In the Agreement, the party who is granting the right to use the licensed property will be referred to as “SMARTERSIGN,” and the party who is receiving the right to use the licensed property will be referred to as “CUSTOMER.”
The parties agree as follows:
1. GRANT OF LICENSE. SMARTERSIGN owns SmarterSign Direct (the “Authored Work”). In accordance with this Agreement, SMARTERSIGN grants CUSTOMER a non-exclusive license to use the Authored Work. SMARTERSIGN retains title and ownership of the Authored Work.
2. MODIFICATIONS. CUSTOMER may not modify or change the Authored Work in any manner.
3. DEFAULTS. If CUSTOMER fails to abide by the obligations of this Agreement, SMARTERSIGN shall have the option to cancel this Agreement by providing 30 days written notice to CUSTOMER. CUSTOMER shall have the option of preventing the termination of this Agreement by taking corrective action that cures the default, if such corrective action is taken prior to the end of the time period stated in the previous sentence, and if there are no other defaults during such time period.
4. Limitation of Liability
Excluding the liability under the section entitled “NO INFRINGEMENT” below, UNDER NO CIRCUMSTANCES WILL SMARTERSIGN OR ANYONE ELSE INVOLVED IN ADMINISTERING, DISTRIBUTING OR PROVIDING THE SOFTWARE, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT FROM MIST AKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SOFFRONT’S RECORDS, PROGRAMS OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF ANY BREACH BY SOFFRONT OF THIS AGREEMENT, SOFFRONT’S LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNT PAID TO SMARTERSIGN BY CUSTOMER DURING THE PREVIOUS THREE MONTHS.
NO INFRINGEMENT: SmarterSign warrants the Licensed Material will not infringe any patent, trademarks, copyright or any proprietary rights of a third party or constitute a misuse or misappropriation of a trade secret. Customer shall notify SmarterSign promptly in writing of any known action brought against Customer based on an allegation that Customer’s use of any materials infringes any patent, trademark, copyright, or infringes any right of a third party, or constitutes misuse or misappropriation of a trade secret (“Infringement”). SmarterSign will defend, indemnify and hold Customer harmless from any such action at SmarterSign’s sole expense, provided that SmarterSign shall have the sole control of the defense of any such action, all negotiations and/or its settlement, and Customer reasonably cooperates with SmarterSign in such defense. In the event that a final injunction is obtained against Customer’s use of the Services by reason of an Infringement or Customer is otherwise prohibited from using same, SmarterSign shall to the extent possible and at its expense, within sixty (60) days, either (a) procure for Customer the right to continue to use the Services that are infringing, or (b) replace or modify the Services to make its use non-infringing while being capable of performing the same function. If neither option is available to SmarterSign, then Customer, at Customer’s option, may terminate this Agreement without penalty or further payment other than payment of fees for use of the Services prior to said termination.
5. CONFIDENTIAL INFORMATION. The term “Confidential Information” means any information or material which is proprietary to SMARTERSIGN, whether or not owned or developed by SMARTERSIGN, which is not generally known other than by SMARTERSIGN, and which CUSTOMER may obtain through any direct or indirect contact with SMARTERSIGN. Regardless of whether specifically identified as confidential or proprietary, Confidential Information shall include any information provided by SMARTERSIGN concerning the business, technology and information of SMARTERSIGN and any third party with which SMARTERSIGN deals, including, without limitation, business records and plans, trade secrets, technical data, product ideas, contracts, financial information, pricing structure, discounts, computer programs and listings, source code and/or object code, copyrights and intellectual property, inventions, sales leads, strategic alliances, partners, and customer and client lists. The nature of the information and the manner of disclosure are such that a reasonable person would understand it to be confidential.
A. “Confidential Information” does not include:
– matters of public knowledge that result from disclosure by SMARTERSIGN;
– information rightfully received by CUSTOMER from a third party without a duty of confidentiality;
– information independently developed by CUSTOMER;
– information disclosed by operation of law;
– information disclosed by CUSTOMER with the prior written consent of SMARTERSIGN;and any other information that both parties agree in writing is not confidential.
6. PROTECTION OF CONFIDENTIAL INFORMATION. CUSTOMER understands and acknowledges that the Confidential Information has been developed or obtained by SMARTERSIGN by the investment of significant time, effort and expense, and that the Confidential Information is a valuable, special and unique asset of SMARTERSIGN which provides SMARTERSIGN with a significant competitive advantage, and needs to be protected from improper disclosure. In consideration for the receipt by CUSTOMER of any Confidential Information, CUSTOMER agrees as follows:
A. No Disclosure. CUSTOMER will hold the Confidential Information in confidence and will not disclose the Confidential Information to any person or entity without the prior written consent of SMARTERSIGN.
B. No Copying/Modifying. CUSTOMER will not copy or modify any Confidential Information without the prior written consent of SMARTERSIGN.
C. Unauthorized Use. CUSTOMER shall promptly advise SMARTERSIGN if CUSTOMER becomes aware of any possible unauthorized disclosure or use of the Confidential Information.
7. WARRANTIES. Neither party makes any warranties with respect to the use, sale or other transfer of the Authored Work by the other party or by any third party, and CUSTOMER accepts the product “AS IS.” In no event will SMARTERSIGN be liable for direct, indirect, special, incidental, or consequential damages, that are in any way related to the Authored Work.
8. TERMINATION. This Agreement may be terminated by SMARTERSIGN by providing 30 days written notice to the other party.
9. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties.
10. AMENDMENT. This Agreement may be modified or amended, if the amendment is made in writing and is signed by both parties.
11. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
12. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
13. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of New York.