PARTEK Click Through Standard
End-User License Agreement
Terms and Conditions
TERMS AND CONDITIONS
Subject to the following terms and conditions in this Standard End-User License Agreement (the Agreement), Partek Incorporated (Partek) grants to the Customer identified in Partek Genomics Suite System Information Agreement for New Customers (hereinafter referred to as Licensee) and Licensee hereby accepts a license to use the computer Software identified in the Schedule A attached hereto, including Updates and Documentation, as defined herein. In the event of any inconsistency between the subject matter of Schedule A and the Agreement, the provisions of the Agreement shall take precedence provided that Schedule A does not specifically identify a provision in the Agreement that it is modifying, in which case for that identified provision solely, the modified provision in Schedule A shall govern.
W I T N E S S E T H:
WHEREAS, Licensee desires to obtain from Partek a non-exclusive, non-transferable, non-assignable right to use Partek's proprietary software, documentation, and information (as respectively described in Section 1 below); and
WHEREAS, Partek is willing to grant Licensee a non-exclusive, non-transferable, non-assignable license to use Partek's proprietary software, documentation and information solely for such limited purposes subject to the terms, conditions and provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and the respective promises and obligations of the parties set forth herein, the parties, intending to be legally bound, agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) The term Software shall mean Parteks proprietary software including but not limited to Partek® Genomics SuiteTM, Partek® Discovery SuiteTM, Partek® QSAR SolutionTM, Partek® Screening SolutionTM, and Partek® ExpressTM, and user manuals distributed as a unit therewith.
(b) The term "Documentation" shall mean all specifications and other supporting documentation for or related to the Software provided to Licensee by Partek.
(c) The term Information shall mean all information and/or data collected, accumulated, assembled, compiled, formulated, derived, reported, produced, and/or provided by Partek to Licensee, and which will or may be made available to Licensee under this Agreement including, but not limited to, Partek formats and system information.
(d) The term Authorized Site(s) shall mean the location identified in Schedule A attached hereto or such other Licensee location(s) first approved by Partek in writing.
(e) The term Authorized Licenses shall mean the maximum number of simultaneously running instances (Concurrent Users) or single computer bound instances (Node-locked Computer) of the Software at the Authorized Site(s) as specified in Schedule A attached hereto.
(f) The term "New Release(s)" shall mean any new version(s) of the Software released by Partek to its customers from time to time under Partek's support/update plans, and may include new functionality, improvements, and enhancements to existing functionality.
(g) The term "Updates" shall mean a version of the Software or any component thereof released by Partek to its customers from time to time under Partek's support/update plans, which may remedy or provide a workaround for a Discrepancy.
(h) The term "Discrepancy" shall mean a Software function, which does not operate in conformance to Software(s) user documentation.
(i) The term Schedule shall mean a work order setting forth the following with respect to the applicable services: (i) description of services or product to be provided, (ii) costs and payment schedule for the services or product, (iii) description of deliverables to be delivered (if applicable), and (iv) contact person and associated contact information for each party. After a Schedule is agreed upon and executed by the parties hereto, the same shall be attached to this Agreement and the Schedule shall then be a part of this Agreement.
(j) The term Schedule A shall mean a document (Schedule A document, authorized Partek Quotation) which describes the licenses being purchased, the number of licenses, the license term, the authorized site, and the price paid for the license(s). For evaluation copies of the software, Schedule A refers to the Partek Evaluation Agreement.
2. LICENSE.
(a) Partek hereby grants to Licensee, for the term specified herein, solely for Licensee's use, and without the right to alienate, assign, sub-license, or otherwise transfer all or any part of the rights so granted, a limited, personal, revocable, non-exclusive, non-assignable, non-transferable license to use the Software in object code format and the Documentation by the number of Concurrent Users or Node-Locked Computers at each Authorized Site, and nowhere else, in accordance with the terms, conditions and provisions of this Agreement. Licensee's employees, independent contractors, agents and consultants are also entitled to use the Software, subject to all of the terms and conditions of this Agreement. Licensee assumes full responsibility for its employees and agents use of the Software hereunder.
(b) The Software, Documentation, and/or Information are and shall remain the sole and exclusive property of Partek and Licensee shall not have or acquire any right or interest in or to the Software, Documentation, and/or Information except for the limited use rights expressly granted herein.
