LICENSE AGREEMENT FOR ADXSTUDIO SOFTWARE
IMPORTANT - READ CAREFULLY: This Adxstudio License Agreement ("Agreement") is a legal agreement between you (“Customer”) and Adxstudio Inc. (“Adxstudio”) for the Adxstudio software product(s) which may also include associated media, printed materials, and "online” or other documentation ("SOFTWARE PRODUCT"). By installing, copying, or otherwise using the SOFTWARE PRODUCT, Customer agrees to be bound by the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, then you represent that you have the authority to bind such company or legal entity to the terms of this Agreement. If the Customer does not agree to the terms of this Agreement, Customer shall not install or use the SOFTWARE PRODUCT.
1 ADXSTUDIO SOFTWARE LICENSE
1.01 SCOPE OF LICENSE. The Software Product is licensed, not sold. This Agreement only gives Customer some rights to use the Software Product. Adxstudio reserves all other rights. Unless applicable law gives Customer more rights despite this limitation, Customer may use the Software Product only as expressly permitted in this Agreement. In doing so, Customer must comply with any technical limitations in the Software Product that only allow Customer to use it in certain ways. Customer may not:
- work around any technical limitations in the Software Product;
- reverse engineer, decompile or disassemble the Software Product, except and only to the extent that applicable law expressly permits, despite this limitation;
- remove, minimize, block or modify any notices of Adxstudio or its Affiliates or suppliers in the Software Product;
- use the Software Product in any way that is against the law;
- share, publish or lend the Software Product, or provide the Software Product as a stand-alone hosted as solution for others to use, or transfer the Software Product or this Agreement to any third party; or
- use the Software Product to provide commercial services to third parties.
1.02 License Types:
The scope and term of Customer’s license is limited to the exact license type listed in the Customer’s license certificate, order form, invoice, or other documentation provided upon purchase of Software Product.
1.03 CRM Licensing Requirements
Access to Microsoft Dynamics CRM Organization(s) via a portal does not remove or substitute baseline Microsoft Dynamics CRM licensing requirements.
1.04 Evaluation License
If no license fee has been paid by Customer for the Software Product, the license is an evaluation license subject to the limitations contained herein and granted only for a thirty (30) day trial period, for the sole purpose of Customer internally testing and evaluating the Software Product to determine whether Customer desires to purchase a full use license.
2.01 Without prejudice to any other rights, Adxstudio may terminate this Agreement if the Customer fails to comply with the terms and conditions herein and does not rectify such breach within thirty (30) days of its receipt of a written notice from Adxstudio requiring it to do so. In such event, the Customer shall, unless otherwise instructed by Adxstudio, immediately destroy all copies of the Software Product and all of its component parts. Sections 5 (Taxes), 6 (Intellectual Property), 8 (Limitation of Liability), 9 (Indemnification), 12 (Confidentiality), and 13 (Miscellaneous) shall survive termination.
3 SUPPORT SERVICES
3.01 Adxstudio may in its sole discretion provide the Customer with support services related to the Software Product ("Support Services"), as set forth in an order form (“Order Form”). Any supplemental software code provided as part of the Support Services shall be considered part of the Software Product and subject to the terms and conditions of this Agreement. With respect to technical information the Customer provides to Adxstudio as part of the Support Services, Adxstudio may use such information for its business purposes, including for product support and development. Adxstudio will not utilize such technical information in a form that identifies the Customer. Adxstudio will not utilize such information in a manner that discloses the Customer's confidential information to any third party.
3.02 In the event that Adxstudio provides notice to Customer that Adxstudio’s parent company, Microsoft Corporation (“Microsoft”), has made the Software Product commercially available through Microsoft’s standard distribution channels, Customer’s access to Support Services, and response times to Customer’s Support Services requests, will be governed by Microsoft’s support practices for the Support Services, as communicated to Customer, and Microsoft will provide such Support Services until the expiration date of the applicable technical support Order Form. If Customer elects to purchase additional Support Services not specified in any existing technical support Order Form after Microsoft makes the Software Product commercially available through Microsoft’s standard distribution channels, such support will also be subject to Microsoft’s technical support terms and practices.
4.01 Software Products labeled as upgrades will be available to Customer upon the purchase of Adxstudio annual software maintenance offering. A Software Product labeled as an upgrade replaces and/or supplements the product that formed the basis for the Customer's eligibility for the upgrade. Any such upgrade shall be considered part of the Software Product subject to the then-current terms and conditions of this Agreement.
