This BearStar Software Product License Agreement (the “Agreement”) is made between you, the end user customer (“Customer”), and BearStar Software, a Dutch Corporation (“BearStar”).
IMPORTANT – BY INSTALLING, DOWNLOADING OR USING THE SOFTWARE, OR OPENING THE PACKAGE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AND ARE REPRESENTING THAT YOU ARE DULY AUTHORIZED TO EXECUTE THIS AGREEMENT ON BEHALF OF YOUR COMPANY. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “CANCEL” BUTTON, DO NOT USE OR INSTALL THE SOFTWARE.
IF YOU HAVE EXECUTED A WRITTEN MASTER SOFTWARE LICENSE AGREEMENT WITH BEARSTAR FOR THIS SOFTWARE AND THE TERMS AND CONDITIONS OF THE MASTER SOFTWARE LICENSE AGREEMENT CONFLICT WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE APPLICABLE TERMS AND CONDITIONS OF THE MASTER SOFTWARE LICENSE AGREEMENT SHALL APPLY. THIS LICENSE AGREEMENT CONTROLS AND SUPERSEDES ANY PURCHASE ORDERS ISSUED BY YOU FOR THIS SOFTWARE.
THIS SOFTWARE IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES.
1. Grant of License.
During the term of this Agreement, Customer will have a non-transferable and non-exclusive license (without right to sublicense) to: (i) use the specified version of the BearStar Software Product(s) in object code form and associated documentation, if any (collectively, the “Product”) for the specified number of machines or servers and in accordance with the terms and conditions of this Agreement and (ii) reproduce the Product as reasonably needed solely for inactive backup or archival purposes.
2. Intellectual Property Protection; Restrictions.
The Product and allintellectual property rights therein, including code, operation, architecture, implementation, and look and feel, are and shall remain at all times the exclusive property of BearStar and its licensors. The Product is protected by international and United States copyright laws and treaty provisions. Nothing contained in this Agreement shall give or convey to Customer any right, title or interest in the Product, except to the extent of the license rights expressly granted by this Agreement. Customer may not modify, translate, reverse engineer, decompile, disassemble, or create derivative works or emulators of the Product except to the extent that BearStar is required to grant such rights under law for the purposes of achieving compatibility with third-party software or hardware and in such event Customer shall notify BearStar and BearStar shall have a reasonable opportunity subject to a reasonable fee for doing so to create a version of the Product which is compatible with Customer’s platform and environment.
However, BearStar shall not be obligated to create such version.
Customer may not delete or alter any copyright, trademark or other proprietary rights notices of BearStar and its licensors appearing on the Product and Customer will reproduce such notices on all copies made of the Products. Customer may not distribute, sublicense, rent, lease, sell, transfer or grant any rights for the Products in any form to any third party without the express written consent of BearStar.
In the event of any breach of this section BearStar has the right to seek injunctive or other equitable relief.
3. License Fee; Payment.
In consideration of the rights granted herein, Customer will pay BearStar the associated license fees when ordering the license on the webshop. r will
At BearStar’s option, once per calendar year, an independent certified public accountant selected by BearStar and reasonably acceptable to Customer may, at BearStar’s expense, and upon reasonable notice and during normal business hours, and subject to a confidentiality agreement, audit the appropriate records of Customer to verify that Customer’s use of the Product is in compliance with the terms of this Agreement and the associated license fees.
If the associated license fees pursuant to the audit are different than those paid, Customer will be invoiced or credited for the difference, as applicable.
This Agreement is effective until terminated pursuant to this Agreement. Either party may terminate this Agreement at any time on written notice to the other in the event of a material breach by the other party (which includes failure to pay license fees) and a failure to cure such default within a period of thirty (30) days following receipt of written notice specifying that a default has occurred.
Upon (i) the institution of any proceedings by or against Customer seeking relief, reorganization or arrangement under laws relating to bankruptcy, insolvency, receivership or liquidation which proceedings are not dismissed within sixty (60) days;
(ii) the assignment for the benefit of creditors, or the appointment of a receiver, liquidator or trustee, of any of Customer’s property or assets; or
(iii) the liquidation, dissolution or winding up of Customer’s business; then and in any such events this Agreement may immediately be terminated by BearStar upon written notice. Upon termination, all licenses granted hereunder shall terminate and the Customer agrees to cease using the Product, purge from its electronic memory devices all copies of the Product and return to BearStar, promptly, the Product and all related documentation. Termination shall not relieve Customer from paying all fees accrued prior to termination.
