PLEASE READ THIS LICENSE AGREEMENT ("LICENSE") CAREFULLY. THIS LICENSE IS A LEGAL AGREEMENT BETWEEN INFRAGISTICS AND YOU. BY AGREEING AND SIGNING INFRAGISTICS ENTERPRISE MOBILITY BUSINESS AGREEMENT (WHICH REFERENCES THIS DOCUMENT), YOU ARE AGREEING THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS LICENSE ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).
1. Ownership; License Grants; Deliverables
1.1 License Grants.
1.1.1 Subject to the terms and conditions of this AGREEMENT, INFRAGISTICS hereby grants to CUSTOMER, and CUSTOMER accepts, a worldwide, fully paid-up, non-exclusive, non-transferable right and license to: (i) use, copy, modify and re-distribute strictly in accordance with Sections 1.1.2, the computer programs listed on CUSTOMER’S Enterprise Mobility Business Agreeement (EMBA), in object code form only, and all versions, modifications, corrections, enhancements or other embodiments of such computer programs, if any, provided to CUSTOMER pursuant to this AGREEMENT (the "Software"); and (ii) use and copy any written materials related to the Software provided to CUSTOMER, including, without limitation, training, user and reference manuals in paper copy or machine readable form and detailed on EMBA, including any Improvements (as defined below) thereto, if any, provided to CUSTOMER pursuant to this AGREEMENT (the "Documentation" and together with the Software, the "Licensed Materials"). CUSTOMER's rights to the Licensed Materials are solely as specified in this AGREEMENT and INFRAGISTICS retains all rights not expressly granted to CUSTOMER in this AGREEMENT.
1.1.2 Subject to the terms and conditions of this AGREEMENT, INFRAGISTICS grants CUSTOMER a worldwide, fully paid-up, non-exclusive, non-transferable (except as set forth herein) right and license to use, copy, modify and distribute the object code version of those portions of the Software identified on CUSTOMER’s EMBA (collectively the "Redistributables"); provided, that: (i) CUSTOMER distributes the Redistributables in object code form only in conjunction with and as part of CUSTOMER's software application product which adds significant and primary functionality; (ii) CUSTOMER does not use INFRAGISTICS' name, logo or trademarks to market its software application product; and (iii) CUSTOMER includes a valid copyright notice on its product.
1.2 Deliverables. Promptly following the Effective Date, INFRAGISTICS shall provide CUSTOMER with a copy of the Software identified in CUSTOMER EMBA, object code form, together with its associated Documentation in a way that CUSTOMER may download the Licensed Materials from the website designated by INFRAGISTICS. Such downloading environment shall be available to CUSTOMER during the term of this AGREEMENT. Subject to the other terms and conditions herein, CUSTOMER may use the Software (including all updates provided hereunder) for purposes of exercising its rights under this AGREEMENT.
The acceptance of the Licensed Materials shall be performed as per the following procedure:
(1) When INFRAGISTICS arranges the website from which the Licensed Materials may be downloaded, INFRAGISTIC shall notify that to CUSTOMER.
(2) Upon such notification, CUSTOMER shall download the Licensed Materials and examine them as to whether the Software performs in accordance with the Documentation, and shall notify INFRAGISTICS in writing of the result of the examination within twenty-four (24) hours from INFRAGISTICS’s notification.
(3) If INFRAGISTICS does not receive any response from CUSTOMER within such twenty-four (24) hours, the Licensed Materials shall be deemed as accepted by CUSTOMER at the end of such twenty-four (24) hours.
