GOVERLANTM SOFTWARE END USER LICENSE AGREEMENT
This End User License Agreement (this “Agreement”) governs your download and use of PJ Technologies, Inc.’s computer software programs comprising of PJ Technologies’ Goverlan™ Remote Administration Suite, and/or any separate component thereof, including, without limitation, Goverlan™ Remote Control, WMIX, and/or the Goverlan™ Central Server (the “Software”).
NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. BY COPYING, INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED: FOR EXAMPLE, IF APPLICABLE, YOUR EMPLOYER. BY DOWNLOADING AND USING THIS SOFTWARE, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY ON WHOSE BEHALF THE SOFTWARE IS USED. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE. VISIT HTTP://WWW.PJTEC.COM FOR TERMS OF AND LIMITATIONS ON RETURNING THE SOFTWARE FOR A REFUND.
THE SOFTWARE MAY INCLUDE PRODUCT ACTIVATION AND OTHER TECHNOLOGY DESIGNED TO PREVENT UNAUTHORIZED COPYING. THE ACTIVATION TECHNOLOGY MAY PREVENT YOUR USE OF THE SOFTWARE IF YOU DO NOT FOLLOW THE ACTIVATION PROCESS DESCRIBED IN THE SOFTWARE AND ITS DOCUMENTATION. VISIT ACTIVATION FOR INFORMATION ABOUT PRODUCT ACTIVATION.
1. Definitions.
“Agreement” means this End User License Agreement.
“Computer” means a computer device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
“Documentation” means the explanatory written materials and files provided with the Software by PJ Technologies.
“Internal Network” means a private, proprietary network resource accessible only by employees and individual contractors (i.e., temporary employees) of a specific corporation or similar business entity. Internal Network does not include the Internet or any other network community open to the public, such as membership or subscription driven groups, associations and similar organizations.
“Licensee” refers to the customer who downloaded and purchased a license to use the Software.
“License Fee” means the fee payable to PJ Technologies in connection with Licensee’s use of the Software, as set forth in the applicable quote from PJ Technologies.
“M&S Agreement” means an agreement in the form attached hereto as Appendix A pursuant to which PJ Technologies would provide Software Maintenance to Licensee if Licensee purchases a subscription for such services.
“Permitted Number” means two (2) unless otherwise indicated under a valid license (e.g., volume license) granted by PJ Technologies.
“PJ Technologies” means PJ Technologies, Inc., a Florida corporation located at 2655 LeJeune Road - Suite 1001, Coral Gables, Florida 33134.
“Software” means the computer programming code, entirely in binary form, which is directly executable by a computer of a specific version of the Goverlan™ software product, including but not limited to the (i) Goverlan Remote Administration Suite, (ii) Goverlan Remote Control, (iii) WMIX, (iv) Goverlan Central Server software.
“Software Maintenance” means the unique software maintenance and technical support to be provided by PJ Technologies pursuant to M&S Agreement.
“Software Update” means a version of the Software, which is classified by PJ Technologies as a “maintenance” release that corrects deficiencies and/or bugs causing the Software not to materially perform in accordance with the Documentation.
“Software Upgrade” means a version of the Software as classified by PJ Technologies which has been enhanced, improved and/or modified and replaces the existing version of the Software.
2. Grant of license.
Subject to Licensee’s (i) having obtained the Software from PJ Technologies or one of its authorized distributors, (ii) timely payment in full of the License Fee, and (iii) continuous compliance with the terms of this Agreement, PJ Technologies grants Licensee a limited, non-exclusive, perpetual, worldwide, license to use the Software in object code form only (a) in the manner specified in the Documentation, and for Licensee’s internal business purposes in connection with remotely administering, controlling and/or supporting Computers that are owned or controlled by Licensee and are incorporated in Licensee’s Internal Network (as described in the Documentation), and as further set forth below. This license is not a sale of the Software, any components thereof, or the Documentation. Title to and ownership of the Software and the Documentation and all proprietary rights in and related to the same, shall be and at all times remain the property of PJ Technologies and its third-party licensors.
