License Agreement

Fortra, LLC SOFTWARE LICENSE AND SERVICES AGREEMENT

This software license and service agreement (“Agreement”) is made by and between Fortra LLC (Fortra) and the entity on whose behalf such individual accepts this agreement ("Client") formed by installing or updating the software. Please read all terms and conditions set forth in this agreement before accepting this agreement. By installing or updating the Software Client, you hereby agree to, and agree to be bound by, the terms and conditions set forth in this agreement, and represents to Fortra that it is authorized to do so. If you do not agree to the terms of this agreement or if you do not have the authority to bind the company or organization on whose behalf you are accepting this agreement, do not install or update the software.

SECTION 1.        Definitions

For the purposes of this agreement, the following terms have the meanings set forth below:

1    “Additional   Services”   shall  mean implementation or integration services, training services, programming or coding services, data conversion services, or on-site consultation, other than those services provided by maintenance defined in Section 1.9, provided by Fortra at the request of the client.

1.2    “Authorized Device” shall mean a server, partition, computer, or any other virtual or otherwise emulated hardware system controlled or owned by the client and sanctioned by Fortra.

1.3    “Authorized User” shall mean a designated person or number of persons who are granted access to the software by Fortra.

1.4    “Confidential Information” means any material, data, or information in whatever form or media of a party to this agreement that is provided or disclosed to the other, and shall include, the services rendered by Fortra to the client, the software licensed by Fortra to the client, financial and operational information, and other matter relating to the operation of Fortra’ or the client’s business, including information relating to actual or potential customers, accounting, finance or tax information, and pricing information.

1.5    “Invoice” shall mean any statement of charges issued by Fortra for software, maintenance, or services.

1.6    “Effective Date” shall mean the date the client accepts this agreement.

1.7    “Functional Specifications” shall mean those system and operational requirements set forth in the software documentation to which the software shall conform.

1.8    “License Fees” shall mean the fees paid to Fortra for the right to use the version of the software which is current at the time of the effective date. All fees are non-refundable.

1.9    “Maintenance” shall mean providing the client with (a) access to Fortra’ technical assistance (b) access to Fortra’ self-service utilities and (c) access to updates and enhancements of the software.

1.10    “Maintenance Fees” shall mean the fees paid to Fortra for maintenance. All fees are non-refundable.

1.11    “Maintenance Period” shall mean the period of time that Fortra provides maintenance. The initial maintenance period shall commence and expire on the dates indicated on the invoice. The maintenance period can be renewed by the client in accordance with Section 7.

1.12    “Services” shall mean collectively any maintenance and additional services provided by Fortra.

1.13    “Software” shall mean the products delivered to the client under the terms of this agreement, including all updates, add-ons, and enhancements created by Fortra for those products.

1.14    “Software Documentation” shall mean any tutorials, technical publications, and materials supplied with the software which include system requirements for implementation and operation of the software as well as the functional specifications of the software.

SECTION 2.   Scope and Term of Agreement

This agreement sets forth the terms and conditions under which Fortra shall license the software and provide maintenance and services to the client. This agreement shall remain in effect unless and until terminated by Fortra or the client in accordance with Section 10.

SECTION 3.        Software License.

3.1      Subject to the terms and provisions of this agreement, as well as the payment of license fees, Fortra hereby grants to the client, or an authorized user of the client, a non-exclusive, non-transferable, and non-assignable license to use the version of the software which is current at the time of the effective date for the client’s internal business purposes. The license covers the version of the software which is current at the time of the effective date and any available software documentation.

3.2      The client can install or otherwise use the software on an authorized device. The software cannot be moved to another device. If the client desires to move the software to another device, the client shall secure the prior approval of Fortra, which can be granted subject to an additional fee. The client shall not alter, modify, adapt, reverse engineer, decompile, disassemble, or create derivative works from the software, nor take any other action intended to reproduce the source code of the software or any part thereof without the prior written consent of Fortra. The client shall not remove any copyright or proprietary rights notices from the software and shall reproduce all such notices on any copies made in accordance with this Section 3.2.

3.3      The client can transfer its right to use the software provided (a) the client is in receipt of the prior written consent of Fortra, which can be withheld by Fortra in Fortra’ sole discretion (b) the client has paid any additional fee which Fortra can charge the client at Fortra’ sole discretion and (c) the client transfers the most recent production release of the software, including any and all updates to the software. Any transfer of the client’s right to use the software made in violation of the terms and provisions of this Section 3.3 shall constitute a breach of this agreement.

