THE FOLLOWING IS A LICENSE AGREEMENT (“AGREEMENT”) FOR THE GLASPAC® LX SYSTEM AND ANY THIRD PARTY PRODUCTS LICENSED IN CONJUNCTION WITH THE SYSTEM. CAREFULLY READ ALL OF THE FOLLOWING TERMS AND CONDITIONS BEFORE PROCEEDING. IF YOU DO NOT ACCEPT SUCH TERMS AND CONDITIONS, YOU WILL NOT BE PERMITTED TO USE THE SOFTWARE AND YOU AGREE TO RETURN THE SOFTWARE AT YOUR EXPENSE TO GTS SERVICES, LLC. YOU ACKNOWLEDGE AND ACCEPT THE TERMS AND CONDITIONS OF THE LICENSE UPON CLICKING “PLACE MY ORDER” ON THE BILLING WEBSITE.
DEFINITIONS. The following terms used in this Agreement shall have the following meanings (unless otherwise expressly provided herein):
- 1.1. "Concurrent Use" shall mean simultaneous use of the Software by more than one person employed by or otherwise acting on behalf of Licensee.
- 1.2. "Concurrent User License" shall mean the license for non-simultaneous use of the Software by multiple persons authorized by Licensee.
- 1.3. "Effective Date" shall mean the day the Agreement is agreed to by the Licensee and shall be conclusively evidenced by the Licensee clicking "I accept" in GlasPacLX software or upon first use of the GlasPacLX software.
- 1.4. "Installation" shall mean the physical location address where the product database resides.
- 1.5. "Licensee" means an individual or entity licensing software in accordance with this Agreement.
- 1.6. "Licensee Country" shall mean the original country in which the Installation occurs and in which the Licensee’s Use of the Software shall be limited to. Licensee Country shall refer to either the United States, Canada, or Mexico.
- 1.7. "Licensor" means GTS Services, LLC ("GTS"), a Delaware limited liability company, with offices at 10250 SW Greenburg Road, Suite 200, Portland, OR 97223.
- 1.8. "Module" shall mean an optional functional component of the Software as specified and priced in the referenced Sales Proposal/Order. Examples may include, but are not limited to EDI, eXpress, GlassQuoter and InfoMax.
- 1.9. "Named User" shall mean any other user within Licensee who is provided with limited access to the Software for business information and tasks but who does not require access to the business management systems of the Software.
- 1.10. "Named User License" shall mean a license assigned to a single Named User.
- 1.11. "Sales Proposal/Order" shall mean the ordering documents for Licensee’s order of Software that are executed by the parties from time to time. Sales Proposal/Order shall be deemed incorporated herein."
- 1.12. "Software" shall mean software owned by GTS and licensed to Licensee or licensed to GTS and sublicensed to Licensee as set forth in this Agreement and as specified in the Sales Proposal/Order. "Software" includes the related object code, media, and documentation.
- 1.13. "Billing Website" is a service that provide sign-up, monthly and one-time billing, payment information, and cancellation details for Licensee. The current Billing Website details are shared with the customer during sign-up and at each billing.
- 1.14. "Use" shall mean the reading into and out of memory of the Software and the execution of the Software, in whole or in part.
- 1.15. "You" means the legal entity that has agreed to the terms and conditions of this Agreement.
GRANT OF LICENSE.
- 2.1. Subject to the provisions of this Agreement, as well as the payment of all applicable initial and monthly license fees, as set forth in the referenced Billing Website, Licensor grants to Licensee a limited, personal, nonexclusive, nontransferable license to Use the Software for Licensee’s internal use only in the original Licensee Country for the term of this Agreement. Except as specifically provided by additional license requirements set forth in this Agreement or in the Sales Proposal/Order, the base license to Use the Software shall be limited to a single Installation and a single Concurrent User License. Licensee shall be entitled to receive, as of the date of payment of the first monthly license fee, the latest published version of the Software, as well as access to GTS training, support, and product updates reflecting similar functionality as they become available and NAGS updates, (as more fully described in Section 4.1) all as indicated on the Billing Website.
- 2.2. This Agreement shall extend to any additional Concurrent User Licenses, Named User Licenses, or additional Module functionality that Licensee may purchase in the future while this Agreement remains in effect.
