tcs dataguise


1 ll references to D in these Terms and Conditions should be read as “Contractor (immixTechnology, Inc.), acting A ataguise D .” by and through its supplier, ataguise D ATAGUISE PRODUCTS AND SERVICES TERMS AND CONDITIONS FOR 1. DEFINITIONS. “ Affiliates ” means, with respect to a Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term control ” means the ability to direct or cause the direc tion of the management or policies of a Person “ through any of the following: (i) beneficial ownership of a controlling interest of the voting shares or other securities of a Person; (ii) the position as a general partner of a Person that is a partnership, including, without limitation, a limited partnership; (iii) the position as a manag ing member of a Person that is a limited liability company; (iv) pursuant to a written agreement; or (v) operatorship of a joint venture or joint owned or joint controlled “ Person ” means any individual, firm, union, asset(s). partnership, limited liability company, company, trust, or other entity. association, corporation, “ Documentation ” means user manuals and installation manuals sufficient to allow Licensee to utilize fully the Software in accordance with the descriptions of the capacity and functionality (Specifications) set forth in such manuals. “ Error or Defects ” means the result of the Software execution that is either incorrect or is other than expected based on the Specification s . ” Executable Code . Software means the machine readable version of the “ “ ” means the fee indicated on the Software Schedule in exchange for the Licenses g ranted License Fee herein. “ Major Release ” means a Software distribution by the Licensor that includes significant improvements in the functionality or performance of the Software and which are generally made available to all licensees. “ Minor Release ” means a Software distribution containing changes that correct Errors or Defects or make minor improvements in the functionality of the Software , which is generally made available to Licensor ’ Minor Releases may also include updates to a Software’s c ode and/or s client base. functionality. New Version ” “ Software that includes all or substantially all of the means the Major Release of a functions of the existing Software as described in the Specifications therefore without a substantial increase in functionality and performance. A New Version is not a repackaging of the existing functions. “ Software ” ’ s computer software programs identified in a Software Schedule. means the Licensor Software ) Source Code form, or (ii) Executable Code form, or shall be in (i Licensee to Delivery of the reformatted 12.3.2013 immixTechnology, Inc. Page 1

2 (iii) both, as specified in such Software Schedule. Software shall also include each and every Minor Major Release Release , Services and New Version available from Licensor during the term of Support ovided under this Agreement . pr “ Source Code ” means the human readable form of the computer program, and test materials, test scripts and other computer programs in source and executable form necessary for the scripts, build transformation thereof into the machine executable form of the and the test and verification Software thereof. Specification ” means the information which fully describes “ the capacity and functionality of the Software as set forth in the Documentation. 2. LICENSE GRANT. Licensor hereby grants to Licensee a worldwide, perpetual, non - exclusive right for Licensee and 2.1 its Affiliates to install, execute, operate, reproduce, perform, display, and use the Software on any server, personal computer, workstation, laptop computer, handheld, machine, device, or monitor or display, made up of any number of computer processor units, capable of correctly executing, operating , reproducing, performing, displaying, or using, as applicable, the Software, of any configuration, size, capacity, model or manufacturer ( “ Computer(s) ” ). Licensee shall have the unrestricted right to transfer the Software to different Computers, u sers, 2.2 sites or locations (domestic or international) without paying Licensor any additional costs, fees, or charges; provided, however , that the total number of Computers executing or using the Software does not exceed the permissible number of each type o f Software license purchased by Licensee under the Agreement. Licensor shall provide all necessary authorization codes, keys and assistance to facilitate such transfers. Licensee and its Affiliates may access the Software over the Internet and its Intran et, wide area networks, and local area networks. 2.3 Licensee may duplicate the Software as reasonably necessary for use of the Software (within the permissible number of each type of Software license purchased by Licensee under the Agreement) and for archival and backup purposes, including disaster recovery purposes, and such duplicate, archival, and backup copies shall not be counted as or against authorized copies. iness or division Access and Use by Sold or Divested Businesses . If an Affiliate, or line of bus 2.4 , or property(ies) or asset(s) of Licensee or an Affiliate, which utilize the Software pursuant to this Agreement , or otherwise divested are spun off, sold, merged (where the surviving entity is not an Affiliate of Licensee), ( Divested e to Licensor, be entitled to c shall, upon noti Businesses ), such Divested collectively, “ ” Businesses under this Agreement for up to one (1) year from the effective date of such spin continue to use the Software ; off, sale, merger, or other divestit ure , without additional charges, fees or costs provided , however, that any such Divested Business shall upon request certify in writing to Licensor that such Divested Business will abide ment. of disclosure terms in this Agree - the confidentiality and non by all MAINTENANCE AND SUPPORT SERVICES. 3. reformatted 12.3.2013 immixTechnology, Inc. Page 2

