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End License Agreement
WHEREAS, Licensor is the owner of that certain computer program known
as “Aleza Portal” (as further defined below, the “Licensed Software”); and
WHEREAS, Customer desires to obtain rights to use the Licensed Software.
NOW, THEREFORE, in consideration of the premises and other good , valuable
and mutual consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1.1. “Act” has the meaning set forth in Section 2.3.
1.2. “Compatible machine” means a machine on which the Licensed Software
is capable of operating according to the software specifications.
1.3. “Confidential Information” has the meaning set forth in Section 7.1.
1.4. “Customer machine” means a machine, all of which is under the
complete, direct legal and physical control of Customer.
1.5. “Information” has the meaning set forth in Section 7.1.
1.6. “Licensed Software means all or any part of the computer program
referenced above as may be modified by Customer pursuant to this
License, including, without limitation, any related (1) instructions
or statements in machine-readable form, including source code; (2)
any database in machine-readable form; (3) any related materials,
including documentation and listings, whether in machine-readable
or printed form; and (4) all copies of the foregoing.
1.7. “Linkage” means a connection (continuous or otherwise, and using any
technical means) between machines, which connection is capable of
data transmission, regardless of whether such connection is used
for data transmission and regardless of what software restrictions
may have been placed on data access in the machines so connected.
1.8. “Machine” means a computer, together with all input, output,
transmission, memory and other components necessary for the functioning thereof.
1.9. “Modification” means any computer software that (1) is derivative of
or interfacing with the source code; (2) emulates or performs
substantially the same functions as the source code; or (3) results
from the merger of the source code with other software.
1.10. “Software specifications” mean the description of the function and
performance of, and the required operating environment for the
Licensed Software as described at the “webavail.com” internet site.
1.11. “Source code” means all or any part of the machine-readable (but
including transcriptions or other representations thereof, in
tangible or intangible form, and on any media whatsoever), uncompiled
(but otherwise regardless of format) instruction set, the totality of
which permits operation of the Licensed Software, as same may be
modified by Customer pursuant to this License.
1.12. “Use,” including any form of such word as a noun or a verb, as
relates to the Licensed Software, means (1) copying of same into
a machine for processing; (2) storing of same in a machine; (3)
transmission of same through a machine; (4) display of same on a
machine; and/or (5) processing of same by a machine.
2.1. Licensed Software. This License will not be deemed to constitute a
transfer by Licensor of its title to the Licensed Software.
2.2. Modifications. All Modifications developed singly or jointly by Customer,
Licensor, their employees or third parties hired by either or both will
be and remain the property of Licensor, regardless of whether and the extent
Customer pays for such Modifications.
2.3. Work Product. Any and all software ideas, processes, methods, programming
aids or flowcharts developed, prepared, conceived, made or suggested by
Customer, Licensor, their employees or third parties hired by either or both
under, or related to the performance of, this License (“Work Product”),
including all such developments as are originated or conceived during the
term of this License but are completed or reduced to practice thereafter,
will be deemed to be a “work for hire” if consistent with the requirements
of Section 101 of the Copyright Act (“the Act”). All Work Product will be
and remain the exclusive property of Licensor, regardless of whether and to
the extent Customer pays for same and whether or not deemed to be a “Work for
Hire” within the meaning of the Act; and any and all rights, title and ownership
interests, including copyright, that Customer and/or its employees may have in
or to such Work Product or any tangible media embodying such Work Product are
hereby assigned to Licensor.
3. License. Licensor hereby grants to Customer the nontransferable and nonexclusive
license to do the following (“Permitted Use”):
3.1. Use. Use the machine-readable portion of the Licensed Software on one Customer
central processing unit or on more than one Customer central processing unit,
but on only one Customer shared internet site, giving the Customer one account
3.2. Printed Materials. Utilize the printed portion of the Licensed
Software to support Permitted Use.
3.3. Copies. Copy or translate the Licensed Software into any machine-readable
or printed form to provide sufficient copies to support Permitted Use.
3.4. Modifications. Make Modifications as necessary for Customer’s use,
though upon modification, no part of the resulting modified Software
may be used or sold outside of Customer’s central processing unit(s)
and/or shared internet site for which Software License was purchased.
