ZEQUEL TECHNOLOGIES INC. SOFTWARE LICENSE AGREEMENT ("AGREEMENT") IMPORTANT: READ THESE TERMS CAREFULLY BEFORE DOWNLOADING AND INSTALLING THIS SOFTWARE. BY DOWNLOADING, OR OTHERWISE USING THIS SOFTWARE, YOU (THE "LICENSEE") ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT AN AUTHORIZED USER OF THE SOFTWARE AND IT IS YOUR RESPONSIBILITY TO TERMINATE THE INSTALLATION PROCESS.
Terms and Conditions
1.Definitions.
“Authorized Use” means the installation and operation of the Licensed Program solely for the number of Users for which Licensee ordered and for which Licensee has paid the applicable License Fee.
“Confidential Information” is defined in Section 6.1.
“Designated Site” means the physical facility where Licensee first downloads and installs the Licensed Program.
“Documentation” is defined in Section 2.1.
“Effective Date” means the date that Licensee receives the License Key for Licensed Program from Zequel.
“License” is defined in Section 2.1.
“License Fee” means the license fee payable for the License at the per User fee set forth in Zequel's then current price list, plus any applicable Taxes.
“Licensed Program” means Zequel software purchased by Licensee, the current, generally released version as of the Effective Date, as installed by this installation process, and any Upgrades thereto provided by Zequel pursuant to Software Maintenance and Support Services, in machine-executable form only.
“Software” is defined in Section 2.1.
“Services Fees” is defined in the Support Terms.
“Software Maintenance and Support Services” is defined in the Support Terms.
“Support Terms” means Zequel’s standard Software Maintenance and Support Terms and Conditions, set out in Exhibit A to this Agreement, attached hereto and made a part hereof by reference.
“Taxes” is defined in Section 4.2.
“Term” is defined in Section 10.1.
“Upgrades” is defined in the Support Terms.
“Zequel” means Zequel Technologies Inc., a Florida (USA) Corporation.
1.The Right to Use Software.
1.License. Subject to the terms and conditions set forth below and Licensee's payment of the License Fee, Zequel grants to Licensee a limited, non-exclusive and non-transferable license (the "License"), during the Term (as defined below) to install and operate the Licensed Program, in machine-executable form only, and the associated delivered documentation (the "Documentation" which, with the Licensed Program, is referred to as the "Software").
1.Use. The Software may be used (i) only by Licensee's employees, only for the Authorized Use, (ii) only at the Designated Site for which Licensee ordered and for which Licensee has paid the applicable License Fee. Licensee may only use the Software for its internal business use and not in the operation of a service bureau, time-sharing or outsourcing service or for the benefit of any other person or entity.
1.Restrictions. Licensee may only make one copy of the Software as necessary for bona fide backup or archival purposes. No identifying marks, copyright or proprietary rights notices may be deleted from any copies of the Software made by Licensee. Licensee shall not rent, transfer, distribute, modify or translate the Software or decompile, create or attempt to create, by reverse engineering or otherwise, the source code from the object code of the Software, or adapt the Software, or any portion thereof, in any way or use it to create a derivative work.
1.Software Maintenance and Support Services.
Licensee may elect to purchase Software Maintenance and Support Services by so ordering from Zequel and paying Zequel the applicable Software Maintenance and Support Services Fees in accordance with the Support Terms.
1.Payment.
1.Payment of Fees. Licensee shall pay the non-refundable License Fee prior to installing the Software. At Licensee's option during acceptation process, Zequel will either charge the License Fee to the credit or debit card account provided by Licensee, or provide Licensee with a purchase order to print out, duly execute and fax or mail to Zequel followed by a check or wire transfer of the License Fee.
1.Taxes. Licensee shall, in addition to all other payments required hereunder, pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby; excluding, however, income taxes on profits which may be levied against Zequel ("Taxes"). Licensee shall reimburse Zequel for the amount of any such Taxes or duties paid or accrued directly by Zequel as a result of this transaction.
1.Late Payment. If payment is not received by Zequel from Licensee's credit or debit card issuer or its agents, Licensee agrees to pay all amounts due upon demand by Zequel. If Licensee fails to pay License Fees or Software Maintenance and Support Fees by their due date, without limitation of other rights and remedies, at Zequel's request, Licensee shall pay late charges of one and one half percent (1.5%) per month, together with all of Zequel's expenses and collection costs, including reasonable attorneys' fees, incurred in enforcing the Agreement. Payments shall be paid in U.S. currency. Any rate of exchange which may be applicable to payments due or other monetary calculations for purposes of this Agreement shall be the rate set forth in the Wall Street Journal on the day that the payment is due.
