Service Agreement
PLEASE READ THIS LICENSE CARFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, PROMPTLY RETURN THE UNUSED SOFTWARE TO THE PLACE WHERE YOU OBTAINED IT AND YOUR MONEY WILL BE REFUNDED.
1. Definitions
1.1 Semphonic Information shall mean all proprietary information of Semphonic, which is (i) the source and object code for the Software (including any corrections, updates, upgrades, adaptations, enhancements or copies), and (ii) the materials and manuals provided to Licensee by Semphonic that relate to the Software. Semphonic shall own all right, title, and interest (including copyright and other intellectual property rights or informational rights) in all Semphonic Information.
1.2 Agreement shall mean this Software Licensing Agreement, together with any attachments incorporated herein (each, an "Attachment").
1.3 Licensee shall mean the party that is using the Software.
1.4 Maintenance shall mean Licensee's entitlement to receive corrections, improvements, and updates to the Software and its documentation, as applicable, which Semphonic generally makes available under product maintenance to other licensees, pursuant to the terms of the applicable Attachment. Maintenance includes updates, minor enhancements, and bug fixes. Maintenance does not include upgrades, which are new generations of the Software or new versions with substantially increased functionality. Maintenance does not include or pertain to any Semphonic products that are not part of the Software.
1.5 Software shall mean Semphonic's Campaign Tracker software.
1.6 Support shall mean Licensee's entitlement to telephone and e-mail assistance with the Software pursuant to the terms of the applicable Attachment.
2. Grant of License.
2.1 License Grant. In consideration of the license fees paid by Licensee to Semphonic, Semphonic grants Licensee, subject to the terms and conditions in this Agreement, a non-exclusive, perpetual right to use the Software, regardless of the medium on which the Software is recorded or by which it is provided, on a single computer. You also have a license to transfer all your license rights in the Software, the backup copy of the Software, the releated documentation and copy of this Agreement to another party; provided, that the other party reads and agrees to accept the terms and conditions of this Agreement. All of Licensee's use shall not modify the restrictions against use contained in this Agreement.
2.2 Copies and Adaptations. Licensee may make or authorize the making of one copy of the Software in machine-readable form for backup purposes only. You must reproduce on such copy Semphonic's copyright notice and any other proprietary legends that were on the original copy of the Software.
2.3 Protection of Software. Licensee agrees to take all necessary steps to protect the Software from unauthorized copying or use. Without limiting any remedies or relief which may be available to Semphonic, Licensee agrees to pay Semphonic for additional licenses at Semphonic's current prices if Licensee uses the Software in any way beyond the scope of this License. The source code in Software represents and embodies trade secrets of Semphonic or its licensors. The source code and such trade secrets are not licensed to Licensee and any modification, addition, or deletion thereto is strictly prohibited.
2.4 Ownership. Semphonic shall retain ownership of all rights whatsoever in the Software including all updates, reproductions and corrections thereof and all related patent rights, copyrights, trade secrets, trademarks, service marks, related goodwill and intellectual property, including but not limited to, source code, programming code, software license, and joint software development agreements, corporate identifying graphics and marketing strategies. Licensee shall not remove or destroy any copyright, trade secret, proprietary or confidential legends or markings placed upon or contained or embedded within the Software. Licensee shall not knowingly violate Semphonic's intellectual property rights in the Software, and shall, under no circumstances, license, sell, lease, assign, transfer, rent, lend, loan, distribute (including parents, or subsidiaries of Licensee) this license to any third party, create derivative works based upon the Software in whole or in part, or disassemble, recompile, reverse engineer or otherwise attempt to derive source code or other trade secrets from the Software, except as is specifically provided herein.
2.5 Sublicense or Assignment of Rights. Licensee shall have no right to sublicense or assign rights or obligations with respect to this Agreement without the written permission of Semphonic; provided, that this Agreement is assignable by either party in connection with a sale, merger or other change in control.
2.6 Restrictions. Licensee will not use the Software for illegal purposes or to interfere with or disrupt other Semphonic Licensees, services or equipment. Unless otherwise specified in separate agreement between Semphonic and Licensee, Licensee shall not use or permit the use of the Software in the operation of a service bureau.
3. Term and Termination.
3.1 Term. The License granted hereunder is perpetual.
3.2 Termination. This Agreement is effective until terminated. Licensee may terminate this Agreement at any time by destroying the Software, related documentation and all copies thereof. This Agreement will terminate immediately without notice from Semphonic if you fail to comply with any provision of this Agreement. Upon termination Licensee must destroy the Software, related documentation and all copies thereof.
