(Last updated on April 29, 2021)
1. Definitions & Interpretation
1.1 Definitions
In this Agreement, the following words and expressions will have the following meanings unless otherwise stated:
1.1.1 “Software”, means all Software specified in agreed-upon Software order forms developed by Unvired Inc. and any new releases made generally available or created specifically for Licensee’s use, and shall include any Enhancements, defect resolutions, and any other development provided by Licensor.
1.1. 2 “Documentation” means documentation pertaining to the Software delivered to Licensee under this Agreement.
1.1.3 ‘Licensor’ means Unvired Inc.
1.1.4 ‘Enhancements’ means the additional developments that are deployed on the server-side component or the app deployed on the mobile client.
1.1.5 ‘Landscape’ refers to a comprehensive environment that may include Development, Quality Assurance/Test Production.
1.1.6 Update shall mean a new version or a revised version of the Licensed Software made available by Licensor to Licensee that contains Bug Fixes and/or minor Enhancements or improvements, including security fixes, but does not contain significant new features.
1.1.7 Upgrade shall mean any new version of the Licensed Software made available by Licensor to Licensee that contains major Enhancements and new features.
1.1.8 ‘Licensee’ is the person or organization licensing the Software (including affiliates) and is accordingly, the Licensee in respect of it.
1.1.9 ‘SOW” means a separate Statement of Work that is signed between the Licensor and the Licensee to detail out the “Business Configuration” and “Enhancements” and other terms and conditions related to an effort/project.
1.1.10 All product and service names mentioned are the trademarks of their respective companies.
1.2 Interpretation
1.2.1 Any headings in this Agreement are for ease of use and are not intended to form part of this Agreement nor affect its interpretation.
2. License Grant
The Software is licensed for use as per the restrictions listed below.
Under this License, Licensee is granted the non-exclusive, perpetual, irrevocable right to use/deploy the Software (unless terminated in accordance with Section 13) on One (1) Landscape) for the licensed number of users, along with any work product or other deliverables, and any parts or portions thereof (including any underlying intellectual property and work product contained or incorporated therein, created or developed by Licensor and delivered to Licensee pursuant to the services or this License). This license does not permit Licensee to provide services to third parties like business process outsourcing, third party training, etc., provided however that the Licensee shall not be prohibited from providing services in its normal course and scope of business. Subject to the foregoing exception, it also does not permit Licensee to resell or derive any other commercial benefit from the Software for any third parties.
The Software License grant is limited to the number of users, which shall be specified in an accompanying Statement of Work.
The specific Software applications to be licensed and the License Price will be stated in an accompanying Statement of Work.
3. Copyright and Intellectual Property Rights
3.1 Unless otherwise explicitly agreed in the applicable Statement of Work, Licensee acknowledges that no title to the intellectual property in any part of the Software is transferred to Licensee, except Licensee’s license to use the Software and associated intellectual property in accordance with the terms set out in this Agreement. Unless otherwise explicitly agreed in the applicable Statement of Work, Licensee further acknowledges that title and full ownership rights to the Software will remain the exclusive property of The Licensor and Licensee will not acquire any rights to the Software except as expressly set out in this Agreement. Licensee agrees that any copies of any part of the Software will contain the same proprietary notices which appear on and in the Software (as appropriate).
3.2 Licensee agrees that this License does not include ownership of the source code for the Unvired Digital Enterprise Platform/Connector Software or any of the standard Applications/Frameworks.
4. Third party copyright notices
4.1 Software utilizes some open source components for its functionality. The Licensor warrants that Licensor has the permission to use these components as per the license terms under which these components are released. The Licensor agrees to defend and indemnify Licensee against all costs, claims, and liabilities arising from breach of this warranty provided that Licensee promptly notifies the Licensor about any alleged breach and renders all reasonable assistance to the Licensor (at the cost of the Licensor) in defending any such claim.
5. Assignment
Licensee may not without Licensor’s prior written consent assign, delegate, pledge or otherwise transfer this Agreement or any of its rights or obligations under this Agreement to any party voluntarily or by operation of any law including by way of sale of assets, merger, or consolidation, without the prior consent of Licensor, such consent not to be unreasonably withheld.
6. Support
6.1 In the event of any errors being found in the Software relative to the documented functionality of the Software, the Licensor agrees to promptly at no additional cost beyond the annual support fees to Licensee, provide Updates.
6.2 Software is released with specific support periods during which Licensor will provide Updates/Upgrades for the Software. The Licensee can continue to use the Software even after the expiry of such support periods.
7. Reverse Engineering
Licensee will not attempt to reverse compile, modify, translate, or disassemble the Software or any part of the Software in whole or in part.
8. Verification
Upon reasonable advance written notice, the Licensor or its designated third party shall have the right to conduct an internal non-intrusive audit of the Licensee’s system to ensure compliance with this Agreement. Such audits shall be conducted no more than once every two years from the date of initial implementation, as signed off by Licensee.
