If Stonebranch accepts this agreement ("Agreement"), it is an Agreement between the entity or individual entering into this agreement ("User") and Stonebranch, Inc. a Georgia corporation located at 4550 North Point Parkway, Suite 400, Alpharetta, GA 30022, USA, or its local licensing affiliate ("Stonebranch"). If Stonebranch accepts this agreement, then this Agreement is effective on the date it is communicated to User and the parties agree as follows:
Territory: The country where User acquired the license.
Product: The Stonebranch software product and/or subscription service for which a temporary license is being granted in accordance with the terms of this agreement.
Technology: The Product, solution, and/or demonstration environment being installed, accessed and/or used by User pursuant to the terms of this Agreement, and all related software, systems, documentation, platforms or networks (also the "System" or the "Software")
1. TRIAL LICENSE
1.1 License Grant. Stonebranch grants to User a revocable, non-exclusive, non-transferable, temporary license to access and use the Technology for a 30 day time period, unless otherwise provided by Stonebranch ("Trial Period"), only (a) for User's internal evaluation and determination whether to acquire a license to the Products for a fee, or (b) if User is an authorized Stonebranch Partner or a Service Provider, to demonstrate to a prospective customer for the prospective customer's internal evaluation purposes.
1.2 Restrictions On Use. User shall not use, copy, modify or create derivative works based upon the Technology (or any copy, adaptation, transcription or merged portion thereof), except as permitted in the trial license above or as otherwise permitted herein or as expressly authorized in advance in writing by Stonebranch. User shall not (nor permit any party to) disassemble, decompile, decrypt or reverse engineer the Software or in any way attempt to discover or reproduce source code for the Software, or any portion thereof (except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver) or modify, delete, or remove, or fail to copy, any ownership, title, trademark, patent or copyright notices from any Product. User shall not use the Technology to process production data, or for development, commercial, production, or database management purposes. User shall not use the Technology with data or information that has not been backed-up. The Technology shall be used solely at the location(s) designated by Stonebranch ("Designated Location(s)") in the environment ("Environment") on the Central Processing Units, all as required by Stonebranch and which may at Stonebranch's discretion be located in another country to the Territory and/or on systems run by a third-party. User shall not create Internet "links" to or reproduce any content forming part of the Product, other than for its own internal non-production business purposes. User shall not use any components provided with the Technology separately from the Product. User shall not access the Product for purposes of monitoring its availability, performance, or functionality, or for any benchmarking or competitive purposes, or release any results of any performance tests related to the Product to any third party without Stonebranch's prior written consent. User shall not attempt to interfere with or disrupt the integrity or performance of the Product or send or store infringing, obscene, threatening, libellous, or otherwise illegal or tortuous material via the Product or send or store viruses or malicious code via the Product, or violate any other usage restrictions contained in the documentation or make any representations to prospective customers which are not made by Stonebranch in this Agreement or as otherwise permitted by Stonebranch in writing in advance. User is responsible for maintaining the confidentiality of any passwords assigned to User and will immediately notify Stonebranch if it becomes aware that a password is lost, stolen, disclosed to an unauthorized third-party or otherwise compromised. User will be responsible for any and all activities under User's account and/or using User's passwords and will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Product, and notify Stonebranch promptly of any such authorized access or use and comply with all applicable laws in using the Product. In particular, User represents and warrants that it: (i) will comply with the United States Export Administration Regulations and any other United States and/or foreign export regulations (the "Regulations"); (ii) will ensure that no individual accessing or using the Technology is a citizen of or from any embargoed country (currently including Iran, Syria, Cuba, and North Korea); (iii) is not prohibited from receiving the Technology under the Regulations; (iv) will not acquire the Technology for any person who is restricted under the Regulations; (v) will not use the Technology in contradiction to the Regulations and (vi) will not use the Technology for any prohibited purposes, including but not limited to nuclear, chemical, missile or biological weapons related end uses or for any dual-use items and technology, and it is declared that this Technology is intended for civil purposes only. Therefore User agrees to comply with the Regulations and will not export in violation of the Regulations and without any and all proper licenses. Any failure to comply with the Regulations will result in User immediately forfeiting any and all rights to the Technology
1.3 Reservations. Any right or license not expressly granted to User is reserved to Stonebranch. Except as expressly set forth herein, no express or implied license is granted to User to use, receive, reproduce, copy, market, sell, distribute, license, sublicense, lease, timeshare, or rent the System or any component thereof. User agrees not to assert or claim title to or ownership of the Technology or any modifications thereto, which are agreed as belonging solely to Stonebranch and User will not remove or alter any copyright or proprietary notices from copies of the Products.
