This Software License and Hosting Agreement (“Agreement”) is a legal agreement by and between you (“Licensee”) and Tracen Technologies, Inc. (“Developer”). By purchasing, downloading, installing, and/or using the Software, Licensee agrees to be bound by and comply with the terms and conditions set forth in this Agreement.
Developer has developed and licenses to users its software program marketed under the name COMMANDmobile® (the “Software”).
Licensee desires to utilize a copy of the Software in accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Developer and Licensee agree as follows:
Subject to the terms and conditions of this Agreement, Developer hereby grants to Licensee a limited, non-exclusive, non-transferable, non-sublicenseable, non-assignable, and revocable license to use the Software solely for Licensee’s lawful, internal business or personal purposes as set forth in this Agreement. Title to the Software shall remain vested in Developer, and nothing in this Agreement will give or convey any right, title, or interest therein to Licensee except as a licensee under the terms of this agreement.
In addition to the restrictions inherent in the scope of the license grant, Licensee shall not, in whole or in part, modify, reverse engineer, decompile, copy, duplicate, reproduce, create derivative works based on the Software, sublicense the Software, or transfer or otherwise convey the Software, or any right therein to any other person or other entity without the prior written consent of Developer which may be withheld in the Developer’s sole discretion.
3. Subscriptions (COMMANDmobile® SE).
This Agreement is effective until terminated by Licensee or Developer. Licensee rights under the license granted herein shall terminate automatically without notice from Developer if Licensee fails to comply with any terms or conditions of this Agreement. Upon termination of this Agreement, Licensee shall cease all use of the Software and destroy all copies, full or partial, thereof and Licensee will no longer have access to Developer’s software.
5. Wireless Access Charges.
Certain Software functions and services require data access, and the provider of data access for Licensee device may charge Licensee data access fees in connection with use of the Software. Licensee is solely responsible for any data access or other charges incurred.
6. Ownership of Intellectual Property
A. Development and Modifications Developer shall own all proprietary rights to the Software developed pursuant to this Agreement.
B. Rights Granted by Licensee to Developer in Aid of the Hosted Solution Licensee hereby grants to Developer a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to do the following to the information, data, files, documents, images or any other information provided by Licensee, in any form or format (the “Content”), to the extent necessary in the performance of hosting services:
(a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Content; and
(b) make archival or back-up copies of the Content. Except for the rights expressly granted herein, Developer does not acquire any right, title or interest in or to the Content or any derivative versions thereof, all of which rights shall remain solely with Licensee.
Any feedback, data, answers, questions, comments, suggestions, ideas or the like that Licensee sends to Developer relating to the Hosting Solution will be treated as being non-confidential and non-proprietary. Developer may freely use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any lawful purpose. Developer’s trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Developer and no license, right or permission for Licensee to use or reproduce the foregoing is granted or implied in this Agreement. Licensee shall not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Developer which consent may be withheld in Developer’s sole discretion. Developer will maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Developer to Licensee. Developer may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.
7. Confidential Information
A. All information relating to Licensee that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Developer and will not be disclosed or used by Developer except to the extent that such disclosure or use is necessary in the performance of hosting services.
B. Licensee agrees to observe confidentiality with respect to the Software and will not copy, reproduce or otherwise disseminate it to third parties.
8. Warranty of Title
Developer hereby represents and warrants to Licensee that Developer is the owner of the Software or possesses sufficient rights to grant to Licensee the rights set forth in this Agreement. In the event of any breach or alleged breach of the foregoing representation and warranty, Developer shall, in its sole discretion,: i) procure, at Developer’s expense, the right to use the Software; ii) replace the Software or any part thereof that is the cause of such breach and replace it with Software of comparable functionality which satisfies this warranty; or iii) allow Licensee to terminate the Agreement without further license fee payment or penalty. The foregoing sets forth the Licensee’s sole remedy for breach of this warranty of title.
9. Warranty Disclaimer.
DEVELOPER’S WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, NON-INFRINGEMENT, ACCURACY, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES AGREE THAT THIS AGREEMENT IS NOT SUBJECT TO THE VIRGINIA UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, §59.1-501.1, ET. SEQ., AND HEREBY WAIVE ANY APPLICATION OF SUCH LAW TO THIS AGREEMENT TO THE FULL EXTENT PERMISSIBLE.
10. Limitation of Liability.
Developer shall not be responsible for, and shall not pay, any amount of punitive, incidental, special, consequential or other indirect damages, whether based on lost revenue or otherwise, regardless of whether Developer was advised of the possibility of such losses in advance. In no event shall Developer’s total liability hereunder exceed the amount of license fees paid by Licensee during the three (3) month period prior to the date the claim arises, regardless of whether Licensee’s claim is based on contract, tort, strict liability, product liability or otherwise.
11. Indemnification of Developer.
Licensee will indemnify and hold Developer harmless against any claims incurred by Developer arising out of or in conjunction with Licensee’s use of the software, as well as all reasonable costs, expenses and attorneys’ fees incurred therein.
Nothing in this Agreement will create or imply an agency relationship between Developer and Licensee, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
13. Governing Law and Venue.
This Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia without reference to its conflicts of laws provisions. The parties agree that any and all disputes arising from or relating to the formation, performance and/or breach of this Agreement shall be brought in either the United States District Court for the Eastern District of Virginia, Alexandria Division, or the state courts located in Prince William County, Virginia, provided only that such court possesses proper subject matter jurisdiction. The parties hereby waive any challenge to the exercise of personal jurisdiction by such courts, as well as defenses and motions based upon improper venue, inconvenience of forum or the like in any action or suit brought relating to or arising from this Agreement.
14. No Assignment.
Neither this Agreement nor any interest in this Agreement may be assigned by Licensee without the prior express written approval of Developer which consent may be withheld in Developer’s sole discretion.
15. Force Majeure
Neither party shall be deemed in default of this Agreement to the extent that performance of their obligations are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials and supplies, or any other events or circumstances beyond the reasonable control of such party provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
18. Contact Information.
Licensee may contact Developer at:
Tracen Technologies, Inc.
9720 Capital Ct. Suite 401
Manassas, VA 20110