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SCRUMWORKS®PRO SOFTWARE LICENSE - GENERAL TERMS AND CONDITIONS
This License Agreement (“License”) is by and between CollabNet, Inc., a Delaware corporation (“Licensor”), and the Licensee set forth in the Order executed between the parties (“Licensee”).
RECITALS:
Licensor has the right to license the Software; Licensee desires to subscribe for a license to use the 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. Definitions.
1.1. “Authorized Computer” means the single computing device, or single virtualized computing device, owned, leased, rented or controlled by Licensee on which the Server Software will be installed.
1.2. “Authorized User” or “User” means a single human being (a) who is assigned an individual login code as an Authorized User of the Software, and (b) who is either (i) an employee of Licensee or (ii) an individual independent contractor using the Software in the course of performing services on behalf of Licensee, who has a confidentiality agreement in place with Licensee with respect to the Software as protective as the provisions of Section 6.1 below and for whom Licensee remains responsible.
1.3. “Documentation” means any written instructions and/or end-user manuals, describing installation, use, and/or operation of the Software, that Licensor provides to Licensee along with the Software.
1.4. “Information” has the meaning set forth in Section 6.1 (Confidentiality).
1.5. “License Date” means the effective date of the License specified in the Order.
1.6. “Modifications” means (1) any addition to or deletion from the substance or structure of the Software; and (2) any computer software that (a) is derivative of the Software; (b) emulates or performs substantially the same functions as the Software; or (c) results from the merger of the Software with other software.
1.7. “Open Source Software” means software governed by open source, free or other public licenses, whether provided by Licensor or accessed from third parties
1.8. “Per-Seat License” means a license under which both (a) the maximum number of Users at any moment is the Maximum Number of Authorized Users listed in the Order, and (b) all current Authorized Users may simultaneously Use the Software.
1.9. “Permitted Use” has the meaning set forth in Section 3.1 (Permitted Use).
1.10. “Product Upgrade” means a successor version of the Software that is a ScrumWorks Pro solution made generally available to Licensee in accordance with Support Services provided to Licensee, if applicable. Subject to the terms and conditions hereof, Product Upgrades shall include, for example, the following:
a) successor version(s) of the Software that incorporate corrections, upgrades and/or enhancements to the Software, whether or not such corrections, upgrades and/or enhancements are marketed separately by Licensor;
b) migration from one operating system to another prescribed by Licensor;
c) migration from 32-bit Software to 64-bit Software;
d) migration from one platform generation to the next platform generation of Software;
e) migration by Licensor of Software from one localized language (e.g.: U.S. English) to any other localized language (e.g.: German) to the extent that Licensor has made such migration available to other licensed users of the Software; and
f) new releases containing increased Software functionality derived from the Software (whether marketed separately or as part of a more comprehensive release).
If Licensor removes a feature or function from the Software that existed as of the License Date, or which resulted from a Product Upgrade during the term of this License, and Licensor then distributes the removed feature or function as a stand-alone or other product, then such new stand-alone product shall be deemed to be a Product Upgrade for purposes of this License. If Licensor develops other Software products outside the ScrumWorks Pro solutions, including, but not limited to, products developed and marketed by Licensor solely as separate modules or plug-ins to complement or enhance the functionality of the Software, it shall be at Licensor’s discretion as to whether or not such other software products are distributed as a Product Upgrade.
1.11. “Server Software” means the Server component of the Software.
1.12. “Software” means all or any part of the Licensed Software listed in the Term Sheet, including, without limitation, any related (1) instructions or statements in computer-readable form; (2) any database in computer-readable form; (3) any related materials, including Documentation and listings, whether in computer-readable or printed form; and (4) all copies of the foregoing. Software also includes all patches and Product Upgrades and any error corrections or fixes, which patches, Product Upgrades, error corrections or fixes Licensor has actually supplied to Licensee.
1.13. “Support Services” means the Platinum, Gold and Silver levels of software maintenance and technical support services described at the following website:
www.collab.net/support/support-programs. If Support Services are purchased by Licensee, the level of Support Services provided shall be as set forth in the Order.
1.14. “Ten-User License” means a royalty-free license of the Software for a maximum of ten (10) Authorized Users.
1.15. “Use,” including any form of such word as a noun or a verb, as relates to the Software, means (i) copying of the Software into a computer for processing; (ii) storing of the Software in a computer; (iii) transmission of the Software through a computer; (iv) display of the Software on a computer; and/or (v) processing of the Software by a computer.
2. Title.
2.1. Software. This License is not a sale and will not be deemed to constitute a transfer by Licensor of its title to the Software.
2.2. Requests or Suggestions for Modification. Any requests or suggestions for modification of the Software, bug reports, issue reports, or the like, and all software ideas, processes, methods, programming aids or flowcharts developed, prepared, conceived, made or suggested by Licensee, Licensor, their employees or third parties hired by either or both under, or related to the performance of, this License, including all such developments as are originated or conceived during the term of this License but are completed or reduced to practice thereafter (“Work Product”), 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 Licensee 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 Licensee and/or its agents and employees may have in or to such Work Product or any tangible media embodying such Work Product are hereby assigned to Licensor.
3. License Grant.
3.1. Permitted Use. Licensor hereby grants Licensee a world-wide, non-exclusive, non-transferable, per-seat license for the Term of License (see Section 10 Term of License), subject to Licensee’s compliance with all the terms and conditions of this License, and subject to Sections 5 (Licensee Restrictions) and 6 (Security), to use, reproduce, display, and make back-up copies of the Software for Licensee’s internal purposes (“Permitted Use”).
3.2. Ownership. Licensee agrees that Licensor or its licensors, own all proprietary rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software. This License will not be deemed to constitute a transfer by Licensor of its title or proprietary rights to the Software. Licensee is not acquiring any right, title or interest of any nature whatsoever in any Software except as this License sets forth in Section 3.1 (Permitted Use).
3.3. ScrumWorks® Trademarks and Logo. Except as required by Section 18 (Advertising), this License does not grant any rights to use the name “ScrumWorks”, “ScrumWorks Pro”, the “ScrumWorks” logo, or any other marks of ScrumWorks or Licensor , even if such marks are included in the Software.