4. Consideration. Customer will pay to Licensor the consideration agreed to
between the parties, which is non-refundable, subject to Section 10 of
this License, for each Customer central processing unit and/or shared
internet site Licensed Software is to be used on. Further consideration
and a new License will be required for subsequent major Software
upgrades, though not on minor upgrades.
5. License Restrictions. Customer is prohibited from the following:
5.1. Third Party Machines. Permitting the use of the Licensed Software
on any machine that is not a Customer machine.
5.2. Networked Machines. Permitting the linkage of any Customer machine
using the Licensed Software with a machine that is not a Customer
machine, unless (1) the prior written consent of Licensor shall
have been obtained; and (2) Customer will have first successfully
and at its own expense implemented those security measures, if any,
required by Licensor for such linkage.
6. Taxes. In addition to the consideration due from Customer under this
License, Customer will pay directly or reimburse Licensor for all
taxes, assessments, permits and fees which are, or may be in Licensor’s
reasonable opinion, levied upon the Licensed Software or its use,
exclusive of franchise taxes and taxes based upon Licensor’s income.
7.1. Confidentiality. Customer acknowledges that the Licensed Software,
the source code and other information related, and to be related,
to Customer by Licensor in the course of performance of Licensor’s
obligations under this License (the “Information”) constitutes and
contains confidential and proprietary information of Licensor.
Customer hereby agrees that the Licensed Software, the source code
and the Information will be received and held by it in strict confidence,
will be used only for purposes of this License and that none of the
Licensed Software, or the source code, and no Information which has
been marked or otherwise specifically identified as confidential
(“Confidential Information”) will be disclosed by Customer, or by
its agents or employees, without the prior written consent of Licensor,
except as (1) otherwise allowed by this License; or (2) may be necessary
by reason of legal, accounting or regulatory requirements beyond the
reasonable control of Customer.
7.2. Distribution. Customer will not distribute the Licensed Software to
persons other than its employees as required for Permitted Use in
the normal course of their employment.
7.3. Access. Customer will restrict access to the Licensed Software to (1)
employees of Customer or Licensor; (2) other persons (a) during the
period they are on Customer’s premises, (b) who are authorized by
Customer to have remote access to the Licensed Software, or (c) where
the prior, written consent of Licensor to such access has been obtained.
7.4. Notice. All copies of the Licensed Software made by Customer will contain
sufficient notice of Licensor’s ownership thereof; such notice will be
deemed to be sufficient if it consists of a reproduction or such notices
as are contained in the copies provided by Licensor. Further, should the
“Aleza” logo be used by Customer, no modification or resizing of the logo
shall be permitted by Customer without the prior written consent of Licensor.
7.5. Records. Customer will maintain records of the number, location and the name
of the Customer employee responsible for the security of all copies of the
Licensed Software in Customer’s possession or in the possession of third
parties hired by Customer, as permitted under this License.
7.6. Media. Customer will erase or destroy any copy of the Licensed Software on
any media before the disposal of such media by or on behalf of Customer.
7.7. Source Code Access. Customer will restrict access to the source code to
persons who (1) require such access for Permitted Use; and (2) are under
contractual obligations to Customer to maintain the confidentiality of
the source code.
8. Warranty. The Licensed Software will conform, when received by Customer,
to the software specifications. Licensor does not represent or warrant
that the software specifications will meet Customer’s requirements. The
Licensed Software may not operate as it may be modified by Customer.
Operation of the Licensed Software may not be uninterrupted or error-free.
THE WARRANTIES CONTAINED IN THIS LICENSE ARE IN PLACE OF ALL OTHER WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. Patents and Copyrights.
9.1. Notice of Claim. Customer agrees to give Licensor prompt notice of any
claim that the Licensed Software infringes a patent or copyright in
the United States of America or Puerto Rico and must fully cooperate
with Licensor in, the defense of the Claim and all related settlement
negotiations should such need arise.
