MASTER END USER LICENSE AGREEMENT
MASTER END USER LICENSE AGREEMENT
This Master End User License Agreement (the “Agreement”) is effective as of the earlier of the Effective Date or the date on which Customer first uses the Product and is between Great Bay Software, Inc. (“Great Bay”), a Delaware corporation, and Customer. By installing or otherwise using the Product or any part thereof, Customer agrees to be bound by the terms and conditions of this Agreement. If Customer does not agree to the terms and conditions of this Agreement, Customer must immediately cease all use of and return the Product to Great Bay or the authorized reseller from which Customer obtained it.
“Affiliate” means an entity that controls (i.e., a parent), is controlled by (i.e., a subsidiary), or under common control with
(i.e., a sister) a party to this Agreement.
“Asset” means any device, whether a user device or a non-user device, on any Customer network(s).
“Device Count” means the maximum number of unique connections Customer may monitor using the Product, as identified in the applicable Order Form, inclusive of all on-site Assets, off-site Assets, and Assets monitored by the Product via third-party integrations.
“Documentation” means the user instructions, release notes, functional specifications, manuals and help files made available by Great Bay for the Product.
“Effective Date” means the date set forth on the Order Form.
“Fee” means the amounts due and payable for Customer’s exercise of rights under this Agreement, as identified on the applicable Order Form, unless the Order Form does not identify the Fee, in which case the Fee shall be Great Bay’s then-current list price.
“Graphical User Interface (GUI)” means the software program that provides the interface for Customer to operate and use the Product.
“Hardware” means Great Bay’s proprietary hardware appliance(s).
“License Type” means the license type for the Product (“Subscription” or “Perpetual”) identified on the applicable Order Form, unless the Order Form does not identify a License Type, in which case the License Type shall be Subscription.
“Order Form” means the order form or other ordering documentation between Customer and Great Bay or one of Great Bay’s authorized resellers for one or more Products under this Agreement. Order Forms shall include the following: Effective Date, Customer, Shipping Address, Billing Address, Product, License Type, Device Count, Fee, Support Program, and Term, as applicable.
“Product” means the product(s) specified on the applicable Order Form, including all Hardware, Software and Documentation.
“Software” means the Great Bay or third party software programs provided by Great Bay that are installed on the Hardware (or other hardware that Great Bay may approve in writing), downloaded electronically from Great Bay by Customer, or delivered by Great Bay to Customer in any form or format, including the Graphical User Interface (GUI) and any optional software modules ordered by Customer from Great Bay that provide additional functionality (plugins), in object code form only, and any modifications, error corrections, bug fixes, or other updates thereto. “Software” does not include any
Third Party Applications.
“Support Program” means the support services program (i.e.,”8×5″ or “24×7”) purchased by Customer for the Product, as
identified on the applicable Order Form.
“Term” means the term of this Agreement, as defined in Section 13.1.
“Third Party Applications” means products, software, links, resources, plugins or services developed or sourced from third parties that are made available to Customer by third parties for Customer’s
use in connection with the Product.
2. GRANT OF RIGHTS
2.1. Rights Granted to Customer. Subject to Customer’s compliance with the terms and conditions of this Agreement, Great Bay hereby grants Customer a non-exclusive, non-transferrable, non-sublicensable limited license (i) to possess and use the Product, including one (1) copy of the Software installed on and included as an integral part of the Product, during the Term, solely for its own internal business operations (and those of its Affiliates) to monitor its Assets up to the Device Count and not for any other purpose, and (ii) to make a reasonable number of copies of the Software for backup purposes only,
provided that Great Bay’s proprietary notices are contained in such copies.
2.2. Affiliate and Third Party Service Provider Use. Customer may permit a third party service provider (a “Service Provider”) to install, operate and manage the Product for and on behalf of Customer and its Affiliates during the Term. Customer shall ensure that its Affiliates and any Service Provider comply in full with all terms and conditions of this Agreement and shall be responsible for and liable to Great Bay for any non-compliance with the terms and conditions of
this Agreement by its Affiliates and any Service Provider.
2.3. Reservation of Rights. Great Bay retains all right, title and interest, including all intellectual property rights, in and to the Product.