4. Fees.
4.1. Fees From Term Sheet. Licensee must pay Licensor the fees set forth in the Order. These fees include any: License Fee and Support Fee (collectively, “Fees”).
4.2. Ten-User License. No license fee shall be charged to Licensee in connection Licensee’s use of a Ten-User License.
4.3. Annual License Fee. Unless (a) Licensee paid for a Fully-Paid License or (b) Licensee terminates this license pursuant to Section 11.2 (Licensee Notice) prior to receiving an annual invoice, Licensee must pay any invoiced Annual License Fees.
4.4. Annual Support Fee. Unless prior to receiving an annual invoice (a) Licensee terminates this license pursuant to Section 11.2 (Licensee Notice), or (b) Licensee terminates Support Services, Licensee must pay any invoiced Annual Support Fees.
4.5. Increased Users. Licensee may, subject to acceptance by Licensor, increase the Maximum Number of Authorized Users by paying Licensor an increased flat-fee based on Licensor’s then-current rates and by executing a revised Order, except in connection with a Ten-User License which may in no event exceed ten Authorized Users. In addition, if Licensor is supplying Support Services, Licensor will immediately bill, and Licensee must immediately pay, an additional pro-rated Support Fee for the remainder of the year during which the increase takes effect. Licensor will not provide Support Services for subsequent years unless Licensee agrees to, and pays, increased Annual Support Fees reflecting the increase in users.
4.6. Manner of Payment. Except as may be agreed to by Licensor, all initial Fees due shall be paid electronically, by wire transfer or a debit or credit card accepted by Licensor via the Internet, upon execution of this License by the parties. All subsequent fees are payable ten (10) days after receipt of Licensor’s invoice. All fees and prices are exclusive of taxes, and Licensee shall be solely responsible for any sales, value-added or similar tax, other than taxes imposed on Licensor’s income. All fees are payable in US dollars.
5. Licensee Restrictions. Licensee is prohibited from:
5.1. Authorized Computer. Permitting the installation or use of the Server Software on any computing device other than the Authorized Computer. Licensee may upon request and Licensor’s approval transfer the Server Software to another Authorized Computer, if Licensee changes servers.
5.2. Authorized Users. Permitting the use of or access to the Software by any person other than an Authorized User on his or her computer; having – at any one time – more than the Maximum Number of Authorized Users .
5.3. Modifications. Translating, reverse engineering, decompiling, recompiling, updating, or making any other Modifications to the Software.
5.4. Distribution. Selling, sublicensing or distributing the Software.
6. Security.
6.1. Confidentiality. Licensee acknowledges that the Software and the terms, conditions and subject matter of this License constitute and contain confidential and proprietary information of Licensor. Licensee hereby agrees that the foregoing information will be received and held by it in strict confidence, will be used only for purposes of this License and that none of such information or any other data which has been marked or otherwise specifically identified as confidential or otherwise constitutes a trade secret under applicable law (collectively the foregoing information is “Confidential Information”) will be disclosed by Licensee, or by its agents or employees, without the prior written consent of Licensor, except as (1) otherwise allowed by this License; or (2) after 30 day’s written notice to Licensor, may be necessary by reason of legal, accounting or regulatory requirements beyond the reasonable control of Licensee.
6.2. Distribution. Licensee must not distribute the Software except to its Authorized Users as required for Permitted Use in the normal course of their employment.
6.3. Access. Licensee will restrict access to the Software to persons who (1) are Authorized Users and with respect to whom all Fees have been paid (provided, however, that other employees of Licensee may access certain reports called Web Reports on the Authorized Computer); and (2) are under contractual obligations to Licensee to maintain the confidentiality of the Software.
6.4. Notice. All copies of the Software made by Licensee will contain sufficient notice of Licensor’s ownership thereof; such notice will be deemed to be sufficient if it consists of an exact reproduction of such notices as are contained in the copies provided by Licensor.
6.5. Records. Licensee will maintain records of the number, location and the name of the Authorized User(s) responsible for the security of all copies of the Software in Licensee’s possession.
6.6. Media. Licensee will erase or destroy any copy of the Software on any media before the disposal of such media by or on behalf of Licensee.
6.7. Login Codes. Licensee will ensure that any individual login code assigned by Licensor is known only to, and used only by a single Authorized User, and is not shared among individuals. Login codes may, upon Licensee’s request and subject to Licensor’s approval, be cancelled or transferred to another Authorized User. Licensor shall have the
right to disable Licensor’s access to the Software and terminate all login privileges upon the expiration or termination of this License.
7. Indemnification.
7.1. Scope of Indemnification. Subject to Sections 7.4 (Entire Obligation) and 12.2 (Liability Limitations), Licensor will at its own expense defend Licensee against any bona fide claim that the Software infringes, in the United States, a United States patent or copyright (“Claim”). Licensor will pay all costs, damages and attorneys’ fees that a court finally awards as a result of a Claim. To qualify for such defense and payment, Licensee must (a) give Licensor prompt notice of a Claim; and (b) allow Licensor to control, and fully cooperate with Licensor in, the defense of the Claim and all related settlement negotiations.
7.2. Right to Cure. Licensee agrees that, if the operation of the Software becomes, or Licensor believes such operation is likely to become, the subject of a Claim, Licensee will permit Licensor, at Licensor’s option and expense, either to secure the right of Licensee to continue using the Software or to replace or modify the 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, Licensor may terminate this License pursuant to Section 11.3 (Licensor Notice).
7.3. Exclusions. The foregoing notwithstanding, Licensor shall have no liability for a Claim to the extent it is based on: (i) Open Source Software included in or provided with the Software; (ii) the use by Licensee of the Software more than thirty (30) days after Licensor notifies Licensee that continued use of the Software may subject Licensee to a Claim ; (iii) the use of the Software in combination with other software, hardware or products not provided by Licensor, which Claim would have been avoided if the Software had not been so combined; or (iv) the Modification of the Software by anyone other than Licensor. In addition, Licensor shall not provide any indemnification whatsoever in connection with Trial Licenses or Ten-User Licenses licensed hereunder.