3.4      The client agrees that the software will not be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act, or any other export laws, restrictions, or regulations.

SECTION 4.        Software Delivery and Installation

4.1      Upon payment of the license fee, Fortra shall make the version of the software, which is current at the time of the effective date, available to the client along with a valid license key. Whether by providing an electronic download, physical distribution, or any other form of conveyance, the software shall be deemed delivered once it is made available to the client. The client can also access and utilize any software documentation related to the software delivered under the terms of this agreement.

4.2      The client shall be responsible for installation of the software on an authorized device that meets the requirements for operation of the software as identified in the software documentation.

SECTION 5.        Nondisclosure of Confidential Information

5.1      Fortra and the client agree that the party receiving confidential information shall exercise the same degree of care and protection with respect to the confidential information of the party disclosing the confidential information that it would exercise with respect to its own confidential information and shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any confidential information of the disclosing party, without the prior written consent of the disclosing party, except the receiving party may disclose confidential information on a need-to-know basis to employees, agents or representatives of the receiving party who are informed by the receiving party of the confidential nature of the confidential information and the obligations of the receiving party under this agreement or in accordance with a judicial or other governmental order, but only if the receiving party promptly notifies the disclosing party of the order and complies with any applicable protective or similar order. The receiving party will ensure its employees, agents and representatives to comply with the provisions of this Section 5.1.

5.2      Fortra and the client agree that the party receiving confidential information will promptly notify the disclosing party of any unauthorized use or disclosure of confidential information, or any other breach of this agreement and assist the disclosing party in every reasonable way to retrieve any confidential information that was used or disclosed by the receiving party or an employee, agent and representative of the receiving party without the disclosing party’s specific prior written authorization and to mitigate the harm caused by the unauthorized use or disclosure.

5.3      Fortra and the client agree that the party receiving confidential information will not breach Section 5.1 or Section 5.2 by using or disclosing confidential information if the receiving party demonstrates that the information used or disclosed (a) is generally available to the public other than as a result of a disclosure by the receiving party or an employee, agent, and representative of the receiving party (b) was received by the receiving party from a third party without any limitations on use or disclosure or (c) was independently developed by the receiving party without use of the confidential information.

5.4      Fortra and the client agree that upon the request of the party disclosing confidential information, the receiving party will (a) promptly return to the disclosing party all materials furnished by the disclosing party containing confidential information, together with all copies and summaries of confidential information in the possession or under the control of the receiving party, and provide written certification that all such confidential information has been returned to the disclosing party or (b) promptly destroy all materials furnished by the disclosing party containing confidential information, together with all copies and summaries of confidential information in the possession or under the control of the receiving party and provide written certification that all such confidential information has been destroyed by the receiving party.

5.5      Fortra and the client acknowledge and agree that the remedies available at law for any breach of this agreement will, by their nature, be inadequate. Accordingly, each party may obtain relief or other equitable relief to restrain a breach or threatened breach of this agreement or to specifically enforce this agreement, without proving that any monetary damages have been sustained.

SECTION 6.  Software Ownership Rights; Intellectual Property Rights and
Intellectual Property Rights Indemnification by Fortra

6.1      The client acknowledges and agrees that the software and software documentation, and all intellectual property rights therein, are (a) the sole and exclusive property of Fortra (b)protected by United States Copyright Law and (c) the software is a trade secret of Fortra. Except to the limited extent required for the client to use the software pursuant to the license granted in Section 3.1, nothing in this agreement will be deemed to grant, by implication, estoppel or otherwise, a license in any existing or future intellectual property of Fortra. No title or ownership rights to the software are transferred to the client by this agreement, but shall remain with Fortra. All rights not expressly granted by Fortra with respect to the software under this agreement are reserved by Fortra.

