Software License Agreement
for ADDPLAN 6 BASE, ADDPLAN 6 MC, and ADDPLAN 6 PE
LICENSOR: ADDPLAN Inc., with its principal offices located 1925 Isaac Newton Square, Suite 100, Reston, Virginia 20190 USA
LICENSEE: The individual or company/organization using the Software. The person who agrees to the terms
of this License Agreement on behalf of a company/organization represents to the Licensor that
this person is authorized to accept these terms on behalf of the company/organization.
NOTICE TO LICENSEE
Please read this License Agreement carefully. By using all or any portion of the Software you accept all terms and conditions of this Agreement. By clicking “I accept the agreement” before installing the Software, you are consenting to accept the terms and conditions of this Agreement.
RECITALS
WHEREAS, Licensor has the right to license and distribute certain computer software commonly known as “ADDPLAN” as well as the user manuals and other accompanying documents (collectively, the “Software”). The Software includes ADDPLAN 6 BASE, ADDPLAN 6 MC, and ADDPLAN 6 PE, and
WHEREAS, Licensee desires to acquire from Licensor, and Licensor desires to grant to Licensee, a non-exclusive, non-transferable license to utilize the Software, on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows:
1. Grant of License
Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee
(a) a non-exclusive, non-transferable license to use the Software listed on Licensee’s Order Form in machine-readable object code, solely for Licensee’s internal business purposes. The Software may be installed on any computer(s), now or hereafter owned, leased or otherwise used by Licensee or its employees, up to the permitted number of computers (one computer in case of one single-user license, n computers in case of n single-user licenses, unlimited number of computers in case of one global-site license).
(b) the right to make one (1) copy of the Software, or the minimum numbers of copies Licensor is required by law to permit Licensee to make, solely for archival or backup purposes.
The following will be provided:
(i) One (1) copy of the Software, solely for Licensee’s use pursuant to this Agreement. Licensee shall not have the right to receive or use the source code of the Software.
(ii) One (1) license key which will activate the Software, and enable it for use for one (1) year.
(iii) One (1) copy of any updated versions of the Software to the Licensee as and when available.
2. Covenants of Licensee
During the term of this Agreement:
(a) Licensee shall: (i) adopt and enforce such internal policies, procedures and monitoring mechanisms as are necessary to ensure that the Software is used only in accordance with the terms of this Agreement; and (ii) take all reasonable steps necessary to ensure that no person or entity will have unauthorized access to the Software.
(b) Licensee shall not: (i) assign, sublicense, lease, encumber or otherwise transfer or attempt to transfer the Software or any portion thereof; (ii) permit any third party to use or have access to the Software, whether by timesharing, networking (except as expressly permitted hereunder) or any other means; (iii) modify, translate, reverse engineer, decompile or disassemble the Software, other than to the extent Licensor is required by law to permit Licensee to do so; (iv) possess or use the Software or any portion thereof, other than in machine readable object code; (v) make any copies of the Software, other than as permitted by Section 1 hereof; or (vi) remove any copyright, trademark, patent or other proprietary notices from the Software or any portion thereof.
(c) In case of a public presentation or other publication of work results that have been made with the Software the Licensee will include a notation in the presentation of the results in any format indicating the usage of the Software. If Licensee fails to include such reference the Licensee will pay an amount of Ten Thousand Dollars ($10,000) for every instance of breach of this section. Each breach shall be deemed to be a new violation of this Agreement. In case of a permanent infringement the contractual penalty will be incurred anew at the beginning of every month. In addition, Licensee shall issue a correction in the publication of the work results stating that the Software was used in the project or program. Licensee shall cite the use of the Software with the following notation: “performed with ADDPLAN™ 6, licensed by ADDPLAN, Inc., an Aptiv Solutions company”.
(d) Two types of licenses are provided: (i) For-profit use license; and (ii) Not-for-profit use license. If Licensee selects a Not-for-profit use license the Licensee shall not use the Software for commercial purposes.
