SOFTWARE LICENSE AND MAINTENANCE AGREEMENT
The Software License and Maintenance Agreement (“SLMA” or “Agreement”) is effective between Cireson, LLC and its subsidiaries (“Cireson”), and the entity listed on the purchase order submitted to Cireson (“Licensee”) upon delivery of the product license keys for the Software (“Effective Date”). The SLMA includes by reference the General Terms and Conditions below and each applicable Addendum based on the Software licensed as indicated on Licensee’s purchase order and Cireson’s invoice. By paying the License Fee and/or by downloading or using the Software, Licensee agrees to the following:
GENERAL TERMS AND CONDITIONS
1. Grant of License. Cireson grants to Licensee a non-exclusive, non-assignable, non-transferable, perpetual license (“License”) to only those software applications identified on Licensee’s purchase order and Cireson’s invoice (“Software”).
2. General Scope of License. In order to use the Software, Licensee shall have installed the then-current version of the prerequisite platform as defined in the Software’s product documentation. Cireson grants Licensee a License to use the Software in physical or virtual environments, in object code form only, for its own business purposes with no right to sublicense. The License granted hereunder does not extend to any parent company, sister company, subsidiary, or affiliate of Licensee without the payment of an additional License Fee and a Support and Maintenance Fee.
a. License Fees. Licensee shall pay to Cireson the license fee invoiced to Licensee following delivery of the Software (“License Fee”).
b. Support and Maintenance Fees. As set forth on the invoice, Licensee shall pay to Cireson a fee equal to Twenty Percent (20%) of the list price of the Software purchased on a perpetual license basis (“Support and Maintenance Fee”) in exchange for one (1) year of Support and Maintenance as described in the Support and Maintenance Policy. Subject to the payment of Support and Maintenance Fees when due, Cireson shall Support previous released major versions of the Software (e.g. x.1, y.1, etc.) for up to 1 year from release date. If Licensee wishes to renew Support and Maintenance, Licensee must comply with the renewal process described in the Support and Maintenance Policy. All Support and Maintenance Fees shall be earned when paid and shall be non-refundable. No pro-rata refunds will be issued for cancellation of Support and Maintenance.
c. License Upgrade Fees. “License Upgrade Fees” are described in each applicable Addendum.
4. Payment Terms.
a. Invoicing and Payments. Cireson will submit an initial invoice following the delivery of the product license keys for the Software which shall set forth an itemized description of all Software licensed, the License Fee due, the initial Support and Maintenance Fee, initial Software Assurance Fee (if applicable), and any Taxes, fees or charges due. Upon receipt of a purchase order from Licensee for the renewal of Support and Maintenance and Software Assurance (if applicable), Cireson will submit to Licensee an invoice for payment of the Support and Maintenance Fee and Software Assurance Fee (if applicable) along with any applicable Taxes, fees or charges due. When due, Cireson will submit an invoice for the License Upgrade Fees due along with any applicable Taxes, fees or charges due. All invoices shall be paid within thirty (30) days of the date of Cireson’s invoice.
b. Late Payments. If Licensee has not paid an invoice by the due date set forth on the invoice, then interest will accrue on the unpaid balance at a rate of one and one-half percent (1.5%) for each month or fraction thereof the overdue amount remains unpaid. If the License Fee or any License Upgrade Fee is not paid by its due date, Cireson may suspend or revoke the License. If any Support and Maintenance Fee or Software Assurance Fee is not paid by their due date, Cireson may suspend Support and Maintenance and Software Assurance (if applicable). Suspension or revocation does not relieve Licensee from paying fees due pursuant to the terms of this SLMA. The above described remedies are in addition to, and not in lieu of, any other remedies which Cireson may have under applicable law.
c. Method of Payment. All payments shall be sent to Cireson in United States Dollars pursuant to the instructions provided to Licensee on or with each invoice. Licensee is responsible for any wire fees and any currency exchange costs associated with payment to Cireson in United States Dollars.
d. Taxes, Duties and Other Charges. Fees invoiced by Cireson do not include any local, state, federal or foreign taxes, VAT, levies or duties of any nature (“Taxes”) unless otherwise indicated. Licensee is responsible for paying all Taxes, including sales, use, personal property, value-added, excise, custom fees, import duties and any other similar duties and charges, including penalties and interest, imposed by the any United States federal, state, provincial or local government entity or any non-United States government entity on the provision, sale or use of the Software, excluding only United States based taxes on Cireson’s income. If Cireson has the legal obligation to pay or collect Taxes for which Licensee is responsible under this Section, the appropriate amount shall be invoiced to and paid by Licensee unless Licensee provides Cireson with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. License Compliance Audits and Inspection.
