MASTER LICENSE AGREEMENT
This Master License Agreement (this “Agreement”) together with each Order Form governs Licensee’s (as defined on the Order Form) use of and access to the Software provided by Davisware, LLC, an Delaware limited liability company located at 514 Market Loop, Suite 111, West Dundee, Illinois 60118 (“Davisware”). This Agreement takes effect when Licensee executes the Order Form or, if earlier, when Licensee uses or accesses the Software (the “Effective Date”). Davisware and Licensee are collectively referred to as the “Parties” and individually as a “Party” in this Agreement. Please see Section 1 of this Agreement for definitions of certain capitalized terms used in this Agreement.
Recitals. Davisware is the owner of certain proprietary computer Software, more specifically described on Licensee’s Order Form. Davisware desires to provides Licensee access and Licensee desires access to the Software and, if applicable, the Subscription to the Software for a specific Term.
NOW THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth below, and for other good and valuable consideration, the receipt, sufficiency and adequacy of which consideration is hereby accepted and acknowledged, the Parties, intending to be legally bound, agree as follows.
(a) "Authorized User" shall mean Licensee's employees, consultants, contractors, and agents who are authorized by Licensee to access and use the Software and, if applicable, the Subscription to the Software under the rights granted to Licensee pursuant to this Agreement and as more specifically set forth on an Order Form.
(b) “Documentation” shall mean Davisware’s standard and then current training materials, user manuals, handbooks, guides and technical specifications for the Software as set forth on the Order Form.
(c) “Fees” shall have the meaning set forth in the Order Form and Section 5(a) hereof.
(d) “Increase in CPI” shall mean the unadjusted percentage increase, if any, in the Consumer Price Index for All Urban Consumers: U.S. City Average, All Items (“CPI-U”) for the month of the Effective Date when compared to the CPI-U for the Reference Month for the preceding calendar year, based upon the specific CPI-U data published by the United States Bureau of Labor Statistics (“BLS”) on its website located at https://www.bls.gov/cpi/ (or any BLS successor website).
(e) “Location” shall mean the physical office of Licensee and as set forth in an Order Form, which will use the Software.
(f) “Maintenance” shall mean Davisware’s standard and then current maintenance and support for the Software as more specifically set forth on the Order Form and Section 7 hereof.
(g) “Perpetual License” shall mean the on premise license of the Software more specifically described in Section 2(a)(ii) hereof, the Documentation and the Order Form.
(h) “Order Form” shall mean the Davisware order form that sets forth the Licensee name and contact information, Subscription (if applicable), Perpetual License (if applicable), Software, payment information, term, and such other terms and conditions, attached hereto and incorporated herein by this reference, and shall be subject to and governed by the terms and conditions of this Agreement.
(i) “Software” shall mean the then-current version (inclusive of any Updates, Upgrades or modifications thereto) of those computer program modules and accompanying graphical user interfaces available solely through this Agreement and as described in the Order Form.
(j) "Standard Implementation Scope of Services" shall mean the standard and then current scope of implementation services provided by Davisware to Licensee as referred to in Section 7(b) and the Order Form.
(k) “Subscription” shall mean the paid subscription to the Software pursuant to Section 2(a)(i) hereof via a Davisware controlled access website and as more specifically described in the Documentation and Order Form.
(l) The “Term” and any renewal rights of this Agreement shall have the meaning set forth in Subsection 10(a) and the Order Form.
(m) “Updates” shall mean shall mean updates, patches, bug fixes, feature fixes and minor software enhancements and compatibility (but excluding Upgrades) of the Software that Davisware releases commercially and as determined by Davisware in its sole discretion.
(n) “Upgrades” shall means a new version of the software that offers a significant change or major improvement over the current version of the Software and as determined by Davisware in its sole discretion.
2. Access and Use; Intellectual Property Ownership and Rights; Feedback
(a) License Grant.
