QuerySurge Internal-Use Rights License Agreement for Partners
Terms and Conditions
1. Use of Product and License.
1.1. License. Subject to the terms and conditions of this Agreement, RTTS grants to Partner a nonsublicensable, nontransferable, nonexclusive limited license to use one (1) copy of the computer software in object code form (the “Product”) for a 12-month term (“Term”) granted by RTTS. Partner shall use the Product and any documentation or other information related thereto that is received from RTTS or its representatives solely for Partner’s internal training use of the Product, internal development to build solutions around the Product, demonstration of Product to customers or potential customers, and for no other purpose. Partner acknowledges and agrees that the Product may incorporate functions that will inhibit Partner from exceeding the scope of this license.
1.2. Licenses to Third Party Materials. In connection with the Product, RTTS may use, or provide Partner access to, software, source code or other technology (“In-Licensed Materials”) licensed to RTTS from, and owned by, third parties (“Third Party Licensors”), as identified in this Agreement and the documentation delivered to Partner. Partner acknowledges and agrees that in addition to this Agreement, use of In-Licensed Materials shall be subject to other terms and conditions set forth in a license agreement provided with the In-Licensed Materials. Some third-party technology, as may be necessary or appropriate for use with some programs provided by Third Party Licensors, is licensed to Partner solely for use with the Product under the terms of the third-party license agreement specified in the Product package documentation or as Partner is otherwise notified by RTTS and not under the terms of this Agreement. Partner agrees that the Third-Party Licensors and suppliers are intended third party beneficiaries to this Agreement.
1.3. Restrictions. Partner shall not and shall not allow a third party to: (a) use the Product, any documentation or other information provided by RTTS hereunder, to create any similar software or documentation; (b) reproduce or modify the Product or any portion thereof, or embed the Product or any portion thereof into any commercial product of Partner or a third party; © sublicense, rent, sell, loan, lease, disclose, display, distribute, give, assign, or otherwise transfer the Product, or any interest thereto or portion thereof, or use it for timesharing, rental, hosting, outsourcing, subscription service or service bureau purposes, or for the benefit of a third party; (d) copy, duplicate, reverse assemble, reverse compile or reverse engineer the Product, or any portion thereof (including, but not limited to review of data structures or similar materials produced by the Product), or otherwise attempt to discover any Product source code, or underlying Confidential Information (as defined in Section 2.1 below), or otherwise circumvent any technological measure that controls access to the Product; (e) publish any results of benchmark tests run on the Product; (f) remove or alter any product identification, markings, copyright or other notices; or (g) install or operate the Product (or access it from) on more than one (1) computer server at the same time. Partner agrees to ensure that there is no breach, compromise or violation, by Partner employees, consultants, agents, customers, suppliers or independent contractors, of such obligations and RTTS’ and its licensors’ rights and title or interest to the Product.
1.4. Installation. Partner acknowledges and agrees that the Product may only be installed and used in a non-production environment and that, prior to installation and removal of the Product, Partner shall be solely responsible for backing-up all data on the applicable computer server.
2. Confidentiality. Partner acknowledges that, in the course of using the Product, Partner may obtain or create information relating to the Product (“Confidential Information”). Such Confidential Information shall belong solely to RTTS and includes, but is not limited to, the Product, its features and mode of operation, this Agreement and trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, equipment design and architecture, software, computer code, internal documentation, design and function specifications, equipment requirements, problem reports, analysis and performance information, equipment documents, and other technical, business, marketing and financial information, plans and data. During the Term and after its termination Partner: (a) shall not use (except as expressly authorized by this Agreement) or disclose Confidential Information, or unless such Confidential Information becomes part of the public domain without breach of this Agreement by Partner, its officers, directors, employees or agents, (b) agrees to take all reasonable measures to maintain the Confidential Information in confidence, and © will disclose the Confidential Information only to those of its employees and consultants as are necessary for the uses licensed hereunder and are bound by obligations of confidentiality. Upon the termination of this Agreement, Partner shall return or destroy all Confidential Information, as requested by RTTS.