(c) Licensee and Partek each understand and agree that Partek owns all right, title and interest in and to any and all derivative works of the Software, Documentation and/or Information, and any and all updates, upgrades, modifications, changes, alterations, edits, conversions, improvements, or the like, to said the Software, Documentation and Information. Any and all derivative works of the Software, Documentation and/or Information, and any and all updates, upgrades, modifications, changes, alterations, edits, conversions, improvements, or the like, made to the Software, Documentation and/or Information, shall be treated under and subject to the confidentiality provisions set forth in Section 5 below.
(d) To the best of Parteks knowledge, Licensee may freely use Parteks Software, Documentation and Information and any other advice, data, information, inventions, works of authorship or know-how that Partek conveys or provides hereunder without infringing or misappropriating any third partys (e.g., a university or corporation) intellectual property or other rights.
(e) It is recognized and understood that the all pre-existing inventions and technologies of Licensee or Partek are their separate property, respectively, and are not affected by this Agreement.
3. USE OF SOFTWARE.
(a) Licensee may only use the Software in machine-readable form by a number of Concurrent Users or Node-Locked Computers of the Software that shall not exceed the number of licenses granted under this Agreement. Except as expressly set for forth in Schedule A, licensed Software shall only be used on equipment at an Authorized Site which is under the direct control of the Licensee and the Licensee shall only permit its employees, contractors, agents, and consultants to either directly or indirectly operate the Software, unless otherwise approved by Partek in writing.
(b) Licensee shall only use the Software for its own business which is conducted with, on behalf of, or in connection with Licensee, and in no event shall Licensee use or permit the use of the Software, Documentation, Information, and/or any data or information derived therefrom, for any other purpose, or on behalf of any service bureau, timesharing service, third parties, or other entities.
(c) Licensee agrees not to reverse engineer, reverse compile, de-compile, or disassemble the Software in any manner or form and will not either itself or permit others to create or attempt to create by reverse engineering, reverse compiling, de-compiling, disassembling or otherwise, the source programs or any part thereof from the object programs or from other information made available from Partek under this Agreement or otherwise (whether oral, written, tangible or intangible). Licensee agrees not to divulge any information about the Software, or to use the Software to emulate the look and feel of the User Interface, or to reproduce the mathematical algorithms or data visualization capabilities of the Software in another software system. Licensee will not attempt to modify or alter the Software in any manner or form without the prior written approval of Partek.
(d) Licensee may not copy, reproduce or duplicate the Software, Documentation, and/or Information, and/or any tangible media containing the Software, Documentation, and/or Information, in any manner or form, in whole or in part, except to make up to only two (2) back-up copies of the Software for archival purposes only. Licensee acknowledges and understands that its use of the Software and Documentation under this Agreement is expressly limited to the operation and use of only the number of Concurrent Users or Node-Locked Computers at each Authorized Site, and nowhere else, and that Licensee may not and will not operate any additional copies of the Software, or make any additional copies of any of the Documentation, without the prior written approval of Partek and the payment of an acceptable additional license fee, if so required. Licensee shall prevent and not permit any third parties, persons or entities from using, copying, reproducing, duplicating, examining, inspecting, studying, and/or reviewing the Software, Documentation, and/or Information. Notwithstanding the foregoing, independent contractors and consultants of Licensee are entitled to use the Software, Documentation, Information, and/or any data or information derived therefrom, only to the extent that is required for said independent contractors and consultants to provide necessary services to Licensee. For the avoidance of doubt, Licensee may only provide Parteks information on a need to know basis to the said independent contractors and consultants who are bound by obligations no less restrictive than those contained herein. Licensee's violation of any provision of this Section 3(d) shall constitute a material breach of this Agreement, misappropriation of Partek's intellectual property rights, and possible copyright infringement.
(e) All copies of the computer programs which constitute all or a portion of the Software and all Documentation, whether in printed or machine readable form, and whether on storage media or otherwise, and all legends, trademarks, service marks, and copyright notices contained on or in the Software or Documentation as delivered to Licensee by Partek shall be considered part of the Software and Documentation subject to this Agreement.
(f) Licensee shall not remove from, alter, modify or deface any copyright notice, trademark, service mark, logo, name, decal or imprint affixed to or on the Software, Documentation, and/or Information including, but not limited to, those which identify Partek or any other party as the source of origin of such goods, products, Software, Documentation and/or Information. Licensee shall not take any actions or fail to take any actions which are likely to confuse anyone into believing that Partek is not the source of origin of the Software and/or Documentation.
(g) Licensee shall not attempt to register any copyrights, register any trademarks or service marks, or apply for any patent or other intellectual property protection for the Software, Documentation and/or Information, any segments or portions thereof, or any marks, logos, names, decals or imprints associated therewith.