(i) Subscription. If the Software is licensed pursuant to a Subscription as set forth in an Order Form, then subject to and conditioned on Licensee’s timely payment of Fees and compliance with the terms and conditions of this Agreement, Davisware hereby grants to Licensee and its Authorized Users the restricted, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Software and Documentation via the Subscription solely for Licensee’s internal business purposes and solely as listed in the Order Form.
(ii) Perpetual License. If the Software is licensed pursuant to a Perpetual License as set forth in an Order Form, then subject to and conditioned on Licensee’s timely payment of Fees and compliance with the terms and conditions of this Agreement, Davisware hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, single-installation, single Location, perpetual (except as provided herein) license to use the Software and Documentation via the Perpetual License solely for Licensee’s internal business purposes, and solely as listed in the Order Form.
(b) Licensee acknowledges that all right, title, and interest in and to the Software, together with its codes, sequences, derivative works, organization, structure, interfaces, any documentation, data, trade names, trademarks, or other related materials (collectively, the “Davisware IP”), is, and at all times shall remain, the sole and exclusive property of Davisware. Except for the rights to access and use the Software and Documentation as expressly provided herein, this Agreement does not grant to Licensee any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the Software.
(c) If Licensee or any of its employees, consultants, agents or contractors sends or transmits any communications or materials to Davisware by mail, email, telephone, or otherwise, suggesting or recommending changes to the Davisware IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Davisware is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to Davisware on Licensee's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Davisware is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Davisware is not required to use any Feedback.
(d) Licensee shall not use the Software or the Subscription (if applicable) for any purposes beyond the scope of the access granted in this Agreement. Licensee shall not at any time, attempt, directly or indirectly, to allow any third party to attempt to (i) copy, modify, or create derivative works of the Software, Subscription (if applicable) or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, Subscription (if applicable) or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, Subscription (if applicable) or Documentation, in whole or in part; (iv) remove any proprietary notices from the Software, Subscription (if applicable) or Documentation; or (v) use the Software, Subscription (if applicable) or Documentation 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.
(e) Davisware 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 Davisware IP.
(f) Notwithstanding anything to the contrary in this Agreement, Davisware may temporarily suspend Licensee's and any Authorized User's access to any portion or all of the Software, Maintenance or, if applicable, the Subscription if: (i) Davisware reasonably determines that (A) there is a threat or attack on any of the Davisware IP; (B) Licensee's or any Authorized User's use of the Davisware IP disrupts or poses a security risk to the Davisware IP or to any other customer or vendor of Davisware; (C) Licensee, or any Authorized User, is using the Davisware IP for fraudulent or illegal activities; (D) subject to applicable law, Licensee has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Davisware’s provision of the Software, the Maintenance or, if applicable, the Subscription to Licensee or any Authorized User is prohibited by applicable law; (ii) any vendor of Davisware has suspended or terminated Davisware’s access to or use of any third-party services or products required to enable Licensee to access the Subscription (if applicable), the Maintenance or the Software; or (iii) in accordance with Section 5 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Davisware shall use commercially reasonable efforts to provide written notice of any Service Suspension to Licensee and to provide updates regarding resumption of access to the Subscription (if applicable), the Maintenance or the Software following any Service Suspension. Davisware shall use commercially reasonable efforts to resume providing access to the Subscription (if applicable), the Maintenance or the Software as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Davisware will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Licensee or any Authorized User may incur as a result of a Service Suspension.
(g) The provisions of Subsections 2(b)-(f) hereof shall survive termination of this Agreement.
3. Licensee Responsibilities; Licensee Information; Confidentiality
(a) Licensee is responsible and liable for all uses of the Software, Documentation, Maintenance and, if applicable, the Subscription or resulting from access provided by Licensee to any Authorized User or third party, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Licensee will be deemed a breach of this Agreement by Licensee. Licensee shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Software, Documentation, Maintenance and, if applicable, the Subscription and shall cause Authorized Users to comply with such provisions.
