The following terms of service and end user license agreement (“EULA”) constitute an agreement between you and Herbst Software. This EULA governs your use of Software and Services (as specified below).
1.1 PROGRAM means the software in object code form distributed by Herbst for which Customer is granted a license pursuant to this Agreement, and the media, Documentation and Updates there for.
1.2 DOCUMENTATION means the user guides and manuals for installation and use of the Program software.
1.3 UPDATE means a subsequent release of the Program which Herbst generally makes available for Program licenses, provided Customer has ordered Technical Support for such licenses for the relevant time period. Update shall not include any release, option or future product which Herbst licenses
1.4 ORDER FORM means the document in hard copy or electronic form by which Customer orders Program licenses and services, and which is agreed to by the parties. The Order Form shall reference the Effective Date of this agreement
1.5 DESIGNATED SYSTEM means the computer hardware and operating system designated on the relevant Order Form.
1.6 TECHNICAL SUPPORT means Program support provided under Herbst’s policies in effect on the date Technical Support is ordered.
1.7 COMMENCEMENT DATE means the date on which the Programs are made available by Herbst to Customer, or the Effective Date set forth in the relevant Order Form.
2. PROGRAM LICENSE
2.1 RIGHTS GRANTED
2.1.1 Herbst grants to Customer a nonexclusive license to use the Programs specified on an Order Form under this Agreement, as follows:
(i) to use the Programs solely for Customer’s operations on the Designated System or on a backup system if the Designated System is inoperative, consistent with the use limitations specified or referenced in this Agreement, an Order Form, or the Documentation. Customer may not re-license, rent or lease the Programs or use the Programs for third-party training, commercial time-sharing or service bureau use;
(ii) to use the Documentation provided with the Programs in support of Customer’s authorized use of the Programs;
(iii) to copy the Programs for archival or backup purposes, and to make a sufficient number of copies for the use specified in the Order Form. All titles, trademarks, and copyright and restricted rights notices shall be reproduced in such copies;
(iv) to modify the Programs and combine them with other software products; and
(v) to allow third parties to use the Programs for Customer’s operations so long as Customer ensures that use of the Programs is in accordance with the terms of this Agreement.
Customer shall not copy or use the Programs (including the Documentation) except as specified in this Agreement or an Order Form. Customer shall have no right to use any other software program that may be delivered with ordered Programs.
2.1.2 Customer agrees not to cause or permit the reverse engineering, disassembly or decompilation of the Programs, except to the extent required to obtain interoperability with other independently created software or as specified by law.
2.1.3 Herbst shall retain all title, copyright and other proprietary rights in the Programs. Customer does not acquire any rights, express or implied, in the Programs, other than those specified in this Agreement.
2.2 TRANSFER AND ASSIGNMENT
2.2.1 Customer may transfer a Program license within its organization upon notice to Herbst transfers are subject to the terms and fees specified in Herbst’s transfer policy in effect at the time of the Agreement.
2.2.2 Customer may not assign this Agreement or transfer a Program License to a legal entity separate from Customer without the prior written consent of Herbst. Herbst shall not unreasonably withhold or delay such consent.
At Herbst’s written request, not more frequently than annually, Customer shall furnish Herbst with a signed certification verifying that the Programs are being used pursuant to the provisions of this Agreement and applicable Order Forms.
Herbst may audit Customer’s use of the Programs. Any such audit shall be conducted during regular business hours at Customer’s facilities and shall not unreasonably interfere with Customer’s business activities. If an audit reveals that Customer has underpaid fees to Herbst, Customer shall be invoiced for such underpaid fees. Audits shall be conducted no more than once annually.
3. TECHNICAL SERVICES
3.1 TECHNICAL SUPPORT SERVICES
Technical Support services ordered by Customer will be provided under Herbst’s Technical Support policies in effect on the date Technical Support is ordered.
3.2 CONSULTING AND TRAINING SERVICES
Herbst will provide consulting and training services agreed to by the parties under the terms of this Agreement. All consulting services shall be billed on a time and materials basis unless the parties expressly agree otherwise in writing.
3.3 INCIDENTAL EXPENSES
For any on-site services requested by Customer, Customer shall reimburse Herbst for actual, reasonable travel and out-of-pocket expenses incurred.
4. TERM AND TERMINATION
If not otherwise specified on the Order Form, this Agreement and each Program license granted under this Agreement shall continue perpetually unless terminated under this Article IV.
4.2 TERMINATION BY CUSTOMER
Customer may terminate any Program license at any time; however, termination shall not relieve Customer’s obligations specified in Section 4.4.