6.2      Fortra shall defend at its own expense any action against the client brought by a third party to the extent that the action is based upon a claim that the software directly infringes any copyright filed in the United States or misappropriates any trade secret recognized as such under the Uniform Trade Secrets Act, and Fortra will  pay  those  costs  and  damages finally awarded  against  the client  in  any  such  action  that  are  specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Fortra obligations under this Section 6.2 are conditioned on (a) the client notifying Fortra within ten (10) days of notice of such action (b) the client giving Fortra  sole control of the defense thereof and any related settlement negotiations and (c) the client cooperating with Fortra in such defense (including, without limitation, by making available to Fortra all documents and materials in the client’s possession or control that are relevant to the infringement or misappropriation claims, and by making the client’s personnel available to testify or  consult with Fortra or  its attorneys in connection with said defense). If the software becomes, or in Fortra’ opinion is likely to become, the subject of an infringement or misappropriate claim, Fortra  may, at its option and expense, either (i) procure for the client the right to continue using the software (ii) replace or modify the software so that it becomes non-infringing or (iii) terminate the client’s right to use the software and give the client a refund or credit of the amounts actually paid by the client to Fortra for the software less a reasonable allowance for the period of time the client used the software. Fortra will have no obligation with respect to any infringement or misappropriation claim based upon (1) any use of the software not in accordance with the agreement or for purposes not intended by Fortra (2) any use of the software in combination with other products, equipment, software, or data not supplied by Fortra (3) any use of any release of the software other than the most current release made available to the client or (4) any modification of the software made by any person other than Fortra. Section 6.2 states Fortra’ entire liability and the client’s sole and exclusive remedy for infringement and misappropriation claims and actions.

SECTION 7.        Maintenance and Additional Services

7.1            During the maintenance period Fortra will provide the client with maintenance. Fortra’ continuing obligation to provide maintenance is contingent on payment in full of the maintenance fees by the client to Fortra. Fortra maintenance agreements automatically renew for successive twelve (12) month periods unless the client provides written notice of its election to not renew sixty (60) days in advance of the renewal date. Fortra may allow the client to pay the annual maintenance fee by credit card (Fortra uses a PCI compliant third party system) and, with your agreement, Fortra can annually automatically charge the client credit card upon the renewal date. Within the sixty (60) day period prior to the expiration of the maintenance period, Fortra shall send the client an invoice for maintenance fees for the next maintenance period. The maintenance fees charged to the client for the next maintenance period are subject to change in Fortra’ sole discretion. The client’s payment of the maintenance fee in response to an invoice for maintenance prior to the expiration date of the then current maintenance period, will extend the maintenance period until the new expiration date indicated on Fortra’ invoice for maintenance. The client’s failure to pay the maintenance fees prior to the expiration date of the then current maintenance period shall constitute the client’s election to allow the maintenance period to expire without further notice from Fortra. If the maintenance period is allowed to expire, Fortra may condition any subsequent reinstatement of the maintenance period on payment by the client to Fortra of an additional fee set by Fortra in Fortra’ sole discretion.   

7.2      The maintenance provided by Fortra during the maintenance period specifically and expressly does NOT include additional services as defined in Section 1.1. Should the client require additional services, those additional services may be available subject to the payment of fees by the client to Fortra and as otherwise agreed to in writing by Fortra and the client.

7.3      In the event Fortra incurs any liability to the client, including but not limited to a credit balance and whether arising from this agreement or otherwise, Fortra may, without notice to the client, set off the amount of such liability against any liability of the client to Fortra, including but not limited to maintenance fees to be paid by the client to Fortra for maintenance pursuant to Section 7.1.

SECTION 8.        Limited Warranty and Warranty Disclaimer

8.1      Fortra warrants that (a) the software shall substantially conform to the functional specifications and (b) that the software documentation shall be substantially free of errors. This warranty shall extend for ninety (90) days from delivery of the software as set forth in Section 4.1. In the event of any breach of the warranty set forth in Section 8.1, Fortra’ sole and exclusive responsibility and the client’s sole and exclusive remedy, shall be for Fortra to correct or replace, at no additional charge to the client, any portion of the software found to be defective, provided, however, that if within a commercially reasonable period, Fortra neither corrects nor replaces the defective software, then the client’s sole and exclusive remedy shall be to receive direct damages not to exceed the license fees paid to Fortra. Fortra does not warrant that the operation of the software will be uninterrupted or error free or that the software will meet the client’s operational requirements. Fortra is not responsible for errors or defects in the software caused by changes in or to the operating characteristics of the client’s computer hardware or operating systems made after delivery of the software as set forth in Section 4.1 or errors or defects in the software caused by the interaction of the software with third party programs or applications. The warranty set forth in Section 8.1 shall be void as to software where noncompliance is caused or related to (a) the acts or omissions of non-Fortra personnel, agents, or third parties (b) any alternations or modifications made to the software by the client, its personnel, or agents (c) use of the software other than in the operating environment specified in the software documentation or (d) coding, information, or specifications created or provided by the client.