1.4 Acceptance of the System. User acknowledges acceptance of the "System" on the Effective Date.
2. RESPONSIBILITIES OF USER
2.1 Environment. User shall be solely responsible for selecting technically qualified operator(s) to operate the Software in the Environment. Except as agreed otherwise in writing, Stonebranch assumes no responsibility for providing User with any computer hardware or other equipment. User shall be solely responsible for provision of a proper operating environment for the System and all related costs and expenses arising thereunder.
2.2 Installation. User is solely responsible (unless otherwise agreed in writing by Stonebranch) for any installation of the System at the Designated Location. User shall immediately notify Stonebranch of any movement of the System from the Designated Location.
2.3 Actions Upon Expiration of Trial Period. Upon termination or expiration of this Agreement, User will immediately cease using the Technology; if User has installed Product on its system then User will delete it immediately; if User is accessing the Product via an internet-based demonstration site, Stonebranch may disable User's access; if User desires to acquire a paid-for license to access and use the Product, then User must acquire a license to use and access the Product under the then current subscription service or software license terms, as applicable with Stonebranch or its appropriate affiliate; and Stonebranch may delete all User collected data input into the Product during the trial period. User may request and Stonebranch may or may not, at its sole discretion, grant an additional Trial Period to User in response to User following instructions provided with the Product and/or Technology. This Agreement creates no obligation on the part of User purchase a license to any Products or for Stonebranch to provide such license to User. Further this Agreement creates no obligation on the part of Stonebranch to make any Internet-based demonstration site available to User
3. MAINTENANCE AND ADDITIONAL SERVICES
3.1 Maintenance and Support. Stonebranch may at its discretion but is not obligated to provide User with Error Correction and Support ("Maintenance") of the System, as further described below.
3.1.1 Support. Stonebranch may provide telephone, facsimile and/or electronic support to User for the reporting of problems related to User's use of the System and to assist with regard to such problems.
3.1.2 Error Correction. Stonebranch may use reasonable commercial efforts to correct all verifiable and reproducible "Errors" in the System. For the purposes of this Agreement, "Error" means a substantial failure of the System to substantially conform to the Documentation, and "Error Correction" means either a software modification or addition in object code, machine readable form that when made or added to the System, establishes substantial conformity of the System to the Documentation, or a procedure or routine that, when included in the regular operation of the System, eliminates the practical adverse effect on User of such non-conformity. Upon delivery of an Error Correction to User, such Error Correction shall be considered to be a portion of the System within the meaning of the license grant in Section 1.1 above. Stonebranch shall not be responsible for correcting Errors resulting from misuse, negligence, revision, modification, or improper use by User or any other person or entity of the System or any portion thereof.
3.3 New Releases of the System. Stonebranch may prepare and license new releases, enhancements and new versions to and of the System from time to time, which may be made available to the User per the terms and conditions of this Agreement and/or in return for payment of a fee at Stonebranch's sole discretion.
3.4 Services. User may request Stonebranch to perform services ("Services"), such as training on the System, installation or maintenance including error correction. User will pay Stonebranch's then current daily Service Rate and reimburse Stonebranch for all reasonable, out-of-pocket expenses incurred by Stonebranch in connection with performing such Services requested by User.
4. FEES AND PAYMENTS
4.1 Fees and Late Payments. User shall pay Stonebranch fees in the amounts and at the times stated in this or any other applicable agreement. Interest may be charged by Stonebranch on delinquent accounts and any other fees not paid to Stonebranch as provided hereunder at the rate of one and one-half percent (1.5%) per month or the maximum amount permitted by law, whichever is less, commencing with the date payment was due. User will pay reasonable attorney fees and court costs of Stonebranch if any amounts due Stonebranch are collected by or through an attorney at law.
