Server Software License Agreement

APPLIGENT INC d/b/a Appligent Document Solutions

Server Software License Agreement

Please read this Server Software License Agreement (“Agreement”) carefully before using the Software.  This is a legally binding agreement between you (“you” or “Licensee”) and APPLIGENT INC. d/b/a Appligent Document Solutions (“Appligent”).  By using any portion of the Software, you accept all terms and conditions of this Agreement.  If you have not read the Agreement, do not understand or agree to be bound by the Agreement, or are not able to consent to be bound by the Agreement (e.g., if you are not old enough to enter into a binding legal contract), do not use the Software.

1. License Grant:  Subject to the terms and conditions of this Agreement, Appligent grants you a limited, revocable, personal, perpetual, non-exclusive, non-transferrable (except as provided in Section 3 below), non-assignable (except as provided in Section 3 below), non-sublicensable license to access and use, solely for your internal business purposes, ONE copy of the object code of the enclosed software (“Software”) on a SINGLE Server of up to four (4) cores, or on a single server with more than four (4) cores if so provided in an applicable Purchase Agreement.  The license granted under this Section 1 shall be referred to as the “License.”  Each virtual hardware partition, or guest operating system, shall be deemed a separate server that requires a separate License.  For licensing purposes, a virtual hardware partition contains the same number of cores as its underlying physical hardware system.  You may make one backup copy of the Software for disaster recovery purposes only, provided your backup is not installed or used on any computer. You may not run the Software over a network from a mounted or mapped drive. You may not copy the Software to use for development, testing, or staging purposes.

Updates to the Software may be licensed to you by Appligent with additional or different terms.

2. Restrictions: You may not, and may not allow any third party to, resell, transfer (except as provided in Section 3 below), rent or lease the Software without the specific agreement of Appligent. You may not, and may not allow any third party to, reverse engineer, decompile, disassemble or otherwise reduce the Software to any human perceivable form.  You shall not remove or alter any copyright notice or any other notices that appear on the Software.  You may not, and may not allow any third party to, modify, create derivative works based upon, adapt, translate, rent, lease, make available on a subscription or SaaS basis or loan the Software or any part thereof.  SaaS and Subscription based licensing may be available under a separate OEM agreement.  You may not use the Software for any timesharing or service bureau purposes or otherwise use or allow the use of the Software for the benefit of any third party (including by way of multiplexing or pooling) other than as expressly permitted by Appligent in writing.  You shall not generate income from any third party’s use of the Software.

You shall use best efforts to safeguard the Software so as to insure that no unauthorized party has access to the Software and that no party makes any unauthorized copy of the Software.   You shall use best efforts to assist Appligent in identifying and preventing any unauthorized use, copying, or disclosure of Software or any portions thereof or any of the algorithms or the logic contained in the Software.  You shall advise Appligent immediately in the event you learn, or have reason to believe, that any party to whom you have given access to the Software has violated, or intends to violate, the terms of this Agreement, and you will cooperate with Appligent in seeking injunctive or other equitable relief against any such person.

You shall be solely responsible to Appligent for the observance and compliance with all terms and conditions of this Agreement  by  your  employees,  contractors,  service  providers,  agents  and  any  other  third  party  who  has  been permitted access to the Software as a result of your action or inaction, whether or not such party is actually permitted to have such access under the terms of this Agreement.

For the avoidance of doubt, no license is granted in the source code of the Software.  Except as otherwise expressly permitted under this Agreement, you shall not have any rights to use any Software, in whole or in part, for any other use or purpose whatsoever and any right not expressly granted to you under the terms of this Agreement shall be reserved to Appligent and its suppliers.

3. Transfer and Assignment: You may transfer the Software, and assign your License to the Software, with a copy of this Agreement and all written materials to another party only on a permanent basis and only if the other party accepts the complete terms and conditions of this Agreement.  Appligent must be notified of the intended transfer in writing, at least thirty (30) days prior to the transfer.  Appligent may assign or delegate any right, interest, obligation, or duty under this Agreement upon notice to you.   Any purported transfer or assignment that does not comply with this section shall be void and ineffective.

4. Termination:   If you breach this Agreement, the License terminates automatically and immediately and you must destroy or return to Appligent all your copies of the Software.