(h) Licensee acknowledges and agrees that any violation of any term, condition or provision of this Section 3 would cause Partek irreparable harm for which there would be no adequate remedy at law, and that Partek shall be entitled to temporary, preliminary and permanent injunctive relief against any such violation. Such injunctive relief shall be in addition to, and in no way shall limit, any other rights or remedies which Partek may have at law or in equity including, but not limited to, damages.
(i) In the event Licensee fails to comply with any of the terms or condition of this Section 3, and does not cure such non-compliance (if curable) within thirty (30) days after Licensee's receipt of written notice of such non-compliance, then Partek shall have the right to immediately terminate this Agreement and the License granted herein. The terms and provisions of this Section 3 shall survive the termination and/or expiration of this Agreement for any reason. In the event this Agreement expires and/or is terminated, Licensee shall immediately cease any and all use of the Software, Documentation, and Information, and shall promptly return (or destroy upon the written request of Partek) all such material, including, but not limited to, all Software, Documentation, Information, and back-up and archival copies of the Software, Documentation and Information to Partek.
(j) If Licensee develops end-user applications through an expressly permitted use of the Software licensed hereunder or any portion thereof, and if, upon execution of such end-user application, Partek's or its licensors' copyright notice(s) contained in the Software do not automatically appear, Licensee shall include the following notice on the initial boot-up/display screen of such end-user application: "This application was created with, embodies and/or executes proprietary software under license from Partek Incorporated. © Copyright Partek Incorporated. All Rights Reserved".
4. LICENSE FEE.
Licensee shall pay to Partek the subscription license fee(s) set forth in Schedule A, which license fee(s) shall become due and payable to Partek as set forth on said Schedule A. The subscription license fee includes maintenance (product support and upgrades) during the license period set forth in Schedule A.
5. CONFIDENTIALITY/PROPRIETARY INFORMATION.
(a) Licensee acknowledges that the Software, Documentation and Information are confidential and proprietary products and processes, that they embody valuable trade secrets, and that Partek has certain intellectual property rights in and to the Software and Documentation including, but not limited to, copyrights, trade secrets, patent rights, trademarks and service marks. Licensee understands that Partek's rights in and to the Software and Documentation extend to the intellectual processes, procedures, apparatus, and to the original works of authorship, expressions and articulations contained in the Software, Documentation and Information, and that no right, title or interest, except for the limited use license set forth herein, is conveyed or transferred to Licensee in any way or manner by this Agreement or in or by any schedule or addenda hereto.
(b) Licensee shall retain and treat the Software, Documentation, and all Information, in confidence and shall prevent and not allow any of such Software, Documentation and/or Information or materials, to be disclosed, used, sold, assigned, leased, sub-licensed, commercially exploited and/or otherwise marketed in any way or manner by Licensee, its employees, agents, representatives, and/or by any third parties. At a minimum, Licensee hereby agrees that any employees having access to any of the Software, Documentation and/or Information will abide by the restrictions and requirements of this Section 5. The Licensee shall be responsible for any breach of this Agreement by its employees, which shall be considered a breach by the Licensee.
(c) Notwithstanding the foregoing, the terms and provisions of this Section 5 exclude information that:
(d) The terms and provisions of this Section 5 shall survive the termination and/or expiration of this Agreement for any reason.
6. TAXES.
There shall be added to any charges and/or license fees under this Agreement, and Licensee shall owe and pay to Partek, amounts equal to any taxes, however designated or levied, based upon such charges and/or license fees, or upon this Agreement or the Software, Documentation, Information, or materials provided under this Agreement, or their use, including state and local privilege or excise taxes based on gross revenue, and any taxes or amounts in lieu thereof paid or payable by Partek in respect of the foregoing, exclusive however of franchise taxes and taxes based on net income of Partek.
Licensee agrees to pay all sales, use, value added/ad valorem, surtax and personal property taxes, duties, fees and any other governmental assessments with respect to the sale of this software license.
The terms and provisions of this Section 6 shall survive the expiration and/or termination of this Agreement for any reason.
7. DELIVERY, INSTALLATION, AND PAYMENT.
(a) Following receipt by Partek of this Agreement or subsequent the Schedule A executed by Licensee, Partek shall deliver to Licensee the Software licensed hereunder on media, electronically or as otherwise made available or specified in the Schedule A.
(b) Partek shall pay any applicable shipping charges relating to delivery of the Software, FOB Origin freight prepaid.
