INFORMXL INC. LICENSE AGREEMENT – INFORMXL ANALYZER, INFORMXL DATAMART
This End User License Agreement (the “Agreement”) is entered into by and between INFORMXL INC., a Colorado corporation (“Licensor”), and (a) the Entity named on the Invoice, or (b) the Entity that activated the Software license (“Licensee”).
Any of the following acts by Licensee shall constitute Licensee’s acceptance of the terms and conditions of this Agreement and Licensee’s agreement to be bound thereby:
(a) any use of the Software;
(b) clicking to signify acceptance of this Agreement during the Software license activation process;
(c) loading or installing any of the files or database components or any other files of the Software into memory or virtual memory of any computer;
(d) signed execution of this Agreement;
(e) acceptance of a price quote or payment of an Invoice that references this Agreement;
Licensee shall have no rights to the Software or any use thereof unless Licensee has accepted the terms and conditions of this Agreement and agreed to be bound thereby. This Agreement begins as of the Licensee’s acceptance of the terms and conditions hereof.
IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSEE MAY NOT USE THE SOFTWARE AND LICENSEE IS REQUIRED TO PROMPTLY UNINSTALL AND DESTROY ALL COPIES OF THE SOFTWARE AND CONFIRM IN WRITING TO LICENSOR THAT THE SOFTWARE AND HAS BEEN SO DESTROYED.
1. DEFINITIONS: In this Agreement, in addition to terms defined in other sections, the following terms shall have the following meanings:
“Database” means a database hosted on a Microsoft SQL Server instance, including all data, information, and other materials contained therein. The Database may be owned by either the Licensor or the Licensee, and may be used in connection with the provision of services or software products as specified in this agreement. The term “Database” may be used interchangeably with the term “SQL Server database”.
“Division” means an office location with a distinct address within a city or region where Licensee maintains staff and manages accounting, sales, production, or any other types of business activities. When the Software is licensed on a Division basis, each of Licensee’s Divisions is required to maintain a separate and distinct Software subscription, and additional subscription fees shall apply accordingly.
“Entity” means an individual or a legally recognized business entity and affiliates.
“Invoice” means the invoice issued by Licensor to Licensee in connection with this Agreement which sets out: (i) the Software being licensed by Licensee, (ii) the number of Named Users, Job Starts, Divisions, or Databases being licensed by Licensee, (iii) the fees payable by Licensee, (iv) the applicable payment terms, (v) the Subscription Term period, and (vi) such other pertinent information as Licensor may determine. The Invoice shall form part of this Agreement.
“Job Start” shall refer to the beginning of construction activities related to a specific lot, unit, or building, which may include stake, excavation, or foundation work necessary for the structure. The date on which any of these activities are initiated and entered into the home builder software management system shall be considered the “job start date” or “lot start date.” If the Software is licensed on a Job Start basis, each Job Start occurring during the Subscription Term shall require a separate and distinct Software subscription, and additional subscription fees shall apply accordingly.
“Licensee Data” means the data and information owned by Licensee that the Software accesses.
“Named User” means any specific individual to whom Licensee enables access to the Software and who uses the Software. When the Software is licensed on a Named User basis, each of Named User is required to maintain a separate and distinct Software subscription, and additional subscription fees shall apply accordingly.
“Software” means Licensor’s proprietary software as described in the Invoice, and all improvements, modifications and derivative works thereto to the extent made available by Licensor.
“Subscription Term” means the period in which Licensor grants Licensee access rights to install and use Software. Unless otherwise specified in the Invoice, a Subscription Term is a 12-month period following Licensee’s acceptance of this Agreement.
“Third-Party Software” means software not developed or licensed by Licensor, including but not limited to, software from Microsoft Corporation, Constellation Homebuilder Systems, or Hyphen Solutions.
2. GRANT OF LICENSE AND TERM
2.1. Subject to compliance with the terms and conditions of this Agreement, Licensor grants Licensee, and Licensee accepts, a non-exclusive, non-transferable, non-assignable, limited license to use the Software, in object code form only, for the duration of the Subscription Term. Licensee understands that this is not a sale of the original Software and its products or of any copy or copies.
2.2. Licensee’s subscription shall automatically renew upon payment of any renewal invoice by the invoice due date. The terms of each renewal period shall be specified in the invoice. Each subsequent renewal term shall be governed by the terms and conditions of this Agreement, unless otherwise modified by Licensor. Licensor reserves the right to increase the subscription fees for each renewal term.
3. SCOPE OF LICENSE
3.1. The informXL Analyzer Software product (“Analyzer Software”) is licensed on either a Named User, Job Start, or Division basis (“Analyzer License Type”). The Analyzer License Type and related subscription details will be specified in Licensee’s Invoice. Licensee is solely responsible for purchasing and licensing all Third-Party Software required to run the Analyzer Software.
3.2. The informXL Datamart Software product (“Datamart Software”) is licensed on a per Database basis, whereby each Datamart Software Database is required to maintain a separate and distinct subscription. The Datamart Software subscription details will be specified in Licensee’s Invoice. Each Datamart Software subscription requires an active and current license of the Analyzer Software to operate. Licensee is solely responsible for purchasing and licensing all Third-Party Software required to run the Datamart Software.
3.3. Subject to the limitations outlined herein, as the Licensee, you may physically transfer the Software from one computer to another, provided that the Software is used by the Licensee. You may not distribute copies of the Software or its component parts to others or modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software without the prior written consent of Licensor.