9.2. Right to Cure. Customer agrees that, if the operation of the Licensed
Software becomes, or Licensor believes such operation is likely to
become, the subject of a Claim, Customer will permit Licensor, at
Licensor’s option and expense, either to secure the right of Customer
to continue using the Licensed Software or to replace or modify the
Licensed Software so that it becomes non-infringing. However, if
neither of the foregoing alternatives is available on terms that
are reasonable in Licensor’s judgment, Customer will return and/or
erase the Licensed Software upon Licensor’s written request.
9.3. Modifications. Licensor will have no obligation with respect to any
Claim based upon any Modification.
9.4. Entire Obligation. This Section 9 states Licensor’s entire obligation
to Customer regarding claims of infringement and similar matters.
10. Limitation of Remedies. The liability of Licensor to Customer under
this License and the remedies of Customer under this License will be
limited as follows:
10.1. Software Performance-Related Claims. In all situations involving
performance or nonperformance of the Licensed Software, Licensor
will attempt to make the Licensed Software operate as warranted.
If, after three efforts, Licensor does not provide such a remedy,
Customer will be entitled to recover actual damages to the limits
set forth in this Section 10.
10.2. Other Claims. For any other claim concerning performance or
nonperformance by Licensor pursuant to, or in any way related to,
the subject matter of this License, Customer will be entitled to
recover actual damages to the limits set forth in this Section 10.
10.3. Liability Limitations. Licensor’s liability for actual damages from
any cause whatsoever will be limited to the consideration received
by Licensor from Customer as provided in this License. This limitation
will apply, except as otherwise stated in this Section 10, regardless
of the form of action, whether in contract or in tort, including negligence.
10.4. Liability Exclusions. In no event will Licensor be liable for any
damages caused by Customer’s failure to perform under this License.
Licensor will not be liable for any loss of profits, loss of data,
loss of business or indirect, incidental, consequential or punitive
damages, even if Licensor has been advised of the possibility of
such damages. Licensor will not be liable for any damages claimed
by Customer based on any third party claim.
10.5. Adequate Consideration. Customer hereby agrees and acknowledges that
(1) the Licensed Software would not be made available to it by Licensor
for the consideration given by Customer but for the limitation of
remedies contained in this Section 10; (2) the rights it has obtained
to the Licensed Software pursuant to this License in exchange for the
limitation of remedies contained in this Section 10 and the other
consideration given by Customer constitutes a bargain which is fair
and reasonable to the parties; and (3) this bargain has been made by
Customer without coercion or the threat thereof from any person.
11. Injunctive Relief. Customer understands and agrees that (1) violation
in any material respect of any of the provisions of this License by
Customer will cause immediate and irreversible harm to Licensor;
(2) Licensor will in such event have no adequate remedy at law; and
(3) Licensor will in such event be entitled to immediate restraint,
as well as preliminary and other injunctive relief, without any
requirement to post bond, against any violation of this License by
Customer. Any injunctive relief sought by Licensor will be in addition
to, and in no way in limitation of, any and all remedies or rights to
recover damages which Licensor may have at law or in equity for the
enforcement of this License.
12. Compliance with Laws. Customer agrees to comply with all applicable
federal, state and municipal statutes, ordinances, rules and regulations,
including, without limitation, the rules and regulations under the U.S.
Export Administration Act and the U.S. Foreign Corrupt Trade Practices
Act, as the same may be amended from time to time. Without in any way
limiting the foregoing, Customer will not export or otherwise remove the
Licensed Software from the United States of America or Puerto Rico, either
directly or indirectly, without the consent of Licensor and without first
obtaining any licenses or approvals as may be required from the U.S.
Department of Commerce and any other applicable agency or department
of the United States government.
13. Sublicense. Customer may not sublicense, transfer or assign this License,
by operation of law, by merger or otherwise. Any attempt to so sublicense,
assign or transfer any of the rights, duties or obligations under this
License is void ab initio.
14. Customer’s Duties. Customer accepts the responsibility for (1) selection
of the Licensed Software to achieve its intended results; (2) the
installation of the Licensed Software; (3) the use of the Licensed
Software; (4) the results obtained from the Licensed Software; and (5)
the selection and use of, and the results obtained from, any other computer
software, machines, other equipment or services used with this Licensed Software.