(c) Installation of the Software is the responsibility of Licensee, however, Licensee may obtain Software related installation assistance from Partek via telephone. (d) Licensee shall pay to Partek the license and/or other fee(s) as specified in Schedule A, in the currency specified therein. For subsequent renewal terms, for Software licensed on an annual basis, Licensee shall pay the then current annual license fee within thirty (30) days prior to each anniversary date for each renewal. All fees shall be deemed overdue if they remain unpaid thirty-one (31) days after they become payable.
(d) For disputed invoices or the disputed portion of an invoice, Licensee shall use reasonable efforts to provide to Partek, in writing, within ten (10) business days, a description of the disputed amounts. Licensee and Partek shall negotiate in a timely, good faith manner to resolve billing queries.
8. TRAINING AND SUPPORT.
(a) Licensee may purchase training and consulting services, which typically include but may not be limited to Partek installation, training, and consulting. Such services will be specified in applicable Schedule(s) as agreed upon in writing by both parties.
(b) Support shall commence on the day of delivery of the Software and continue for the duration of the subscription term defined in the Schedule A to this Agreement. Support will be provided as set forth in Sections 9 (b), 9 (c), and 9 (d) below.
(c) In consideration of Licensees payment of the applicable subscription license fee(s) stated in Schedule A, Partek shall provide support services for the Software subject to this Agreement which support services shall include technical assistance (via telephone, internet support or as otherwise agreed to between the parties), Documentation, New Releases and Updates (collectively, "Support Services"). Technical assistance details are as follows:
(i) technical assistance via telephone at 314 878-2329 M-F 8am-5pm (CST)
(ii) technical assistance via internet support at support@partek.com
(iii) other technical assistance web-based support (arranged as needed)
(d) With respect to Support Services, Partek shall provide to Licensee's designated contact(s) at the Ship To site(s), both of which are identified in Schedule A, copies of any New Releases or Updates to the Software. The parties shall promptly notify one another of any change in the designated contact(s) or shipping addresses identified in this Agreement and/or Schedule A.
(e) Partek may subcontract the Support Services to any person or entity which has all of the necessary technical expertise and qualifications. Upon request by Licensee, Partek shall provide verification of said technical expertise and qualifications. All such subcontractors shall be retained directly by Partek and no contractual relationship shall be created between Licensee and subcontractors, other than Licensees position as a third-party beneficiary of the services of subcontractors. All subcontractor contracts shall contain appropriate provisions binding each subcontractor to terms at least as strict as those in this Agreement. Licensee 's consent to a subcontractor shall not in any way relieve Partek of any duty or responsibility under this Agreement, and Partek shall remain primarily obligated for the performance of all Services
(f) If a Discrepancy is discovered by Licensee in the Program(s), Licensee shall report the Discrepancy to Partek in written form (which may include, but shall not be limited to, e-mail), identifying at minimum the product name, version, operating environment, and description of the Discrepancy (the "Report"). Partek shall investigate such Discrepancy Report as soon as possible but not later than two (2) business days after receipt of such notice. Partek will, as soon as reasonably practicable following receipt of a Report, begin work to schedule a correction for or instructions for avoiding the Discrepancy. However, if the Discrepancy causes the Software to be inoperable or severely hampers its operation Partek will immediately begin work to identify and characterize the Discrepancy and within two (2) business days of receipt of the Report, Partek will either provide Licensee a correction or workaround or report back to Licensee with a status report indicating the nature of the Discrepancy, steps being taken to resolve the Discrepancy and estimated date the Discrepancy will be resolved. If the Discrepancy does not cause the Program(s) to be inoperable or does not severely hamper the Programs operation, Partek will use commercially reasonable efforts to correct the Discrepancy or provide a workaround in a future Update to the Software. Licensee acknowledges that Partek does not and cannot guarantee that all Discrepancies can or will be corrected
9. LIMITED WARRANTY.
(a) Partek warrants it shall have, as of the date of delivery of the Software to Licensee and throughout any applicable term thereunder, including any renewals or extensions thereof; free and clear title (including all proprietary rights) to, and the right to possess, use, sell, license, transfer, lease, and assign any and all Software products that are sold, leased, rented, licensed, or otherwise provided to Licensee by Partek pursuant to this Agreement.
(b) Partek warrants to Licensee that the media on which the Software is delivered will be free from defects in materials and workmanship under normal use for a period of ninety (90) days following the date the Software was delivered to Licensee. During such ninety-day (90) period, Licensee may return the defective media to Partek and it will be replaced without charge unless it is determined that the media has been damaged by misuse by Licensee.
