INTEGRA - EMITROM, INC.
SOFTWARE LICENSE & SUPPORT SUBSCRIPTION AGREEMENT
THIS SOFTWARE LICENSE AND SUPPORT SUBSCRIPTION AGREEMENT (this
“Agreement”) is entered into and effective as of the date you
(“Customer”) receive the licensed Software which it accompanies (the
THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN CUSTOMER
AND EMITROM, INC. ("EMITROM")
“Development Use” means use of the Software by Customer to design,
develop and/or test new applications for Production Use.
“Documentation” means Emitrom’s current user manuals, operating
instructions and installation guides generally provided with the
Software to its licensees.
“Maintenance Release” means Upgrades and Updates (as defined in the
attached Exhibit A) to the Software which are made available to
licensees pursuant to the standard Support Services Terms and
“Order” means the document by which Software and Support Services are
ordered by Customer. The Order shall reference and be solely governed
by this Agreement. The Order may be electronic or written.
“Production Use” means using the Software for internal business
purposes, or for the creation of applications for sale or distribution
without fees. Production Use does not include the right to reproduce
the software for sublicensing, resale, or distribution, including
without limitation, operation on a time sharing or service bureau
basis or distributing the software as part of an ASP, VAR, OEM,
distributor or reseller arrangement.
“Software” means the object code versions of the Software described on
an Order and the related documentation.
“Support Services” means technical support for Software under
Emitrom’s then- current policies. Emitrom’s current, standard Support
Services Terms and Conditions are attached hereto.
“Subscription Term” means the time after the Effective Date of this
Agreement and a related Order, including any applicable renewal terms,
in which the Customer is current with any applicable fees in order to
maintain the Subscription in effect.
“Territory” means the United States and any additional territories
explicitly agreed to by the parties, as set forth on an Order.
a. License Grant. Emitrom grants Customer a subscription-based, fee-
bearing, non-exclusive and non-transferable (except as permitted
herein) license to use the Software and the Documentation, solely for
Customer’s Development Use and/or Production Use, as specified in an
Order, subject to the terms and conditions of this Agreement and the
following limitations: (i) Customer may not copy the Software, except
for archival or disaster recovery purposes, and if Customer does copy
for these purposes, Customer will preserve any proprietary rights
notices on the Software and place such notices on any and all copies
Customer has made or makes; (ii) Customer agrees not to lease, rent or
sublicense the Software to any third party, or otherwise use it except
as permitted in this Agreement; (iii) Customer may not modify or
tamper the Software under any condition, or else the Customer will be
in direct violation of this Agreement. Title, ownership rights and all
intellectual property rights in and to the Software shall remain the
sole and exclusive property of Emitrom. Emitrom retains all rights not
expressly granted to Customer in this Agreement.
b. Consultant Use of Software. Customer may permit its third party
consultants to access and use the Software solely for Customer’s
operations permitted hereunder, provided that said consultants have
signed an agreement with Customer protecting Emitrom’s intellectual
property with terms no less stringent than the terms and conditions of
this Agreement, and that Customer ensures that any such consultant’s
use of the Software complies with the terms of this Agreement.
c. Audit. Emitrom may, at any time during the term of this Agreement
and with thirty (30) days prior written notice, request and gain
access to Customer’s premises, subject to Customer’s reasonable
security procedures, for the limited purpose of conducting an audit to
verify that Customer is in compliance with this Agreement. Customer
will promptly grant such access and cooperate with Emitrom in the
audit. The audit will be restricted in scope, manner and duration to
that reasonably necessary to achieve its purpose and not disrupt
Customer’s operations. Customer shall be liable for promptly remedying
any underpayments revealed during the audit. If the audit reveals an
underpayment discrepancy in excess of five percent (5%), Customer will
also be liable for the costs of the audit.
d. Pre-Release Software. Customer agrees to not use any Pre-Release
software made available by Emitrom, including, but not limited to,
Nightly, Milestone, Developer Preview, Preview Release, Pre-Alpha,
Alpha, Beta or Release Candidate versions, for Production Use. Emitrom
reserves the right to determine what version of the Software is
considered Pre-Release, and agrees to provide enough indication to the
Customer so that a distinction can be clearly made between Pre-Release
and General Availability software. Customer shall be conscientious of
the fact that any Pre-Release software may be unstable and contain
defects, and agrees to use the Software as-is, for Development Use
3. Confidential Information. By virtue of this Agreement, the parties
may have access to information that is confidential to one another
(“Confidential Information”). Confidential Information shall be
limited to the Software, the terms and pricing under this Agreement,
and all information clearly identified as confidential. A party’s
Confidential Information shall not include information that: (i) is or
becomes a part of the public domain through no act or omission of the
other party; (ii) 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; (iii) is lawfully
disclosed to the other party by a third party without restriction on
disclosure; or (iv) is independently developed by the other party. The
parties agree to hold each other’s Confidential Information in
confidence during the term of this Agreement and for a period of two
(2) 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
other than the implementation of this Agreement. Emitrom may
reasonably use Customer’s name and a description of Customer’s use of
the Software for its investor relations and marketing purposes, unless
Customer provides written notice to Emitrom that it may not do so.
