SOFTWARE LICENSE AGREEMENT
This is an Agreement for the license of computer program software between Norton Holdings, Inc., referred to in this Agreement as “Licensor,” and Licensee as provided below, referred to in this Agreement as “Licensee.” Licensor is a Texas corporation, located at 11782 Jollyville Road, Suite 210, Austin, Texas 78759. Licensor and Licensee are collectively referred to in this Agreement as the “Parties.”
In consideration of the mutual promises made in this Agreement, Licensor and Licensee agree that the terms and conditions set forth as follows will apply to the license of the computer program software described in the Agreement.
ARTICLE 1 LICENSE GRANT
Grant of License
1.01. Licensor grants and Licensee accepts a nontransferable license to use the Software described in Paragraph 1.02, subject to the conditions and for the period specified in this Agreement.
Subject Matter Software
1.02. The term “Software” as used in this Agreement consists of the following:
Dasol Group software is defined as apparatus and associated methods relate to a tracking system that includes a tag having a unique code associated with a specific piece of equipment, where the system receives input from a user device indicating that the tag has been scanned by the user, logs the input in a database, and provides pertinent information to users and their designated agents.
ARTICLE 2 LIMITATIONS ON USE
General Use of Software
2.01. Licensee agrees to use the software solely for its exclusive benefit for Licensee‘s internal purposes.
2.02. Licensee shall not copy, recreate, replicate, or otherwise use any portion of the Software in a manner not specifically outlined in this Agreement.
Licensee’s User Responsibilities
2.03. Licensee shall be exclusively responsible for the supervision, management, and control of its use of the Software, including, but not limited to:
(a) Assuring proper configuration of the Designated Hardware, related equipment, and devices; and compatibility with the Software.
(b) Establishing adequate operating methods.
(c) Implementing procedures sufficient to satisfy its obligations for security under this Agreement, including appropriate control of its employees to prevent misuse, unauthorized copying, modification, or disclosure of the Software.
(d) Ensuring that only one user per login provided uses the Software. Specifically, Licensee may not have a universal login that multiple employees may use unless otherwise agreed upon in writing by Licensor.
2.04. The license granted in this Agreement shall remain in force for the useful life of the Software unless terminated prior to that time as provided in this Agreement.
ARTICLE 3 PROPERTY RIGHTS
Title to Software
3.01. Title to the Software is reserved for Licensor. Licensee acknowledges and agrees that Licensor is and shall remain the owner of the Software and shall be the owner of all copies of the Software made by Licensee.
Confidentiality of Software
3.02. Licensee acknowledges that the Software is confidential in nature and constitutes a trade secret belonging to Licensor. Licensee agrees to hold Software in confidence for Licensor and not to sell, rent, license, distribute, transfer, or disclose the Software or its contents, including methods or ideas used in the Software, to anyone except to employees of Licensee when disclosure to employees is necessary to use the license granted in this Agreement. Licensee shall instruct all employees to whom any such disclosure is made that the disclosure is confidential and that the employee must keep the Software confidential by using the same care and discretion that they use with other data designated by Licensee as confidential. The confidentiality requirements of this Paragraph 3.02 shall be in effect both during the term of this Agreement and after it is terminated.
3.03. Licensee agrees to keep the Software in a secure place, under access and use restrictions designed to prevent disclosure of the Software to unauthorized persons. Licensee agrees to at least implement the security precautions that it normally uses to protect its own confidential materials and trade secrets. Licensee agrees to limit access to the Software to employees whose essential employment functions rely on use of the Software.
Disclosure as Breach
3.04. Licensee agrees that any disclosure of the Software to a third party constitutes a material breach of this Agreement and shall terminate the license granted by this Agreement.
3.05. Licensee agrees not to remove, mutilate, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the Software.
3.06. Licensee agrees not to modify, alter, amend, recalibrate, or recode the Software for any reason unless agreed upon in writing by Licensor.
ARTICLE 4 PAYMENT
4.01. In payment for the license granted under this Agreement, Licensee shall pay Licensor an initial one-time fee of $5 per tag/band/or other NFC scannable device (“device”) provided to Licensee plus the monthly sum of $50 as a license fee. The initial one-time fee shall be payable immediately upon the request of the Licensee for device or devices. The initial license fee shall be payable on the first of the month following the execution of this Agreement. Succeeding monthly charges shall be payable from month to month in advance and will be collected via auto-payment.