(4) In the event that (i) CUSTOMER cannot access the website, (ii) CUSTOMER cannot download the Licensed Materials from the webpage, or (iii) the Software does not perform in accordance with the Documentation, or (vi) there is any other defect in the Licensed Materials, INFRAGISTICS shall improve the Licensed Materials or the situation in a timely manner. The re-examination for acceptance shall be made in the same manner as mentioned above. All expenses incurred by INFRAGISTICS for improvement and the re-delivery of the Licensed Materials under this Section shall be borne by INFRAGISTICS
1.3.1 CUSTOMER acknowledges that INFRAGISTICS owns or has rights to, and shall retain all intellectual property rights and other proprietary rights in and to, the Licensed Materials (including, but not limited to, any images, photographs, animation, video, audio, music, text and "applets" incorporated into the Software) and all derivative works thereof and improvements, corrections, enhancements or modifications thereto (collectively, "Improvements") including ownership of all patent, copyright, trade secret, trademark and other intellectual property rights, in and to the Licensed Materials, whether or not made by INFRAGISTICS, subject only to the limited license rights expressly granted in Section 1.1. CUSTOMER agrees that any and all Improvements made by the CUSTOMER shall be a “work made for hire” under United States Copyright Law made by CUSTOMER for INFRAGISTICS. CUSTOMER acknowledges that the license granted under this AGREEMENT does not provide CUSTOMER with title to or ownership of the Licensed Materials, but only a right of limited use under the terms and conditions of this AGREEMENT. CUSTOMER shall keep the Licensed Materials free and clear of all claims, liens and encumbrances.
1.3.2 Notwithstanding anything contained herein to the contrary, the parties acknowledge and agree that any Improvements developed, conceived or reduced to practice solely by CUSTOMER shall be, and hereby are, licensed to CUSTOMER pursuant to a worldwide, fully paid-up, non-exclusive, non-transferable license to use, copy and further modify all such Improvements subject, in all cases, to the terms and conditions of this AGREEMENT.
2.1 User Accounts.
2.1.1 The Software is licensed to CUSTOMER as listed on SCHEDULE 1 annexed hereto in and which shall be used in the following manner only:
188.8.131.52 on an enterprise wide basis for up to a specified number of users and/or machines for the entire enterprise of CUSTOMER as specified in CUSTOMER’S EMBA.
2.1.2 CUSTOMER will provide INFRAGISTICS with relevant information reasonably requested to enable INFRAGISTICS to register and provide CUSTOMER with the number of user accounts specified on CUSTOMER’S EMBA. Additional licenses may be added upon mutual AGREEMENT of INFRAGISTICS and CUSTOMER by CUSTOMER issuing a purchase order which contains the quantity of such additional license all of which shall conform to and be subject to the terms and conditions of this Agreement. For the avoidance of doubt, no user account shall cover more than one individual user at any one time.
2.2 Documentation. Solely with respect to the Documentation, CUSTOMER may make a copy (either in hardcopy or electronic form) for each user for which the Software has been licensed as described in Section 2.1 above; provided, that such copies shall be used only by such user for internal purposes and are not to be republished or distributed to any other third party or developer.
2.3 Demonstrations/Evaluations. CUSTOMER may use the trial versions and product tours accompanying the Software or as made available via download, solely for the purposes and as described on the download.
3.1 Restrictions. Except as specifically set forth in the limited rights granted in Section 1.1, the license set forth above does not include any rights to, and CUSTOMER may not, without the prior written permission of INFRAGISTICS:
3.1.1 Use, copy, modify, translate or create derivative works of all or a portion of the Licensed Materials;
3.1.2 Transfer, sell, rent, lease, loan, distribute or sublicense all or any portion of the Licensed Materials;
3.1.3 Disassemble the computer programs that make up the Software for use by more than one user/developer at a time;
3.1.4 Reverse engineer or otherwise attempt to recreate all or any portion of the Licensed Materials, or use the source code to develop functionality similar to or competitive with the Software;
3.1.5 Display or disclose the Licensed Materials to any person other than as expressly permitted herein;
3.1.6 Remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed or embedded on or in any Licensed Materials; or
3.1.7 Cause or permit any third party to do any of the foregoing.
4.1 The Licensed Materials are protected by copyright and all rights vest solely with INFRAGISTICS. CUSTOMER must treat the Licensed Materials like any other copyrighted material, except that it may, in addition to the copies otherwise permitted in this AGREEMENT, if any, make a single copy of the Software solely for backup for archival purposes. No part of the Documentation may be reproduced, transmitted, transcribed, stored in any retrieval system, or translated into any language by any means without the express prior written permission of INFRAGISTICS.
