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Comvigo, Inc. Subscription Agreement
This Subscription Agreement (the “Agreement”) is between (“Comvigo”) and any purchaser or user of the Comvigo products and services that accepts the terms of this Agreement (“Customer” or “You”).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING OR USING Comvigo PRODUCTS AND SERVICES. BY USING OR PURCHASING Comvigo PRODUCTS OR SERVICES, YOU SIGNIFY YOUR ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT USE OR PURCHASE Comvigo PRODUCTS OR SERVICES.
The Effective Date of this Agreement is the earlier of the date that Customer accepts this Agreement or the date that Customer uses the Comvigo products or services.
Whereas Comvigo and Customer desire to establish certain terms and conditions under which Customer will, from time to time, license software and obtain services from Comvigo;
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and Comvigo agree as follows:
1.1 Software License; Support Services. Subject to the terms and conditions of this Agreement, including Customer’s obligation to pay the Subscription Fees as specified on the “Sales Quote” (the price quotation provided by Comvigo to Customer for the Subscription purchased hereunder), Customer elects to purchase a “Subscription” (which includes a license to the Software, as defined below, and Support Services, as defined in Section 5.2). Comvigo hereby grants to Customer a limited, non-exclusive, non-transferable, royalty-bearing, perpetual, worldwide license to download, install, execute and use the “Software” (Comvigo’s software bundle that Customer has licensed from Comvigo ), in machine-readable object code form only, on the “Designated CPU(s)” or the “Servers” (as defined on the Sales Quote) solely for Customer’s internal business purposes and in accordance with the “Documentation” (the standard associated end-user documentation for the Software) and any other limitations set forth in this Agreement. Customer is entitled to make copies of the Software for archival, backup, or disaster recovery purposes only, provided that Customer reproduces all “Notices” (the copyright and proprietary rights notices included in the original copy of the Software).
1.2 Term. The “Term” (the period of time for a Subscription under this Agreement) of this Agreement shall be for the duration of the “Services” (which includes all Support Services, Training Services, and Professional Services as defined below) provided under the Subscription, as specified on the Sales Quote or applicable Services Exhibit. The initial term shall continue for a period of one (1) year. Thereafter, the term for the Services provided under the Subscription shall renew for an “Annual Term(s)” (successive terms of one (1) year that end on each anniversary of the Effective Date), unless a different term is agreed to by the parties upon renewal or either party gives written notice to the other of its intention not to renew the Agreement at least thirty (30) days prior to the commencement of the next term. All fees for the Subscription and any Services are due and payable upon termination.
1.3 Transfers. Customer may transfer the Software from one (1) Designated CPU or Server to another after initial installation of the Software if at the time of such transfer, Customer removes all copies of the Software from the initial Designated CPU or Server.
1.4 Subscription Reporting and Audit. If Customer elects to increase the number of licenses of Software, then Customer must purchase from Comvigo additional Subscriptions, including the desired number of licenses and Support Services therefore. During the Term of this Agreement and for one (1) year thereafter, Customer expressly grants to Comvigo the right to audit Customer’s facilities and records from time to time in order to verify Customer’s compliance with the terms and conditions of this Agreement.
1.5 Ownership. As between the parties, Customer acknowledges and agrees the Software, including its sequence, structure, organization, and source code constitute certain valuable intellectual property rights of Comvigo and its suppliers. The Software is licensed under the Subscription and not actually sold to Customer. No title or ownership passes as a result of this Agreement or any act under this Agreement. Comvigo owns all copies of the Software however made. All rights in and to the Software not expressly granted to Customer in this Agreement are reserved by Comvigo and its suppliers. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any of Comvigo’s existing or future patents (or the existing or future patents of its suppliers).
2. Restrictions on Use; Confidentiality. The Software and the structure, organization, and code thereof are the confidential and proprietary information of Comvigo. Customer agrees to take adequate steps to protect the Software from unauthorized disclosure or use. The source code for the Software remains a confidential trade secret of Comvigo and/or its suppliers. Customer acknowledges and agrees that the Software and its sequence, structure, organization, and source code constitute valuable trade secrets of Comvigo and its suppliers. Accordingly, Customer agrees not to: (a) use the Software except as expressly allowed under Section 1, as applicable; (b) separate the component programs of the Software for use on different computers; (c) modify, adapt, alter, publicly perform, publicly display, translate, or create derivative works from the Software; (d) merge the Software with other software; (e) sublicense, lease, rent, loan, distribute or otherwise transfer the Software to any third party; or (f) reverse engineer, de-compile, disassemble, or otherwise attempt to derive the source code for the Software.
3. Delivery, Installation, and Acceptance. Comvigo will provide Customer with the access necessary to download the Software after Customer accepts the terms and conditions of this Agreement and pays the “Subscription Fees” (the fees due to Comvigo for the Software as specified on the applicable Sales Quote). Customer will be responsible for installing the Software on its computers as permitted under this Agreement. “Delivery” will mean either: (a) for media, the transfer to Customer of the first copy of Software, or (b) for electronic delivery, when the Customer is provided with the appropriate access codes to download the Software. The Software will be deemed accepted by Customer upon Delivery.
4. Subscription Fees and Payment. Customer will pay the Subscription Fees as specified on the Sales Quote provided to Customer by Comvigo. Customer acknowledges that by paying the preceding fees or downloading the Software that Customer agrees to the terms and conditions as contained in this Agreement. Subscription Fees will be based on an Annual Term as specified on the Sales Quote. All payments must be made in U.S. dollars. All fees exclude all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Comvigo’s net income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any fees to Comvigo, the Delivery or license of the Software to Customer, or provision of the Services to Customer.
