BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND CXALLOY’S PRIVACY AND SECURITY POLICY AND TERMS OF USE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may have another written agreement directly with CxAlloy (e.g., a volume license agreement) that supplements or supersedes all or portions of this agreement. The Software is LICENSED, NOT SOLD, only in accordance with the terms of this agreement.
Licensor grants to Licensee, and Licensee accepts, a limited, nontransferable, non-exclusive license to access the Software Website and use the Software in accordance with the terms and conditions set forth in this Agreement. Such access shall only include the right to access and use the Software in machine-readable, object code form. Licensee shall also have access to any accompanying User Documentation and help information provided by Licensor within the Software or within the Software Website itself.
The License shall permit Licensee to have an unlimited number of Authorized Users associated with and authorized to use and access the Software and Software Website in conjunction with the projects and/or facilities for which a license is being issued in accordance with the Privacy Policy and Terms of Use. Each Authorized User shall be assigned a unique UserID and password. Licensee shall be responsible for assigning and maintaining all UserIDs and corresponding passwords for its Authorized Users, subject to minimum and maximum length and security requirements provided by Licensor.
Licensee shall maintain an accurate and up-to-date list and provide to Licensor, upon request, with the name and UserID assigned to each Authorized User.
The License shall authorize and provide Licensee with up to five (5) gigabytes (GB) of Data storage in conjunction with each of the projects and/or facilities being billed.
Licensee may add new projects at the equivalent License Fee on a per project basis. Projects designated as inactive will be retained as long as the Licensee has any open active projects and the inactive projects will not be billed for any full months of inactivity during this inactive period. A reactivation fee equal to one month’s licensing fee may apply.
Licensor shall invoice Licensee monthly for all amounts owed to Licensor, and Licensee shall pay all issued invoices net thirty (30) days from receipt. Licensor shall keep the Licensee Fee set at the initial rate for at least the first six (6) months after the Initial Term for all existing active projects. Thereafter, Licensor may increase the monthly License Fee by an amount up to ten percent (10%), but Licensor agrees not to increase the monthly License Fee more than one time per 12-month period for existing active projects. Licensor shall provide Licensee with thirty (30) days advanced written notice prior to any increase in the monthly License Fee.
Should Licensee desire to add any projects or facilities, or increase its necessary Data storage, such increases shall be negotiated in good faith between the Parties and added as an addendum to the existing licensing agreement.
There is minimal training and setup included in the license fee. As part of the Initial License Fee, Licensor shall provide Licensee with up to one hour of training and/or support and an instruction manual for use of the software. Any additional hours of training or support shall be billed at the standard hourly rate charged by the relevant employee or agent of Licensor at the time. A list of hourly rates for such services is available upon request. Any travel expenses and costs shall be billed separately at Licensor’s actual costs.
Upon Termination of this Agreement by either Party, Licensee shall be given reasonable opportunity and time to download and/or export any Data of Licensee used or previously entered into the Software or Software Website. Such Data shall be provided by the Software in an electronic format, such as .CSV format or other comparable industry-accepted database format(s) as may be offered or provided by Licensor through the Software or Software Website from time to time.
WHEREAS, Licensor has developed a proprietary software system (hereinafter referred to as “CxAlloy Software Program,” “CxAlloy,” or the “Software”), which is a valuable and easy to use project tool that allows companies to capture and track critical project information reliably, to provide controlled access for designated project participants, and to manage information flow for quality monitoring, issues tracking and documentation of resolution. The Software is configured as one or more software modules that are accessible over the Internet, on a subscription basis, and is generally configured to enable designated members of the Licensee’s project team to access the Software anywhere in the world.
WHEREAS, Licensor desires to license and provide web-based access to the Software to Licensee and, specifically, to designated members of the Licensee’s company; and
WHEREAS, Licensee desires to obtain a license and web-based access to Licensor’s Software, for the purposes and scope set forth in this agreement
NOW THEREFORE, in consideration of the above premises, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Engagement Services. Licensee hereby engages Licensor, and Licensor hereby accepts engagement, to host the Software and to allow Licensee to have login/password access to and use of the Software via the Internet (the “Services”). The Software shall be accessible, via a website established, designated, and maintained by Licensor (the “Software Website”), by Licensee’s Authorized Users for the facility or facilities, specified projects, number of Authorized Users, and for the monthly Licensee Fee specified, as may be amended in writing by the Parties during the Term of this Agreement. Licensee’s access to the Software Website includes authorization to link it to one or more Internet domain names established and maintained by Licensee (the “Licensee Domain Name”). The terms and conditions for the Services, including, without limitation, a description of the Software, the pricing and payment terms for access to and use of the Software, the duration of the initial subscription term hereunder (the “Initial Term”), any training or other professional services to be provided by Licensor, and any other applicable terms or conditions are set forth below and as amended or clarified by both of the Parties.