5. Subscription and Support.
5.1 Subscription. INFRAGISTICS shall provide those support and maintenance services listed below (the “Subscription Services”) with respect to the Software listed on CUSTOMER’S EMBA for a period of one (1) year following the Effective Date (the “Initial Subscription Term”). Upon expiration of the Initial Subscription Term, the Subscription Services shall be renewable, at the election of INFRAGISTICS, upon payment of the prevailing subscription renewal rate at such time (the “Support Fee”) for subsequent one (1) year periods (each, a “Renewal Subscription Term” and together with any Initial Subscription Term, the “Subscription Term”)) and any amendments to this Agreement that may be required by INFRAGISTICS. CUSTOMER shall notify INFRAGISTICS thirty (30 Days prior to the end of the then current Subscription Term if it wishes to renew the Subscription Services and the parties shall execute a purchase order for such Subscription Services pursuant to which CUSTOMER shall pay the support fee specified therein. If the annual support fee is not received by INFRAGISTICS by the date specified in the purchase order, then INFRAGISTICS reserves the right to immediately suspend Subscription Services until such payment is received.
5.2 The Subscription Services may include, but not be limited to, the following:
5.2.1 In the event INFRAGISTICS releases a major upgrade of the Software during the Subscription Term, INFRAGISTICS will notify CUSTOMER of the major upgrade. Provided that CUSTOMER has purchased Support Services, CUSTOMER will be entitled to receive copies via download of the upgraded version of the Software at no additional cost to CUSTOMER. Notwithstanding the foregoing, INFRAGISTICS shall be under no obligation to release an upgrade of the Software at any time.
5.2.2 In the event INFRAGISTICS prepares minor updates to the Software during the Support Term, INFRAGISTICS will make such minor upgrades available to CUSTOMER via download. Notwithstanding the foregoing, INFRAGISTICS shall be under no obligation to release an update to the Software at any time.
5.2.3 Non-priority online support pursuant to which INFRAGISTICS will respond to online questions when, and only to the extent, time so permits.
5.2.4 Participation in peer-to-peer news groups on INFRAGISTICS’ website.
5.3 Subscription with Priority Support. If CUSTOMER has obtained Subscription with Priority Support service as set forth on CUSTOMER’S EMBA , CUSTOMER shall be entitled to the Subscription Services set forth in Section 5.2 above, plus (i) INFRAGISTICS' technical support phone line during INFRAGISTICS' normal business hours, (ii) INFRAGISTICS’ priority chat line, during INFRAGISTICS' normal business hours, and (iii) INFRAGISTICS' technical online support system, as follows:
5.3.1 tT the extent reasonably possible, INFRAGISTICS shall respond to CUSTOMER on the same business day with respect to an online web support submission request received by 1 p.m. EST on such business day;
5.3.2 For support requests received after 1 p.m. EST, a response will be returned by 1 p.m. EST the next business day;
5.3.3 A response may be a technical solution, or in the case of a larger problem, an acknowledgment with a status report with more action to follow;
5.3.4 Calls by CUSTOMER to INFRAGISTICS' technical support phone line shall be given priority placement at the head of the phone queue (along with an din sequence with any other CUSTOMERs that have obtained a subscription with Priority Support); and
5.3.5 Chats initiated by CUSTOMER to INFRAGISTICS’ priority chat line shall be given priority placement at the head of the chat queue (along with and in sequence with any other CUSTOMERs that have obtained a subscription with Priority Support).
5.4 Exceptions. Notwithstanding the foregoing, INFRAGISTICS shall not provide technical support for any source code. INFRAGISTICS is not required to provide Subscription Services or Subscription with Priority Support services to CUSTOMER’s distributor(s), reseller(s) or end users, unless CUSTOMER or such parties contract for such support directly with INFRAGISTICS. INFRAGISTICS shall have the right, at the completion of any annual service period, to terminate Subscription Services or Subscription with Priority Support services for the Software in the event INFRAGISTICS has not made the Software commercially available for a period of twelve (12) consecutive months or more.