3. Intellectual Property
Licensee acknowledges and agrees that Licensor have and will retain all right, title, interest and ownership in and to the Software and any copies or updates of the Software. Licensee acknowledges that the Software constitutes proprietary information and trade secrets of Licensor, whether or not any portion thereof is or may be the subject of a valid copyright or patent. Licensee shall maintain all information and data contained in the Software or any portion thereof in strict confidence and shall not publish, communicate or disclose, or permit to be published, communicated or disclosed, to third parties such information and data without Licensor’s prior written consent. Licensee agrees to take all appropriate steps to ensure that persons having access to the Software shall refrain from any unauthorized reproduction or disclosure of the Software or any portion thereof.
4. License Fee
(a) As consideration for the license granted to Licensee hereunder, Licensee shall pay to Licensor the license fee specified on the ADDPLAN website http://www.aptivsolutions.com/adaptive-trials/addplan6/registerbuy/ (yearly based license fee). The license fee shall be paid to Licensor within thirty (30) days after the date of receipt of Licensor’s invoice therefore. At its sole discretion, Licensor reserves the right not to create any updates or upgrades and to market any new or modified version of its Software as a new product subject to separate license fees.
(b) Licensee shall pay all sales, use and other taxes (excluding taxes on Licensor’s income) imposed by any jurisdiction arising out of or related to the license granted under this Agreement or to Licensee’s use of the Software, regardless of when such tax liability is asserted.
(c) Payments shall be sent to:
ADDPLAN, Inc.
RBC Bank (USA)
Suite 1100
301 Fayetteville St.
Raleigh, NC 27601
Account Number: 0212364527
ABA Number: 053100850
Swift Code: CNTAUS33
5. Installation and Conversion of Data
Licensor shall provide the Software via internet connection or on CD. Licensee will receive a license key upon Licensor’s receipt of ordering (ADDPLAN 6 BASE) or upon Licensor’s receipt of payment (ADDPLAN 6 MC, ADDPLAN 6 PE), which will activate the Software, and enable it for use for one (1) year. Except as otherwise agreed between the parties hereto, Licensee shall be solely responsible for installation of the Software. Licensor will not be responsible for harm or damages as a result of Licensee’s improper installation of the Software. Licensee shall be solely responsible for any conversion of data required in connection with Licensee’s use of the Software to make such data compatible with the Software.
6. Term and Termination
(a) The license granted to Licensee hereunder is for an initial term of one (1) year, renewable on an annual basis for additional terms of one (1) year. Licensee shall deliver notice to Licensor of its intent to extend the term of the license no later than sixty (60) days prior to the end of the current term. The license will be renewed upon Licensor’s receipt of intent of extending (ADDPLAN 6 BASE) or upon Licensor’s receipt of payment for the initial term or subsequent terms (ADDPLAN 6 MC, ADDPLAN 6 PE).
(b) Licensor shall have the right, at any time, to terminate with or without cause, this Agreement, in whole or in part, by written notice to the Licensee specifying the date of termination and instructions on termination of use of the Software. Licensor may terminate this Agreement for cause (i) if Licensee breaches or violates any of its obligations under Sections 3, 4, or 5 of this Agreement; (ii) if Licensee breaches or violates any term of this Agreement and fails to correct such breach or violation to the satisfaction of Licensor within thirty (30) days after receiving notice of such breach or violation; or (iii) if Licensee is unable to pay its debts when due or makes any assignment for the benefit of creditors or files or have filed against it any petition under bankruptcy or insolvency laws of any jurisdiction or has or suffers a receiver or trustee to be appointed under laws of any jurisdiction for its business or property, or be adjudicated a bankrupt or an insolvent.
(c) In the event of termination for convenience by Licensor for cause by Licensee, Licensee shall be entitled to a pro-rata refund of license fees, based on the number of months remaining in the license.
(d) Licensee shall have the right to terminate this Agreement, in whole or in part, for cause by written notice to Licensor at any time if (i) Licensor shall fail to perform any covenant, warranty or obligation hereunder; or (ii) any representation or other statement of fact by Licensor set forth in this Agreement shall prove to have been untrue when made.
(e) Licensee shall, upon termination of this Agreement for convenience or cause discontinue all use of the Software and remove all copies from its computers.