2. License Grant. In consideration of payment of the License Fee and Licensee’s continued observance of the terms and conditions of this Agreement, Licensor hereby grants to Licensee, and Licensee hereby accepts, a limited, nontransferable, non-exclusive license to access the Software Website and use the Software in accordance with the terms and conditions set forth herein. Such access shall only include the right to access and use the Software in machine-readable, object code form. Licensee shall have access to any accompanying user documentation (“User Documentation”) or “help” information generally provided to other Licensees by Licensor. Licensee shall not, and shall not permit others, to access, enter, or view Data input into or output from the Software, other than Data entered by Authorized Users using Licensee’s or Third Party Interfaces approved by Licensor, Licensor’s batch upload or download tools, or other import/export or upload/download tools or utilities approved in advance in writing by Licensor. Licensee shall not, and shall not permit others to, directly or indirectly: (a) use the Software or Software Website for purposes other than their intended purposes or in any manner that could disrupt or impose an unreasonable or disproportionately large burden on Licensor’s computer facilities; (b) attempt to remove from the Software Website, download, copy, recreate, disassemble, modify, translate, reverse engineer, decompile, tamper with, or prepare functionally equivalent or competitive products to, the Software or Software Website; (c) remove, alter or obscure any copyright, trademark, or other proprietary or legal notices on the Software or Software Website included by or required by Licensor; (d) sell, rent, lease, provide third-party access to, sublicense or otherwise transfer Licensee’s right to use or access the Software or Software Website; (e) use the Software or Software Website in any service bureau capacity or in any other manner other than for Licensee’s normal business purposes; or (f) use or access the Software or Software Website to transmit any SPAM, any obscene material, or any content known or reasonably known by Licensee to be the property or information of a third party and for which Licensee does not have a license or right to use or access, or otherwise use or access the Software or Software Website for any other unlawful or unethical purpose. Licensor shall have the right, upon reasonable advance notice, to audit and inspect Licensee’s facilities and records pertaining to the Software and Software Website during normal business hours to verify compliance with these limitations and any other terms of this Agreement.
3. Licensor’s Rights. Licensee acknowledges and agrees that the Software, the Software source code, the Software Website, the User Documentation, and all other intellectual property rights inherent in the Software and Software Website, are proprietary products of Licensor protected under U.S. copyright, patent, trademark, trade secret laws, and other intellectual property laws, including international treaty provisions. Licensee further acknowledges and agrees that all right, title, and interest in and to the Software, the Software Website, and User Documentation, including associated intellectual property rights, are and shall remain with Licensor even if Licensee makes suggestions for changes to the Software or the Software Website and even if Licensor makes any customized changes to the Software or the Software Website at the request of Licensee or any other third party. Other than the above-stated limited, nontransferable, non-exclusive license to access the Software Website and use the Software in accordance with the terms set forth herein, this Agreement does not convey any interest to Licensee in or to the Software source code or Software Website. Licensee acknowledges and understands that this limited, nontransferable, non-exclusive license to access the Software Website and use the Software is revocable by Licensor in accordance with the terms of this Agreement. Notwithstanding the above, Licensee shall be entitled to use its own marks, names, or brands to private label the Software and Software Website, to the extent approved by Licensor and as long as all copyright and other legal notices required by Licensor are included and displayed in the Software and on the Software Website in the manner required by Licensor in this Agreement, in the referenced agreements, or as may be approved in writing by Licensor from time to time. Failure by Licensee to comply with all copyright, trademark, or other proprietary or legal notices on the Software or Software Website included by or required by Licensor shall be deemed a material breach of this Agreement.
4. Confidentiality. Licensee acknowledges and agrees that the Software, the Software Website, the Software source code and object code, the User Documentation, the look and feel of the Software and Software Website, and any functionality provided by the Software and Software Website (hereinafter jointly referred to as the “Confidential Software Information”) constitute valuable confidential information and/or trade secrets of Licensor. Accordingly, Licensee agrees to hold as confidential and refrain from disclosing the Confidential Software Information to any third party, without the expressed, written consent and permission of the Licensor. Further, Licensee agrees to protect the Confidential Software Information from unauthorized use, disclosure, publication or dissemination by using the same level of care that it uses to protect its own confidential and trade secret information from unauthorized use, disclosure, publication or dissemination, but in no event less than a reasonable standard of care. Licensee’s obligations of confidentiality with regard to “Confidential Information” of Licensor shall remain in effect for the Term of this Agreement, plus an additional three (3) years following Termination of the Agreement pursuant to Sections 8 or 9. Licensee’s obligations of confidentiality with regard to “Trade Secret Information” of Licensor shall remain in effect, regardless of the Term or Termination of this Agreement, so long as such information remains a Trade Secret of Licensor and does not lose such status as a Trade Secret through any action or inaction by Licensee or any of its affiliates, assigns, agents, employees, or any other entity or person affiliated with Licensee.
5. License Fee. Licensor shall furnish use of the Software and access to the Software Website and User Documentation to Licensee for a monthly “License Fee,” as set forth in the CxAlloy company account section.
6. Term. This Agreement shall be effective as of the Effective Date set forth above and shall continue in full force and effect for the Initial Term of one (1) month and shall thereafter renew automatically, on a month by month basis, unless and until terminated by Licensor or Licensee, as provided in Sections 7 or 8 below.