7.4. Entire Obligation. This Section 7 states Licensor’s entire obligation to Licensee regarding Claims of infringement and similar matters.
8. Limited Warranty.
8.1. Except as provided below, Licensor warrants that during the term of this License the current version(s) of the Software provided to Licensee will perform substantially in accordance with the Documentation. Licensor does not represent or warrant that the Software specifications will meet Licensee’s requirements, or that operation of the Software will be uninterrupted or error-free. During the warranty period, Licensor will, at no extra charge, evaluate the problem and may in its sole discretion elect to either: (i) correct any defect discovered in the Software so that it will perform as warranted herein; (ii) fix the defect in the next release or other upgrade of the Software; or (iii) not fix the defect. Notwithstanding the foregoing, Licensor shall not provide any such warranty for
Trial Licenses or Ten-User Licenses licensed hereunder, which are provided “as-is” without warranty of any kind.
8.2. Licensor warrants that it has the right to grant the rights to the Software under this License.
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.
PORTIONS OF THE SOFTWARE MAY INCLUDE OR HAVE BEEN CREATED USING OPEN SOURCE SOFTWARE. NOTWITHSTANDING ANY WARRANTY PROVISIONS HEREIN, LICENSOR IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING FROM A CLAIM BY ANY THIRD PARTY WITH RESPECT TO SUCH OPEN SOURCE SOFTWARE.
9. Support.
9.1. Trial License. Licensor may, in its sole discretion, provide Licensee with any, all, or none of the Support Services.
9.2. Ten-User License. Licensor may, in its sole discretion, provide Licensee with any, all, or none of the Support Services.
9.3. Fully-Paid License, Year-by-Year Support. Licensor shall, subject to the terms of this License, provide the Support Services for years for which Licensee pays in advance the invoiced Annual Support Fee described in the Order plus any additional pro-rata fee described in Section 4.4 (Increased Users). A Licensee with a Fully Paid License, Year-to-Year Support may convert future years’ licenses to Fully Paid License, No Support by giving Licensor written notice before Licensor sends the invoice for Annual Support Fees.
9.4. Fully-Paid License, No Support. Licensee is not entitled to any Support Services.
9.5. Annual License. Licensor shall, subject to the terms of this License, provide the Support Services for years for which Licensee pays in advance the invoiced Annual License and Support Fee described in the Order plus any additional pro-rata fee described in Section 4.4 (Increased Users).
10. Term of License.
10.1. Trial License. A Trial License expires automatically at the earlier of (a) 30 days after Licensor sends Licensee an email with a link to a trial license key or (b) termination pursuant to Section 11 (Termination).
10.2. Ten-User License. A Ten-User License will remain in effect unless and until terminated (a) automatically or by Licensor pursuant to Section 11 (Termination), or (b) by Licensee pursuant to Section 11.2 (Licensee Notice).
10.3. Fully Paid License. A Fully-Paid License will remain in effect unless and until terminated (a) automatically or by Licensor pursuant to Section 11 (Termination), or (b) by Licensee pursuant to Section 11.2 (Licensee Notice).
10.4. Annual License. An Annual License will terminate the earliest of (a) one year after the License Date or the latest anniversary date for which Licensee has timely paid the invoiced License Fee, (b) termination by Licensor pursuant to Section 11 (Termination), or (c) termination by Licensee pursuant to Section 11.2 (Licensee Notice).
11. Termination.
11.1. Breach. This License and the rights granted hereunder will terminate automatically if Licensee fails to comply with all the terms herein and fails to cure such breach within thirty (30) days of becoming aware of the breach. Licensee will not be entitled to any refund.
11.2. Return of Copies. Upon the termination or expiration of this License, Licensee will return to Licensor or destroy all copies of the Software and all tangible embodiments of Confidential Information.
11.3. Termination of Licenses. Termination or expiration of this License will serve to terminate all licenses to the Software granted hereunder.
12. Limitation of Remedies. THE LIABILITY OF LICENSOR TO LICENSEE AND THE REMEDIES OF LICENSEE ARE LIMITED BY SECTIONS 12.1 THROUGH 12.5 AS FOLLOWS:
12.1. Software Performance-Related Claims. In all situations involving performance or nonperformance of the Software, if Licensor does not – after repeated opportunity – make the Software comply with the warranty of Section 8 (Limited Warranty), Licensee will be entitled to recover actual damages subject to the limits set forth in Section 12.2 (Liability Limitations).
12.2. Liability Limitations. This Section 12.2 limits the type and amount of damages to which Licensee is entitled; it does not create any remedy that is otherwise precluded by this License. LICENSOR’S LIABILITY FOR ACTUAL DAMAGES FROM ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE LICENSE FEE PLUS THE MOST RECENT ANNUAL SUPPORT FEE (IF ANY) PAID BY LICENSEE. THIS LIMITATION WILL APPLY, EXCEPT AS OTHERWISE STATED IN SECTION 12 (LIMITATION OF REMEDIES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE. IN ADDITION, THIS LIMITATION WILL APPLY TO THE PAYMENT OF COSTS, DAMAGES AND ATTORNEYS’ FEES REFERRED TO IN SECTION 7.1 (INDEMNIFICATION). THIS LIMITATION WILL NOT APPLY TO CLAIMS BY LICENSEE FOR BODILY INJURY OR DAMAGE TO REAL PROPERTY FOR WHICH LICENSOR IS LEGALLY LIABLE.
12.3. Liability Exclusions. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL LICENSOR, OR ANY DISTRIBUTOR OF THE SOFTWARE, OR ANY SUPPLIER OF ANY OF SUCH PARTIES, BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY LOSS OF PROFITS, LOSSES THAT ARE OUTSIDE LICENSOR’S REASONABLE CONTROL, LOSS OF DATA, LOSS OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. This limitation of liability shall not apply to liability for death or personal injury resulting from such party’s negligence to the extent applicable law prohibits such limitation. However, the exclusions described in this Section 12.3 will not apply to the payment of costs, damages and attorneys’ fees referred to in Section 7.1 (Indemnification).
12.4. Waiver re Related Parties. Licensee waives all claims and remedies arising out of or related in any way to this License, or the entry into or performance of this License, against: Licensor’s employees, agents, owners and officers, and against Licensor’s affiliated companies and employees, agents, owners and officers. This waiver applies regardless whether the claim or remedy is known, unknown, or has not yet arisen.
