By downloading the Software, Customer is indicating that the Customer has read and understood this Software License Agreement and accepts and agrees to its terms and conditions. If the Customer does not agree with the terms and conditions of this Agreement, do not download or use the Software.
For purposes of this Software License Agreement (“Agreement”), the following terms shall mean: A51: A51 d.o.o. Annual Support and Upgrade Fee: the applicable fee(s) set forth at www.activecollab.com/pricing Customer: the licensor of the Software. Discloser: the party disclosing Confidential Information. Documentation: the written documentation for the Software (including any Updates or Support Modifications) provided by A51 to Customer. Effective Date: the date the Software is downloaded by Customer. Error(s): reproducible problems with the operation of the Software that prevent the Software from performing in accordance with the material requirements of the Documentation. License Fee: the applicable fee(s) set forth at www.activecollab.com/pricing Period of Coverage: the time periods in annual increments during which Support (as defined in Article III) is available under this Agreement. Recipient: the party receiving Confidential Information. Software: the activeCollab software. Software shall include updates and replacements to activeCollab provided through any of the following pursuant to Support: Support Modifications, Software Updates and/or Software Upgrades. Software Update(s): revisions of the Software that are not Support Modifications or Upgrades. Updates generally do not include the addition of major functionality. Software Upgrades(s): new software incorporating revisions of the Software that provide substantial change in or addition to the functionality of the Software. Upgrades shall not include products designated, marketed and separately listed on A51’s price list as new products. Support: has the meaning defined in Article III below. Support Modification(s): software changes to be integrated with the Software to correct any Errors therein, but that do not alter the basic functionality of the Software or add new functions thereto.
The term of this Agreement shall commence on the Effective Date and shall continue in effect indefinitely unless terminated sooner pursuant to the terms set forth herein.
a. A51 grants to Customer a non-exclusive, non-transferable license to install, download and use one copy of the Software, as follows:
i. for its internal business purposes, one copy of the Software may be downloaded to only one computer or workstation to be accessible at a single website location (URL);
ii. if Customer desires to move the Software to a different computer or workstation, it must provide A51 written notice prior to the movement to a new computer or workstation except in emergency situations, in which case immediate post-move notification is required, and must delete the Software from the old computer or workstation;
iii. only by Customer for its internal use, and the Software is not transferable from Customer to any parent, subsidiary, affiliated entity or third party except by written agreement between the parties;
iv. only for Customer’s benefit and not for the benefit of any third party, including without limitation, commercial timesharing or service bureau or other rental or sharing arrangements, data processing or management information or services;
v. only in the country in which the Software is first installed and may only be moved to another country with the prior written permission of A51;
vi. Customer may make one copy the Software for archival or backup purposes only, so long as all titles, trademark, copyright, and restriction notices are reproduced; and
vii. Customer may install one additional copy of the software on a separate URL, for development and testing purposes only. No other uses are granted hereunder.
b. Customer may not:
i. use the Software in contravention of Section 2.01(a) above;
ii. reproduce or otherwise make copies of any portion of the Software, except as provided in Section 2.01(a)(vi) and/or Section 2.01(a)(vii) above;
iii. create derivative works based upon the Software or any part of the Software, or modify the Software;
iv. distribute, sell, assign, license, sublicense, rent, lease, lend out or otherwise transfer any part of the Software, or permit any third parties to do so;
v. remove the patent, copyright, trade secret or other proprietary protection legends or notices that appear on or in the Software; or
vi. remove or alter the ActiveCollab name, logo, or other marks from the Software.
A51 retains all title, copyright and other proprietary rights in the Software and any modifications, enhancements or changes thereto, including but not limited to any Support Modifications, Software Updates and Software Upgrades, and any feedback or suggestions provided by Customer with respect to the Software or with respect to any such modifications, enhancements or changes thereto. Customer does not acquire any rights, express or implied, in the Software, other than those expressly specified in this Agreement.