5. Limited Warranty:   Appligent warrants the media on which the Software is provided to be free from defects in materials under normal use for a period of ninety (90) days from the date of delivery as evidenced by your purchase receipt.  Your sole and exclusive remedy for breach of this warranty is replacement of the media upon delivery of the defective media to Appligent.

EXCEPT AS EXPRESSLY WARRANTED HEREIN, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, DESIGN, OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING FROM A PARTICULAR COURSE OF DEALING, USAGE, OR TRADE PRACTICE, WITH REGARD TO THE SOFTWARE AND ACCOMPANYING DOCUMENTATION.    NO  ORAL  OR  WRITTEN  INFORMATION  OR  ADVICE  GIVEN  BY  APPLIGENT SHALL CREATE A WARRANTY AND YOU MAY NOT RELY UPON SUCH INFORMATION OR ADVICE. APPLIGENT DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.   THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE SHALL BE WITH YOU.

6. Ownership:  All right, title, interest, ownership, and patent rights, trademark rights, copyrights, and trade secret rights (collectively, “Intellectual Property Rights”) in and to the Software and all copies, modifications, enhancements, and derivative works of the Software vest in and belong to Appligent and/or its suppliers.  This Agreement confers no title or ownership in the Software or any copies, modifications, enhancements, or derivative works of the Software and is not a sale of any rights.  The structure, organization, and code of the Software are the valuable trade secrets, confidential information, and Proprietary Information (as defined below) of Appligent and/or its suppliers. The Software is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant you any rights in the Software or any copies, modifications, enhancements, and derivative works of the Software.  You agree you will not take any action that jeopardizes Appligent’s proprietary rights or acquire any right in the Software, including any actions in violation of Section 2  (Restrictions).  You hereby assign and shall assign any rights you have or may have in any modifications, enhancements, and derivative works of the Software that are made by you, whether such modifications, enhancements, and derivative works of the Software are permitted by this Agreement or not.  If required, you specifically agree that you will obtain, at Appligent’s reasonable request, the execution of any instrument that may be appropriate to assign these rights to Appligent or perfect these rights in Appligent’s name. Appligent’s rights to modifications and enhancements of the Software are not an implied license to you to make any modifications or enhancements to the Software.

7. Proprietary Information:  In the course of carrying out the provisions of this Agreement, you may receive or acquire from Appligent information or data pertaining to specifications, drawings, sketches, models, samples, computer programs, methods, concepts, know-how, techniques, processes, and other technical or business information that Appligent desires to protect against unauthorized use or further disclosure.   For purposes of this Agreement, “Proprietary Information” shall mean:  (i) any information in written, other tangible, or electronic form which is labeled as “Confidential”, “Proprietary” or with a legend of similar import; (ii) any Software in any form (including related documentation), whether or not labeled in accordance with the preceding; (iii) any and all trade secrets relating to Appligent’s business, products, services, or technologies; (iv) any and all information relating to Appligent’s business, financial information, customers, schedules, projects, programs, products, and services not generally known to the public; and (v) information orally disclosed to you or received by you through observation and identified by Appligent as confidential at the time of such disclosure.  For the avoidance of doubt, the Software is Proprietary Information of Appligent.

The obligations in this section shall not apply to any Proprietary Information received from Appligent which is: (i) lawfully in your possession, with no restriction on use or disclosure, prior to its acquisition from Appligent; (ii) received in good faith by you, with no restrictions on use or disclosure, from a third party not subject to any confidential obligation to Appligent; (iii) now or later becomes publicly known through no breach of confidential obligation by you; or (iv) independently developed by or for you without any reliance on or use of confidential information of Appligent.

Appligent shall remain the exclusive owner of its Proprietary Information and you shall not use or disclose Appligent’s Proprietary Information except for the purposes expressly permitted by this Agreement.  You shall exercise the same degree of care and protection with respect to Appligent’s Proprietary Information that you exercise with respect to your own proprietary information and shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any of Appligent’s Proprietary Information other than (i) your users for the purposes that are expressly permitted in this Agreement; and (ii) any Appligent affiliates and third party consultants to Appligent that Appligent identifies to you as a party that has a need to know the information regarding Appligent’s exercise of any of its rights or obligations under this Agreement.