7. Compliance
(a) Licensee shall instruct its employees and agents that making unauthorized copies of the Software or any portion thereof, or permitting use of the Software other than in accordance with Sections 1 and 2 hereof, constitutes a violation of copyright law and of this Agreement. If any such employees or agents subsequently makes an unauthorized copy of the Software or any portion thereof, or uses or permits use of the Software other than in accordance with Sections 1 and 2 above, Licensee shall pay to Licensor the full price for each unauthorized copy and the full cost of adding each additional user, based on Licensor’s then current standard rates for a similar number of users. Payment for unauthorized use as described in this Section shall not operate to limit any other remedies available to Licensor, and shall not be construed as the exclusive remedy for breach of this Agreement.
(b) Upon Licensor’s reasonable request, Licensee shall provide signed statements verifying its compliance with this Agreement.
(c) The Licensee shall not, without the prior written consent of Licensor, disclose, provide, or otherwise allow access to or use of the Software to any person other than Licensee’s employees in the normal fulfilment of their responsibilities.
(d) The Licensee shall make no copies, magnetic or otherwise, of the Software or any portion thereof with the exception of sufficient back-up copies to adequately protect against loss of data on Licensee’s computer system which copies must remain in the possession of Licensee and be used only for back-up purposes. Such back-up Software shall be subject to the terms and conditions of this Agreement including the non-disclosure provisions.
(e) Licensor shall have the right, during the initial term of this License, any subsequent term and for two (2) years after the termination of any such term, to audit Licensee’s premises or facilities to independently ascertain compliance with this Agreement. Any such audits will be conducted during normal business hours.
8. Non-Disclosure
(a) Licensor reserves for itself as between itself and Licensee all proprietary rights in and to the Software, and all parts thereof, including updates and modifications and documentation, as well as all rights to all discoveries, inventions, patents, copyrights, trade secrets or other proprietary data arising out of or in connection with the Software other than in respect of its use by the Licensee. Except only to the extent to which rights are expressly granted to Licensee hereunder, no rights in, under or to the Software and all parts thereof, including updates, modifications and documentation, pass to Licensee.
(b) Licensee acknowledges that as between itself and Licensor the Software is the confidential, proprietary information and trade secret of Licensor, regardless of whether any portion thereof is or may be validly copyrighted or patented. Licensee recognises that the Software is valuable to and important in Licensor’s business, and agrees to maintain the confidential and proprietary nature of the Software. Licensee further acknowledges that
all updates, revisions or modifications of the Software and supporting documentation are the confidential, proprietary information and trade secret of Licensor subject to all of the terms and conditions of this Agreement including the non-disclosure provisions hereunder.
(c) Licensee agrees to take appropriate action by instruction, agreement or otherwise with its employees to satisfy Licensee’s obligations under this Agreement with respect to maintaining the confidential and proprietary nature of the Software.
(d) Licensee recognises and acknowledges that breach of the non-disclosure provisions of this Agreement by Licensee or its employees may cause Licensor irreparable damage which cannot be readily remedied in damages in an action at law, thereby entitling Licensor, in addition to any other remedies available to it, to have injunctive relief against Licensee including the costs thereof.
(e) Licensee agrees it will not attack the validity of the licence granted hereunder or Licensor’s title to the Software, nor will Licensee attack the confidential and proprietary nature of the Software or any copyright, trademark or patent rights pertaining thereto.