4.2 Taxes and Other Charges. User shall be solely responsible for payment of any and all taxes (but excluding corporate income taxes of Stonebranch) incurred in performance of this Agreement. Stonebranch reserves the right to have User pay any such taxes to Stonebranch as they come due for remittance to the appropriate authority. User agrees to hold Stonebranch harmless from all actions, judgments, claims, liabilities and expenses arising from or in connection with User's failure to report or pay such taxes.
5. PROTECTION OF PROPRIETARY INFORMATION
5.1 Ownership Rights. Stonebranch owns all right, title and interest in and to the System and any modification, copy, improvement, derivative work and/or adaptation thereof, including without limitation, all trademarks, patents, copyrights, trade secrets and other proprietary rights in or related to the System. User shall take no action that jeopardizes Stonebranch's proprietary rights or acquire any right in the System. User is granted only a right to use the System, which right of use is not coupled with an interest and is revocable in the event of User's breach of the terms hereof. User shall keep the System free and clear of all claims, liens, and encumbrances whatsoever.
5.2 US Federal Acquisition Regulations. This section applies to any acquisitions of the Technology subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event that the Products or Technology are delivered to the United States Government, the United States Government hereby agrees that such Products and/or Technology qualify as "commercial items" within the meaning of the Federal acquisition regulations applicable to this procurement. The terms and conditions of this Agreement shall apply to the United States Government's use and disclosure of the Product and/or Technology as the case may be and shall supersede any conflicting contractual terms and conditions. Additionally, for any acquisitions governed by DFARS Subpart 227.4 (October 1988): "Restricted Rights - Use duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988)."
5.4 Confidentiality. User acknowledges that the System is commercially valuable proprietary information of Stonebranch; that the design and development of the System reflects the effort of skilled experts, and the investment of considerable time and money; and that the loss of competitive advantage due to unauthorized disclosure or unauthorized use of proprietary information will cause great injury and harm to Stonebranch. User covenants and agrees that it shall not, without the prior written consent of Stonebranch or as set forth herein, directly or indirectly,
(i) disclose, distribute, publish, reproduce, decompile, reverse engineer, transmit or transfer to others the Proprietary Information, or any portion thereof, by any means or in any form, (ii) make use of the System other than in connection with the rights granted under this Agreement, or (iii) disclose, in whole or in part, any item of the System or any information which is marked or otherwise indicated as confidential to any individual or entity, except to User's employees or consultants who require access for User's authorized use of the System. If Stonebranch requests, User shall require employees and consultants to execute appropriate confidentiality agreements. If an unauthorized use or disclosure occurs, User will immediately notify Stonebranch and assist Stonebranch in recovering the Proprietary Information and prevent its subsequent unauthorized use or dissemination. User will not allow the removal or defacement of any confidentiality or proprietary notice placed on or within the System.
5.4.1 Term. The restrictions set forth herein shall continue (i) with respect to Trade Secrets and any Confidential Information which arises to the level of a Trade Secret, for as long as such information continues to be a Trade Secret under applicable law, and (ii) with respect to all other Confidential Information, for a period of three (3) years after the date of expiration or termination of this Agreement.
5.4.2 Definitions. "Confidential Information" means any data or information that is provided or obtained from one party hereunder to the other party, and that is valuable to the disclosing party or its owner and not generally known by the public. "Trade Secrets" means any information, without regard to form, provided or obtained from one party hereunder to the other party, including but not limited to the object and source code for the System, which: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. "Proprietary Information" means, collectively, Confidential Information and Trade Secrets.
6. DISCLAIMER OF WARRANTIES
THE PARTIES AGREE AND ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED "AS IS". STONEBRANCH MAKES NO WARRANTIES WITH RESPECT TO THE SOFTWARE, SYSTEM, DOCUMENTATION, OR ANY COMPONENTS THEREOF, OR OTHER GOODS OR SERVICES PROVIDED BY STONEBRANCH, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AGAINST INFRINGEMENT AND FITNESS FOR A PARTICULAR USE OR PURPOSE.
7. LIMITATION OF LIABILITY
User acknowledges and agrees that in no event shall Stonebranch, any subsidiary or affiliate or any of their officers, directors, employees, consultants, owners, or representatives be liable to User, its affiliates, subsidiaries, officers, directors, employees, partners, or owners for any special, indirect, reliance, incidental or consequential damages, loss of profits, or loss of goodwill resulting from the use of or inability to use the System or any Software, Documentation or other goods or services provided hereunder, even if Stonebranch has been notified of the likelihood of such damages occurring. User agrees that the sole and exclusive remedy available to User shall be limited to recovery of actual direct damages not in excess of $500. The parties agree that the limitations provided in this Section 7 shall survive and continue in full force and effect despite any failure of an exclusive remedy.