12.5. Adequate Consideration. Licensee hereby agrees and acknowledges that (i) the Software would not be made available to it by Licensor for the consideration given by Licensee but for the limitations, exclusions, and waivers contained in this Section 12 (Limitation of Remedies); (ii) the rights it has obtained to the Software pursuant to this License in exchange for the limitations, exclusions, and waivers contained in this Section 12 (Limitation of Remedies) and the other consideration given by Licensee constitute a bargain which is fair and reasonable to the parties; and (iii) this bargain has been made by Licensee without coercion or the threat thereof from any person.
13. Injunctive Relief. Licensee understands and agrees that (i) violation in any material respect of any of the provisions of this License by Licensee will cause immediate and irreversible harm to Licensor; (ii) Licensor will in such event have no adequate remedy at law; and (iii) 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 Licensee. 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.
14. Compliance with Laws. Licensee 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, and any successor law and laws regarding the transmission of technical data exported from the United States or from the country in which Licensee resides. Without in any way limiting the foregoing, Licensee will not export or otherwise remove the Software from the United States or the country in which Licensee resides, either directly or indirectly, without first obtaining any licenses or approvals as may be required. The Software may not be downloaded or used by any individuals in U.S. embargoed countries or by persons listed on the EAR’s “Denied Parties” or “Part 744 Entity List” or the Office of Foreign Asset Control’s “Specially Designed National” list. Licensee certifies that the Licensee, and all Authorized Users, are not subject to U.S. export prohibitions and will not make the Software available to other countries or parties who are subject to such prohibitions. Licensee is responsible for determining – at the time that Licensee makes the Software available to any person – whether such person is then subject to US export prohibitions.
15. Government Use. With respect to the Software as same may be delivered to the United States government or any governmental agency, including, without limitation, the Department of Defense, or political subdivisions of the United States government (collectively, the “Government”), the Software constitutes commercial computer software and is provided with Restricted Rights according to the following legend:
Use, duplication or disclosure by the Government is subject to restrictions as set forth in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013.
16. Assignment. Licensee may not assign, transfer or sublicense this License or any rights and obligations thereunder, by operation of law, by merger or otherwise, without the prior written consent of Licensor. Any attempt to so sublicense, assign or transfer any of the rights, duties or obligations under this License is void ab initio. A change in control shall be an assignment subject to this section. Licensor may freely assign its rights under this License to an acquirer, successor in interest, or other designee without notice to any party. This License is binding upon Licensor’s permitted successors and assigns.
17. Licensee’s Duties. Licensee accepts the responsibility for (i) selection of the Software to achieve its intended results; (ii) the installation of the Software; (iii) the use of the Software; (iv) the results obtained from the Software including any data stored in connection with the Software; and (v) the selection and use of, and the results obtained from, any other computer software, computers, other equipment or services used with the Software.
18. Advertising. Licensee agrees to include in all its promotional literature and other advertising in which the capabilities of the Software are explicitly or implicitly mentioned or referred to a phrase indicating by product name that the Software is a proprietary software product of Licensor and that the product name is a trademark of Licensor. Licensee hereby grants Licensor permission to use Licensee’s name as a commercial reference regarding Licensee’s use of the Software.
19. Miscellaneous.
19.1. Entire Agreement. This License, together with the 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. This License may be amended only by a written instrument duly executed by the parties.
19.2. No Waiver; Unenforceability. The waiver or failure of Licensor to exercise in any respect any right provided for in this License shall not be deemed a waiver of any further right under this License. If any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.
19.3. Legal Proceedings. If legal action is required to enforce or interpret the provisions of this License, the prevailing party shall be entitled to recover its reasonable costs of attorneys’ fees and litigation costs from the other party. This License shall be governed and enforced by the laws of the State of California, without reference to principles of conflict of laws, and exclusive venue of any legal action between the parties arising out of or in connection with this License shall be with the competent state court in San Mateo County, California or federal court in the Northern District of California, and Licensee consents to personal jurisdiction there and waives any objection to the same. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any law or regulation which provides that the language of a contract shall be construed against the drafter shall not apply to this License.
19.4. Statute of Limitations. Any statute or law to the contrary notwithstanding, any claim or cause of action arising out of or related to use of the Software or this License – other than a claim arising out of or related to Sections 5 (Licensee Restrictions), 6 (Security), or 11.4 (Return of Copies) – must be filed within one (1) year after such claim or cause of action arose or be forever barred.
19.5. Headings. Interpretation. The Section headings in this License are for convenience only and have no legal or contractual effect. Terms of gender will be deemed interchangeable, as will singular and plural terms, in each case unless the
context otherwise requires. All monetary amounts and all references to payments herein will be deemed to refer to current U.S. dollars.
19.6. Notices. All notices (other than routine Fee increases which may be delivered by e-mail), demands, or other communications herein provided to be given or that may be given by any party to the other shall be deemed to have been duly given when made in writing and delivered in person, by courier, or upon receipt, if deposited in the United States mail, postage prepaid, certified mail, return receipt requested, as follows:
Notices to Licensor: Notices to Licensee:
CollabNet, Inc. 8000 Marina Blvd. The address specified by
Suite 600 Licensee in the Order
Brisbane, CA 94005
U.S.A. Attn: General Counsel
or to such address as the parties may provide to each other by written notice from time to time.
19.7. Third Party Beneficiaries. This License is entered into solely for the benefit of Licensor and Licensee. No third party shall have the right to make any claim or assert any right under it, and no third party shall be deemed a beneficiary of this License.
19.8. Survival. The following sections will survive termination of this License: 1 (Definitions), 2 (Title), 3.2 (Ownership), 3.3 (ScrumWorks® Trademarks and Logo), 5 (Licensee Restrictions), 6 (Security), 12.2 (Liability Limitations), 12.3 (Liability Exclusions), 12.5 (Waiver re Related Parties), 12.6 (Adequate Consideration), 13 (Injunctive Relief), 16 (Assignment), 19 (Miscellaneous) – other than 19.7 (Notices).