2.1 General Use. Licensee may install and use one copy of the Software on up to the Permitted Number of its Computers meeting the specifications described in the Documentation; or
2.2 Server Deployment. Licensee may install a copy of the Software on the Computer file server(s) within its Internal Network meeting the specifications described in the Documentation for the purpose of downloading and installing the Software on up to the Permitted Number of Computers within the same Internal Network; or
2.3 Server Use. Licensee may install a copy of the Software on the Computer file server(s) within its Internal Network meeting the specifications described in the Documentation only for use of the Software initiated by an individual through commands, data or instructions (e.g., scripts) from a Computer within the same Internal Network. The total number of concurrent users permitted to use the Software on such Computer file server(s) may not exceed the number of licenses purchased. No other network use is permitted, including, but not limited to, use of the Software, either directly or through commands, data or instructions, (i) from or to a Computer not part of Licensee’s Internal Network, (ii) for enabling Internet or web hosted services, (iii) by any user not licensed to use the Software under a valid license from PJ Technologies, (iv) as a component of a system, workflow or service accessible by more than the Permitted Number of users; and
2.4 Portable or Home Computer Use. The primary user of the Computer on which the Software is installed may install a second copy of the Software for his or her exclusive use on either a portable Computer or a Computer located at his or her home, provided the Software on the portable or home Computer is not used at the same time as the Software on the primary Computer.
2.5 Backup Copy. Licensee may make a reasonable number of backup copies of the Software, provided such backup copies are not installed or used for other than archival purposes.
3. Restrictions.
3.1 Notices. Licensee may not copy the Software except for the limited right to make backup copies as described in Section 2.5. Any permitted copy of the Software that Licensee makes must contain the same copyright and other proprietary notices that appear on or in the Software.
3.2 No Modifications. Notwithstanding anything to the contrary set forth in this Agreement, Licensee may not, and shall not permit any user to, (i) modify, adapt or translate the Software or any component thereof, (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software or render the Software in human readable form; (iii) create derivative works of the Documentation, the Software or any component thereof. The license granted in this Agreement is for Licensee to use the Software only for Licensee’s internal business purposes, and does not include the right to timeshare the Software or use it to perform “service bureau” functions on behalf of any third party.
3.3 No Transfer. LICENSEE MAY NOT RENT, LEASE, SELL, SUBLICENSE, ASSIGN OR TRANSFER ITS RIGHTS IN THE SOFTWARE, OR AUTHORIZE ANY PORTION OF THE SOFTWARE TO BE COPIED ONTO ANOTHER INDIVIDUAL OR LEGAL ENTITY'S COMPUTER EXCEPT AS MAY BE PERMITTED HEREIN. Licensee may, however, transfer all its rights to use the Software to another individual or legal entity provided that: (a) Licensee also transfers (i) all of Licensee’s rights and obligations under this Agreement, and (ii) the activation code(s), and the Software to such individual or entity; (b) Licensee removes or destroys and does not retain any copies of the Software, Software Upgrades and/or Software Updates or Documentation, including backup copies, whether or not such copies are stored on a Computer; and (c) the receiving party expressly accepts the terms and conditions of this Agreement. NOTWITHSTANDING THE FOREGOING, LICENSEE MAY NOT TRANSFER EDUCATION, PRE-RELEASE, OR NOT FOR RESALE COPIES OF THE SOFTWARE. IN ADDITION, NO SUCH TRANSFER SHALL RELIEVE LICENSEE OF ANY OBLIGATIONS FOR BREACHES OF THIS AGREEMENT THAT OCCUR PRIOR TO SUCH TRANSFER.
3.4 Compliance with Laws. Licensee shall comply with all applicable laws, restrictions and regulations of the United States or any other applicable foreign agency or authority. Licensor shall have the right to disable Licensee’s use of the Software immediately, upon expiration of the Term of this Agreement whether or not Licensee is otherwise in compliance with the terms and conditions of this Agreement. In addition, Licensee shall indemnify and hold Licensor harmless from (i) any claims arising from the use of Licensed Materials by or from the conduct of Licensee’s employees or agents in violation of this Section of the Agreement. The obligations (including, without limitation, with respect to indemnification) contained in this Section will survive the expiration or termination of this Agreement.
4. Updates.
Unless Licensee purchases support and maintenance from PJ Technologies pursuant to a Separate Software Maintenance and Technical Support Agreement, Licensee shall only be entitled to receive Software Updates to the then-current version of the Software if and when such Software Updates are issued by PJ Technologies and made available to all of its customers, if any. If Licensee obtains Software Upgrade(s) or Software Update(s) to a previous version of the Software, either as a purchase of an upgrade license or as part of a separate Software Maintenance and Technical Support Agreement, Licensee must possess a valid license to such previous version in order to use such Software Upgrade or Software Update. After Licensee installs any such Software Upgrade or Software Update, Licensee may continue to use any such previous version in accordance with this Agreement only if (a) the Software Upgrade or Software Update and all previous versions are installed on the same Computer, (b) the previous versions or copies thereof are not transferred to another party or Computer unless all copies of the Software Update or Software Upgrade are also transferred to such party or Computer and (c) except as provided in Section 1 paragraph 6 of the Software Maintenance and Technical Support Agreement, a copy of which is attached hereto as Appendix A, Licensee acknowledges that any obligation PJ Technologies may have to support the previous version(s) shall cease upon the availability of the Software Upgrade or Software Update. No other use of the prior version(s) of the Software is permitted after installation of any Software Update or Software Upgrade. All Software Updates and Software Upgrades provided to Licensee under this Agreement or any separate Software Maintenance and Technical Support Agreement shall be deemed to be “Software” for purposes of this Agreement and licensed to Licensee subject to the terms and restrictions set forth herein.
