WHEREAS, the Licensor is the legal and beneficial owner of the Licensed Software (hereafter defined), and desires to license the Licensed Software to Licensee; and
WHEREAS, the Licensee desires to obtain a license to use the Licensed Software solely for its internal business purposes, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
"Action" means any third-party claim, suit, action, cause of action, or proceeding alleging that the Licensed Software or Documentation violates, infringes or misappropriates any U.S. patent issued and published on or before the Effective Date, or any copyright or trademark of that third party in the Territory.
Affiliates means any other entity directly or indirectly controlling, controlled by or under common control by a party, and with respect to Licensee, whose compliance with the terms and conditions of this Agreement Licensee will guarantee. Any reference to Licensee in this Agreement shall include Affiliates of Licensee.
"Authorized Users" means the employees of the Licensee who Licensee authorizes to use the Licensed Software, and the agents who (a) Licensee authorizes to use the Licensed Software; (b) Licensor approves in writing; and (c) agree in writing to strictly comply with this Agreement.
"Documentation" means user manuals, technical manuals and any other written materials provided by the Licensor to Licensee, in printed, electronic or other form, that describe the operation, use, functionality or technical specifications of the Licensed Software.
"Intellectual Property Rights" means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law, regulations or rules in any jurisdiction throughout the world.
"Licensed Software" means the current version of the Integrated Chemical Management (iCM) software installed in Microsoft Dynamics 365 for Finance and Operations, also referenced in the Agreement as iCM and any corrections, patches or fixes thereto provided by Licensor, as well as corresponding Documentation; but Licensed Software shall not include any software of, or provided by or through, Microsoft or any third parties, and further, the Licensed Software shall not be a Deliverable as defined in the Agreement. The iCM referenced in the Agreement shall be the Licensed Software as defined herein.
"Permitted Use" means use of the Licensed Software by an Authorized User strictly for the benefit of the Licensee in the ordinary course of Licensees or its Affiliates internal business operations only.
"Representatives" means a party's or its Affiliates employees, officers, directors, partners, or shareholders.
"Territory" means United States
- License Grant.
The Licensor hereby grants to the Licensee a non-exclusive, non-transferable, limited subscription license to use the Licensed Software (in object code form only) and Documentation in the Territory during the Term strictly in accordance with the terms and conditions of this Agreement and subject to compliance with the terms of the Microsoft Dynamics 365 for Finance and Operations software, which will be licensed by Licensee under a separate license agreement between Licensee and Microsoft. The existence of a valid license of Microsoft Dynamics 365 for Finance and Operations throughout the Term is a necessary prerequisite for this license grant. Use of the Licensed Software under this Agreement is restricted to Licensees Permitted Use.
For the purpose of licensing, iCM can be licensed for a minimum of 10 users or 10 user licenses.
- Scope of Use. The Licensed Software is incorporated within the Microsoft Dynamics 365 for Finance and Operations Licensee interface. Therefore, Licensee access to the Licensed Software is controlled and limited:
(1) via authentication to the Microsoft Dynamics 365 for Finance and Operations environment;
(2) by the use of security keys that govern Licensees access to functionality within the Microsoft Dynamics 365 for Finance and Operations environment. Licensee shall use the Licensed Software solely for its Permitted Use.
- Use Restrictions
- The Licensed Software and any permitted copies made by the Licensee shall be and remain the exclusive property of the Licensor, be subject to the terms and conditions of this Agreement and must include all copyright or other Intellectual Property Rights notices contained in the original.