3 3.1 Reserved. 3.2 Support Services shall not automatically renew each year. Rather, Licensee shall have the right to Support Services for some or all Software licenses granted under the Agreement by either: elect to continue ( a ) notifying Licensor in writing of ’ s annual invoice for Support Services fees , or ( b ) paying Licensor . for such Software license Licensee ’ s desire to renew such S upport S ervices 3.3 If, with respect to an individual item of Software, after Licensor announces the availability of a Replacement Software (defined below), Licensor has ceased to offer Support Services for such Software (such Software, a “ Withdrawn Software ” ), then Licensor sha ll offer to Licensee, pursuant to the terms of this and Agreement, at no additional cost, fee, or charge to Licensee , any product (a “ Replacement Software ” ) announced or licensed by Licensor to any other customer that ( ) is or is marketed as a replacement for or a successor to such Withdrawn Software , ( b ) provides substantially similar functionality as the Withdrawn Software , or ( c ) provides alternative functionality to or substitute functionality for the functionality of the , in all cases regardless of whether the Replacement Software provides substantially new or Withdrawn Software Software additional functionality to the functionality of the Withdrawn . In the event that the Replacement Software or additional functionality, Licensor may disable such new functionality in does provide material new Software as provided to Licensee, provided such disablement does not in any way impair use of Replacement Software or other products t hat depend upon the Withdrawn any functionality contained in the Withdrawn . If Licensee desires to use new or additional functionality which has been disabled by Licensor, Software Licensee and Licensor agree to negotiate in good faith for the price to be paid for such new or additional functionalit y, which in no event will exceed the prevailing market price for such functionality. If Licensor does not , or cannot , disable such functionality, then Licensee may use such new or additional functionality at no additional cost , fee, or charge . Licen see and its Affiliates may assign up to three (3) technical contacts (plus a designated 3.4 backup for each) for each Licensee or Affiliate location using the Software under the Agreement that are authorized to contact Licensor for Support S ervices. Licensor agrees to work with each technical contact to resolve Licensee ’ s or its Affiliate ’ s support and maintenance issues and problems. Licensee may change a named technical contact with notice to Licensor. Support Services , and any labor, materials, or service related to the 3.5 warrants that the Licensor Support Services , including without limitation both tangible and intangible property and intellectual property rights, shall (a) be free of any defect in title, design, materials, and workmanship; (b) b e performed in accordance with all applicable Laws; (c) be performed in accordance with the highest standards of professional care for similar activities being performed in the United States; and (d) be in conformance with all provisions and specifications of this Agreemen t . This warranty shall be for the benefit of Licensee and its assigns. , 3.6 At no cost or expense to Licensee Licensor shall promptly correct any Support Services reasonably Licensee , or known or which reasonably should have been known by Licensor , to be rejected by defective or failing to conform to this Agreement . 3.7 Nothing in this Article 3 shall be construed to establish a period of limitation with respect to Licensor Article 3 relates only to the specific obligation of other obligations of Licensor under this Agreement . to correct the , and has no relationship to the time within which the obligation to comply with Support Services reformatted 12.3.2013 immixTechnology, Inc. Page 3