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SCRUMWORKS®PRO SOFTWARE LICENSE - GENERAL TERMS AND CONDITIONS
This License Agreement (“License”) is by and between CollabNet, Inc., a Delaware corporation (“Licensor”), and the Licensee set forth in the Order executed between the parties (“Licensee”).
RECITALS:
Licensor has the right to license the Software; Licensee desires to subscribe for a license to use the 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. Definitions.
1.1. “Authorized Computer” means the single computing device, or single virtualized computing device, owned, leased, rented or controlled by Licensee on which the Server Software will be installed.
1.2. “Authorized User” or “User” means a single human being (a) who is assigned an individual login code as an Authorized User of the Software, and (b) who is either (i) an employee of Licensee or (ii) an individual independent contractor using the Software in the course of performing services on behalf of Licensee, who has a confidentiality agreement in place with Licensee with respect to the Software as protective as the provisions of Section 6.1 below and for whom Licensee remains responsible.
1.3. “Documentation” means any written instructions and/or end-user manuals, describing installation, use, and/or operation of the Software, that Licensor provides to Licensee along with the Software.
1.4. “Information” has the meaning set forth in Section 6.1 (Confidentiality).
1.5. “License Date” means the effective date of the License specified in the Order.
1.6. “Modifications” means (1) any addition to or deletion from the substance or structure of the Software; and (2) any computer software that (a) is derivative of the Software; (b) emulates or performs substantially the same functions as the Software; or (c) results from the merger of the Software with other software.
1.7. “Open Source Software” means software governed by open source, free or other public licenses, whether provided by Licensor or accessed from third parties
1.8. “Per-Seat License” means a license under which both (a) the maximum number of Users at any moment is the Maximum Number of Authorized Users listed in the Order, and (b) all current Authorized Users may simultaneously Use the Software.
1.9. “Permitted Use” has the meaning set forth in Section 3.1 (Permitted Use).
1.10. “Product Upgrade” means a successor version of the Software that is a ScrumWorks Pro solution made generally available to Licensee in accordance with Support Services provided to Licensee, if applicable. Subject to the terms and conditions hereof, Product Upgrades shall include, for example, the following:
a) successor version(s) of the Software that incorporate corrections, upgrades and/or enhancements to the Software, whether or not such corrections, upgrades and/or enhancements are marketed separately by Licensor;
b) migration from one operating system to another prescribed by Licensor;
c) migration from 32-bit Software to 64-bit Software;
d) migration from one platform generation to the next platform generation of Software;
e) migration by Licensor of Software from one localized language (e.g.: U.S. English) to any other localized language (e.g.: German) to the extent that Licensor has made such migration available to other licensed users of the Software; and
f) new releases containing increased Software functionality derived from the Software (whether marketed separately or as part of a more comprehensive release).
If Licensor removes a feature or function from the Software that existed as of the License Date, or which resulted from a Product Upgrade during the term of this License, and Licensor then distributes the removed feature or function as a stand-alone or other product, then such new stand-alone product shall be deemed to be a Product Upgrade for purposes of this License. If Licensor develops other Software products outside the ScrumWorks Pro solutions, including, but not limited to, products developed and marketed by Licensor solely as separate modules or plug-ins to complement or enhance the functionality of the Software, it shall be at Licensor’s discretion as to whether or not such other software products are distributed as a Product Upgrade.
1.11. “Server Software” means the Server component of the Software.
1.12. “Software” means all or any part of the Licensed Software listed in the Term Sheet, including, without limitation, any related (1) instructions or statements in computer-readable form; (2) any database in computer-readable form; (3) any related materials, including Documentation and listings, whether in computer-readable or printed form; and (4) all copies of the foregoing. Software also includes all patches and Product Upgrades and any error corrections or fixes, which patches, Product Upgrades, error corrections or fixes Licensor has actually supplied to Licensee.
1.13. “Support Services” means the Platinum, Gold and Silver levels of software maintenance and technical support services described at the following website:
www.collab.net/support/support-programs. If Support Services are purchased by Licensee, the level of Support Services provided shall be as set forth in the Order.
1.14. “Ten-User License” means a royalty-free license of the Software for a maximum of ten (10) Authorized Users.
1.15. “Use,” including any form of such word as a noun or a verb, as relates to the Software, means (i) copying of the Software into a computer for processing; (ii) storing of the Software in a computer; (iii) transmission of the Software through a computer; (iv) display of the Software on a computer; and/or (v) processing of the Software by a computer.
2. Title.
2.1. Software. This License is not a sale and will not be deemed to constitute a transfer by Licensor of its title to the Software.
2.2. Requests or Suggestions for Modification. Any requests or suggestions for modification of the Software, bug reports, issue reports, or the like, and all software ideas, processes, methods, programming aids or flowcharts developed, prepared, conceived, made or suggested by Licensee, Licensor, their employees or third parties hired by either or both under, or related to the performance of, this License, including all such developments as are originated or conceived during the term of this License but are completed or reduced to practice thereafter (“Work Product”), 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 Licensee 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 Licensee and/or its agents and employees may have in or to such Work Product or any tangible media embodying such Work Product are hereby assigned to Licensor.
3. License Grant.
3.1. Permitted Use. Licensor hereby grants Licensee a world-wide, non-exclusive, non-transferable, per-seat license for the Term of License (see Section 10 Term of License), subject to Licensee’s compliance with all the terms and conditions of this License, and subject to Sections 5 (Licensee Restrictions) and 6 (Security), to use, reproduce, display, and make back-up copies of the Software for Licensee’s internal purposes (“Permitted Use”).
3.2. Ownership. Licensee agrees that Licensor or its licensors, own all proprietary rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software. This License will not be deemed to constitute a transfer by Licensor of its title or proprietary rights to the Software. Licensee is not acquiring any right, title or interest of any nature whatsoever in any Software except as this License sets forth in Section 3.1 (Permitted Use).
3.3. ScrumWorks® Trademarks and Logo. Except as required by Section 18 (Advertising), this License does not grant any rights to use the name “ScrumWorks”, “ScrumWorks Pro”, the “ScrumWorks” logo, or any other marks of ScrumWorks or Licensor , even if such marks are included in the Software.