5. Limited Warranty.
5.1 PJ Technologies represents, warrants and covenants that the Software shall operate and perform in material compliance with the Documentation under normal operation and service (as described in the Documentation) for a period of ninety (90) days after initial installation (the “Warranty Period”). If PJ Technologies receives written notice from Licensee that the Software fails to materially operate and perform in accordance with the Documentation (a “Nonconformity”) during its Warranty Period and is able to reproduce such Nonconformity, PJ Technologies shall, at its sole cost and expense, correct and repair such Nonconformity as promptly as reasonably practicable after notice thereof from Licensee. If PJ Technologies is unable to fully correct and/or repair any Nonconformity occurring during the Warranty Period within a reasonable amount of time, Licensee, as its sole and exclusive remedy, shall have the right to terminate this Agreement and the license granted hereunder, and PJ Technologies shall refund to Licensee all amounts paid by Licensee to PJ Technologies pursuant to this Agreement.
5.2 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1 OF THIS AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW ALL PJ TECHNOLOGIES, INC. SOFTWARE AND DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, ALL IMAGES CONTAINED THEREIN AND COMPONENTS THEREOF, IS PROVIDED “AS IS” AND WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND BY EITHER PJ TECHNOLOGIES, INC. OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF SUCH SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
5.3 PJ Technologies warrants that all software licensed under this Agreement is (i) not on the US government’s Commerce Control List and (ii) designated by the US Department of Commerce’s Bureau of Industry and Security (BIS) as “No License Required” (NLR).
6. LIMITATION OF LIABILITY.
6.1 EXCEPT IN CONNECTION WITH LICENSEE’S OBLIGATIONS IN SECTION 3, IN NO EVENT WILL PJ TECHNOLOGIES, LICENSEE OR THEIR RESPECTIVE AFFILIATES OR SUPPLIERS BE LIABLE TO ANY PARTY FOR ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION.
6.2 PJ TECHNOLOGIES’ AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF THE LICENSE FEE PAID BY LICENSEE IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
6.3 Nothing contained in this Agreement limits (i) either Party’s liability to the other Party in the event of death or personal injury resulting from its gross negligence or (ii) for the tort of deceit (fraud), or (iii) willful misconduct.
7. Software Maintenance and Technical Support Obligations.
7.1 Software Maintenance and Technical Support During the Warranty Period. PJ Technologies will provide Software Maintenance and Technical Support as defined by the Software Maintenance And Technical Support Agreement attached hereto as Appendix A (the “M&S Agreement”), the terms of which are expressly incorporated herein, during the Warranty Period at no additional charge.
7.2 Software Maintenance and Technical Support After the Warranty Period. If Licensee desires to continue to receive Software Maintenance and Technical Support for the Software after the expiration of the Warranty Period, Licensee must purchase a subscription at PJ Technologies’ then-current rate prior to the expiration of the Warranty Period. Subject to Licensee’s timely payment of all support subscription fees, PJ Technologies will provide Software Updates, Software Upgrades and technical support services to Licensee in accordance with the terms of the M&S Agreement. If Licensee does not purchase a subscription for Software Maintenance and Technical Support, Licensee shall only be entitled to receive the following limited Software Maintenance and Technical Support services:
7.3 Limited Software Maintenance and Technical Support. Under “Limited Software Maintenance and Technical Support” status, Licensee will only be entitled to receive (i) any Software Updates to the version of the Software licensed by Licensee hereunder, as and when such Software Updates may be released to all of PJ Technologies’ customers, if ever; and (ii) limited technical support, which (a) may only be requested via email or found through Internet based technical forums, and (b) carries no warranty of any kind from PJ Technologies that the request or issue will be resolved. Telephone and live chat-based support will not be available under Limited Software Maintenance and Technical Support. If Licensee wishes to obtain Software Upgrades, Licensee may purchase such Software Upgrades at PJ Technologies’ then-current upgrade price of a license for the Software.