6.1.1 CUSTOMER agrees to pay to INFRAGISTICS the total license fee(s) set forth on CUSTOMER’S EMBA no later than (30) days following the Effective Date.
6.1.2 In the event CUSTOMER purchases additional user account licenses as set forth in Section 2.1 hereof, CUSTOMER shall pay to INFRAGISTICS the CUSTOMER fee set forth in an amendment to CUSTOMER’S EMBA, no later than thirty (30) days following the date such additional user accounts are licensed, for the remaining portion of the existing Subscription Term.
6.1.3 In the event that CUSTOMER renews its Subscription Services, payment for each Renewal Subscription Term shall be due no later than thirty (30) days following the applicable anniversary of the Effective Date then current Subscription Term.
6.1.4 Interest shall accrue on any late payments at the rate of 1.5% per month.
6.2 Mode of Payment/Taxes. Payments will be in U.S. dollars. CUSTOMER will pay or reimburse all federal, state and local taxes (exclusive of taxes on INFRAGISTICS' net income), duties and assessments arising in connection with CUSTOMER’s business, including without limitation the sale or distribution of any CUSTOMER products. To the extent reasonably requested, CUSTOMER shall furnish INFRAGISTICS with evidence acceptable to any applicable taxing authority.
6.3 Audit of Use. INFRAGISTICS may, at its expense, audit CUSTOMER's use of the Licensed Materials. Audits shall be conducted during regular business hours and shall not unreasonably interfere with CUSTOMER's business activities. Audits shall be conducted no more than once annually. If, as a result of any such audit, INFRAGISTICS identifies unauthorized use of the Licensed Materials, Licensee shall pay, in addition to a full License Fee for each copy of the Licensed Material in use by Licensee, the reasonable expense of INFRAGISTICS in conducting the audit.
7. Term and Termination.
7.1 Term. This AGREEMENT and the licenses granted hereunder shall be effective as of the Effective Date (as specified above) and shall continue in effect unless terminated as set forth in this Section 7.
7.2 Termination. INFRAGISTICS shall be entitled to terminate this AGREEMENT and licenses hereunder immediately and without written notice prior to such termination if the CUSTOMER breaches or allegedly breaches the confidentiality or proprietary rights provisions of this AGREEMENT.
7.2.1 Either party may terminate this AGREEMENT if the other party fails to perform or observe any of its material obligations under this AGREEMENT (subject to Section 7.2.1) upon written notice of termination of this AGREEMENT from the non-breaching party to the breaching party which shall automatically be effective 30 days after the date of such notice, unless the breaching party cures such default within the 30 day period.
7.2.2 Either party may terminate this AGREEMENT upon thirty (30) days written notice following (i) the filing of a voluntary or involuntary petition in bankruptcy by or against the other party or (ii) the liquidation of the other party.
7.3 Effect of Termination/Expiration. Upon expiration or any termination of this AGREEMENT, and except as may be provided elsewhere herein: (i) each party shall return to the other party all property, Licensed Materials and Confidential Information received from the other party pursuant to or in contemplation of this AGREEMENT, and (ii) all licenses granted under this AGREEMENT shall terminate on the effective date of such termination. Except for termination by INFRAGISTICS pursuant to Section 22.1.2, there will be no refund of any license fees paid hereunder upon any termination of this AGREEMENT.
7.4 Survival. Any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement including, but not limited to, the provisions of Sections 1.3, 3, 4, 6, 7.3, 7.4, 8, 9, 10, 11, 22, and 27 shall survive any termination of this AGREEMENT
8. Export Restrictions.
CUSTOMER agrees to comply with all export laws and restrictions and regulations of the U.S. Department of State, Department of Commerce or other United States or foreign agency or authority, and not to export or re-export the Software in violation of any such restrictions, laws or regulations, or without all necessary approvals. Neither the Software nor the underlying information or technology may be downloaded or otherwise exported or re-exported: (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By entering this AGREEMENT, CUSTOMER agrees to the foregoing and represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list. As applicable, CUSTOMER shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to any export of the Software from the U.S.