5.01 The amounts to be paid by Customer to Adxstudio do not include any taxes. Customer will pay Adxstudio any applicable value added, sales or use taxes or like taxes it owes because it entered this Agreement and which the law allows Adxstudio to collect from Customer. If Customer provides Adxstudio with a valid exemption certificate, Adxstudio will not collect taxes covered by that certificate. Adxstudio is not liable for any taxes that Customer is legally obligated to pay, including but not limited to net income or gross receipts taxes, franchise taxes, and property taxes (“Customer Taxes”) which relate to the sale of goods and services under this Agreement. Customer agrees to indemnify and hold Adxstudio harmless from Customer Taxes and any claims, costs (including reasonable attorneys’ fees) and liabilities that relate to such taxes.
If the law requires Customer to withhold taxes from payments made by Customer to Adxstudio, Customer may withhold such taxes and pay them to the appropriate taxing authority, provided that Customer promptly delivers to Adxstudio an official receipt or other document necessary to allow Adxstudio to claim a U.S. Foreign Tax Credit or refund. Customer will ensure that it minimizes any taxes withheld to the extent allowed by law.
6 INTELLECTUAL PROPERTY
6.01 Software Products and other deliverables are protected by copyright and other intellectual property rights laws and international treaties. Adxstudio (1) does not transfer any ownership rights in any Software Products and (2) reserves all rights not expressly granted to Customer under this Agreement.
7 WARRANTY & REMEDIES
7.01 Adxstudio warrants that the Software Product will perform substantially as described in the applicable Software Product documentation for ninety (90) days from the date it is delivered to Customer. If it does not and Customer notifies Adxstudio within the warranty term, then Adxstudio will, at its option and sole discretion, (1) repair or replace the Software Product or (2) return the price Customer paid for the Software Product license, and Customer must uninstall and destroy all copies of the Software Product in its possession.
7.02 The remedies above are Customer’s sole remedies for breach of the warranties in this section. Customer waives any breach of warranty claims not made during the warranty period.
7.03 Exclusions. The warranties in this Agreement do not apply to problems caused by accident, abuse or use inconsistent with this Agreement, including failure to meet minimum system requirements. These warranties do not apply to free, trial, preview, evaluation, pre-release or beta products, or to components of Software Product that Customer is permitted to redistribute.
7.04 Disclaimer. Except for the limited warranties above, Adxstudio provides no other warranties or conditions and disclaims any other express, implied or statutory warranties, including warranties of quality, title, non-infringement, merchantability and fitness for a particular purpose.
7.05 Customer represents and warrants that it has the legal right and power to enter into this Agreement and that it will not use the Software Product in a way or for any purpose that infringes or misappropriates any third party’s intellectual property or personal rights.
8 LIMITATION OF LIABILITY
8.01 To the maximum extent permitted by applicable law, in no event shall Adxstudio, nor Affiliates, be liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the Software Product or the failure to provide Support Services, even if Adxstudio has been advised of the possibility of such damages.
8.02 Adxstudio’s entire liability under any provision of this Agreement (with exception to the terms outlined in Section 9) shall be limited to the greater of the amount actually paid by the Customer for the Software Product. If the Software Product was provided free of charge, Adxstudio’s liability is limited to U.S. $5,000.00.
9.01 Customer will defend and indemnify Adxstudio against any third-party claim to the extent it alleges that Customer’s use of the Software Product, alone or in combination with anything else, violates the law, harms a third party, misappropriates a trade secret, or directly infringes a patent, copyright, trademark, or other proprietary right of a third party.
9.02 Adxstudio will defend and indemnify Customer against any third-party claim to the extent it alleges that: (1) a Software Product made available by Adxstudio for a fee and used within the scope of the license granted under this Agreement (unmodified from the form provided by Adxstudio and not combined with anything else), misappropriates a trade secret or directly infringes a patent, copyright, trademark or other proprietary right of a third party. The indemnification obligation set forth in this section 9.02 is conditioned upon Customer: (i) promptly notifying Adxstudio of any claim which may be subject to indemnification under this Section 9.02; (ii) granting Adxstudio sole control over the defense and/or settlement of any such claim; and (iii) assisting Adxstudio as reasonably requested by Adxstudio. If Adxstudio is unable to resolve a claim of infringement under commercially reasonable terms, it may, at its option, either: (1) modify or replace the Software Product with a functional equivalent; or (2) terminate Customer’s license and refund any prepaid license fees, less depreciation on a five-year, straight-line basis for perpetual licenses. Adxstudio will not be liable for any claims or damages due to Customer’s continued use of a Software Product after being notified to stop due to a third-party claim.