Payment of Taxes
4.02. Licensee shall pay all taxes that may be assessed on the Software or its use, including personal property taxes, sales and use taxes, and excise taxes, excluding taxes based on the income of the Licensor.
License Fee Increases
4.03. Licensor may increase the periodic license fee provided for under this Article 4 on forty-five (45) days’ notice to Licensee. The increased license fee shall become effective on the date specified in the notice of the increase unless Licensee terminates this Agreement by thirty (30) days’ notice to Licensor and returns the Software to Licensor on or before the date on which the increased fee would otherwise go into effect.
ARTICLE 5 INSTALLATION AND SERVICE
Delivery of Software
5.01. Licensor shall make a copy of the Software available to Licensee upon execution of this Agreement in a manner acceptable to both parties.
5.02. Licensor shall conduct tests of the Software after it has been installed. All testing shall be conducted in accordance with specifications for testing the Software that have been published by Licensor, using data provided by Licensee, for a period of seven (7) days. All testing shall be performed on the Designated Hardware.
5.03. The Software shall be deemed to have been accepted by Licensee when after completion of the testing prescribed by Paragraph 5.03 and productive use of the Software by Licensee. If the Software is deemed unacceptable, Licensee shall return the Software without change with a report detailing the reasons for its unacceptability.
5.04. Licensor shall provide seven (7) days of technical orientation and training for all of Licensee‘s computer operations employees at no charge. Training and orientation shall be provided at Licensee’s place of business.
5.05. Licensor shall provide additional technical support services to Licensee on request and as available through Zendesk or any other resource that Licensor may deem appropriate. Licensor shall make reasonable efforts to keep Licensee updated on available support resources.
ARTICLE 6 WARRANTY PROVISIONS
Warranty of Title
6.01. Licensor warrants that it has good title to the Software and the right to license its use to Licensee free of any proprietary rights, liens, or encumbrances of any other party.
Warranty of Title Remedies
(a) Licensee shall notify Licensor of the assertion of any claim that the Software or Licensee ‘s use of the Software under this Agreement violates the trade secret, trademark, copyright, patent, or other proprietary right of any other party, and shall cooperate with Licensor in the investigation and resolution of any such claim.
(b) If the Software becomes, or is likely to become, the subject of a claim of infringement of a copyright or patent, Licensor may procure for Licensee the right to continue using the Software, may replace or modify the Software to render it non-infringing, or may require that Licensee discontinue its use.
(c) Licensor shall have no liability for any claim of copyright or patent infringement based on the use of an original version of the Software if infringement would have been avoided by the use of an updated version made available to Licensee.
(d) Licensor shall not indemnify Licensee against any claim or liability based on Licensee‘s modification or conversion of the Software and/or the subsequent use of that modification or conversion or use of the Software in combination with programs or data not supplied by Licensor if infringement would have been avoided by not using or combining the Software with other programs or data.
Warranty of Conformity to Specifications
6.03. Licensor warrants that the Software shall substantially conform to Licensor’s published functional specifications when shipped to Licensee. ANY MODIFICATION OF THE SOFTWARE BY ANY PERSONS OTHER THAN LICENSOR SHALL VOID THIS WARRANTY.
Remedy for Nonconforming Software
6.04. During a period of thirty (30) days after acceptance of the Software by Licensee, Licensor shall at its own expense provide programming services to correct Software defects, errors, or malfunctions that cause the Software to fail to operate in substantial conformance to Licensor’s published functional specifications. The Licensor shall perform such services only in the event Licensee has notified Licensor of any such failure to perform. However, LICENSOR DOES NOT GUARANTEE SERVICE RESULTS OR REPRESENT OR WARRANT THAT ALL ERRORS WILL BE CORRECTED. LICENSEE AGREES THAT LICENSEE‘S SOLE AND EXCLUSIVE REMEDY FOR THE DEFECTS DESCRIBED IN THIS PARAGRAPH 6.04 SHALL BE LIMITED TO THE CORRECTIVE ACTION DESCRIBED IN THIS PARAGRAPH.