4. Fees.
4.1. Fees From Term Sheet. Licensee must pay Licensor the fees set forth in the Order. These fees include any: License Fee and Support Fee (collectively, “Fees”).
4.2. Ten-User License. No license fee shall be charged to Licensee in connection Licensee’s use of a Ten-User License.
4.3. Annual License Fee. Unless (a) Licensee paid for a Fully-Paid License or (b) Licensee terminates this license pursuant to Section 11.2 (Licensee Notice) prior to receiving an annual invoice, Licensee must pay any invoiced Annual License Fees.
4.4. Annual Support Fee. Unless prior to receiving an annual invoice (a) Licensee terminates this license pursuant to Section 11.2 (Licensee Notice), or (b) Licensee terminates Support Services, Licensee must pay any invoiced Annual Support Fees.
4.5. Increased Users. Licensee may, subject to acceptance by Licensor, increase the Maximum Number of Authorized Users by paying Licensor an increased flat-fee based on Licensor’s then-current rates and by executing a revised Order, except in connection with a Ten-User License which may in no event exceed ten Authorized Users. In addition, if Licensor is supplying Support Services, Licensor will immediately bill, and Licensee must immediately pay, an additional pro-rated Support Fee for the remainder of the year during which the increase takes effect. Licensor will not provide Support Services for subsequent years unless Licensee agrees to, and pays, increased Annual Support Fees reflecting the increase in users.
4.6. Manner of Payment. Except as may be agreed to by Licensor, all initial Fees due shall be paid electronically, by wire transfer or a debit or credit card accepted by Licensor via the Internet, upon execution of this License by the parties. All subsequent fees are payable ten (10) days after receipt of Licensor’s invoice. All fees and prices are exclusive of taxes, and Licensee shall be solely responsible for any sales, value-added or similar tax, other than taxes imposed on Licensor’s income. All fees are payable in US dollars.
5. Licensee Restrictions. Licensee is prohibited from:
5.1. Authorized Computer. Permitting the installation or use of the Server Software on any computing device other than the Authorized Computer. Licensee may upon request and Licensor’s approval transfer the Server Software to another Authorized Computer, if Licensee changes servers.
5.2. Authorized Users. Permitting the use of or access to the Software by any person other than an Authorized User on his or her computer; having – at any one time – more than the Maximum Number of Authorized Users .
5.3. Modifications. Translating, reverse engineering, decompiling, recompiling, updating, or making any other Modifications to the Software.
5.4. Distribution. Selling, sublicensing or distributing the Software.
6. Security.
6.1. Confidentiality. Licensee acknowledges that the Software and the terms, conditions and subject matter of this License constitute and contain confidential and proprietary information of Licensor. Licensee hereby agrees that the foregoing information will be received and held by it in strict confidence, will be used only for purposes of this License and that none of such information or any other data which has been marked or otherwise specifically identified as confidential or otherwise constitutes a trade secret under applicable law (collectively the foregoing information is “Confidential Information”) will be disclosed by Licensee, or by its agents or employees, without the prior written consent of Licensor, except as (1) otherwise allowed by this License; or (2) after 30 day’s written notice to Licensor, may be necessary by reason of legal, accounting or regulatory requirements beyond the reasonable control of Licensee.
6.2. Distribution. Licensee must not distribute the Software except to its Authorized Users as required for Permitted Use in the normal course of their employment.
6.3. Access. Licensee will restrict access to the Software to persons who (1) are Authorized Users and with respect to whom all Fees have been paid (provided, however, that other employees of Licensee may access certain reports called Web Reports on the Authorized Computer); and (2) are under contractual obligations to Licensee to maintain the confidentiality of the Software.
6.4. Notice. All copies of the Software made by Licensee will contain sufficient notice of Licensor’s ownership thereof; such notice will be deemed to be sufficient if it consists of an exact reproduction of such notices as are contained in the copies provided by Licensor.
6.5. Records. Licensee will maintain records of the number, location and the name of the Authorized User(s) responsible for the security of all copies of the Software in Licensee’s possession.
6.6. Media. Licensee will erase or destroy any copy of the Software on any media before the disposal of such media by or on behalf of Licensee.
6.7. Login Codes. Licensee will ensure that any individual login code assigned by Licensor is known only to, and used only by a single Authorized User, and is not shared among individuals. Login codes may, upon Licensee’s request and subject to Licensor’s approval, be cancelled or transferred to another Authorized User. Licensor shall have the
right to disable Licensor’s access to the Software and terminate all login privileges upon the expiration or termination of this License.
7. Indemnification.
7.1. Scope of Indemnification. Subject to Sections 7.4 (Entire Obligation) and 12.2 (Liability Limitations), Licensor will at its own expense defend Licensee against any bona fide claim that the Software infringes, in the United States, a United States patent or copyright (“Claim”). Licensor will pay all costs, damages and attorneys’ fees that a court finally awards as a result of a Claim. To qualify for such defense and payment, Licensee must (a) give Licensor prompt notice of a Claim; and (b) allow Licensor to control, and fully cooperate with Licensor in, the defense of the Claim and all related settlement negotiations.
7.2. Right to Cure. Licensee agrees that, if the operation of the Software becomes, or Licensor believes such operation is likely to become, the subject of a Claim, Licensee will permit Licensor, at Licensor’s option and expense, either to secure the right of Licensee to continue using the Software or to replace or modify the 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, Licensor may terminate this License pursuant to Section 11.3 (Licensor Notice).
7.3. Exclusions. The foregoing notwithstanding, Licensor shall have no liability for a Claim to the extent it is based on: (i) Open Source Software included in or provided with the Software; (ii) the use by Licensee of the Software more than thirty (30) days after Licensor notifies Licensee that continued use of the Software may subject Licensee to a Claim ; (iii) the use of the Software in combination with other software, hardware or products not provided by Licensor, which Claim would have been avoided if the Software had not been so combined; or (iv) the Modification of the Software by anyone other than Licensor. In addition, Licensor shall not provide any indemnification whatsoever in connection with Trial Licenses or Ten-User Licenses licensed hereunder.
