PVOT SOFTWARE
LICENSE AGREEMENT
This PVOT
Software License Agreement (this “Agreement”) is a binding contract
between Evertec Group, LLC.
., a corporation organized and
existing under the laws of the Commonwealth of Puerto Rico (“Licensor”),
and the Person intending to install or otherwise use the Software (hereinafter
referred to as “Licensee”).
LICENSOR
PROVIDES THE SOFTWARE SOLELY ON AND SUBJECT TO THE TERMS AND CONDITIONS SET
FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPT AND COMPLY
WITH THEM. BY CLICKING THE “ACCEPT” BUTTON BELOW, AND/OR BY INSTALLING OR
OTHERWISE USING THE SOFTWARE, LICENSEE (A) ACCEPTS THIS AGREEMENT AND AGREES
THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS
THAT: (I) IF AN INDIVIDUAL, LICENSEE IS
OF AGE LEGAL OR OLDER; AND (II) LICENSEE HAS THE RIGHT, POWER AND
AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND LICENSEE TO ITS TERMS. IF
LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND
DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND LICENSEE MUST NOT INSTALL OR USE
THE SOFTWARE IN ANY WAY.
ARTICLE ONE – GENERAL PROVISIONS
1.1.
Definitions. Capitalized terms not otherwise
defined herein will have the meanings set forth in this Section 1.1:
a)
“Affiliate”
means, with respect to any party hereto, a Person that, directly or indirectly,
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such party. For purposes of this definition, “control”
means the power to direct the management and policies of such Person, directly
or indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
b)
“Agreement”
means this Software License Agreement, together with any addendum, appendix,
schedule, exhibit, or annex herein.
c)
“Best
Efforts” means the efforts that a prudent Person desirous of achieving
a result would use in similar circumstances to ensure that such result is
achieved as expeditiously as possible.
d)
“Business
Day” will be each day from Monday through Friday, except for Legal
Holidays.
e)
“Card
Association” means Visa, Mastercard, American Express, the Discover
Network, and other similar card associations and the ATH Network.
f)
“Commencement
Date” means the date
Licensor notifies the Licensee that the Software has gone live.
g)
“Confidential Information” means all
confidential or proprietary data, information, know-how and documentation not
generally known to the public and any and all tangible embodiments thereof,
including but not limited to, that which relates to business plans, financial
information and projections, agreements with Third Parties, drawings, designs,
specifications, estimates, blueprints, plans, data, reports, models, memoranda,
notebooks, notes, sketches, artwork, mock-ups, letters, manuals, patents,
patent applications, trade secrets, research, products, services, suppliers,
customers, markets, software, object code, source code, developments,
inventions, processes, technology, Intellectual Property, engineering, hardware
configuration, marketing, operations, pricing, distribution, licenses, budgets
or finances, and copies of all or portions thereof which in any way related to
the business of Licensor or Licensee, as the case may be, whether or not
disclosed, designated or marked as proprietary, confidential or otherwise.
Confidential Information will include Licensor’s physical security systems,
access control systems, and specialized recovery equipment and techniques.
Confidential Information will include Customer Information and Licensee data.
Confidential Information will not include information which (i) is or becomes
generally available to the public other than as a result of a disclosure by a
party hereto, (ii) was within the Receiving Party’s possession prior to its
being furnished by the Disclosing Party, provided that the source of such
information was not known by the Receiving Party, after reasonable
investigation, to be bound by a confidentiality agreement with, or other
contractual, legal or fiduciary obligation of confidentiality to the Disclosing
Party or any other party with respect to such information, or (iii) becomes
available to the Receiving Party on a non-confidential basis from a source
other than the Disclosing Party.
h)
“Cloud
Service Order” means the service order executed by the Parties with
effective date as of September 1, 2019 as amended from time to time.
i)
"Customer
Information" means any and all non-public
personal information made available to Licensor or Licensor Representatives for
the purpose of obtaining any service or product offered by Licensor.
j)
"Coverage
Hours" means 7:00 a.m. to 1:00 a.m., AST, Monday through Sunday,
excluding Legal Holidays (Attach List of Legal Holidays).
k)
“Documentation” means the published user manual and
literature supplied by Licensor for use with Software as updated from time to
time.
l)
“Effective
Date” means (i) the date the
accept button was clicked as accepted, or (ii) the Software was installed.
m)
“Force
Majeure” means causes beyond a Person’s reasonable control, including,
but not limited to, acts of God, acts of civil or military authority, war,
terrorism, civil commotion, governmental action (including but not limited to
sanctions to countries or Persons), explosion, strikes, labor disputes, riots,
sabotage, epidemics, fires, floods, hurricanes, earthquakes, or other similar
events or disasters.
n)
“Governmental
Authority” means the government or any agency thereof, of any nation,
state, commonwealth (including Puerto Rico), city, municipality or other
political subdivision thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
that have regulatory, supervisory, and/or examination authority with respect to
Licensee and/or Licensor with respect to the matters covered by the Software
and its operations and financial condition.
o)
“Service
Order” means the service order for implementation and consulting
services executed by the Parties with effective date as of May 17, 2019 as
amended from time to time.
p)
“Intellectual
Property” means any and all trademarks, service marks, copyrights,
patents, trade secrets, commercial and/or internet domain names, software,
source codes, contract forms, client lists, marketing surveys or other
information, the names, features, designs and other specifications related to
the names of products or services developed or used or that may hereafter be
developed, offered or sold by any of the parties, and programs, methods of
processing, specific design and structure of individual programs and their
interaction and unique programming techniques employed therein.
q)
“Legal Holiday” means any legal
holiday in the Commonwealth of Puerto Rico that is observed by Licensor.
r)
“Legal
Requirement” means any constitution, law, ordinance, principle of law,
regulation, administrative order, statute, guidance or treaty issued by a
Governmental Authority, including without limitation, laws and regulations
related to the Office of Foreign Assets Control, Anti-Money Laundering, Bank
Secrecy Act, the Department of Commerce and Bureau of Industry and Security, as
well as the Foreign Corrupt Practices Act.
s)
“Loss(es)”
means losses, lost profits, liabilities, claims, damages, fines, expenses,
penalties, interest expense, costs and fees and disbursements, (including legal
counsel and experts’ fees and disbursements), net of any amounts recovered with
respect thereto under insurance policies covering any liability thereof if and
to the extent applicable in each case, individually or collectively.
t)
"New
Version(s)" means a version of the Software, which shall
generally be designated by a new version number, which has changed from the
prior number to the left of the decimal point (e.g., Version 2.3 to Version
3.0). All New Versions delivered to Licensee shall be considered part of the
Software and therefore governed by the terms and conditions of this Agreement.
u)
“Non-Recurring
Services” means the non-recurring services as set forth in Exhibit A.
v)
“Person”
means any individual, corporation, partnership, trust, incorporated or
unincorporated association, joint venture, joint stock company, limited
liability company, Governmental Authority or other entity of any kind, and will
include any assignee and/or successor (by merger or otherwise) of such entity
in connection therewith
w) “Proposal” means the proposal
“Sistema de Punto de Veta Inteligente, Integración de Sistema de Punto de
Venta, Interoperabilidad Contable, y Distribución Centralizada” dated September 5, 2019.
x)
“Recurring
Services” means the recurring services as set forth in Exhibit A.