10 AGREEMENT TRANSITION
10.01 At such time that Microsoft makes the Software Product commercially available through Microsoft’s standard distribution channels, Customer shall have the option to transition from this Agreement to a new agreement with Microsoft. In the event that Customer elects to exercise such option, this Agreement and any related Order Form(s) will automatically terminate and the pricing, terms and conditions of the agreement with Microsoft will replace and supersede the pricing, terms and conditions of this Agreement; provided, however, that Microsoft will continue to provide Support Services to Customer under the terms set forth in an Order Form until such Order Form expires or is terminated.
11 VERIFYING COMPLIANCE FOR SOFTWARE PRODUCTS
11.01 Right to verify compliance. Customer must keep records relating to all use and distribution of Software Products by Customer and its Affiliates. Adxstudio has the right, at its expense, to verify compliance with the Software Products’ license terms. Customer must promptly provide any information reasonably requested by the independent auditors retained by Adxstudio in furtherance of the verification, including access to systems running the Software Products and evidence of licenses for Software Products that Customer hosts, sublicenses, or distributes to third parties. Customer agrees to complete Adxstudios self-audit process, which Adxstudio may request as an alternative to a third party audit.
11.02 Remedies for non-compliance. If verification or self-audit reveals any unlicensed use of Products, then within 30 days (1) Customer must order sufficient licenses to cover its use, and (2) if unlicensed use is 5% or more, Customer must reimburse Adxstudio for the costs Adxstudio incurred in verification and acquire the necessary additional licenses at 125% of the price, based on the then-current price list and customer price level. The unlicensed use percentage is based on the total number of licenses purchased for current use compared to actual installed base. If there is no unlicensed use, Adxstudio will not subject Customer to another verification for at least one year. By exercising the rights and procedures described above, Adxstudio does not waive its rights to enforce this Agreement or to protect its intellectual property by any other legal means.
12.01 “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including the terms of Adxstudio or Microsoft agreements. Confidential Information does not include information that (1) becomes publicly available without a breach of this Agreement, (2) the receiving party received lawfully from another source without a confidentiality obligation, (3) is independently developed, or (4) is a comment or suggestion volunteered about the other party’s business, products or services.
12.02 Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose that Confidential Information to third parties, except to its employees, Affiliates, contractors, advisors and consultants (“Representatives”), and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use and misuse of the Confidential Information by its Representatives and in the event of discovery of any unauthorized use or disclosure must promptly notify the other party.
12.03 A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.
12.04 Neither party is required to restrict work assignments of its Representatives who have had access to Confidential Information. Each party agrees that the use of information retained in Representatives’ unaided memories in the development or deployment of the parties’ respective products or services does not create liability under this Agreement or trade secret law, and each party agrees to limit what it discloses to the other accordingly.
12.05 These obligations apply for all Confidential Information for a period of five years after the Confidential Information is received.
13.01 Applicable law. This Agreement will be governed by and construed in accordance with the laws of the State of Washington and federal laws of the United States. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement. For purposes of all claims brought under this Agreement, each of the parties hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in King County, State of Washington, United States of America.
13.02 Assignment; Delegation. Customer shall not assign any of its rights or obligations hereunder without Adxstudio’s prior written consent, which shall not be unreasonably withheld. Adxstudio may assign its rights and obligations hereunder to an Affiliate or to a successor in interest pursuant to a merger, consolidation or sale of substantially all of its assets related to this Agreement, in which case Adxstudio will provide notice to Customer. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. For purposes of this Agreement, “Affiliate(s)” means any legal entity that a party owns, that owns a party, or that is under common ownership with a party. For purposes of such definition, “ownership” means control of more than a 50% interest in a party.
13.03 Severability. If any provision in this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.
13.04 Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.
13.05 No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights.
13.06 Notices. Notices to Adxstudio must be in writing and will be treated as delivered on the date shown on the return receipt or on the courier or fax confirmation of delivery. Adxstudio may provide information to Customer about upcoming ordering deadlines, services and subscription information in electronic form, including by email to contacts provided by Customer.
13.07 Amendments. Any amendment to this Agreement must be executed by both parties. Any conflicting terms and conditions contained in Customer’s purchase order will not apply. Adxstudio may require Customer to sign a new agreement or an amendment to an existing agreement before processing a new order.
13.08 Survival. All provisions survive termination of this Agreement except those requiring performance only during the term of the Agreement.
13.09 Calendar days. Any reference in this Agreement to “day” will be a calendar day.
13.10 Export. The Software Product is subject to U.S. export jurisdiction. Customer must comply with all applicable international and national laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end use and destination restrictions by U.S. and other governments related to Adxstudio’s products, services, and technologies.