Software License Agreement (SLA)
1.1. APEX means Apex Turbine Testing Technologies, Inc., a company incorporated under the laws of the state of Tennessee in the United States of America.
1.2. CUSTOMER means the person or organization purchasing or using APEX Software and Licensed
1.3. Maintenance Agreement is a written agreement between APEX and CUSTOMER whereby APEX provides technical support to CUSTOMER and correction of software defects identified by CUSTOMER under agreed-upon terms and conditions.
1.4. Software and Licensed Materials means any materials that APEX provides to CUSTOMER including but not limited to software, training materials, technical descriptions of the Software, and other reference materials.
2. Software License, Payment, and Installation
2.1. APEX grants to CUSTOMER a nonexclusive, perpetual, nontransferable license to use the Software and the Licensed Materials in accordance with the mechanism described in section 2.4. Such grant extends to use Enhancements as APEX produces them and provides them to CUSTOMER under terms of an existing Maintenance Agreement between the parties.
2.2. APEX may deliver the Software and Licensed Materials to CUSTOMER using a variety of means and completely at the discretion of APEX. Methods of delivery of the Software and Licensed Materials may include installation executables, zip files or other means provided through distributable media (such as DVD’s, Removable USB devices, etc.) or by download over APEX provided internet web portals. Customer may install the Software and Licensed Materials on any appropriate computational platform that adheres to APEX’s published performance minimums.
2.3. CUSTOMER shall pay APEX the cost of the Software and Licensed Materials at an agreed-upon price and in accordance with agreed-upon payment terms. If payments terms are unspecified, CUSTOMER payments are to be NET 30. Unless otherwise specified in writing and agreed to by both parties, all payments are to be in U.S. Dollars. Likewise, CUSTOMER is responsible for any additional duties, taxes, import fees, currency exchange fees of other fees as they may arise in association with the transaction. All such costs will be paid by CUSTOMER.
2.4. Upon full payment for the Software and Licensed Materials, APEX shall provide CUSTOMER Software License Keys of the form and number specified by the purchase, which enable the Software and Licensed Materials to operate on an appropriate computational platform. APEX may, in its sole discretion, provide CUSTOMER with Temporary License keys as described in 2.4.1 for purposes of performing acceptance testing or until payment in full is received. Types of license keys include:
2.4.1.NODE-LOCKED licenses which enable the Software and Licensed Materials to function on a single CUSTOMER identified computation platform as identified in section 2.2. Such license may be Perpetual, that is, non-expiring, or Temporary with a pre-established expiration date. NODE- LOCKED licenses may be moved from one computational platform to another under the terms of an existing Maintenance Agreement between the parties, by requesting new license keys from APEX. In the event that no Maintenance Agreement exists between the parties, APEX may, in its sole discretion, provide new keys and charge CUSTOMER a fee for this service.
2.4.2.FLOATING licenses which can be accessed over a network to an APEX-configured LICENSE SERVER. FLOATING licenses may be used on any computation platform upon which the Software and Licensed Materials have been installed as described in section 2.1 and which have network access to the LICENSE SERVER. FLOATING licenses installed on a LICENSE SERVER shall be managed using an appropriate software license manager of APEX choosing.
2.4.3.Such LICENSE SERVER described in 2.2.2 may support so-called license BORROWING, that is, use of a license from a LICENSE SERVER. Such BORROWED licenses will automatically be configured as expiring licenses with the expiration date of the license controlled via the license manager. Upon reaching the expiration date of the license, the license will be automatically re- included on the LICENSE SERVER. CUSTOMER may also return licenses to the LICENSE SERVER manually by reconnecting the computational platform upon which the BORROWED license was loaded to the LICENSE SERVER network.
2.5. All licenses granted hereunder are for the internal business use of CUSTOMER and Affiliates only. CUSTOMER may extend the use of the Software to leased employees or outsourced labor as long as the leased employees or outsourced labor use the software only for CUSTOMER’s benefit. CUSTOMER will ensure that such leased employees and outsourced labor abide by all applicable terms and conditions of this Agreement and ensure that such leased employees and outsourced labor are subject to confidentiality agreements at least as comprehensive and binding as between CUSTOMER and APEX.
2.6. This license does not permit CUSTOMER to: (i) Use the Software for a service bureau application for the benefit of third parties (other than Affiliates who are licensed hereunder, to the extent of such licensing); or (ii) sublicense, or rent the Software; or (iii) use the Software for any purpose other than CUSTOMER’s internal business use.
3. Intellectual Property
3.1. CUSTOMER shall not reverse assemble, reverse engineer, decompile, or unlock the Software in whole or in part for any reason.
3.2. APEX shall retain all rights to any computer source code in any form.
3.3. APEX retains title to the Software and Licensed Materials it provides to CUSTOMER. CUSTOMER shall have title to any removable, distributable media on which APEX provides the Software and Licensed Materials to CUSTOMER.
3.4. CUSTOMER shall have title to all analyses, recommendations, reports, and memoranda that APEX creates for CUSTOMER that are specific and unique to CUSTOMER. APEX retains title to any of its Software, Licensed Materials, any Modifications or Enhancements, general ideas, concepts, techniques, algorithms, tools and software components (including source code) that APEX develops in service to CUSTOMER .
