Software License Agreement

 

This Agreement (the “Agreement”) governs the use of the software known as Commandpoint (the “Software”).  This Agreement is a legally binding contract between you (“Licensee”) and Nanonation Incorporated, a Delaware corporation (“Licensor”) that sets forth the terms and conditions that govern Licensee’s use of the Software.  By accessing or using the Software, or by executing a Statement of Work that references this Agreement (the “Statement of Work”), Licensee acknowledges that Licensee has read, understood, and agrees to be bound by all of the terms and conditions set forth in this Agreement.

 

1. Definitions.

a. “Intellectual Property Rights” means any and all known or hereafter existing worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications, know-how, moral rights, contract rights, and other proprietary rights, and all registrations, applications, renewals, extensions, and combinations of the foregoing.

b. “Terminal” or “Terminals” means a player or other interface of any type used to publish or display content managed by Licensee and includes, but is not limited to, a device having a unique identifier, commonly known as a Terminal ID, established within the Software’s management system.

c. “Updates” means a software release containing error corrections and any correction and updates to the associated documentation.

d. “Upgrades” means a software release containing new enhancements, features or functionality and the associated documentation.

e. “Licensee Reserved Technology” means any and all Intellectual Property Rights, including any technology, software and hardware, that was either previously owned, developed or created by, or licensed to, Licensee or its subcontractors and used in connection with the Software.

 

2. Grant of License.

a. License Grant. Subject to the full satisfaction of all of Licensee’s payment obligations to Vendor, and further subject to the Licensee’s payment of the annual hosting fees and uninterrupted use of the Software, Licensor hereby grants to Licensee a perpetual (unless terminated in accordance with this Agreement), royalty-free, fully-paid, non-transferable, non-sublicensable, worldwide license to use or access the Software for its own internal business purposes for one (1) Termina If Licensor wishes to deploy the Software on multiple Terminals, Licensee must purchase additional software licenses as needed.

b. Fees. In exchange for the use of and access to the Software, Licensee shall pay Licensor the fees as set forth in the Statement of Work.  All fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments.

c. Restrictions. Licensee agrees not to: (i) sublicense, lease, sell, rent, loan, or otherwise transfer the Software to any third party without the prior written consent of Licensor; (ii) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software; (iii) otherwise use or copy the Software unless expressly allowed herein; (iv) modify, change, revise or create derivative works from the Software without the express written consent of the Licensor; or (v) remove any copyright or proprietary legends from the Software.

d. Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee in this Agreement.  Except for the limited rights and licenses expressly granted under this agreement, nothing in this Agreement grants, by implication, waiver, or estoppel, or otherwise, to Licensee or any third party, any intellectual property rights or other right, title, or interest in or to the Software.  Licensor retains ownership of all ancillary information and metadata related to the use of the Software.

e. Hardware. In the event Licensee purchases any third-party products or hardware from Licensor in connection with the Software, title to such third-party products or hardware shall transfer to Licensee at the earlier of: (a) the time of payment in full of the invoice related to such third-party products or hardware, or (b) the delivery of such third-party products or hardware.

f. Custom Services. Notwithstanding anything herein to the contrary, to the extent Customer elected to receive custom services as specified in any Statement of Work (collectively, the “Custom Deliverables”), the following provisions shall apply and supersede Sections 2(a) and 2(d) of this Agreement:

 

To the extent permissible under applicable law, the Custom Deliverables will be considered work made for hire pursuant to the U.S. Copyright Act, 17 U.S.C. §§ 101 et seq. Customer is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the Custom Deliverables. Licensor hereby irrevocably assigns to Customer, without additional consideration, all right, title, and interest throughout the world in and to the Custom Deliverables, including all Intellectual Property Rights therein.  In the event any Custom Deliverables incorporate Third-Party Products, Customer hereby acknowledges and agrees that any rights granted by Vendor to such Third-Party Products are subject to the rights of Vendor, if any, provided by such third parties; and Vendor shall retain exclusive ownership interest in the Software and any other proprietary materials or content that it supplies to Customer during performance under this Agreement or the Statement of Work, whether or not such Software is incorporated into any Custom Deliverables.

 

3. Confidentiality.

Each party may provide to the other, and each party may come into possession of information relating to the other party’s business that is considered confidential (the “Confidential Information”). Confidential Information shall include, without limitation, all Software, all Licensee Reserved Technology, all information marked confidential, all trade secrets of the parties (as defined under applicable state trade secret law), and all information relating to each party’s business plans and operations, products, costs, marketing statistics, all Licensee information, statistics, reports, data, lists, security assessments and analysis, future plans, business affairs, process information, technical information, finances, marketing plan and pricing strategy.  Notwithstanding the foregoing, the term Confidential Information shall not include information that (a) is publicly known at the time of its disclosure, (b) is lawfully received by the receiving party, (c) is published or otherwise made known to the public, or (d) was generated independently by the receiving party before disclosure by the disclosing party.  Licensee hereby grants Licensor the right to use the Licensee Reserved Technology and the Licensee’s Intellectual Property during the term of this Agreement and shall permit access to the same as necessary to provide the Software.  Notwithstanding anything to the contrary herein, Licensor may publicly acknowledge the existence of its relationship with Customer and, without revealing the specific terms of this Agreement, may acknowledge this Agreement and use Customer’s or Customer’s affiliates’ name within its advertising, marketing and promotional materials.