4. Payments, Shipments and Taxes. The total non-refundable (subject to
Articles 5(b) and 6(b)(iii)), non-cancellable license and Support
Services fees for each Order will be due and payable within thirty
(30) days from the date of Emitrom’s invoice. The terms and conditions
of this Agreement shall prevail regardless of any preprinted or
conflicting terms on a purchase order, other correspondence, and any
and all verbal communication. Customer will pay all sales, use, VAT,
and other consumption taxes, personal property taxes and other taxes
(other than those based on Emitrom’s net income) unless Customer
furnishes satisfactory proof of exemption. Emitrom may assess interest
charges of twenty percent (20%) per month for late payments.
5. Limited Warranty.
a. Exclusive Warranty. For a period of ninety (90) days after delivery
of the Software, Emitrom warrants that the Software shall materially
conform to the Documentation. Emitrom does not warrant that operation
of the Software will be uninterrupted or “bug” free.
b. Remedies. If Emitrom breaches the foregoing warranty and Customer
promptly notifies Emitrom in writing of the nature of the breach,
Emitrom shall make commercially reasonable efforts to promptly repair
or replace the non- conforming Software without charge. If, after a
reasonable opportunity to cure, Emitrom does not repair or replace the
non-conforming Software, Customer must return the Software and
Documentation to Emitrom, or certify in writing that all copies have
been destroyed, and Emitrom will refund the license fees it received
from Customer for the Software. This is Customer’s sole and exclusive
remedy for breach of the exclusive warranty in Article 5(a).
c. Disclaimer of Warranty. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES
OF FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND
6. Intellectual Property Indemnification.
a. Defense. If a third party claims that Customer’s use of the
Software infringes any United States patent, copyright, trademark or
trade secret, Customer must promptly notify Emitrom in writing.
Emitrom will defend Customer against such claim if Customer reasonably
cooperates with Emitrom and allows Emitrom to control the defense and
all related settlement negotiations, and then Emitrom will indemnify
Customer from and against any damages finally awarded for such
b. Injunctive Relief. If an injunction is sought or obtained against
Customer’s use of the Software as a result of a third party
infringement claim, Emitrom may, at its sole option and expense, (i)
procure for Customer the right to continue using the affected
Software, (ii) replace or modify the affected Software with
functionally equivalent software so that it does not infringe, or, if
either (i) or (ii) is not commercially feasible, (iii) terminate the
licenses and refund the license fees received from Customer for the
affected Software less a pro rata usage charge based on Customer’s
prior use, if applicable.
c. Disclaimer of Liability. Emitrom shall have no liability for any
third party claim of infringement based upon (i) use of other than the
then current, unaltered version of the applicable Software, unless the
infringing portion is also in the then current, unaltered release;
(ii) use, operation or combination of the applicable Software with
any programs, data, equipment or documentation that is not deemed by
Emitrom to work in conjunction with the Software, if such infringement
would have been avoided but for such use, operation or combination; or
(iii) any third party software. The foregoing constitutes the entire
liability of Emitrom, and Customer’s sole and exclusive remedy with
respect to any third party claims of infringement of such intellectual
7. Limitation of Liability.
a. Limitation. Emitrom’s aggregate liability to Customer for damages
concerning performance or nonperformance by Emitrom or in any way
related to this Agreement, and regardless of whether the claim for
such damages is based in contract, tort, strict liability, or
otherwise, shall not exceed the license fees received by Emitrom from
Customer for the affected Software for the twelve (12) month period
preceding the occurrence of such liability.