Upon knowledge of any unauthorized possession, use of, or access to, any Software, Customer shall promptly notify A51 and furnish A51 with full details of such knowledge, assist in preventing any recurrence thereof, and cooperate with A51 (if unauthorized use is through no fault of Customer, at A51’s expense) in any litigation or other proceedings reasonably necessary to protect the rights of A51.
Upon A51’s written request, Customer will certify in writing that Customer is using the Software in compliance with this Agreement and forward such certification to A51. This certification must be signed by an appropriate officer of Customer. If A51 has reason to believe that Customer is not in compliance with this Agreement, A51 may audit, at A51’s expense, Customer’s use of the Software as reasonably necessary. Such audit will be conducted during regular business hours at Customer’s facilities and shall not unreasonably interfere with Customer’s business activities. Notwithstanding the foregoing, if an audit reveals that Customer has underpaid fees to A51, Customer agrees that it will promptly pay any such underpaid fees upon receipt of A51’s invoice, in addition to reimbursing A51 for the cost of the audit.
Customer may not use A51’s name or trademarks without the prior written permission of A51. A51 may use Customer’s name, logo and/or trademarks to identify Customer as a customer of A51.
A51 shall provide annual Support in accordance with A51’s Support policies in effect at the beginning of each annual renewal of the Period of Coverage. Support shall include, without limitation, access to all Software Updates and Software Upgrades during the Period of Coverage, and email, phone and chat support. The first year of the Annual Support and Upgrade Fee is included in the License Fee; the Annual Support and Upgrade Fee thereafter is discretionary. A51 shall provide Support services so long as Customer continues to pay the Annual Support and Upgrade Fee for the relevant period in accordance with this Agreement and within thirty (30) days of A51’s written notice of the Annual Support and Upgrade Fee for the relevant period, and so long as Customer is using the then current version of the Software. In addition, Support will not apply in the event of:
(i) any misuse, improper use, alteration, or damage of the Software;
(ii) any version of the Software not made or authorized in writing by A51; or
(iii) the combination of the Software with other programming or equipment to the extent such combination has not been approved in writing by A51.
The Period of Coverage begins one year following the Effective Date. Within thirty (30) days of the expiration of a Period of Coverage, A51 shall notify Customer via email of the applicable Support and Upgrade Fees for the succeeding year and upon payment by Customer of the applicable Support and Upgrade Fee, at Customer’s option, Customer’s subscription to Support shall be extended and renewed for an additional period of one (1) year at the then-current fees. Customer understands, acknowledges and agrees that following the expiration of the term of any Support period, unless Customer renews Support, Customer will not be entitled to any Software Updates, Software Upgrades and/or Support Modifications if Support is not timely purchased. Following the expiration and non-renewal of the Support period, Customer shall not be provided with Support and/or Software Updates, Software Upgrades and/or Support Modifications without full payment of the then-applicable License Fee.
a. Customer understands that Customer must register and establish an account with A51 in order for Customer to license, download and use the Software and receive Support. Customer represents and warrants to A51 that it will provide, and maintain and update promptly when necessary, true, accurate, complete and up-to-date information (“Account Data”) when prompted during the registration process. If A51 believes in its reasonable business discretion that Account Data provided by Customer is inaccurate, incomplete and/or not up-to-date, A51 has the right, in its sole and absolute discretion, to (i) suspend or terminate Customer’s account, (ii) suspend or terminate this Agreement, and/or (iii) reject any current or future access to and use of the Software and refuse to provide Support unless and until the affected Account Data is corrected and/or made complete.
b. Customer understands that it is solely responsible for maintaining the confidentiality and security of account passwords, account numbers, login information and any other security or access information used by Customer to access the Software (collectively, “Login Information”), as well as preventing unauthorized access to or use of the information, files and/or data that Customer houses or uses in or with the Software.
c. Customer understands and acknowledges that A51 assumes that any communication it receives through use of Account Data was received and/or authorized by Customer.