y)
“Representative” means with respect
to a particular Person, any director, officer, partner, member, employee,
agent, consultant, advisor, or other representative of such Person, including
legal counsel, accountants, and financial advisors.
z)
“Restricted
Party” means, before or during the term of this Agreement: (i) any country,
person, entity or vessel that is a target of the Legal Requirements or any
person, entity or vessel, directly or indirectly, controlled by or acting for
or on behalf of any such target, or (ii) any person, entity or vessel listed on
the “Specially Designated Nationals and Blocked Persons” list maintained by the
United States Department of Treasury Office of Foreign Assets Control, or
listed on the Debarred Persons, Denied Persons, or Entity Lists maintained by
agencies of the United States government.
aa)
“Software” means the application software
programs and the related
Documentation commercially known as “PVOT,” capable of managing and auditing
users, sales, inventory, payroll and transactions that Licensor will license to
Licensee under the terms and conditions of this Agreement. Software includes
subsequent Updates, Upgrades and New Versions of the software programs and
Documentation.
cc)
“Third
Party” means any Person that is not a party to this Agreement.
dd)
"Update(s)"
means, excluding New Versions, any maintenance release, patch, refinement,
correction, enhancement, modification or other change of the Software, that
Licensor may, in its sole discretion, develop or acquire from time to time and
make generally available to Licensees that have purchased Maintenance for the Software
and are current with payment of Fees under the Agreements. All Updates shall be
considered part of the Software and therefore governed by the terms and
conditions of this Agreement.
ee)
"Upgrade"
means a version of the Software that incorporates additional capability or
functionality. All Upgrades shall be
considered part of the Software and therefore governed by the terms and
conditions of this Agreement.
1.2.
Changes to Agreement. Licensor may,
from time to time, update or modify this Agreement, including the Privacy
Policy and Fees by providing written notice to Merchant with not less than 30
days before the effective date of such modification or shorter as therein
herein (“Modification Date”).. By continuing to use the Software past the
Modification Date, Licensee shall accept and agree to such updated or modified
terms and conditions.
1.3.
Survival. Provisions that survive termination or
expiration of this Agreement include those relating to limitation of liability,
indemnity, confidentiality, payment and other provisions that by their nature are
intended to survive.
1.4.
Relationship between the Parties. The
parties hereto are independent contractors, and this Agreement will not be construed in any way as
establishing a partnership, joint venture, express or implied agency
relationship between them.
1.5.
Non-Exclusive. The parties hereto acknowledge that
this Agreement is not exclusive, and nothing contained herein will be construed
to create an exclusive relationship between Licensor and Licensee. As such, Licensor
will not be limited in entering into similar agreements with other Persons to
provide the same or similar services.
1.6.
Assignment. This Agreement and any licenses
granted hereunder may not be assigned by Licensee without the prior written
consent of Licensor..
1.7.
Plural, Successors, Assignees, Gender, Days. Unless the
context of this Agreement clearly requires otherwise, references to the plural
include the singular and vice versa; references to any Person include such
Person’s permitted successors and assignees; references to one gender,
masculine, feminine, or neuter, include all genders; the term “day” refers to a
calendar day, “including” is not limited but is inclusive; the words “hereof,”
“herein,” “hereby,” “hereunder” and similar terms in this Agreement refer to
this Agreement as a whole and not to any particular provision of this
Agreement, article, paragraph, section, and/or a subsection, unless otherwise
specified.
1.8.
Binding Effect. This Agreement and all the
provisions hereof will be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assignees. The parties
hereto intend that this Agreement will not benefit or create any right or cause
of action in, or on behalf of, any Person other than the parties hereto.
1.9.
No Third Party Beneficiaries. Each party
intends that this Agreement will not benefit or create any right or cause of
action in or on behalf of, any Person other than Licensee and Licensor.
1.10.
Entire Agreement. This Agreement contains the
entire understanding of all agreements between the parties hereto with respect
to the subject matter hereof and supersedes any prior agreement or
understanding, oral or written, pertaining to any such matters which agreements
or understandings will be of no force or effect for any purpose. This Agreement
may not be amended or supplemented in any manner except by mutual agreement of
the parties and as set forth in a writing signed by the parties hereto or their
respective permitted successors in interest.
1.11.
Interpretation. The general terms and conditions
of this Agreement and the addendums, appendixes, schedules, exhibits, or
annexes made a part hereof from time to time will be interpreted as a single
document. However, in the event of a conflict between the general terms and
conditions of this Agreement and the terms of any addendums, appendixes,
schedules, exhibits, or annexes hereto, then the terms of the addendums,
appendixes, schedules, exhibits, or annexes will prevail and control with
respect to the subject matter of the applicable addendums, appendixes,
schedules, exhibits, or annexes. Furthermore, in the event of any conflict or
inconsistency between this Agreement and any other document referenced hereto,
this Agreement together with its addendums, appendixes, schedules, exhibits, or
annexes will prevail and control.
1.12.
Severability. The parties hereto intend all
provisions of this Agreement to be enforced to the fullest extent permitted by
law. Accordingly, should a court of competent jurisdiction determine that the
scope of any provision is too broad to be enforced as written, the parties
intend that the court should reform the provision to such narrower scope as it
determines to be enforceable. If, however, any provision of this Agreement is
held to be illegal, invalid, or unenforceable under present or future law, such
provision will be fully severable, and this Agreement will be construed and
enforced as if such illegal, invalid, or unenforceable provision were never a
part hereof, and the remaining provisions of this Agreement will remain in full
force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance.
1.13.
Waiver. The tardiness or failure by any of the
parties hereto in exercising any right or privilege pursuant to this Agreement
will not operate as a waiver thereof, nor will the exercise of any right by any
party serve as an obstacle to the exercise of any other rights, powers or
privileges, or any portion thereof. The waiver of any breach of any provision
under this Agreement by any party will not be deemed to be a waiver of any
preceding or subsequent breach under this Agreement. No such waiver will be
effective unless in writing.
1.14.
Governing Law. This Agreement will be governed by and
interpreted in accordance with the laws of the Commonwealth of Puerto Rico
applicable to contracts made and entirely to be performed therein.
1.15.
Trial by Jury. The parties hereby mutually agree that no party, nor any permitted
assignee, successor, heir or Representative thereof will seek a jury trial in
any lawsuit, proceeding, counterclaim, or any other litigation procedure based
upon or arising out of this Agreement, or any related agreement or instrument
between the parties. None of the parties will seek to consolidate any such
action, in which a jury trial has been waived, with any other action in which a
jury trial has not been waived. The provisions of this section have been fully
negotiated by the parties. The waiver contained herein is irrevocable,
constitutes a knowing and voluntary waiver, and will be subject to no
exceptions.
1.16.
Consultation; Arbitration. Any dispute, controversy or claim
between the parties or against any Representative of the other, related to this
or arising out of this Agreement, and any dispute or claim related to the
relationship or duties contemplated hereunder, including the validity of this
clause (a “Dispute”) will be resolved as set forth in this section. Each
party will give written notice to the other party of any Dispute claimed by it.
Promptly following delivery of such notice, a Representative of each party will
meet and will be obligated to attempt in good faith to resolve the Dispute. If
within thirty (30) days following the receipt of notice of a Dispute, the
Dispute has not been resolved such Dispute will be referred to binding
arbitration at the request of any party upon written notice to the other. Such
arbitration proceeding will be administered by the American Arbitration
Association in accordance with the then current Commercial Arbitration Rules
and will be held in the Commonwealth of Puerto Rico. The arbitration will be
governed by the United States Arbitration Act, 9 U.S.C. §§ 1-16 to the
exclusion of any provision of state law inconsistent therewith or which would
produce a different result. A single, neutral arbitrator will determine the
Dispute of the parties and render a final, non-appealable award in accordance
with the applicable substantive law, which shall be binding on the parties.