b. No Consequential Damages. In no event shall Emitrom be liable for
any indirect, incidental, special, punitive or consequential damages,
including without limitation damages for lost data or lost profits,
even if Emitrom has been advised as to the possibility of such
8. Term and Termination. This Agreement, including Exhibit A and any
Order(s), will continue for the duration set forth in any Order(s) and
will automatically renew in one (1) year increments unless either
party terminates the Agreement by providing written notice to the
other at least thirty (30) days prior to the anniversary of the
Effective Date. Either party will be in default if it declares
bankruptcy or otherwise fails to perform any of its duties or
obligations and does not undertake an effort to substantially cure
such default within thirty (30) days after written notice is given to
the defaulting party, except that any breach of Article 3 shall be
grounds for immediate termination. In the event of default, the non-
defaulting party may terminate this Agreement by providing written
notice of termination to the defaulting party. If Customer is the
defaulting party, Customer must promptly, at Emitrom’s direction,
destroy or return all affected Software and Documentation. Upon
termination of this Agreement for non-default, the provisions of
Articles 1, 2, 3, 4, 5(c), 6(c), 7, 8 and 10 will survive. Upon
termination of this Agreement for default, the provisions of Articles
1, 3, 4, 5(c), 6(c), 7, 8 and 10 will survive.
9. Subscription Term & Support Services.
a. Support Services. Support Services are included as part of this
subscription Agreement. Support Services ordered by Customer will be
provided under Emitrom’s Support Services policies in effect on the
date Support Services are ordered. Emitrom’s Support Services policies
as of the Effective Date are attached hereto as Exhibit A. Except as
otherwise provided herein, Support Services fees paid are
b. Renewal of Subscription Term. At the expiration of each
Subscription Term, Customer may continue to receive license rights and
Support Services in one (1) year increments under Emitrom’s then
current fees and policies. Emitrom shall provide Customer reasonable
notice of subscription fees due. If Customer elects not to renew the
subscription, Customer shall notify Emitrom of its intent not to renew
at least thirty (30) days prior to the end of the applicable
Subscription Term. Reinstatement fees may apply under Emitrom’s
policies when Customer reinstates its subscription.
a. Force Majeure. Neither party shall be liable for any delay or
failure in performance due to causes beyond its reasonable control.
b. Export Compliance. Customer may not download or otherwise export or
re- export the Software or any underlying information or technology
except in full compliance with all United States and other applicable
laws and regulations.
c. Assignment. Customer may not assign this Agreement without
Emitrom’s prior written consent which will not be unreasonably
d. Severability. If any part of this Agreement is held to be
unenforceable, in whole or in part, such holding will not affect the
validity of the other parts of the Agreement.
e. Waiver. The waiver of a breach of any provision of this Agreement
will not operate or be interpreted as a waiver of any other or
f. Notices. All notices permitted or required under this Agreement
shall be in writing and shall be delivered in person, by facsimile,
overnight courier service or mailed by first class, registered or
certified mail, postage prepaid, to the address of the party specified
above or such other address as either party may specify in writing,
Attention: Office of the General Counsel. Such notice shall be deemed
to have been given upon receipt.
g. Governing Law. This Agreement will be governed by both the
substantive and procedural laws of North Carolina, U.S.A., excluding
its conflict of law rules and the United Nations Convention for the
International Sale of Goods.
h. United States Government Rights. The Software provided under this
Agreement is commercial computer software developed exclusively at
private expense, and is in all respects the proprietary data belonging
solely to Emitrom or its licensors.
Department of Defense Customers: If the Software is acquired by or on
behalf of agencies or units of the Department of Defense (DOD), then,
pursuant to DOD FAR Supplement Section 227.7202 and its successors (48
C.F.R. 227.7202) the Government's right to use, reproduce or disclose
the Software and any accompanying Documentation acquired under this
Agreement is subject to the restrictions of this Agreement.
Civilian Agency Customers: If the Software is acquired by or on behalf
of civilian agencies of the United States Government, then, pursuant
to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the
Government's right to use, reproduce or disclose the Software and any
accompanying Documentation acquired under this Agreement is subject to
the restrictions of this Agreement.
i. Advertisement. Customer agrees to be identified by name, trade name
and trademark, in any of Emitrom’s marketing materials and web site.
Emitrom may also briefly describe the Customer’s business in said
materials and web site. Customer agrees that Emitrom’s may state
Customer belonging to its list of customers.
j. Data Collection. Emitrom may collect information from Customer’s
system where the Software is used during Development and/or Production
Use. The information collected is not personal in nature, and it
includes (but is not limited to), for example, Customer’s username,
operating system details, and Java Runtime Environment details. The
data collected is used for analytics, and to prevent Software piracy.