9. Relationship of Parties.
9.1 This AGREEMENT does not constitute, and shall not be construed as constituting, an agency, partnership or joint venture relationship between INFRAGISTICS and CUSTOMER. Neither party shall have the right to obligate or bind the other party in any manner whatsoever.
10. Further Actions.
10.1 Each party shall execute, acknowledge and deliver such further instruments, and do all such other acts, as may be necessary or appropriate in order to carry out the purposes and intent of this AGREEMENT.
11.1 Any notice, request, demand or other communication required or permitted under this AGREEMENT shall be in writing, in English and shall be personally delivered or sent by certified mail (return receipt requested), facsimile transmission (receipt verified) or overnight express courier service (signature required), prepaid, to the address and/or facsimile number of the party for which such communication is intended, as set forth on the signature page of this AGREEMENT; provided, however, that either party may change such address from time to time by like notice to the other party, provided that notices of a change of address shall be effective only upon receipt thereof. If delivered personally or by facsimile transmission, the date of delivery shall be deemed to be the date on which such notice or request was given. If sent by overnight express courier service, the date of delivery shall be deemed to be the next business day after such notice or request was deposited with such service. If sent by certified mail, the date of delivery shall be deemed to be the third business day after such notice or request was deposited with the U.S. Postal Service.
12. Entire Agreement; Amendment; Inconsistency.
12.1 This AGREEMENT, and the Exhibits attached hereto, contain all of the agreements, understandings, representations, conditions, relations, warranties and covenants of the parties, and supersedes and cancels all previous agreements made between the parties concerning the subject matter hereof through the Effective Date. If any of the Licensed Materials contains a shrink wrap or click through license agreement and the terms of the shrink wrap or click through license agreement contradict the terms of this AGREEMENT, the terms of this AGREEMENT shall govern and control.
12.2 All modifications and amendments to this AGREEMENT must be in writing and signed by both parties. In the event of any inconsistency between the terms of this AGREEMENT and any purchase order passing between the parties pursuant to this AGREEMENT, the terms of this AGREEMENT shall govern.
13. No Implied Waiver.
13.1 The failure of either party at any time to require performance by the other party of any provision of this AGREEMENT shall not affect in any way the full right to require such performance at any time thereafter, nor shall the waiver by either party of any particular breach of any provision hereof be taken or held to be a waiver of any subsequent breach thereof.
14. Governing Law; Venue; English Original Controlling.
14.1 This AGREEMENT shall be construed in accordance with the laws of the State of New Jersey, U. S. A., without regard to conflicts of law principles. The venue for any action under this AGREEMENT shall be Middlesex County, State of New Jersey, U.S.A. The original version of this AGREEMENT in the English language shall prevail over any translation hereof.
15.1 This AGREEMENT shall not be assignable by either party without the written consent of the other, except that each party may assign its rights and transfer its duties hereunder to any parent, subsidiary or affiliate or to any assignee of all or substantially all of its business (or that portion thereof to which this AGREEMENT relates) or in the event of such party's merger, consolidation or involvement in a similar transaction. No assignment and transfer shall be valid or effective unless done in accordance with this Section 16.1 and unless and until the assignee / transferee shall agree in writing to be bound by the provisions of this AGREEMENT.
16.1 All section headings in this AGREEMENT are for reference purposes only and shall not in any way affect the meaning or interpretation of this AGREEMENT.
17.1 When possible, each provision of this AGREEMENT shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this AGREEMENT is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this AGREEMENT.
18. Alternative Dispute Resolution.
18.1 Any dispute, controversy or conflict involving this AGREEMENT, its interpretation or the respective rights or obligations of the parties hereunder shall be submitted to arbitration in Princeton, New Jersey, before a panel of three arbitrators and conducted under the auspices of the American Arbitration Association according to its rules and procedures for commercial arbitration (except with respect to the appointment of arbitrators), applying the laws of the State of New Jersey. Each party will each appoint one arbitrator, and the two arbitrators so appointed shall appoint the third arbitrator. Such arbitration shall be conducted in the English language. The parties hereby irrevocably agree to be bound by the decision of the arbitrators which shall be final and not appealable to any court. The Superior Court of the State of New Jersey shall have jurisdiction to confirm the award of the arbitrators. The arbitrator, or court, shall award costs and reasonable attorney's fees to the prevailing party.