Strict confidentiality will govern the arbitration proceedings, including all
information submitted to the arbitrator and the decision or award entered by the
arbitrator. Any court having jurisdiction may enter judgment upon the award
rendered by the arbitrator. The terms hereof will not limit any obligation of a
party to defend, indemnify or hold harmless another party against court
proceedings or other Losses. The procedures specified in this section will be
the sole and exclusive procedure for the resolution of Disputes between the
parties arising out of or relating to this Agreement; provided, however, that a
party may request temporary remedies in a court of law to maintain the status
quo or to protect goods or property until the arbitration has initiated and the
selected arbitrator has had the opportunity to resolve the request for
temporary relief. Each party is required to continue to perform its obligations
under this Agreement pending final resolution of any Dispute arising out of or
relating to this Agreement, unless to do so would be impossible or
impracticable under the circumstances.
1.17.
Cumulative Remedies. Except as
otherwise expressly provided, all rights and remedies provided for in this
Agreement will be cumulative and in addition to and not in lieu of any other
rights and remedies available to either party at law, in equity or otherwise
and will not serve to exclude the exercise of any right or remedy provided by
law.
1.18.
Prohibition on Publicity. Neither party
may advertise or promote using the name or description of the other party
including, but not limited to, disclosing the existence or contents of this
Agreement, without in each instance the express written consent of the other
party. Notwitstanding
the foregoing, Licensee agrees that Licensor
may list Licensee as a customer, and use its logo, in Licensor’s marketing
material, including Licensor’s website and social media while also indicating the
general services rendered.
1.19.
Business Days
and Legal Holidays. In the event
that any action, payment, or period, under this Agreement, becomes due on a day
that is a Legal Holiday, such action, payment or time period will be performed
and/or expire, as applicable, on the next Business Day immediately following
the Legal Holiday.
1.20.
Notices.
All notices, requests, demands, consents and other communications given or
required to be given under this Agreement and under the related documents will
be in writing and delivered to the applicable party at its main office or any
other place as designated by the parties in writing.
1.21.
Incorporation. All exhibits, schedules, addendums, certificates, agreements and other documents attached hereto and to which
reference is made herein are incorporated by reference as if fully set forth
herein.
1.22.
Headings.
The headings used in this Agreement are inserted for purposes of convenience of
reference only and will not limit or define the meaning of any provisions of
this Agreement.
1.23.
Language. This Agreement
has been executed in the English language (except for certain exhibits, addendums and schedules to this
Agreement
which may be in either English or Spanish).
1.24.
Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
1.25.
Representations and Warranties. Licensor and
Licensee each represent and warrant that (i) it has the power and authority to grant
the rights and perform the obligations to which it commits herein; (ii) the
execution of this Agreement by the person representing it will be sufficient to
render the Agreement binding upon it; (iii) neither its performance hereunder
nor the exercise by the other party of rights granted by the warranting party
hereunder will violate any applicable laws or regulations, or the legal rights
of any Third Parties, or the terms of any other agreement to which the
warranting party is or becomes a party; and, (iv) it has and will maintain an
adequate system of internal controls and procedures for financial reporting.
Each party is separately responsible for ensuring that its performance and
grant of rights do not constitute any such violation during the term of this
Agreement. Each of the foregoing representations and warranties and any other
representations and warranties made throughout this Agreement will be deemed
provided by the parties on the Effective Date and will be continuous in nature
throughout the term of this Agreement.
1.26.
Limitation of Actions. No action,
regardless of form, arising out of any claimed breach of this Agreement or the
Software provided hereunder, may be brought by either party more than one (1)
year after the cause of action has accrued or after the statute of limitations
prescribed by Puerto Rico law, whichever is less.
1.27.
Additional Assurances. Both parties
covenant and agree that subsequent to the execution and delivery of this
Agreement and without any additional consideration, each will execute and
deliver any further legal instruments and perform any acts that are or may
become necessary to effectuate the purposes of this Agreement.
ARTICLE TWO – SOFTWARE
2.1
Software. Licensor will provide the Software on
an “as-is” basis. Nothing herein will be interpreted as imposing an obligation
upon Licensor to develop new software, or upon Licensee to acquire any
additional software service from Licensor.
2.2
Modifications to Software. Licensor reserves the right to (i) modify any of the
specifications, functions or features of the Software; (ii) issue new releases
at any time; and (iii) make changes in the configuration of the rules of
operation, accessibility periods, identification procedures, type and location
of equipment, allocation and quantity of resources utilized, programming
languages, administrative and operational algorithms and designation of the
location of Licensee data applicable to the Software.
2.3
License to Use Software. There are no implied licenses under
this Agreement, and Licensor and its licensors reserve all rights, title and interest in and to the Software and any software
not expressly granted to Licensee under this Agreement. Licensor
hereby grants Licensee a nontransferable, nonexclusive, term license to access
and use the Software for internal business use only in the Territory, restricted
to the terminals-servers, Users, and SKU ordered, subject to the following
terms and conditions:
b)
Licensee may not do any of the
following without the prior written consent of Licensor:
(i)
copy
the Software or related Documentation;
(ii) remove any
copyright or other proprietary rights notices contained in the Software and
related Documentation;
(iii) use the Software
other than in accordance with this Agreement;
(iv) transfer,
sublicense or otherwise provide, directly or indirectly, the Software or any
portion thereof to any Third Party;
(v) resell the
Software to its clients; or
(vi) alter,
reverse-engineer, reverse-assemble, decompile, modify, adapt
or translate the Software from the object code made available to Licensee.
c)
The
Software is licensed, not sold. Licensee acknowledges that the formulas,
algorithms, methodologies, techniques, ideas and
concepts contained in the Software and Documentation are proprietary
information, trade secrets and Confidential Information of Licensor or its
licensors. Licensee agrees that it will act consistent with Licensor’s and its
licensors’ rights to and ownership of all copyright and trade secrets embodied
in the Software and Documentation and will not harm Licensor’s and its
licensors’ Intellectual Property rights.
d)
Except
as expressly provided herein, upon the termination of this Agreement, for
whatever reason, the Software license shall immediately terminate, and Licensee
shall be responsible for immediately ceasing use of the Software. If requested,
Licensee shall certify in writing that it has ceased use of the Software and/or
return all originals of the Software and/or Documentation subject to such
termination.
e)
Licensee
agrees that it shall not use the Software in any way that violates any Legal
Requirement, or the legal rights of any Third Parties, or the terms of any
other agreement to which the Licensee is or becomes a party.
2.4
End Users. Licensee acknowledges and agrees that Licensee (i) controls access by
End Users, (ii) is responsible for End Users use of the Software in accordance
with this Agreement, and (iii) is responsible for maintaining the
confidentiality of any non-public authentication credentials associated with
its use of the Software. Licensee will promptly notify Licensor’s Licensee
support about any possible misuse of your accounts or authentication
credentials or any security incident related to the Software.