- 2.3. For each additional instance of Concurrent Use, Licensee shall subscribe to an additional Concurrent User License at the monthly rate stated in the Billing Website. This is regardless of whether the access or use occurs directly between the user and the server or occurs indirectly through a software application or service accessing or using the server at the request of or on behalf of the user (a "Multiplexing Service").
- 2.4. In addition to any Concurrent User Licenses, for each Named User, Licensee shall subscribe to a Named User License at the monthly rate stated the Billing Website.
- 2.5. Subject to the requirement to subscribe to additional Concurrent User Licenses, Licensee may Use the Software on a single computer accessed by multiple workstations or on multiple machines in a network on Licensee’s premises, over a Local Area Network (LAN). The Licensee may Use the Software over a Wide Area Network (WAN) or Terminal Services technology, provided the requisite number of additional Concurrent User Licenses have been acquired.
- 2.6. This license to Use the Software is restricted to those Modules included in the Software as indicated on the Billing Website and for which Licensee has obtained a registration key from Licensor. Licensee shall not use nor attempt to use any Module functionality without a registration key.
- 2.7. Other than the license to Use the Software as explicitly provided in this Agreement, no license under any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights, express or implied, are granted by Licensor to Licensee under this Agreement.
- 2.8. Licensee may make a single copy of the Software for backup and archival purposes in support of Licensee’s use of the Software.
- 2.9. Licensee may physically transfer the Software from one computer to another provided that the Software is installed on only one computer at a time.
- 2.10. Licensor, on its own behalf and on behalf of all its licensors, herein reserves all rights not expressly granted to Licensee.
- 2.11. Licensee may not: (a) work around any technical limitations of the Software; (b) themselves or permit any third parties to translate, reverse engineer, decompile, recompile, update, modify all or any part of the Software, merge the Software into any other software, or disassemble the Software, except and only to the extent that applicable law expressly permits, despite this limitation; (c) make more copies of the Software than specified in this Agreement or allowed by applicable law, despite this limitation; (d) publish the Software for others to copy; (e) rent, lease or lend the Software; or (f) use the Software for commercial software hosting services or operating a service bureau.
- 2.12. LICENSEE MAY NOT USE, COPY, OR TRANSFER THE LICENSED SOFTWARE EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
- Licensor and any third party from whom Licensor is sublicensing software to Licensee are and shall remain the sole and exclusive owner or owners of the Software and any copies, including but not limited to the media, (i.e., the diskettes or tapes or other memory devices on which the Software may be recorded) and have all proprietary rights in the Software, including but not limited to all processes, ideas, data, and printed material.
- NAGS® DATABASE LICENSE AND NAGS® DATABASE UPDATES.
- 4.1. Subject to the provisions of this Agreement, as well as the payment of all applicable license fees for the term of such license, the Licensee is entitled to receive and use the NAGS Database or portions thereof. The entire NAGS Database consists of NAGS catalogs, NAGS calculators, and GlassMate Data with graphics (collectively, "NAGS"). This data is to be used with the Software only and is not to be redistributed in any manner. Failure to pay the Monthly Fee will terminate Licensee’s right to use any and all NAGS data that resides on the Licensee’s computer systems(s) and future NAGS data updates. A portion of the Monthly Fee is allocated to payment of copyright and licensing fees to the NAGS Publishing Co. by Licensor on behalf of the Licensee.
- 4.2. When NAGS publishes and releases update of its publications, Licensor will provide those updates to Licensee in the format of Licensor’s product. Unless otherwise specified in this Agreement, updates will be provided to the Licensee through the Internet.
- 4.3. Licensor receives a limited right to use the NAGS for Licensee’s own internal business use, and will have no right to reproduce or distribute NAGS. NAGS Publishing Co. makes no warranty, express or implied, as to the accuracy of the NAGS or the results to be obtained from using it, or any implied warranties of merchantability or fitness for a particular purpose. NAGS Publishing Co. shall not be liable for any lost profits or other incidental or consequential damages in connection with License’s use of NAGS. NAGS Publishing Co. is a third party beneficiary and may assert its rights directly against any Licensee for breach of this Agreement.