(b) Licensee will retain ownership of all right, title and interest in and to all Licensee data, information and other content provided by Licensee or any of its Authorized Users that is input and stored in Software (collectively, “Licensee Information”). During the Term, Davisware may receive access to the Licensee Information. Licensee represents and warrants that it has complied with all applicable data protection laws and will obtain, all right, title, and interest in and to any Licensee Information provided hereunder, which may be necessary for Davisware to process such Licensee Information for the purposes set forth herein, including in connection with the analysis and monitoring of Licensee’s and its Authorized Users’ use of the Software and the Subscription (if applicable) and in connection with the legitimate non-commercial business and information security operations of Licensee. Davisware will follow industry standards to protect the security and integrity of the Licensee Information, and it will provide Licensee reasonably requested documentation of these processes and any security reviews or audits made of Davisware’s systems. Davisware will use the Licensee Information solely to provide the Subscription, Software, and associated services under this Agreement. Davisware will back up the Licensee Information consistent with Davisware’s then current Backup and Disaster Recovery Plan. Davisware shall protect Licensee Information and Licensee’s account with Davisware consistent with Davisware’s then current Security Policy.
(c) From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information that is marked, designated or otherwise identified as "confidential" or by its nature should reasonably be deemed to be "confidential” (collectively, "Confidential Information"). Licensee Information shall be deemed Licensee Confidential Information and the Software, the Fees and Documentation shall be deemed Davisware Confidential Information. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain, (b) known to the receiving Party at the time of disclosure, (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party, or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees, contractors or representatives who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and if requested by the disclosing Party, certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
(d) Davisware may create statistical reports relating to the Software or, if applicable, the Subscription utilizing transaction data, so long as such reports contain only anonymous data that does not identify Licensee or any specific transaction data, and such reports may be reported publicly. Davisware may, from time to time, offer benchmarking programs to facilitate deeper analysis into commercial trends for companies wishing to participate. If applicable Davisware will use commercially reasonable efforts to operate benchmarking programs according to standards that protect the confidentiality of each Licensee’s information.
4. Upgrades, Updates, Modifications.
(a) Updates and Upgrades. During the Term, if you have purchased Maintenance and are current on all of your Fees or if you have purchased a Subscription and are current on all of your Fees, Davisware will provide Licensee with Updates without additional fees and will provide Upgrades, with or without additional fees as determined by Davisware in its sole discretion. To the extent there are any fees associated with such Upgrade, the Parties will enter into a written amendment setting forth the pricing and description of the applicable Upgrade. The Software may be updated automatically once a new Update or Upgrade is available. Updates and Upgrades will become part of the Software and will be subject to the provisions of Section 2 above and the other provisions of this Agreement.
(b) Modifications. If Licensee desires to make any modifications to the Software, the Parties will enter into an Order Form or a written amendment setting forth the pricing and description of the modifications. All Software is provided in English and if another language is needed, then Davisware will provide a quote on the Order Form for translation at Licensee's expense.
5. Fees and Payment
(a) Fees. Licensee will pay Davisware license, maintenance, or, if applicable, subscription fees (the “Fees”) at such times and in such amount as set forth in the Order Form without offset or deduction. If Licensee fails to make any payment when due, without limiting Davisware's other rights and remedies: (i) Davisware may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Licensee shall reimburse Davisware for all reasonable costs incurred by Davisware in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for five (5) days beyond the due date, Davisware may suspend Licensee's and its Authorized Users' access to any portion or all of the Software, Maintenance or Subscription (if applicable) until such amounts are paid in full. After the initial twelve (12) months of the Term, the Fees shall increase each 12 month period by up to the greater of (i) 5% or (ii) the Increase in CPI to account for inflation, development enhancements, increased costs of doing business, and otherwise.
(b) Taxes. 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 Davisware's income.
(c) Travel Expense Recovery. Any pre-approved and reasonable travel and entertainment expenses incurred on behalf of this Agreement will be charged-back to Licensee without markup and will be payable within 30 days of a correct invoice.