2.5
Additional Obligations and
Restrictions. In addition to any other obligation of Licensee
established in this Agreement, Licensee agrees to (i) use the Software in
compliance with all Legal Requirements and, Card Association rules applicable
to Licensee and (ii) promptly contact Licensor
in the event Licensee identifies or becomes aware of a problem or malfunction
of the Software. Furthermore, Licensee will not:
a)
Create or attempt to create
derivative works based on the Software or access the Software for the purpose
of building a competitive product, software or service, or copying its features
or user interface;
b)
Sublicense or use the
Software for time-sharing, outsourcing or service bureau use, or otherwise
permit the Software to be used by Third Parties without the prior written
consent of Licensor; or
c)
Attempt to gain
unauthorized access to, or disrupt the integrity or performance of, the
Software.
2.6
Change in Law. Any changes mandated by changes in Legal Requirements that will (i) increase Licensor’s cost for providing the Software or
(ii) assess, modify or change taxes applicable to the Software will be passed
through to Licensee upon thirty (30) days prior written notice. Any such
changes in
Legal Requirements will be implemented by Licensor
using its commercially reasonable efforts.
2.7
Card Transactions. The Software will trade information with the certified payment (i) gateway
or (ii) device for credit and debit card transactions. The Licensee is
responsible to authenticate and validate the payee’s information before each
transaction. The Licensee’s transaction acquirer is responsible for the settlement.
Under this Agreement, Licensor will not manage any transaction claim. Licensee
equipment will print in written or digital form the response from the
transaction acquirer indicating “APPROVED” or “DECLINED” and will provide the
payee a receipt. Licensee’s transaction acquirer is
responsible for the routing of the transaction information to ensure Licesee’s, as merchant, will receive transactions deposits from
the settlement.
ARTICLE THREE – SERVICES
3.1
Services. During
the term of this Agreement, Licensor will provide the following services
(i) Software maintenance and support services, (ii) consulting services, and
(iii) other services (collectively the
“Services”) described in Exhibit A
attached hereto and made part hereof, for the fees described in Exhibit B attached hereto and
made part hereof. No other maintenance and support services, including
equipment installation services, are included as part of this Agreement. Licensor
will have no obligation to provide any Services if the performance of such
services is in violation of any Legal Requirements,
including any Payment Card
Industry requirement.
3.2
Expenses and Fees. Any expenses, costs and fees
incurred by Licensor in the performance of obligations imposed upon Licensor
solely by virtue of its role as service provider including, without limitation,
costs incurred to comply with Legal Requirements, subpoenas, court orders,
administrative orders and discovery requests (such as production of documents,
technical investigations, e-discovery, etc.) shall, unless adjudged otherwise,
be paid by Licensee. In any dispute resolution proceeding
between the Parties relating to this Agreement, the prevailing Party will have
the right to recover from the other(s) its costs and reasonable fees and
expenses of attorneys, accountants, and other professionals incurred in
connection with the dispute resolution, separately from and in addition to any
other amount included in the arbitrator’s award. This provision is intended to
be severable from the other provisions of this Agreement and shall survive and
not be merged into any such award.
ARTICLE FOUR – TERM &
TERMINATION
4.1
Term. The term of this Agreement shall
commence upon the Effective Date and shall continue for 36 months from the Comencement Date (the “Initial Term”) unless (i) terminated by either party pursuant
to Section 4.2 below or (ii) terminated by Licensor pursuant to Section 4.3. This Agreement
may be renewed (each a “Renewal Term”) by express written notification by
Licensee 120 days prior to termination of the Initial Term and consent by
Licensor (the Renewal Term and the Initial Term, collectively the “Term”)
4.2
Termination by Licensee or Licensor. Licensee or Licensor
may terminate this Agreement without cause at any time upon thirty (30) days’
prior written notice to the other party; provided, however, that if Licensee
terminate this Agreement before the expiration of the Initial Term, Licensee
agrees to pay a liquid damage fee equal to the rest of the months in the
Initial Term times the average Recurring Fees for the six (6) months
immediately preceding the date on which this Agreement is terminated.Licensee
will continue to have access to and will be able to use the Software through
the end of the monthly billing period. LICENSOR DOES NOT PROVIDE REFUNDS OR
CREDITS FOR ANY PARTIAL-MONTH PERIODS.
4.3
Termination by Licensor. Licensor may
terminate the license granted hereunder and Licensee’s use of the Software
immediately in the event of (i)
breach by Licensee of any representations, warranties or covenants under this
Agreement, (ii) Licensor’s inability to collect any fees for use of the
Software or any Services provided under this Agreement from Licensee’s Payment
Method, or (iii) any event which would give rise to Licensee’s indemnity
obligations under Section 10.2 hereof.
4.4
Effect upon Termination. Except as
otherwise provided for herein, upon termination, all further obligations of the
parties pursuant to this Agreement will terminate without further liability of
either party to the other; provided, however that termination will not release
the party that terminates from any liability which at the time of termination
had already accrued to the non-terminating party. In the event Licensor
terminates this Agreement and Licensee’s use of the Software pursuant to
Section 4.3 above, Licensee
shall have no further right to use the Software in any way, must uninstall the
Software from any and all devices and delete any electronic copies thereof and
will not be entitled to any refund in connection with the remaining days of the
current calendar month or monthly billing period. The terminating party shall
not be liable to the other for damages of any kind solely as
a result of terminating this Agreement in accordance with its
provisions. Furthermore, any such termination will be without prejudice to any
rights or remedies any party may have arising out of any breach of any material
representation, warranty, covenant or condition by any
other party hereto.
4.5
Data Transfer. During the term of this Agreement, if
requested by Licensee, Evertec shall provide Licensee with electronic copies of
all available transactional data collected through Licensee’s use of the
Software during the year prior to the request. In such event, Licensee shall
pay Licensor fees per hour as set forth in Exhibit B hereto. Licensee
acknowledges and agrees that transactional data maybe
stored in a cloud service provider.
ARTICLE FIVE – FEES AND PAYMENT
5.1
Fees, Invoice and Payment.
a)
Recurring Services.
By installing the Software, Licensee authorizes Licensor to charge a
monthly fee at the then current rate for Recurring Services, and any other
charges in connection with Licensee’s use of the Software and Services requested
by Licensee under this Agreement. The fees for use of the Software and the Services
provided by Licensor under this Agreement are set forth in Exhibit A hereto.
Licensee acknowledges that the amount billed each month may vary from month to
month for reasons that may include Services requested by Licensee and rendered
by Licensor, changes in number of terminals, changes in number of users per
terminal, changes in number of SKUs, taxes and promotional offers and Licensee
authorizes Licensor to charge Licensee for such varying amounts. Licensee must
provide a current, valid, and acceptable method of payment to Licensor (as such
may be updated from time to time, "Payment Method") to use the
Software. On the tenth (10th) day of each calendar month, Licensor
will debit to Licensee’s Payment Method the Recurring Services provided by Licensor
under this Agreement for the immediately preceding calendar month. In the event
Licensor is not able to charge the monthly fee from Licensee’s Payment Method,
a fee of fifty dollars ($50.00) will be levied against Licensee and Licensor
shall have the right to terminate this Agreement and Licensee’s use of the
Software immediately. Licensee must cancel its use of the Software before the
end of the calendar month in order to avoid billing of
the next month's fees to Licensee’s Payment Method. If Licensor is also the
Licensee´s merchant acquiring services provider for card transactions under a
merchant agreement, the Licensee expressly accepts, as a Payment Method, the
debiting of its applicable account for this Recurring Services as provided
under such merchant agreement.
b) Non-Recurring
Services.
