This Software License Agreement is between you (“Licensee”) and Agile Canine Entries LLC, a Massachusetts limited liability company (the “Licensor”). The effective date of this Agreement is that date Licensee accepts this Agreement. By clicking on the “I agree” (or similar button or checkbox) that is presented to Licensee at the time Licensee enters a License Key (as described below), Licensee indicates its assent to be bound by this Agreement.
Recitals
Licensor owns [name of desktop portion of software] (the “Software”), which Licensee desires to utilize in connection with certain other software offered by Licensor.
Agreement
1. LICENSE GRANTED
Subject to the terms and conditions of this Agreement and in consideration of Licensee’s obligation to pay monetary fees as outlined in the Software Services Agreement entered into simultaneously herewith, which fees which may be adjusted from time to time by mutual written consent of the parties, Licensor hereby grants, and Licensee hereby accepts, a non-exclusive, nontransferable license to use the Software on one personal computer using the most current version of the Microsoft Windows operating system for the Term (as defined below), in object code form, within the United States. Licensor does not grant permission to Licensee to create customizations, updates, corrections or other modifications to the Software. The parties agree that Licensor shall continue to own all right, title and interest in and to the Software and all intellectual property rights embodied therein or related thereto including, but not limited to, the source and object codes and any customizations, updates, corrections and modifications to the Software. Except as expressly provided herein, no intellectual property rights are granted to Licensee by implication, estoppel, or otherwise. In order to utilize the Software, Licensee acknowledges that it must provide a License Key (a software licensing management and security tool or other device that Licensor uses to allow Licensee access to the Software, which may have an expiration date) that it obtains from Licensor. Licensor will deliver applicable License Keys upon receipt of payment of applicable fees.
2. SOFTWARE PROVIDED “AS IS”
Licensor warrants that it has the right to provide the Software to Licensee hereunder.
OTHERWISE, THE SOFTWARE IS PROVIDED “AS IS” AND LICENSOR MAKES NO OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Without limiting the foregoing, Licensor makes no warranties or representations that the Software is free of errors or defects, that it adequately performs the functions it is intended to perform or, since systems differ, that it is operable on any particular hardware and software configuration Licensee may use.
Licensor is under no obligation to update or correct defects or errors in the Software. If Licensor does provide Licensee with updates or corrections, the terms and conditions of this Agreement shall apply.
3. CERTAIN SERVICES
Licensor does not provide general IT support services. However, upon payment of the License and Service Fees, Licensor will provide Licensee with the following services:
- installation of the Software on one personal computer on which the then-current version of the Microsoft Windows operating system is installed; and
- installation of Software updates during the Term.
The Software Services Agreement covers additional services and fees related to the Software and related software offered by the Company for managing entries into canine agility trials.
4. REPRESENTATIONS AND WARRANTIES OF LICENSEE
Licensee is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, with full corporate power and authority to enter into and perform its obligations under this Agreement. The execution, delivery and performance by Licensee of this Agreement has been duly authorized by all necessary action on the part of it and its owners. This License has been duly executed and delivered by Licensee and is enforceable against Licensee in accordance with its terms. The representations and warranties of Licensee contained herein shall survive the execution and delivery of this Agreement.
5. PROPERTY RIGHTS; RESTRICTIONS ON USE; CONFIDENTIALITY
Licensee recognizes that the Software, and customizations, updates, corrections or other modifications, if any, are the property of, and all rights thereto, are owned by Licensor. Licensee also acknowledges that such are a trade secret of Licensor, are valuable and confidential to Licensor, and that its use and disclosure must be carefully and continuously controlled.
Title to the Software, and customizations, updates, corrections and other modifications, if any, shall at all times remain with Licensor.
Licensee shall keep the Software, and customizations, updates, corrections and modifications, if any, free and clear of any claims, liens and encumbrances attributable to the use or possession of the Software by Licensee. Any act of Licensee, whether voluntarily or involuntarily, purporting to create a claim of encumbrance shall be void.
The Software is for the sole use of Licensee and shall be used only for the purpose set forth in this Agreement.
