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Software User License Agreement

  1. Applicable Law; Definitions.  This End User License Agreement (“Agreement”), the definition of terms used, performance hereunder, and the interpretation of this Agreement shall be governed by and construed in accordance with the laws, other than the conflicts of laws rules, of the state of Arizona.  If the Uniform Computer Information Transaction Act (“UCITA”) is enacted as part of the law of the state of Arizona, such statute will not govern any aspect of this Agreement, any license granted hereunder or any of the parties’ rights and obligations arising under this Agreement. "Confidential Information" means any non-public information or documentation provided by Supplier under this Agreement, including but not limited to Software, documentation, and information pertaining thereto.  "End- User Customer" means the final licensor of Software who licenses for their use.  "Agreement" means this document. "Software" means Supplier’s proprietary Software and any third party proprietary software components licensed to Customer pursuant to this Agreement. "Terms" means, collectively, the terms and conditions set forth below and on the front of this Agreement.

  2. Agreement.  This Agreement constitutes an acceptance of Customer’s offer to license Software contingent and consistent upon the Terms contained herein. Any terms or conditions proposed by Customer inconsistent with or in addition to the Terms shall be void and of no effect, unless specifically agreed to in a signed writing by an authorized Supplier representative.  Payment for Software by Customer or furnishing of the Software by Supplier, in whole or in part, shall constitute a binding agreement on the Terms of this Agreement. The failure of Supplier to insist upon performance of this Agreement, to enforce any of the Terms of this Agreement or other purchase orders from Supplier, or to exercise any right or privilege granted to Supplier under this Agreement or under law, shall not be construed as a waiver and the same shall continue in full force and effect.

  3. License Grant. Subject to Customer's compliance with the terms of this Agreement, Supplier grants to Customer a non-exclusive, non-transferable, perpetual license to install, use and execute the Software in object code form on a per-license basis consistent with the licensing scheme applicable to the type of software purchased on this Agreement at the location specified on the PSOF (“Software License”) as may be changed by Customer from time to time upon prior written notice to Supplier, such Software License limited to the site(s), number of seats, concurrent users, agents, servers, ports, devices, managed applications, and/or copies as applicable to the Software obtained, not to exceed the number of licenses set forth on PSOFs placed pursuant to this Agreement.  The Software License shall become effective upon Delivery of the Software and shall remain in force unless terminated pursuant to Section 12 of this Agreement.  This right does not include permission to grant sub-licenses or otherwise transfer such rights.  The Customer may make one (1) copy of the Software for non-productive archival purposes only, provided that it retains or affixes the equivalent of Supplier's proprietary legend and copyrights to the copy.  Additionally, the Customer may make several copies of the system documentation, excluding training manuals and materials, provided that they are for internal use only.  Customer may not reverse engineer, disassemble or otherwise translate the Software provided pursuant to this Agreement.  Supplier, or any third party that owns the Software License, retains exclusive title to and all rights to the Software. The Customer acknowledges that the Software and documentation are the property of Supplier and that the only right that the Customer obtains to the Software is the right of use in accordance with the terms of this Agreement. To assist Supplier in the performance of its duties under this Agreement and in the protection of its proprietary rights, Customer hereby authorizes a Supplier representative to enter Customer's premises, physically or electronically, and inspect the Software License at reasonable times with prior notice. 

  4. Compliance with Laws. Customer shall comply with all applicable laws, including, without limitation, the export control laws and regulations of the United States of America and those countries involved in transactions concerning the exporting of Software purchased under the terms and conditions or the control or regulation of the exportation of products or technical data supplied to Customer by Supplier.  Customer will be responsible to pay all taxes, tariffs and duties.  Customer shall comply with the United States Foreign Corrupt Practices Act and shall indemnify Supplier from Customer’s violations of such Act. The United Nations Convention on the International Sale of Goods (CISG) is specifically excluded and shall not apply to any transaction contemplated herein.

  5. Limited Warranty. Supplier warrants to Customer that Software will perform in every material respect according to the published specifications for a period of thirty (30) days from Delivery. However, neither Supplier nor its third-party supplier’s warrant Software will meet Customer's requirements or that the Software operation will be uninterrupted or error-free. Remedies for Software defects reported during the warranty period consist of (and are limited to), at Supplier’s option, repairing, replacing or refunding the purchase price of the Software. This warranty is contingent upon the proper use and application of the Software in accordance with Supplier’s instructions.  The warranty does not (i) cover the Software if modified by anyone other than Supplier; (ii)  apply if Software warranty support is requested as a result of accident, neglect, or operating conditions exceeding specifications; (iii) cover malfunctions caused by defects in or incompatibility to Customer's computer system or equipment; (iv) cover malfunctions caused by defects in or arising from the installation, repair, or programming of the Software other than by Supplier; and (v) apply if Customer has rejected or not used any Software corrections, updates, or modifications supplied or made available by Supplier. THE WARRANTIES HEREIN DO NOT APPLY TO THIRD-PARTY SOFTWARE FURNISHED BY SUPPLIER UNDER THIS AGREEMENT, AND SUCH PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS.  AS APPLICABLE, SUPPLIER AGREES TO ASSIGN ANY WARRANTY IT MAY HAVE WITH RESPECT TO THIRD-PARTY SOFTWARE TO CUSTOMER, AND CUSTOMER AGREES TO PROCEED DIRECTLY AND EXCLUSIVELY AGAINST THE THIRD-PARTY SUPPLIER AS TO ANY CLAIMS OF WARRANTY.  THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY,  FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. 

