IMPORTANT NOTICE: This agreement (the “Agreement”) between ModSys International Ltd. doing business as Modern Systems (“Licensor”) and you (“Customer”) (collectively, Parties) and by subscribing to this product agree to the terms and conditions herein. Do not use the Software until you have carefully read all of the terms and conditions of this Agreement.
1) License Grant and certain Restrictions
a) Software. Modern Systems Modernization Platform as a Service (ModPaaS), a machine-readable object code version of Modern Systems’ Enterprise Application Viewer (eav) Computer Application and Online User Documentation, preinstalled and configured on a Microsoft Azure Virtual Machine.
b) License. Subject to the terms and conditions of this Agreement, Licensor grants Customer a nontransferable, nonexclusive license for use of the Software and any product updates or product upgrades thereto, on Microsoft Azure. Customer may use the Software only on the Virtual Machine that it was originally installed. Licensor retains all right, title, interest and any other intellectual property rights in and to the Software.
c) Restrictions. Customer shall not (i) use the Software to provide services under any name other than that of Customer; (ii) use the Software to analyze or document the software of third parties without Licensor’s prior written consent; (iii) use the Software in the operation of a service bureau; (iv) modify or change the Software; or (v) decompile, disassemble or otherwise reverse engineer the Software. Use of Software is limited to one or more related Customer applications forming a single project.
d) Key. In connection with the license granted herein and subject to all the terms of this Agreement, Licensor shall license for use to Customer a user authorization code (“Key”) for one Instance that can be access the Software on Microsoft Azure by up to five (5) users concurrently. License term is six (6) months for the date of issuance of key. At the end of the term, key will become inactive. Following the initial six-month license period, Customer may enter into a new agreement to extend the term.
Customer shall maintain the Software by installation of Licensor provided updates made available periodically. If necessary, Customer shall provide Licensor online access to the Software to allow Licensor to access and review the Software.
Failure to pay Licensor the Software license fees previously agreed shall terminate this Agreement immediately. Pricing and payment terms are specified on the ModPaaS Microsoft Azure Marketplace page.
a) Both parties recognize materials provided by the other may contain Confidential Information. “Confidential Information” as used in the Agreement means any and all technical and non-technical information, including but not limited to software source documents and formulae in any way related to the current, future and proposed business, business plans, financial information, procurement requirements, purchasing requirements, manufacturing, third-party information, experimental work, development, design details, specifications, engineering, patents, copyrights, trade secrets, proprietary information, methodologies, techniques, sketches, drawings, models, inventions, know-how, processes, products and services of either Licensor or Customer, whether disclosed orally, visually, in writing or by way of consigned items.
b) Licensor and Customer agree:
Customer agrees that Licensor owns all copyright, trade secret, patent, trademark and other proprietary rights in and to the Software, including all modifications thereto. The terms Modern Systems, Modernization Platform as a Service, ModPaaS, Enterprise Application Viewer and eav are registered trademarks of Modern Systems.
Licensor warrants that it has clear title to the Software. Licensor further warrants that for after the term of this agreement the Software, if used by Customer in accordance with the Software’s Online User Documentation, will perform the functions set forth in Exhibit A. LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7) General Provisions
a) Assignability. This Agreement and all rights and obligations thereunder shall not be assignable by Customer except with the prior written consent of Licensor. A change in control shall be deemed an assignment subject to this Section. This Agreement shall be binding upon each party’s permitted successors and assigns.
b) Liability. LICENSOR SHALL NOT BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING FROM CONTRACT OR NEGLIGENCE. In no event shall Licensor’s liability exceed the initial license fee for the Software paid by Customer. No action or claim relating to this Agreement or the Software may be instituted more than one (1) year after the event giving rise to such action or claim.
c) Indemnification. Licensor shall indemnify and hold Customer harmless from and against any claim of infringement of a United States patent or copyright based upon the Software, provided Customer gives Licensor prompt notice of and the opportunity to defend any such claim. Licensor shall have the right to settle such claim or, at Licensor’s option, provide Customer (i) a paid-up license; (ii) substitute, functionally equivalent software; or (iii) a refund of a pro rata portion of the license fee paid for the Software based a six-month usage term.
d) Entire Agreement; Amendment. This Agreement with its exhibits is the complete and exclusive agreement of the parties and supersedes all other communications, oral or written, between the parties relating to the Agreement’s subject matter. Any change to this Agreement shall not be valid unless it is in writing and signed by both parties.
e) Choice of Law/Arbitration. This Agreement shall be governed by the laws of the State of Texas. The parties hereto agree and submit to the exclusive jurisdiction of the state and federal courts located in Dallas County, Texas in the event of any dispute arising in connection with this Agreement.
f) Waiver. Neither the failure nor any delay to exercise a right, remedy or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of a right, remedy or privilege preclude any further exercise of the same.
g) Severability. Each provision of this Agreement is severable from all of the other provisions. The invalidity or unenforceability of any provision will not affect or impair the remaining provisions which will continue in full force and effect.
h) U.S. Government Restricted Rights. The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227-7202-1 through 227-7202-4 (JUNE 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein. Modern Systems, 6600 LBJ Freeway, Dallas, TX 75240.
i) Order of Precedent of Agreements. If this Agreement conflicts with any Master Services or Software License agreement which has been executed between the Customer and the Licensor, such agreement shall supersede this Agreement.
Functionality and Definitions
1. Software Functionality
a. Computer Application
The multiple software programs that comprise the Modern Systems Enterprise Application Viewer (eav). eav is used to generate documentation and analyze and interrogate the application software components that are stored in each eav Instance.
b. Online User Documentation
The help screens, text, samples and explanations that describe the functionality and features of the Computer Application and that instruct the User in the operation and functionality of the Computer Application.
One occurrence of the Software along with one occurrence of the associated relational database where the Licensor’s application software components for a single organization or business of Licensor are stored.
An employee of the Customer who is authorized to access the Software using their user id and password.
c. “Concurrent User”
Users accessing the Software simultaneously. The Software may contain codes that limit the number of Concurrent Users.