(c) Partek warrants that the Software will perform in accordance with Partek's Genomics Suite software specifications (the Specifications) for a period of ninety (90) days after proper installation at an Authorized Site in an environment which conforms with Partek's Specifications. The Specifications include performing within the computer system requirements listed on our website at http://www.partek.com/licensing, performing the Partek Genomics Suite operations listed in our online tutorials section at http://www.partek.com/Tutorials, and passing internal/non-publicized regression testing prior to software releases. In the event Licensee advises Partek in writing within said ninety (90) day period of any alleged failure of the Software to perform in accordance with Partek's Specifications, the parties will discuss and agree upon how Partek will, at no charge, correct any defects, if any, or replace the Software or portion thereof if defective. Partek shall not be responsible for, and this warranty shall not apply to operator errors on the part of the Licensee, Licensee hardware defects, software product incompatibility resulting in operating system or third-party software failures, or problems due to changes or modifications in the Software made by or on behalf of Licensee, excluding any modifications made by a subcontractor of Partek. Licensee shall fully reimburse Partek on a time and materials basis for time Partek spends at Licensee's facility investigating alleged problems which are determined by Partek not to be covered by the warranty.
(d) Partek shall have no liability under the foregoing warranty to anyone other than Licensee or to the extent that Licensee has failed to report in writing any defect in media claimed to be in breach of warranty within ninety (90) days following delivery of the Software.
10. DISCLAIMER OF WARRANTY.
(a) PARTEK WARRANTS THAT IT SHALL PERFORM THE SERVICES IN GOOD FAITH AND IN A PROFESSIONAL MANNER. NOTWITHSTANDING SECTION 9, PARTEK DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. NOTHING IN THIS SECTION 10 SHALL LIMIT THE RIGHTS OF THE PARTIES TO SEEK INJUNCTIVE RELIEF.
(b) The Software provided under this Agreement may contain third party utility files and/or programs (e.g., .exe, .dll, .tcl, .so, .a, .jar, .jre, ODBC and JDBC drivers, or others) provided by third parties to Partek with permission ("Third Party Utilities"). These Third Party Utilities are provided to Licensee as a convenience and for use solely in conjunction with the Software licensed hereunder and for no other purpose. Partek has selected such Third Party Utilities because of their effective use and operation with the Software licensed hereunder when used in the manner intended as described by the accompanying Documentation. Should the operation of the Software be hampered as a result of a Third Party Utility or Utilities, Partek shall promptly make reasonable commercial efforts to repair or replace such file(s). In addition, Partek reserves the right to replace any of the Third Party Utilities at its discretion. Notwithstanding anything to the contrary contained in this Agreement, with respect to the Third Party Utilities, IN ADDITION TO THE DISCLAIMER OF WARRANTY IN 10 (a) ABOVE Partek AND ITS LICENSORS DISCLAIM ANY WARRANTY OF NONINFRINGEMENT AND ADDITIONALLY, IN NO EVENT SHALL Partek OR ITS LICENSORS BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE ARISING OUT OF USE OR INABILITY TO USE THE THIRD PARTY UTILITIES.
11. LIMITATION OF LIABILITY.
(a) EXCEPT FOR BREACH OF SECTION 5 herein, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, REGARDLESS OF THE FORM OF A CAUSE OF ACTION WHETHER IN CONTRACT, TORT OR UNDER A STATUTE, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR STRICT LIABILITY, FOR DAMAGES IN EXCESS OF THE TOTAL AMOUNT PAID BY LICENSEE TO Partek UNDER THIS AGREEMENT. IN NO EVENT WILL EITHER PARTY BE RESPONSIBLE AND/OR LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR OTHER DAMAGES OF ANY KIND TO LICENSEE OR ANY OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, FOR LOSS OF DATA, LOSS OF USE, LOSS OF PROFITS, INVASION OF PRIVACY, OR THE LIKE, EVEN IF Partek HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
(b) Refunds for annual license shall be a return of the annual license fee already paid to Partek prorated to the end of the then-current term provided the software is returned within 60 days of purchase. The terms and provisions of this Section 11 shall survive the termination and/or expiration of this Agreement for any reason.