6. Warranties; Disclaimer of Warranties
(a) Function. For the period of twelve (12) months from the Effective Date, Davisware warrants that the Software when accessed in accordance with the Documentation and the terms and conditions of this Agreement will perform materially as described in the Documentation. In the event of breach of the warranty in this Subsection 6(a), Davisware will promptly repair the Software or replace it with software of substantially similar functionality. The remedies set forth in this Subsection 6(a) are exclusive and Licensee's sole remedies and Davisware’s sole liability under the limited warranty set forth in this Section 6(a).
(b) Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement.
(c) Right to Grant License. Davisware hereby warrants that it has the right to grant to Licensee access and use of the Software or, if applicable, the Subscription in accordance with this Agreement.
(d) Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN THIS SECTION 6, DAVISWARE IP (INCLUDING THE SOFTWARE AND SUBSCRIPTION) IS PROVIDED "AS IS" AND DAVISWARE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6(A), DAVISWARE MAKES NO WARRANTY OF ANY KIND THAT THE DAVISWARE IP (INCLUDING THE SOFTWARE AND SUBSCRIPTION), OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'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, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(e) Davisware provides no warranty regarding, and will have no responsibility for, any claim arising out of: (i) a modification of the Software made by anyone other than Davisware, unless Davisware approves such modification in writing; or, (ii) use of the Software in combination with hardware, software, or other technology not provided by Davisware: (A) that is forbidden by the Documentation; or, (B) that is not designated in the Documentation as available for interface with the Software, unless such hardware or software is a host computer, operating system, or other type of hardware or software necessary for the Software to perform a function listed in the Documentation.
7. Maintenance; Implementation Services.
(a) Support and Maintenance. Subject to the terms and conditions of this Agreement, Licensee shall have access from time to time to the Maintenance services described on the Order Form.
(b) Implementation Services. Subject to the terms and conditions of this Agreement, Davisware shall provide the Standard Implementation Scope of Services to Licensee as described on the Order Form.
(a) Davisware Indemnification.
(i) Davisware shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Licensee resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Software or any use of the Subscription in accordance with this Agreement, infringes or misappropriates such third party's US patents, copyrights, or trade secrets.
(ii) If such a claim is made or appears possible, Licensee agrees to permit Davisware, at Davisware's sole discretion, to (A) modify or replace the Software, or component or part thereof, to make it non-infringing, or (B) obtain the right for Licensee to continue use. If Davisware determines that neither alternative is reasonably available, Davisware may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee.
(iii) This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) Licensee’s violation of this Agreement; (B) revisions to the Software made by a party other than Davisware or Davisware’s designee, or without Davisware’s written consent; (C) Licensee Information; (D) Licensee’s failure to incorporate Updates, Upgrades or modifications that would have avoided the alleged infringement; (E) use of the Software in combination with hardware, software, or technology not provided by Davisware: (i) that is specifically forbidden by the Documentation; or (ii) that is not designated in the Documentation as available for interface with the Software, unless such hardware or software is a host computer, operating system, or other type of hardware or software necessary for the Software to perform a function listed in the Documentation.
(b) Licensee Indemnification. Licensee shall indemnify, hold harmless, and, at Davisware's option, defend Davisware from and against any Losses resulting from any Third-Party Claim that the Licensee Information, or any use of the Licensee Information in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights and any Third-Party Claims based on Licensee's or any Authorized User's (i) gross negligence or willful misconduct; (ii) use of the Software or Subscription in a manner not authorized by this Agreement; (iii) use of the Software or Subscription in combination with data, software, hardware, equipment or technology not provided by Davisware or authorized by Davisware in writing; or (iv) modifications to the Software or Subscription not made by Davisware.