7. Termination by Licensor. Licensor may terminate this Agreement:
8. Termination by Licensee. Licensee may terminate this Agreement at any time, with the effective date of such termination taking effect on the last business day of the month, as long as such date is at least ten (10) days after notice of termination is provided by Licensee. If the last business day of the month occurs during the ten (10) day notification period, the effective date of such termination shall take effect on the last business day of the month following notice of termination and Licensee shall be obligated to pay the monthly License Fee for such month following notice of termination.
9. Effects of Termination/Survival. Upon termination, all rights and obligations of the Parties under this Agreement will immediately cease and terminate (except for the rights and obligations pursuant to Sections 2, 3, 4, 10, 11, and 12, which will survive termination). Licensee shall be given reasonable opportunity and time to download or export any Data of Licensee used or previously entered into the Software or Software Website but otherwise shall immediately cease use and access of the Software and Software Website and return any and all copies of the Software and User Documentation to Licensor.
10. Warranty Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SOFTWARE WEBSITE (WHICH INCLUDES THE USER DOCUMENTATION) IS PROVIDED TO LICENSEE “AS IS,” AND LICENSOR DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY STATUTORY OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF ANY KNOWLEDGE OF LICENSEE’S PARTICULAR NEEDS. THIS LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS, AND LICENSEE MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
NOTWITHSTANDING ANY PROVISION OF THIS SECTION 10 TO THE CONTRARY, DUE TO THE COMPLEX NATURE OF COMPUTER SOFTWARE, LICENSOR DOES NOT WARRANT THAT THE SOFTWARE OR SOFTWARE WEBSITE OR USER DOCUMENTATION IS COMPLETELY ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS. LICENSEE EXPRESSLY ASSUMES ALL RISK WITH USE OF THE SOFTWARE AND SOFTWARE WEBSITE.
11. Limitation of Damages. EXCEPT TO THE EXTENT CAUSED BY LICENSOR’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, LICENSOR ALONG WITH ITS DIRECTORS, OFFICERS, EXECUTIVES, EMPLOYEES, AFFILIATES COMPANIES OR ENTITIES, ITS SUCCESSORS OR ASSIGNS, AND ANY AGENTS OF THE ABOVE SHALL IN NO EVENT BE LIABLE TO LICENSEE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR LOSS OF PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE INSTALLATION, USE, IMPROPER USE, INABILITY TO USE OR ACCESS TO, THE SOFTWARE, SOFTWARE WEBSITE AND/OR USER DOCUMENTATION AND ANY INFORMATION OBTAINED THROUGH THE USE OR ACCESS TO THE SOFTWARE, SOFTWARE WEBSITE, OR USER DOCUMENTATION, EVEN IF LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE EXCLUSIONS OF INCIDENTAL AND CONSEQUENTIAL DAMAGES MAY NOT APPLY TO LICENSEE.
WITHOUT LIMITING LICENSEE’S INDEMNIFICATION OBLIGATIONS HEREUNDER AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ENTIRE LIABILITY OF EITHER PARTY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY LICENSEE IN THE PRECEDING TWELVE (12) MONTHS.
12. Indemnification. Licensee will, at Licensee’s sole cost and expense, indemnify and hold Licensor, and its officers, directors, employees, agents, successors and assigns harmless from and against any and all claims, losses, damages, judgments, costs and expenses (including attorneys’ fees) arising out of or related to Licensee’s violation of the terms of this Agreement or the violation of the terms of this Agreement by any person who has access to the Software through Licensee.
13. Maintenance. Unless otherwise agreed to in a separate document, Licensor is under no obligation to provide Licensee with any modifications, customizations, enhancements, or revisions to the Software or Software Website. Assuming Licensee has not breached any term or condition of this Agreement or other referenced agreements, Licensor shall maintain and use reasonable business effort to keep the Software and Software Website generally accessible to Authorized Users of the Software and Software Website.
14. Notice. Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery, overnight courier service, or by registered or certified mail, postage prepaid, or recognized overnight delivery services.
If to Licensor:
CxAlloyAttn: Mr. Joel Terry, Chief Financial Officer of Licensor.
15. Amendments. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by duly authorized representatives of both Parties to this Agreement.
16. Assignment. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. However, neither Party may assign this Agreement except upon the advance written consent of the other party, which shall not be unreasonably withheld.
17. Severability. Should any term of this Agreement or other referenced agreements be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof, which should be interpreted to apply and enforce such remaining terms and conditions of this Agreement in a manner that accomplishes the stated goals, limitations, and objectives of the Parties as set forth within the four corners of this Agreement, and any referenced agreements or amendment executed by both Parties.
18. No Waiver. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches of any term or condition of the Agreement, whether or not related to or different from a prior right that was not enforced.
19. Governing Law. This Agreement shall be construed and governed in accordance with the laws of the state of Georgia without regard to the conflicts of laws provisions thereof. All causes of action are to be brought in the appropriate state or federal courts residing in Georgia.
20. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument. Execution and delivery of this Agreement may be evidenced by facsimile or scanned pdf version.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date set forth in the CxAlloy account.