8. Export Control Obligations.
Licensee will not export or re-export, or allow the export or re-export the Software, Documentation or any copy, component or direct product thereof in violation of any law, regulation, order or other governmental requirement (including, without limitation, the U.S. Export Administration Act, regulations of the Department of Commerce and other export controls of the U.S.). Licensee shall, at its own expense, promptly obtain and arrange for the maintenance of all non-U.S.A. government approvals, if any, and comply with all applicable local laws and regulations as may be necessary for performance under this Agreement.
9. Compliance with Licenses.
Licensee agrees that within thirty (30) days of Licensee’s receipt of a request from PJ Technologies or its authorized representative, Licensee shall fully document and certify that Licensee’s use of the Software, including, without limitation, all Software Upgrades and Software Updates at the time of the request is in conformity with Licensee’s valid licenses from PJ Technologies.
10. Term and Termination.
This Agreement and the license(s) granted hereunder shall become effective as of the issuance and delivery of Software activation codes from PJ Technologies to the Licensee.
10.1 Termination. Either Party (the “Non-Breaching Party”) may terminate this Agreement if the other party breaches the terms of this Agreement and fails to cure such breach within thirty (30) days of receiving written notice specifying such breach from the Non-Breaching Party. In addition, PJ Technologies may immediately terminate this Agreement upon the delivery of written notice to Licensee if Licensee fails to comply with any of the terms and conditions in Section 3 of this Agreement. Termination of this Agreement for breach shall not preclude the Non-breaching Party from pursuing any and all remedies available to it at law or equity. Except as otherwise provided in Section 5.1, all license fees paid to PJ Technologies hereunder are non-refundable.
10.2 Effect of Termination. Upon the termination of this Agreement for any reason: (i) the license(s) granted pursuant to this Agreement shall immediately terminate; (ii) Licensee shall cease all use of the Software; (iii) Licensee shall, within five (5) business days, return the Software and Documentation to PJ Technologies, or provide sufficient proof to PJ Technologies, as determined in PJ Technologies’ reasonable discretion, of the destruction of the Software and Documentation, all duplicates, copies or manifestations of the same (including all backups); and (iv) the Parties shall each comply with their obligations under Exhibit B hereof. Upon termination, Sections 3, 5, 6, 10, 11, 12, 13 and 14 shall survive and remain in effect.
11. Trademarks. Licensee acknowledges that PJ Technologies, Inc., Goverlan™ and related logos and designs are trademarks of PJ Technologies, and that no rights in such trademarks are granted to Licensee by this Agreement.
12. Confidentiality.
12.1 Each party acknowledges that, during the term of this License Agreement, it may receive (the “Receiving Party”) from or on behalf of the other party (the “Disclosing Party”), confidential and proprietary information relating to the Disclosing Party ("Confidential Information"). Such Confidential Information shall belong solely to the Disclosing Party and includes, but is not limited to, non-public information relating to released or unreleased Disclosing Party software products, the marketing or promotion of any Disclosing Party product, Disclosing Party’s business policies or practices, financial information, technical information, computer systems, infrastructure designs, data, analysis, compilations, studies or other documentation and information received from others that Disclosing Party is obligated to treat as confidential. Confidential Information disclosed to Receiving Party by any Disclosing Party, its related entities and/or agents is covered by this Agreement. Confidential Information shall not include any information that: (i) is or subsequently becomes publicly available without Receiving Party’s breach of any obligation owed to Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s disclosure of such information to Receiving Party; (iii) became known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; or (iv) is independently developed by Receiving Party without access to the Disclosing Party’s information.
12.2 The Receiving Party shall treat such Confidential Information with the same degree of care with which it treats its own Confidential Information, but in no event less than a reasonable degree of care, and may use the Confidential Information solely for the purpose of performing its obligations or enforcing its rights under this Agreement.
12.3 The Receiving Party shall not disclose the Confidential Information except to those persons having a need to know for the purposes of exercising the Receiving Party’s rights or performing its obligations under this Agreement. Each party shall take appropriate action, by instruction to, or agreement with, its employees, officers, directors, agents, consultants and subcontractors to maintain the confidentiality of the Confidential Information. A breach of such duty to maintain the confidentiality of the Confidential Information by the Receiving Party’s employees, officers, directors, agents, consultants or subcontractors shall be deemed a material breach of this Agreement by the Receiving Party. The Receiving Party shall promptly notify the Disclosing Party in the event that the Receiving Party learns of an unauthorized release of Confidential Information.