3.4. Licensee provides Licensor and its trusted partners and affiliates limited rights to access Licensee Data for the purposes of providing Software and Software product support to Licensee.
3.5. Licensee is responsible for safeguarding and limiting access of Software and Licensee Data to that of approved Licensee employees and affiliates.
3.6. Licensor may collect or require Licensee to provide Software technical and usage information, including but not limited to technical information about Licensee system hardware, system and application software, Software users, and Software use. This data will be gathered periodically to facilitate the provision of Software updates, product support and other services to Licensee, and to verify compliance with the terms of this License Agreement.
3.7 Licensor will continue to own all right, title and interest, including copyrights, in and to the Software, including any improvements, modifications or derivative works to the Software.
4. LIMITATIONS ON USE
4.1. Licensee is prohibited from using the Software in any manner other than as described herein. Further, Licensee is prohibited from (i) copying, modifying, adapting, enhancing or otherwise changing or supplementing the Software (except as permitted through normal use); (ii) distributing, sub-licensing or otherwise transferring the Software directly or through third parties; (iii) altering or removing any copyright or other proprietary rights notices in the Software; (iv) using the output generated from the Software, including but not limited to reports, models, input files, or images (including screenshots), for the benefit of third parties, resale, distribution, or publication; and (v) reverse engineering, decompiling or disassembling the Software or otherwise attempting to access or discover the source code of the Software.
5. LIMITED WARRANTY AND LIMITATIONS OF LIABILITY
5.1. Unless explicitly stated otherwise in this Agreement, the Software, documentation, and any services offered by the Licensor are provided on an “as is” basis. If the Licensee is not satisfied with the Software for any reason, the Licensee may uninstall and destroy the Software and documentation within sixty (60) days of the initial acceptance of the Software license. The Licensee must then confirm in writing to the Licensor that the Software has been completely destroyed. Upon receiving this confirmation, the Licensor will refund the Licensee in full for any prepaid Software license fees. THIS WARRANTY IS IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, THAT MAY ARISE EITHER BY AGREEMENT BETWEEN THE PARTIES OR BY OPERATION OF LAW, AND LICENSOR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.2. In no event shall Licensor its parents, affiliates and subsidiaries or their distributors be liable for any damages whatsoever, including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss or consequential, special or incidental damages, arising out of the use of or inability to use the Software, or arising out of services related to the Software, even if Licensor has been advised of the possibility of such damages.
5.3. In the event of a claim by Licensee under this limited warranty, Licensor shall have the option to either repair or replace the Software at its discretion. In the event that Licensor fails to repair or replace the Software, Licensee’s sole and exclusive remedy under any provision of this Agreement shall be to terminate the Agreement, and Licensor’s sole obligation shall be to return one-twelfth (1/12th) of the subscription fees paid by Licensee for the then-current Subscription Term.
5.4. Licensee acknowledges and agrees that the Software incorporates and relies upon core functionality of Third-Party Software. Licensee further acknowledges and agrees that the features or functionality of the Software that are written by, provided by, or controlled by Third-Party Software are not warranted by the Licensor. To the fullest extent permitted by applicable law, the Licensor disclaims all warranties, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, and non-infringement, with respect to any such Third-Party software features or functionality.
6.1. Without prejudice to any other rights, Licensor may terminate this License Agreement if Licensee fails to comply with the terms and conditions of the Agreement, including payment obligations, provided Licensor has provided written notice to Licensee of Licensee’s failure to comply and given Licensee thirty (30) days to comply. The following termination rights are in addition to the termination rights that may be provided for elsewhere in the Agreement or under applicable law.
6.2. Following termination of the Agreement for any reason, Licensee shall pay Licensor all amounts due to Licensor within fifteen (15) days of notice of termination. Any amounts due Licensor which are not paid within this time period shall accrue the highest applicable rates of interest allowed by law up to 2% per month.
6.3. Upon expiration or termination of the Agreement for any reason, all rights granted to Licensee under the Agreement shall terminate and Licensee shall discontinue all use of the Software. All of Licensee’s obligations regarding Licensor’s proprietary rights shall survive the expiration or termination of the Agreement. Licensor may require that Licensee transmit to Licensor, at no cost, all materials relating to the Software. Upon expiration or termination of the Agreement, Licensee must provide, upon request by Licensor, written verification that it has destroyed all copies of the Software and all of its component parts.
7. ADDITIONAL TERMS
7.1. If any provision or portion of this Agreement is invalid under any applicable statute or rule of law, then that provision shall be deemed to be restated to reflect as nearly as possible under applicable law, the original intentions of the parties, and the rest of this Agreement shall remain in full force and effect. This Agreement contains the entire understanding and agreement between the parties relating to the subject matter hereof. Any representation, promise, or condition not explicitly set forth in this Agreement shall not be binding on either party.
7.2. This Agreement shall be binding on and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors and assigns. This Agreement constitutes the entire understanding of the parties and is intended as a final expression of their Agreement. It may only be modified or amended in writing and signed by both parties.
7.3. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of Colorado. Licensee consents to exclusive jurisdiction of the state and federal courts in Denver, Colorado concerning any claim or matter arising out of or in connection with the software or this Agreement.
END OF SOFTWARE LICENSE AGREEMENT