1.Proprietary Rights.
1.Title to Software. Licensee acknowledges that the Software (and any copies thereof) are the sole and exclusive property of Zequel or Zequel's licensors, including all applicable rights to patents, copyrights, trademarks and trade secrets inherent therein or appurtenant thereto, in all media now known or hereinafter developed.
1.Licensee’s Rights. Licensee is not purchasing title to the Software or copies thereof, but rather is being granted only a license to use the Software.
1.Rights Reserved by Zequel. All rights not granted to Licensee herein are reserved to Zequel.
1.Confidentiality.
1.Restrictions on Use. Licensee shall not sell, transfer, publish, disclose, display or otherwise make available to others any portion of the Software, the financial terms of this Agreement, or any other information identified in writing by Zequel as confidential or proprietary or which, at law or equity, ought to remain confidential (collectively, the "Confidential Information") without Zequel's prior, written consent in each instance.
1.Disclosure to Employees. Licensee agrees to secure and protect the Confidential Information in a manner consistent with the maintenance of Zequel's right therein and to take appropriate action by instruction or agreement with its employees who are permitted access to the Confidential Information to satisfy Licensee’s obligations hereunder.
1.Identifying Unauthorized Use. Licensee shall use its best efforts to assist Zequel in identifying and preventing any unauthorized use, copying or disclosure of the Confidential Information, or any portion thereof, or any of the algorithms or logic contained therein. Licensee shall advise Zequel immediately in the event Licensee learns or has reason to believe that any person to whom Licensee has given access to the Confidential Information, or any portion thereof, has violated or intends to violate the confidentiality of the Confidential Information or the proprietary rights of Zequel, and Licensee will, at Licensee's expense, cooperate with Zequel in seeking injunctive or other equitable relief in the name of Licensee or Zequel against any such person.
1.Degree of care. Licensee agrees to maintain the confidentiality of the Confidential Information using at least as great a degree of care as Licensee uses to maintain the confidentiality of Licensee's own most confidential information.
1.Remedies on Breach. Licensee acknowledges that the disclosure of any aspect of the Confidential Information will immediately give rise to continuing irreparable injury to Zequel inadequately compensable in damages at law, and Zequel is entitled to obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available. In addition, Zequel may immediately terminate this Agreement, including all license rights granted herein, in the event Licensee breaches any of its confidentiality obligations herein.
1.Indemnity.
Licensee will, at its own expense, defend any action brought by a third party against Zequel to the extent that such action is based on a claim arising from or relating to Licensee's use of the Software, provided Zequel promptly notifies Licensee in writing of any such claim and, provided further, that Licensee shall have the exclusive right to control such defense. Licensee's obligation in this Section 7 shall be relieved by Zequel's failure to promptly notify Licensee of a claim only to the extent that Licensee is materially prejudiced by such failure.
In no event shall Licensee settle any such claim, lawsuit or proceeding in any manner that materially prejudices Zequel's rights without Zequel's prior written approval.
1.Warranty.
ALL SOFTWARE AND SERVICES OF ZEQUEL ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE AND NONINFRINGEMENT). ZEQUEL DOES NOT WARRANT THAT THE SOFTWARE WILL BE DELIVERED OR PERFORM ERROR-FREE OR WITHOUT INTERRUPTION. LICENSEE'S USE OF THE SOFTWARE IS AT LICENSEE'S OWN RISK.
1.Limitation of Liability.
ZEQUEL AND ZEQUEL'S LICENSORS SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF ZEQUEL OR ZEQUEL'S LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ZEQUEL OR ZEQUEL'S LICENSORS BE LIABLE FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER RELATING TO ANY THIRD PARTY SOFTWARE OR HARDWARE. IN NO EVENT SHALL ZEQUEL'S AGGREGATE LIABILITY FOR ANY REASON(S) AND UPON ANY CAUSE(S) OF ACTION WHATSOEVER EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY LICENSEE TO ZEQUEL UNDER THIS AGREEMENT.
1.Term and Termination.
1.Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall continue perpetually as specified in the purchase order, unless terminated earlier pursuant to this Agreement.
1.Termination. In addition to its rights as set forth elsewhere in this Agreement, at law or in equity: (i) Zequel shall have the right to terminate this Agreement upon thirty (30) days written notice to Licensee upon material violation or breach by Licensee, its officers or employees of any provision of this Agreement, in the event that such breach has not been cured within such period, and (ii) this Agreement shall automatically terminate in the event that Licensee fails to meet its payment obligations hereunder.