7.4. Entire Obligation. This Section 7 states Licensor’s entire obligation to Licensee regarding Claims of infringement and similar matters.
8. Limited Warranty.
8.1. Except as provided below, Licensor warrants that during the term of this License the current version(s) of the Software provided to Licensee will perform substantially in accordance with the Documentation. Licensor does not represent or warrant that the Software specifications will meet Licensee’s requirements, or that operation of the Software will be uninterrupted or error-free. During the warranty period, Licensor will, at no extra charge, evaluate the problem and may in its sole discretion elect to either: (i) correct any defect discovered in the Software so that it will perform as warranted herein; (ii) fix the defect in the next release or other upgrade of the Software; or (iii) not fix the defect. Notwithstanding the foregoing, Licensor shall not provide any such warranty for
Trial Licenses or Ten-User Licenses licensed hereunder, which are provided “as-is” without warranty of any kind.
8.2. Licensor warrants that it has the right to grant the rights to the Software under this License.
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.
PORTIONS OF THE SOFTWARE MAY INCLUDE OR HAVE BEEN CREATED USING OPEN SOURCE SOFTWARE. NOTWITHSTANDING ANY WARRANTY PROVISIONS HEREIN, LICENSOR IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING FROM A CLAIM BY ANY THIRD PARTY WITH RESPECT TO SUCH OPEN SOURCE SOFTWARE.
9. Support.
9.1. Trial License. Licensor may, in its sole discretion, provide Licensee with any, all, or none of the Support Services.
9.2. Ten-User License. Licensor may, in its sole discretion, provide Licensee with any, all, or none of the Support Services.
9.3. Fully-Paid License, Year-by-Year Support. Licensor shall, subject to the terms of this License, provide the Support Services for years for which Licensee pays in advance the invoiced Annual Support Fee described in the Order plus any additional pro-rata fee described in Section 4.4 (Increased Users). A Licensee with a Fully Paid License, Year-to-Year Support may convert future years’ licenses to Fully Paid License, No Support by giving Licensor written notice before Licensor sends the invoice for Annual Support Fees.
9.4. Fully-Paid License, No Support. Licensee is not entitled to any Support Services.
9.5. Annual License. Licensor shall, subject to the terms of this License, provide the Support Services for years for which Licensee pays in advance the invoiced Annual License and Support Fee described in the Order plus any additional pro-rata fee described in Section 4.4 (Increased Users).
10. Term of License.
10.1. Trial License. A Trial License expires automatically at the earlier of (a) 30 days after Licensor sends Licensee an email with a link to a trial license key or (b) termination pursuant to Section 11 (Termination).
10.2. Ten-User License. A Ten-User License will remain in effect unless and until terminated (a) automatically or by Licensor pursuant to Section 11 (Termination), or (b) by Licensee pursuant to Section 11.2 (Licensee Notice).
10.3. Fully Paid License. A Fully-Paid License will remain in effect unless and until terminated (a) automatically or by Licensor pursuant to Section 11 (Termination), or (b) by Licensee pursuant to Section 11.2 (Licensee Notice).
10.4. Annual License. An Annual License will terminate the earliest of (a) one year after the License Date or the latest anniversary date for which Licensee has timely paid the invoiced License Fee, (b) termination by Licensor pursuant to Section 11 (Termination), or (c) termination by Licensee pursuant to Section 11.2 (Licensee Notice).
11. Termination.
11.1. Breach. This License and the rights granted hereunder will terminate automatically if Licensee fails to comply with all the terms herein and fails to cure such breach within thirty (30) days of becoming aware of the breach. Licensee will not be entitled to any refund.
11.2. Return of Copies. Upon the termination or expiration of this License, Licensee will return to Licensor or destroy all copies of the Software and all tangible embodiments of Confidential Information.
11.3. Termination of Licenses. Termination or expiration of this License will serve to terminate all licenses to the Software granted hereunder.
12. Limitation of Remedies. THE LIABILITY OF LICENSOR TO LICENSEE AND THE REMEDIES OF LICENSEE ARE LIMITED BY SECTIONS 12.1 THROUGH 12.5 AS FOLLOWS:
12.1. Software Performance-Related Claims. In all situations involving performance or nonperformance of the Software, if Licensor does not – after repeated opportunity – make the Software comply with the warranty of Section 8 (Limited Warranty), Licensee will be entitled to recover actual damages subject to the limits set forth in Section 12.2 (Liability Limitations).
12.2. Liability Limitations. This Section 12.2 limits the type and amount of damages to which Licensee is entitled; it does not create any remedy that is otherwise precluded by this License. LICENSOR’S LIABILITY FOR ACTUAL DAMAGES FROM ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE LICENSE FEE PLUS THE MOST RECENT ANNUAL SUPPORT FEE (IF ANY) PAID BY LICENSEE. THIS LIMITATION WILL APPLY, EXCEPT AS OTHERWISE STATED IN SECTION 12 (LIMITATION OF REMEDIES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE. IN ADDITION, THIS LIMITATION WILL APPLY TO THE PAYMENT OF COSTS, DAMAGES AND ATTORNEYS’ FEES REFERRED TO IN SECTION 7.1 (INDEMNIFICATION). THIS LIMITATION WILL NOT APPLY TO CLAIMS BY LICENSEE FOR BODILY INJURY OR DAMAGE TO REAL PROPERTY FOR WHICH LICENSOR IS LEGALLY LIABLE.
12.3. Liability Exclusions. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL LICENSOR, OR ANY DISTRIBUTOR OF THE SOFTWARE, OR ANY SUPPLIER OF ANY OF SUCH PARTIES, BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY LOSS OF PROFITS, LOSSES THAT ARE OUTSIDE LICENSOR’S REASONABLE CONTROL, LOSS OF DATA, LOSS OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. This limitation of liability shall not apply to liability for death or personal injury resulting from such party’s negligence to the extent applicable law prohibits such limitation. However, the exclusions described in this Section 12.3 will not apply to the payment of costs, damages and attorneys’ fees referred to in Section 7.1 (Indemnification).
12.4. Waiver re Related Parties. Licensee waives all claims and remedies arising out of or related in any way to this License, or the entry into or performance of this License, against: Licensor’s employees, agents, owners and officers, and against Licensor’s affiliated companies and employees, agents, owners and officers. This waiver applies regardless whether the claim or remedy is known, unknown, or has not yet arisen.