3. Term and Termination. Unless earlier terminated as provided below, this Agreement shall commence on the Effective Date and shall continue for the Term, unless extended by RTTS in its sole and absolute discretion. The Product may incorporate automatic shutdown features which make it inoperable after the Term. This Agreement may be terminated by either party for any reason or no reason upon ten (10) days written notice to the other party, or immediately upon written notice of any breach or threatened breach by the other party of any provision of this Agreement. Upon termination or expiration of this Agreement, Partner’s license to use the Product will automatically terminate, and Partner shall immediately cease use of the Product and return to RTTS all Product provided hereunder. Sections 1.2, 1.3, 2 and 5 through 7, as well as this sentence, shall survive any termination or expiration of this Agreement for any reason. The parties agree that Partner shall have no obligation to rent, lease, license or purchase the Product from RTTS after termination or expiration of this Agreement, nor shall RTTS have any obligation thereafter to rent, lease, license or sell the Product to Partner.
4. Ownership. Title to and ownership of the Product and all copies thereof shall be and at all times remain in RTTS and the Third Party Licensors. No ownership of the Product or Confidential Information is transferred by this Agreement. Any reports, developments, recommendations or modifications made during the Term by RTTS or Partner relating to the Product, whether or not influenced or suggested by Partner, are the sole property of RTTS. Partner hereby assigns and agrees to assign to RTTS any interest it has or may acquire in any of the foregoing, as well as all related intellectual property rights; and will cooperate to perfect or further evidence such assignments.
5. WARRANTY DISCLAIMER. THE PARTIES ACKNOWLEDGE THAT THE PRODUCT IS PROVIDED “AS IS” AND MAY NOT BE FUNCTIONAL ON ANY MACHINE OR IN ANY ENVIRONMENT. RTTS AND ITS LICENSORS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, AND RTTS AND ITS LICENSORS EXPRESSLY EXCLUDE AND DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, FREEDOM FROM ERRORS, FREEDOM FROM PROGRAMMING DEFECTS, NONINTERFERENCE AND NONINFRINGEMENT, AND ALL IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE.
6. LIMITATION OF REMEDIES AND DAMAGES. RTTS AND ITS LICENSORS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (B) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOSS OF PROFITS, AND LOSS OF DATA OR DATA USE TO PARTNER OR ANY THIRD PARTIES, OR © FOR ANY DIRECT DAMAGES IN EXCESS OF THE GREATER OF $500.00, PROVIDED THAT LICENSORS SHALL NOT BE LIABLE TO PARTNER FOR ANY DIRECT DAMAGES WHATSOEVER, EVEN IF RTTS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RTTS AND ITS LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND THEIR REASONABLE CONTROL.
7.1. Governing Law. This Agreement shall be governed by and construed in accordance with, the laws of the State of New York without regard to conflicts of law provisions thereof, and without regard to the Uniform Computer Information Transactions Act.
7.2. Waiver. No provision of right, power or privilege under this Agreement shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of any party, its agents or employees, but only by an instrument in writing signed by an authorized representative of each party. No waiver by any party of any breach or default of any provision of this Agreement by the other party shall be effective as to any other breach or default, whether of the same or any other provision and whether occurring prior to, concurrent with, or subsequent to the date of such waiver.
7.3. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
7.4. Export Control. Partner shall comply with the U.S. Foreign Corrupt Practices Act and all applicable export laws, restrictions and regulations of the U.S. Department of Commerce, and any other applicable U.S. and foreign authority.
7.5. Publicity. Neither party shall publicly announce the existence of this Agreement, or advertise or release any publicity in regard thereto, without the prior written consent of the other party.
7.6. Entire Agreement. This Agreement, including any referenced attachments and/or incorporated documents, shall constitute the entire understanding between the parties regarding the subject matter described herein and supersedes any previous communications, representations or agreements whether oral or written regarding such subject matter.
7.7. Modification. No change or modifications of any of the terms or conditions hereof shall be valid or binding on either party unless made in writing and signed by an authorized representative of each party making specific reference to this Agreement and the clause to be modified.
7.8. Relationship of the Parties. The parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and nothing contained herein shall be deemed to constitute either party as the agent or representative of the other party. Each party is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. Except as expressly provided herein, a party shall have no right to exercise any control whatsoever over the activities or operations of the other party or commit the other party to any obligation or course of action.
7.9. Attorney’s Fees. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorney’s fees.
7.10. Assignment. Partner may not assign or transfer any of its rights or obligations hereunder without the prior written consent of RTTS, which consent shall not be unreasonably withheld, and any such attempted assignment shall be void. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
7.11. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.