- LIMITED WARRANTY.
- 5.1. Licensor warrants to Licensee that the media on which the Software is recorded are free from defects in material and workmanship under normal use. Licensor further warrants that the Software will perform substantially in accordance with the on-line user manuals accompanying the Software, and that the on-line user manuals are substantially free of material errors.
- 5.2. The warranty covering the media and the Software is made for thirty (30) days from the date of the original Installation by Licensee.
- 5.3. Licensor will replace any media that proves defective in materials or workmanship on an exchange basis without charge. Licensor will, at its sole option, either replace or correct any Software that does not perform substantially in accordance with the user manuals with a corrected copy of the Software without charge. Licensor will correct material errors in the on-line user manuals without charge by providing application updates on the Internet. If Licensor is unable to replace defective Media or if Licensor is unable to provide corrected Software or corrected on-line user manuals with a reasonable time, Licensor will, at its sole and exclusive option, either replace the Software with a functionally equivalent program without charge or refund the fees paid for licensing the Software. These are Licensee’s sole and exclusive remedies for any breach of warranty.
- 5.4. Licensor does not warrant that the Software will meet Licensee’s requirements or that the operation of the Software will be uninterrupted or error-free in all circumstances. The warranty does not cover any Software that has been subject to damage or abused. The Software warranty does not cover any Software that has been altered or changed in any way by anyone other than Licensor. Licensor is not responsible for problems caused by changes in the operating characteristics of computer hardware, internet availability, or computer operating systems that are made after the release of the Software, or for problems in the interaction of the Software with non-Licensor software.
- 5.5. GTS does not warrant third party products. All third party product warranty claims and issues are the responsibility of the third party licensor.
- 5.6. The original Licensee must return the defective Software, shipping prepaid, to Licensor by Return Material Authorization (RMA) Number, supplied by the Licensor.
- 5.7. LICENSEE AGREES THAT THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OF LICENSOR AND DISCLAIMS ALL OTHER WARRANTIES OF THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS OR ADEQUACY FOR ANY PARTICULAR PURPOSE OR USE, QUALITY OR PRODUCTIVENESS, OR CAPACITY, OR THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE.
LIMITATION OF REMEDIES AND LIABILITY.
- IN NO EVENT SHALL LICENSOR, ITS OFFICERS, DIRECTORS, SUCCESSORS, AND ASSIGNS AND ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SOFTWARE AND SERVICES RELATED THERETO, OR ANY THIRD PARTY FROM WHOM LICENSOR HAS LICENSED SOFTWARE FOR SUBLICENSE, BE LIABLE TO LICENSEE OR ANY PARTY CLAIMING THROUGH LICENSEE FOR ANY DAMAGES OR EXPENSES OF ANY TYPE, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, LOST BUSINESS, LOSS OF ANTICIPATED BENEFITS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, DIRECT OR INDIRECT, SPECIAL OR GENERAL, ARISING OUT OF THE USE OR INABILITY TO USE SUCH SOFTWARE, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, TORT, OR UNDER ANY WARRANTY, OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY OTHER CLAIM BY ANY OTHER PARTY. NO OBLIGATION OR LIABILITY SHALL ARISE OR FLOW FROM LICENSOR’S RENDERING TECHNICAL OR OTHER ADVICE IN CONNECTION WITH LICENSOR’S SOFTWARE, OR SERVICES, INCLUDING, BUT NOT LIMITED TO, LICENSOR’S INSTALLATION AND TRAINING SERVICES, AND MONTHLY SUPPORT AND MAINTENANCE SERVICES. IN NO EVENT SHALL THE COMBINED LIABILITY FOR DAMAGES OF LICENSOR AND ANY THIRD PARTY FROM WHOM LICENSOR HAS LICENSED SOFTWARE FOR SUBLICENSE EXCEED THE FEES PAID BY LICENSEE FOR THE RIGHT TO USE THE SOFTWARE.
ALLOCATION OF RISK.