Licensee shall treat the Software, and customizations, updates and/or corrections, if any, as confidential and proprietary, and shall protect it in the same manner that it protects the confidentiality of its own information. While this Agreement is in effect, or while Licensee has custody and possession of the Software, Licensee will not:
- provide or make available the Software to any person or entity other than employees of Licensee who have a need to use the Software on behalf of Licensee’s in accordance with this Agreement;
- reproduce, modify, adapt or create derivative works of any part of the Software;
- rent, lease, distribute, sell, sublicense, transfer, or provide access to the Software to a third party other than in connection with Licensor’s other Software being used by Licensee;
- use the Software for the benefit of any third party other than in connection with Licensor’s other Software being used by Licensee;
- incorporate the Software into a product or service Licensee provides to a third party other than in connection with Licensor’s other Software being used by Licensee;
- interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit your use;
- create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering, decompiling or otherwise, the source program or any part thereof from the object program or other information made available to Licensee pursuant to this Agreement or any of the underlying ideas, algorithms, file formats or non-public APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to Licensor);
- remove or obscure any proprietary or other notices contained in the Software;
- use the Software for competitive analysis or to build competitive products; or
- encourage or assist any third party to do any of the foregoing.
Licensee agrees to promptly notify Licensor if it obtains information as to any unauthorized possession, use or disclosure of the Software by any person or entity, and further agrees to cooperate with Licensor in protecting Licensor’s proprietary rights.
Licensee is responsible for its own hardware, network and Internet connections and other software needed to operate its business and utilize the Software.
If Licensee, its officers, agents, or employees, breach any provision of this Agreement, such breach must be cured within thirty (30) days of receipt of Licensor’s written notice describing such breach. If such breach is not cured within the thirty (30) days after receipt of the notice, (i) Licensee shall pay Licensor reasonable monetary payments for loss and/or damages related to such breach and (ii) Licensor may terminate this License immediately upon notice to Licensee.
6. TERM
The license subject to this Agreement shall continue until 12 months from entering the license key or until earlier terminated pursuant to Section 5. The term “Term” means the period commencing on the date hereof and ending on the date at which the license is no longer in effect pursuant to the preceding sentence. At the end of the Term, Licensee shall cease using the Software and shall delete it from all devices on which it is installed. Licensee acknowledges that the License Key may be deactivated at the end of the Term.
Termination of this Agreement shall not relieve either party of its obligations pursuant to Sections 2, 4, 5, 6 and 7 hereof.
7. INDEMNIFICATION AND LIMITATION OF LIABILITY
Licensee agrees to indemnify and hold Licensor harmless from and against any and all losses, damages, costs and expenses (including reasonable attorney’s fees and expenses) (collectively, “Claims”) arising out of a claim by a third party against Licensor based upon Licensee’s use of the Software.
Licensor shall have no liability to Licensee for any damage sustained by Licensee as a result of Licensee’s use of the Software, whether such damages would arise as a result of breach of contract, tort or otherwise.
Licensor warrants that the use of the Software will not infringe any patent, copyright, or trademark in the United States or elsewhere, and Licensor shall indemnify and hold Licensee harmless against any and all Claims that Licensee may sustain or incur as a result of a breach of this warranty.