4.3 TERMINATION BY HERBST
Herbst may terminate this Agreement or any license upon written notice if Customer materially breaches this Agreement and fails to correct the breach within 30 days following written notice specifying the breach.
4.4 EFFECT OF TERMINATION
Termination of this Agreement or any license shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under any Order Form. The parties’ rights and obligations under Sections 2.1.B, 2.1.C, and 2.2.B, and Articles IV, V, VI and VII shall survive termination of this Agreement. Upon termination, Customer shall cease using, and shall return or destroy, all copies of the applicable Programs.
5. INDEMNITY, WARRANTIES, REMEDIES
5.1 WARRANTIES AND DISCLAIMERS
5.1.1 Program Warranty
Herbst warrants for a period of one year from the Commencement Date that each unmodified Program license will perform the functions described in the Documentation.
5.1.2 Services Warranty
Herbst warrants that its Technical Support, training and consulting services will be performed consistent with generally accepted industry standards. This warranty shall be valid for 90 days from performance of service.
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Herbst does not warrant that the Programs will operate in combinations other than as specified in the Documentation or that the operation of the Programs will be uninterrupted or error-free. Pre-production releases of Programs and computer-based training products are distributed “AS IS.”
5.2 EXCLUSIVE REMEDIES
For any breach of the warranties contained in Section 5.2, Customer’s exclusive remedy, and Herbst’s entire liability, shall be:
5.2.1 For Programs
The correction of Program errors that cause breach of the warranty, or if Herbst is unable to make the Program operate as warranted, Customer shall be entitled to terminate the Program license and recover the fees paid to Herbst for the Program license.
5.2.2 For Services
The re-performance of the services, or if Herbst is unable to perform the services as warranted, Customer shall be entitled to recover the fees paid to Herbst for the unsatisfactory services.
6. PAYMENT PROVISIONS
6.1 INVOICING AND PAYMENT
All fees shall be due and payable 30 days from the invoice date. Any amounts payable by Customer here under which remain unpaid after the due date shall be subject to a late charge equal to 1.5% per month from the due date until such amount is paid. Customer agrees to pay applicable media and shipping charges. Customer shall issue a purchase order, or alternative document acceptable to Herbst, on or before the Effective Date of the applicable Order Form.
The fees listed in this Agreement do not include taxes; if Herbst is required to pay sales, use, property, value-added or other taxes based on the licenses or services granted in this Agreement or on Customer’s use of Programs or services, then such taxes shall be billed to and paid by Customer. This Section shall not apply to taxes based on Herbst’s income.
7. GENERAL TERMS
By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Confidential Information shall be limited to the Programs, the terms and pricing under this Agreement, and all information clearly identified as A party’s Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no act or omission of the other party;
(b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
(c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or
(d) is independently developed by the other party.
Customer shall not disclose the results of any benchmark tests of the Programs to any third party without Herbst’s prior written approval.
The parties agree to hold each other’s Confidential Information in confidence during the term of this Agreement and for a period of two years after termination of this Agreement. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
7.2. GOVERNING LAW
This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the Republic of Ireland.
All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been given when mailed by first class mail to the first address listed in the relevant Order Form (if to Customer) or to the Herbst address on the Order Form (if to Herbst).
To expedite order processing, Customer agrees that Herbst may treat documents faxed by Customer to Herbst as original documents; nevertheless, either party may require the other to exchange original signed documents.
7.5 LIMITATION OF LIABILITY
In no event shall either party be liable for any indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, data or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages. Herbst’s liability for damages hereunder shall in no event exceed the amount of fees paid by Customer under this Agreement, and if such damages result from Customer’s use of the Program or services, such liability shall be limited to fees paid for the relevant Program or services giving rise to the liability.
The provisions of this Agreement allocate the risks between Herbst and Customer. Herbst’s pricing reflects this allocation of risk and the limitation of liability specified herein.
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of Herbst’s proprietary rights in the Programs, no action, regardless of form, arising out of this Agreement may be brought by either party more than two years after the cause of action has accrued.
7.8 EXPORT ADMINISTRATION
Customer agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to assure that neither the Programs nor any direct product thereof are (1) exported, directly or indirectly, in violation of Export Laws; or (2) are intended to be used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
7.9 ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement.
It is expressly agreed that the terms of this Agreement and any Order Form shall supersede the terms in any Customer purchase order or other ordering document. This Agreement shall also supersede all terms of any unsigned or “shrink wrap” license included in any package, media, or electronic version of Herbst-furnished software and any such software shall be licensed under the terms of this Agreement, provided that the use limitations contained in an unsigned ordering document shall be effective for the specified.