4 commenced to this Contract may be sought to be enforced, nor to the time within which proceedings may be ’ s liability with respect to Licensor ’ s obligations other than to correct the Licensor . establish Support Services 4. ACCEPTANCE TESTING. thirty (30) days from and after the first date of delivery and installation of any So Licensee shall have ftware and Licensor ocumentation within which to operate and use the Software on a trial basis ( “ Acceptance Testing ” ). D ’ such return Licensee shall have the right in Licensee Software and Licensor D ocumentation s sole discretion to such 3 0 - day period. If no written notification is given by and cancel this Agreement, on or before the end of Licensee within such 3 0 day period, such Software shall be deemed accepted. ESERVED . 5. R DOCUMENTATION . 6. As part ial consideration of the fees paid by Licensee under this Agreement and at no additional cost or charge to Licensee ne (1) complete set of D ocumentation for each Software license purchased , Licensee will receive o under the Agreement. Licensor hereby grants to Licensee a perpetual, nonexclusive license to copy and use the Documentation such Licensee’s busine ss use. As part of S upport S ervices, Licensor shall update for , or fee to Licensee charge cost, ocumentation to reflect Software changes at no additional D . 7. WARRANTIES Intellectual Property Indemnity. 7.1 Licensor represents and warrants that (i) Licensor owns and/or rightfully possesses from others (a) all right, title and interest in and to the Software; (ii) Licensor owns and/or rightfully possesses from others the right to license the Software to Licensee and its Affiliates; (iii) that the lice nsing of the Software by Licensor to Licensee will not infringe any copyright or patent or contain or constitute the trade secrets of any third party; - in or use - driven destructi on (iv) the Software is free from deliberate viruses, worms, Trojan horses, built mechanisms, and/or other deliberately injurious formulas, instructions or materials; (v) the Software (1) contains no hidden files, (2) does not replicate, transmit, or activate itself without control of a person operating computing equipment on which i t resides, (3) does not alter, damage or erase any data or computer programs without control of a person operating the computing equipment on which it resides, (4) contains no key, node drop dead de lock, time - out, “ back door, ” “ trap door, ” , “ booby trap, ” “ vice, ” “ data scrambling device ” or other function, whether implemented by electronic, mechanical or other means, which is intended to restrict use or access to any Software under this Agreement (hereinafter Illicit Code ” ) ; (v i ) the Software has been given “ the Export Control Classification Number and type license specified in Schedule A by the United States Bureau of Industry and Security, and Licensor shall immediately notify Licensee in writing should any part of this classification change; and (vi i ) the Software shall operate in accordance with the Documentation published by Licensor. Notwithstanding the foregoing, Licensor shall have no liability with respect to such infringement arising out of modifications to the Software by Licensee or its Affiliates that are not approved or permitted by Licensor, or use of the Software by Licensee or its Affiliates in combination with other software or equipment if such infringement would not have occurred but for such combined use . (b) by federal law, Licensor shall , at its sole cost, expense, and liability, To the extent permitted (i) against any claim of , and hold harmless all Persons from and Licensee infringement of defend , indemnify reformatted 12.3.2013 immixTechnology, Inc. Page 4

5 resulting from, arising out of or related to the Software and/or copyright, patent, or trade secrets of a third party , use thereof or (ii) breach of Licensor ’ s representations and warranties ’ access or such Licensee Persons item (a) above contained in sub Licensor in writing of any claim as listed . Licensee shall promptly notify . above (c) To the extent permitted by federal law, Licensor will have sole control of the defense and , any described in sub item ( b settlement of ; provided, however claim that (i) Licensee may participate in ) above such defense at its own cost, and (ii) Licensor shall not enter into any settlement of any such claim where such settlement imposes any liability or limitation on Licensee without Licensee ’ s express prior written consent. In addition to Licensor ’ s obligations under sub items (a) through (c) above , Licensor (d) shall have the right to (i) procure for Licensee the right to continue using such Software as provided for in this Agreement ; or (ii) modify or replace such Software so that such Software no longer infringes any such copyright, patent, or trade secrets of such ng third party; provided, however, that such modification or replacement shall not claimi materially alter the operational characteristics of such Software , and the same functions and performance provided by such Software remain intact following such modification or replacement. shall Article 7 The provisions of this (e) in no way be limited or restricted by any limitation of remedy or limitation of liability clause in this Agreement. This Article 7 this will survive the termination of Agreement. LIMITATION OF REMEDIES. 8. Notwithstanding anything in this Agreement to the contrary, n either Party shall be liable to the other for - indirect, special or consequential damages arising out of this Agreement or any performance or non perfo rmance under this Agreement (except to the extent that damages claimed by any third party may be deemed to be indirect, special or consequential damages under this paragraph) . For the purposes of this “ consequential damages ” includes without limitation any punitive, exemplary, or special damages, Agreement, and any lost profits, lost opportunity, or loss of use damages. 9. R ESERVED . R ESERVED . 10. 11. CONFIDENTIAL INFORMATION. 11.1 Confidential “ I nformation ” means all information disclosed by the disclosing party ( “ Discloser ” ) to the recipient party ( “ ” ) , and any information exchanged via remote access to Licensee ’ s or Licensee Recipient ’ s systems, computers, documentation, software, third party software, or facilities ; provided, however, Affiliate that Confidential Information shall not include information ( i ) availabl e to the public other than by a breach of this Agreement; ( ii ) rightfully received by the Recipient from a third party not in breach of any obligation of confidentiality; ( ) independently developed by the Recipient without use of the Confidential Inform ation of iii the Discloser ; or (iv) known to the Recipient at the time of disclosure (other than under a separate confidentiality obligation) . 11.2 Confidential Information shall remain the sole property of the Discloser and shall not be disclosed to any p own employees or contractors having a need to know s ’ Recipient erson or entity, except to the reformatted 12.3.2013 immixTechnology, Inc. Page 5