a. Inspection. Cireson, or its designee, shall have the right, upon at least five (5) business days written notice and no more than once per calendar year, to inspect Licensee’s IT environment and the related books and records at Licensee’s place of business in order to confirm compliance with the License and the other terms and conditions of this Agreement. Cireson shall have free and full access thereto for such purposes and shall be permitted to make copies thereof and extracts therefrom. All costs related to such inspection shall be borne exclusively by Cireson unless non-compliance with this Agreement is discovered in which case Licensee shall be required to reimburse Cireson for all the costs related to such inspection including any attorney’s fees and other professional fees and travel expenses incurred in connection therewith.
b. Discrepancies. In the event that such inspection reveals non-compliance, including, without limitation, additional License Fees being owed to Cireson because Licensee has not purchased the appropriate License to accommodate its actual usage, Licensee shall pay the License Upgrade Fee, plus interest, calculated at ten percent (10%) per annum.
c. Cireson’s Duty of Confidentiality at Inspection. In the event that an inspection of Licensee’s environment, books and records is made, certain confidential and proprietary business information may necessarily be made available to the person or persons conducting such investigation. It is agreed that such confidential and proprietary business information shall be retained in confidence by Cireson and shall not be used by Cireson or disclosed to any third party without Licensee’s prior express written permission unless required by law. It is understood and agreed, however, that such information may be used in any proceeding based on Licensee’s non-compliance with the terms and conditions of this Agreement.
d. Survival. The rights granted to Cireson pursuant to this Section shall survive for five (5) years beyond the expiration or termination of this Agreement.
6. Term and Termination.
a. Term of License. The License shall continue indefinitely until terminated in accordance with this Agreement.
b. Support Period for Support and Maintenance. See Support and Maintenance Policy.
c. Termination of License by Cireson for Breach of Agreement. In the event of a material breach of this Agreement by Licensee, Cireson shall provide written notice of the breach to Licensee who shall have thirty (30) days following the date of the notice to cure the breach, if the breach is capable of being cured as determined by Cireson in Cireson’s reasonable discretion. Notwithstanding the foregoing, Licensee agrees that Cireson shall have the right to immediately terminate this Agreement in the event Licensee breaches Sections 7 or 8 of this Agreement.
d. Effect of Termination. Upon termination of this Agreement for any reason, Licensee shall immediately pay all amounts then due and payable, and shall at Cireson’s option, either (i) return all copies of the Software and other Confidential Information of Cireson in its possession or control, or (ii) destroy all copies of the Software and other Confidential Information of Cireson in Licensee’s possession or control. A duly authorized officer of Licensee shall certify in writing to Cireson that the Licensee has complied with the obligations set forth in this section within ten (10) business days of the effective date of the termination.
e. Survival. The following provisions survive the termination or expiration of this Agreement: Sections 3, 5, 7, 8, 9(g), 10, 11 and 12.
7. Intellectual Property.
Subject only to the limited rights granted to Licensee in this Agreement, all Intellectual Property Rights to the Software and any corrections, enhancements, updates or modifications to the Software shall remain the sole property of Cireson. For purposes of this Agreement, “Intellectual Property Rights” include all intellectual property rights, whether existing under statute, equity or common law and whether existing under intellectual property, unfair competition, trade secret or other laws, including, but not limited to, (i) copyrights, trademarks, trade secrets, patents, inventions, innovations, designs, logos, trade dress, moral rights, mask works, or rights of publicity or privacy; and (2) any registration, application or right to apply for any registration of any of the aforementioned rights, including all renewals, extensions and restorations thereof, now or hereafter in force and effect. Licensee shall not, at any time during or after the term of the Agreement, dispute or contest, directly or indirectly, Cireson’s exclusive right and title to the Software or the validity of any Intellectual Property Rights of Cireson related thereto. Licensee agrees to execute any documents reasonably requested by Cireson to affect any of the above provisions.
