GideonSoft Software License Agreement
1. Agreements and Definitions
1.1 Agreement.
The parties agree that the terms and conditions of this License and Hosting Agreement (the “Agreement”) are incorporated into the Master Customer Agreement, Statement of Work, Subcontract, Proposal, or other contract issued thereunder. The terms and conditions of this Agreement apply specifically to the provision of Licensed Product to Licensee by Licensor. In the event of a conflict, the provisions of the License Agreement shall govern. For avoidance of doubt in this Agreement, Horizon Performance is referenced as “Licensor” and Customer is referenced as “Licensee”.
1.2 Certain Definitions.
The following definitions apply to this Agreement:
(a) “Applicable Specifications” mean any functional, performance, operational, compatibility, and other specifications or characteristics of the Licensed Product described or as otherwise agreed in writing between the parties as expressly provided.
(b) “Third Party Software” means any computer programs owned by third parties that may be required to be provided by Licensor pursuant to this Agreement in connection with the use of Licensed Product. The definition of Third Party Software also includes any enhancements, translations, modifications, updates, releases, substitutions, or other changes to Third Party Software that are provided or to be provided by Licensor pursuant to Agreement.
(c) “Documentation” means user guides, operating manuals, education materials, product descriptions and specifications, technical manuals, supporting materials, and other information relating to the licensed product or used in conjunction with the Licensed Product, whether distributed in print, magnetic, online, electronic, or video format.
(d) “Licensed Product” means the electronic platform that will be provided by Licensor to Customer. The Licensed Product may be in a hosted or onsite environment. The Licensed Product shall be any software developed by Licensor and used by Licensee or end users of Licensee.
(e) “Effective Date” is the same as set forth in the Master Customer Agreement, Statement of Work, Subcontract, Proposal, or other applicable contract. If there is no other binding contract then the Effective Date shall be the signature date of this Agreement.
(f) The “Platform” means any version of the Licensor’s platform which is operated with the primary purpose of optimizing the recruitment, development, or monitoring of performance.
(g) “Aggregate Data” means summary data gathered as a result of web analytics, platform reporting or database queries but in no event shall Aggregate Data include the identities of any person or entity nor any data which is specific to a particular person or entity.
(h) “End User” means an individual end-user accessing the Licensed Product through Licensee.
2. License of Product
2.1 Grant of License.
Licensor hereby grants to Licensee a non-exclusive, run-time version, non-transferrable, fixed-term, single site instance and license (the “License”) to access, use, promote, and make available on behalf of Licensee End-Users the Licensed Product and to use any related Documentation, subject to the limitations, terms and conditions set forth below and elsewhere in this Agreement.
If there is any other binding agreement between the Parties in which Licensor software is used and that agreement is terminated, then the grant of any licenses shall terminate as well.
(a) Licensee Grant
Licensee and End Users shall be granted access to the run-time version of Licensed Product through the Internet over a web browser or local device as mutually agreed upon.
(b) Limitations on Usage
The License is limited to use by Licensee for the purpose of making the Licensed Product available to End Users. Licensee shall comply with all applicable laws, and the scope of use defined in the Master Customer Agreement, SOW, or Proposal.
(c) Limitations on Access
Licensee will limit its use and access to those employees, contractors, or End Users directly involved in its operation.
(d) Other Limitations
Licensee shall not reverse engineer, reproduce, or distribute the Licensed Product outside the scope of this Agreement.
(e) Reporting of Violations
Licensee will promptly report any actual or suspected violation of this Agreement.
(f) No Alteration of Marks
Licensee will not remove or alter any proprietary notices.
(g) End User License Agreement
All End Users must agree to a EULA. Licensor may block use that violates EULA or involves Objectionable Matter.
(h) Suspension of Activity
Licensor reserves the right to suspend disruptive or illegal activity and will notify Licensee when feasible.
(i) Limitations on Sublicenses
Except as explicitly permitted, Licensee may not sublicense, sell, or transfer the License.
(j) Ownership Rights
Licensor retains all rights to the Licensed Product, Platform, and derivative works. Feedback may be used by Licensor without obligation.
(k) Ownership of Data
Licensee retains ownership of all data used in conjunction with this Agreement.
(l) Internet Browsers
Licensor will support commonly used Internet browsers. Licensee is responsible for its own systems.
(m) Trademark License and Ownership
Licensee authorizes use of its trademarks for product promotion. Ownership of trademarks remains with each party respectively.
(n) Acceptance
The Licensed Product shall be considered accepted by Licensee upon delivery.
3. Term
3.1
The Term shall be as defined in the applicable contract. If none exists, it shall be determined by Licensor. Renewals shall extend this License Agreement as well.
4. Maintenance and Support
4.1
Licensor will provide maintenance and support during the Term. Licensee may only receive support from Licensor.
(a) Non-conformance Reporting
Licensee will report issues, and Licensor will investigate and correct as appropriate.
(b) Upgrades
Licensor will provide upgrades that do not impair material functionality.
(c) New Functionality
May be offered to Licensee at commercially reasonable rates under written agreement.
5. Warranty
The following is in addition to any warranties in the Master Customer Agreement.
5.1
Licensor warrants that the Licensed Product will substantially conform to the agreed specifications.
5.2
No warranty that the software is error-free or will meet Licensee’s needs. No warranty claims after one year post-warranty period.
5.3
Uptime will match the hosting provider’s guarantees. Hosting will remain within the U.S. Licensor may change hosting providers.
5.4
Licensor has the rights to any third-party software included.
5.5
EXCEPT AS PROVIDED, LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED.
6. Fees
6.1
Fees are as outlined in the applicable contract.
7. Dispute Resolution
7.1
If no contract exists, the following applies:
Disputes will first attempt resolution through good faith negotiations. If unresolved, binding arbitration in North Carolina under AAA Commercial Rules applies.
Arbitration will be confidential. Performance under this Agreement continues during any dispute process.
8. Termination
8.1
Termination rights are defined in the Master Customer Agreement or related contract.
9. Indemnification and Infringement
9.1
As set forth in the applicable agreement.
10. Remedies and Liabilities
10.1
Licensor is not liable for indirect damages. Maximum liability is limited to the license fees paid in the past three years.
11. Miscellaneous
11.1 Force Majeure
As set forth in the applicable agreement.
11.2 Applicable Law; Jurisdiction
This Agreement is governed by U.S. law.
11.3 Survival of Terms
Terms intended to survive termination shall do so.
11.4 Entire Agreement
This Agreement constitutes the complete agreement unless amended in writing.
11.5 Agency
This Agreement does not create a joint venture or agency relationship.