6 (and who are themselves bound by similar nondisclosure restrictions) and to such other recipients as the Discloser Each Recipient agree s to protect the Confidential Information of the may approve in writing. in the same manner such Recipient protects the confidentiality of similar information and data of its Discloser such Recipient own (and at all times exercise at least a reasonable degree of care). If t he Recipient is shall required or requested (by legal process, civil investigative demand or similar process , or pursuant to law, rule, , ) to disclose any Confidential Information of the or regulation , the Recipient will endeavor to promptly Discloser may seek an appropriate protective order or waive compliance with notify the Discloser so that such Discloser , or shall this . Upon req uest, the Recipient shall return all Confidential Information to the Discloser requirement destroy all such Confidential Information; provided, however , that such obligation to return or destroy Confidential Information shall not include any requirement to d elete, destroy, or return any Confidential Information on archive tapes, server back up tapes, or similar back up storage media . The obligations set forth in this Article 11 shall survive for a period of three ( 3 ) years following any expiration or termina tion of this Agreement. 11.3 Licensor shall not issue or cause the publication of, or make any reference to, Licensee or Licensee ’s Affiliates in, any press release, public announcement, advertising, circular or promotional material pproval written a relating to the existence of this Agreement or the subject matter of this Agreement without the . Licensee of 12. ASSIGNMENT . 12.1 P Ne ither arty may assign this Agreement and/or any rights and/or obligations hereunder without the prior written consent of the other arty, which consent shall not be unreasonably withheld , conditioned or P delayed ; provided, however , that either P arty may as sign this Agreement and/or any of its rights hereunder upon written notice to the other arty, without requiring the consent of the other P arty, to any Affiliate, to the P assigning P arty ’ s successor pursuant to a merger, consolidation or sale, or to an entity which acquires all or substantially all of the business of the assigning party relating to this Agreement. Any assignment in violation of the foregoing shall be null and void, and of no force or effect. I 12.2 n the event of any assignment of all or any part of this Agreement by Licensor, whether by operation of law or otherwise, or acquisition of Licensor by a third party, Licensee shall have the right to obtain from Licensor s assignee, in perpetuity and pursuant to this Agreement, renewals of any applicable license and ’ . licenses for additional units of Software (including Replacement Software) licensed pursuant to this Agreement Licensor ’ at a price not to exceed seventy percent (70%) of s average list price for such Software during the twelve (12) months prior to the time of assignment, and Software Support services for such Software, in accordance with this Agreement. 12.3 This Agreement shall be binding upon and shall inure t o the benefit of the P arties ’ respective successors and permitted assigns. 13 . R ESERVED 14. R ESERVED 15. TERMINATION. 15.1 . eserved R reformatted 12.3.2013 immixTechnology, Inc. Page 6

7 15.2 Termination by Licensee . Licensee shall have the right, at any time and without further obligation or liability to Licensor, to immediately terminate this Agreement or any part hereof as to any . Upon termination of this Agreement by Licensee as to any Software Software ’ s breach of any due to Licensor warranty or obligation hereunder with respect to such , and in addition to any other remedies at law or Software Licensee , equity available to may withhold any unpaid amounts due hereunder. Licensee 15.3 Disposition of Software on Terminatio n . Upon the termination of the license to any Software , Licensor shall have the right to notify Licensee that Licensee’s rights to the granted in this Agreement Software ha ve terminated , and Licensee shall thereafter : (a) upon Licensor ’ s request and at Licensor ’ s expense, return to Licensor or destroy the applicable may together with all Documentation relating to the Software , except that Licensee Software twithstanding the foregoing, No . retain a single copy of the Documentation for archival purposes Licensee backup shall not be required to delete, destroy or return any copies on archive tapes, server tapes or similar back up storage media. onable If Licensor terminates the License for any Software , Licensee shall have a reas (b) period from the receipt of Licensor ’ s notice of termination to migrate from the Software to the software of another licensor. During this migration period Licensee may continue using such Software and Documentation subject to the terms and conditions of this Agreement as necessary for migration. IN NO EVENT SHALL LICENSOR REMOVE, ALTER, CHANGE OR INTERFERE 15.4 FROM USING SUCH LICENSEE FOR PURPOSES OF PREVENTING SOFTWARE WITH ANY RESULT OF ANY DISPUTE UNDER THIS AGREEMENT SOFTWARE , AS THE . . 16. SURVIVAL All terms of this Agreement, which by their nature would survive the termination of this Agreement, shall survive termination. 1 . . 7 ESERVED R 18. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. A copy of a signed Agreement delivered t o the other Party by facsimile transmission or other electronic means shall have the same effect as the delivery of an original of this Agreement containing the original signature of such Party. reformatted 12.3.2013 immixTechnology, Inc. Page 7

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