Except as expressly provided in this Agreement, Customer may not (and may not permit any third party to) license, sublicense, sell, resell, rent, lease, lend, encumber, transfer, assign, distribute, or otherwise commercially exploit or make the Product (or any part thereof) available to any third party for any purpose. Customer acknowledges that the Software, including its source code, is a confidential trade secret of Great Bay and its licensors and that Customer may not (and may not permit any third party to): (a) reverse engineer, decompile or disassemble the Product, extract the Software from the Hardware, or otherwise attempt to derive the source code of the Software; (b) use the Software other than with the Hardware (or other hardware that Great Bay may approve in writing); (c) copy, modify or develop derivative works of the Software or the Hardware; or (d) attempt to do any of the foregoing, without the written consent of Great Bay. Great Bay shall own any modifications to and derivative works of the Product or any part thereof created by or on behalf of Customer, and Customer agrees to and does hereby assign to Great Bay all right, title and interest in and to such modifications and
derivative works. Customer may not (and may not permit any third party to) reproduce the Software or remove any copyright, trademark, proprietary rights, disclaimer or warning notices placed on, included in or embedded in any part of the Product. Customer will not (and will not permit any third party to) disclose the results of any benchmark, evaluation, functionality, comparison or performance tests relating to the Product or any part thereof without the express written consent of Great Bay, which Great Bay may refuse in its sole discretion.
4. THIRD PARTY APPLICATIONS
Great Bay shall not be responsible for Customer’s use of any Third Party Applications with or in connection with the Product. Any purchase, license and use of Third Party Applications by Customer shall be Customer’s sole responsibility, and Customer agrees that Great Bay shall have no liability or obligation to Customer or any third party for such Third Party Applications, the results of Customer’s use thereof, or the effect that the use thereof may have on the operation of the Product.
5. PRICE, PAYMENT AND SHIPMENT
5.1. Price and Payment.
Direct Licenses: Great Bay will invoice Customer for the Fee in advance as set forth in the Order Form. Payment of the Fee is due thirty (30) days after the invoice date. Customer agrees to pay Great Bay a late fee equal to the greater of 1.5% per month or the maximum amount permitted by law for any amounts not paid when due, and Customer shall reimburse Great Bay for all expenses, including reasonable attorney’s fees and costs, incurred in collecting past due amounts. Great Bay will be entitled to suspend its performance upon ten (10) days written notice to Customer and to require payment in full if Customer fails to pay any amounts when due, and Great Bay reserves the right to terminate the Agreement (including the licenses granted herein) effective immediately upon written notice to Customer if any amount due hereunder remains unpaid for more than one hundred twenty (120) days.
Licenses through Resellers: The applicable reseller will invoice Customer for the Fee as set forth in the Order Form.
Customer shall notify Great Bay if its use of the Product exceeds the Device Count and pay the applicable fees (at Great Bay’s or the applicable Reseller’s then-current rates) attributed to any such non-compliance.
Amounts due to Great Bay under this Agreement are exclusive of all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on the transactions contemplated by this Agreement. Customer shall pay or reimburse Great Bay for all such amounts other than taxes imposed on Great Bay’s net income.
If applicable, Great Bay (or its designee) will ship the Product to Customer F.O.B. Origin. Risk of loss shall pass, and
the Product shall be deemed accepted by Customer, upon delivery to Great Bay’s (or its designee’s) dock. Unless specified in
advance by Customer, Great Bay will select the carrier at its discretion, and Customer will be responsible for all freight, packing, duties, import fees and related taxes, insurance and other shipping-related expenses from Great Bay’s location. If an export license is required and can legally be obtained, Great Bay shall obtain the export license/authorization and fulfill reporting requirements of such license. For goods of U.S. origin, Great Bay will provide the forwarding agent with the US electronic export information filing in the AES system. The forwarding agent shall be acting as Great Bay’s agent for the limited purpose of filing the US electronic export information in the AES system. Customer will ensure that the forwarding agent is provided accurate and complete information and documents to support the agent’s filing in the AES system. Any
import licenses required by the destination territory are solely Customer’s responsibility.
6. LIMITED WARRANTY
6.1. Limited Warranty.
Great Bay warrants to Customer that, for ninety (90) days after the Effective Date, the Product will perform substantially in accordance with functional specifications set forth in the accompanying Documentation when properly used by Customer in
accordance with such Documentation and this Agreement. Great Bay does not warrant that the Product will meet Customer’s requirements or will operate in combination with other software or hardware, or that the operation of the Product will be uninterrupted or error-free. Customer acknowledges that the Product has not been prepared to meet
Customer’s individual requirements and that Customer has sole responsibility to determine whether and ensure that the Product meets its requirements.