- This Agreement allocates the risk of product failure between Licensee and Licensor. Licensor’s program pricing reflects this allocation of risk in the limited warranty and the limitation of remedies and liability. Licensee and Licensor agree that the terms of this Agreement reasonably allocate the risks associated with the Use of the Software between Licensee and Licensor.
PATENT AND COPYRIGHT INDEMNIFICATION.
- 8.1. Licensor will defend, at its expense, any action brought against Licensee to the extent that it is based on a claim that the Software supplied to Licensee constitutes direct infringement of copyright in the United States on or before the date of this Agreement. Licensor will pay all damages and costs finally awarded against Licensee in such actions that are attributed to such claim, provided the Licensor is promptly informed in writing and furnished a copy of each communication, notice, or other action related to the alleged infringement and is given sole authority, information, and assistance (at Licensor’s expense) necessary to defend or settle such claim. Licensor will not be obligated to defend or be liable for costs and damages if the infringement arises out of compliance with the Licensee’s specification, or from a combination with or an addition to Software or Hardware not developed and supplied by Licensor or modification of the Software after delivery by Licensor.
- 8.2. In the event any Software furnished hereunder are in Licensor’s opinion likely to, or do, become the subject of a claim of infringement of a copyright or a patent, Licensor may, at its option and expense, procure for Licensee the right to continue using the Software or modify the Software to make them non-infringing or replace them with a non-infringing program, which may, at Licensor’s option, come under this same Agreement. If in Licensor’s sole opinion none of the foregoing alternatives is reasonably available to Licensor, then without any further liability Licensor may refund the purchase price for the Software and terminate this Agreement.
- 8.3. THE FOREGOING STATES THE ENTIRE LIABILITY OF LICENSOR WITH RESPECT TO INFRINGEMENT OF ANY COPYRIGHTS, PATENTS, OR OTHER INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE OR ANY PARTS THEREOF AND IS IN LIEU OF ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, IN REGARD THERETO.
DEFERMENTS, CHARGES, AND CANCELLATIONS.
- Deposits paid for training and custom programming are nonrefundable and shall be forfeited in the event of cancellation. Any costs or expenses incurred by Licensor before or resulting from deferment or cancellation will be charged to Licensee and payable to Licensor in accordance with the terms of the Licensor’s invoice.
- Licensor assumes no responsibility for the operating environment in which the Software is to function.
- Licensor shall not be in default by reason of any failure of its performance under this Agreement if such failure results, directly or indirectly, from, but not limited to, fire, explosion, strike, freight embargo, act of God, public enemy, war, civil disturbance, act of any government de jure or de facto, or any agency or official thereof, labor shortage, transportation contingencies, unusually severe weather, internet failure, default of manufacturer or supplier as a subcontractor, quarantine or restriction, epidemic, catastrophe, or other similar event beyond the control of Licensor.
- 12.1. In consideration for the licenses and services provided by this Agreement, Licensee agrees to pay to Licensor the initial license fees and the monthly license/subscription fees as specified on the Billing Website. All payments shall be made in U.S. Dollars and Licensee shall be responsible for any customs, duties, and import expenses and any taxes resulting from the licensing of the Software or any activities related thereto except those taxes related to the net income of Licensor.
- 12.2. Licensee shall pay additional fees for Concurrent User Licenses and Named User Licenses in accordance with subparagraphs 2.3 and 2.4, where applicable, to Licensor together with the monthly license fee.
- 12.3. Any monthly fee returned by the Licensee’s bank or credit card company for any reason may be cause for the Licensor to suspend or terminate all services to the Licensee until such time as the matter has been resolved.
- 12.4. The monthly license/subscription fees are subject to change by Licensor. Any changes to the monthly license/subscription fees will be communicated to Licensee in writing thirty (30) days before changes are implemented.
- 12.5. The fees of this Agreement to be paid by Licensee for Software licensed hereunder are exclusive of any expenses including, without limitation, travel expenses incurred by Licensor in rendering training services or on-site consulting services requested by Licensee. Any such expenses that Licensor incurs in rendering those services shall be paid by Licensee and shall be due and payable in full to Licensor in accordance with the terms of Licensor’s invoice for such services.
TERMS AND TERMINATION.
- 13.1. This Agreement shall begin as of the Effective Date, and shall apply to all Software and any support now or in the future delivered by Licensor to Licensee.
