GIDEONSOFT SOFTWARE LICENSE AGREEMENT
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.
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. For clarification, if there is any other binding agreement in place between the Parties in which Licensor software is used and that binding 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 who wish to use the features and functionality of the Licensed Product. Licensee shall comply with all applicable laws, rules and regulations regarding Licensee’s use of the Licensed Product. The purposes set forth in the Master Customer Agreement, State of Work, or Proposal shall be considered in determining the scope of purpose of the software.
(c) Limitations on Access. Licensee will limit its use of, and access to, the Licensed Product and Documentation to those Licensee employees, Licensee contractors, or Licensee End Users who are directly involved in the use and operation thereof as permitted by this Agreement.
(d) Other Limitations. Licensee will not, and will not knowingly permit any other person to, disassemble, decompile, reverse engineer, or otherwise recreate any of the Licensed Product or any component thereof. The Licensed Product will not be used for any purpose by any division, department, or subsidiary other than within the scope of this agreement. Other than as expressly set forth herein, Licensee shall not use, access, reproduce, create derivative works of, modify, license, transfer or distribute the Licensed Product without Licensor’s prior written consent. Licensee shall not use and access the Licensed Product in order to develop any competitive product or service or for benchmarking or other comparative analysis without Licensor’s prior written consent.
(e) Reporting of Violations. Licensee will promptly report to Licensor any actual or suspected violation of this Agreement by any person or entity.
(f) No Alteration of Marks. Licensee will not alter or remove or attempt to alter or remove any copyright, trade secret, patent, proprietary and/or other legal notices contained on any components of the Licensed Product.
(g) End User License Agreement. Licensee agrees not to submit, directly or indirectly (in connection with its use of, or its operations related to the License) any material that is illegal, misleading, defamatory, indecent or obscene, in poor taste, threatening, infringing of any third-party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively “Objectionable Matter”). Licensor will require all End Users to agree to an End User License Agreement or similar agreement (“EULA”) that defines acceptable and unacceptable uses of the Licensed Product and otherwise governs the End-User’s access and use of the Licensed Product, all of which shall be consistent with this Agreement and the Software and Services Schedule. Licensor reserves the right, but not the obligation, to remove any data that constitutes Objectionable Matter or violates any Licensor rules regarding appropriate use and to block, prohibit or suspend use by any End User in violation of the terms of the EULA, including as relates to Objectionable Matter.
(h) Suspension of Activity. Licensor reserves the right to suspend any activity that is disrupting (or causing harm to) Licensor’s computers, systems or infrastructure or to other parties, or is in violation of state or federal laws regarding “spam,” Licensor will make commercially reasonable efforts to provide Licensee with written or electronic notice prior to such suspension; provided, however, that if prior notice is not feasible under the circumstances, Licensor will provide Licensor with written or electronic notice of such suspension (including the justification for such suspension) as soon thereafter as possible.
(i) Limitations on Sublicenses. Except for the sublicenses to End Users set forth herein, the License shall not be sublicensed, sold or transferred in any other manner, in whole or in part, by Licensee.
(j) Ownership Rights. Licensee agrees and acknowledges that Licensor owns and will continue to own all right, title, and interest in and to the Licensed Product and the Platform (including all Documentation) and all modifications, improvements, upgrades, and derivative works in any way related thereto, and all related Intellectual Property. If Licensee or any End-User provides to Licensor any ideas, comments, feedback or other data regarding the License Product or End-User experience (“Feedback”), Licensor shall have the right to use such Feedback in its sole discretion, including improving the Licensed Product or creating new products and services, all without any further consideration, attribution or other obligation to Licensee or the End-User.
(k) Ownership of Data. Licensee will maintain ownership of all data used in conjunction with this license agreement.
(l) Internet Browsers. Licensor will use reasonable efforts to ensure that the Licensed Product is fully compatible and operational with widely and commercially available Internet browsers that are generally used by the public such that Licensee and the End Users can access and use the Licensed Product through generally available consumer hardware and software. Notwithstanding the foregoing, Licensee and the End Users will be responsible for providing and maintaining their own computer and telecommunications systems required for access to the internet and use of the Licensed Product.
(m) Trademark License and Ownership. Licensee hereby authorizes Licensor to use certain trademarks, service marks and trade names of Licensee (“Licensee Marks”) during the term hereof and solely as necessary to promote the Licensed Product. Licensor shall not adopt, use, or register, whether as a corporate name, trademark, service mark or other indication of origin, any of the Licensee Marks, or any word or mark confusingly similar to the Licensee Marks in any jurisdiction. Licensor shall not remove or efface any proprietary notices on or surrounding the Licensee Marks and shall display with the Licensee Marks all trademark, service mark or other proprietary designations supplied by Licensee. Any trademarks that are the property of Licensor or Licensee shall remain the property of each, respectively.
(n) The Licensed Product shall be considered accepted by Licensee upon delivery.
3.1 The Term of the Agreement shall be as set forth in the Master Customer Agreement, Statement of Work, Subcontract, Proposal, or other contract issued thereunder. If there is no applicable contract, the Term shall be determined by Licensor. Any renewals or extensions of Term shall also extend the term of this License Agreement.
Maintenance and Support
4.1 During the Initial Term and any duly approved extensions, Licensor will provide maintenance and support services. Licensee is not permitted to receive any support related to Licensed product other than from Licensor. Licensor shall provide the Support and Maintenance Support during the Term in a professional and workmanlike manner consistent with generally accepted industry standards for this type of support services. Subject to the payment of any applicable fees, Licensee agrees:
(a) As soon as practicable after discovery of a failure of the Licensed Product to conform to the requirements as set forth in Statement of Work, Licensee will deliver to Licensor a written statement and supporting documentation (if available) describing in detail the alleged non-conformance. Licensor will use reasonable efforts in good faith to identify the cause of the alleged non-conformance and effect the necessary corrections. The methods and techniques for correcting non-conformances and implementing corrections will be at the sole discretion of Licensor.