Great Bay’s sole and exclusive obligation and Customer’s sole and exclusive remedy under the limited warranty set forth in Section 6.1 shall be, at Great Bay’s election, either: (a) replacement of the Product; or (b) Great Bay’s commercially-
reasonable efforts to make the Product perform substantially in accordance with the functional specifications set forth in the
accompanying Documentation; or (c) to refund to Customer the Fee paid by Customer with respect to the Product for the period during which the Product did not perform as warranted. The above remedies are available only if Customer promptly notifies Great Bay of the alleged breach of warranty in writing during the first ninety (90) days after the Effective Date.
The warranties set forth in this Section 6 shall be void if failure of the Product is a result of (a) Customer exceeding the Device Count, (b) failure to apply any updates, upgrades, or any other action or instruction recommended in writing by Great Bay, (c) any alteration or modifications to the Product except by Great Bay; (d) installation, operation, repair, or maintenance of the Product not in accordance with instructions supplied by Great Bay; or (e) abnormal physical or electrical stress or abnormal environmental conditions, accident, abuse, or misuse. The warranties set forth in this Section 6
also shall be void and inapplicable if Customer is using the Product subject to an evaluation license or for beta, testing, demonstration or other purposes to which separate terms and conditions apply.
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF GREAT BAY AND THE REMEDIES OF CUSTOMER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF, AND CUSTOMER HEREBY WAIVES, RELEASES AND DISCLAIMS, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF GREAT BAY AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF CUSTOMER AGAINST GREAT BAY, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Without limiting the foregoing, Customer is responsible for the supervision, management and control of the use of the Product and any output of the Product, including but not limited to proper installation and establishment of adequate backup and archival processes to prevent any adverse consequences in the event of a malfunction.
7. SUPPORT AND PROFESSIONAL SERVICES
7.1. Support Programs.
The fees for maintenance and support under Great Bay’s Support Program are as follows:
Subscription: The Fee includes maintenance and support services through the Support Program during the Term.
Perpetual: Maintenance and support services are not included in the Fee, and the Support Program must be purchased separately from Great Bay.
Customer acknowledges and agrees that the Support Program is subject to the additional terms and conditions of the Support Agreement between Great Bay and Customer, which is set forth at https://support.greatbaysoftware.com (the “Support Agreement”).
7.2. Professional Services.
Professional Services are not included in this Agreement or the Fee. If Customer requests that Great Bay provides professional services in connection with the deployment, implementation, training, or configuration of the Product, such
professional services shall be provided pursuant to a separate agreement between the parties.
Great Bay shall indemnify Customer from any third party claim, proceeding or suit alleging that the Product infringes any third party’s United States patent, copyright or trademark (a “Claim”) if Customer: (a) promptly gives Great Bay written notice of any such Claim; (b) permits Great Bay to assume full control over the defense and settlement of such Claim; and (c) provides such assistance as Great Bay may reasonably request. In no event shall Customer settle any Claim for which indemnification may be due hereby without the consent of Great Bay.
Great Bay will have no obligation to Customer under this Section 8 to the extent that any such Claim arises or results from (a) unauthorized or improper use of the Product; (b) the combination of the Product with other products or services not
provided by Great Bay, to the extent that such Claim would not have resulted except for such combination; (c) the alteration or modification of the Product without Great Bay’s written consent, if such Claim would have been avoided in the absence of such alteration or modification; or (d) the Claim could be avoided by Customer’s use of alternative products provided to Customer by Great Bay that perform in a substantially similar fashion as the Product at issue.
Should the Product become, or if Great Bay’s determines in its discretion that the Product may become, the subject
of a Claim, Great Bay may, at its sole discretion and expense, either: (a) procure for Customer the right to exercise its rights under this Agreement; or (b) replace or modify the Product to make it non-infringing, provided that the same functions are performed by the replaced or modified Product. If Great Bay determines in its sole discretion that (a) or (b) are not commercially practical, Great Bay may terminate this Agreement upon written notice to Customer, in which case Customer shall have no further liability to pay any part of the Fee that remains unpaid and Great Bay will refund the Fee actually paid by Customer, as follows: (y) for a Product subject to a Subscription license, Great Bay will refund a pro-rata portion of the
Fee actually paid by Customer corresponding to the balance of the then-current Term that remains unused; and (z) for a Product subject to a Perpetual license, Great Bay will refund the Fee actually paid by Customer with respect to the Product prorated based on a three (3) year straight-line amortization from the Effective Date.