8. Confidential Information.
a. “Confidential Information” Defined. For purposes of this Agreement, “Confidential Information” shall mean any and all business, technical or third party information provided, disclosed or made accessible to the other under this Agreement including, but not limited to, business plans, marketing plans, financial data, specifications, drawings, sketches, models, samples, computer programs or documentation, contracts, contacts, research and development, trade secrets, formulae, specifications, data, know-how, formats, strategies, forecasts, budgets, copyrightable works of authorship, trademarks, service marks and like information, whether or not such information is marked as “confidential” or “proprietary.” “Confidential Information” shall be defined broadly to include any information that has commercial value or other utility to the disclosing party and information of disclosing party, which if disclosed, would be detrimental to the disclosing party.
b. Duty Not to Disclose; Exceptions. The parties shall restrict access to the Confidential Information to employees or agents who have a “need to know.” The parties, employees or agents, shall not disclose the Confidential Information to any third party and shall treat the information in the same way it treats its own Confidential Information of like kind. This provision will not apply to information which is in the public domain, is previously known to the receiving party without obligation of confidentiality, is independently developed by the receiving party or is obtained by the receiving party from a third party that does not have an obligation to keep the information confidential. The parties will not make any copies of the Confidential Information without prior approval.
a. Authority. Cireson warrants that it has all right, title and interest, free of all liens and encumbrances, in the Software and has the authority to grant the License.
b. Non-Infringement. Cireson represents and warrants that the Software does not infringe, misappropriate, dilute or otherwise violate any third-party intellectual property rights or other proprietary rights. In the event of a breach of the foregoing warranty, Cireson must, at its own expense and at its sole option either, (i) secure for the Licensee the right to continue using the Software; (ii) replace or modify the Software to make it non-infringing, provided such modification or replacement will not materially degrade any functionality described in the product documentation; or (iii) refund the License Fee paid for the Software. The preceding sentence, in conjunction with Licensee’s right to terminate the Agreement for breach where applicable, states the Licensee’s sole remedy and Cireson’s entire liability for breach of the non-infringement warranty.
c. Limited Warranty. During the Initial Support Period and during each subsequent Renewal Support Period (as each is defined in the Support and Maintenance Policy), Cireson warrants that the Software shall operate in substantial conformance with Cireson’s documentation and shall be free from material defects when operated as recommended by Cireson. Cireson shall promptly correct any material defects in the Software pursuant to the severity levels and error resolution process described in Support and Maintenance Policy. In the event of a breach of the foregoing warranty, Cireson shall correct or replace, at no additional charge to Licensee, any part of the Software found to be defective, which shall be Licensee’s sole and exclusive remedy. Any customization or other modification to the Software by Licensee, other than with the provided administrative tools (e.g. changes to the source code) negates this warranty and Cireson shall have no obligation to provide Support to Licensee without the execution of a Services Agreement concerning the provision of professional services by Cireson required to support custom instances of the Software and Licensee’s payment of additional compensation for said professional services. The foregoing limited warranty does not apply to free Software. Except to the extent required by law, Cireson makes no warranties, conditions, representations, or terms (express or implied) whatsoever as to any matter related to the use of free Software. Free Software are delivered “as is” and with all faults.
d. Support and Maintenance Warranty. Cireson warrants that any Support and Maintenance provided shall be performed in a professional manner, consistent with industry standards.
e. No Malware. Cireson represents and warrants that none of the applications comprising the Software contains (a) any back door, time bomb, drop dead device or other software routine designed to disable a computer program automatically with the passage of time to prevent authorized use of the Software, or (b) any virus, trojan horse, worm or other components designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data.
f. No Open Source Software. Cireson represents and warrants that none of the applications comprising the Software contain any code or materials subject to non-negotiable licenses, including, without limitation, any “open source” or “freeware” software or any other materials requiring that software combined or distributed with such materials be disclosed or distributed in source code form, licensed for the purpose of making derivative works, or re-distributable at no charge or subject to material limitations or conditions.
g. Disclaimer. LICENSEE ACKNOWLEDGES THAT NO EXPRESS WARRANTIES HAVE BEEN MADE BY CIRESON OTHER THAN THOSE SET FORTH HEREIN. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH LICENSEE’S USE OF THE INFORMATION OR INFRINGEMENT OTHER THAN THOSE SET FORTH HEREIN. THESE WARRANTIES AND THE ASSOCIATED REMEDIES ARE PROVIDED IN LIEU OF ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Liability.