- The Licensee shall not, and shall not permit any of its Representatives or third parties to, in any manner:
- reverse engineer, disassemble, decompile, decode or adapt the Licensed Software, or otherwise attempt to derive or gain access to the source code of the Licensed Software without the Licensor's express permission, in whole or in part, except as and only to the extent this restriction is prohibited by law;
- remove, disable, or otherwise create or implement any workaround to, any security features contained in the Licensed Software;
- remove, delete or alter any trademarks in the Licensed Software;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, or transfer or otherwise make the Licensed Software available to any third party, including but not limited to any competitor of Licensor for any reason;
- use the Licensed Software in violation of any federal, state, provincial or local law, regulation or rule applicable to Licensee (including without limitation any applicable export control laws);
- Export. Licensor and Licensee shall comply with all applicable export and import control laws and regulations in its use of the Licensed Software. Both parties shall not export or re-export the Licensed Software without all required United States and foreign government licenses. The Licensee will defend, indemnify, and hold Licensor harmless from and against any violation of such laws or regulations by Licensee, its agents or employees. The Licensor will defend, indemnify, and hold Licensee harmless from and against any violation of such laws or regulations by Licensor, its agents or employees.
- use the Licensed Software for purposes of developing a competing software product or service or any other purpose in a manner that is to the Licensor's commercial disadvantage.
- The Licensed Software is the exclusive confidential intellectual property of Licensor. Licensee shall promptly notify the Licensor if the Licensee becomes aware of any actual or possible third-party infringement of the Licensor's Intellectual Property Rights arising out of or relating to the Licensed Software and shall fully cooperate with the Licensor in any legal action taken by the Licensor against third parties to enforce its Intellectual Property Rights.
- Each party shall use the information disclosed to it by the other party pursuant to this Agreement solely for purposes of exercising its rights and performing its obligations pursuant to this Agreement and shall not disclose such information to any third party without the prior written consent of the other party.
(i) immediately terminate the License
(ii) demand and receive payment for the difference between the fees paid for the License Grant and the fees payable for Licensee's actual usage.
- Term. This Agreement shall commence on the Effective Date and, subject to Licensee's strict compliance with the terms of this Software License Agreement and except as otherwise permitted in Section 10.2 below, shall remain in effect for an initial period of 1 year, unless a different period is agreed upon and specified in the invoice (Initial Term). After the Initial Term, this Agreement will automatically renew for successive 3-year period, unless
(i) otherwise agreed by the parties
(ii) terminated earlier by either party pursuant to Section 10.2 ("Term").
- Termination. This Agreement may be terminated on written notice:
- by the Licensor, if the Licensee fails to pay any amount when due hereunder and such failure continues for 30 days after the Licensee's receipt of written notice of nonpayment from Licensor;
- by the Licensor, if the Licensee commits a breach of any provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the Licensee within 30 days after the Licensee's receipt of written notice of such breach from Licensor;
- by either party, effective immediately upon written notice, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property; or
- by Licensee, if the Licensor commits a breach of any provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the Licensor within 30 days after the Licensor's receipt of written notice of such breach from Licensee.
- Effect of Termination. On the termination of this Agreement, for any reason, the Licensee shall:
(a) immediately discontinue use of the Licensed Software;
(b) within 30 days, return to Licensor all copies of the Licensed Software, Documentation and all materials containing the Licensor's Confidential Information (this requirement applies to partial and complete copies in all forms, in all types of media and computer memory, and whether or not modified or merged into other materials) and certify such return or destruction;
(c) within 30 days, certify in writing to the Licensor that all such copies and materials have been returned or destroyed, and that Licensee's use of the Licensed Software has been discontinued; except that Licensor may retain a copy of such information only to the extent that may be required for it to comply with applicable quality assurance requirements.
- Survival. The provisions of Sections 4, 7, 8, 9, 10, 11, 12 and 13 shall survive the termination of this Agreement for any reason.
- Indemnification. Licensor hereby agrees to defend, indemnify and hold Client harmless from and against any and all liabilities, losses, damages and expenses (collectively "Liabilities") to the extent such Liabilities result from any Action. The preceding indemnification shall not apply to any violation, infringement or misappropriation arising out of (i) use of the Licensed Software other than in accordance with this Agreement or the applicable documentation or instructions supplied by Licensor ; (ii) any alteration, modification or revision of the Licensed Software that has not been identified as a standard Licensed Software function, configuration or enhancement; or (iii) the combination of the Licensed Software with materials not supplied or approved by Licensor.