a. The parties agree that all information, including without limitation the Software and Documentation, and all information concerning either party’s business, including without limitation, information pertaining to either party’s marketing plans, finances, research and development, information technology, competition, customers and personnel data exchanged by the parties under this Agreement and reasonably to be considered confidential by the disclosing party under the circumstances (collectively, “Confidential Information”) shall be maintained in confidence by the receiving party, and the receiving party shall use the Confidential Information of the other party only as authorized by this Agreement and for no other purpose (it being understood, however, that either party may disclose the Confidential Information to its employees and contractors who have a need to know, provided that same are subject to substantially similar obligations of confidentiality as those herein). In the event the Confidential Information is disclosed visually or orally, the information shall be identified as confidential at the time of such disclosure.
b. Each party further agrees to take the same measures it uses to protect its own Confidential Information, to prevent the unauthorized disclosure and use of the Confidential Information of the other party to third parties (except as permitted herein), and to prevent such unauthorized disclosure by its employees, agents and independent contractors who are otherwise permitted access to the information.
c. The obligations of Recipient with respect to any particular portion of Confidential Information shall terminate or shall not attach, as the case may be, when such information:
i. was in the public domain at the time of Discloser’s communication thereof to Recipient;
ii. entered the public domain through no fault of Recipient subsequent to the time of Discloser’s communication thereof to Recipient;
iii. was in Recipient’s possession free of any obligation of confidence at the time of Discloser’s communication thereof to Recipient;
iv. was independently developed by Recipient as demonstrated by written records; or
v. is required to be disclosed by court or government order and Discloser has been given notice of such order.
d. The parties agree that a breach of the confidentiality obligations by Recipient shall cause immediate and irreparable monetary damage to Discloser and shall entitle Discloser to injunctive relief in addition to all other remedies.
THE SOFTWARE AND SUPPORT IS PROVIDED ON AN “AS-IS” BASIS, WITHOUT ANY WARRANTY OF ANY KIND. A51 MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THE QUALITY, SUITABILITY, AVAILABILITY OR ADEQUACY OF THE SOFTWARE, AND A51 MAKES NO EXPRESS, STATUTORY OR IMPLIED REPRESENTATIONS OR WARRANTIES, AT LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANT-ABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, NO ENCUMBRANCES AND WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OR TRADE, AND A51 HEREBY EXPRESSLY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES.
The Software provided pursuant to this Agreement is provided on an “as-is” basis. If Customer is dissatisfied for any reason with the Software during the first thirty (30) days following purchase thereof, Customer should notify A51 via email and request a full refund. Upon payment of the refund to Customer, the License to use the Software shall be immediately revoked. Customer shall certify to A51 upon receipt of the refund that all Software and supporting materials shall have been returned to A51 or destroyed and documentation supplied to A51 certifying destruction, including written certification by an appropriate officer of Customer. The foregoing is Customer’s exclusive remedy with respect to dissatisfaction with the Software.
a. If Customer is prevented from using the Software due to an actual or claimed infringement of any U.S. patent, copyright or other intellectual property right (that is not as a result of
(i) any misuse, improper use, alteration or damage of the Software by Customer;
(ii) any version of the Software not made or authorized in writing by A51;
(iii) the combination of the Software with other programming or equipment to the extent such combination has not been approved in writing by A51; or
(iv) any version of the Software other than the then current version), A51 may remedy the infringement by:
i. procuring for Customer, at A51’s expense, the right to continue to use the Software(s);
ii. replacing or modifying the Software(s) at A51’s expense so that the Software(s) become non-infringing, but substantially equivalent in functionality; or
iii. in the event that neither (i) or (ii) are reasonably feasible, terminating the Agreement as to the infringing Software and returning any License Fees paid by Customer for the infringing Software(s). b. This Section states A51’s entire obligation to Customer with respect to any claim of infringement.
a. LICENSE FEES. In consideration for the License granted in Article II, Customer agrees to pay to A51 the License Fee.