19.1 This AGREEMENT may be executed in two or more counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument, with the same effect as if all parties had signed the same signature page. The parties authorize removal of the signature page of this AGREEMENT from any counterpart copy and the attachment of all signature pages to a single counterpart copy so that the signatures of all those signing will be physically attached to the same document. Delivery of an executed counterpart of this AGREEMENT by facsimile or email shall be equally as effective as delivery of an originally executed counterpart of this AGREEMENT. Any party delivering an executed counterpart of this AGREEMENT by facsimile or email shall also deliver an originally executed counterpart of this AGREEMENT, but failure to deliver an originally executed counterpart shall not affect the validity, enforceability or binding effect of this AGREEMENT.
20. Force Majeure.
20.1 Neither party shall be held liable or responsible to the other party nor be deemed to be in default under, or in breach of any provision of, this AGREEMENT for failure or delay in fulfilling or performing any obligation of this AGREEMENT when such failure or delay is due to force majeure, and without the fault or negligence of the party so failing or delaying. For purposes of this AGREEMENT, “force majeure” is defined as causes beyond the control of the party, including, without limitation, acts of God; acts, regulations, or laws of any government; war; acts of terrorism; civil disobedience; destruction of production facilities or materials by fire, flood, earthquake, explosion or storm; labor disturbances; epidemic; failure of third party manufacturers or suppliers; and failure of public utilities or common carriers. In such event the affected party shall immediately notify the other party of such inability and of the period during which such inability is expected to continue. The party giving such notice shall thereupon be excused from such of its obligations under this AGREEMENT as it is thereby disabled from performing for so long as it is so disabled and for a period of thirty (30) days thereafter. To the extent possible, each party shall use commercially reasonable efforts to minimize the duration of any force majeure. No event of force majeure shall excuse the prompt payment of money due under this AGREEMENT.
21.1 Of INFRAGISTICS.
21.1.1 INFRAGISTICS represents and warrants that INFRAGISTICS owns the Confidential Information (as defined below), including all intellectual property rights therein, and that INFRAGISTICS has all rights necessary to license the use of the Licensed Materials as provided under this AGREEMENT.
21.1.2 INFRAGISTICS represents and warrants that for a period of ninety (90) days from delivery and installation of the Software (the “Warranty Period”), the Software will perform substantially in accordance with the Documentation. As CUSTOMER’s sole and exclusive remedy, and INFRAGISTICS' entire liability for any breach of the foregoing warranty, INFRAGISTICS will in its sole discretion upon prompt receipt of notice from CUSTOMER to INFRAGISTICS regarding such failure during the Warranty Period, make commercially reasonable efforts to correct, repair or replace the defective components or modules of the Software to conform to this warranty at no additional charge to CUSTOMER.
21.1.3 INFRAGISTICS represents and warrants that the Software as delivered by INFRAGISTICS shall not contain any viruses, worms, Trojan horses or other malicious or destructive code (“Malicious Code”). As CUSTOMER’s sole and exclusive remedy with respect to this warranty should the Software contain any Malicious Code as delivered by INFRAGISTICS, INFRAGISTICS shall provide CUSTOMER with a clean copy that does not contain such Malicious Code within fifteen (15) days following CUSTOMER’s notice to INFRAGISTICS of a breach of this warranty.
21.2 Of Both Parties. Each party warrants to the other party that it has all necessary rights, power and authority to enter into this AGREEMENT and to grant the rights granted by such party under this AGREEMENT.
21.3 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 21, INFRAGISTICS DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF ACCURACY, COMPLETENESS, PERFORMANCE, CURRENCY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE. IN ADDITION, INFRAGISTICS DOES NOT REPRESENT THAT THE SOFTWARE WILL BE ERROR FREE OR OPERATE UNINTERRUPTED.