The party required to provide indemnification hereunder is referred to as an “Indemnifying Party,” and the person or entity entitled to be indemnified hereunder is referred to as an “Indemnified Party.” An Indemnified Party will promptly notify the relevant Indemnifying Party of the assertion against it or, to its knowledge, any other person, of any Claim. Promptly after receipt by an Indemnified Party of notice of any Claim (whether directly or indirectly), such Indemnified Party will, if a claim is to be made hereunder against an Indemnifying Party in respect thereof, so notify the Indemnifying Party in writing; provided, that (i) the omission to so notify the Indemnifying Party will not relieve it from any liability that it may have hereunder except to the extent it has been materially prejudiced by such failure and (ii) the omission to so notify it will not relieve it from any liability which it may have to an Indemnified Party other than on account of these indemnification provisions. In case any Claims are brought against any Indemnified Party and it notifies an Indemnifying Party of the commencement thereof, then the Indemnifying Party may elect by written notice delivered to the Indemnified Party to assume the defense thereof with counsel reasonably satisfactory to such Indemnified Party; provided that if the defendants in any proceedings arising out of Claims include both an Indemnified Party and an Indemnifying Party, and the Indemnified Party has concluded that there may be legal defenses available to it which are additional to or conflicting with those available to the Indemnifying Party, the Indemnified Party will have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such proceedings on behalf of such Indemnified Party. Upon receipt of notice from an Indemnifying Party to such Indemnified Party of its election to so assume the defense of such Claims and approval by the Indemnified Party of counsel, the Indemnifying Party will not be liable to such Indemnified Party for expenses incurred by the Indemnified Party in connection with the defense thereof unless (i) the Indemnified Party has employed separate counsel in connection with the assertion of conflicting legal defenses in accordance with the immediately preceding sentence, (ii) the Indemnifying Party has not employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party reasonably promptly after notice of the Claims or (iii) the Indemnifying Party has authorized in writing the retention of counsel for the Indemnified Party. The Indemnifying Party will not enter into a waiver, release or settlement of any Claim without the prior written consent of the Indemnified Parties unless such settlement (i) involves the payment of money only, which the Indemnified Party pays, and (ii) such waiver, release or settlement includes an unconditional release of such Indemnified Parties, as the case may be, from all liability arising out of such Claim. The parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such Claim, subject, as applicable, to the execution and delivery of a mutually acceptable joint defense agreement.
8. FORCE MAJUERE
Either party shall be excused from failures or delays in delivery or performance hereunder if such failure or delay is attributable to causes beyond the reasonable control of the party, which makes such performance or delivery commercially impractical. In the event of any such delay, the time of delivery or performance and time of payment shall be extended for a period of time equal to the time lost by reason of such delay (unless otherwise specified in writing between the parties hereto).
9. NOTICES
All notices shall be in writing and shall be deemed to be delivered when deposited in the United States Postal Services, postage prepaid, return receipt requested. All notices shall be directed to Licensee or to Licensor, its successors or assigns, at the respective addresses set forth on the signature page of this Agreement or to such other address as one party may, from time to time, designate by notice to the other party.
10. RELATIONSHIP OF THE PARTIES
This Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
11. PUBLICITY
No public press announcement related this Agreement may be made unless mutually agreed to in writing by the Parties.
12. WAIVER
No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
13. COMPLETE AGREEMENT
This Agreement constitutes the complete and exclusive statement of this agreement between the parties hereto and supersedes any and all prior express implied agreements or understandings between the parties hereto concerning the subject matter hereof. No amendment, waiver or other alteration of this Agreement may be made except by mutual agreement in writing.
If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected thereby and the parties shall negotiate replacement provisions for those provisions which are held invalid, illegal or unenforceable which as closely as possible express the intent of those provisions.
14. RESTRICTIONS ON TRANSFER
This Agreement and the rights and obligations under this Agreement shall not be transferable, sublicensable or assignable to any other person, firm or corporation by Licensee, by contract, merger, operation of law or otherwise, without the express prior written consent of the Licensor. The rights and obligations of this Agreement shall insure to the benefit of and be binding upon the parties hereto, their successors and permitted assigns.
15. GOVERNING LAW
This Agreement shall be construed in accordance with the internal laws of the Commonwealth of Massachusetts, without regard to its conflicts of law rules.
16. NO CONSTRUCTION AGAINST THE DRAFTER
The parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.
17. HEADINGS
The various headings in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any paragraph or provision hereof.
Exhibit A
License and Service Fees
| Description | Amount |
| Software Installation and Upgrade Fee | $ 100 |
| Annual Renewal for Ongoing Updates and Maintenance | $ 25 |
| Online Service Fee per Dog per Trial | $ 1 |
| Website Support per Hour | $ 30 |
Licensor may change fees at any time upon thirty (30) days prior notice, which may be communicated in a physical or electronic writing