Except a breach of Sections 1,2, or 7, neither party is liable to the other for any indirect, special, incidental or consequential damages (including punitive and lost profits), regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance. Notwithstanding any other provision of this Agreement, Cireson’s liability to the other in connection with or relating to this Agreement, whether in contract, tort or otherwise, shall not exceed the amounts actually received by Cireson under this Agreement.
11. Data Collection
Licensee agrees and acknowledges that Cireson will collect a count of the number of End-Users, Analysts, Assets and Devices used in Licensee’s organization. Cireson collects counts in order to better understand its customers and how they use the Software across their businesses which assists Cireson with monitoring license compliance, product improvement and development. Cireson will not share these counts with third parties.
a. Force Majeure. A “Force Majeure Event” means any act or event, whether foreseen or unforeseen that prevents a party (the “Nonperforming Party”), in whole or in part, from performing its obligations or satisfying any conditions to the Nonperforming Party’s obligations under this Agreement and is beyond the reasonable control of and not the fault of the Nonperforming Party, and the Nonperforming Party has been unable to avoid or overcome by exercise of due diligence. In furtherance of the definition of a Force Majeure Event and not in limitation of that definition, each of the following acts or events is deemed to meet the criteria of the section and to be a Force Majeure Event: war, flood, lightning, drought, earthquake, fire, volcanic eruption, landslide, hurricane, cyclone, typhoon, tornado, explosion, civil disturbance, act of God or the public enemy, terrorist act, military action, epidemic, famine or plague, shipwreck, strike, work-to-rule action, go-slow, or similar labor difficulty, each on an industry-wide, region-wide or nationwide basis. The Nonperforming Party shall not be liable for any loss or delay resulting from any Force Majeure Event and any payment or timeline for performance of any services shall be reasonably extended to the extent of any such delay resulting from the Force Majeure Event.
b. Binding on Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of each of the parties and their respective permitted successors and assigns. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person, other than the parties, their successors and assigns, any benefits, or rights under or by reason of this Agreement, except to the extent of any contrary provision herein contained.
c. Assignment. This Agreement and the rights and obligations hereunder shall not be assigned or otherwise transferred in whole or in part by any act of Licensee or by operation of law without the prior written consent of Cireson. Cireson may assign or otherwise transfer any of its rights and obligations under this Agreement upon written notice to Licensee.
d. Advertising and Publicity. Licensee agrees to provide marketing support to Cireson, including but not limited to a press release on award of contract and at ‘go-live’, use of Licensee’s logo in marketing materials, website, collaboration on the creation of a case study after ‘go-live’ and the hosting of reference visits for future prospects of Cireson. Licensee will have final review of all marketing or public relations collateral and case study materials and will be provided reasonable notice for reference visit requests.
e. Non-Disparagement. Licensee agrees not to in any way, directly or indirectly, disparage Cireson or the Software to third parties, or make or solicit any comments, statements or the like that may be considered to be derogatory or harmful to the reputation of Cireson or its Software.
f. Amendment. Cireson reserves the right to modify this Agreement including the Support and Maintenance Policy, Software Assurance Policy and each Addendum upon written notice to Licensee. Licensee shall have thirty (30) days from the date of the notice to opt out of the modifications.
g. Waivers. No party shall be deemed to have waived any provision of this Agreement unless such waiver is in writing and executed by the party against who the waiver is sought to be enforced. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the parties, shall operate as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for that purpose that it is given and is not to be construed as a waiver on any future occasion or against any other person. To the extent any course of dealing, act, omission, failure, or delay in exercising any right or remedy under this Agreement constitutes an election of an inconsistent right or remedy, that election does not constitute a waiver of any right or remedy, or limit or prevent the subsequent enforcement of any contract provision. No single or partial exercise of any right or remedy under this Agreement precludes the simultaneous or subsequent exercise of any other right or remedy. The rights and remedies of the parties set forth in this Agreement are not exclusive of, but are cumulative to, any rights or remedies now or subsequently existing at law, in equity, or by statute.