4. Confidential Information. Licensee agrees to keep confidential and not disclose any Semphonic Information, utilizing at least such procedures that Licensee itself uses to safeguard its own confidential information. Licensee agrees that, with the exception of disclosures to independent contractors and/or auditors engaged by Licensee who are subject to written nondisclosure obligations, attorneys engaged by Licensee, and regulators, no third parties shall have access to Semphonic Information without the prior written consent of Semphonic, which consent may be given or withheld at Semphonic's sole discretion. Licensee shall have the right to disclose that Licensee is a Licensee of Semphonic.
5. Semphonic Warranties.
5.1 In General. Semphonic warrants that it has clear title to the Software. Semphonic warrants the tangible media on which the Software is recorded to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of purchase as evidenced by a copy of the receipt. Semphonic's entire liability and Licensee's exclusive remedy will be replacement of the media not meeting Semphonic's limited warranty and which is returned to Semphonic with a copy of the receipt. Semphonic will have no responsibility to replace any media damaged by accident, abuse or misapplication. ANY IMPLIED WARRANTIES ON THE TANGIBLE MEDIA, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE , ARE LIMITED TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.
5.2 No Infringement. Semphonic represents and warrants that the Software does not infringe any patent, copyright, trademark or trade secret or other proprietary right of any person. Semphonic shall indemnify and defend Licensee against any third party claims that the Software infringes any trade secret, patent, or copyright; provided, that Semphonic is given prompt written notice of such claim and is given proper and full information, reasonable assistance and sole authority to defend or settle the claim, in the defense or settlement of the claim. Semphonic may, at its sole option, obtain for Licensee the right to continue using the Software, or replace or modify it so that it becomes non-infringing while giving equivalent performance or, if such remedies are not reasonably available, remove the Software and accept their return and refund the aggregate payment paid by Licensee to Semphonic for the Software.
5.3 No Other Warranties. Semphonic MAKES NO WARRANTY, REPRESENTATION OR PROMISE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT WITH RESPECT TO THE SOFTWARE. EXCEPT AS IS SET FORTH ABOVE, Semphonic EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Semphonic AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE WILL SATISFY LICENSEE'S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR OR THAT THE SOFTWARE'S OPERATION WILL BE UNINTERRUPTED. Semphonic DOES NOT WARRANT OR MAKE ANY REPRESENTATION OF CORRECTNESS, COMPLETENESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE WITH RESPECT TO THE USE OF THE SOFTWARE. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE.
6. Limitations of Liability. In no event shall a party be liable for any amount in excess of amounts paid by Licensee to Semphonic for the Software. UNDER NO CIRCUMSTANCES SHALL A PARTY BE LIABLE FOR ANY TYPE OF INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING FROM THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, COST OF REPLACEMENT, LOSS OF TECHNOLOGY RIGHTS OR SERVICES, LOSS OF INFORMATION, MISINFORMATION, INTERRUPTION OR LOSS OF USE OF SERVICES OR EQUIPMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTORY OR OTHERWISE. The parties agree that Semphonic has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.
7. General Provisions
7.1 Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
7.2 Force Majeure. Neither party shall be liable for and will not be responsible to the other for any delay or failure to perform under this Agreement if such delay or failure results from any cause whatsoever that is beyond the reasonable control of such party.
7.3 Severability. If any provision of this Agreement is determined to be invalid under any applicable statue or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable to the maximum extent permissible.
7.4 Amendment. This Agreement may not be modified, altered or amended except by a written instrument duly executed by both parties.
7.5 Governing Law; Venue. Any disputes under the Agreement shall be resolved under California law without reference to conflict of laws principles. For any disputes arising out of the Agreement, venue shall be in San Francisco, California, and the parties hereby consent and submit to the exclusive jurisdiction of the federal and state courts sitting in the Northern District of California.
7.6 Prevailing Party. In the event that any suit or other legal proceeding is brought for the purpose of enforcing the Agreement or otherwise in connection with the Agreement, in addition to whatever other remedies the prevailing party in such suit or legal proceeding might by entitled, such prevailing party shall be entitled to reasonable attorneys' fees and expenses, including those incurred in preparation for any hearing, motion, or trial.
7.7 Interpretation. The Parties agree that each of them has participated in the drafting of the Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of the Agreement.