12. INSURANCE AND INDEMNIFICATION.
(b) Licensee agrees to defend, indemnify, and hold harmless Partek, its principals, directors, officers, employees, and agents from and against any and all liabilities, penalties, claims, demands, suits, and causes of action of any nature whatsoever, whether groundless or otherwise, and any and all damages, costs, and expenses sustained or incurred (including cost of defense, settlement, and reasonable attorneys' fees) (the Losses), asserted by or on behalf of any person or entity directly relating to or arising out of (1) any breach of this Agreement or breach of representation or warranty by Licensee, (2) the negligent acts, intentional acts, fraud or omissions of Licensee, its principals, officers, directors, agents, representatives, and employees, (3) any violation by and/or failure of Licensee to comply with any laws or regulations applicable to its business including, but not limited to, maintaining any necessary licenses, permits, and confidentiality, (4) any governmental or regulatory charges relating to any premium taxes, insolvency fund fees, guarantee fund fees, sales taxes, license fees, and/or the like, (5) Licensee's provision of any services, including, but not limited to, freight services, to any third-parties, and (6) any damages, except to the limited extent expressly provided for herein, of any kind or nature sustained or alleged by Licensee and/or any third parties due to Licensee's use and/or license of the Software, Documentation and/or Information. Licensee shall have sole control of any such suit (including without limitation the right to settle on behalf of Partek), and Partek shall reasonably cooperate with Licensee in connection with its defense at the reasonable expense of Licensee. The indemnities and remedies set forth in this Section 12 shall survive the expiration and/or termination of this Agreement.
(c) Partek agrees it will at its sole cost and expense, defend, indemnify and hold harmless Licensee from and against all Losses, to the extent such Losses arise out of; result from, or are attributable to infringement of any patent, copyright, trade secret, trademark, or confidential information (hereinafter called "Intellectual Property") by Partek or its employees, subcontractors, consultants, representatives, and agents; provided, however, Licensee gives Partek notice in writing of the Claim; notwithstanding the foregoing, Licensees failure to so notify Partek shall not diminish Parteks indemnity obligations hereunder except to the extent such delay prejudices Parteks defense of such matter. This indemnity shall not apply to any claim of infringement resulting from Licensee's (i) use of other than the current release of the Software, if such infringement could have been avoided by the use of such release, or (ii) use or combination of the Software with software, hardware or other materials not provided or approved by Partek.
(d) If the Software is, or in Partek's opinion is likely to become, the subject of a claim of infringement of a patent, copyright, trademark, trade secret, or confidential information, Partek may (i) procure for Licensee the right to continue to use the Software, (ii) replace or modify the Software to make it non-infringing, or (iii) if neither of the foregoing is commercially reasonably, terminate this Agreement and refund a prorated amount (measured by the unexpired portion of the current license term) of the License Fee and any related fees paid hereunder by Licensee.
(e) If a judgment or settlement is obtained or reasonably anticipated against Licensees use of any Intellectual Property covered by the above Intellectual Property indemnification provision, Partek shall at Parteks sole cost and expense promptly modify the item or items which were determined to be infringing, acquire a license or licenses on Licensee's behalf to provide the necessary rights to Licensee to eliminate the infringement, or substitute the Intellectual property with non infringing Intellectual Property which provides Licensee the same functionality.
(f) In the case of any claim asserted by a third party against Licensee, notice shall be given in writing by the Licensee to Partek promptly after Licensee has actual knowledge of any claim as to which indemnity may be sought, and Licensee shall permit Partek (at the sole expense of Partek) to assume the defense of any claim or any litigation resulting therefrom, to control such defense and the disposition of such claim (including all decisions relative to litigation, appeal, and settlement); and Licensee shall reasonably cooperate in the defense. (g) In the event that any willful misconduct or grossly negligent act or omission of either party or its employees on Licensees premises causes or results in the (i) loss, damage to or destruction of physical property of the other party or third parties, and/or (ii) death or injury to any person, then such party shall indemnify, defend and hold the other party harmless from and against any and all resulting claims, damages, liabilities, costs and expenses (including reasonable attorneys fees).
13. TERM.
For Software licensed on a subscription basis as identified in Schedule A, the term of this Agreement shall commence on the date of delivery of the Software and extend for the term of the defined subscription. During such subscription term, Licensee shall be entitled to receive, and Partek shall deliver, all New Releases, Documentation and Updates to the Software as they are made commercially available by Partek.
14. TERMINATION.
Subject to any other terms or provisions in this Agreement, this Agreement and the Schedule A hereto may be terminated as follows:
(a) In the event that either party to this Agreement commits a material breach of this Agreement or repeatedly defaults in the performance of any of its duties or obligations under this Agreement (except as provided for in Section 3 (i) above), which breach or default shall not be, or cannot be, substantially cured within thirty (30) days after written notice is given to the defaulting party specifying the breach or default, then the party not in breach or default may, by giving written notice thereof to the breaching and/or defaulting party, immediately terminate this Agreement .
(b) In the event Licensee defaults in the timely payment of any amounts due to Partek under this Agreement and/or Schedule A hereto, and does not cure such default within thirty (30) days after being given written notice of such default, then Partek may, by giving written notice to Licensee, immediately terminate this Agreement as of a date specified in such notice of termination.