8.4. Entire Obligation.
The foregoing states the entire liability of Great Bay and Customer’s exclusive remedy with respect to any Claim.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL GREAT BAY’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT(S) AT ISSUE IN THE
TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. This limitation of liability is cumulative and not per incident.
9.2. Exclusion of Damages.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, GREAT BAY, ITS LICENSORS, AFFILIATES, AGENTS, SUPPLIERS, DISTRIBUTORS AND RESELLERS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.1. Confidential Information.
Customer acknowledges that the Product contains Great Bay’s confidential and trade secret information (“Confidential Information”). Confidential Information, for purposes of this Agreement, will also include any information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with Customer’s use of the Product and services provided by Great Bay, provided that such information should be reasonably understood by the Receiving Party to
be confidential or proprietary. Confidential Information does not include information that (a) is or becomes a part of the public domain through no fault of the Receiving Party; (b) was known by the Receiving Party prior to the disclosure; (c) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the Receiving Party without use of or reference to Confidential Information.
10.2. Duty of Confidentiality.
The Receiving Party will keep the Confidential Information in confidence, in the same manner as the Receiving Party maintains its own confidential information, and in no event with less than a reasonable degree of care. The Receiving Party
will use the Confidential Information only for the purpose described in this Agreement. The Receiving Party will limit the disclosure of Confidential Information solely to those employees and consultants having a need-to-know, provided that each such person is under a written confidentiality agreement containing confidentiality obligations no less protective than those contained in this Agreement.
10.3. Compelled Disclosure.
The Receiving Party may disclose the Confidential Information to the extent required by a court of law or government regulatory body, but first the Receiving Party will give the Disclosing Party prompt notice to allow the Disclosing Party
reasonable opportunity to obtain a protective order against such disclosure.
10.4. Remedy/Injunctive Relief.
The parties agree and acknowledge that any actual or threatened breach of this Section 10 will cause the non-breaching party irreparable harm for which monetary damages will be inadequate. The non-breaching party therefore shall be entitled to specific performance, injunctive and other available equitable relief without the requirement of posting a bond or proving actual damages in addition to any other rights and remedies it may have.
11. COMPLIANCE WITH LAWS
Each party will comply fully with all applicable laws and regulations that apply to the Product and to Customer’s use thereof.
11.2. Export Controls.
Customer represents that it is not, and is neither owned nor controlled by, a Restricted Person, which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran, North Korea, Sudan, Syria, or any other countries that may, from time to time, become subject to U.S. export controls for anti-terrorism reasons or with which U.S. persons are generally prohibited from engaging in financial transactions; or (2) on any restricted person or entity list maintained by any U.S. governmental agency. Unless authorized by U.S. regulation or license, neither party will, in connection with the activities contemplated by this Agreement, export or re-export, directly or indirectly, any Product, including without limitation, any technical data, computer software, or any product (or any part thereof), process, or service that is the
direct product of any such technical data or computer software that has been received from the other party in connection with the activities contemplated by this Agreement (hereinafter referred to collectively or individually, “Controlled Products”) (i) to any country (or nationals thereof) in Country Group E of the Export Administration Regulations of the United States (“EAR”) or any other country subject to sanctions administered by the Office of Foreign Assets Controls (the then-current list can be found at http://www.treasury.gov/resource-center/sanctions/Pages/default.aspx); (ii) to any non-civil (i.e. military) end users or for any non-civil end uses in any country in Country Groups D:1 or D:5 of the EAR, as such lists may be modified from time to time (the then-current lists can be found at http://www.bis.doc.gov/index.php/regulations/export-administration-regulations-ear); (iii) in violation of the International Traffic and Arms Regulation. The parties understand that countries other than the U.S. may restrict the import or use of strong encryption products or other items and may restrict such exports. The parties agree to comply with any such import or other restrictions. Each party represents and warrants that it is not currently debarred, suspended, or otherwise prohibited or restricted from exporting, re-exporting, receiving, purchasing, or otherwise obtaining any item,
product, article, commodity, software or technology regulated by any agency of the U.S., and will immediately notify the other party in the event that any of the foregoing occurs.
Customer will indemnify, to the fullest extent permitted by law, Great Bay from and against any fines or penalties that may arise as a result of its breach of this Section 11.