12.4 Except as otherwise specifically provided in this Agreement, upon the termination or expiration of the license granted herein, each party shall (i) immediately cease to use the other party’s Confidential Information, (ii) return to the other party or certify the destruction of such Confidential Information and all copies thereof within ten (10) days of the termination or expiration, and (iii) upon request, certify in writing to the other party that it has complied with its obligations set forth in this Section.
12.5 Each party agrees to provide reasonable assistance and cooperation upon the reasonable request of the other party in connection with any litigation against third parties to protect the requesting party’s Confidential Information, provided that the party seeking such assistance and cooperation shall reimburse the other party for its reasonable out-of-pocket expenses.
12.6 For purposes of this Agreement, the restrictions on use and disclosure of Confidential Information hereunder shall not apply to information that the Receiving Party can prove: (i) is or becomes public without breach of this Agreement by the Receiving Party; (ii) was in the Receiving Party’s possession prior to disclosure hereunder with no restriction on its use or disclosure; (iii) is subsequently received from a third party without restriction on use or disclosure and the third party is not under any obligation of confidence to the Disclosing Party; (iv) is independently developed by the Receiving Party’s employees or agents who have not had access to the Disclosing Party’s Confidential Information, or (v) is by law required to be disclosed to a court or governmental authority, provided that, to the extent not otherwise prohibited from doing so by law or court order, the Receiving Party notifies the Disclosing Party of the pending disclosure and gives the Disclosing Party a reasonable opportunity to seek the protection of its Confidential Information.
13. Specific Provisions and Exceptions.
This Section sets forth specific provisions related to certain components of the Software as well as limited exceptions to the above terms and conditions. To the extent that any provision in this Section is in conflict with any other term or condition in this Agreement, this Section will supersede such other term or condition.
13.1 Pre-release Software Additional Terms. If the Software is pre-commercial release or beta software (“Pre-release Software”), then this Section applies. The Pre-release Software is a pre-release version. It does not represent the final product from PJ Technologies and may contain bugs, errors and other problems that could cause system or other failures and data loss. PJ Technologies may never commercially release the Pre-release Software. Licensee will return or destroy all copies of Pre-release Software upon request by PJ Technologies or upon PJ Technologies' commercial release of such Software. LICENSEE’S USE OF PRE-RELEASE SOFTWARE IS AT ITS OWN RISK. PRE-RELEASE SOFTWARE AND ITS DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, ALL IMAGES CONTAINED THEREIN AND COMPONENTS THEREOF, IS PROVIDED “AS IS” AND WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND BY EITHER PJ TECHNOLOGIES, INC. OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF SUCH SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
13.2 Tryout, Product Sampler, NFR, Additional Terms. If the Software is tryout, starter, product sampler, or NFR software (“Tryout Software”), then the following Section applies. The Tryout Software may contain limited functionality and is to be used for demonstration and evaluation purposes only and not for Licensee’s commercial purposes. LICENSEE’S USE OF TRYOUT SOFTWARE IS AT ITS OWN RISK. PRE-RELEASE SOFTWARE AND ITS DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, ALL IMAGES CONTAINED THEREIN AND COMPONENTS THEREOF, IS PROVIDED “AS IS” AND WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND BY EITHER PJ TECHNOLOGIES, INC. OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF SUCH SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
13.3 Time Out Software. If the Software is a timeout version then it will cease operations after a designated period of time or number of launches following installation. The license hereunder will terminate after such period or number of launches unless extended by PJ Technologies upon Licensee’s acquisition of a full retail license.