(c) In the event that either party becomes or is declared insolvent or bankrupt, whether voluntarily or involuntarily, is the subject of any proceedings relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, then the other party may, by giving written notice, terminate this Agreement as of a date specified in such notice of termination.
(d) Partek may immediately terminate this Agreement, with no refunds of any kind or nature being owed or due to Licensee, if Licensee makes any successful or unsuccessful attempts to copy, reproduce or duplicate the Software, Documentation and/or Information, except as permitted herein, or to use the Software on systems or at locations not permitted under the terms of this Agreement, unless Licensee has sought and received the prior written consent to do so from Partek.
(e) Partek may immediately terminate this Agreement, with no refunds of any kind or nature being owed or due to Licensee, if Licensee makes any successful or unsuccessful attempt to reverse engineer, reverse compile, decompile, or disassemble the Software; or if Licensee attempts to, directly or indirectly, alienate, assign, sub-license, or otherwise transfer this Agreement or all or any part of the rights granted to Licensee hereunder, without Partek's
prior written consent, such action being deemed to be a material breach of this Agreement.
(f) Upon the termination, cancellation or expiration of this Agreement, Licensee shall immediately discontinue all use of the Software, remove the Software and any and all portions thereof from all computers, and return to Partek all existing copies of the Software, tangible media on which such computer programs are recorded, back-up and archival copies, Documentation and Information except for one (1) copy of any Documentation or Information that may be required for archival purposes, accompanied by a certificate by an officer of Licensee confirming that the items so returned constitute the existing copies or counterparts (whole or partial) of the Software, tangible media on which such computer programs are recorded, back-up and archival copies, Documentation and Information except for one (1) copy of any Documentation or Information that may be required for archival purposes.
15. ALTERATION(S) BY LICENSEE.
(a) Licensee is specifically prohibited from and may not modify, alter, amend, or otherwise change the Software in any way or manner. Any attempts by Licensee to modify, alter, amend or otherwise change the Software without Partek's prior written consent and direction shall be a material breach of this Agreement and at Licensee's sole risk and expense, and in no event shall Partek have any obligation or duty to support or maintain any such modification, alteration, amendment, or other changes to the Software. Partek shall not be responsible or liable in any manner whatsoever for Software failures, errors or any non-conformance to Software documentation or specifications which occur as a result of any unauthorized modification, alteration, amendment or other change to the Software so made by Licensee.
(b) Licensee shall assume any and all responsibility and liability, of any kind or nature, and agrees to indemnify, defend, and hold Partek harmless for any such liability, which arises out of any use of Software modified, altered, amended or otherwise changed by or on behalf of Licensee.
16. NOTICES. Any notice, invoice, purchase order, or other document required or permitted to be delivered pursuant to this Agreement must be in writing and shall be deemed to be effective upon receipt and must be deposited in the United States Mail, postage prepaid, certified, or registered mail, return receipt requested, properly addressed to the parties hereto at the respective addresses set forth in attached Schedule A, or at such other address as they shall specify by written notice delivered in accordance herewith.
17. FORCE MAJEURE.
Each party hereto shall be excused from performance hereunder (except obligations to make payment) for any period and to the extent that it is prevented from performing any obligation or service pursuant hereto, in whole or in part, as a result of causes beyond its reasonable control, including, but not limited to, acts of God, natural disaster, strikes, lockouts, acts of a public enemy, wars, civil disturbance, insurrections, riots, earthquakes, fires, storms, floods, explosions, power failures, or other causes beyond their control and without the fault or negligence of such party, provided such party attempts to so perform, to the best of its ability, in good faith.
18. REPORTING.
Licensee agrees to maintain records detailing the installation of the Software by serial number identification or other means identified as acceptable to Partek and to limit usage of the Software to the number of Concurrent Users and functionality as specified in the Schedule A. In the event number of copies or usage of the Software exceeds that licensed by Licensee, Licensee agrees to immediately notify Partek in writing and pay to Partek the then-current fee associated with such additional usage. Licensee shall provide to Partek upon request, a written report detailing the Software installation records. Partek reserves the right upon request, with reasonable notice and at Parteks expense, to audit Licensee's applicable records during normal business hours. If Parteks audit reveals that Licensees usage has exceeded Licensees license to functionality and/or Authorized Licenses of the Software, Licensee shall reimburse Partek for the expense of such audit and shall promptly pay to Partek any and all fees owing as a result of such discrepancy.
