END USER LICENSE AGREEMENT
Section 1. Software License.
1.1 Grant of License. Subject to the provisions of this Agreement, Asset Management International LLC (“AMI”) grants to Licensee a single, non-exclusive, non-transferable license, without right to sub-license, during the License Term, to: (i) install the mobile software on authorized mobile devices; and (ii) install the server software on one authorized production servers. Licensee may also install the server software on development, testing, training and disaster recovery servers so long as only one server is used in a production capacity at any given time.
1.2 Reservation. All rights to the Software and Documentation not expressly granted to Licensee in this Agreement are reserved by AMI. Without limiting the foregoing, Licensee shall use the Software only for the purposes specified in the Documentation and in accordance with the following:
1.2.1 Licensee shall ensure that no more than the maximum number of Assets authorized by purchase order under this License Agreement exist in the production server database at any one time. AssetTrack license fees authorize customers to track up to a certain number of Assets. “Asset” includes, without limitation, any object such as a laptop, desktop, monitor, cell phone, printer, desk, cabinet, piece of artwork or other physical object that the Customer tracks using the software. Assets which have been disposed or returned and are no longer in the possession of the Customer are not counted against the maximum asset count.
1.2.2 Licensee shall not modify, translate, decompile, create or attempt to create, by reverse engineering or otherwise, the source code from the object code supplied hereunder or use it to create a derivative work or knowingly allow any third party to do so in competition with AMI.
1.2.3 Licensee shall not sublicense, sell, lend, rent, lease, give, transfer, assign, or otherwise dispose of all or any portion of the Software or any interest in the Software. Any such transfer or disposition without such consent shall be voidable at AMI’s option.
1.2.4 Licensee shall not export or re-export, directly or indirectly, any Software in violation of any applicable export control laws. Without limiting the generality of the foregoing, Licensee shall not export or re-export the Software to any country to which such export or re-export is prohibited by U.S. export control laws without obtaining permission of the United States Office of Export Administration or its successors. At AMI’s written request, Licensee shall provide AMI with any "Letter of Assurance" required to be obtained by AMI under United States export laws and regulations.
1.2.5 In addition to its reproduction rights with regard to the Software under the License, Licensee may reproduce the Software as necessary for bona fide back-up or archival purposes only. Licensee shall be responsible for maintaining current archival copies of Licensee's data and Licensee expressly releases AMI from liability for any loss of data, corruption or other damage of such data for any reason, including without limitation, loss, corruption or damage occurring as result of a failure of the Software to operate as set forth in the Documentation.
1.3 No Conveyance of Ownership. This Agreement does not convey to Licensee ownership of the Software, but only the right to use the Software in strict accordance with this Agreement. Licensee acknowledges that AMI is the sole and exclusive owner of the Software and related copyrights; that the Software and all technical data and information associated therewith constitute trade secrets and are the valuable property of AMI; and that the Software is protected by copyright and trademark.
1.4 Confidential Information. Licensee agrees that the Software contains proprietary information, including trade secrets, know-how and confidential information, that is the exclusive property of AMI. During the period this Agreement is in effect and at all times after its termination, Licensee and its employees and agents shall maintain the confidentiality of this information and not sell, license, publish, display, distribute, disclose or otherwise make available this information to any third party nor use such information except as authorized by this Agreement.
1.5 Term and Termination.
1.5.1 This License Agreement shall be effective upon acceptance and shall continue in perpetuity unless the Agreement is terminated in accordance with Section 1.5.2.
1.5.2 In the event of a material breach or default under this Agreement by Licensee, AMI may terminate this Agreement by giving Licensee written notice of the breach or default and AMI’s intention to terminate. The Agreement shall automatically terminate thirty (30) days after delivery of such notice unless Licensee cures the breach or default before the expiration of the thirty (30) day period. Upon termination, all outstanding invoices from AMI or its authorized reseller relating to this Agreement shall become due immediately.
1.5.3 Licensee may terminate this Agreement with immediate effect at any time, with or without cause, provided that the Licensee will comply with the conditions as set forth in Section 1.5.4 below. Licensee will remain responsible for any fees due and payable at the time of termination.
1.5.4 After termination of this Agreement, Licensee shall destroy all copies of the Server Software and the Mobile Software within five (5) days of such termination, (including any modified, partial or merged versions), and all copies of the Documentation within twenty (20) days of such termination, and immediately thereafter provide AMI with a written certification signed by an authorized representative of Licensee certifying that all copies of the Software and Documentation have been destroyed and all use of the Software has been discontinued.
Section 2. Payment and Records.
2.1 Payment Terms.
2.1.1 Licensee shall be required to pay AMI or their authorized reseller the fees set forth in Exhibit B in a valid purchase order that is accepted by AMI.
2.1.2 Licensee shall be responsible for any applicable sales or use taxes or any value added or similar taxes payable with respect to the licensing of the Software to Licensee, or arising out of or in connection with this Agreement, other than taxes levied or imposed in the United States of America based upon AMI’s income.