- Defense: Licensor shall have sole control over the defense of such Action and any negotiations for settlement or compromise of such Action.
- Other Conditions: Licensee shall promptly notify Licensor in writing of any Action for which Licensor has an indemnification obligation hereunder, provided that Licensee's failure to so notify Licensor will relieve Licensor of its indemnity obligation to the extent that Licensor is actually prejudiced thereby. Licensee shall reasonably cooperate with Licensor, at Licensor's cost and expense, in the defense of any such Action, including, without limitation, by making available to Licensor all documents and information in Licensee's possession or control that are relevant to the Action, and by making Licensee's personnel available to testify or consult with Licensor or its attorneys in connection with such defense.
- Remedies: In the event of such a claim, then Licensor may, at its option and in its sole expense:
(i) procure for Licensee the right to continue using the Licensed Software;
(ii) replace or modify the Licensed Software so that they are functionally equivalent but do not violate, infringe or misappropriate any Intellectual Property Rights of a third party;
(iii) if Licensor is unable to provide one of the foregoing remedies under reasonable terms, or otherwise determines in its discretion that such remedies are or become economically impractical, then Licensor may require Licensee to return the Licensed Software to Licensor and Licensor shall refund any license fees paid by Licensee for the Licensed Software for the current year, as reduced in accordance with a straight-line depreciation schedule commencing on the date of delivery of the Licensed Software.
In addition, if the use of the Licensed Software or any portion thereof is held, or in Licensor's reasonable opinion is likely to be held, to constitute violation, infringement or misappropriation of any Intellectual Property Rights of a third party, whether or not in connection with an Action, Licensor may, within a reasonable time, at its option either:
(i) secure for Client the right to continue the use of such infringing item;
(ii) replace, at Licensor's sole expense, such item with a substantially equivalent non-infringing item or modify such item so that it becomes non-infringing. In the event Licensor is, in its reasonable discretion, unable to perform either of the options described in clauses (i) or (ii) above, Client shall return the Licensed Software to Licensor, and Licensor's sole liability shall be to refund to Client the license fees paid to Licensor for the Licensed Software for the current year, as reduced in accordance with a straight-line depreciation schedule commencing on the date of delivery of the Licensed Software.
- The provisions of this Section 11 state Licensor's entire liability and Licensee's sole and exclusive remedy with respect to any violation, infringement or misappropriation, or claim of thereof.
- EXCEPT AS OTHERWISE PROVIDED IN SCHEDULE 1, THE LICENSED SOFTWARE IS PROVIDED "AS IS" AND LICENSOR EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE LICENSED SOFTWARE, DOCUMENTATION, AND ANY OTHER SERVICES AND MATERIALS PROVIDED TO LICENSEE UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, LICENSOR PROVIDES NO WARRANTY, CONDITION, GUARANTEE OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE LICENSED SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE.
- EXCEPT WITH RESPECT TO LICENSOR'S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 11, LICENSOR'S AGGREGATE LIABILITY TO LICENSEE UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, SHALL NOT EXCEED THE AGGREGATE LICENSE FEES PAID BY LICENSEE FOR THE LICENSED SOFTWARE.