22.1 By INFRAGISTICS.
22.1.1 INFRAGISTICS will defend, indemnify and hold harmless CUSTOMER and its officers, directors, employees and agents against any and all judgments, liabilities, costs, losses, damages or expenses (including reasonable attorneys’ fees) (collectively, "Damages"), arising from any claims, demands, actions, or proceedings of third parties that CUSTOMER's use of the Licensed Materials, in the form provided by INFRAGISTICS, and in accordance with the terms of this AGREEMENT, infringes any U.S. patent, trademark, copyright and/or trade secret of any third party (a "Claim"). INFRAGISTICS will have no obligation hereunder for any Claim based on (i) the use of a superseded or altered release of the Software if such infringement would have been avoided by the use of a current, unaltered release of the Software, which release was made available by INFRAGISTICS to CUSTOMER at no additional cost sufficiently in advance of such claimed infringement to have permitted the timely substitution thereof for the prior version, (ii) the combination or use of the Software with software, hardware or other materials not furnished by INFRAGISTICS, if such infringement would have been avoided by the use of Software alone, (iii) from CUSTOMER’s modification of the Software after delivery by INFRAGISTICS by anyone other than INFRAGISTICS or its subcontractors, or (iv) the use of the Software other than as permitted under this AGREEMENT.
22.1.2 If such a Claim is made or appears possible, INFRAGISTICS may, at its option: (i) secure for CUSTOMER, at no additional cost, the right to continue to use the Software, (ii) modify the infringing portion of the Software to make it non-infringing but still functionally equivalent; or (iii) replace the Software with a non-infringing product. If none of the forgoing alternatives may be implemented despite INFRAGISTICS commercially reasonable efforts, INFRAGISTICS shall be entitled to terminate this AGREEMENT, and in such event INFRAGISTICS shall refund to CUSTOMER the depreciated value of the license fees paid under this AGREEMENT for such infringing Software as depreciated on a straight line basis over a period of three years commencing on the date of this AGREEMENT.
22.2 By CUSTOMER. CUSTOMER will defend, indemnify and hold harmless INFRAGISTICS and its officers, directors, employees and agents against any and all Damages that arise or result from the use or distribution of the CUSTOMER's products, other than as a result of the products' inclusion of any PLF or Redistributables if such PLF or Redistributables have been provided by INFRAGISTICS.
22.3 Procedure. An indemnified party ("Indemnitee") shall provide the other party ("Indemnitor") prompt written notice of any claim, action or demand for which indemnity is claimed; provided that the failure to notify Indemnitor shall not relieve Indemnitor from any obligation or liability which it may have pursuant to this AGREEMENT except to the extent that such omission actually prejudices Indemnitor's rights. In case any such action, proceeding or investigation is brought against Indemnitee, Indemnitor will be entitled to control and assume the defense thereof with counsel of its choice. If Indemnitee desires to participate in any such defense assumed by Indemnitor, it may do so at its own expense. Indemnitor shall be liable for the fees and expenses of counsel employed by Indemnitee for any period during which Indemnitor has not assumed the defense thereof (other than during any period in which Indemnitee shall have failed to give notice of the claim as provided above). If Indemnitor assumes such defense, Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Indemnitor, it being understood that Indemnitor shall control such defense; provided, that Indemnitor's right to control the defense is subject to it actively and diligently conducting such defense and provided that no rights of Indemnitee may be compromised by Indemnitor without Indemnitee’s prior written consent. If Indemnitor chooses to defend a claim pursuant hereto, Indemnitee shall cooperate in the defense thereof, which cooperation shall include the retention and provision to Indemnitor of records and information which are reasonably relevant to such claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. So long as Indemnitor has assumed and is conducting the defense of the claim in accordance with the foregoing, Indemnitee shall not consent to the entry of any judgment or enter into any settlement with respect to the claim without the prior written consent of Indemnitor (such consent not to be unreasonably withheld).