You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, otherwise reverse engineer, or transfer any version of the Software, or any subset of it, except as provided for in this agreement. Any such unauthorized use shall result in immediate and automatic termination of this license and may result in criminal and/or civil prosecution.
6.1 Warranty. During the “Warranty Period” (a period of thirty (30) days after Delivery during the initial Term), Comvigo warrants that the Software and any media on which the Software is contained, when used as permitted under this Agreement and in accordance with the instructions in the Documentation, will operate substantially as described in the Documentation. Comvigo does not warrant that Customer’s use of the Software will be error-free, virus-free or uninterrupted. Comvigo will use commercially reasonable efforts to correct any reproducible Error in the Software reported to Comvigo by Customer during the Warranty Period. If Comvigo determines that it is unable to correct the Error, Comvigo will refund to Customer the Subscription Fees actually paid for the initial Term, in which case this Agreement and Customer’s right to use the Software will be terminated. Any Error Correction provided to Customer will not extend the original Warranty Period.
6.2 Disclaimer. Comvigo PROVIDES THE SOFTWARE (INCLUDING ANY ERROR CORRECTIONS) AND ALL SERVICES ON AN “AS IS” BASIS. THE EXPRESS WARRANTY IN SECTION 6.1 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE AND THE SERVICES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, RESULT, TITLE, AND NON-INFRINGEMENT. THERE IS NO WARRANTY THAT THE SOFTWARE OR THE SERVICES WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS. THERE ARE NO WARRANTIES THAT THE INFORMATION PROVIDED HEREUNDER OR Comvigo’S EFFORTS WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS. THE SERVICES ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORT AND RESULTS OBTAINED IS WITH CUSTOMER. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT AND THAT NO WARRANTIES ARE MADE BY ANY OF Comvigo’S SUPPLIERS OR DISTRIBUTORS. IF Comvigo CANNOT DISCLAIM SUCH WARRANTIES UNDER THE APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTIES WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. CUSTOMER’S SOLE REMEDY FOR BREACH OF SUCH EXPRESS WARRANTIES SHALL BE AN ERROR CORRECTION OR REFUND AS SET FORTH IN SECTION 6.1.
7. Indemnification. Comvigo will have no obligation under this Section 7 or otherwise with respect to any infringement claim based upon (i) any use of the Software not in accordance with this Agreement or for purposes not intended by Comvigo, (ii) any use of the Software in combination with other products, equipment, software, or data not authorized by Comvigo, (iii) any use of any release of the Software other than the most current release made available to Customer, or (iv) any modification of the Software by any person other than Comvigo or its authorized agents or subcontractors. Customer agrees to indemnify Comvigo against all liability, damages and costs (including reasonable attorneys’ fees) resulting from or related to a claim involving the foregoing.
THIS SECTION 7 STATES Comvigo’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS AND ANY OTHER THIRD PARTY CLAIMS.
8. Limitation of Liability. IN NO EVENT WILL Comvigo BE LIABLE FOR (I) ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS OR BUSINESS INTERRUPTION, ARISING FROM OR RELATING TO THIS AGREEMENT UNDER ANY LEGAL THEORY, EVEN IF Comvigo HAS BEEN ADVISED OF, KNOWS OF, OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE SOFTWARE OR SERVICES. REGARDLESS OF THE CAUSE OF ACTION, Comvigo’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE OR ANY SERVICES PROVIDED HEREUNDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF THE SUBSCRIPTION FEES PAID TO Comvigo BY CUSTOMER ACCORDING TO THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THIS SECTION 8 REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT. THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN.
9. TERMINATION. Customer may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Comvigo. Customer’s license to use the Software will terminate without notice if Customer breaches any provision in Section 1.1 or 2 or if Customer fails to pay its initial Subscription Fees when due, in which case Customer must immediately cease its use of the Software, erase all copies from its computers, and return any Comvigo proprietary or confidential information. This Agreement will terminate without notice if Customer fails pay any Subscription Fees subsequent to the initial Term. Upon termination of this Agreement for any reason, all Services will immediately cease.
10. General. Notices. All notices, consents demands and approvals under this Agreement must be delivered in writing by courier, by fax, or by certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth on the Sales Quote and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Relationship of the Parties. The parties hereto are independent contractors. Neither party (nor any agent or employee of that party) is the representative of the other party for any purpose, and neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. Export Control. Customer will comply with all applicable export and import control laws and regulations of the United States and the foreign jurisdiction in which the Software is used and, in particular, Customer will not export or re-export the Software without all required United States and foreign government licenses. Customer acknowledges and understands that the Software contains encryption technology that may require an export license from the U.S. State Department and that export or re-export of Software to certain entities and certain countries is prohibited. Customer will defend, indemnify, and hold harmless Comvigo from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees. Assignment. Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Software) to any third party without Comvigo’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. No Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. U.S. Government End Users. The Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth therein. Choice of Law. This Agreement will be governed by the laws of the State of Illinois in the United States of America, as such laws apply to contracts between Illinois residents negotiated, executed and performed entirely within Illinois . The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal court in the Northern District of Illinois or in state court in DuPage County, Illinois , and each party irrevocably submits to the exclusive personal jurisdiction and venue of any such court in any such action or proceeding. This Agreement will be written and construed in the English language. Survival. Sections 1.5 (Ownership), 2 (Restrictions on Use; Confidentiality), 6.2 (Disclaimer), 8 (Limitation of Liability), 9 (Termination) and 10 (General) will survive the expiration or termination of this Agreement. Customer acknowledges and agrees that Section 8 will remain in full force and effect notwithstanding the failure of any essential purpose in Section 6. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties. The terms on any purchase order or similar document submitted by Customer to Comvigo will have no effect.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HEREBY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS
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