8.1 Term. User's license of the System shall be for 30 days, unless sooner terminated as provided herein.
8.2 Early Termination. Without prejudice to any other remedies, either party shall have the right at any time by giving notice to the other to terminate the Agreement forthwith.
8.3 Post-Termination Obligations. Upon termination or expiration of this Agreement for any reason, (i) all rights and licenses granted to User will immediately cease, (ii) User shall return, or certify the destruction of, any copies of the Software and Documentation in its possession (whether modified or unmodified), together with all other Proprietary Information (including copies thereof) of Stonebranch, to Stonebranch, and (iii) all invoices and any other monies due to Stonebranch by User shall remain due and payable in accordance with the terms hereof.
8.4 Survival of Terms. Upon termination or expiration of this Agreement, and in addition to any provisions that expressly survive any termination of this Agreement, the provisions of Sections 1, 2, 4, 5, 6, 7, 8.3, 8.4 and 9 shall continue and survive in full force and effect.
9. GENERAL PROVISIONS
9.1 Assignment. No portion of this Agreement may be assigned or transferred by User without the prior written consent of Stonebranch and any attempt to do so without consent shall be null and void. In no event shall User's rights or obligations hereunder be assigned or assignable by operation of law or by any bankruptcy proceedings, and in no event shall this Agreement or any rights or privileges hereunder be an asset of User under any bankruptcy, insolvency or reorganization proceedings.
9.2 Equitable Remedies and Specific Performance. User acknowledges that each provision in this Agreement providing for the protection of the Proprietary Information of Stonebranch is material to this Agreement. User acknowledges that any threatened or actual breach of Stonebranch's proprietary rights or disclosure of the Proprietary Information shall constitute immediate, irreparable harm to Stonebranch, for which Stonebranch shall be entitled to equitable remedies awarded by a court of competent jurisdiction.
9.3 Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties, their legal representatives, permitted transferees, and their respective successors and assigns.
9.4 Severability. Any provision of this Agreement held or determined by a court (or other legal authority) of competent jurisdiction to be illegal, invalid, or unenforceable in any jurisdiction shall be deemed separate, distinct and independent, and shall be ineffective to the extent of such holding or determination without (i) invalidating the remaining provisions of this Agreement in that jurisdiction or (ii) affecting the legality, validity or enforceability of such provision in any other jurisdiction.
9.5 Notices. All legal notices under this Agreement required to be given hereunder shall be given in writing and shall be delivered, either by hand, by e-mail subject to provision of a return read receipt from the recipient that is retained by the provider of the notice, by recognized delivery service, by certified mail return receipt requested, or by facsimile or telex (with confirmation copy sent by another approved means), addressed to the receiving party at the address notified, or at such other address as may be designated from time to time in accordance herewith.
9.6 No Waiver. Any failure by either party to detect, protest, or remedy any breach of this Agreement shall not constitute a waiver or impairment of any such term or condition (or of any other), or the right of such party at any time to avail itself of such remedies as it may have for any breach or breaches of such term or condition (or of any other). A waiver may only occur pursuant to the prior written express permission of an authorized officer of the other party.
9.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, USA without giving effect to its conflicts of law principles. Venue for any dispute hereunder shall be set in Fulton County, Georgia, USA.
9.8 Force Majeure. Neither party shall be responsible for failures or interruptions of communications facilities or equipment, including those of third parties, electricity shortages, blackouts, or power failures, labor strikes or slowdowns, shortages of resources or materials, natural disasters, world events, terrorism, delay or disruption of shipment or delivery, trespass or interference of third parties, or similar events or circumstances outside its reasonable control.
9.9 Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof, and is intended as the parties' final expression and complete and exclusive statement of the terms thereof, superseding all prior or contemporaneous agreements, representations, promises and understandings, whether written or oral, and may be amended or modified only by an instrument in writing signed by both parties.
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute and deliver this Agreement as of the date the last party accepts this Agreement. YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.