14. MISCELLANEOUS.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to its conflicts of law provisions. Any civil action or legal proceeding arising out of or relating to this Agreement shall be brought in the courts of record of the State of Florida in Miami-Dade County or the United States District Court, Southern District of Florida. Each party consents to the jurisdiction of such Florida court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such Florida court. In any action to enforce this Agreement, the prevailing party shall be entitled to costs and attorneys' fees. Each party acknowledges and agrees that due to the unique nature of each party’s Confidential Information and the Software, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow the breaching party or third parties to unfairly compete with the non-breaching party resulting in irreparable harm to such party and, therefore, that upon any such breach or threat thereof, such party shall be entitled to injunctions without being required to post a bond therefor and other appropriate equitable relief, in addition to whatever remedies it may have at law. Any notice, report, approval or consent required or permitted pursuant to this Agreement shall be in writing and shall be deemed to have been effectively received: (A) immediately upon delivery or successful facsimile transmission to the parties to be notified; (B) two (2) business days after deposit with a commercial overnight courier with tracking capabilities; or (C) five (5) days after deposit with the United States Postal Service, by registered or certified mail, postage prepaid to the respective addresses of the parties as set forth below each of the parties' respective signatures. Except as otherwise provided in Section 3.3 above, License may not assign, sub-license or otherwise transfer any of Licensee’s rights, duties or obligations under this Agreement to any person or entity, in whole or in part without the prior written consent of PJ Technologies. Notwithstanding the foregoing, a sale of substantially all of Licensee’s assets to a third party or any transfer of more than 50% of the voting stock of Licensee to a third party shall not constitute an assignment under this Agreement. The waiver by either party of a breach of this Agreement or any right pursuant to this Agreement shall not constitute a waiver of any subsequent breach of this Agreement, nor shall any delay by either party to exercise any right under this Agreement operate as a waiver of any such right. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. All section headings are for reference purposes only. Any modifications of this Agreement must be in writing signed by both PJ Technologies and Licensee. This Agreement (including, without limitation, all applicable appendices) constitutes the entire agreement between Licensee and PJ Technologies with regard to the subject matter contained in this Agreement, and supersedes any and all previously written or oral agreements between the parties regarding the same.
Appendix A
SOFTWARE MAINTENANCE AND TECHNICAL SUPPORT AGREEMENT
This Software Maintenance and Technical Support Agreement (“M&S Agreement”) is made part of the End User License Agreement between PJ Technologies and the Licensee (the “Agreement”). The terms of this M&S Agreement are in addition to the terms contained in the Agreement. In the event of a conflict or inconsistency between the terms of this M&S Agreement and the Agreement, the terms of this M&S Agreement will govern with respect to the subject matter hereof. Capitalized terms not defined herein shall have the meaning defined in the Agreement.
PJ Technologies® Incorporated (“PJ Technologies”) will provide Customer with the Software Maintenance and Support Services listed under this M&S Agreement. Licensed users of the Goverlan™ Software product(s) (“Software”) who are not covered under this M&S Agreement will only be granted Limited Software Maintenance and Technical Support as defined in the Agreement. PJ Technologies and Customer may collectively be referred to herein as, the “Parties,” and individually as a “Party.”
Definitions
“Authorized Caller” or “Point of Contact” refers to an individual designated by Customer who may contact PJ Technologies to request technical support (e.g., to report Errors in the Software or request assistance with Software use).
“Business Day” means 9:00 AM through 6:00 PM eastern time, excluding holidays and weekends.
“Customer” or “You” or “Your” refers to the Customer who purchased a license to use the Software and purchased Software Maintenance pursuant to this M&S Agreement.
“Error” means a material error, problem, or defect resulting from an incorrect functioning of Software that (i) renders the Software inoperable or (ii) causes the Software not to perform in material compliance with its Documentation.
1. SUPPORT
PJ Technologies will establish and maintain an organization and process to provide support for the Software to the Customer in accordance with the terms of this M&S Agreement. Support shall include commercially reasonable efforts to (i) diagnose Errors in the Software, and (ii) resolve Errors in the Software (“Support”).
PJ Technologies will provide telephone and internet based Live Chat support each Business Day. In addition, PJ Technologies will provide an internet-based support system, which shall generally be available seven (7) days a week, twenty-four (24) hours a day, subject to routine maintenance.
Customers are required to designate up to two (2) Authorized Callers for all direct support services-related communications with PJ Technologies. Customer may replace an Authorized Caller at any time by notifying PJ Technologies’ Support Services.
PJ Technologies will use commercially reasonable efforts to cure reported and reproducible Errors in the Software. PJ Technologies will engage staff during business hours until a mutually acceptable resolution is achieved.
If a technical issue with the Software is the end-result of a conflict or incompatibility with another software product (“Third Party Product”) which was not provided by PJ Technologies nor included in the Documentation and which was implemented at Your site during the term of this M&S Agreement, then the vendor of the Third Party Product must assist PJ Technologies in the resolution of the technical issue. If the vendor of the Third Party Product is not available or does not provide commercially reasonable assistance in the resolution process, then PJ Technologies expresses no warranty that the issue will be resolved.
Provision of Support by PJ Technologies is conditioned upon Customer (i) timely paying PJ Technologies the applicable Support and Maintenance Fee in accordance with Section 5.2 herein; and (ii) having deployed the current version or the immediately prior version of the respective Software for which such Maintenance is to be provided, if such version was released in the immediately preceding twelve (12) months. PJ Technologies shall not be required to provide support for the Software or customization of the Software with regard to the Customer’s unique application requirements.
This M&S Agreement is not intended as a consulting agreement for customer services.