15. Advertising. Customer agrees that use of the “aleza” logo shall not include
resizing or modification of said logo without the express written consent
of Licensor. Customer hereby grants Licensor permission to use Customer’s
name as a commercial reference regarding Customer’s use of the Licensed Software.
16.1. Customer Notice. Customer may terminate this License upon one month’s
16.2. Breach. Either party may terminate this License for failure of the
other to comply with the terms and conditions of this License.
16.3. Return of Copies. Upon the termination of this License, Customer
will return to Licensor or destroy all copies of the Licensed
Software, the source code, all Modifications and all tangible
embodiments of Confidential Information.
16.4. Termination of Licenses. Termination of this License will serve to
terminate all licenses to the Licensed Software granted hereunder.
17. Relationship of Parties. Licensor, in furnishing services to Customer
hereunder, is acting only as an independent contractor. Licensor does
not undertake by this License or otherwise to perform any obligation of
Customer, whether regulatory or contractual, or to assume any
responsibility for Customer’s business or operations.
18. Force Majeure. Licensor is not responsible for failure to fulfill its
obligations under this License due to causes beyond its control.
19. Exhibits Control. If there is a conflict between this License and any
exhibit or appendix attached thereto, such exhibit or appendix will prevail.
20. Limitations on Actions. Customer may not bring any action against Licensor
arising out of a breach of this License more than two (2) years after
such cause of action has arisen.
21.1. Waiver. No waiver of any breach of this License will be deemed to
constitute a waiver of any subsequent breach of the same or any other
21.2. Severability. If any provision of this License is declared or found
to be illegal, unenforceable or void, then all parties will be relieved
of all obligations arising under such provision, but only to the extent
that such provision is illegal, unenforceable or void, it being the
intent and agreement of the parties that this License will be deemed
amended by modifying the provision to the minimum extent necessary to
make it legal and enforceable while preserving its intent or, if that
is not possible, by substituting therefor another provision that is
legal and enforceable and achieves the same objective. If the remainder
of this License will not be affected by the declaration or finding
and is capable of substantial performance, then each provision not
so affected will be enforced to the extent permitted by law.
21.3. Entire Agreement. This License, together with all exhibits and appendices
attached to it, if any, constitutes the entire agreement of the parties,
superseding in all respects any and all prior proposals, negotiations,
understandings and other agreements, oral or written, between the parties.
21.4. Amendment. This License may be amended only by a written instrument duly
executed by both parties.
21.5. Notices. Any notice given pursuant to this License may be given by (1)
personal delivery; (2) deposit in the United States mail, prepaid, return
receipt requested; (3) deposit with a recognized courier company, prepaid,
return receipt requested; or (4) facsimile transmission, in each case to
the last address or number, as the case may be, of which the sending party
has received actual or constructive notice. Any such notice will be deemed
received (1) when delivered, if given pursuant to clause (1) of the
previous sentence; (2) on the earlier of (a) the fourth day after deposit,
or (b) at the time verification is made of delivery, if given pursuant to
clauses (2) or (3) of the previous sentence; or (3) when received, if
given pursuant to clause (4) of the previous sentence.
21.6. Interpretation. Headings used in this License are for convenience only
and will not be deemed to be operable text. Terms of gender will be deemed
interchangeable, as will singular and plural terms, in each case unless the
context otherwise requires. All monetary amounts used herein will be deemed
to refer to current U.S. dollars, unless the context otherwise requires.
21.7. Applicable Law. This License will be governed by the internal law of the
State of Illinois.
21.8. Jurisdiction. With respect to actions arising under this License, the parties
hereby (1) submit to the jurisdiction of any state or federal court seated
in DuPage County or Cook County in the State of Illinois and encompassing
such cities in its territorial jurisdiction; and (2) waive any claim that
any such court is an inconvenient forum.
22. Further Assurances. The parties will perform all such further acts, provide
such further documents or written assurances, and execute such further
documents as are reasonably required or necessary to carry out the acts
and transactions contemplated by this License.
Customer has read and fully understands the forgoing license agreement and agrees
to its terms. By indicating “ I AGREE “ customer hereby accepts this license agreement.