8.          Limitation of Liability:

a. IN NO EVENT WILL APPLIGENT, ITS AFFILIATES, OR ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES,  AGENTS,  CONSULTANTS,  OR  ITS  SUPPLIERS  BE  LIABLE  TO  YOU  (OR TO  ANY OTHER THIRD PARTY PERMITTED ACCESS TO OR USE OF THE SOFTWARE UNDER THIS AGREEMENT) FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES, WHETHER ARISING IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE (INCLUDING BREACH OF WARRANTY, NEGLIGENCE, AND STRICT LIABILITY IN TORT), INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM DELAY; LOSS OF GOODWILL; LOSS OF, DAMAGE TO, OR INTERRUPTION OF DATA OR NETWORKS; FOR ANY LOSS OF BUSINESS PROFITS, REVENUE, OR SAVINGS (ACTUAL OR ANTICIPATED); LOSS OF INFORMATION OR USE; OR INABILITY TO USE ANY SOFTWARE PROVIDED BY Appligent PURSUANT TO THIS AGREEMENT, EVEN IF YOU OR ANY OTHER THIRD PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

b.  IN NO EVENT SHALL THE AGGREGATE LIABILITY OF APPLIGENT, ITS AFFILIATES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, AND SUPPLIERS FROM ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT  EXCEED THE AGGREGATE OF THE FEES PAID TO APPLIGENT FOR THE SOFTWARE FOR WHICH THE CAUSE OF ACTION ACCRUED IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE WHEN THE CAUSE OF ACTION ACCRUED. THIS  LIMITATION  ON  THE  AMOUNT  OF  LIABILITY  SHALL  APPLY  WHETHER  A CLAIM ARISES IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, INCLUDING BREACH OF WARRANTY. THIS LIMITATION SHALL ALSO SPECIFICALLY SURVIVE A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES THAT MAY BE  PROVIDED IN THIS AGREEMENT.

9. Third-Party Products:  Certain third-party products that are used with the Software may be separately licensed to you by third parties for usage with the Software.  In this respect, you acknowledge and agree that Appligent is not the supplier of such third-party products and shall have no responsibility whatsoever for any such third-party products.

10.    Compliance with Laws:  You shall use the Software made available by Appligent hereunder in compliance with all applicable federal, state, and local laws, and regulations.  You may not export or reexport the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. The Software may not be exported or reexported (1) into or to a national or resident of any U.S. embargoed country as specified in the State Department’s Embargoed Country List or (2) to anyone on the U.S. Treasury Department’s Embargoed Country List for Exports or (3) to anyone on the U.S. Department of Commerce’s Embargoed Country List.  By using the Software you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.

11.          U.S. Government End Users:

a. The Software and Documentation are “Commercial Item(s)” as defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) only with those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.  Appligent Inc. 22 E. Baltimore Avenue, Lansdowne PA 19050.

b. You agree that when licensing Appligent Software for acquisition by the U.S. Government, or any contractor therefore, you will license consistent with the policies set forth in 48 C.F.R. 12.212 and 48 C.F.R. 227-7202-1 through 227-7202-4, as applicable.

12.   Compliance with Licenses: If you are a business or organization, you agree that upon request from Appligent or Appligent’s authorized representative, you will within thirty (30) days of such request fully document and certify that you are in conformity with your valid licenses.  Appligent may, at its expense, appoint an independent third party to verify the usage and number of copies and installations of the Software in use by the you.

13.    Governing Law and Choice of Venue: The construction, interpretation, and performance of this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without application of its conflicts of laws principles. All actions under this Agreement shall be brought in a court of competent subject matter jurisdiction in the Commonwealth of Pennsylvania and you agree to accept and submit to the personal jurisdiction of such court.  Under no circumstances shall the Uniform Computer Information Transactions Act (UCITA), or any version thereof, apply to this Agreement.

14.    Entire Agreement:  Except for any applicable Purchase Agreement, this Agreement is the entire agreement between you and Appligent regarding the license of Server Software and it supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the license of such Software.  The terms of this Agreement may only be changed by a written amendment signed by an officer of Appligent.

15.    Severability:   If any part of this Agreement is found void or unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms.

16.    Non-Waiver:   Appligent’s failure at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or equity, or to exercise any option herein provided will in no way be construed to be a waiver of such provisions, rights, remedies, or options or in any way to affect the validity of this Agreement.

17.    Survival:  Any terms of this Agreement, which by their nature extend beyond the date this Agreement ends, shall remain in effect until fulfilled and shall apply to respective permitted successors and assignees.