9. Warranties
(a) Licensor warrants that (i) the Software will perform substantially as specified in the user manuals delivered with the Software (electronic version implemented in the Software); (ii) the Licensor shall not be liable under this warranty if the Software has been modified or altered by anyone other than Licensor, if the Software has been abused or misapplied, or if Licensee has failed to incorporate all upgrades provided to Licensee by Licensor; (iii) the Software conforms to the standards generally observed in the industry for similar software; (iv) it has taken all reasonable precautions to provide the Software free from Viruses. For purposes of this article, “Viruses” shall mean (a) program code or programming instruction or set of instructions intentionally designed to disrupt, disable, harm, interfere with or otherwise adversely affect computer programs, data files or operations, or (b) other code typically designed to be a Trojan horse, worm, backdoor or other term customarily considered to be a virus; and
(v) Software provided shall not infringe on any known patent, copyright, trademark or other third-party proprietary right for which use Licensee would be liable for royalty or other payments separate and apart from all consideration that may be received by Licensor for performance of its obligations attached hereto, including License Fee, and other Fees;
(b) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, LICENSOR DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SOFTWARE OR THE APPLICATION, OPERATION OR USE THEREOF, THE DATA GENERATED BY THE OPERATION OR USE THEREOF, OR ANY SUPPORT SERVICES RENDERED WITH RESPECT THERETO. LICENSOR HEREBY EXCLUDES ALL IMPLIED WARRANTIES TO THE EXTENT PERMITTED BY LAW, INCLUDING, SPECIFICALLY, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. LICENSOR HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, OR OF MERCHANTABLE QUALITY, OR OF FITNESS FOR ANY PURPOSE, PARTICULARLY, SPECIFIC OR OTHERWISE, CONCERNING THE SOFTWARE AND THE APPLICATION, OPERATION OR USE THEREOF.
(c) Licensee warrants that (i) it will not knowingly use the Software in violation of any copyright, patent, trademark or other intellectual property rights of third parties; and (ii) it shall communicate the requirements, limitations and obligations of this Agreement to all users of the Software whose use is governed by the terms of this Agreement.
10. Limitation of Remedies
Licensee acknowledges and agrees that it has independently verified that the Software is appropriate for the purposes for which Licensee intends to use the Software. Licensee assumes the entire risk related to the use of the Software. Licensor’s liability in contract, tort or otherwise in connection with the Software or this Agreement shall not exceed the License Fee paid to Licensor by Licensee for the Software. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, LICENSEE FURTHER AGREES THAT LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR DAMAGES IN THE FORM OF CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL OR OTHERWISE, OR FOR EXEMPLARY DAMAGES, RESULTING FROM LICENSEE’S USE, IMPROPER INSTALLATION OR INABILITY TO USE THE SOFTWARE OR FROM ANY SUPPORT SERVICES RENDERED WITH RESPECT THERETO, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Indemnification
(a) Licensor will indemnify Licensee from and against any liability to third parties arising from a claim that the Software infringes upon any third party’s patent, copyright or trade secret rights. If a third party claim against Licensee results in a judicial order preventing Licensee from using the Software, Licensor, in its sole discretion, may: (i) procure from the third party the right to allow Licensee to continue to use the Software; (ii) modify or replace the Software or infringing-portions thereof to become noninfringing; or (iii) in the event that the foregoing options are not, in the sole judgment of Licensor, reasonably practical, terminate this Agreement immediately upon written notice to Licensee, and in the event of such termination by Licensor a pro-rata portion of the license fee paid by Licensee will be refunded by Licensor.
(b) Licensor shall not have any indemnification obligation to Licensee nor otherwise be liable to Licensee for any infringement based on (i) Licensee’s operation of an application developed using the Software; (ii) Licensee’s combination of the Software with other products not furnished by Licensor; or (iii) Licensee’s use of a superseded or altered version of the Software. Licensor will have no obligation for any costs incurred by Licensee without Licensor’s prior written authorization. THE PROVISIONS OF THIS SECTION 11 STATE THE EXCLUSIVE LIABILITY OF LICENSOR, AND THE EXCLUSIVE REMEDY OF LICENSEE, WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT, OR TRADE SECRET INFRINGEMENT.
(c) Licensee hereby indemnifies Licensor, its affiliates and its and their officers, directors, employees and agents, and shall hold them harmless from any loss, liability, damage, cost or expense (including reasonable attorney’s fees) arising out of any claims or suits which may be brought against Licensor (i) by reason of Licensee’s use of the Licensed Software in contravention of this Agreement; or (ii) arising out of any claims or suits which may be brought or made against Licensor by one or several of Licensee’s clients by reason of use of the licensed Software.