 

4. Support and Maintenance.

Licensor will provide to Licensee Updates and Upgrades to the Software within a reasonable time if and when such Updates and Upgrades become available.

 

5. Disclaimer of Warranties.

To the maximum extent allowed by applicable law, the Software is provided “as is,” with no warranties whatsoever.  LICENSOR SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY.  LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.

 

6. Limitation of Liability.

NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT:  (A) IN NO EVENT SHALL LICENSOR’S TOTAL AGGREGATE LIABILITY TO LICENSEE ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID TO LICENSOR BY LICENSEE DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE (IT BEING UNDERSTOOD THAT LICENSOR’S LIABILITY TO LICENSEE MAY BE FURTHER LIMITED BY OTHER PROVISIONS OF THIS AGREEMENT); (B) IN NO EVENT SHALL LICENSOR HAVE ANY LIABILITY FOR THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY OR THIRD PARTY PRODUCTS (INCLUDING HARDWARE AND SOFTWARE); (C) IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR ANY LOST CODE, INFORMATION OR MATERIALS, LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, COMPUTER OR SYSTEM DOWNTIME OR UNAVAILABILITY, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (D) IN NO EVENT SHALL LICENSOR BE LIABLE FOR (1) any unauthorized nonphysical access, alteration, theft, corruption or destruction of or to any computer files, databases, network, transmission facilities or equipment of LICENSEE or its LICENSEEs, end users, or other parties; OR (2) the content, accuracy or completeness of any LICENSEE RESERVED TECHNOLOGY transmitted through the SOFTWARE.

 

7. Indemnity.

Licensee shall, at its own expense, indemnify, defend and hold Licensor and its officers, directors, employees, and agents harmless from and against any and all claims, costs, fees (including reasonable attorneys’ fees), damages, liabilities and expenses arising out of or resulting from (a) the use of the Software in a manner not authorized or contemplated by this Agreement, (b) modifications to the Software not made by Licensor, (c) the use of the Software in combination with data, software, hardware, equipment or technology not specified by Licensor or authorized by Licensor in writing; or (d) a third-party claim or allegation that the Software infringes, misappropriates, or violates such third party’s Intellectual Property Rights when such Intellectual Property was incorporated by Licensee or at Licensee’s request or incorporates any Licensee Reserved Technology, or Licensee failed to implement Upgrades or Updates made available by Licensor.

 

8. Term.

The term of this Agreement shall commence upon the effective date of the Statement of Work and shall continue for three (3) years (the “Initial Term”), or until terminated by Licensor pursuant to Section 9.  The Agreement will automatically renew for additional one (1) year terms (each a “Renewal Term”) at the end of the Initial Term or any Renewal Term, unless either party provides written notice of its intent not to renew to the other party at least sixty (60) days prior to the end of the Initial Term or the then current Renewal Term.    If Customer terminates this Agreement for any reason prior to the end of the Initial Term or the then current Renewal Term, Customer shall owe Licensor a termination charge as liquidated damages in an amount equal to the remaining fees that would have been payable to Licensor by Customer for the remainder of the Initial Term or Renewal Term, as applicable.  Unless provided otherwise in the applicable Statement of Work, any Statement of Work shall terminate simultaneously with such termination of this Agreement.

 

9. Suspension or Termination.

Without prejudice to any other rights, Licensor may terminate this Agreement in its sole discretion if Licensee fails to comply with the terms and conditions of this Agreement.  In such event, Licensee must destroy all copies of the Software and any associated components.  Notwithstanding anything herein to the contrary, Licensor may suspend or terminate this Agreement if Licensee fails to pay any amount when due and upon suspension or termination for nonpayment, Licensor may alter, prohibit, or otherwise restrict or deny Licensee’s access to the Software including, by way of example and not by way of limitation, publishing a blank screen on any of Licensee’s Terminals.

 

10. Miscellaneous.

a. Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Nebraska without reference to its choice of law rules.  Any action or proceeding arising from or relating to this Agreement shall be brought solely in the state and federal courts for the county of Lancaster, Nebraska, and Licensee submits to the jurisdiction and venue of any such court in any such action or proceeding.

b. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the Software and all other subject matter hereof, and supersedes all prior oral and written agreements between the parties regarding the subject matter of this Agreement.  The parties hereby acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.

c. Force Majeure. Licensor shall not be liable, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Licensor including, but not limited to, any loss of data, loss of downtime or corruption of Licensee’s other software program files, or any other loss associated with the Software.

d. Severability. If any provision of this Agreement is deemed unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

e. Amendments. Licensor may amend this Agreement including any referenced policies and other documents from time to time.  If Licensor makes material changes to this Agreement, Licensor shall notify Licensee by posting a notice of the change on its website. Any changes to this Agreement will be effective immediately upon publication of the notice on Licensor’s website.

 

Last revised: April 20, 2022.