8.2      Fortra warrants that any services provided by Fortra pursuant to this agreement shall be performed in accordance with the prevailing professional standards of the software industry. In the event of any breach of the warranty set forth in Section 8.2, Fortra’ sole and exclusive responsibility, and the Client’s sole and exclusive remedy, shall be for Fortra to correct, at no additional charge to the client, any portion of the services found not to meet prevailing professional standards of the software industry, provided, however, that if within a commercially reasonable period Fortra fails to correct the services found not to meet prevailing professional standards of the software industry, then the client’s sole and exclusive remedy shall be to receive direct damages not to exceed the fees paid to Fortra for the services.

8.3      In the event of any breach of any provisions of this agreement other than the warranties set forth in this agreement, the client’s sole and exclusive remedy shall be to receive direct damages not to exceed the license fee.

8.4      EXCEPT AS SET FORTH IN SECTION 8, Fortra MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE OR SERVICES, OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY CLIENT. Fortra FURNISHES THE ABOVE WARRANTIES IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

SECTION 9.        Limitation of Liability

9.1      Fortra SHALL NOT BE LIABLE FOR ANY (a) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT OR THE OPERATION OR USE OF THE SOFTWARE OR SERVICES INCLUDING SUCH DAMAGES, WITHOUT LIMITATION, AS DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST CUSTOMER BY ANY THIRD PARTY, EVEN IF Fortra HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (b) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY Fortra  TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND Fortra’ REASONABLE CONTROL; OR (c) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST Fortra  MORE THAN ONE (1) YEAR AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE.

9.2      NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, BUT EXCLUDING ANY CLAIMS FOR INDEMNIFICATION UNDER SECTION 6, Fortra’ LIABILITY UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, OR OTHERWISE SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY RECEIVED BY Fortra UNDER THIS AGREEMENT.

SECTION 10.        Termination

10.1    Fortra shall have the right to terminate this agreement if (a) the client fails to pay any fees that are due, other than for maintenance, within ten (10) days after receiving written notice of such obligation from Fortra (b) the client breaches any provision of this agreement and fails to remedy such breach within thirty (30) days after receiving written notice of such breach or (c) a proceeding is instituted by or against the client seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking an entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property or taking any action to authorize any of the foregoing or similar actions by or against the client.

10.2      The client shall have the right to terminate this agreement if (a) Fortra breaches any provision of this agreement and fails to remedy such breach within thirty (30) days after receiving written notice of such breach or (b) a proceeding is instituted by or against Fortra seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking an entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property or taking any action to authorize any of the foregoing or similar actions by or against Fortra.

10.3    Upon any termination of this agreement, the client shall make no further use of the software and shall either return to Fortra or destroy originals and all copies of the software and software documentation. The client shall supply a written affidavit executed by an officer of the client to Fortra certifying that it no longer possesses any embodiments of the software or software documentation. No refunds or credits will be due to the client.

SECTION 11.        Governing Law, Venue

Fortra and the client agree that this agreement shall be governed by and construed in accordance with the laws of the state of Minnesota without regard to conflict of laws principles. Any action or proceeding seeking to enforce any provisions of, or based on any right or claim arising out of this agreement will be brought against Fortra or the client in Hennepin County Circuit Court of the State of Minnesota or, subject to applicable jurisdictional requirements in the United States District Court of the District of Minnesota, and Fortra and the client consent to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to such venue.

SECTION 12.         Waiver

Fortra and the client agree that this agreement may not be changed or modified, nor may any provision hereof be waived, except as agreed to in writing by Fortra and the client.

SECTION 13.         Severability

If any provision of this agreement is found to be illegal, invalid, or unenforceable, that provision shall not affect the validity or enforceability of this agreement as a whole, and this agreement shall then be construed in all respects as if such invalid or unenforceable provision was omitted.

CLIENT ACKNOWLEDGES THAT CLIENT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. CLIENT FURTHER AGREES THAT THE AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN Fortra  AND CLIENT AND THAT IT SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS, NEGOTIATIONS, DISCUSSIONS, AND PROPOSALS, ORAL OR WRITTEN, AND ANY AND ALL OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTERS OF THE AGREEMENT.