On the tenth (10th) day of each calendar month, Licensor will
invoice to Licensee’s the Non-Recurring Services provided by Licensor under
this Agreement for the immediately preceding calendar month on net thirthy (30) days payment.
c)
Any
amount due under this Agreement that is not paid when due will thereafter bear
interest at an annual rate of interest equal to one and a half percent (1.5%),
but in no event to exceed the maximum rate of interest allowed under any Legal
Requirement. Licensee agrees that, if any properly submitted invoice remains
unpaid for a period exceeding sixty (60) days, Licensor may (i) deduct such
amount from Licensee's ACH Payment Account; (ii) refuse to provide the
Services, until such time as all past due amounts are paid in full; and/or
(iii) terminate this Agreement immediately.
5.2
Price Changes. Unless otherwise agreed for the
initial term the applicable Proposal, Licensor reserves the right to update
Exhibit B hereto, including the Proposal, and adjust pricing for the use of the
Software and any components thereof and any Services provided under this
Agreement in any manner and at any time as it may determine in its sole and
absolute discretion. Also, except as otherwise expressly provided for in this
Agreement, any price changes to Licensee’s use of the Software will take effect
following publication of the updated Exhibit B and email notice to Licensee.
5.3
No Refunds. PAYMENTS ARE NONREFUNDABLE AND THERE
ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. In the event Licensee
elects to terminate its use of the Software and requests the cancellation
thereof, however, Licensee will continue to have access to the Software through
the end of the current calendar month or monthly billing period.
5.4
Taxes. The fees and charges paid by Licensee
under this Agreement will be exclusive of any applicable sales, use, value
added, personal property, excise, services or other
taxes imposed or assessed by a Governmental Authority. Licensee shall pay any
applicable value added, goods and services, sales, use, or like taxes that are
owed with respect to the Software provided under this Agreement and which are
permitted to be collected from Licensee by Licensor under Legal Requirements.
Each party will bear its corresponding taxes based upon its income or on its
property ownership related to this Agreement, which may include municipal,
Commonwealth or federal taxes, as applicable. If taxes
are required to be withheld on any amount to be paid by Licensee to Licensor,
Licensee will deduct them from the amount owed and pay them to the appropriate
taxing authority. Licensee will provide Licensor proof of payment of the taxes
attributable to the Software provided under this Agreement at any time even
after the termination hereof. Licensee remains obligated to pay Licensor for the amount of tax withheld until Licensee provides Licensor
an official receipt and any other documents reasonably requested by Licensor.
Licensee will indemnify, defend, and hold Licensor harmless from any tax
liabilities of Licensee that arise from or are in any way related to Licensee’s
failure to comply with this section.
5.5
Supporting Documentation. Licensor will maintain supporting
documentation for the amounts billable to, and payments made by, Licensee
hereunder in accordance with generally accepted accounting principles. Licensor
agrees to provide Licensee with such supporting documentation with respect to
each invoice as may be reasonably requested by Licensee.
ARTICLE SIX – CONFIDENTIALITY, PRIVACY &
SECURITY OF INFORMATION
Confidential Information.
a)
The
parties acknowledge that in the course of their
dealings each may receive (the “Receiving Party”) Confidential
Information concerning the other party (the “Disclosing Party”), its
business or its clients. Each party is willing to share such Confidential
Information provided that the Confidential Information is protected.
b)
The
Receiving Party agrees to protect and hold all Confidential Information of the
Disclosing Party in strict confidence and to take all reasonable steps
necessary to protect the Confidential Information from unauthorized and/or inadvertent
disclosure. Unless in receipt of specific written exemption from the Disclosing
Party, the Receiving Party will not:
(i)
use,
reproduce, modify or disclose any of the Confidential Information for any
purpose other than to perform its obligations under this Agreement for which
the Confidential Information is being disclosed;
(ii) disclose any of
the Confidential Information other than to Representatives of the Receiving
Party who have a reasonable need-to-know in order to discharge their
obligations under this Agreement, and only to do so when the Representatives
have agreed to be bound by the confidentiality provisions of this Agreement; or
(iii) remove any
proprietary rights legend from the Confidential Information.
c)
The
prohibition against the disclosure of Confidential Information includes, but is
not limited to, disclosing the substance of the negotiations of this Agreement
and the existence and/or the terms and conditions thereof, as well as the fact
that any similarity exists between the Confidential Information and information
independently developed by another Person or entity, and the parties understand
that such similarity does not excuse it from abiding by its covenant or other
obligations under this Agreement.
d)
The
Receiving Party will be fully liable for the acts of its Representatives to
whom it discloses the Confidential Information.
e)
Licensor
may share Licensee’s Confidential Information with its affiliated for the
purpose of providing additional products and services offerings to Licensee.
6.2
Security
of Customer Information.
a)
To
the extent that Customer Information may be subject to the rules or regulations
governing the privacy of non-public personal information ("Privacy
Regulations"), disclosure of such information will be made only as permitted
by such Privacy Regulations (or any other Legal Requirements). Should Licensor
receive Customer Information from Licensee that is subject to the Privacy
Regulations and such Customer Information will be in Licensor's control or
possession, then Licensor represents and warrants to Licensee that it has in
place a written information security program that includes administrative,
technical and physical safeguards to protect the security, confidentiality and
integrity of Customer Information. Licensor agrees that Licensee may, (a)
solicit a copy of the aforementioned information security program, and (b)
review, monitor and audit Licensor to confirm it has satisfied its obligations
pursuant to this paragraph. Licensee will notify and coordinate implementation
with Licensor of any changes in the laws or regulations regarding security
measures that may apply to Licensor with sufficient time to allow it to be able
to comply with such requirements.
b) Licensee will be
responsible for maintaining security for its own systems, servers, and
communications links that complies with the Legal Requirements and is
reasonably designed to (i) protect the security and integrity of Licensor's
systems and servers on which Confidential Information is stored and/or
processed, and (ii) protect against unauthorized access to or use of Licensor's
systems and servers on which Confidential Information is stored and/or
processed.
6.3
Disclosure of Security Breach. In the event of
any confirmed security breach that the Receiving Party learns of that either
compromises or could compromise the Confidential Information, including Customer
Information, (e.g., physical trespass on a secure facility, computing systems
intrusion/hacking, loss/theft of a PC (laptop or desktop), loss/theft of
printed materials, etc.) (collectively, a “Security Breach”), Licensee or
Licensor, as the case may be, will promptly notify the other party. Except
as may be strictly required by Legal Requirements, the parties agree not to inform any Third Party of any
such Security Breach without the other party’s prior written consent; however,
if such disclosure is required
by Legal Requirements, the parties agree to cooperate with each other regarding
the content of such disclosure so as to minimize any potential adverse impact
upon the parties and their respective clients and customers.
6.4
Remedies. In the event of any court order or
legal action requiring the disclosure of Confidential Information, the
Receiving Party agrees to give immediate verbal and written notification of the
order or action to the Disclosing Party, and to the extent allowable under the
law and at the expense of the Disclosing Party, hold the Confidential
Information while the Disclosing Party seeks a protective order. The Receiving
Party acknowledges and agrees that it would be difficult to fully compensate
the Disclosing Party for damages resulting from the breach or threatened breach
of the foregoing provisions and, accordingly, that, in addition to any other
remedies that may be available, in law, at equity or otherwise, the Disclosing
Party will be entitled to seek injunctive relief, including without limitation
temporary restraining orders, preliminary injunctions and permanent
injunctions, to enforce such provisions without the necessity of proving actual
damages or posting a bond or any other security. This provision with respect to
injunctive relief will not, however, diminish the Disclosing Party’s right to
claim and recover damages.