h. Jurisdiction and Disputes. This Agreement, including, but not limited to, its validity, interpretation, construction, performance and enforcement, shall be construed in accordance with and governed by the laws of the State of California (without giving effect to its conflicts of law principles). Any party bringing a legal action or proceeding against the other arising out of or relating to this Agreement or the transactions its contemplates shall bring the legal action or proceeding in federal or state courts located in San Diego County, California. Each party consents to the exclusive jurisdiction of said courts for the purpose of all legal actions and proceedings arising out of or relating to this Agreement or the transactions it contemplates. Each party agrees that the exclusive choice of forum set forth in this Section does not prohibit the enforcement of any judgment obtain in that forum or any other appropriate forum. Each party waives, to the fullest extent permitted by law, any objection which it may now or later have to the venue agreed upon herein, and any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
i. Attorney’s Fees. Should it be necessary to institute any action to enforce the terms of this Agreement, the parties hereby agree that the substantially prevailing party in any such action shall be entitled to recover its reasonable attorneys’ fees, as well as all costs of the action, including, but not limited to court costs, filing fees, exhibit fees, forensic consultant fees, litigation support costs and expert witness fees. Further, recoverable attorneys’ fees and costs shall include the costs for such items for any appeals. This paragraph shall remain independent from any judgment entered to enforce its terms, shall not merge therewith, and shall entitle the prevailing party to attorneys’ fees and costs incurred in connection with post judgment collection and enforcement efforts.
j. Entire Agreement. This Agreement supersedes and cancels all prior agreements, if any, between the parties. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the parties, shall operate as a waiver or estoppel of any right, remedy or condition. In the event of any conflict between this Agreement and any End User License Agreement, this Agreement shall control.
k. Notices. Unless otherwise indicated, notices required under this Agreement shall be in writing and shall be sent to the party’s last known address or email address. Notice will be deemed given (1) as of the day following the day notice is deposited with a reputable overnight courier (e.g. Federal Express, UPS, etc.), charges prepaid, or as of the day following the day of email notice; or (2) as of the third day if the notice is sent certified U.S. Mail, charges prepaid, with return receipt requested; or (3) as of the day of delivery if the notice is hand delivered. Notices sent by email to Cireson shall be sent to:
Matt Deen, Legal Counsel
1431 Pacific Highway, Suite H3
San Diego, CA 92101
ADDENDUM FOR PERPETUAL LICENSES
Cireson licenses its software on a perpetual basis. In addition to the General Terms and Conditions, the following applies to any perpetual license of Cireson Software:
1. License Details.
The License Fee for any perpetual License of Cireson Software is based on the license tier as set forth on Licensee’s purchase order and Cireson’s invoice. Cireson’s license tiers are as follows:
License Tier Number of End Users
SMB: 1 – 500
SMALL: 501 – 1,000
LOWER MEDIUM: 1,001 – 2,500
UPPER MEDIUM: 2,501 – 5,000
LARGE: 5,001 – 10,000
ENTERPRISE: 10,001 – 15,000
* Special pricing applies to organizations with 15,001 or more End Users
All perpetual Licenses are limited to one (1) production environment and up to two (2) non-production environments, and up to the maximum number of End Users for the license tier purchased.
2. End Users.
The License is based on the number of persons granted access to the Cireson portal or Cireson Software, or both, by Licensee whether that person is full-time, part-time, an employee, a contractor or a partner (each an “End User” and collectively, “End Users”). To remain in compliance with the License, Licensee shall ensure that End Users are appropriately assigned to corresponding Active Directory Groups, or some other logical schema used by Licensee. Licensee may activate and deactivate End Users at any time. A deactivated End User is not counted for License compliance purposes.
3. License Compliance; License Upgrade Fees.
If, at any time, Licensee’s use exceeds the number of End Users in the license tier purchased, Cireson will notify Licensee of its breach of the License and provide Licensee the opportunity to meet with Cireson’s Customer Success Team to review the License and Licensee’s usage. If Licensee fails to take corrective action to bring its License back into compliance within thirty (30) days of the date of the notice, a “License Upgrade Fee” equal to the difference between the License Fee(s) already paid and current list price of the appropriate license tier shall be immediately due and payable to Cireson upon receipt of Cireson’s invoice.
4. Software Assurance.
If Licensee has purchased a perpetual License for the Foundation Edition, Team Edition or Professional Edition, as described on Cireson’s invoice, Licensee shall pay to Cireson a fee equal to Ten Percent (10%) of the list price of the Software purchased on a perpetual license basis (“Software Assurance Fee”) in exchange for one (1) year of Software Assurance as described in the Software Assurance Policy. If Licensee wishes to renew Software Assurance, Licensee must comply with the renewal process described in the Software Assurance Policy. All Software Assurance Fees shall be earned when paid and shall be non-refundable. No pro-rata refunds will be issued for cancellation of Software Assurance.