  6. Limitation of Liability.  SUPPLIER’S LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO, AT SUPPLIER’S OPTION, REPAIR OR REPLACEMENT OF THE DEFECTIVE SOFTWARE.  IN NO EVENT WILL SUPPLIER BE LIABLE FOR DAMAGES IN EXCESS OF the fees paid PURSUANT TO AN ORDER THAT FORMS THE BASIS OF THE CLAIM.  IN NO EVENT SHALL SUPPLIER BE LIABLE OR RESPONSIBLE FOR ANY REPROCUREMENT COSTS, LOSS OF PROFITS, LOSS OF USE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND, WHETHER IN AN ACTION OF CONTRACT OR TORT, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.  THIS LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.  NO ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION HEREUNDER MAY BE BROUGHT AGAINST SUPPLIER MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION HAS ARISEN.

  7. Relationship of the Parties.  Each party acknowledges that they are independent contractors, and that the relationship between Supplier and Customer is that of manufacturer/Customer.  Neither party shall in any way represent or obligate the other party to any contract, term, or condition, nor may it represent the other party as agent, employee, franchisee, or in any other capacity.  Customer is expressly prohibited from making representations to other third parties regarding Supplier or the Software and Services in excess of or contrary to representations contained in Supplier’s or its third-party supplier's product specifications, brochures, newsletters, and other publications provided to Customer by Supplier.  Nothing in this Agreement shall be construed to limit either party's right to independently develop or distribute products which are functionally similar to the other party's products, so long as Confidential Information of the other party is not used in such development or distribution.

  8. Assignment. Neither this Agreement nor any rights under it may be assigned by Customer without Supplier’s prior written consent. Any unauthorized assignment by Customer shall be void.  Supplier may assign the Agreement, in whole or in part, upon thirty (30) days’ notice to the Customer.

  9. Severability. If a court of competent jurisdiction holds any provision in this Agreement to be invalid, void, or unenforceable, the remaining provisions will yet continue in full force without being impaired or invalidated in any way

  10. Notices. Any notices given to Supplier may be made either by facsimile, overnight courier, hand delivery, or by registered or certified mail, postage prepaid with return receipt requested.  Mailed notices shall be addressed to Supplier at the address appearing below, but Supplier may change such address by written notice in accordance with this paragraph.  Notices mailed, or delivered personally or by electronic means will be deemed communicated as of actual receipt or the date of transmission, as applicable.

     Office of the General Counsel
    2095 West Pinnacle Peak Road, Ste 110
    Phoenix, Arizona 85027

  11. Confidentiality.  The parties agree to accept in confidence all Confidential Information provided to them.  The parties further agree not to use or disclose any Confidential Information supplied by the other except as required to perform their obligations in accordance with this Agreement.  Any disclosure of Confidential Information to agents or employees shall be made only in the normal course of business, on a need-to-know basis, within the scope and purpose of this Agreement, and under written agreements requiring such agents or employees to treat all such information as strictly confidential.  The parties agree not to use, publish, reproduce, disseminate, or otherwise disclose the other's proprietary or Confidential Information, including, but not limited to customer lists, without the prior written consent of the other.
    Customer shall not develop, manufacture, maintain, or, except as contemplated under this Agreement, market products or services incorporating Supplier’s Confidential Information or Software.  Customer agrees to include Supplier’s proprietary notice on all copies of Supplier’s Confidential Information made by Customer and to maintain records of the location of these copies.

     Customer agrees that the Software, and any proprietary and/or trade secret information and data furnished to Customer by Supplier or any of its third-party suppliers will be considered Confidential Information and subject to the provisions of this Section.  Supplier reserves for itself all proprietary rights in all designs, engineering details, and other data pertaining to the Software and other proprietary data arising out of work done in connection with designing, manufacturing, servicing, and testing the Software, including the sole right to manufacture and, except as provided herein, market all such items.  Customer shall not reverse, translate, disassemble, or decompile the Software or any component of the Software.                                                           

  12. Entire Agreement.  This Agreement is the entire agreement of the parties regarding the subject matter hereof, and supersedes and terminates any prior agreements, understandings or representations, written or oral, except with respect to any trade indebtedness owing between the parties.