COMMERCE CONNECTOR FOR AEM ASSETS SOFTWARE LICENSE AGREEMENT
This End-User Software License Agreement ("Agreement") is entered into by and between Customer ("Licensee"), and Bounteous, Inc. ("Licensor").
BOUNTEOUS PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON BELOW, AND/OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, LICENSEE (A) ACCEPTS THIS AGREEMENT AND AGREES THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) IF AN INDIVIDUAL, LICENSEE IS 18 YEARS OF AGE OR OLDER; AND (II) LICENSEE HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, BOUNTEOUS WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND LICENSEE MUST NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE OR DOCUMENTATION
In consideration of the mutual promises set forth herein, Licensee and Licensor hereby agree as follows:
1. Grant of License. Licensor grants Licensee a non-exclusive, non-transferable license to (1) use the Software and Documentation solely for its internal operations at the Licensee’s Location(s) and (2) copy the Software and Documentation for archival or backup purposes only, provided that all titles, trademarks, and copyright, proprietary and restricted rights notices shall be reproduced in all such copies, and that all such copies shall be subject to the terms of this Agreement.
2. Restrictions. Except as explicitly provided herein, Licensee shall not: (1) make available nor distribute all or part of the Software or Documentation to any third party by sale, assignment, sublicense, or by any other means; (2) copy, adapt, reverse engineer, decompile, disassemble, or modify, in whole or in part, any of the Software or Documentation; or (3) use the Software to operate in or as a time-sharing, outsourcing, or service bureau environment, or in any way allow third-party access to the Software.
3. Delivery and Acceptance. Licensor shall use reasonable efforts to deliver the Licensed Copies of the Software and Documentation to the Location(s) on or about the Target Date. Licensee's Acceptance of the Software shall occur at the earlier of Licensee's operational use of the Software, or the expiration of thirty (30) days from the Delivery Date.
4. Payment. Licensee shall pay the price for the Software in accordance with the payment amount listed on Licensor’s website https://marketplace.magento.com/bounteous-dam.html. Payment of the Price shall be made by Licensee to Licensor in full without any right of set-off or deduction prior to downloading the Software. Licensee shall be responsible for any applicable sales or use taxes or any value-added or similar taxes payable with respect to the licensing of the Software or arising out of or in connection with this Agreement. In the event that Licensor pays any such taxes on behalf of Licensee, Licensor shall invoice Licensee for such taxes and Licensee agrees to reimburse Licensor for such taxes within ten (10) days.
5. Proprietary Rights. Licensee acknowledges and agrees that the copyright, patent, trade secret, and all other intellectual property rights of whatever nature in the Software, Documentation, and Specifications are and shall remain the property of Licensor, and nothing in this Agreement should be construed as transferring any aspects of such rights to Licensee or any third party.
6. Confidential Information. "Confidential Information" shall mean the Software, Documentation, Specifications, and terms and conditions of this Agreement. Licensee acknowledges the confidential and proprietary nature of the Confidential Information and agrees that it shall not reveal or disclose any Confidential Information for any purpose to any other person, firm, corporation, or other entity, other than Licensee's employees with a need to know such Confidential Information to perform employment responsibilities consistent with Licensee's rights under this Agreement. Licensee shall safeguard and protect the Confidential Information from theft, piracy, or unauthorized access in a manner at least consistent with the protections Licensee uses to protect its own most confidential information. Licensee shall inform its employees of their obligations under this Agreement and shall take such steps as may be reasonable in the circumstances, or as may be reasonably requested by Licensor, to prevent any unauthorized disclosure, copying, or use of the Confidential Information. Licensee acknowledges and agrees that in the event of the Licensee's breach of this Agreement, Licensor will suffer irreparable injuries not compensated by money damages and therefore shall not have an adequate remedy at law. Accordingly, Licensor shall be entitled to seek a preliminary and final injunction without the necessity of posting any bond or undertaking in connection therewith to prevent any further breach of these confidentiality obligations or further unauthorized use of Confidential Information. This remedy is separate and apart from any other remedy Licensor may have.
7. Unauthorized Disclosure. Licensee shall notify Licensor immediately upon discovery of any prohibited use or disclosure of the Confidential Information, or any other breach of these confidentiality obligations by Licensee and shall fully cooperate with Licensor to help Licensor regain possession of the Confidential Information and prevent the further prohibited use or disclosure of the Confidential Information.
8. Warranty. Licensor represents to Licensee that: (1) during the Warranty Period, the Software shall operate without any Errors; and (2) upon notification to Licensor during the Warranty Period of any Errors, Licensor will, during its normal business hours and at no cost to Licensee, use reasonable efforts to correct such Errors which are reproducible and verifiable by Licensor, excluding any Errors caused by uses of the Software which were not in accordance with the Specifications or Documentation. The Software Warranty Period is 90 days. In the event that Licensee notifies Licensor of an Error during the Warranty Period, Licensor's sole liability, and Licensee's sole remedy, will be Licensor's use of reasonable efforts to correct such Errors or, in Licensor's sole discretion, to refund the portion of the prepaid Price applicable to the portion of the Software which is defective.