23. Limitation of Liabilities.
23.1 EXCEPT WITH RESPECT TO ANY BREACH OF THE CONFIDENTIALITY OBLIGATIONS OF SECTION 24, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, AND/OR ANY USE OR FAILURE OF THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, ANY ERRONEOUS REPORTS OR DATA BEING ISSUED ON THE SOFTWARE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
23.2 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE PARTIES AGREE THAT INFRAGISTICS’ AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED, UNDER ANY CIRCUMSTANCES, THE AMOUNT OF LICENSE FEES PAID BY CUSTOMER. THE LIMITATION ON LIABILITY SET FORTH IN THIS SECTION 23.2 SHALL NOT APPLY TO THE INDEMNITY SET FORTH IN SECTION 22.
24.1 Subject to this Section 4, each party shall maintain in confidence all Confidential Information (as defined herein) of the other party and shall not use, copy or disclose any such Confidential Information without the other party's prior written consent. Notwithstanding the foregoing, each party may disclose Confidential Information to its directors, officers, and employees (collectively “Representatives”) who need such information in order to assist or advise such party in the performance of its obligations hereunder. Each party shall promptly notify the other party if it discovers any unauthorized use, copying or disclosure of the other party’s Confidential Information.
24.2 For the purposes of this AGREEMENT, “Confidential Information” shall mean any and all business and technical information of a party disclosed to, or otherwise acquired or observed by, the other party, whether communicated in writing, orally, electronically or in any other form, except Confidential Information does not include any information which (i) becomes generally available to the public through no fault of the receiving party, (ii) was independently developed by the receiving party without access to the disclosing party’s Confidential Information or (iii) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party; provided that such source is not prohibited from transferring the information to the receiving party by a contractual, legal or fiduciary obligation. In addition, INFRAGISTICS Confidential Information shall include the Licensed Materials and any Improvements.
24.3 In the event that a party (including its Representatives) is requested in accordance with applicable law to disclose the other party’s Confidential Information, the receiving party agrees to provide the disclosing party with prompt notice of such request so that the disclosing party will have an opportunity to limit or preclude such disclosure. The receiving party agrees to cooperate with the disclosing party, at the disclosing party’s expense, in any lawful effort to contest the requirement of such disclosure. In the event that a protective order or other remedy is not obtained, the receiving party may furnish only that portion of the disclosing party’s Confidential Information which such party is legally compelled to disclose and will exercise its commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished.
24.4 Upon termination of this AGREEMENT, the parties agree that within thirty (30) days of the termination of this AGREEMENT, each party shall return or certify in writing the destruction of all documents and electronic media containing the other party’s Confidential Information, including all copies.
25. U.S. Government Restricted Rights.
25.1 Any Software and Documentation which is provided to the United States of America, its agencies and/or the U.S. Government (the "Government") is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions; if supplied to the Department of Defense (DoD), the Software is ''Commercial Computer Software'' and the Government acquires the Software with ''restricted rights,'' as defined in Clause 252.227-7013(c)(1) of the Department of Defense Federal Acquisition Regulations (DFARS); if the Software is supplied to any other Government unit or agency, the Government's rights in the Software are defined in Clause 52.227-19(c)(2) of the Federal Acquisition Regulations (FAR); but if the Software is supplied to NASA, the Government's rights are defined in Clause 18-52.227-86(d) of the NASA supplement to the FAR. Manufacturer is INFRAGISTICS, Inc., 50 Millstone Road, Bldg 200, Suite 150, East Windsor, NJ 08520.
26. Non-Solicitation. During the period commencing on the Effective Date and ending on the one-year period after the termination of this AGREEMENT, neither party shall solicit, induce, encourage or attempt to induce or encourage any employee, consultant or contractor of the other party (each, a "Servant") to terminate his or her employment or retention by such other party or to breach any other obligation to such other party, and neither party shall employ or retain any Servant without such party's prior written consent, which may be withheld at the sole discretion of such other party.
27. Further Instruments. The parties shall execute such further instruments and take such further action as may be reasonably necessary to carry out the purposes and intent of this AGREEMENT.