19. GOVERNING LAW.
This Agreement shall be governed, interpreted and enforced
under the laws, other than choice of laws rules, of the State of
20. ENTIRE AGREEMENT.
This Agreement and any schedules and/or addenda attached hereto or thereto, each of which are incorporated herein for all purposes, constitute the entire agreement between the parties and its subject matter and supersede any and all contemporaneous agreements, prior agreements, negotiations, proposals and representations, oral or written, relating to the subject matter herein. No provision of this Agreement or any schedule or addendum hereto may be changed, modified or amended except by an agreement in writing, signed by the parties hereto. This Agreement shall be binding on the parties hereto and their respective heirs, successors and permitted assigns. This Agreement may be executed in several identical counterparts, each of which shall constitute an original agreement between the parties. The terms of this Agreement shall not be modified by any purchase order or acknowledgment, even though Partek may have signed such a document.
21. AGREEMENT DRAFTED BY BOTH PARTIES.
This Agreement shall be deemed to have been drafted by both parties.
22. WAIVER.
The waiver of a breach hereunder may be effected only by a writing signed by the waiving party and shall not constitute, or be held to be, a waiver of any other or subsequent breach, or to affect in any way the effectiveness of such provision or to affect either party's right to terminate this Agreement. Failure by either party to object to a breach shall not constitute or be held to be a waiver of said party's right to later object to, or to terminate this Agreement, due to any other breach or subsequent breach.
23. CAPTIONS.
The captions used in this Agreement have been inserted only for reference purposes. The captions and order of such captions shall not be deemed to govern, limit, modify, or in any manner affect the scope, meaning, or intent of any of the provisions and/or terms of this Agreement, nor shall any captions be given any legal effect.
24. ASSIGNMENT.
This Agreement and the rights, interests, benefits, duties and obligations hereunder shall not be assigned, transferred or hypothecated in any way by Licensee without the prior written consent of Partek. Any attempt to assign, transfer or hypothecate or otherwise dispose of the rights, interests, benefits, duties and obligations hereunder contrary to the foregoing shall be null and void and without effect.
25. SURVIVAL.
Sections 2(b), 2(c), 3(g), 3(h), 3(i), 4(a), 5(a)-(c), 6, 10(a), 11, 12, 14(f), 15(b), 19, 21, 22, 25 and 27(b) shall survive the expiration and/or termination of this Agreement.
26. INDEPENDENT PARTIES.
No provision of this Agreement is intended to create and shall not be construed to create any relationship between Partek and Licensee, other than that of independent entities contracting with each other solely for the purpose of effecting the provisions of this Agreement. Neither party, nor any of their respective representatives, shall be construed to be the partner, agent, employee, or representative of the other and neither party shall have the right to make any representations concerning the duties, obligations or services of the other except as consistent with the express terms of this Agreement or as otherwise authorized in writing by the party about which such representation is asserted.
27. MISCELLANEOUS.
(a) If any term or provision of this Agreement shall be found by any court of competent jurisdiction to be illegal or unenforceable, then that term or provision shall be limited to the minimum extent necessary, or eliminated, so that this Agreement shall otherwise remain in full force and effect and enforceable, to the extent it retains its essential purpose, or as otherwise agreed by the parties hereto.
(b) In the event of any dispute relating to the validity, construction, enforceability, or performance of and of the terms of this Agreement, the same shall be finally resolved by binding arbitration, as hereinafter set forth, provided, however, that nothing in this provision shall diminish the right of either party to enforce by injunctive relief or otherwise any non-disclosure obligations of the other and provided further that nothing in this arbitration provision shall diminish the right of either party to impede the other party in a lawsuit brought by a third party or brought by either party against a third party. Such arbitration shall be conducted under the auspices of the American Arbitration Association in: (a) LICENSEE ADDRESS, if such proceeding is commenced by Licensee; or (b) St. Louis, Missouri, if such proceeding is commenced by Partek; and shall be governed by the Association's rules applicable to commercial arbitration as such are in effect at the date of submission of the claim in arbitration. The award of the arbitrators may be enforced at the instance of either party in any court of competent jurisdiction. The costs and expenses of arbitration, including the fees of the arbitrators, shall be borne equally by the parties, except that each party shall pay its own attorney's fees. The arbitrators shall not have authority to add to, detract from, or alter any of the terms of this Agreement. The right of either party to submit a dispute to arbitration shall survive the term of this Agreement.
(c) The terms of this Agreement shall only be disclosed by the parties to those of its employees, consultants and agents who need to know them in order to carry out their respective responsibilities under this Agreement.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be executed.