- BY VIRTUE OF THIS LICENSED SOFTWARE, THE LICENSOR PROVIDES THE INFRASTRUCTURE, WORKFLOW AND PROCESSES TO AUTHOR AND MAINTAIN SAFETY DATA SHEETS (SDS), CREATE AND MAINTAIN LABELS (LABELS INCLUDE BUT NOT LIMITED TO FINISHED GOODS, LABORATORY, SHIPPING AND OTHER LABELS) AND OTHER FUNCTIONALITY RELEVANT TO THE CHEMICAL, PHARMACEUTICAL AND FOOD INDUSTRIES. THE LICENSOR PROVIDES THE INFRASTRUCTURE AND FUNCTIONALITY ONLY AND DOES NOT TAKE ACCOUNTABILITY FOR ANY / ALL CHEMICAL DATA / INFORMATION STORED / MAINTAINED IN THE LICENSED SOFTWARE. THE LICENSEE WOULD BE SOLELY RESPONSIBLE TO ENSURE THAT THE DATA MAINTAINED IN THE LICENSED SOFTWARE IS ACCURATE AND IN ADHERENCE WITH THE LICENSEE'S INTENDED BUSINESS OBJECTIVES, COMPLIANCE TO REGULATORY BODIES AND ANY OTHER COMPLIANCE THEREIN.
- THE LICENSEE / END-USER OF THE LICENSED SOFTWARE TAKES SOLE RESPONSIBILITY FOR THE DATA PRINTED ON SAFETY DATA SHEETS (SDS), LABELS (ALL KINDS), INVOICES, PROFORMA INVOICES, SALES ORDERS AND SALES ORDER ACKNOWLEDGEMENTS, CERTIFICATE OF ANALYSIS, CUSTOMS DOCUMENTATION AND ANY OTHER INTERNAL / EXTERNAL DOCUMENTS.
(i) irrevocably waives any objection, including any objection based on the grounds of forum non convenience or any right of objection to jurisdiction on account of its place of incorporation or domicile, which it may have to the bringing of any such action in any such court,
(ii) irrevocably consent to service of process by first class certified mail, return receipt requested, or in any other manner provided by applicable law;
(iii) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT.
Schedule 1 to license agreement: iCM Software defect support schedule
- Definition. iCM Environment refers to iCM configurations and enhancements authored by Licensor and installed on Licensee environment(s). The iCM Environment is limited to the specific iCM functions as of the Agreement Effective Date. The iCM Environment is further defined to apply only to the Licensed Software installed with Microsoft Dynamics 365 for Finance and Operations as offered for sale by Microsoft (or any resellers) without any changes, configurations, customizations, or other modifications (i.e., iCM Environment assumes that the Licensed Software has been installed with Microsoft Dynamics 365 for Finance and Operations); except that iCM Environment will include certain Microsoft Dynamics 365 for Finance and Operations modules identified in writing by Licensor as having been tested and confirmed by Licensor as being part of iCM Environment. The iCM Environment specifically excludes custom Licensee or other configurations or enhancements (including without limitation those made by a person or entity other than Licensor) that have not been identified or documented as a standard iCM function, configuration or enhancement.
- Software Maintenance.
a. Licensor will make available to the Licensee (without additional license fees) patches, new or enhanced features or functions, updates or releases of the iCM Environment (collectively, Updates) if any Updates are released by Licensor during the term of this Schedule. In the event the Licensee contracts Licensor (independent of this Agreement) to develop a new feature or function, or to enhance an existing feature or function included in iCM, the Licensor will have the sole discretion to amend iCM with such new or enhanced feature for inclusion of Maintenance. Licensor will deliver revisions to the iCM Environment, if necessary, for a new version of Microsoft Dynamics 365 for Finance and Operations released by Microsoft within six months of Licensee's written intent to upgrade to the new version (for purposes of clarity, Microsoft's prior versions of Microsoft Dynamics 365 have been called, for example, Dynamics 2009, Dynamics 2012, Microsoft Dynamics AX7); except that Licensor will not be required to deliver revisions to the iCM Environment where the new version of Microsoft Dynamics 365 does not require updates or changes to the iCM Environment, as determined by Licensor. The six month commitment in the preceding sentence shall be postponed automatically and without notice to the extent that Licensor is prevented from meeting the six month commitment by causes beyond Licensor's reasonable control.
b. As indicated in the iCM Environment definition above, maintenance of the iCM Environment will not include or accommodate modifications or enhancements that have been made to Licensee's deployment of the Licensed Software or Microsoft Dynamics 365 for Finance and Operations, including without limitation where the Licensed Software or Microsoft Dynamics 365 for Finance and Operations have been altered (whether by Licensor or any other person or entity) to meet Licensee specific requirements.
