Openware Inc. OpenDAX Enterprise Software License
Effective starting: 7 March, 2021
This Openware Software License Agreement (the “Agreement”) is between you and Openware Inc. (“Openware” or “we”). Openware may modify this Agreement from time to time, subject to the terms below.
The “Effective Date” of this Agreement is the date which is the earlier of (a) your initial access to or use of the Software (as defined below) or (b) the effective date of the first Order referencing this Agreement.
By using or accessing the Software, you indicate your assent to be bound by this Agreement. If you do not agree to this Agreement, do not use or access the Software.
This Agreement governs your initial purchase of Openware’s Software and Maintenance for the Software, and any Additional Services, as well as any future purchases made by you that reference this Agreement. This Agreement includes each Order.. The Software and its permitted use are further described in the Documentation. The term “Software” includes Documentation unless otherwise specified. This Agreement does not apply to Openware’s cloud-based solutions. The use of Openware’s cloud-based products requires a separate agreement between you and Openware.
2. Authorized Users
Only Authorized Users may access and use the Software. You are responsible for compliance with this Agreement by all Authorized Users. All use of Software must be solely for the benefit of you or your Affiliates and must be within the Scope of Use.
3. 1. Your rights
Subject to the terms and conditions of this Agreement, Openware grants you a non-exclusive, non-sublicensable and non-transferable, perpetual worldwide license to install and use the Software for your own business purposes, in accordance with this Agreement, your applicable Scope of Use, the Documentation and all Laws.
3. 2. Restrictions
You may not sublicense, assign or otherwise transfer this Agreement, the Software, Documentation, Services or any rights or obligations hereunder without prior written consent from Openware. Any attempt otherwise to sublicense, assign or transfer any of the rights, duties or obligations hereunder without such consent is void. The Software, Documentation and Services contain trade secrets, and in order to protect them, You may not decompile, reverse engineer or disassemble the Software, or otherwise reduce the Software to a human perceivable form. You may not modify, adapt, translate, lease, loan, resell for profit, distribute, or create derivative software based on all or any part of the Software. You may not permit a third party to use or access the Software, Documentation or Services, or operate the Software for or on behalf of any third party, including as a service accessed by a third party. You may not create, develop, or use any software or services to circumvent or otherwise gain access in a manner that would violate any technical restrictions on the Software. You may not use the Software, Documentation or Services for the purpose of determining performance information or analysis, or for competitive information or analysis (including, without limitation, any benchmarks, opinions, competitive or relative information, or results determined during such use) or disclose or publish such performance information or analysis, or competitive information or analysis without the prior written consent of an authorized Openware official. You will promptly notify Openware of any unauthorized disclosure, reproduction, or distribution of the Software or Documentation, which comes to Your attention, or which You reasonably suspect. You represent that all information and data You provide to Openware in connection with this Agreement, including all Services, is accurate, true, and complete.
3.3. System Requirements
You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation. Openware will have no obligations or responsibility under this Agreement for issues caused by your use of any third-party hardware or software not provided by Openware.
4. Third-Party Products
We are not responsible for any access to or use of your data by third-party providers or their products or services, or for the security or privacy practices of any third-party provider or its products or services. You are solely responsible for your decision to permit any third-party provider or third-party product or service to use your data. It is your responsibility to carefully review the agreement between you and the third-party provider, as provided by the applicable third-party provider. OPENWARE DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.
The term of your Maintenance Services is for the period specified in the applicable Openware order form. At the end of the initial term of 12 months (and each renewal term thereafter, if any), the Maintenance Services will expire unless You renew the Maintenance Services by paying Openware. Openware may terminate Maintenance Services if You fail to make pay the agreed fees for more than ten (10) days following written notice of delinquency.
6.2. Updates and Upgrades
During the initial or a renewal term of the Support Services, Openware will make any Update and Upgrade releases for the Software available to you. An “Update” shall mean a generally available release of the same edition of the same Software that Openware makes available from time to time. An “Upgrade” shall mean a generally available release of the same Software that Openware makes available from time to time that includes: (i) new editions of the Software that provide major enhancements to the features or functions, as determined by Openware in its sole discretion; and/or (ii) new editions of the Software that provide additional features or perform additional functions. Upgrades do not include new products that Openware introduces and markets as distinct licensed products. Openware may designate a particular release of the Software as an Update or an Upgrade in its sole discretion. Updates and Upgrades shall be considered part of the Software and subject to the terms and conditions of the applicable License Agreement.
