SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT, dated __________ is between PAPER-LESS, LLC and __________ (“Licensee”).
PAPER-LESS, LLC and Licensee acknowledge the following:
PAPER-LESS, LLC has developed computer programs and documentation (the “System”).
PAPER-LESS, LLC is willing to grant Licensee the right to use the System subject to the terms and conditions set forth below.
In consideration of the Recitals and promises and agreements set forth below, PAPER-LESS, LLC and Licensee agree as follows:
Grant of License. Subject to and conditioned upon Licensees payment of fees and compliance with the terms and conditions of this Agreement, PAPER-LESS, LLC grants Licensee a non-exclusive, non-transferable, perpetual license to use System while this Agreement is in effect at the location and on the computers specified on Exhibit 1 for Licensee’s internal business purposes. Copies of the System created or transferred pursuant to this Agreement are licensed, not sold, and Licensee receives no title to or ownership of any copy or of the System itself. Furthermore, Licensee receives no rights to the System other than those specifically granted in the first sentence of this Section. Without limiting the generality of the foregoing, Licensee shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the System; (b) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code; (d) ) remove any proprietary notices from the System or the System Documentation; or (v) use the System in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. PAPER-LESS, LLC reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the System.
Payment; Taxes. Licensee agrees to pay PAPER-LESS, LLC the license fee for the System in the amount and manner set forth on the attached Exhibit 1. All fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on PAPER-LESS, LLC’s income.
Confidentiality. Licensee acknowledges being advised that the System has been developed at great expense to PAPER-LESS, LLC and consists of proprietary methodologies which are trade secrets of PAPER-LESS, LLC. To protect PAPER-LESS, LLC’S interest in maintaining the trade secrets embodied in the System, Licensee agrees that it will not, directly or indirectly, unless otherwise authorized by PAPER-LESS, LLC in this Agreement, distribute or otherwise disclose the System or any portion thereof to any nonemployee of Licensee, or any third party, without prior written permission of PAPER-LESS, LLC. Licensee agrees to use the same standard of care it uses for the protection of its own proprietary information to prevent any unauthorized copying, use or disclosure of the System or the usage of the system by any one or in any way that would be contrary to the intent of this agreement.
PAPER-LESS, LLC warrants that for a period of one (1) year from the date of Acceptance, the System and all its components shall perform according to the System Documentation. PAPER-LESS, LLC does not warrant or guarantee that the System’s operation will be uninterrupted or bug-free. LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES PAPER-LESS, LLC MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SYSTEM OR SYSTEM DOCUMENTATION, INCLUDING THEIR QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,OR ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
The System Documentation and user training are integral parts of the System. PAPER-LESS, LLC makes no warranties as to the functioning of the System if use is in any material way inconsistent with the System Documentation or user training.
PAPER-LESS, LLC does not endorse any modification to the System and makes no warranty as to the integrity of programs modified by Licensee without PAPER-LESS, LLC prior written approval.
To the extent possible, PAPER-LESS, LLC will service any System defects or other use problems encountered. After the (i) one year warranty period or (ii) any additional period in which Licensee has paid the Maintenance Fee listed in Exhibit 1 which PAPER-LESS, LLC may adjust as provided in Section 8, PAPER-LESS, LLC reserves the right to charge at its then current rates for such support, particularly, but not necessarily, if the System has been used in any way inconsistent with the System Documentation or user training or if the system has been modified by the Licensee.
In the event of any breach of the limited warranty in Section 4a), Licensee shall notify PAPER-LESS, LLC which shall, at its option, repair or replace the relevant portion of the System at no additional cost to Licensee, or, if repair or replacement does not achieve the limited warranty described herein, refund to Licensee if during the first year after acceptance, the licensee fee paid by the Licensee. In subsequent maintenance periods, if repair or replacement does not achieve the limited warranty, PAPER-LESS, LLC’S refund obligation is limited to the maintenance fee amount paid by Licensee for the maintenance period during which the limited warranty breach occurred. THE FOREGOING SHALL BE THE SOLE OBLIGATION OF PAPER-LESS AND EXCLUSIVE REMEDY OF LICENSEE FOR ANY BREACH OF THE LIMITED WARRANTY.
Support Service. As long as the annual maintenance fees (as well as any hardware, software or services invoices) are current, PAPER-LESS, LLC will provide support service for The System for a period of 12 months. Support service shall include telephone consultation regarding the use and operation of the program and corrections to the materials via a printed matter, magnetic media or telecommunications to correct significant deviations from the application specifications which the customer brings to PAPER-LESS, LLC’s attention. PAPER-LESS, LLC shall be relieved of its responsibilities to furnish further support services under this paragraph if customer fails to pay the applicable license fees or annual support fees, or until customer adopts and utilized all corrections, releases and enhancements offered to customer previously. PAPER-LESS, LLC will provide the above mentioned services during normal business hours of 8:30 a.m. to 5:00 p.m. central standard time. Phone support outside of this time frame will be via our emergency support number and on-call services representative. This off-hours support is intended to provide phone service within 2 hours of the receipt of each request.
IP & Feedback. Licensee acknowledges that, as between Licensee and PAPER-LESS, LLC, PAPER-LESS, LLC owns all right, title, and interest, including all intellectual property (IP) rights, in and to the System and System Documentation. If Licensee or any of its employees or contractors sends or transmits any communications or materials to PAPER-LESS, LLC by mail, email, telephone, or otherwise, suggesting or recommending changes to the System or System Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), PAPER-LESS, LLC is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback.