b. SUPPORT FEES. In consideration for the Support to be provided hereunder, Customer shall pay the Annual Support and Upgrade Fee. The first year of Support is included in the License Fee. Thereafter, Support is discretionary. A51 may increase Annual Support and Upgrade Fees for renewal terms upon written notice to Customer.
c. TAXES. The fees listed in this Agreement do not include taxes. If A51 is required to pay any sales, use, property, excise, value added, gross receipts, withholding or other taxes levied on the Software, Services or Support under this Agreement or on Customer’s use thereof, then such taxes shall be billed to and paid by Customer. This Section does not apply to taxes based on A51’s net income, franchise taxes or A51’s employer contributions and taxes.
d. PAYMENT PROCESS. Customer understands that A51 uses a third party paying agent to process all payments by U.S. purchasers. Customer understands that until payment is received and verified by the paying agent, Customer shall not be permitted to download the Software or receive Support.
e. All payments made hereunder are nonrefundable, except for relief to which Customer may be entitled under the Exclusive Remedies provision and Infringement provisions of this Agreement. Customer may not withhold or set off any amounts due under this Agreement. Failure to pay any fee when due shall constitute a material breach of this Agreement. In addition, if the Customer fails to make any payments when due for Support, upon written notice to Customer, A51 shall cease providing Support.
a) VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR THE USE RESTRICTIONS HEREIN,
b) FAILURE TO COMPLY WITH THE MUTUAL NONDISCLOSURE PROVISION, OR
c) THE INFRINGEMENT AND OTHER INDEMNITY PROVISIONS CONTAINED HEREIN, IN NO EVENT SHALL A51 OR A51’S THIRD PARTY SUPPLIERS BE LIABLE TO CUSTOMER FOR A MONETARY AMOUNT GREATER THAN THE AMOUNTS PAID PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE CAUSING THE LIABILITY AND (B) IN NO EVENT SHALL EITHER PARTY OR A51’S THIRD PARTY SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OR INJURIES TO EARNINGS, PROFITS, DATA OR GOODWILL, OR FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY PERSON OR ENTITY WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. The provisions of this Agreement allocate the risks between A51 and Customer. A51’s pricing reflects this allocation of risk and the limitation of liability specified herein.
Customer acknowledges that A51’s employees and contractors are critical to its business. Therefore, Customer agrees not to knowingly solicit any of A51’s employees or contractors without A51’s prior written consent while such employee or contractor is employed or engaged by A51 and for a period of twelve (12) months following that employee’s or contractor’s last date of employment or engagement by A51. The parties further agree that in the event of any actual or threatened breach of any of the provisions of this section, A51 shall be entitled (in addition to any and all other rights and remedies at law or in equity for damages or otherwise, which rights and remedies are and shall be cumulative) to specific performance, a temporary restraining order, or an injunction to prevent such breach or contemplated breach.
If either party materially breaches this Agreement, the other party may give written notice of its desire to terminate and the specific grounds for termination and, if such default is capable of cure and the party in default fails to cure the default within thirty (30) days of the notice, the other party may terminate this Agreement. If such default is incapable of cure, the other party may terminate this Agreement immediately upon written notice of its desire to terminate. Upon termination, the License to use the Software shall be immediately revoked and all Software and supporting materials will be returned to A51 or destroyed and documentation supplied to A51 certifying destruction. Unless this Agreement is terminated pursuant to this paragraph, it shall continue in full force and effect. Sections II.1(b), II.2 – II.5, IV.1, IV.2, and IV.5 - IV.10 shall survive any termination of this Agreement.