12. U.S. GOVERNMENT RESTRICTED RIGHTS
If Customer is an agency or other part of the U.S. Government (“Government End User”), Great Bay hereby identifies the
Software and Documentation, and to the extent applicable, Customer will identify the Software and Documentation in all proposals and agreements with any Government End User or any contractor thereof, as follows: (a) for acquisition by or on behalf of civilian agencies, as necessary to obtain protection as “commercial computer software” and related documentation in accordance with the terms of the party’s standard software license agreement, as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations (FAR) and itssuccessors; (b) for acquisition by or on behalf of units of the U.S. Department of Defense, as necessary to obtain protection as”commercial computer software” and “commercial computer software documentation” in accordance with the terms of the party’s standard software license agreement, as specified in 48 C.F.R. 227.7202. To the extent applicable and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, Customer may provide to a Government End User or, if Customer is a Government End User, such Government End User will acquire, the Software and Documentation with
only those rights set forth in this Agreement.
13. TERM AND TERMINATION OF LICENSE
Term. The Term depends on the License Type for the Product, as follows:
Subscription. The Term shall commence on the Effective Date and continue for the duration specified on the Order Form (or, if the Order Form does specify a duration, one (1) year), unless earlier terminated in accordance with this Agreement. Thereafter, this Agreement shall automatically renew for subsequent Terms of like duration at Great Bay’s then-current pricing unless either party gives written notice to the other party at least thirty (30) days prior to the end of the then-current Term.
Perpetual. The Term shall commence on the Effective Date and shall be perpetual unless terminated in accordance with this Agreement.
Either party may terminate this Agreement at any time if the other party is in material breach of any of the terms or conditions provided herein and such breach remains uncured more than thirty (30) days following receipt of written notice of such breach. In addition, Great Bay may terminate this Agreement immediately if Customer becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
13.2. Return of Products. If Customer is licensing the Product pursuant to a Subscription License, within thirty (30) days of the effective date of termination or expiration of the Term, Customer shall return all Hardware licensed pursuant to this Agreement to Great Bay in good working condition at Customer’s sole expense and return or destroy all Software licensed pursuant to this Agreement. For Subscription licenses, if Great Bay does not receive the Product within such thirty (30) period, Customer shall be deemed to have purchased the unreturned Hardware at a Fee equal to Great Bay’s then-current retail price for such Hardware, plus shipping and any applicable sales, use and other taxes with respect to such Hardware
and Great Bay will invoice Customer for, and Customer agrees to pay, such amount. Upon request, Customer shall certify in writing its compliance this Section 14.3.
The terms and conditions of Sections 2.3, 3, 4, 5.1, 5.2, 6.4, 8, 9, 10, 11, 12, 13.2 and 14 shall survive any termination or expiration of this Agreement.
14.1. Force Majeure.
Neither party shall be liable for any loss, damage, or penalty resulting from delays or failures in performance resulting from acts of God, material shortages, or other causes beyond such party’s remedy or control.
14.2. Governing Law.
This Agreement will be governed and construed under the laws of the State of Minnesota without giving effect to any choice of law principles that would require the application of the laws of a different jurisdiction. Customer irrevocably and
unconditionally consents to the exclusive jurisdiction of the state and federal courts for Hennepin County, Minnesota, USA for the resolution of any dispute between the parties. This Agreement is not governed by the United Nations Convention of Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, the application of each of which is hereby expressly excluded.
All notices under this Agreement are required to be sent either via electronic delivery or to the principal address below by commercial overnight courier with written verification of delivery. All notices so given will be deemed received upon the date of receipt if by electronic delivery or two (2) days after dispatch for courier deliveries. If to Great Bay, all notices shall be sent to 7900 International Drive, Ste. # 625, Minneapolis, MN 55425; Attention: Chief Financial Officer; email: [email protected] or at such other address as Great Bay may designate in writing. All notices to Customer shall be sent to the address set forth in the Order Form or such other address as Customer may designate in writing.
If any provision of this Agreement is held invalid by the determination of any court or other tribunal of competent
jurisdiction, such invalidity or unenforceability will not affect the enforceability of any other provision. The invalid or unenforceable provision will be construed by such judicial body so as to be enforceable to the maximum extent compatible with applicable law.
Customer may not assign or transfer this Agreement, nor any rights or obligations under this Agreement without the prior
written consent of Great Bay, which may be withheld in Great Bay’s sole discretion. This Agreement shall otherwise be binding on and inure to the benefit of Great Bay’s and Customer’s successors
and permitted assigns.
14.6. Entire Agreement.
This Agreement, including the applicable Order Form, the Support Agreement and any support order form entered into in
connection herewith, constitutes the entire agreement between Great Bay and Customer with respect to the Product, and supersedes all prior agreements and understandings between the parties with respect to such