1.Effect of Termination. The termination of this Agreement shall automatically, and without further action by Zequel, terminate and extinguish the License. In the event of termination of this Agreement by Zequel, Zequel shall have the right, at any time, to take immediate possession of the Software, and all copies thereof, wherever located. Within five (5) days after the termination of the License granted hereunder, Licensee shall return the Software, including all copies thereof, to Zequel, or upon request of Zequel, destroy the Software and all copies thereof and certify in writing that the same have been destroyed.
1.Survival. Notwithstanding the foregoing, Sections 4, 5, 6, 7, 8, 9, 10, 12, 13 and 14 shall survive the expiration or termination hereof for any reason.
1.Operating Environment.
Licensee is solely responsible for acquiring, installing, operating and maintaining the hardware and software environment necessary to operate the Licensed Program.
1.Export Restrictions.
THIS LICENSE AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT, REEXPORT OR IMPORT OF THE SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA OR ANY OTHER GOVERNMENT. LICENSEE SHALL NOT EXPORT, REEXPORT OR IMPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE OR DOCUMENTATION WITHOUT THE WRITTEN CONSENT OF ZEQUEL AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.
1.U.S. Government Restricted Rights.
The Software (including the Documentation) is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraph (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 CFR 52.227-19 as amended, or any successor regulations thereto.
1.General.
1.Entire Agreement. This Agreement constitutes the complete and exclusive statement of the terms and conditions between the parties, and supersedes and merges all prior proposals, understandings and other agreements, oral and written, between the parties, relating to the subject matter hereof. This Agreement may not be modified or altered except by written instrument duly executed by both parties.
1.Waiver. The failure of either party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. No action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has arisen, with the exception of violation of Zequel's proprietary rights in the Software or the confidentiality obligations set forth herein.
1.Assignment. Licensee may not assign or sublicense, without the prior written consent of Zequel, its rights, duties or obligations under this Agreement, in whole or in part, to any person or entity.
1.Governing Law. This Agreement and any action related hereto shall be governed by the laws of the State of Florida, United States of America without reference to the conflict of laws provisions thereof. Zequel and Licensee hereby agree on behalf of themselves and any person claiming by or through them that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof shall be an appropriate court located in the State of Florida, United States of America. 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.
1.Relationship of Parties. It is expressly agreed that Zequel and Licensee are acting hereunder as independent contractors.
1.Notice. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail, return receipt requested; or (iii) if by next day delivery service, upon such delivery. All notices shall be addressed to Zequel at Zequel Technologies Inc. at 247 SW 8 ST # 170, Miami, Florida 33130, USA, and to Licensee at the address provided by Licensee upon ordering the Licensed Program. Either party may change its address by giving written notice to the other party. Notwithstanding the foregoing, notice by Zequel to Licensee may be effected by electronic mail sent to the electronic mail address indicated to Zequel upon ordering the Licensed Program or to a different electronic mail address of which Licensee has notified Zequel.
EXHIBIT A
TO ZEQUEL LICENSE AGREEMENT
Software Maintenance and Support Services Terms and Conditions
These Support Services Terms and Conditions (“Support Terms”) are referenced in and incorporated into the License Agreement between Zequel and the Licensee. Zequel may, from time to time, offer different maintenance and support options than as set forth herein. Such options will be specified on Zequel’s website.
1.Definitions.
Unless defined otherwise herein, capitalized terms used herein shall have the same meaning as set forth in the License Agreement.
“License Agreement” means the Zequel License Agreement between the Licensee and Zequel, which agreement references and incorporates these Support Terms.
“Software Maintenance and Support Fees” means the annual fees payable for Software Maintenance and Support Services in the amount of twenty percent (20%) of the then current published list License Fee for each Support Period (hereinafter defined), due upon the first day of each such Support Period.
“Software Maintenance and Support Services” is defined in section 2.1 below.
"Upgrades" means releases and versions of the Licensed Program issued subsequent to the release or version initially delivered hereunder in which Zequel has incorporated (i) accumulated corrections, (ii) enhancements, (iii) improvements, or (iv) new platform support, together with new or revised Documentation that describes the updated Licensed Program, where the release or version numbers change. Upgrades shall not include any options or future products that Zequel licenses separately.
1.Maintenance and Support.
