TOTALQUEUE SOFTWARE LICENSE AGREEMENT
This Software License Agreement (the “Agreement”) is made and effective immediately,
BETWEEN: Ivant Technologies and Business Solutions, Inc (the "Licensor"), a corporation organized and existing under the laws of the Philippines, with its head office located at: Unit 2009 Prestige Tower, F. Ortigas Jr. St., Ortigas Center, Pasig, MM, Philippines
AND: You and Your Company (the "Licensee")
WHEREAS, Licensor has developed the TotalQueue software program and related documentation more particularly described in the website http://www.totalqueue.com (the "Product") and desires to grant Licensee a license to use the Software.
WHEREAS, Licensee wishes to use the Software under the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, Licensee and Licensor hereby agree as follows:
In accordance with the terms herein, Licensor grants to Licensee, and Licensee accepts from Licensor, a perpetual non-exclusive and non-transferable license to use the current version of Licensor's Software. A description of the Software System is found in http://www.totalqueue.com.
The Software shall be used only on the PC equipment and at the location identified during the License purchase. The Software shall be used only for the processing of Licensee's own business, which shall include servicing and maintaining records on behalf of, its customers and clients.
Licensee shall not: (1) permit any third party to use the Software, (2) use the Software in the operation of another Service Bureau, or (3) allow access to the licensed Software through terminals located outside Licensee's business premises. A license may be temporarily transferred to back-up equipment if the particular scheduled equipment is inoperative for more than 15 days.
The license granted herein includes the right to copy the Software in non-printed, machine readable form in whole or in part as necessary for Licensee's own business use. In order to protect Licensor's trade secret and copyrights in the Software, Licensee agrees to reproduce and incorporate Licensor's trade secret or copyright notice in any copies, modifications or partial copies. Licensee shall maintain no more than one copy of the object code for the Software for each PC machine at any time.
3. PRICE AND PAYMENT
Licensee shall make payment to Licensor for the Software license type pursuant to the fees and payment terms set forth in http://www.totalqueue.com .
4. SOFTWARE OWNERSHIP
Licensor represents that it is the owner of the Software and all portions thereof and that it has the right to modify same and to grant Licensee a license for its use.
5. INTENT TO COOPERATE
Both Licensor and Licensee acknowledge that successful implementation of the Software pursuant to this License Agreement shall require their full and mutual good faith cooperation and Licensee acknowledges that it shall timely fulfill its responsibilities, including but not limited to those set forth below.
6. CONSULTING SERVICES
The Licensor will not provide Licensee with any additional consulting services, since amble time were provided for the Licensee to evaluate the fully functional and free Demonstration Software. However, software maintenance can be provided upon purchase and upon Licensee's discretion.
7. TITLE TO SOFTWARE SYSTEMS AND CONFIDENTIALITY
The Software and all programs developed hereunder and all copies thereof are proprietary to Licensor and title thereto remains in Licensor. All applicable rights to patents, copyrights, trademarks and trade secrets in the Software or any modifications made at Licensee's request are and shall remain in Licensor. Licensee shall not sell, transfer, publish, disclose, display or otherwise make available the Software or copies thereof to others. Licensee agrees to secure and protect each module, software product, documentation and copies thereof in a manner consistent with the maintenance of Licensor's rights therein and to take appropriate action by instruction or agreement with its employees or consultants who are permitted access to each program or software product to satisfy its obligations hereunder.
All copies made by the Licensee of the Software and other programs developed hereunder, including translations, compilations, partial copies with modifications and updated works, are the property of Licensor. Violation of any provision of this paragraph shall be the basis for immediate termination of this License Agreement and legal action as needed.
The Software shall be deemed to have been accepted when it passes Licensor's standard test procedures on equipment approved by Licensor pursuant to paragraph 16 below. A fully working Demonstration Software copy is provided prior to the License Purchase for evaluation and User Acceptance.
9. USE AND TRAINING
Licensee shall limit the use of the Software to its employees who have been appropriately trained. Licensor shall make training for the Software available to Licensee pursuant to its standard self-help training procedures. Training materials in softcopy format shall be provided at the website http://www.totalqueue.com.
A. Licensor warrants that Software will conform, as to all substantial operational features, to Licensor's current published specifications when installed and will be free of defects which substantially affect system performance.
B. The Licensee must notify Licensor in writing, within 30 days of delivery of the Software to the Licensee (not including delivery of any subsequent modifications to the Software), of its claim of any such defect. If the Software is found defective by Licensor, Licensor's sole obligation under this warranty is to remedy such defect in a manner consistent with Licensor's regular business practices.
C. THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY LICENSOR. LICENSOR MAKES AND LICENSEE RECEIVES NO WARRANTY EXPRESS OR IMPLIED AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF LICENSOR FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF THE SOFTWARE SYSTEMS.