2. MAINTENANCE
PJ Technologies will provide the Customer with all released Software Updates and Software Upgrades of the Software along with other generally available technical material during (i) the three (3) months immediately following a new license purchase or (ii) the term of a Software Maintenance subscription.
Software Updates and Software Upgrades release dates will be solely determined by PJ Technologies.
The Software Updates, Software Upgrades and other technical material, including the Software, may not be used to increase the licensed number of versions or copies of the Software. Upon the installation of a Software Upgrade the Customer agrees not to use or transfer the prior version but to destroy or archive the prior version of the Software. All Software Updates and Software Upgrades shall be subject to the Agreement.
All Software and related materials provided pursuant to Software Maintenance, including Documentation and program materials are subject to the terms and conditions of this M&S Agreement and the Agreement.
3. LIMITATIONS
PJ Technologies shall be under no obligation to furnish Software Maintenance under this M&S Agreement to the extent that such Software Maintenance is required as a result of: (i) the operation of the Software in environmental conditions or configurations outside those prescribed in the user manual or other PJ Technologies Documentation for the Software; (ii) Your material failure to maintain the Software in accordance with the standards of maintenance prescribed in the user manual or other Software Documentation; (iii) maintenance of the Software by anyone other than PJ Technologies or a third party authorized by PJ Technologies; or (iv) causes unrelated to the Software as delivered to You by PJ Technologies, including, without limitation, unauthorized modifications to the Software, made by You or on Your behalf.
4. WARRANTY
PJ Technologies will undertake all commercially reasonable efforts to provide technical assistance under this M&S Agreement and to rectify or provide solutions to Errors, but PJ Technologies does not guarantee that the Software will be error-free.
PJ Technologies will provide the Customer with substantially the same level of service throughout the term of this M&S Agreement. PJ Technologies may from time to time, however, discontinue Software products or versions and stop supporting Software products or versions one year after discontinuance, or otherwise discontinue any support service.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR PROMISES TO CUSTOMER OR ANY THIRD PARTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS PROVIDED ABOVE, THE SERVICES AND MAINTENANCE ARE PROVIDED 'AS IS'.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES FOR ANY REASON (INCLUDING LOSS OF DATA OR OTHER BUSINESS OR PROPERTY DAMAGE), EVEN IF FORESEEABLE OR IF A PARTY HAS ADVISED OF THE POSSIBILITY OF SUCH A CLAIM. EXCEPT TO THE EXTENT OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, NEITHER PARTY’S LIABILITY SHALL EXCEED THE FEES THAT CUSTOMER HAS PAID TO PJ TECHNOLOGIES UNDER THIS M&S AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIMS.
Force Majeure. Neither Party shall be liable for its failure to perform due to unforeseen circumstances or any causes beyond its reasonable control (“Force Majeure”), including any natural calamity, act of God or public enemy, act of any military, civil or regulatory authority, change in any law regulation, disruption or outage of communications, power or other utilities or any other cause beyond the reasonable control of such Party. In the event of Force Majeure, PJ Technologies' performance will be extended for a period equal to the duration of the delay caused hereby.
5. TERM AND RENEWAL
Subject to Section 7 of the Agreement (“Software Maintenance and Technical Support Obligations”), provided that Customer purchases a subscription for Software Maintenance prior to the expiration of the Warranty Period, and initial Software Maintenance subscriptions shall become effective upon the expiration of the Warranty Period (the “Commencement Date”), and, unless sooner terminated in accordance with the terms of Section 5.3, shall continue until the first anniversary of the Commencement Date.
5.1 Renewal
PJ Technologies will notify Customer when Software Maintenance subscriptions are scheduled to expire within 30 (thirty) days in advance of the expiration date. If Customer wishes to renew a Software Maintenance subscription and PJ Technologies still provides Software Maintenance for the Software, PJ Technologies will provide a renewal quote to the Customer no later than 15 business days prior to the current term’s expiration date. The Parties agree that PJ Technologies will have the right to adjust prices at each renewal.
If PJ Technologies has not received a purchase order from Customer prior to the expiration date, this Agreement shall terminate on the applicable anniversary of the Commencement Date. PJ Technologies will use reasonable efforts to provide Customer with a notification stating that this M&S Agreement has expired. Upon such expiration, Customer shall still be entitled to receive Support for an additional thirty (30) days (the “Support Extension”), but will no longer be eligible to receive any Software Upgrades that are released after the expiration date. After the expiration of the Support Extension, Customer shall only be entitled to receive Limited Software Maintenance and Technical Support in accordance with the Agreement. Any other Software Maintenance activities that are contingent on a current Software Maintenance subscription will also be terminated.
