This Software License Agreement the "Agreement" is between Monterey Bay Software, Inc. ("MBS" or "Licensor") and any party using MBS's custom software ("Licensee"). Hereinafter jointly referred to as the "Parties" and individually, as a "Party".
Now therefore, the Parties have agreed as follows:
1. LICENSE GRANT AND OWNERSHIP
a. Subject to BFI's compliance with all of the terms and conditions of this Agreement, MBS hereby grants to Licensee a limited, annual, non-exclusive, non-transferable and non-assignable license during the Term to intall and use the Software solely for Licensee's internal business use.
b. Software shall mean executable object code of software programs and the patches, scripts, modificaitons, enhancements, designs, concepts or other materials that constitute the software programs necessary for the proper function and operation of the system as delivered by MBS and accepted by Licensee.
c. MBS shall at all times own all intellectual proprty rights in the software.
2. COPIES, MODIFICATION, AND USE
a. Licensee may make copies of the software for archival purposes and as required for modifications to the system. All copies and distribution of the software shall remain within the direct control of Licenses and its representatives.
b. In no way does this Software License confer any right to Licesnsee to licesnse, sublicense, sell or otherwise authorize the use of the software, whether in executable form, source code or otherwise, by any third parties, except in connection with the use of the system as part of Licensee's business.
3. OWNERSHIP AND PROPRIETARY RIGHTS
a. MBS retains all right, title, and interest in and to the Licensed Software, the documentation and associated intellectual property rights.
b. This Software is protected by the United States and international proprty laws. This Software is licensed, and not sold, to Licensee under this Agreement.
c. Nothing contained herein is intended, or shall be deemed, to transfer to Licensee any ownership or other rights in or to such Software, except the right to use the Software disclosed to Licensee hereunder to the extent in accordance with the terms and conditions of this Agreement. MBS reserves all rights not expressly granted in this agreement.
4. PAYMENT
a. Licensee shall pay MBS monthly for the above services as regularly invoiced.
5. TERM AND TERMINATION
a. This Agreement shall commence on the Effective Date and shall continue so long as BFI complies with the terms of this Agreement and uses the Licensed Software in compliance with this agreement.
b. This Agreement automatically renews for successive 1-year renewal terms beginning on January 1, 2017 so long as Licensee has paid the required fees in accordance with section 5; however, either party may terminate the Agreement by providing the other party with written notice of cancellation at least 90 days before the expiration of the then-current term.
c. In the event of termination of this Agreement, Licensee shall, upon the effective date of such termination, cease using the Licensed Software and, at MBS's discretion, immediately return to MBS the Licensed Software and documentation, and all copies thereof.
6. Indemnity
a. Licensee agrees to indemnify, defend and hold harmless MBS and its respective representatives, successors and assigns from and against any and all third party claims, liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees and expenses) related to or arising from Licensee or Licensee's representatives': (i) negligence or willful misconduct; (ii) breach of this Agreement; or (iii) violation of applicable federal, state and local laws, rules, regulations, ordinances and codes.
b. MBS agrees to indemnify and defend Licensee against any third party claim that Licenses's use of the Licensed Software pursuant to this Agreement infringes a United States patent or copyright or involves the misappropriation of a trade secret.
7. LIMITED WARRANTEIS
a. MBS warrants and represents that it is the copyrite holder of the Software. MBS warrants and represents that granding the licesnse to use this Software is not in violation of any other agreement, copyrite or applicable statute.
8. LIMITATION OF LIABILITY
a. The Software is provided by MBS and accepted by Licensee "as is". MBS will not be liable for any general, special, incidental or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantages suffered by BFI arising out of the use or failure of the software.
b. MBS makes no warranty expressed or implied regarding the fitness of the Software for a particular purpose or that the Software will be suitable or appropriate for the specific requirements of Licensee.
c. MBS does not warrant that the use of the Software will be uninterrupted or error-free. Licensee accepts that software in general is prone to bugs and flaws within an acceptable level as determined in the industry.
9. ASSIGNMENT
a. Licensee may not assign or delegate any or all of its rights, obligations, and duties under this Agreement without the prior written consent of MBS, which may be withheld in MBS's sole discretion. Nothing contained in this Agreement, whether express or implied, is intended to confer on any perosn or entity other than the parties to it and their successors in interest and permitted assigns, any rights or remedies under or by reason of this Agreement.
10. CHOICE OF LAW AND VENUE
a. This Agreement shall be governed by and construed according to the laws of California as applied to contracts made and to be performed entirely in California, but without reference to California’s rules regarding conflicts of laws. All actions under this Agreement shall be brought in a court of competent jurisdiction in Santa Cruz County, California, and in no other jurisdiction.
11. ARBITRATION
a. Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be conclusively resolved through binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association. Judgment of the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Each party will bear its own costs and attorney fees, unless the arbitration award specifically provides otherwise.
12. SEVERABILITY
a. If any provision of this License is to be held unenforceable, such holding will not affect the validity of the other provisions hereof.
13. ENTIRE AGREEMENT; AMENDMENT
a. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements, whether written or oral, between the parties relating to the subject matter hereof and all past courses of dealing. No modification or amendment to this agreement shall be effective unless in writing and signed by each of the parties.