6.05. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Remedies
6.06. LICENSEE AGREES THAT ITS EXCLUSIVE REMEDIES, AND LICENSOR’S ENTIRE LIABILITY WITH RESPECT TO THE SOFTWARE IS AS SET FORTH IN THIS AGREEMENT. LICENSEE FURTHER AGREES THAT LICENSOR SHALL NOT BE LIABLE TO LICENSEE FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARIS- ING OUT OF ITS USE OR INABILITY TO USE THE SOFTWARE OR THE BREACH OF ANY EXPRESS OR IMPLIED WARRANTY.
ARTICLE 7 TERMINATION
Cause for Termination
7.01. The license granted in this Agreement shall be terminated automatically and without further notice upon the occurrence of any of the following events:
(a) Expiration of the term specified in Paragraph 2.04 or of any optional renewal term in the absence of a subsequent renewal in accordance with the terms of this Agreement.
(b) Refusal by Licensee to pay any periodic license fee or any increase in license fee provided for in this Agreement.
(c) Cessation of business by Licensee or Licensor.
(d) Commission by Licensee of an event of default as defined in Paragraph 7.02.
Events of Default
7.02. Licensee commits an event of default, and this Agreement and the license granted under this Agreement shall terminate, if any of the following occur:
(a) Licensee attempts to use, copy, license, or convey the Software in any manner contrary to the terms of this Agreement or in derogation of Licensor’s proprietary rights in the Software.
(b) Licensee fails or neglects to perform or observe any of its existing or future obligations under this Agreement, including, without limitation, the timely payment of any sums due Licensor within fifteen (15) days after notice that the payment is delinquent.
(c) Licensee makes an assignment of Licensee‘s business for the benefit of creditors.
(d) A petition in bankruptcy is filed by or against Licensee.
(e) A receiver, trustee in bankruptcy, or similar officer is appointed to take control of all or part of Licensee‘s property.
(f) Licensee is adjudicated a bankrupt.
Effect of Termination
7.03. Licensee agrees that immediately on termination under Paragraph 7.01, it shall immediately certify to Licensee that it has retained no copies of the Software, and acknowledge that it may no longer use the Software. Licensee further agrees that in the event of termination through its default, all fees or charges due for the remaining term of this Agreement shall immediately become due and payable. Upon termination of the license, Licensor’s obligations under this Agreement shall cease.
ARTICLE 8 GENERAL PROVISIONS
8.01. Licensee shall not assign or otherwise transfer its rights under this Agreement, including the license granted in this Agreement, or the Software obtained pursuant to this Agreement without the prior written consent of Licensor. Any attempt to make such an assignment without Licensor’s consent shall be void.
8.02. The Parties acknowledge that this Agreement has been made in Texas and agree that it shall be construed pursuant to the laws of the State of Texas. Parties hereby agree that any action arising out of this Agreement will be brought solely in any state court located in Travis County, Texas.
8.03. The Parties acknowledge and agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and that it supersedes and cancels all previous written and oral agreements and communications relating to the license that is the subject matter of this Agreement.
8.04. Any notice required or permitted by this Agreement to be given to either party shall be deemed to have been given if in writing and delivered certified mail, postage prepaid and addressed:
(a) When intended for Licensee, to the address provided by Licensee upon enrollment in Software; or
(b) When intended for Licensor, to 11782 Jollyville Road, Suite 210, Austin, Texas 78759.
8.05. If any legal proceeding is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees in addition to any other relief to which that party may be entitled.
8.06. If any part of this Agreement is declared to be invalid by any court of competent jurisdiction, that part of the Agreement shall be severed from this Agreement and the remainder of this Agreement shall remain in full force and effect.
8.07. The Parties agree that a waiver of a breach or default under this Agreement shall not constitute a waiver of any subsequent breach or default. The Parties also agree that no failure to exercise or delay in exercising any right under this Agreement on the part of either party shall operate as a waiver of the right.
8.08. This Agreement shall be modified only by a written agreement executed by persons authorized to execute agreements on behalf of the Parties.