2.1.3 If applicable law of any country from which Licensee pays fees to AMI, or to which AMI ships Software to Licensee, requires Licensee to withhold any income taxes levied by the country authorities on payments to be made pursuant to this Agreement ("Withholding Taxes"), Licensee shall take advantage of the reduced Withholding Tax provided for by the country/United States tax treaty then in force and shall be entitled to deduct such Withholding Tax from the payments due to AMI under this Agreement. Licensee shall promptly effect payment of the Withholding Tax to the appropriate tax authorities and shall transmit to AMI within 15 days of such payment official tax receipts or other evidence issued by the appropriate tax authorities sufficient to enable AMI to support a claim for income tax credits in the United States. Licensee further shall assist AMI at AMI’s expense, upon request, if AMI contests to the country government in question, by appropriate legal or administrative proceedings, the validity or amount of the Withholding Tax. In the event that AMI does not receive official tax receipts within 30 days, AMI shall have the right to invoice Licensee for such Withholding Tax and Licensee agrees to pay such amounts upon receipt of invoice.
2.1.4 A finance charge of one and one-half percent (1.5%) per month will be charged on amounts not paid within the applicable time frame provided herein.
2.2 Accounting and Records. Licensee shall keep current, complete and accurate records regarding the location, model name, serial number of all Production Servers on which the Server Software is installed and shall provide such information to AMI upon request. Upon request, AMI or its authorized agent, may inspect, audit, and copy such records of Licensee related to this Agreement and access the Server Software at any time during Licensee's regular business hours upon thirty (30) business days' prior written notice provided that such right may be exercised no more than once during any calendar year and solely for determining Licensee's compliance with the provisions of this Agreement. If any such audit discloses any understatement of the license fees due, Licensee shall promptly pay to AMI or its authorized reseller any deficiency, plus interest at a rate provided in Section 2.1.4 from the date such payment should have been made until paid. Acceptance of any such payments shall be without prejudice to AMI’s rights for statements or audits hereunder. Any information received by AMI in conjunction with the audit shall be solely for the specific purposes of this Agreement. AMI shall ensure that, except for purposes of enforcement of this Agreement, it will keep confidential all confidential information of Licensee that AMI receives or obtains.
Section 3. Warranties, Remedies, and Maintenance.
3.1.1 Scope of Warranty. AMI warrants to Licensee that for a period of ninety (90) days from the date of download the Software will perform in all material respects in accordance with the applicable specifications set forth in the Documentation delivered by AMI and in the attachments or exhibits to this Agreement.
3.1.2 Disclaimer of Any Other Warranty. THE LIMITED WARRANTY SET FORTH IN SECTION 3.1.1 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
3.1.3 In the event Licensee purchases support and maintenance services from AMI, this Support and Maintenance Agreement defines the scope of these services.
Section 4. Miscellaneous.
4.1 Limitation of Remedy. IN NO EVENT SHALL EITHER PARTY BE LIABLE (WHETHER IN TORT, NEGLIGENCE, CONTRACT, WARRANTY, PRODUCT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS OR SAVINGS ARISING OUT OF ITS PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT OR THE USE, INABILITY TO USE OR RESULTS OF USE OF THE SOFTWARE EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.2 Limitations of Liability. Neither party's liability (whether in tort, negligence, contract, warranty, product liability or otherwise) with regard to this Agreement or any Software or other items furnished under this Agreement shall exceed the license fees paid by Licensee under this Agreement.
4.3 Injunctive Relief. Licensee and AMI acknowledge that their respective obligations with respect to the use and provision of the Software are essential elements of the transactions contemplated in this Agreement; that, but for the agreement of each of them to comply with such obligations, the other would not have entered into this Agreement; and that damages will be an inadequate remedy if the other violates the terms of this Agreement, or otherwise fails to perform its obligations hereunder. Accordingly, each of them shall have the right, in addition to any other rights each of them may have, to obtain in any court of competent jurisdiction, temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce any of the obligations in this Agreement.
4.4 Notices. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered in person or mailed (return receipt requested), properly addressed and stamped with the required postage, to the intended recipient at its address specified herein, or sent via confirmed facsimile and confirmed by first class mail. Either party may from time to time change its address by giving the other party notice of the change in accordance with this Section 5.4.
4.5 Assignment. Neither party shall assign any of its rights under all or any part of, this Agreement, directly, by operation of law, or otherwise, without the prior written consent of the other party, which shall not be unreasonably withheld. Subject to the foregoing restriction on assignment by both parties, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
4.6 Nonwaiver. Any failure by either party to insist upon or enforce performance by Licensee of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law shall not be construed as a waiver or relinquishment of either party's right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right, or remedy shall be and remain in full force and effect.
4.7 Attorney's Fees and Expenses. In the event of any proceeding under this Agreement, the prevailing party in any such proceeding shall be entitled to reasonable attorney's fees and expenses, including the full cost of any arbitration, trial and any appeal.
4.8 Applicable Laws; Forum. This Agreement shall be interpreted, construed, and enforced in accordance with the laws of the State of Washington without reference to its choice of law rules and not including the 1980 UN Convention on Contracts for the International Sale of Goods. Plaintiff party may only commence or prosecute a suit, proceeding, or claim to enforce the provisions of this Agreement relating to the Software, or other items furnished under this Agreement, or otherwise arising under or by reason of this Agreement, in a court of competent jurisdiction in the state of the defendant party, which shall be Washington if AMI is the defendant party.
4.9 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements and representations between AMI and Licensee related to the Software and other items furnished under this Agreement. This Agreement may not be amended except by a written instrument executed by both parties.