9. Limited Warranties and Exclusions of Liability
9.1 The Licensor warrants and represents that the Software will conform to the functional specifications contained in the Documentation or any descriptions/specifications set out in an applicable Statement of Work following delivery and acceptance of the Software by Licensor. The warranty shall not apply: i) if the Software is not used in accordance with the Documentation; or ii) if the defect is caused by modification by the Licensee or agents of the Licensee, third-party Software, or third party database. The Licensor does not warrant that Software will operate uninterrupted or that it will be free from minor defects or errors that do not materially affect such performance.
9.2 The Licensor further warrants that the Software is free from backdoors and any form of disablement, which would damage or render any system using the Software inoperable. The Licensor further warrants that even in the event of the breach of this License by Licensee, the Licensor will not impair the operation of the Software except pursuant to an order of the court.
9.3 PROHIBITION OF USE IN LIFE-CRITICAL APPLICATIONS: LICENSOR EXPRESSLY DISCLAIMS ANY LIABILITY RESULTING FROM USE OF SOFTWARE IN LIFE-CRITICAL APPLICATIONS AND ACCEPTS NO LIABILITY IN RESPECT OF ANY ACTIONS OR CLAIMS BASED ON THE USE OF THE SOFTWARE IN ANY SUCH LIFE CRITICAL APPLICATIONS BY LICENSEE. FOR PURPOSES OF THIS PARAGRAPH, THE TERM “LIFE-CRITICAL APPLICATION” MEANS AN APPLICATION IN WHICH THE FUNCTIONING OR MALFUNCTIONING OF THE SOFTWARE MAY RESULT DIRECTLY OR INDIRECTLY IN PHYSICAL INJURY OR LOSS OF HUMAN LIFE.
10. Severability
In the event of invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement.
11. No Liability for Consequential Damages
EXCEPT FOR THE LICENSOR’S INDEMNIFICATION, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE USE OF THE SOFTWARE, EVEN IF THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Confidentiality Obligations
12.1 All disclosures of sensitive and confidential information will be governed by the Non-Disclosure Agreement (NDA) that is executed between the Licensor and Licensee. The obligations described in the NDA shall survive termination of the Agreement.
13. Termination
13.1 The Licensor may forthwith terminate this Agreement (without prejudice to any prior accrued rights) in the event of the following:
13.1.1 Licensee failing to remedy any material breach of this Agreement within 30 days of written notice of such breach;
13.1.2 Licensee being subject to a bankruptcy or compulsory winding-up notice or a receiving order or having an administrator appointed in respect of Licensee’s affairs (save as part of a restructuring or amalgamation otherwise than by reason of your insolvency).
13.2 Licensee will forthwith on termination remove all copies of any part of the Software Product from your Landscape / Server(s) and deployed Mobile Devices and remove all license keys (if any).
13.3 Licensee may terminate this Agreement and any services being performed pursuant to a Statement of Work at any time upon 30 days written notice to Licensor, provided that Licensee will pay all sums then currently due to Licensor upon termination.
14. General
14.1 If any party does not fully enforce its rights under this Agreement at any time, it will not prevent it from doing so later in respect of a particular breach or any future breach.
14.2 Any notice served pursuant to this Agreement must be in writing, addressed to a party at the last known address for that party, and sent by:
(a) Certified mail, in which case the notice will (if properly addressed) be deemed received (if posted on a working day) after the next three working days or (if not posted on a working day) after five working days; or
(b) By email or fax, in which case the notice will (if properly addressed) be deemed received immediately if received before 5:30 p.m. Central Standard Time on a working day but if later, then on the next working day.
14.3 Neither party will be responsible for any breach of this Agreement insofar as that breach is a result of something beyond that party’s reasonable control but if that situation arises, the relevant party will do everything it reasonably can to overcome that problem as soon as reasonably possible.
14.4 This Agreement is not intended to benefit anyone other than the parties to it.
15. Entire Agreement
15.1 This is the entire agreement between Licensee and The Licensor that supersedes any prior agreement, whether written or oral, relating to the subject matter of this Agreement.
15.2 To the extent of the inconsistency, ambiguity, or conflict between the various parts of this Agreement, the following order of precedence in the interpretation hereof or resolution of such conflict hereunder shall prevail and govern in the following order:
- Statement of Work
- Software License Agreement
- Other documents, exhibits, and attachments
In the event that any such ambiguity or conflict cannot be resolved pursuant to the foregoing, Licensor shall notify Licensee and seek Licensee’s direction with respect thereto.
16. Applicable Law
This Agreement is subject to the laws of the State of Texas and the federal laws of the USA applicable therein and the parties agree to submit all disputes for settlement to the Houston Courts.