6.3. Software Defects
Openware shall correct any defects or malfunctions in the Software or the Documentation discovered during the term of Your Maintenance Services as per Openware’s development schedule. Openware has no obligation to provide Maintenance Services related to errors that arise out of or results from: (1) modifications to Software made by you or a third party not authorized by Openware; (2) Your operation or use of the Software other than as specified in the Documentation; (3) any End User failure, including failure to promptly install any Update or Upgrade; (4) continued use of a Software release after Openware has recommended You install an Update or Upgrade; or (5) any material breach of the Agreement by you.
6.4. Telephone and Email Support
Openware will provide you with all reasonably necessary telephone and email consultation and support and instruction requested by you in connection with your use and operation of the Software or any problems with the Software. You agree to provide Openware with information regarding the Software problems, including transmission of certain diagnostic, technical, usage and related information and information about your computers, systems, network and any third party software or hardware that may impact your usage of the Software.
6.5. Notifications of Errors
You may request Support Services by sending reports and queries to [email protected] When reporting any Error, You shall provide the details of the Error and a reasonably detailed explanation, together with underlying data, to substantiate the Error and to assist Openware in its efforts to diagnose and correct the Error.
6.6. Classification and Resolution of Errors
An “Error” is defined as a reproducible failure of the Software to perform in substantial conformity to the specifications in the Documentation, whose origin can be isolated to a single cause. Errors are classified as follows:
Priority 1 Error (Production Down).
Definition. A Priority 1 Error is any Error that renders you unable to use the Software on more than 50% end points, where it is installed, resulting in a critical impact to your business operations.
Key Deliverables. In response to a Priority 1 Error, Openware will endeavour to as quickly as is feasibly possible, to provide an appropriate resource and deliver a resolution. Unless otherwise agreed, Openware will service Priority 1 Errors on a continual effort basis until the Error is resolved. Resolution of Priority 1 Errors may include temporary solutions, enabling your business to operate until a more comprehensive solution is provided.
Priority 2 Error (Significant Business Impact).
Definition. A Priority 2 Error is any Error that renders the Software severely limited in its functionality, as specified in the Documentation, but still usable. Components of a Priority 2 Error include: (1) a critical component of the Software (e.g. security IE browsing) is not responding or producing error messages; (2) the issue is critical to Your business operations.
Key Deliverables. Priority 2 Errors will be serviced as critical during Normal Business Hours until the Error is resolved.
Priority 3 Error (Limited Business Impact).
Definition. A Priority 3 Error is any Error that results in the Software being usable with some non-critical features of the Software being unavailable. Components of a Priority 3 Error include: (1) Issues that affect Your ability to meet upcoming deadlines; (2) Software components returning errors messages or not responding; (3) degraded Software performance is negatively impacting Your business operations.
Key Results. Priority 3 Errors will be serviced during Normal Business Hours until the Error is resolved.
Priority 4 Error (Minimal Business Impact).
Definitions. A Priority 4 Error is any Error that is below Priority 3 and does not significantly impact Your business operations or for which a reasonable workaround has been implemented. Components of a Priority 4 Error include: (1) general questions such as “how-to” or syntax questions; (2) issues with little or no impact on Your business operations;
Key Results. Priority 4 Errors will be serviced as general issues during Normal Business Hours until the Error is resolved.
6.7. Response Time
Openware shall use commercially reasonable efforts to respond to Your initial Error reports with off-site telephone consultation, assistance and advice. Openware will respond to your initial Error report either with; (1) a potential problem resolution, or (2) a request for more information that would permit Openware to determine the next steps towards potential problem resolution. If it is determined, at Openware’s sole discretion, that the Error reported requires escalation or requires extensive time to research the reported Error, Openware will advise you of the potential time necessary to provide a potential workaround or a resolution.
7 Professional Services
Openware provides training to customers in the form of videos and guides.
7.2. Additional Professional Services
Any Professional Services, training or other requirements not expressly included in an Order are outside the scope of this Agreement and will only be provided for additional fees. Fees for such items are payable as specified in the applicable Order and unless otherwise specified will be due upon receipt of invoice.
Openware will retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments that Openware provides in connection with any Additional Services. You may use any Deliverables provided to you only in connection with the Software, subject to the same usage rights and restrictions as for the Software.