6.5
Term of Obligation. The parties’ obligations under
this Article will survive this Agreement for a period of three (3) years
following termination hereof. Upon termination of this Agreement for any
reason, the Receiving Party’s rights to possession and use of any Confidential
Information in connection with the performance of its obligations hereunder or
otherwise will terminate. Upon the request of the Disclosing Party, the
Receiving Party will promptly return or destroy (in either case under
certification to said effect) all Confidential Information belonging to the
Disclosing Party, including all copies thereof. Should the Receiving Party be
required by law to retain any of the Disclosing Party’s Confidential
Information for a period longer than the term of this Agreement, including any
extension thereof, then the Receiving Party’s obligations under this Article
will remain in full force and effect until the expiration of any such legally
mandated retention period.
6.6
Authorized Persons. Licensee will designate one or
more individuals (hereinafter, “Authorized Persons”) so that the
Authorized Person can (1) carry out transactions in Licensee’s name; (2)
receive information from Licensor related to the operation of the Software,
including, but not limited to, any Licensor‑provided access code; (3)
give written instructions or inform Licensor about any action or request for
action by Licensee; (4) request any Services from Licensor pursuant to the
terms of this Agreement; or (5) notify or issue any document related to this
Agreement that the Authorized Person deems necessary or convenient. Should the
Software require access codes or other identification methods to gain access,
Licensee will immediately notify Licensor in writing of any change of
Authorized Person or the scope of his/her authority. Until such notification is
received, Licensor may accept, without further inquiry, all declarations, instructions or representations made or issued by the
Authorized Person. Furthermore, Licensor will not assume responsibility,
explicitly or implicitly, for questioning or verifying with Licensee whether
the Person who uses or has access to the Software or requests any Services under
this Agreement is in fact the Authorized Person or if he/she is acting in
accordance with the Licensee’s internal policies and procedures.
7.1
Title.
Licensor warrants that it is the owner of the Software and all proprietary and
intellectual property rights associated therewith and is authorized to license
and distribute the Software.
7.2
General.
Licensee acknowledges that in providing the Software to Licensee Licensor is
not transferring any right, title or interest in Licensor’s
Intellectual Property or that of any Third Party, or any part or component
thereof, to Licensee. Licensee may not adopt or use the
PVOT brand or any other brand or trademark related to the Software, in whole or
in part, or any confusingly similar words or symbols, as part of its company
name, services, products, or business. Licensee will not remove, alter or change the trademarks or logos on or
associated with the Software or other services provided hereunder without
express authorization in writing from Licensor to do so. At the termination of
this Agreement Licensee will immediately discontinue using the PVOT brand and
promotional materials.
7.3
Cooperation.
The parties will cooperate with each other and execute such other documents as
may be reasonably deemed necessary by Licensor to achieve the objectives of
this Article.
ARTICLE EIGHT –
REGULATORY COMPLIANCE, AUDIT & SERVICE REVIEWS
8.1
Regulatory Compliance.
a)
Licensee
acknowledges that Licensee will be solely responsible for Licensee’s compliance
with the Legal Requirements applicable to Licensee, and as such, hereby
warrants that Licensee will comply with all applicable Legal Requirements,
present and future, relating to the conduct and operation of its business and
performance of its obligations hereunder.
b)
Without
limiting Section 8.1(a), neither Licensee nor a Licensee’s customer shall (i)
become a Restricted Party, (ii) violate, directly or indirectly, any
international trade laws (in the case of clauses (i) and (ii), as if Licensee
or a Licensee’s customer was subject to such laws) or (iii) use, directly or
indirectly, any Software or any element or sub-element of the Software in a
manner, or otherwise engage in any conduct, take any action or fail to take any
action, that Licensor reasonably believes would cause it, Licencor’s
parent company, its Affiliates or any holder of any equity interest in its
Affiliates or any of their respective Affiliates to violate any Legal
Requirement or any agreement or undertaking to which it, Licensor, its
Affiliates or any of their respective Affiliates is a party or is bound.
Licensee shall notify Licensor immediately upon becoming aware of any breach of
this Section 8.1(b).
c)
Licensee
acknowledges that Licensor will not provide Software to, or accept Software or
requests originating from, Restricted Parties or otherwise violate, directly or
indirectly, any international trade laws.
8.2
Documents. Licensee agrees and acknowledges that
from time to time during the term of this Agreement, Licensor may require
Licensee to complete questionnaires and/or end user certificates relating to
the Software.
8.3
Import/Export Control. The parties acknowledge that Software and technical
information (including, but not limited to, technical assistance and training)
provided under this Agreement may be subject to import or export laws,
conventions or regulations of the United States and jurisdictions in which Licensor
is established and from which items are supplied, and any use or transfer of
the Software and technical information must be in compliance with all such
laws, conventions and regulations. The parties will not use, distribute,
transfer, or transmit the Software and technical information (even if
incorporated into other products) except in compliance with such laws, conventions and regulations. If requested by either party,
the other party agrees to sign written assurances and other documents as may be
required to comply with such laws, conventions and
regulations.
ARTICLE NINE – DISCLAIMER OF
WARRANTIES & LIMITED LIABILITY
9.1
DISCLAIMER OF WARRANTIES. THE SOFTWARE
PROVIDED UNDER THIS AGREEMENT IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS.
IN ADDITION, THE PARTIES ACKNOWLEDGE THAT GIVEN THAT THE SOFTWARE MAY DEPEND TO
SOME EXTENT ON LICENSEE’S OWN COMPUTER SYSTEMS, LICENSOR DOES NOT MAKE ANY
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. LICENSOR AND ITS
LICENSORS DO NOT WARRANT THAT THE SOFTWARE WILL MEET THE LICENSEE’S
REQUIREMENTS (WHETHER OR NOT LICENSOR KNOWS, SHOULD HAVE KNOWN OR BECOMES
AWARE), OR THAT THE SOFTWARE OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. LICENSOR
AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES, CONDITIONS OR
REPRESENTATIONS, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
AND WARRANTIES OF NON-INFRIGEMENT OF INTELLECTUAL PROPERTY, WITH RESPECT TO ANY
SOFTWARE PROVIDED HEREUNDER. FURTHERMORE, LICENSOR DOES NOT MAKE ANY WARRANTIES
OF ANY KIND WITH RESPECT TO LOSS OR CORRUPTION OF DATA, LOSS OR DAMAGE TO
EQUIPMENT AND/OR SOFTWARE, SYSTEM RESPONSE TIMES, TELECOMMUNICATION LINES OR
OTHER COMMUNICATION DEVICES, QUALITY, AVAILABILITY, RELIABILITY, SECURITY
ACCESS DELAYS OR ACCESS INTERRUPTIONS, NOR COMPUTER VIRUSES, BUGS OR ERRORS. LICENSOR
DOES NOT MAKE ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR
FREE OR AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE AND
LICENSOR ASSUMES NO RESPONSIBILITY OR LIABILITY IF TELECOMMUNICATION CARRIERS
ARE NOT AVAILABLE AT ANY GIVEN TIME. LICENSOR, ITS AFFILIATES, AND THEIR
RESPECTIVE REPRESENTATIVES SHALL NOT BE LIABLE, AND EXPRESSLY DISCLAIM ANY
LIABILITY FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM LICENSEE OR
STORED BY LICENSEE VIA THE SOFTWARE PROVIDED BY LICENSOR. NO ORAL ADVICE OR
WRITTEN INFORMATION GIVEN BY LICENSOR’S REPRESENTATIVES WILL CREATE A WARRANTY;
NOR MAY THE LICENSEE RELY ON ANY SUCH INFORMATION OR ADVICE. THE FOREGOING
DISCLAIMER SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
9.2
Force Majeure. Licensor will not be liable for any
Loss, damage, non-performance, default, or delay under this Agreement caused by
or due to Force Majeure.