Customer agrees to comply fully with all relevant export laws, anti-boycott laws and regulations (and similar laws and regulations) of the United States and Serbia (“Export Laws”) to assure that neither the Software nor any direct product thereof are:
(A) exported, directly or indirectly, in violation of Export Laws; or
(B) are intended to be used for any purposes prohibited by Export Laws. Customer will indemnify A51 for any losses, costs, liability, and damages, including reasonable legal fees, incurred by A51 as a result of failure by Customer to comply with this Section. A51 may, from time to time, deny Customer the right to license in certain countries in order to protect A51’s interests. U.S. Government Rights. The Software is a “commercial item”, as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) (or an equivalent provision, e.g., in supplements of various U.S. government agencies, as applicable), all U.S. Government users acquire the Software with only those rights set forth herein.
a. WAIVER. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach. No amendments, modifications or supplements to this Agreement shall be binding unless in writing and signed by the parties.
b. NOTICES. All notices shall be in writing and delivered: personally; by fax or email; by overnight delivery service with a nationally recognized service that maintains a record of delivery; or sent by certified mail, postage prepaid, return receipt requested, to the address as notified by one party to the other party, and such notice shall be deemed to be made: (a) if by fax or email, when it is sent and confirmed,
(b) if delivered personally or by overnight mail, when received and
(c) if mailed, on the fifth (5th) day after such mailing.
To expedite order processing, Customer agrees that A51 may treat documents faxed by Customer to A51 as original documents. However, either party may require the other to exchange original signed documents.
c. GOVERNING LAW. This Agreement, and all matters arising out of or related to this Agreement, except actions arising under the patent and copyright provisions of the U.S. Code, shall be governed by the laws of the State of New York. The parties agree that this Agreement is not subject to and shall not be interpreted by the United Nations Convention on Contracts for the International Sale of Goods. No action arising out of this Agreement, regardless of form, may be brought more than two (2) years after the claiming party knew or should have known of the cause of action.
d. DISPUTES. The parties will use reasonable efforts to resolve amicably any disputes that may relate to or arise under this Agreement. Any disputes that cannot be resolved will be settled exclusively by arbitration, conducted in English, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) in New York, New York (the “Arbitration”); however, either party may seek injunctive relief from any court of competent jurisdiction. The following specific provisions will also apply to the Arbitration:
(a) the proceedings will be held before one arbitrator mutually selected by the parties (or if not agreed by the parties within thirty (30) days of the filing of the complaint for arbitration, then appointed in accordance with AAA rules);
(b) the arbitrators will apply the law chosen above;
(c) the prevailing party will be entitled to recover, in addition to any other amounts awarded, its reasonable attorney’s fees, costs, and expenses;
(d) the costs of the Arbitration (other than the parties’ costs and expenses) will be allocated among the parties in the discretion of the arbitrators; and
(e) the decision of the arbitrators will be in a writing stating the facts and law upon which the decision rests and will be given no later than ten (10) days following the conclusion of the necessary hearings. The Arbitration award will be final, nonappealable and bind the parties, and any court having jurisdiction can enter judgment upon the award. e. ASSIGNMENT. This Agreement is not assignable or otherwise transferable (including by operation of law, merger, or other business combination) by Customer without the prior written consent of A51; provided, however, no consent of A51 shall be required for a transfer or assignment by Customer to any Affiliate of Customer or to any person or entity which acquires all or substantially all of the equity or assets of Customer (including by operation of law, merger, or other business combination), provided that, in order for such assignment to be effective, Customer shall provide A51 with written notice of such assignment or transfer as soon as practicable following the closing of such assignment or transfer.
f. INDEPENDENT CONTRACTORS. The parties are independent contractors. Nothing contained in this Agreement will be construed or implied to create an agency, partnership or joint venture between the parties. At no time will either party make commitments or incur any charges or expenses for or on behalf of the other party.
g. THIRD PARTY BENEFICIARIES. This Agreement is intended to be for the sole and exclusive benefit of the parties hereto, A51’s suppliers, and their respective successors and permitted assigns. Nothing contained in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy, or claim under or in respect to this Agreement or any provision herein contained.
h. SEVERABILITY. If any provision or portion thereof of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force.
i. ENTIRE AGREEMENT. This Agreement, including its terms and conditions and its attachments and amendments, is a complete and exclusive statement of the agreement between the parties, which supersedes all prior or concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to the subject matter of this Agreement.