- Software Defect Support
a. Licensor will provide defect support for the iCM Environment to Licensee. Licensee may report any incident to Licensor during the business hours from 8:00 AM. 6:00 PM, Monday through Friday, US Central Standard Time (CST) (excluding any U.S. holidays). Defect support shall include
(i) diagnosis of defects in the iCM Environment
(ii) a resolution of identified defects associated with the iCM Environment.
Licensor will work with Licensee to provide a means for the Licensee to log incidents associated with defects the Licensee may find within the iCM Environment. All cases shall receive a non-prioritized response within 24-48 hours.
b. Licensor will use reasonable efforts to cure reported and reproducible defects in the iCM Environment. With respect to any such defect, Licensor will be responsible for the costs associated with the diagnosis and resolution of the defect in the iCM Environment if the defect is determined by Licensor to be related to the iCM Environment. If it is determined by Licensor that the defect is not related to the iCM Environment or is caused by a defect associated with Microsoft or a third party software provider, the Licensee agrees to pay Licensor's standard consulting rates for all time and potential expense associated with servicing the incident.
c. The iCM Environment is closely interrelated with Microsoft Dynamics 365 for Finance and Operations and third party software and Licensor is expressly not responsible for maintenance or support or defects associated with or caused by Microsoft Dynamics 365 or any other third party software functionality as determined by Licensor. Upon the Licensee's request, Licensor will assist Licensee in Licensee's initiation of a support incident with Microsoft or a third party software provider for Microsoft or the third party software provider to diagnose and resolve the Microsoft Dynamics 365 or third party software defect so long as Licensee has appropriate maintenance and support agreements in place with Microsoft and the third party software providers.
- Additional Conditions.
a. This Schedule 1 shall not be used or construed as an agreement by Licensor to provide consulting services to Licensee. Maintenance and support for the iCM Environment excludes Licensee or third-party configurations or enhancements that have not been identified in writing by Licensor as a standard iCM function, configuration or enhancement. Further, and without limitation, upgrading a Licensee version of Microsoft Dynamics 365 for Finance and Operations to a subsequent version is not covered in this Schedule 1, and any services relating to or arising from such an upgrade will be proposed separately in a Statement of Work under the Agreement.
b. Licensor may, in its sole discretion, discontinue support for a iCM Environment that functions with prior versions of the then-most-recent Microsoft Dynamics 365 for Finance and Operations version twelve (12) months following the generally accepted release date of the new version of Microsoft Dynamics 365 for Finance and Operations.
- Warranty Disclaimer. Although Licensor will undertake reasonable efforts to provide technical assistance under this agreement and to rectify or provide solutions to errors as described HEREIN, Licensor does not guarantee that the errors will be solved or that any item will be error-free. This agreement is applicable only to iCM Environment as defined. Licensor may, from time to time, discontinue iCM Environment products or versions or stop supporting iCM Environment products or versions one year after discontinuance, or otherwise discontinue any support service. except as otherwise provided in this section 5, MAINTENANCE AND SUPPORT IS PROVIDED "AS IS" AND LICENSOR EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE MAINTENANCE, SUPPORT, LICENSED SOFTWARE, DOCUMENTATION, AND ANY OTHER SERVICES AND MATERIALS PROVIDED TO LICENSEE UNDER THIS SCHEDULE, INCLUDING ALL IMPLIED REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, LICENSOR PROVIDES NO WARRANTY, CONDITION, GUARANTEE OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT MAINTENANCE OR SUPPORT WILL MEET LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE.
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