4. Software Warranty, Indemnification, and Limitation of Liability
4.1. APEX warrants that it is the owner or licensor of the Software and has the authority to license Software as stated herein. APEX further warrants that the Software shall, if properly maintained and operated, perform substantially in accordance with APEX’s current published specifications which may include hardware performance requirements and operating system limitations. Such warranty shall apply to all Enhancements and any other updates or upgrades to the Software provided under an existing Maintenance Agreement between the parties.
4.2. APEX further warrants that it has taken reasonable steps to test the Software for Disabling Code (e.g., a virus, bot, timer, clock, counter, or similar routine that would erase data or programming, or cause the Software or related equipment to become inoperable or otherwise incapable of being used in the full manner for which is was designed and created) and that to the best of APEX’s knowledge the Software is free of Disabling Code.
4.3. Unless specifically agreed to by both parties in writing elsewhere, APEX DOES NOT WARRANT THAT THE FUNCTIONS PERFORMED BY SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS.
4.4. APEX DOES NOT WARRANT THAT SOFTWARE WILL OPERATE UNINTERRUPTEDLY, THAT IT WILL OPERATE IN COMBINATION WITH OTHER SOFTWARE, OR THAT ALL PROGRAM DEFECTS ARE CORRECTABLE. THE WARRANTIES HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. APEX PROVIDES ALL THIRD PARTY SOFTWARE UNDER THE WARRANTY PROVIDED BY SUCH THIRD PARTY, AND MAKES NO FURTHER WARRANTY OR REPRESENTATION EITHER EXPRESS OR IMPLIED BEYOND THAT PROVIDED HEREIN AS TO THE FITNESS, QUALITY, DESIGN, CONDITION, CAPACITY, SUITABILITY, MERCHANTABILITY, PERFORMANCE OR WORKMANSHIP OF THE THIRD PARTY PRODUCTS INCLUDED IN THE SOFTWARE.
4.5. APEX shall indemnify, defend, and hold CUSTOMER harmless from any damages and costs CUSTOMER incurs for any action based on infringement of a United States patent, trade secret, copyright, or other intellectual property right as a result of CUSTOMER’s use of Software if:
4.5.1.CUSTOMER notified APEX promptly in writing of any such claim or suit against CUSTOMER
4.5.2.CUSTOMER cooperates with APEX, and permits APEX to defend or settle such claim or suit on behalf of CUSTOMER; and
4.5.3. CUSTOMER has continued in a Maintenance Agreement between the parties without interruption from the date of this Agreement until the date of such claim, or before the date of such claim reinstated a Maintenance Agreement between the parties, or, if offered by APEX, CUSTOMER accepted equivalent non-infringing Software from APEX at no cost to CUSTOMER if Software that CUSTOMER would have been obtained through the Maintenance Agreement or equivalent non- infringing Software would have given CUSTOMER a complete defense to such claim or suit.
The foregoing states APEX’s entire liability with respect to infringements of any patents, trade secrets, copyrights, or other intellectual property rights by Software or Licensed Materials.
4.6. NEITHER APEX NOR ANY OF ITS RESELLERS, SUPPLIERS AND/OR AGENTS SHALL BE LIABLE FOR LOSS OF PROFIT, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, LOSS OF GOODWILL OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND, UNDER THIS AGREEMENT OR ARISING FROM THE SUBJECT MATTER HEREOF, EVEN IF CUSTOMER ADVISES APEX OF THE POSSIBILITY OF SUCH DAMAGES. APEX AND ITS RESELLERS, SUPPLIERS AND/OR AGENTS’ TOTAL LIABILITY FOR ALL CLAIMS (EXCLUDING PHYSICAL INJURY OR TANGIBLE PROPERTY DAMAGE RESULTING FROM NEGLIGENCE OR WILLFUL MISCONDUCT) THAT ARISE OUT OF THIS AGREEMENT SHALL NOT EXCEED THE LICENSE AND SERVICE PLAN FEES CUSTOMER PAID TO APEX (OR RESELLER OR AGENT) FOR THE SOFTWARE THAT IS THE SUBJECT MATTER OF THE CLAIM OR CAUSE OF ACTION.
5. General Provisions
5.1. This Agreement shall be governed by and interpreted in accordance with the plain English meaning of its terms and the internal substantive laws of Tennessee, without regard to its conflict of laws principles.
5.2. Each party undertakes to keep itself informed of the Export Administrative Regulations of the U.S. Department of Commerce and the International Traffic in Arms Regulations of the U.S. Department of State and agrees to comply with them. Each party shall obtain prior authorization from the disclosing party and the appropriate government authority before re-export of U.S. origin technical data received under this Agreement.
5.3. This Agreement may be assigned by APEX to any subsidiary or affiliate of APEX at any time. This Agreement may be assigned by either party to any other person or entity as part of the transfer to that person or entity of all or substantially all of the business of such party or that party’s division. APEX shall promptly notify CUSTOMER of any such assignment.
5.4. No waiver or modification of any of the provisions hereof shall be binding unless in writing and signed by duly authorized representatives of APEX and CUSTOMER.