- 13.2. This Agreement shall be in effect for one (1) month term commencing on the Effective Date. This Agreement shall automatically renew for successive one month terms, unless either party provides the other party with notice of non-renewal at least thirty (30) days prior to the expiration of a monthly period either written or by cancellation via the Billing Website. Licensor may terminate this Agreement by providing Licensee with thirty (30) days prior written notice upon Licensee’s failure to comply with any term or condition herein, including, but not limited to, Licensee’s failure to make any payment due within thirty (30) days of the due date; Licensee’s insolvency or bankruptcy; cessation or termination of Licensee’s business; or the appointment of a receiver to operate the business of Licensee.
- 13.3. Licensor may terminate this Agreement if Licensee fails to pay the Monthly Fee or any other sums due hereunder in accordance with the terms of the Licensor’s invoice or billing notice from the Billing Website. Licensor may declare all unpaid sums immediately due and payable without demand or notice.
- 13.4. Upon termination of this Agreement, all rights granted Licensee hereunder shall immediately cease. At Licensor’s option, Licensee shall promptly return and comply with the Licensor to certify the deregistration of the Software and all copies and material pertaining to the Software. Licensee shall remove and certify the removal of all Software from each Installation, or deregister the Software effective upon agreed upon termination date. Further, Licensee shall cease its use of NAGS. Licensor may seek any legal or equitable remedy available against Licensee for any violation of the terms of this Agreement including, without limitation, injunctive relief and specific performance. Licensee further agrees that termination of this Agreement shall not relieve Licensee of any payment obligations due hereunder and that upon termination all sums due hereunder shall become immediately due and payable, including sums due under Section 9 hereof.
- 13.5. Licensee will be liable for the monthly payments until for each location covered by this Agreement. The monthly payment option will continue automatically at each renewal period. The Licensor reserves the right to revise the terms of this Agreement from time to time and shall provide such revisions to Licensee in writing. The Licensee shall be deemed to accept the revised terms if the Licensee does not issue a notice of objection within thirty (30) days.
- 13.6. In the event of any conflict between the terms and conditions of this Agreement and any other agreements, the terms and conditions of this Agreement shall control.
- 13.7. The following sections shall survive the termination or expiration of this Agreement: 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 15.6,16, 17, 18 and 19.
- Any notice required hereunder shall be deemed given by a party if in writing and personally delivered or when deposited in the mail as of the date of mailing if sent by regular mail and registered or certified mail, postage prepaid, return receipt requested, to the address stated in this Agreement or such other addresses as either party may designate by written notice to such other party.
- 15.1. If any provisions or portions thereof of this Agreement are invalid or unenforceable under any applicable statute or rule or law, they are to that extent to be deemed omitted. Any waiver, in whole or in part, of any right or remedy provided for in this Agreement shall not constitute a waiver of any other right or remedy. A party may not waive, change, modify, or discharge this Agreement except by written agreement.
- 15.2. The rights and obligations of Licensee under this Agreement are personal and specific to Licensee and Licensee may not assign this Agreement, or any rights, licenses, or obligations hereunder, to any third party without the prior written consent of Licensor. Subject to the foregoing, this Agreement will be binding on, and inure to the benefit of, the parties hereto and their respective heirs, personal representatives, successors, and assigns.
- 15.3. Licensee shall comply with all applicable United States and international export control laws that place restrictions on destinations and end users that may apply to the Software. Licensee agrees that Licensor shall not be liable for any failure to obtain a United States export license for the Software.
- 15.4. In the event either party incurs attorney fees and costs in interpreting or enforcing the terms of this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorney fees, regardless of whether a suit or action is filed, and if suit or action is filed, on any appeal therefrom.
- 15.5. The headings used herein are for convenience only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions herein.
- 15.6. This Agreement is governed by Oregon law without reference to the place of execution or performance. All actions, suits, or proceedings to enforce or interpret the terms of this Agreement shall be brought and prosecuted in the courts located in the state of Oregon. The parties further agree that this provision shall survive the termination of this Agreement and that no action, regardless of form, arising hereunder, may be instituted by either party more than one year after the cause of action arose, or, in the case of nonpayment, more than two (2) years from the date of the last payment, except that the above limitations shall not apply to the enforcement of any of Licensor’s intellectual property rights. The Parties further agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The parties further agree that the Uniform Computer Information Transactions Act, or any state statute substantially implementing such act, will not apply to this Agreement.
- LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ THIS AGREEMENT, WHICH COMPRISES THE TERMS AND CONDITIONS IN THIS AGREEMENT, UNDERSTANDS EACH AND EVERY TERM AND CONDITION IN IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. LICENSEE AGREES THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN LICENSOR AND LICENSEE AND THAT THIS AGREEMENT SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS, PROPOSALS, NEGOTIATIONS, OR DISCUSSIONS, ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREIN. NO COURSE OF DEALING OR USAGE OF TRADE OR COURSE OF PERFORMANCE SHALL BE RELEVANT TO EXPLAIN OR SUPPLEMENT ANY TERMS EXPRESSED HEREIN. LICENSEE FURTHER AGREES THAT NO REPRESENTATIONS OR STATEMENTS OF ANY KIND, INCLUDING BUT NOT LIMITED TO DEALER ADVERTISING PRESENTATIONS, ORAL OR WRITTEN, MADE BY ANY AGENT OR REPRESENTATIVE OF LICENSOR, WHICH ARE NOT STATED HEREIN SHALL BE BINDING ON LICENSEE OR LICENSOR.
- At Licensor’s written request, not more frequently than annually, Licensee shall furnish Licensor with a signed certification verifying that the Software is being used in accordance with the provisions of this Agreement. Licensor (or Licensor’s designee) may audit Licensee’s use of the Software. Licensee shall reasonably assist Licensor with providing documents, access to systems, and IT support. Any such audit shall be conducted during regular business hours at Licensee’s facilities and locations and shall not unreasonably interfere with Licensee’s business activities. If an audit reveals that Licensee has underpaid fees to Licensor, Licensee shall be invoiced directly for such underpaid fees based on the current prices for the Software in effect at the time the audit is completed. If the underpaid fees are in excess of five percent (5%) of the aggregate license fees paid to Licensor pursuant to this Agreement, Licensee shall pay Licensor’s reasonable costs of conducting the audit.
MICROSOFT DYNAMICS GP® SOFTWARE ("Microsoft Dynamics GP").
- 18.1. Section 18 applies to those Licensees who license Microsoft Dynamics GP in conjunction with their license of the GLASPAC® LX SYSTEM. Microsoft Corporation ("Microsoft") is a third party beneficiary and may assert its rights directly against any Licensee for breach of the terms set out in this Section 18. GTS is authorized to provide Microsoft Dynamics GP but does not assume any liability for Microsoft Dynamics GP.
- 18.2. Crystal Reports Runtime Server. If Crystal Reports Runtime Server is included with the Microsoft Dynamics GP license, Licensee may not distribute the Crystal Reports Runtime Server component of Microsoft Dynamics GP (the "Runtime Component") with any general-purpose report writing, data analysis or report delivery of the product or any other product that performs the same or similar functions as the Runtime Component. Licensee may not use the Runtime Component to create for distribution a product that is generally competitive with Business Objects product offerings. Licensee may not use the Runtime Component to create for distribution a product that converts the report file (.RPT) format to an alternative report file format by any general-purpose report writing, data analysis or report delivery product that is not the property of Business Objects.
- 18.3. Licensee must obtain Microsoft’s prior written approval to disclose to a third party the results of any benchmark test of Microsoft Dynamics GP.
- 18.4. Microsoft Limited Warranty. Microsoft’s limited warranty covers Microsoft Dynamics GP for one year after acquired by Licensee. Any supplements, updates, or replacement software acquired by Licensee during that year will be covered for the remainder of the warranty or thirty (30) days, whichever is longer. Microsoft’s warranty does not cover problems caused by Licensee’s acts (or failure to act), the acts of others, or events beyond Microsoft’s reasonable control.