8. Delivery, Acceptance and Installation
ALL SOFTWARE PROVIDED WILL BE DELIVERED ELECTRONICALLY. All Software will be deemed to be delivered and accepted, meaning the Software operates in substantial conformity to the Documentation, upon transmission of a notice of availability for download and Your subsequent downloading, installing, operating, registering or otherwise using the Software. You are responsible for installation of the Software, and you acknowledge that Openware has no further delivery obligation.
Your fees are stated in the applicable Order. Except as otherwise provided in the Order, Your fees will be Openware’s current list price for Your Software and Services.You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. Applicable Fees can be found on the Openware Price List.
All fees listed in the Order are exclusive of any taxes. You will be responsible for all taxes, including sales or use taxes, VAT, export or import taxes.
9.3. Late Payment
If you fail to pay any fees when due, Openware shall be entitled to interest at the rate of five per cent (5%) per annum over the base rate on the overdue amount until it is paid.
9.4. Increased Scope of Use
During your License Term, you may increase your Scope of Use (e.g., adding Authorized Users, licenses, copies or instances). Any increases to your Scope of Use will be subject to additional fees, as set forth in the applicable Order.
9.5. Future Functionality; Separate Purchases
Your purchases are not contingent on the delivery of any future functionality or features (including any New Releases), or dependent on any oral or written public comments made by Openware regarding future functionality or features
9.6. Returns & Refunds
Unless otherwise stated in this Agreement, any fees and payments paid by You to Openware under this Agreement are not refundable, even if either party terminates this Agreement.
Openware may, at its expense, upon reasonable prior written notice to you and during standard business hours, audit your use of the Software to assure compliance with the terms of this Agreement. If an audit reveals that you have underpaid fees to Openware, you shall be invoiced for such underpaid fees based upon Openware’s price list in effect at the time the audit is completed. The cost of the audit will be paid by you if the audit discloses that the amount of underpayment exceeds 5% of the amount due.
11. Ownership and Feedback
The Software is made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Openware and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to Openware Technology (including the Software). From time to time, you may choose to submit Feedback to us. Openware may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Openware's right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Openware Technology and any performance information relating to the Software will be deemed Confidential Information of Openware without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 12 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 12. The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
13. Term and Termination
13.1. The Software license
Will commence on the date you are notified of availability of the Software for electronic download. You may begin exercising the rights granted to You under this Agreement upon accepting the terms and conditions of this Agreement. You may continue to exercise the rights granted to You under this Agreement so long as You continue to comply with the terms and conditions of this Agreement. Notwithstanding the foregoing, Openware reserves the right to terminate this Agreement and Your License, upon commercially reasonable notice, for Your failure to comply with any term or condition in this Agreement. You may terminate this Agreement at any time by providing Openware with written notice and removing the Software, destroying the Software and certifying such destruction, or returning the Software to Openware, including all copies of the Software and any associated documentation. Unless otherwise stated in this Agreement, any fees and payments paid by You to Openware under this Agreement are not refundable, even if either party terminates this Agreement.
Those provisions regarding title and ownership, confidentiality, Feedback, warranty statement and disclaimer, and limitation of liability in this Agreement shall survive any termination.
14. Warranties and Disclaimer
14.1. Limited Software Warranty
Openware warrants that, for a period of ninety (90) days from the date You are notified the Software is available for download (“Warranty Period”), the Software licensed hereunder (including any upgrades and updates provided within the Warranty Period) will perform substantially in accordance with the applicable Documentation. For any breach of the foregoing warranty, your sole and exclusive remedy, and Openware’s sole obligation, is to provide a replacement copy of the Software promptly upon notice
14.2. Exclusion of Warranty
The above Limited Warranty will not apply if: (i) the Software is not used in accordance with this Agreement or the Documentation, (ii) the Software or any part thereof has been modified by any entity other than Openware or (iii) a malfunction in the Software has been caused by any equipment or software not supplied by Openware.
14.3. Warranty Disclaimer
ALL SOFTWARE, SUPPORT AND MAINTENANCE AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND OPENWARE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. OPENWARE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF OPENWARE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER OPENWARE NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SOFTWARE (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
15. Limitations of Liability
15.1. Consequential Damages Waiver
EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
15.2. Liability Cap.
EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
16. Publicity Rights
We may identify you as an Openware customer in our promotional materials.