12.5. Adequate Consideration. Licensee hereby agrees and acknowledges that (i) the Software would not be made available to it by Licensor for the consideration given by Licensee but for the limitations, exclusions, and waivers contained in this Section 12 (Limitation of Remedies); (ii) the rights it has obtained to the Software pursuant to this License in exchange for the limitations, exclusions, and waivers contained in this Section 12 (Limitation of Remedies) and the other consideration given by Licensee constitute a bargain which is fair and reasonable to the parties; and (iii) this bargain has been made by Licensee without coercion or the threat thereof from any person.
13. Injunctive Relief. Licensee understands and agrees that (i) violation in any material respect of any of the provisions of this License by Licensee will cause immediate and irreversible harm to Licensor; (ii) Licensor will in such event have no adequate remedy at law; and (iii) 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 Licensee. 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.
14. Compliance with Laws. Licensee 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, and any successor law and laws regarding the transmission of technical data exported from the United States or from the country in which Licensee resides. Without in any way limiting the foregoing, Licensee will not export or otherwise remove the Software from the United States or the country in which Licensee resides, either directly or indirectly, without first obtaining any licenses or approvals as may be required. The Software may not be downloaded or used by any individuals in U.S. embargoed countries or by persons listed on the EAR’s “Denied Parties” or “Part 744 Entity List” or the Office of Foreign Asset Control’s “Specially Designed National” list. Licensee certifies that the Licensee, and all Authorized Users, are not subject to U.S. export prohibitions and will not make the Software available to other countries or parties who are subject to such prohibitions. Licensee is responsible for determining – at the time that Licensee makes the Software available to any person – whether such person is then subject to US export prohibitions.
15. Government Use. With respect to the Software as same may be delivered to the United States government or any governmental agency, including, without limitation, the Department of Defense, or political subdivisions of the United States government (collectively, the “Government”), the Software constitutes commercial computer software and is provided with Restricted Rights according to the following legend:
Use, duplication or disclosure by the Government is subject to restrictions as set forth in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013.
16. Assignment. Licensee may not assign, transfer or sublicense this License or any rights and obligations thereunder, by operation of law, by merger or otherwise, without the prior written consent of Licensor. Any attempt to so sublicense, assign or transfer any of the rights, duties or obligations under this License is void ab initio. A change in control shall be an assignment subject to this section. Licensor may freely assign its rights under this License to an acquirer, successor in interest, or other designee without notice to any party. This License is binding upon Licensor’s permitted successors and assigns.
17. Licensee’s Duties. Licensee accepts the responsibility for (i) selection of the Software to achieve its intended results; (ii) the installation of the Software; (iii) the use of the Software; (iv) the results obtained from the Software including any data stored in connection with the Software; and (v) the selection and use of, and the results obtained from, any other computer software, computers, other equipment or services used with the Software.
18. Advertising. Licensee agrees to include in all its promotional literature and other advertising in which the capabilities of the Software are explicitly or implicitly mentioned or referred to a phrase indicating by product name that the Software is a proprietary software product of Licensor and that the product name is a trademark of Licensor. Licensee hereby grants Licensor permission to use Licensee’s name as a commercial reference regarding Licensee’s use of the Software.
19. Miscellaneous.
19.1. Entire Agreement. This License, together with the 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. This License may be amended only by a written instrument duly executed by the parties.
19.2. No Waiver; Unenforceability. The waiver or failure of Licensor to exercise in any respect any right provided for in this License shall not be deemed a waiver of any further right under this License. If any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.
19.3. Legal Proceedings. If legal action is required to enforce or interpret the provisions of this License, the prevailing party shall be entitled to recover its reasonable costs of attorneys’ fees and litigation costs from the other party. This License shall be governed and enforced by the laws of the State of California, without reference to principles of conflict of laws, and exclusive venue of any legal action between the parties arising out of or in connection with this License shall be with the competent state court in San Mateo County, California or federal court in the Northern District of California, and Licensee consents to personal jurisdiction there and waives any objection to the same. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any law or regulation which provides that the language of a contract shall be construed against the drafter shall not apply to this License.
19.4. Statute of Limitations. Any statute or law to the contrary notwithstanding, any claim or cause of action arising out of or related to use of the Software or this License – other than a claim arising out of or related to Sections 5 (Licensee Restrictions), 6 (Security), or 11.4 (Return of Copies) – must be filed within one (1) year after such claim or cause of action arose or be forever barred.
19.5. Headings. Interpretation. The Section headings in this License are for convenience only and have no legal or contractual effect. Terms of gender will be deemed interchangeable, as will singular and plural terms, in each case unless the
context otherwise requires. All monetary amounts and all references to payments herein will be deemed to refer to current U.S. dollars.
19.6. Notices. All notices (other than routine Fee increases which may be delivered by e-mail), demands, or other communications herein provided to be given or that may be given by any party to the other shall be deemed to have been duly given when made in writing and delivered in person, by courier, or upon receipt, if deposited in the United States mail, postage prepaid, certified mail, return receipt requested, as follows:
Notices to Licensor: Notices to Licensee:
CollabNet, Inc. 8000 Marina Blvd. The address specified by
Suite 600 Licensee in the Order
Brisbane, CA 94005
U.S.A. Attn: General Counsel
or to such address as the parties may provide to each other by written notice from time to time.
19.7. Third Party Beneficiaries. This License is entered into solely for the benefit of Licensor and Licensee. No third party shall have the right to make any claim or assert any right under it, and no third party shall be deemed a beneficiary of this License.
19.8. Survival. The following sections will survive termination of this License: 1 (Definitions), 2 (Title), 3.2 (Ownership), 3.3 (ScrumWorks® Trademarks and Logo), 5 (Licensee Restrictions), 6 (Security), 12.2 (Liability Limitations), 12.3 (Liability Exclusions), 12.5 (Waiver re Related Parties), 12.6 (Adequate Consideration), 13 (Injunctive Relief), 16 (Assignment), 19 (Miscellaneous) – other than 19.7 (Notices).