1.Scope. In exchange for the Software Maintenance and Support Fees, and subject to the terms and conditions of these Support Terms, Zequel shall provide to Licensee the following:
i.Online Support. Zequel shall make technical support available to Licensee via the Zequel Support e-mail listed on Zequel website.
ii.Upgrades. Zequel shall provide Licensee with Upgrades to the Licensed Program that are generally released to Zequel's similarly situated licensees.
iii.Exclusions. Notwithstanding anything to the contrary, Zequel shall have no obligation hereunder to provide Software Maintenance and Support Services for corrections of difficulties or defects due to Licensee's computer hardware, the computer environment, the computer operating system, use of the Software on equipment or an operating system not approved by Zequel or other causes external to the Software, and Zequel shall have no obligation to provide Software Maintenance and Support Services for Software that has been modified from its standard form as provided by Zequel.
1.Support Period. Software Maintenance and Support Services shall be provided for one (1) year from the effective date of the order under which Licensee elects to obtain such services (“Support Period”) and shall be extended each year for an additional one (1) year term unless terminated by either party as provided herein.
2.Notice of Non-Renewal. Either party may terminate Software and Maintenance Support Services at the end of the Support Period or at the end of any renewal term by giving the other party written notice at least sixty (60) days prior to the end of any such term.
3.Termination for Cause. In the event Licensee fails to make payment pursuant to the Section below entitled “Payment,” or in the event Licensee otherwise materially breaches these Support Terms and such breach has not been cured within thirty (30) days of receipt of notice of breach, Zequel may suspend or cancel services.
4.Duration. Software Maintenance and Support Services, if ordered, shall be available to Licensee (i) only so long as Licensee maintains the current installed version of the Licensed Program with all new Upgrades and any other new releases, versions, updates, enhancements and error fixes, and so long as the equipment on which the Licensed Program is installed is configured as specified in the Documentation, (ii) only so long as Licensee is up-to-date in its payment of Software Maintenance and Support Fees, and (iii) until termination or expiration of the License Agreement.
5.Limitation. Notwithstanding anything to the contrary herein, Licensee shall be solely responsible for backing up the Licensed Program and performing other basic repairs as set forth in the Documentation or instructions that may be provided by Zequel to Licensee from time to time.
1.Payment.
1.Payment of Support and Maintenance Fees. On receipt of Licensee’s order for Software Maintenance and Support Services, Zequel shall invoice Licensee in advance in the amount of the Software Maintenance and Support Fees, which shall be due on or before the first day of the applicable Support Period of the Term, and on each anniversary of the Support Period thereafter (if renewed). Licensee hereby agrees to pay all Software Maintenance and Support Fees at the prices and upon terms as set forth herein. Licensee acknowledges that Software Maintenance and Support Fees are non-refundable.
2.Reinstatement Fees. If Licensee fails to obtain Software Maintenance and Support Fees due and payable for any given time period (the "Interim Period") and then subsequently requests Zequel to provide Software Maintenance and Support Services, Licensee shall pay Zequel in full any Software Maintenance and Support Fees that would have been due for the provision of the Software Maintenance and Support Services throughout the Interim Period.
3.Prices. Zequel reserves the right to change prices or institute new charges for the Software Maintenance and Support Services effective after the first anniversary of the Effective Date, provided that Zequel posts such new charges on Zequel’s website at least sixty (60) days in advance. Licensee's continued use of the Software Maintenance and Support Services thereafter constitutes Licensee's acceptance of the prices and/or charges as modified by Zequel. If Licensee does not order Software Maintenance and Support Services within thirty (30) days of either the shipment or installation date of the Licensed Program, then Licensee will be subject to the reinstatement fees set forth in Section 3.2.
1.Warranty.
ALL SERVICES AND SOFTWARE OF ZEQUEL ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE AND NONINFRINGEMENT). ZEQUEL DOES NOT WARRANT THAT THE SOFTWARE WILL BE DELIVERED OR PERFORM ERROR-FREE OR WITHOUT INTERRUPTION. LICENSEE'S USE OF THE SOFTWARE IS AT LICENSEE'S OWN RISK.
1.General.
Zequel shall not be liable for any failure or delay in performance under these Support Terms due to causes beyond its reasonable control. Any illegal or unenforceable provision shall be severed from these Support Terms. Licensee agrees that any information received pursuant to these Support Terms shall be deemed to be subject to the non-disclosure obligations set forth in the License Agreement. Licensee’s obligation of payment of moneys due to Zequel under these Support Terms shall survive termination of these Support Terms or the License Agreement. These Support Terms state the entire agreement regarding Zequel’s provision of Support Services to Licensee and may be amended only by a written amendment set forth on a separate document executed by authorized representatives of both parties.