(b) From time to time and, Licensor will make available to Licensee upgrades that are generally available to its customers to the then current generally available Licensed Product, provided, however, that such upgrades shall not remove or impair the material features or functionality of the Licensed Product or cause the Licensed Product to materially fail to conform to the Applicable Specifications.
(c) From time to time and at its sole option, Licensor may make generally available to its customers new functionality of the Licensed Product. Licensor will offer any such functionality to Licensee at a commercially reasonable price and other terms and conditions as the parties mutually agree in writing, which written agreement will become an amendment to this Agreement. For purposes of this Agreement, new functionality shall be deemed to mean functionality of a type not previously offered in connection with the Licensed Product and which is generally made available by Licensor to its customer base for a fee.
The foregoing representations and warranties are in addition to those representations and warranties set forth in Master Customer Agreement.
5.1 Licensor represents and warrants that throughout the Term, the Licensed Product will substantially conform to the Applicable Specifications in accordance with the Statement of Work or Subcontract.
5.2 Except as otherwise expressly set forth in the Statement of Work or Subcontract, Licensor does not warrant that the functions contained in the Licensed Product will meet Licensee’s requirements or that the operation of the Licensed Product will be uninterrupted or error free. Further, Licensor will have no responsibility with respect to any Licensee hardware or infrastructure. No action for breach of any warranty may be commenced more than one year following expiration of the applicable warranty.
5.3 Licensor will ensure the same up-time and performance that Licensor’s third-party hosting company guarantees to Licensor, with the exception of downtime caused by scheduled maintenances or upgrades to The Platform or any component thereof. Licensor will notify both Licensee and End Users of scheduled maintenances and upgrades in advance. Licensor, at Licensor’s sole discretion, has the right to change hosting companies. For avoidance of doubt, the hosting facility (and the disaster recovery facility) will, at all times during the Term, be located within the United States. If Licensee is using own infrastructure, licensee is responsible for service levels, availability, and maintenance.
5.4 Licensor represents and warrants that with respect to any Third-Party Software included within the Licensed Product, or used in connection with Licensor’s performance of Support and Maintenance, Licensor has all rights necessary to provide such Third-Party Software to and/or use such Third Party Software for the benefit of Licensee.
5.5 EXCEPT AS PROVIDED IN THIS ARTICLE, LICENSOR MAKES AND LICENSEE RECEIVES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED. LICENSOR DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE LICENSED PRODUCT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE.
6.1 Fees and payments are as set forth in the Master Customer Agreement, Statement of Work, Subcontract, Proposal, or other contract issued thereunder.
7.1 Disputes and resolutions thereof are set forth in the Master Customer Agreement, Statement of Work, Subcontract, Proposal, or other contract issued thereunder. If there is no applicable contract, then the following Dispute Resolution shall apply.
The Parties will attempt in good faith to resolve any dispute or claim arising out of or in relation to this Agreement through negotiations between members of each of the Parties with authority to settle the relevant dispute. If the dispute cannot be settled amicably within fourteen (14) days from the date on which either Party has served written notice on the other of the dispute then the remaining provisions of this Clause shall apply.
All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of North Carolina. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator experienced in Software and Services similar to Licensor and shall include a written record of the arbitration hearing. The parties reserve the right to object to any Arbitrator who shall be employed by or affiliated with a competing organization or entity (including Licensor or Licensee).
Performance of this Agreement shall continue during arbitration proceedings or any other dispute resolution mechanism pursuant to this Clause. No payment due or payable by the Licensee shall be withheld on account of a pending reference to arbitration or other dispute resolution mechanism except to the extent that such payment is the subject of such dispute.
8.1 The rights of each party to terminate this Agreement, and the effect of such termination, are set forth in the Master Customer Agreement, Statement of Work, Subcontract, Proposal, or other contract issued thereunder.
Indemnification and Infringement
9.1 Indemnification provisions are set forth in the Master Customer Agreement, Statement of Work, Subcontract, Proposal, or other contract issued thereunder.
Remedies and Liabilities
10.1 In no event shall Licensor or its suppliers be liable to Licensee or end users or any other person or entity for any indirect, incidental, special, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of the use or inability to use the Licensed Product. In any case, Licensor’s maximum aggregate liability in connection with this agreement shall be limited to the amount of licensee fees paid by Licensee for the software for the preceding three years.
11.1 Force Majeure. Force Majeure is set forth in the Master Customer Agreement, Statement of Work, Subcontract, Proposal, or other contract issued thereunder.
11.2 Applicable Law; Jurisdiction. This Agreement shall be governed by the laws of the United States, without regard to its conflict of law provisions.
11.3 Survival of Terms. Termination or expiration of this Agreement for any reason shall not release either party from any liabilities or obligations set forth in this Agreement which (a) the parties have expressly agreed shall survive any such termination or expiration, or (b) remain to be performed or by their nature would be intended to be applicable following any such termination or expiration.
11.4 Entire Agreement. This Agreement, together with the Master Customer Agreement, Statement of Work, or Subcontract, constitute the entire and exclusive statement of the agreement between the parties with respect to its subject matter and there are no oral or written representations, understandings or agreements relating to this Agreement which are not fully expressed in the Agreement. This Agreement shall not be amended except by a written agreement signed by both parties.
11.5 Agency. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise between the parties.