- 18.5. Microsoft Remedy for Breach of Warranty. Microsoft will repair or replace Microsoft Dynamics GP at no charge. If Microsoft cannot repair or replace it, Microsoft will refund the amount shown on Licensee’s receipt for Microsoft Dynamics GP. Microsoft will also repair or replace supplements, updates, and replacement software at no charge. If Microsoft cannot repair or replace them, it will refund the amount Licensee paid for them, if any. Licensee must uninstall Microsoft Dynamics GP and return any media and other associated materials to Microsoft with proof of purchase to obtain a refund. These are Licensee’s exclusive remedies for breach of the Microsoft Limited Warranty.
- 18.6. Licensee hereby agrees that Washington state law governs the interpretation of this Agreement as it pertains to Microsoft Dynamics GP regardless of conflict of laws principles.
- 18.7. DEFENSE OF INFRINGEMENT AND MISAPPROPRIATION CLAIMS.
- 18.7.1. Microsoft will defend Licensee against any claims made by an unaffiliated third party that Microsoft Dynamics GP infringes its patent, copyright or trademark or misappropriates its trade secret, and will pay the amount of any resulting adverse final judgment (or settlement to which Microsoft consents).
- 18.7.2. Licensee must notify Microsoft promptly in writing of the claim and give Microsoft sole control over its defense or settlement. Licensee agrees to provide Microsoft with reasonable assistance in defending the claim, and Microsoft will reimburse Licensee for reasonable out of pocket expenses that Licensee incurs in providing Microsoft that assistance. The terms "misappropriation" and "trade secret" are used as defined in the Uniform Trade Secrets Act, except in the case of claims arising outside the United States, in which case "misappropriation" will mean intentionally unlawful use and "trade secret" will mean "undisclosed information" as specified in Article 39.2 of the TRIPs agreement.
- 18.7.3. Microsoft’s obligations will not apply to the extent that the claim or adverse final judgment is based on (i) Licensee’s running of Microsoft Dynamics GP after Microsoft notifies Licensee to discontinue running due to such a claim; (ii) Licensee’s combining of Microsoft Dynamics GP with a non-Microsoft product, data or business process including third party add-ons or programs that may be sold through Microsoft’s price list; (iii) damages attributable to the value of the use of a non-Microsoft product, data or business process; (iv) Licensee’s altering or modifying Microsoft Dynamics GP, including modifications by third parties as a part of installation; (v) Licensee’s distribution of Microsoft Dynamics GP to, or its use for the benefit of, any third party; (vi) Licensee’s use of Microsoft trademark(s) without express written consent to do so; or (vii) for any trade secret claim, regarding Licensee’s acquiring a trade secret (a) through improper means; (b) under circumstances giving rise to a duty to maintain its secrecy or limits its use; or (c) from a person (other than Microsoft or its affiliates) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret. Licensee will reimburse Microsoft for any costs or damages that result from these actions.
- 18.7.4. If Microsoft receives information concerning an infringement claim related to Microsoft Dynamics GP, Microsoft may, at its expense and without obligation to do so, either (i) procure for Licensee the right to continue to run the software, or (ii) modify the software or replace it with a functional equivalent, to make it non-infringing, in which case Licensee will stop running the software immediately. If, as a result of an infringement claim, Licensee’s use of the software is enjoined by a court of competent jurisdiction, Microsoft will, at is option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the amount paid and terminate its license.
- 18.7.5. If any other type of third party claim is brought against Licensee regarding Microsoft’s intellectual property, Licensee must notify Microsoft promptly in writing. Microsoft may, at its option, choose to treat these claims as being covered by this section. Section 18 provides Licensee’s exclusive remedy for third party infringement and trade secret misappropriation claims.
AUTHORITY AND ACCEPTANCE.
- 19.1. LICENSEE ACKNOWLEDGES AND AGREES THAT THE TERMS OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY PROVISIONS RELATING TO WARRANTIES, PREVAIL OVER ANY LICENSE TERMS EMBEDDED IN THE SOFTWARE, PROGRAM PACKAGE OR USER MANUALS DELIVERED TO LICENSEE PURSUANT TO THIS AGREEMENT.
- 19.2. I acknowledge I am authorized to accept on behalf of Licensee.
LICENSE AGREEMENT REVISION DATE:
- December 4, 2012.