9.3
Systems and/or Services Not Provided by Licensor. Licensee will
be solely responsible for all software, hardware, communications devices,
Internet services, e-mail systems, antivirus and firewall protection and any
other services or systems not provided by Licensor under this Agreement that
may be required for Licensee’s business (“Licensee Systems”) and the
operation, maintenance, security updates, use, and compatibility of such
Licensee Systems. In addition, Licensee will be responsible for seeking and
obtaining any licenses or permissions that may be necessary for Licensee or Licensor
to interface the Software with such Licensee Systems. The parties acknowledge
and agree that the terms of this Agreement will not be deemed to impose on Licensor
any obligation to obtain any such licenses or permits. Licensor shall have no
responsibility or liability in connection with any Licensee Systems. In the event that such Licensee Systems impair Licensee’s
use of the Software in any way, Licensee will nonetheless be liable for payment
for all amounts due hereunder.
9.4
Backup.
Licensee is responsible for its back-ups related to the Software and all
data collected or produced through the Software.
9.5
Professional Services. Licensee
acknowledges that Licensor is not rendering legal, tax, accounting or
investment advice in connection with the Software contemplated under this
Agreement and that Licensee will look solely to its legal, tax, accounting or
other advisers for any such advice.
9.6
LIMITATION OF LIABILITY.
a)
IN
ADDITION TO ANY OTHER LIMITATION OF LIABILITY ESTABLISHED IN THIS AGREEMENT,
AND TO THE FULLEST EXTENT PERMITTED BY ANY LEGAL REQUIREMENT, LICENSOR, ITS
AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES WILL NOT BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR
LOSSES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR ANTICIPATED PROFITS,
ROYALTIES, LOST DATA, COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE, EQUIPMENT OR
SERVICES, OR ANY OTHER BUSINESS OR OTHER
ECONOMIC LOSS ARISING FROM OR RELATED TO (1) THE SOFTWARE, (2) THIS AGREEMENT
OR ITS PERFORMANCE OR BREACH, (3) ANY SOFTWARE OR EQUIPMENT NOT PROVIDED BY LICENSOR,
(4) ANY SERVICES, INCIDENTAL OR OTHERWISE, PROVIDED BY LICENSOR OR THIRD PARTIES, AND (5) ANY THIRD
PARTY CLAIM: (I) WHETHER FOR, AMONG OTHER THINGS, LICENSEE’S NEGLIGENCE
OR MISCONDUCT, BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM; (II)
WHETHER LIABILITY IS ASSERTED IN, AMONG OTHER THINGS, CONTRACT OR TORT
(INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT PRODUCT LIABILITY); (III) WHETHER OR NOT FORESEEABLE; AND (IV)
WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR
DAMAGE.
b)
LICENSOR’S
AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY
LICENSEE, IN THE AGGREGATE, UNDER THIS AGREEMENT DURING THE LAST SIX (6) MONTHS
THE DATE OF ANY CLAIM PRECEDING. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING
ANY LIMITED REMEDY PROVIDED HEREIN. LICENSEE
HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE
REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. The foregoing
sets forth Licensee’s exclusive remedy for breach of this Agreement by Licensor.
The provisions of this section allocate the risks between Licensor and Licensee,
and Licensor’s pricing reflects the allocation of risk and limitation of
liability specified herein.
ARTICLE TEN – INSURANCE &
INDEMNIFICATION
10.1
Licensor Infringement Indemnity. If Licensee
receives a notice or claim that its use of the Software infringes a United
States patent, United States copyright or United States trademark, or any
trademark in the Territory, Licensee will inform Licensor as soon as it
receives notice of the claim and will fully cooperate in the defense and
mitigation of the claim. Licensor will have the right, at its option and
expense to (i) obtain for Licensee the rights to use or distribute the
Software, (ii) replace or modify the Software so that it becomes
non-infringing, or (iii) terminate this Agreement in exchange for a credit not
to exceed the fees paid by Licensee under this Agreement in a period of six (6)
months preceding the claim. The foregoing, subject to the following
restrictions, states the sole and exclusive liability of Licensor to Licensee
concerning claims of infringement or misappropriation.
10.2
Licensee’s Indemnity. Licensee hereby agrees to indemnify, defend,
protect and hold harmless Licensor, its Affiliates and their respective Representatives,
suppliers, Third Party information providers, sub-contractors and permitted
assigns and successors in interest (collectively the “Licensor Indemnitee”)
from and against any Losses incurred or suffered by, or asserted against, such Licensor
Indemnitee directly or indirectly in relation to or arising from: (a) any
breach of Licensee’s representations, warranties, obligations or covenants
under this Agreement; (b) any claim brought by any Governmental Authority or
any Third Party against an Licensor Indemnitee based on Licensee’s use of the
Software or any Services provided hereunder; (c) Licensor’s compliance with
Licensee’s specifications or instructions; (d) acts or omissions of Licensee
and its Representatives in connection with the installation, maintenance,
presence, use or removal of equipment or software not provided by Licensor; (e)
claims for infringement of any Third Party Intellectual Property right, arising
from the use of any services or systems not provided by Licensor; (f) Licensor’s
use of Intellectual Property or data supplied by Licensee; (g) the use of the
Internet or the placement or transmission of any materials on the Internet by
Licensee or Licensee’s Representatives; (h) breach of contract and/or the
warranties of merchantability and/or fitness for any particular purpose, and
related in any way to any service or product sold or offered by Licensee and/or
any of its Affiliates at and/or through the Licensee’s electronic payment
system; (i) the contents of Licensee’s online web site and/or any other web
site of Licensee’s Affiliates or any claim that they violate any copyright,
proprietary right or Intellectual Property right of any Third Party, state and
federal regulations, or contains any matter that is libelous, scandalous or relates
to products or services the offering or sale of which would in any manner be
against the law; and (j) Licensee’s negligent acts, intentional acts or
omissions in any way associated with this Agreement.
Exhibit
A – Maintenance and Support Services
Unless indicated otherwise, all
capitalized terms used herein will have the meanings ascribed to them in the
Agreement. In the case of conflicting provisions between this Exhibit A and the
Agreement, the terms and conditions of this Exhibit A will prevail.
1.
Maintenance. Licensor will provide technical support and maintenance services for
the Software consisting of (i) preventive maintenance and (ii) corrective
maintenance and support under Help Desk Support services as set forth below.
a.
Preventive Maintenance. Licensor will provide preventive maintenance for the Software as
follows: (i) Software Updates, Upgrades and New Versions as downloads; (ii)
maintain updated Documentation; (iii) recommend and execute any necessary
adjustment or modification on the configuration of the Software in the cloud in
order to optimize performance.
b.