17. Dispute Resolution
17.1. Informal Resolution
In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section 17.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 17.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
17.2. Governing Law; Jurisdiction
This Agreement will be governed by and construed in accordance with the applicable laws of England and Wales.. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to this Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of England and Wales and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in England generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
17.3. Injunctive Relief; Enforcement
Notwithstanding the provisions of Section 18.1 (Informal Resolution) and Section 18.2 (Governing Law; Jurisdiction), nothing in this Agreement will prevent Openware from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
17.4. Exclusion of UN Convention and UCITA
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted.
18. Export Restrictions
The Software is subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your download of, access to, and use of the Software. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Software for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.
19. Changes to this Agreement
We may modify the terms and conditions of this Agreement from time to time, with notice given to you by email, through the Software or through our website. Together with notice, we will specify the effective date of the modifications.For the avoidance of doubt, any order is subject to the version of this Agreement in effect at the time of the Order.
20. General Provisions
Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to Openware Inc., 611 Gateway Blvd, Suite 120, South San Francisco, California, 94080, USA, Attn: Legal Officer. Your notices to us will be deemed given upon our receipt.
20.2. Force Majeure
Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
You may not assign or transfer this Agreement without our prior written consent. As an exception to the foregoing, you may assign this Agreement in its entirety (including all Orders) to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement. Any attempt by you to transfer or assign this Agreement except as expressly authorized above will be null and void. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement. Subject to the foregoing, this Agreement will inure to the parties’ permitted successors and assigns.
20.4. U.S.Government End Users
The Software and Documentation are “commercial items” as that term is defined at FAR 2.101. If You are the US Federal Government (Government) Executive Agency (as defined in FAR 2.101), Openware provides the Software and Documentation, including any related technical data, and/or professional services in accordance with the following: If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement. If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with Openware to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. If this Agreement fails to meet the Government’s needs or is inconsistent in any way with Federal law, and the parties cannot reach a mutual agreement on terms for this Agreement, the Government agrees to terminate its use of the Software and Documentation and return the Software and Documentation and any other software or technical data delivered as part of the Software and Documentation, unused, to Openware. This U.S. Government Rights clause in this Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.
20.5. Entire Agreement
This Agreement is the entire agreement between you and Openware relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations between you and Openware with respect to the Software or any other subject matter covered by this Agreement. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
In event of any conflict between the main body of this Agreement and Product-Specific Terms, the Product-Specific Terms (as applicable) will control with respect to their subject matter.
20.7. Waivers; Modifications
No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 19 (Changes to this Agreement), any amendments or modifications to this Agreement must be executed in writing by the authorized representatives of Openware and you.
As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
20.9. Independent Contractors
The parties are independent contractors. This Agreement will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
“Additional Services” means other services related to the Software provided to you by Openware, as identified in an Order.
“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
“Openware Technology” means the Software (including all No-Charge Software), Openware Deliverables, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.
“Authorized Users” means the specific individuals whom you designate to use the applicable Software and for whom you have paid the required fees. Authorized Users may be your or your Affiliates’ employees, representatives, consultants, contractors, agents or other third parties who are acting for your or your Affiliates’ benefit or on your or your Affiliates’ behalf. Authorized Users also include any Secondary Users that you permit to use the Software, subject to Section 2.
“Documentation” means our standard published documentation for the Software, currently located here.
“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Software, Support and Maintenance or Additional Services.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.
“License Term” means your perpetual license term for the Software, as set forth in your Order.
“New Releases” means any bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that Openware makes available to you as part of Support and Maintenance.
“Order” means Openware’s applicable ordering documentation or other purchase flow referencing this Agreement. Orders may include purchases of Software licenses, Support and Maintenance, Additional Services, increased or upgraded Scope of Use or renewals.
“Scope of Use” means your authorized scope of use for the Software as specified in the applicable Order, which may include: (a) number and type of Authorized Users, (b) numbers of licenses, copies or instances, or (c) entity, division, business unit, website, field of use or other restrictions or billable units.
“Software” means Openware’s commercially available downloadable software products including mobile applications of such products. Your Order will specify the Software that you may use.
“Maintenance” means Openware’s maintenance services for the Software.
“Training” means Openware-provided training in the form of Videos and Guides.
If you have any questions regarding this License Agreement, please contact us by sending an email to [email protected].