Emitrom reserves the right to use the data collected for the purposes
of an Audit, as stipulated in section 2.c, or to enforce this
ENTIRE AGREEMENT. Any amendment or modification to the Agreement must
be in writing signed by both parties. This Agreement constitutes the
entire agreement and supersedes all prior or contemporaneous oral or
written agreements regarding the subject matter hereof. Customer
agrees that (i) any and all Orders will be governed by these Standard
Terms and Conditions and (ii) the appropriate fees will be timely
paid. The terms and conditions of this Agreement shall prevail
regardless of any preprinted or conflicting terms on Orders.
END USER SUPPORT SERVICES ADDENDUM STANDARD TERMS AND CONDITIONS
“Error” means either (a) a failure of the Software to conform to the
specifications set forth in the Documentation, resulting in the
inability to use, or restriction in the use of, the Software, and/or
(b) a problem requiring new procedures, clarifications, additional
information and/or requests for product enhancements.
“Update” means either a software modification or addition that, when
made or added to the Software, corrects the Error, or a procedure or
routine that, when observed in the regular operation of the Software,
eliminates the practical adverse effect of the Error on Customer.
“Upgrade” means a revision of the Software released by Emitrom to its
end user customers generally, during the Support Services Term, to add
new and different functions or to increase the capacity of the
Software. Upgrade does not include the release of a new product or
added features for which there may be a separate charge.
2. Emitrom Customer Support Services. On the Order, Customer may
select either (a) Emitrom Production Support for Production Use
licenses or (b) Emitrom Development Support for Development Use
licenses. Each includes Maintenance Releases and support. Subject to
additional terms and conditions, Customer may also order customized
Support Options and/or Mission Critical Support.
3. Updates. Emitrom will make commercially reasonable efforts to
provide an Update designed to solve or by-pass a reported Error. If
such Error has been corrected in a Maintenance Release, Customer must
install and implement the applicable Maintenance Release; otherwise,
the Update may be provided in the form of a temporary fix, procedure
or routine, to be used until a Maintenance Release containing the
permanent Update is available. Customer shall reasonably determine the
priority level of Errors, pursuant to the following protocols.
After Customer provides Emitrom with notice of an Error, Emitrom will
make commercial best efforts to begin working on a solution to the
reported Error within 12 hours.
4. Maintenance Releases and Upgrades. During the Support Services
Term, Emitrom shall make Maintenance Releases available to Customer
if, as and when Emitrom makes any such Maintenance Releases generally
available to its customers. If a question arises as to whether a
product offering is an Upgrade or a new product or feature, Emitrom’s
categorization will govern, provided that Emitrom treats the product
offering as a new product or feature for its end user customers
5. Conditions for Providing Support. Emitrom’s obligation to provide
Support Services is conditioned upon the following: (a) Customer makes
reasonable efforts to correct the Error after consulting with Emitrom;
(b) Customer provides Emitrom with sufficient information and
resources to correct the Error either at Emitrom’s Customer Support
Center or via remote access to Customer’s site, as well as access to
the personnel, hardware, and any additional software involved in
discovering the Error; (c) Customer promptly installs all Maintenance
Releases; and (d) Customer procures, installs and maintains all
equipment, telephone lines, communication interfaces and other
hardware necessary to operate the Software.
6. Exclusions from Emitrom’s Support Services. Emitrom is not
obligated to provide Support Services in the following situations: (a)
the Software has been changed, modified or damaged (except if under
the direct supervision of Emitrom); (b) the Error is caused by
Customer’s negligence, hardware malfunction or other causes beyond the
reasonable control of Emitrom; (c) the Error is caused by third party
software not licensed through Emitrom; (d) Customer has not installed
and implemented Maintenance Release(s) so that the Software is a
version supported by Emitrom; or (e) Customer has not paid the Support
Services fees when due.
7. Termination of Support Services. Emitrom reserves the right to
discontinue the Support Services should Emitrom, in its sole
discretion, determine that continued support for any Software is no
longer economically practicable. Emitrom will give Customer at least
three (3) months prior written notice of any such discontinuance of
Support Services and will refund any unaccrued Support Services fees
Customer may have prepaid with respect to the affected Software.
Emitrom shall have no obligation to support or maintain any version of
the Software except (i) the then current version of the Software, and
(ii) the immediately preceding version of the Software for a period of
six (6) months after it is first superseded. Emitrom reserves the
right to suspend performance of the Support Services if Customer fails
to pay any amount that is payable to Emitrom under the Agreement
within thirty (30) days after such amount becomes due.
8. Customer Feedback. Customer is not required to, but is encouraged
to, provide comprehensive data to Emitrom in connection with any
reported Error, including any attempts at bug fixes that Customer may
have made, so that the Error may be fixed as soon as practicable and
that code-based solutions may be incorporated into future iterations
of the Software.