Customer shall have the right to reinstate any lapsed Software Maintenance subscription upon payment of (i) the amount that PJ Technologies would normally have charged if the Software Maintenance subscription had been in effect during the period of lapse or discontinuation plus (ii) the charge for the next twelve (12) months of a newly commenced subscription term at PJ Technologies’ then-current rates.
5.2 Payment
Software Maintenance subscriptions can be purchased in advance on an annual basis. Fees are due and payable annually in advance. Payment terms will be Net 30 Days. The initial fee for Maintenance and Support services hereunder is detailed in the applicable quote (the “Maintenance and Support Fee”).
If multiple Software products have been licensed throughout the course of a year by Customer, separate Maintenance quotes for each product are not issued. Instead, the Maintenance anniversary date for each license (and corresponding term of the M&S Agreement) is prorated to the anniversary date of the first product licensed. All licensed PJ Technologies Software products offering a maintenance subscription are synchronized to reflect a common start and end date to all Software Maintenance, regardless of when each was first licensed. These prorated dates will be reflected on the renewal quote for Software Maintenance.
5.3 Termination
Either Party (the “Non-Breaching Party”) may terminate this M&S Agreement if the other party breaches the terms of this M&S Agreement and fails to cure such breach within thirty (30) days of receiving written notice specifying such breach from the Non-Breaching Party. In addition, PJ Technologies may immediately terminate this M&S Agreement upon the delivery of written notice to Customer if Customer fails to comply with any of the terms and conditions in Section 3 of the Agreement, and this M&S Agreement shall automatically terminate upon any termination of the Agreement. All fees paid or due are non-refundable unless Customer terminates this M&S Agreement because PJ Technologies has materially breached this M&S Agreement or the Agreement and has failed to cure the breach within 30 days after receiving written notice. In such event, Customer shall be entitled to receive a pro rata refund of the Software Maintenance subscription fee calculated by multiplying the Maintenance and Support Fee for the then-current one (1) year term by a fraction, the numerator of which is the number of calendar months remaining in such term, and the denominator of which is 12.
Termination of this M&S Agreement or any Software Maintenance subscription shall not terminate the Agreement or any licenses granted thereunder.
6. GENERAL
Each Party acknowledges that it has read this M&S Agreement; they understand the M&S Agreement and agree to be bound by its terms. Further, both Parties agree that this is the complete and exclusive statement of the M&S Agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the Parties relating to the subject matter of this M&S Agreement. This M&S Agreement may not be modified or altered except by written instrument duly executed by both parties. The Software (including, without limitation, all applicable Software Upgrades and Software Updates, all Documentation, and all components of any of the foregoing provided in accordance with the terms of this M&S Agreement) and the use thereof is subject to all of the terms and conditions set forth in the Agreement. This M&S Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to its conflicts of law provisions. Any civil action or legal proceeding arising out of or relating to M&S this Agreement shall be brought in the courts of record of the State of Florida in Miami-Dade County or the United States District Court, Southern District of Florida. Each Party consents to the jurisdiction of such Florida court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such Florida court. In any action to enforce this M&S Agreement, the prevailing party shall be entitled to costs and attorneys' fees. Any notice, report, approval or consent required or permitted pursuant to this Agreement shall be in writing and shall be deemed to have been effectively received: (A) immediately upon delivery or successful facsimile transmission to the parties to be notified; (B) two (2) business days after deposit with a commercial overnight courier with tracking capabilities; or (C) five (5) days after deposit with the United States Postal Service, by registered or certified mail, postage prepaid to the respective addresses of the parties as set forth below each of the parties' respective signatures. The waiver by either party of a breach of this Agreement or any right pursuant to this Agreement shall not constitute a waiver of any subsequent breach of this Agreement, nor shall any delay by either party to exercise any right under this Agreement operate as a waiver of any such right. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. All section headings are for reference purposes only. No action, regardless of form, arising out of this M&S Agreement may be brought by either Party more than two (2) years after the cause of action has arisen. Customer may not assign, sub-license or otherwise transfer any Customer's rights, duties or obligations under this M&S Agreement to any person or entity, in whole or in part without the prior written consent of PJ Technologies. Notwithstanding the foregoing, a sale of substantially all of Customer's assets to a third party or any transfer of more than 50% of the voting stock of Customer to a third party shall not constitute an assignment under this M&S Agreement. If any provision of this M&S Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this M&S Agreement shall otherwise remain in full force and effect and enforceable.