(c) Indemnification Procedures. Each Party shall promptly notify the other Party in writing of any Third-Party Claim for which such Party believes it is entitled to be indemnified pursuant to Section 8(a) or Section 8(b). The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such Third-Party Claim and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Third-Party Claim on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Third-Party Claim, the Indemnitee shall have the right, but no obligation, to defend against such Third-Party Claim, including settling such Third-Party Claim after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 8(c) will not relieve the Indemnitor of its obligations under this Section 8, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
(d) SOLE REMEDY. THIS SECTION 8 SETS FORTH CUSTOMER'S SOLE REMEDIES AND DAVISWARE'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR SUBSCRIPTION INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9. LIMITATION OF LIABILITY. IN NO EVENT WILL DAVISWARE 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 DAVISWARE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL DAVISWARE’S 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 DAVISWARE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Term & Termination
(a) Term. Unless terminated earlier pursuant to this Agreement's express provisions, this Agreement will remain in effect from the Effective Date through the period set forth in the Order Form (“Term”); provided that Licensee will renew the term for successive twelve (12) month periods (“Renewal Term”) upon Davisware’s prevailing terms and conditions unless either Party provides written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current term.
(b) Termination. Either Party may terminate this Agreement (i) effective on written notice if the other Party materially breach this Agreement, and such breach (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. In the event Licensee terminates this Agreement pursuant to this paragraph, it shall be entitled to a pro rata refund of any prepaid fees. Notwithstanding anything to the contrary contained herein, Davisware may terminate this Agreement for convenience and without further liability upon sixty (60) days prior notice to Licensee, provided however, Licensee shall be entitled to a pro rate refund of any prepaid fees.
(c) Effects of Termination. Upon termination of this Agreement, access to the Software and, if applicable, the Subscription will terminate and Licensee will cease all use of the Software. The following provisions will survive termination of this Agreement: (i) any obligation of Licensee to pay for the Subscription before termination; (ii) Subsections 2(b)-(f), 8 and Section 9 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose. Upon Licensee’s request, Davisware will provide, at Licensee’s reasonable cost and expense, reasonable assistance services to assist Licensee in the transfer and migration of the Licensee Information to Licensee or another third party provider, for a period not to exceed 90 days following the expiration or termination of this Agreement for any reason.
(a) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Subsection 11(a)). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(b) Independent Contractors. 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.
(c) No Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(d) Force Majeure. Davisware shall not be liable for any delay or failure to perform its obligations due to circumstances beyond Davisware’s control, such circumstances to include without limitation natural disasters, terrorism, labor disputes, war, declaration of governments, transportation delays, computer and/or network failures, acts of civil or military authorities, interruptions in third-party telecommunications or internet equipment or service, or misuse of the Subscription or the Software by Licensee.
(e) Assignment & Successors. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that Davisware may assign this Agreement to the surviving or acquiring party in a sale of substantially all the assets of or a merger of Davisware into another entity. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. Except to the extent forbidden by this Subsection 11(e), this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
(f) Governing Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Illinois, without effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Illinois. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Illinois in each case located in the City of Chicago and County of Cook, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated.
(h) Non-Solicitation. Licensee agree that, for a period ending twelve (12) months following termination of this Agreement, neither it, nor its controlled affiliates, will, directly or indirectly, solicit for employment any individual employed by Davisware during the Term, provided, however, that the foregoing restriction on solicitations shall not restrict general solicitation of employment through advertisements or similar means that are not directed specifically at such employees.
(i) Execution in Counterparts. This Agreement may be executed in one or more counterparts, each of which counterpart will be deemed an original, but all such counterparts will constitute a single instrument.
(j) Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
(l) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 3(c) (Confidentiality) or, in the case of Licensee, Section 2(d) (Use Restrictions) would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(m) Export Regulation. The Subscription utilizes software and technology that 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 Subscription or the underlying software or technology to, or make the Subscription or the underlying software or technology 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 Subscription or the underlying software or technology available outside the US.
(n) Public Announcement and Use of Licensee Name and Logos. Upon execution of this Agreement, the Parties agree to develop and issue a mutually agreeable press release announcing this transaction. Davisware may also use Licensee’s name and logos in its marketing and advertising materials, including, but not limited to, on its website and in its investor decks.