The provisions entitled Intellectual Property Protection, Confidentiality, Disclaimer of Warranties, Limitation of Liability and General Provisions shall continue in force even after termination of this Agreement.
For purposes of this Agreement, “Confidential Information” shall mean any confidential, trade secret or other proprietary information, including the Product and software code, disclosed by one party to the other under this Agreement, except for information that:
(i) was previously known by the receiving party free of any obligation to keep its confidence;
(ii) is now or subsequently becomes generally known to the public through acts not attributable to the receiving party; or
(iii) the receiving party rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information
(A) shall be used by the parties only for the purposes set forth in this Agreement;
(B) shall not be reproduced or copied, in whole or in part, except as necessary for use as authorized herein;
(C) shall be distributed only to those employees of receiving party with a “need-to- know” in order to exercise rights and to perform tasks or services called for under this Agreement; and
(D) shall be treated in confidence by the receiving party, and not disclosed to any third party without the prior written consent of the disclosing party.
The terms of this Agreement are deemed Confidential Information and may not be disclosed without the prior written consent of the other party, except
(i) either party may disclose such terms to the extent required by law, rules and regulations or as necessary to enforce this Agreement;
(ii) either party may disclose the existence of this Agreement;
(iii) either party may disclose the terms of this Agreement to such party’s auditors, attorneys, bankers or investment bankers as necessary for their rendition of services to a party; and
(iv) BearStar shall have the right to disclose that Customer is a customer of BearStar and the Product, including in BearStar’s marketing materials and Web site. This section shall survive termination of this Agreement. In the event of any breach of this section the non-breaching party has the right to seek injunctive or other equitable relief.
6. Maintenance and Support; Updates.
Maintenance and support or updates may be purchased separately by Customer from BearStar in accordance with the BearStar maintenance and support plan and associated fees paid by Customer.
7. LIMITED WARRANTY.
During the initial thirty (30) day period from the date the Product is shipped, BearStar warrants that the Product will perform substantially in accordance with the applicable accompanying published Product documentation. Customer’s sole remedy for breach of the foregoing limited warranty shall be to have the deficiencies remedied or the Product replaced or to receive a refund of the pro rata amount of the fees allocable to the use of the Product, at BearStar’s option. The limited warranty hereunder is void if failure of the Product has resulted from the misapplication, abuse or unauthorized modification of the Product. Any replacement Product will be warranted for the remainder of the original warranty period.
8. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN, THE PRODUCT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. BEARSTAR AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, BEARSTAR AND ITS LICENSORS DO NOT WARRANT THAT THE PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS, THAT OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ERRORS IN THE PRODUCT WILL BE CORRECTED. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE ABOVE WARRANTY PERIOD. NO BEARSTAR DEALER, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY.
9. Indemnity. BearStar at its own expense shall (i) defend, or at its option settle, any claim or suit against Customer on the basis of infringement of any Dutch patent, copyright, trademark, or trade secret by the Product in any country that has a bilateral trade agreement on intellectual property rights with the Netherlands and (ii) pay any final judgement entered against Customer on such issue or any settlement thereof; provided (a) BearStar has the right to control and direct the defence and/or settlement, (b) Customer notifies BearStar promptly in writing of each such claim or suit and gives BearStar all information known to Customer relating thereto, and (c) Customer cooperates with BearStar in the settlement and/or defence.
If all or any part of the Product is, or in the opinion of BearStar may become, the subject of any claim or suit for infringement of such intellectual property rights, BearStar may, and in the event of any adjudication that the Product or any part thereof does infringe or if the use of the Product or any part thereof is enjoined,
BearStar shall, at its expense, have the option to: (i) obtain the right to continue use of the Product; (ii) replace or modify the Product so that it is no longer infringing and has substantially equivalent functionality; or (iii) if none of the foregoing remedies is commercially feasible, refund the license fees paid by Customer hereunder, if any, less depreciation for use assuming straight line depreciation over a five (5)-year useful life and terminate this Agreement.
Notwithstanding the foregoing, BearStar shall have no liability under this section if the alleged infringement arises from (i) the use of other than the current unmodified release of the Product, (ii) use of the Product in a manner other than that specified in this Agreement, or (iii) modification of the Product or combination of the Product with other equipment or software not provided by BearStar, in each case if such action
would have been avoided but for such use or combination. Notwithstanding anything to the contrary in this Agreement, the foregoing states BearStar’s entire liability and Customer’s exclusive remedy for proprietary rights infringement relating to the Product.
10. LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF SECTION 5 (CONFIDENTIALITY), NEITHER BEARSTAR NOR ITS LICENSORS SHALL BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT OR INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST DATA, RE-RUN TIME, INACCURATE INPUT, USE OF DIGITAL CERTIFICATES OR DIGITAL SIGNATURES, WORK DELAYS, INABILITY TO ACCESS THE INTERNET, TELECOMMUNICATIONS FAILURES, HACKERS, BUSINESS INTERRUPTIONS OR LOST PROFITS, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF THIS AGREEMENT OR USE OF THE PRODUCT OR SERVICES PROVIDED BY BEARSTAR. EXCEPT FOR A BREACH OF SECTION 5 (CONFIDENTIALITY), UNDER NO CIRCUMSTANCES SHALL BEARSTAR’S LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCT OR SERVICES, EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER, REGARDLESS IF ANY ACTION OR CLAIM IS BASED ON CONTRACT, WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT OR OTHERWISE.
Customer acknowledges that no computer system or software can be made completely secure, and that the use of the Product does not guarantee the safety or security of Customer’s systems or information. Customer is responsible for implementing and monitoring appropriate security procedures and for making appropriate back-up copies of all data.
11. Export Compliance and Foreign Reshipment Liability.
THE PRODUCT IS SUBJECT TO EXPORT, REEXPORT AND IMPORT RESTRICTIONS. CUSTOMER SHALL NOT EXPORT, REEXPORT, OR IMPORT, DIRECTLY OR INDIRECTLY, THE PRODUCT OR INFORMATION PERTAINING THERETO TO ANY COUNTRY TO WHICH SUCH EXPORT, REEXPORT OR IMPORT IS RESTRICTED OR PROHIBITED BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA OR THE LOCAL LAWS OF CUSTOMER’S JURISDICTION, OR AS TO WHICH SUCH GOVERNMENT OR ANY AGENCY THEREOF REQUIRES AN EXPORT OR IMPORT LICENSE OR OTHER GOVERNMENTAL APPROVAL AT THE TIME OF EXPORT, REEXPORT OR IMPORT WITHOUT FIRST OBTAINING SUCH LICENSE OR APPROVAL.
12. U.S. Government End Users.
For any Products acquired directly or indirectly on behalf of a unit or agency of the United States Government, this provision applies. For civilian agencies: the Products were developed at private expense; are existing computer software and no part of them were developed with government funds; are a trade secret of BearStar for all purposes of the Freedom of Information Act; are commercial items and thus, pursuant to Section 12.212 of the Federal Acquisition Regulations (FAR), the Government’s use, duplication or disclosure of the Products is subject to the restrictions set forth in this Agreement and is incorporated into the contract or purchase order between BearStar and the U.S. government agency; in all respects are proprietary data of BearStar; and are unpublished and all rights are reserved under the copyright laws of the United States. For units of the Department of Defense (“DoD”): The Products are commercial computer software (and commercial computer software documentation), and pursuant to DoD FAR Supplement Section 227.7202, use duplication or disclosure of the Products is subject to the restrictions set forth in this Agreement and is incorporated into the contract or purchase order between BearStar and the U.S. Government agency.
13. General Provisions.
This Agreement shall be governed by and construed in accordance with the laws of the Netherlands, irrespective of its choice of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Except as otherwise provided herein, this Agreement shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the parties hereto.
Notwithstanding the foregoing, Customer shall not have the right to assign this Agreement, by operation of law or otherwise, without BearStar’s prior written consent, not to be unreasonably withheld. Any such purported assignment of this Agreement without obtaining written consent shall be void and of no effect. If any provision of this Agreement shall be found invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to reasonably effect the intent of the parties hereto. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not be deemed a waiver and shall not affect its right to enforce any provision of this Agreement at a subsequent time. Any purchase orders or similar documents relating to the Product issued by Customer or otherwise will have no effect on the terms of this Agreement. This Agreement constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, or purchase orders between the parties. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived, only by writing signed by the parties to be bound thereby.
Except as otherwise provided for in this Agreement, any notice, demand, or request with respect to this Agreement shall be in writing and shall be effective on the date received (unless the notice specifies a later date) only if it is sent by a courier service that confirms delivery in writing, or if sent by certified or registered mail, postage prepaid, return receipt requested, addressed to the respective address of the party, attention to Legal Department. Any party may change its address for such communications by giving notice thereof to the other party in conformity with this Section.
In any action to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover, as an element of the costs of the suit and not as damages, reasonable attorneys’ fees to be fixed by the court (including without limitation, costs, expenses and fees on any appeal).