D. If any modifications are made to the Software by Licensee during the warranty period, this warranty shall immediately be terminated. Correction for difficulties or defects traceable to Licensee's errors or systems changes shall be billed at Licensor's standard time and material charges.
E. Licensee agrees that Licensor's liability arising out of contract, negligence, strict liability in tort or warranty shall not exceed the amount already paid by Licensee for the TotalQueue Software.
Licensor at its own expense will defend any action brought against Licensee to the extent that it is based on a claim that any software system used within the scope of this License Agreement infringes any patents, copyrights, license or other property right, provided that Licensor is immediately notified in writing of such claim. Licensor shall have the right to control the defense of all such claims, lawsuits and other proceedings. In no event shall Licensee settle any such claim, lawsuit or proceeding without Licensor's prior written approval.
If, as a result of any claim of infringement against any patent, copyright, license or other property right, Licensor is enjoined from using the Software, or if Licensor believes that the Software is likely to become the subject of a claim of infringement, Licensor at its option and expense may procure the right for Licensee to continue to use the Software, or replace or modify the Software so as to make it non-infringing. If neither of these two options is reasonably practicable Licensor may discontinue the license granted herein on one month's written notice and refund to Licensee the paid portion of the license fees hereunder. The foregoing states the entire liability of Licensor with respect to infringement of any copyrights or patents by the Software or any parts thereof.
Licensor shall have the right to terminate this agreement and license(s) granted herein:
A. Upon 30 days' written notice in the event that Licensee, its officers or employees violates any provision of this License Agreement including, but not limited to, confidentiality and payment;
B. In the event Licensee (i) terminates or suspends its business; (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute or (iii) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority.
C. In the event of termination by reason of the Licensee's failure to comply with any part of this agreement, or upon any act which shall give rise to Licensor's right to terminate, Licensor shall have the right, at any time, to terminate the license(s) and take immediate possession of the Software and documentation and all copies wherever located, without demand or notice. Within 15 days after termination of the license(s), Licensee will return to Licensor the Software in the form provided by Licensor or as modified by the Licensee or upon request by Licensor destroy the Software and all copies, and certify in writing that they have been destroyed. Termination under this paragraph shall not relieve Licensee of its obligations regarding confidentiality of the Software.
Without limiting any of the above provisions, in the event of termination as a result of the Licensee's failure to comply with any of its obligations under this License Agreement, the Licensee shall continue to be obligated for any payments due. Termination of the license(s) shall be in addition to and not in lieu of any equitable remedies available to Licensor.
Licensee shall, in addition to the other amounts payable under this License Agreement, pay all sales and other taxes, federal, state, or otherwise, however designated which are levied or imposed by reason of the transactions contemplated by this License Agreement. Without limiting the foregoing, Licensee shall promptly pay to Licensor an amount equal to any such items actually paid, or required to be collected or paid by Licensor.
14. HARDWARE REQUIREMENTS
Licensee shall make available for the Software implementation all computer and hardware equipment and software configurations approved by Licensor as adequate for such implementation at such location.
15. LICENSED LOCATIONS
Use of the Software by the Licensee at any location other than those described above in paragraph 1 shall be the basis for immediate termination of this License Agreement. Termination of the License Agreement shall be in addition to and not in lieu of any equitable remedies available to Licensor.
16. DELIVERY, INSTALLATION AND TESTING
The System shall be delivered, installed and tested at the PC hardware identified during the license purchase in accordance with the Delivery, Installation and Testing done during the Demonstration Software Period.
17. CUSTOM MODIFICATIONS
All custom modifications to the Software, not including assisting Licensee in implementation of the Software, shall be undertaken by Licensor as Change Requests and billed at its current Time and Materials Charges. For each custom modification requested, Licensee shall provide written specifications to Licensor, which shall be mutually agreed upon prior to commencement of such custom modification effort.
18. ENTIRE AGREEMENT
Each party acknowledges that it has read this Agreement, it understands it, and agrees to be bound by its terms, and further agrees that this is the complete and exclusive statement of the Agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties.
If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted.
19. REASONABLE CAUSES
Dates or times by which Licensor is required to make performance under this license shall be postponed automatically to the extent that Licensor is prevented from meeting them by causes beyond its reasonable control.
20. GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws of the Philippines.
The Licensee may not assign or sub-license, without the prior written consent of Licensor, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part. No action, regardless of form, arising out of this Agreement may be brought by Licensee more than two years after the cause of action has arisen.
22. ATTORNEY’S FEES
Licensor shall have the right to collect from Licensee its reasonable expenses incurred in enforcing this agreement including attorney's fees.
The waiver or failure of Licensor to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
IN WITNESS WHEREOF and by clicking on the Accept License Terms and Conditions, the parties have executed this Agreement, with full knowledge of its content and significance and intending to be legally bound by the terms hereof.