THIS SOFTWARE LICENSE AGREEMENT (the “Agreement”) is a legally binding agreement between you (“Licensee”) and Boru, Inc. (“Licensor”) You must accept the terms of this Agreement before accessing or otherwise using the Licensed Material (as defined herein) or any of the services that may be provided by Licensor under this Agreement.
SUBJECT TO THE TERMS and conditions of this Agreement, including Licensee’s payment of any applicable license fees, Licensor grants Licensee a limited, non-exclusive, non-transferable license in the Licensed Materials, as defined below:
I. LICENSED MATERIALS. The software that is the subject of this Agreement shall consist
of the specific software that Licensee purchased from Boru, Inc. and all updates and modifications thereto (hereinafter referred to as the “Licensed Materials”).
II. ACCEPTANCE OF AGREEMENT. Licensee must accept the terms of this Agreement before accessing or otherwise using the Licensed Materials or any of the services that may be provided by Licensor under this Agreement If you do not agree to the terms of the Agreement, you are not granted any rights whatsoever in the Licensed Materials. If you are not willing to be bound by the terms and conditions stated in this Agreement, do not click on the “ACCEPT” button, and do not access or otherwise use the Licensed Materials.
III. INTELLECTUAL PROPERTY RIGHTS. Licensee acknowledges that the copyright and title to the Licensed Materials and any trademarks or service marks relating thereto are and shall remain the exclusive property of Licensor and/or its suppliers. Neither Licensee nor its Authorized Users shall have right, title or interest in the Licensed Materials except as expressly set forth in this Agreement, and Licensee shall so direct and control its Authorized Users. Licensor hereby grants to Licensee and its Authorized Users non-exclusive use of the Licensed Materials and the right to provide the Licensed Materials to Authorized Users in accordance with this Agreement.
IV. AUTHORIZED USERS & AUTHORIZED USES.
A. Licensor grants Licensee and its Authorized Users a limited, non-exclusive, non-transferable license to use the Licensed Materials in the ordinary course of Licensee’s business operations. Authorized Users shall include Licensee’s employees.
B. Licensee will not make copies of the Licensed Materials or allow copies of the Software to be made by others, unless authorized by this License Agreement, except that Licensee may make copies of the Licensed Materials for backup purposes only.
C. Licensee shall not permit anyone other than Authorized Users to use the Licensed Materials.
D. Licensee shall not modify or create a derivative work of or from the Licensed Materials without the prior written permission of Licensor.
E. Licensee shall not remove, obscure or modify any copyright or other notices included in the Licensed Materials.
F. Other than as specifically permitted in this Agreement, Licensee shall not use the Licensed Materials for other commercial purposes, including but not limited to the sale or re-licensing of the Licensed Materials for any reproduction or distribution of the Licensed Materials in any form.
V. CONFIDENTIALITY. Licensor and Licensee agree to maintain and protect the confidentiality of any data relating to the Licensed Materials by Licensee and its Authorized Users. The said parties also agree not to use or exploit for their own profit or gain, any of the Licensed Materials, except as permitted by this Agreement
VI. W ARRANTIES OF LICENSOR.
Licensor warrants that it has the right to license the rights granted under this Agreement to use Licensed Materials, that it has obtained any and all necessary permissions from third parties to license the Licensed Materials, and that use of the Licensed Materials by Licensee and its Authorized Users in accordance with the terms of this Agreement shall not infringe the copyright of any third party. The Licensor shall indemnify and hold Licensee and Authorized Users harmless for any losses, claims, damages, awards, penalties, or injuries incurred, including reasonable attorney’s fees, which arise from any claim by any third party of an alleged infringement of copyright or any other property right arising out of the use of the Licensed Materials by the Licensee or any of its Authorized User in accordance with the terms of this Agreement. This indemnity shall survive the termination of this agreement. NO LIMITATION OF LIABILITY SET FORTH ELSEWHERE IN THIS AGREEMENT IS APPLICABLE TO THIS INDEMNIFICATION.
VII. LIMITATIONS ON LIABILITY. Notwithstanding anything else in this Agreement:
A. Neither party shall be liable for any indirect, special, incidental, punitive or consequential damages, including but not limited to loss of data, business interruption, or loss of profits, arising out of the use of or the inability to use the Licensed Materials.
B. Except for the express warranties stated herein, the Licensed Materials are provided on an “as is” basis, and Licensor disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Licensed Materials or any part thereof, including, without limitation, any and all implied warranties of quality, performance, merchantability or fitness for a particular purpose. Licensor makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb or other such computer program. Licensor further expressly disclaims any warranty or representation to Authorized Users, or to any third party.
VIII. INDEMNITIES. Either party shall indemnify and hold the other harmless for any losses, claims, damages, awards, penalties, or injuries suffered or paid to any third party, including reasonable attorney’s fees, which arise from any alleged breach of this Agreement. The indemnifying party shall have the sole right to defend such claims at its own expense. The other party shall provide, at the indemnifying party’s expense, such assistance in investigating and defending such claims as the indemnifying party may reasonably request. This indemnity shall survive the termination of this Agreement.
A. Injunctive Relief. Remedies at law may be inadequate, and therefore the parties shall be entitled to equitable relief, including without limitation, injunctive relief, specific performance or other equitable remedies in addition to all other remedies provided hereunder or available to the parties at law or equity.
B. Remedies Cumulative. No remedy made available by any of the provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise.
C. Default. Except for payments due hereunder, in the event either party fails to perform as provided herein, such party shall not be in default until the non-defaulting party serves written notice, specifying any such failure to perform. If the party upon whom the notice is served fails to cure within five (5) days then, after the expiration of said five (5) day period, such party shall be deemed to be in default.
X. TERMINATION OF AGREEMENT: Notwithstanding anything herein to the contrary, this Agreement shall terminate and all rights and obligations hereunder, except those which have accrued as a result of the operation of this Agreement, shall cease upon breach of the agreement by either party; upon the bankruptcy or receivership of either party; upon the voluntary or involuntary dissolution of either party; or upon thirty (30) days prior written notice to the other party.
XI. ADMINISTRATIVE PROVISIONS. (A) Assignment and Transfer. Neither party may assign, directly or indirectly, all or part of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. (B) Governing Law. This Agreement shall be interpreted and construed according to, and governed by, the laws of Illinois. (C) Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected. (D) Entire Agreement. This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter hereof, whether oral or written. (E) Amendment. No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Licensor and Licensee.(F) Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. (G) Waiver of Contractual Right Waiver of any provision herein shall not be deemed a waiver of any other provision herein, nor shall waiver of any breach of this Agreement be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
THE PARTIES HAVE executed this Agreement by their respective, duly authorized representatives as of the date first above written.