(d) The obligations to indemnify are conditioned on the following: The party seeking indemnification must (i) provide notice of the claim promptly to the indemnifying party; (ii) co-operate in the defense of the claim; and (iii) be free to select counsel of its choice in the event of a conflict of interest with counsel selected by the indemnifying party.
12. Dispute Resolution
(a) Except as set forth in this Section 12 any claim or dispute between the parties hereto pertaining to or arising out of this Agreement (including, without limitation, the negotiation or execution of this Agreement, or the interpretation, performance or breach of any provision of this Agreement) shall be arbitrated in the State of Delaware, before a single neutral arbitrator under the Commercial Arbitration Rules of the American Arbitration Association. Any arbitration award shall be accompanied by a written opinion of the arbitrator giving the reasons for the award, which award may be entered as a judgment in any court of competent jurisdiction. This provision for arbitration shall be specifically enforceable by the parties and, except as otherwise provided by applicable law, the decision of the arbitrator in accordance herewith shall be final and binding. The arbitrator shall have the power to issue and grant permanent injunctive relief and other equitable orders and remedies. Any such arbitration shall be conducted in confidence and in accordance with the confidentiality provisions of this Agreement. Each party shall pay its own expenses of arbitration and the expenses of the arbitrator shall be equally shared.
(b) Licensee recognizes that Licensor will be irreparably harmed in the event of its breach or threatened breach of Section 3 or 4 of this Agreement, and that, notwithstanding anything contained herein to the contrary, Licensor may commence an action in any court of competent jurisdiction, to obtain equitable relief to prevent such breach or threatened breach at any time prior to the commencement of an arbitration proceeding and, if an arbitration proceeding has been commenced, at any time until an arbitration award is rendered in such arbitration proceeding or the claim or dispute is otherwise resolved. Licensee shall reimburse Licensor for all fees, costs and expenses including, without limitation, attorneys’ fees, costs and expenses incurred by Licensor in taking such court action to obtain equitable relief. Licensor shall not be deemed to have waived its right to arbitrate any dispute, claim or controversy by reason of seeking such equitable relief.
13. Survival
Upon termination of this Agreement, all rights and obligations of the parties shall cease, except for the obligations of Licensee under Sections 3, 4, 7(g), 15 and this Section 13 which obligations shall survive the termination of this Agreement.
14. Remedies
The pursuit by Licensor of any remedy to which it is entitled at any time shall not be deemed an election of remedies or waiver of the right to pursue any of the other remedies to which it may be entitled.
15. Binding Effect: Assignment
This Agreement and all of the terms, provisions and conditions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Licensee may not assign or sell this License or any of its rights or obligations hereunder without the prior written consent of Licensor.
16. Entire Agreement
This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof.
17. Amendment; Waiver
No modification, variation or amendment of this Agreement shall be effective without the written consent of both parties hereto. A failure of either party to this Agreement to enforce at any time any of the provisions of this Agreement, or to require at any time performance of any of the provisions hereof, shall in no way affect the full right to require such performance at any time thereafter. No waiver shall be deemed a waiver of any other breach of the same or any other term or condition hereof.
18. Notices
All notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing, or email and shall be sufficiently given to a party if delivered personally or mailed by registered or certified mail, postage prepaid, return receipt requested, or by overnight delivery by a nationally-recognized courier, to the address set forth above or to such other address or person as either party may from time to time designate to the other in writing or by email. Any such notice or other communication shall be deemed to be given as of the date it is personally delivered, five (5) days after its being deposited in the United States mail, or one (1) day after being deposited with a nationally recognized courier for overnight delivery.
19. Invalid, Illegal or Unenforceable Provisions
In the event that any one or more provisions of this Agreement shall for any reason be held by any tribunal of competent jurisdiction to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and each invalid, illegal or unenforceable provision shall be treated by the tribunal as modified to the least extent necessary to rectify its invalidity, illegality or unenforceablity and shall be enforced as so modified.
20. Independent Contractors
Nothing in this Agreement shall be deemed or construed by the parties or any other entity to create an agency, partnership or joint venture between Licensor and Licensee.
21. Governing Law
This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware.
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