Proprietary Rights, Warranty and Indemnity. PAPER-LESS, LLC represents that the System is owned or licensable by PAPER-LESS, LLC and will not infringe any copyright, patent, trade secret or other proprietary right of any third party provided that in the event of any claim by a third party against Licensee asserting or involving a copyright, trade secret or other proprietary right infringement involving any software licensed to Licensee hereunder, PAPER-LESS, LLC to defend at its expense and indemnify Licensee against any cost, expense of damages awarded against Licensee, provided that Licensee notifies PAPER-LESS, LLC in writing within a reasonable time after Licensee first receives written notice of any such claim. PAPER-LESS, LLC may fully participate in the defense or agree to any settlement of any such claims. In the event an injunction shall be obtained against Licensee’s use of the System by reason of the allegations, or if in PAPER-LESS, LLC’S opinion the Systems is likely to become a subject of a claim of infringement of a copyright, patent, trade secret or other proprietary right of a third party, PAPER-LESS, LLC will, at its sole option and at its expense:
Procure for Licensee the right to continue using the System; or
Replace or modify the same so that it becomes non-infringing (which modification or replacement shall not adversely affect the published specifications for, or the use or operation by Licensee of the System); or
If neither (a) nor (b) above is practicable after exhausting all reasonable efforts to implement (a) nor (b) above, refund the Initial License Fee, or a prorated amount thereof, as illustrated in Exhibit 1.
THIS SECTION 6 SETS FORTH LICENSEE’S SOLE REMEDIES AND LICENSOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
LIMITATION OF LIABILITY. IN NO EVENT WILL PAPER-LESS, LLC BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PAPER-LESS, LLC WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT AS PROVIDED IN SECTION 6C), IN NO EVENT WILL PAPER-LESS, LLC AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PAPER-LESS, LLC UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. For the avoidance of doubt, PAPER-LESS, LLC’s liability limits and other rights set forth in this Section 7 apply likewise to PAPER-LESS, LLC’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
New Versions and Maintenance. This Agreement applies only to the Applications of the System set forth in Exhibit 1, and delivered to Licensee at the time of this Agreement, but may be extended to subsequent Applications by mutual agreement in writing through additional Exhibits. PAPER-LESS, LLC may offer from time to time to provide new versions of the System. The term “version” means new features or additions to the system which add performance and functionality features not currently present in the delivered version. These versions, release updates and fixes to them which enhance currently available performance or functionality, are available at no additional charge to Licensee, as long as it is current in its Maintenance Fee payment obligations.
The Licensee is under no obligation to accept or install new versions of the System however support provided through annual maintenance fees is typically provided for the current release and one back release of the System. This Agreement shall continue to be binding until such time as a new agreement is executed in regard to subsequent versions of the System.
During the warranty period and for as long as Licensee has paid the required Maintenance Fee specified in the attached Exhibit 1, PAPER-LESS, LLC will provide the Systems upgrades at no additional charge to Licensee and will maintain the System, at no additional cost to Licensee, so that it performs according to limited warranty set forth in Section 4a) of this Agreement. PAPER-LESS, LLC may revise the Maintenance Fee on Exhibit 1 at any time of thirty days notice to Licensee.
Data. Licensee will at all times own all right, time, and interest in all information, data, images, and other content, in any form or medium, that is submitted by or collected from or on behalf of Licensee through the Systems, including data and information collected from or pertaining to users (“License Content”). Licensee grants PAPER-LESS, LLC a limited license to use the Licensee Content as needed in order to support the System. In addition, PAPER-LESS, LLC may anonymize and aggregate data that is derived from the Licensee Content, the processing of Licensee Content, or the access or use of the System by or on behalf of Licensee, that in no way identifies or refers to Licensee or its users, and any statistical or other analysis, information, or data based on or derived from the foregoing, which Licensee may use for any purpose including improving the Systems.
Termination of License. Either party may terminate this Agreement for any material breach or material violation of this Agreement by the other party upon thirty (30) days written notice to the breaching party, provided that such breach or violation is not corrected within the thirty (30) day notice period.
Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, pandemic, epidemic, governmental order, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
No Transfer. Each party agrees that it will not transfer the System or assign its rights under this Agreement unless the prior written consent of the other party is obtained.
Export Controls. The System may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the System to, or make the System accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the System available outside the US.
No waiver. No waiver by either party of any breach by the other party shall be valid unless in writing and no such waiver shall extend to any other breach by said party.
Entire Agreement. This Agreement and the attached Addendum (if any) constitutes the entire agreement between the parties relating to the subject matter hereof and shall supersede all prior or contemporaneous written or oral understandings or agreements. This Agreement may be amended only by a written document by duly authorized representative of PAPER-LESS, LLC and Licensee.
To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
Governing Law. The interpretation, construction and enforcement of this Agreement shall be exclusively governed by the laws of the State of Wisconsin, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Waukesha County, Wisconsin. This Section 15 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
Binding Effect. This Agreement is binding upon the insures to the benefit of PAPER-LESS, LLC and Licensee and their successors and assigns; provided that neither party may assign this Agreement except under the circumstances described above. This Agreement may be executed in counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
By: ___________________________________ By: ____________________________________
Name: TONY FLEISCHMAN Name:
Title: VICE PRESIDENT Title:
Date: _________________________________ Date: __________________________________