Corrective Maintenance and
Support. Licensor will provide corrective Maintenance and
Support through its Help Desk Support during Coverage Hours as follows: (i)
Remote Diagnostic Services (If remote connection available) involving the
attempt by a Licensor technician to troubleshoot actions through remote access
with dial-in diagnostic capabilities and provide problem analysis of the Software
over the phone; and (ii) service help desk via telephone (787- or, a Phone Support representative(s) shall be
available to receive Licensee’s telephone calls during Coverage Hours to
provide functional Support. The Phone
Support representative(s) shall serve as the Licensee’s interface with Licensor
and shall ensure that reported errors are handled in a timely manner. Licensor
shall provide to Licensee in writing, the name(s) and telephone number(s) of
such telephone support representative(s) within ten (10) days of the later of
the execution of this Agreement or the acceptance of the Software by Licensee
under this Agreement. This Agreement does not cover the telephone fees of any
sort including long distance, in which Licensee and/or Users may incur. Licensor
will not accept collect calls.
c.
Support Escalation Levels
i.
Level
1 –
Initial support level will respond to basic end user issues, questions
or doubts. Licensor technicians will do basic troubleshooting to try to resolve
the problem. If the issue cannot be resolved, Licensor will escalate the issue
to Level 2 technicians.
ii.
Level
2 –
More in-depth knowledge technicians will offer support to the end user. If the
issue cannot be resolved, Licensor will escalate the issue to Level 3.
iii.
Level
3 –
Licensor technicians will work to resolve the issue including a .fisical visit if necessary.
d.
Excluded Services. Maintenance does not cover,
among others:
i.
Questions
about design standards, development methods, basic operations and other general
topics that are intended to be covered by attending training classes or reading
the user Documentation;
ii.
On-Site
diagnostic services involving a Technician visiting Licensee’s facilities to
provide Maintenance including the installation at Licensee’s facilities of such
Updates, Upgrades or New Releases nor modification of Licensee’s special
programs required to function under such new versions nor the costs of
travelling fees to Licensee’s facilities;
iii.
Repair, replacement, correction
or adjustment of any malfunction caused by Licensee’s failure to maintain
preventative Maintenance on the Software in accordance with Licensor’s
recommendations.
iv.
Modifications, additions, relocation
or any other changes to the existing configuration for the Software.
v.
Corrective Maintenance services due to: (i) Any
alterations and modifications to, or any other interventions with the Software
by anyone other than Licensor; (ii) Damaged components that have been replaced
and or interchanged by anyone other than Licensor; (iii)Damages to Software due
to accident, abuse, User error, electrical fluctuations or any situation or
event of force majeure (iv) failure by Licensee to maintain a computing
environment in accordance with Licensor’s technical Specifications; (vi)
failures in the operation of the Software due to failures on Licensee’s
LAN/WAN, data bases, or any other hardware or software component that operates
in direct or indirect relation to the Software; (vi) Any relocation of the Software
by Licensee, without previous approval from Licensor, which impacts Licensor’s
ability to deliver the Services.
vi.
New software modules, options or applications
related to the Software for which Licensor elects to make generally available
to its client base and/or establishes a separate Subscription fee.
vii.
Any expendable items, such as tape cartridges,
magnetic media, and similar items or supplies, network configuration and cabling
services ***
viii.
Any software
design, development, installation, implementation, or consulting services, required to meet Licensor’s Maintenance obligations.
ix.
Any other service requested by Licensee and not
specifically contemplated under a Service Order or Proposal including partial or total data conversion.
2.
On-Site Technical Support. Notwithstanding anything to the contrary in
this Agreement, on-site technical support services on a time and material basis
may be requested by Licensee under the maintenance provisions of this
Agreement, provided however, that Licensee sends an irrevocablle
order accepted by Licensor under the Terms of this Agreement whereby (i) the
technical services request and (ii) the hourly fees, whether regular or
emergency, at the then current rates (iii) and any other fee or expense are
confirm in writing.
3.
Consulting, Programming
and Training Services. Licensor or an authorized implementation partner
may provide consulting, programming and/or training services to Company related
to the implementation and use of the Software; provided however, under the
Service Order or an irrevocable order from Licensee accepted by Licesor under the terms of this Agreement whereby (i) the
services request are specified and (ii) the hourly fees, whether regular or
emergency, at the then current rates (iii) and any other fee or expense are
confirmed in writing. Such
Services will be billed on a time and materials basis unless the parties
expressly agree otherwise in writing. Any consulting, programming or training
services acquired from Licensor or an authorized implementation partner will be
billed separately from the
Recurring Fees under this Agreement or the Service Order, as
applicable. Any implementation
service or consulting services provided by Licensor, shall be provided under
this Agreement.
4.
Optional Hardware Sale or Lease.
Licensee may purchase or lease the required hardware specified by the Licensor
in the agreed Proposal.
5.
Cloud Services will be provided as set
forth in the Cloud Service Order at the fees set forth in the Proposal.
6.
Other Services as provided in the
Proposal or Service Order, as applicable.
Exhibit
B – Fees
Unless indicated
otherwise, all capitalized
terms used herein will have the meanings ascribed to them in the Agreement.
In the case of conflicting provisions between this Exhibit B and the Agreement,
the terms and conditions of this Exhibit B will prevail.
The Recurring
Services Fees for the Software license granted under this Agreement provided
by Licensor in accordance with the terms of the Agreement or the Proposal will
be debited on the tenth (10th) day of each calendar month, while
Non-Recurring Services will be invoiced on the tenth (10th) day of
each calendar month on net thirty (30) days term in accordance with the
schedule of costs and fees set forth below:
1.
Fees for Use of the Software: (Recurring Services).
|
PVOT LICENSE
Includes: Server, backups, updates, maintenance. |
|
Inventory
management, amount of items and SKU’s and clock timeline
management and amount of users will be agreed and billed with the proposal monthly
rate. |
2.
Assistance and Support per hour rounded to the hour:
(Non-Recurring Services).
|
Remote service and support plans for PVOT are included in the license. |
|
NON PVOT service and support like network support, internet support, cabling
services support, additional training support, additional menu configuration
support or any service or support not included in the proposal will be billed at the proposal agreed hourly rate. PVOT |
3.
Setup and Network Configuration: (Non-Recurring Services).
|
Additional or
personal computers |
|
Network Cable
connections per Hour + hardware and material costs. |
|
Network
Configuration per Hour + hardware and material costs. |
4.
Business Intelligence and consulting service will be agreed and billed
with the Proposal rate per hour: (Non-Recurring Services)
|
Analysis and
design process |
|
Operational
Workflows |
|
Analysis
documentation |
|
Operational
control implementations |
|
Operational
Manuals |
|
Warehouse
Management |
|
Supply chain
configuration and management |
|
Additional
Trainings |
|
Custom
Development |
5.
Interoperability, connections with third parties like Microsoft
GP, HRSENSE or any other connection with a third party or custom modification will
be agreed and billed on a service order or another proposal.
6.
Other Fees (Non-Recurring Services) that will be agreed and billed
as set forth in the Proposal rate per hour or Service Order, as applicable.
|
Data Transfer Upon Termination or
Cancellation of Licensee’s use of the Software |
|
Reconnection
Fee |
|
Penalty for rejected
or declined ACH or any payments method. |