce such provisions.

INDEMNIFICATION BY LICENSOR: Subject to the limitations of liability here and above, LICENSOR shall defend, indemnify and hold LICENSEE and its shareholders, directors, officers, employees, agents, successors, and assigns harmless from and against any and all third-party claims, demands, suits or causes of action arising from or relating to any alleged or actual infringement by the Product relating to any third-party intellectual property right (an “LICENSOR Indemnified Claim”), provided that License is not in default under this Agreement or any other agreement with LICENSOR, and further provided that LICENSEE promptly notifies LICENSOR in writing of the claim, and allows LICENSOR to control, and cooperates with LICENSOR in, the defense or any related settlement negotiations.  If the Product becomes the subject of an infringement claim, LICENSOR may, at its option, either: (i) procure for LICENSEE the right to continue using Product in accordance with the terms of this Agreement, (ii) provide LICENSEE with a modified, non-infringing version of the Product, provided the modifications do not materially affect the functionality or performance of the Product or LICENSEE’S rights under this Agreement, or (iii) if neither (i) nor (ii) above is commercially reasonable, accept the return of the Product and give LICENSEE a refund of the last 12-months fees paid by LICENSEE to LICENSOR under this Agreement.

INDEMNIFICATION EXCEPTION: LICENSOR shall have no obligation to indemnify LICENSEE to the extent any claim of infringement results from use or incorporation of the Product with other software or hardware or any combination or derivative thereof; if the infringement would not have occurred but for such combination, incorporation or use. 

INDEMNIFICATION BY LICENSEE: LICENSEE acknowledges that this product may be used in a variety of environments that are considered to be mission critical or hazardous (“Critical Environment”) requiring continuous or fail-safe performance.  In the event that the Product is used in any Critical Environment, LICENSEE shall take necessary precautions and shall indemnify and hold LICENSOR, and its shareholders, directors, officers, employees, agents, successors, and assigns harmless from any claims, losses, costs, damages, expenses or liability arising out of or in connection with such use.

GOVERNING LAW:  This Agreement shall be governed by and construed in accordance with the laws of the State of Utah.  The sole jurisdiction and venue for actions related to the subject matter hereof shall be Utah state or federal courts in the County of Salt Lake.

DISPUTE RESOLUTION:  In the event of any dispute arising out of or relating to this Agreement, the Parties shall attempt in good faith to resolve such dispute through informal means, including timely escalating of the dispute to senior management having full settlement authority. In this regard neither party may proceed with legal action of any kind if they have not first made such good faith attempt and such attempt shall include an in-person meeting between senior management having full settlement authority. If the dispute remains unresolved for 30 days and the Parties have exhausted the informal efforts described above; the Parties must participate in neutral mediation before pursuing other legal action. Such mediation shall be conducted in Denver, Colorado and with a neutral mediator agreeable to the Parties, or if the Parties are unable to agree on a mediator, then a mediator selected by the American Arbitration Association (Denver Regional Office), 2301 Blake Street, Suite 100 Denver, CO 80205, 303) 831-0824. The Parties shall each pay half of such mediation costs.  If the dispute remains unresolved after the conclusion of mediation described above the matter will be submitted to final and binding arbitration under the American Arbitration Association Rules and before a single neutral arbitrator agreeable by the parties, or if the Parties are unable to agree on an arbitrator, then an arbitrator selected by the American Arbitration Association (Denver Regional Office), 2301 Blake Street, Suite 100 Denver, CO 80205, (303) 831-0824.

INJUNCTIVE RELIEF: Licensee acknowledges and agrees that any breach or threatened breach of this Agreement, with respect to unauthorized use, modification, disclosure, or distribution of the Software or Licensor’s Trade Secrets, would cause irreparable harm to Licensor for which monetary damages would be inadequate. Accordingly, at its election and in addition to any other remedies available at law or in equity, Licensor shall be entitled to seek injunctive relief, specific performance, or other equitable remedies to prevent or curtail any such breach or threatened breach, without the necessity of posting bond or proving actual damages.

ATTORNEYS FEES: If any party hereunder brings an action or proceeding arising out of or relating to this Agreement, whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action or appeal thereon, shall be entitled to reasonable attorneys’ fees and legal costs.  Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment.  The term “Prevailing Party” shall include, without limitation, a party who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, arbitration award or the abandonment by the other party of its claim or defense.  The attorneys’ fees award shall not be computed in accordance with any court fee schedule but shall be such as to fully reimburse all attorneys’ fees reasonably incurred.

LICENSEE AS GOVERNMENTAL AGENCY:  Should License be an agency of the United States Government, the Product and its accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Product and its accompanying documentation by the U.S. Government shall be governed solely by the terms of the agreement between LICENSOR and LICENSEE.

REFERENCES:  LICENSEE agrees that its name may be used by LICENSOR for advertising purposes. Content of promotional activity specifically referring to the nature of LICENSEE’S business is subject to approval by LICENSEE and LICENSOR.

ASSIGNMENT: Licensee may not assign, delegate, or otherwise transfer any of its rights or obligations under the Software License(s), whether by operation of law or otherwise, without the prior written consent of Licensor. Any attempted assignment or transfer in violation of the foregoing shall be null and void. Licensor may assign or transfer its rights, in whole or in part, without Licensee’s consent.

SEVERABILITY:  In the event that any of the provisions of this Agreement shall be held by any court, arbitral panel or tribunal of competent jurisdiction to be unenforceable, such provision shall be enforced to the maximum extent permissible and the remaining portions of the Agreement shall remain in full force and effect.

ENTIRE DOCUMENT:  This Agreement and the SOFTWARE LICENSE, including the documents and instruments referred to herein or contemplated hereby, embodies the entire agreement and understanding of the parties hereto in respect of the subject matter hereof.  There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein.  This Agreement supersedes all prior agreements and understandings between the parties with respect to the subject matter hereof, including all letters of intent between the parties hereto, as amended from time to time, and any subsequent correspondence of the parties.