9. Warranty Disclaimer.
THE WARRANTY SET FORTH IN THIS SECTION 9 IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY LICENSOR. LICENSOR EXPRESSLY DISCLAIMS, AND LICENSEE HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS IN THE SOFTWARE WILL BE CORRECTED. LICENSOR'S LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF LICENSOR FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE INSTALLATION, USE, OR PERFORMANCE OF THE SOFTWARE. THE PARTIES AGREE THAT THE SOFTWARE'S FAILURE TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS SHALL NOT BE CONSIDERED A FAILURE OF THE ESSENTIAL PURPOSE OF THE REMEDIES CONTAINED HEREIN. EXCEPT FOR THE ABOVE LIMITED WARRANTY, THE ENTIRE RISK OF THE SOFTWARE'S QUALITY AND PERFORMANCE IS WITH LICENSEE.
10. Indemnity. Licensor hereby indemnifies Licensee against any claim that the Software, furnished and used within the scope of this Agreement, infringes any U.S. registered copyright or patent, provided that: (1) Licensor is given prompt notice of the claim; (2) Licensor is given immediate and complete control over the defense and/or settlement of the claim, and Licensee fully cooperates with Licensor in such defense and/or settlement; (3) Licensee does not prejudice in any manner Licensor's conduct of such claim; and (4) the alleged infringement is not based upon the use of the Software in a manner prohibited under this Agreement, in a manner for which the Software was not designed, or in a manner not in accordance with the Specifications. Licensor shall have no liability for any claim of infringement based on (a) the use of a superseded or altered version of the Software if infringement would have been avoided by the use of a current or unaltered version of the Software which Licensor made available to Licensee; or (b) the combination, operation or use of the Software with software, hardware or other materials not furnished by Licensor. The foregoing states Licensor's entire obligation and liability with respect to the infringement of any property right. Licensee hereby indemnifies Licensor against any claim for (1) alleged infringement of any U.S. registered copyright or patent, arising out of the use of the Software by Licensee in any manner prohibited by or not contemplated by this Agreement and (2) any claim related to or arising out of a financial transaction brought by any third party based on the use of the Software.
11. Limitation of Liability. LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF LICENSOR TO LICENSEE FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE LESSER OF THE AMOUNT PAID TO LICENSOR BY LICENSEE UNDER THIS AGREEMENT OR A MAXIMUM OF $10,000. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND OF OTHER APPLICABLE LAWS. THE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES SET FORTH IN THIS AGREEMENT.
12. Termination. The License granted herein shall remain in effect perpetually unless terminated as provided for this Agreement.
13. Cessation of Use. Upon termination of this Agreement, Licensee shall cease using the Software and Documentation and promptly return all copies of the Software, Documentation, and all other Confidential Information in its possession or control. Licensee shall delete all copies of such materials residing in on or off-line computer memory and destroy all copies of such materials which also incorporate Licensee's Confidential Information. Licensee shall, within five (5) days from the effective date of the termination, certify in writing by an officer or director of the party that all copies of the Software and Documentation have been returned, deleted and destroyed.
14. General.
1241. Headings. The headings used in this Agreement are for convenience only and are not intended to be used as an aid to interpretation.
14.2. Validity. If any part of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected.
14.3. Binding. This Agreement will be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns. Licensee may not assign its rights or obligations under this Agreement without the prior written consent of Licensor.
14.4. No Waiver. Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy.
14.5. Solicitation. Licensee shall not solicit the employment of nor employ any Licensor’s personnel who has been directly involved in the development, sale, installation, or support of the Software for a period of two (2) years from the later of the termination of such individual's employment at Licensor or the last date of Acceptance of any Software.
14.6. Governing Law. This Agreement shall be governed by the laws of the State of Illinois as though entered into between Illinois residents and to be performed entirely within the State of Illinois (incorporating such Federal rules, regulations and statutes and/or international treaties and agreements as may be necessary) and without regard to Illinois conflicts of laws rules and provisions. The United Nations Convention of Contracts for the International Sale of Goods shall not apply. The parties hereby consent to jurisdiction and venue in the state and federal courts sitting in the State of Illinois. The parties expressly waive any right to bring an action in any other jurisdiction or venue. The parties agree that no claim, regardless of form, arising out of or in connection with this Agreement or the Software may be brought more than one (1) year after the cause of action has arisen despite any applicable Statutes of Limitation to the contrary. In any action or suit to enforce any right or remedy or defend a claim arising under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorneys’ fees and experts’ fees from the non-prevailing party
14.7. Notice. Unless otherwise agreed to by the parties, any notice required or permitted to be given or delivered under this Agreement shall be delivered to the address set forth in this Agreement and addressed to the attention of:
If to Licensor: info@bounteous.com
If to Licensee: at the email address listed in the order form.
Notice shall be deemed to have been received by any party, and shall be effective, on the day given, if sent by confirmed email transmission.
14.8. Entire Agreement. This Agreement the Software comprise the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior proposals, understandings, and all other agreements, oral and written between the parties relating to the Agreement. By downloading the Software, Licensee confirms that Licensee agrees to the term of this Agreement.
14.9. Amendment. No modification, variation, or amendment of this Agreement shall be effective without the written consent of both parties hereto.
14.10. Survival. Sections 5, 6, 8, 9, 11, 13, and 14 shall survive the termination of this Agreement for any reason.