Software License - Terms and Conditions
A. Subject to the terms of this Agreement, the Software, including a single hard copy of the documentation relating to or describing the Software, is furnished to Customer under a perpetual, non-exclusive, non-transferable license solely for Customer's own internal use in compliance with all applicable laws and regulations.
B. The Software may only be copied, in whole or in part (with the proper inclusion of SVAM's copyright notice and any other proprietary notice and/or trademarks on such Software), as may be necessary and incidental for archival, testing, disaster recovery site and backup purposes or to replace a worn or defective copy.
C. Software will be designated and licensed for Client Access Licenses (“CAL”). "Client Devices" are defined as personal computers, which access such Software.
D. Customer may reproduce SVAM’s client Software documentation and user’s guides as required for Customer’s internal purposes with absolutely no right to reproduce or distribute such documentation for any other purpose. If the Customer wished to purchase additional hard copies of SVAM’s software documentation, such purchases will be made at the then current per copy prices.
E. A Single System is defined as a single executable copy of the server Software residing on a single server. Additionally Client Access Licenses (“CAL”) licenses are for web access users only and are the licensed by the total number of users that would have access to the Single System through the web.
F. During service or at any reasonable time during normal business hours, SVAM may enter Customer's premises for the purposes of auditing Customer's use of the Software. SVAM may also run audit software on the Customer's hardware, either directly or via remote access, for the purposes of determining compliance with the terms of this Agreement. Audit report software will record the number of Users. Customer will be invoiced and required to pay for any unlicensed users that are found upon audit.
G. Unless terminated by SVAM in accordance with this Agreement, the term of each paid license shall only expire at such time as Customer discontinues use of the applicable Software, but otherwise the license shall be perpetual.
H. Title to and ownership of the Software and all of its parts (or any modifications, translations, or derivatives thereof, even if unauthorized) and all applicable rights in patents, copyrights and trade secrets in the Software shall remain exclusively with SVAM and its licensors. Software provided hereunder is valuable, proprietary, and unique, and Customer agrees to be bound by and observe the proprietary nature thereof as provided herein. Customer agrees to take diligent action to fulfill its obligations hereunder by instruction or agreement with its employees or agents (whose confidentiality obligations shall survive termination of employment or agency) who are permitted access to the Software. Access shall only be given on a need-to-know basis. Except as set forth herein or as may be permitted in writing by SVAM, Customer shall not use, provide or otherwise make available the Software or any part or copies thereof to any third party. Customer shall not reverse engineer, de-compile or disassemble the Software or any portion thereof, nor otherwise attempt to create or derive the source code. Customer acknowledges that unauthorized reproduction, use, or disclosure of the Software or any part thereof is likely to cause irreparable injury to SVAM and/or its licensors, who shall therefore be entitled to injunctive relief to enforce these license restrictions, in addition to any other remedies available at law, in equity, or under this Agreement.
I. Notwithstanding the foregoing, SVAM shall have the right to terminate Customer's license if Customer fails to pay any and all required license fees or otherwise fails to comply with these license terms and conditions. Upon expiration of the license term or upon notice of such termination, Customer shall immediately return or destroy the Software and all portions and copies thereof as directed by SVAM and, if requested by SVAM, shall certify in writing as to the destruction or return of the same. All confidentiality and non-disclosure obligations herein shall survive termination.

  

Warranty (Software)
A. SVAM warrants that SVAM owns or has acquired rights to all proprietary interests in the Software necessary to grant the license set forth in this License Agreement.
B. SVAM warrants for a period of three (3) months from first delivery of the Software used in a manner for which it was designed will generally conform to the applicable SVAM end user documentation prevailing at the time of delivery. SVAM 's sole obligation and liability hereunder shall be to use reasonable efforts to remedy any substantial non-conformance, which is reported to SVAM in writing within the warranty period. SVAM also agrees to provide to Customer telephone support to resolve software failures during the warranty period. In the event that reported problems are the result of Customer's failure to operate the Software in accordance with the end user documentation or the failure to operate the Software as instructed, rather than a failure of the Software to conform to the end user documentation, then Customer shall pay for SVAM’s services in remedying such problem at SVAM’s then current time and materials charges. This warranty does not give the purchaser of software any rights to future enhancements.
C. The above warranty is contingent upon proper use of the Software and does not cover Software, which has been modified without SVAM 's approval.
D. In no event shall SVAM be liable to Customer for (a) any special, indirect, incidental or consequential damages, even if SVAM has been advised of the possibility thereof, (b) any damages resulting from latent defects, loss of data or profits, or (c) any claim whether in contract or tort, that arose more than one year prior to institution of suit thereon, or (d) any actual damages (except damages resulting from gross negligence or intentional misconduct) in excess of the Product prices and license fees paid hereunder.
E. SVAM DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO LICENSEE WITH RESPECT TO THE SVAMs SOFTWARE, THE DOCUMENTATION OR ANY THIRD PARTY SOFTWARE PROVIDED HEREUNDER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. IN NO EVENT SHALL SVAM BE LIABLE FOR ANY SPECIAL, INCIDENTAL INDIRECT OR CONSEQUENTIAL DAMAGES FROM LOSS OF USE OR LOST DATA, EVEN IF SVAM HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGE. THIS LIMITATION SHALL NOT APPLY TO CLAIMS FOR PERSONAL INJURY OR DAMAGE TO PERSONAL PROPERTY CAUSED BY SVAM’S NEGLIGENCE.

  

Infringement Indemnification
A. SVAM shall defend any action, suit or proceeding brought against Customer insofar as it is based on a claim that the use of the Software constitutes an infringement of any United States patent or copyright, provided that SVAM is promptly notified by Customer of the action and given full authority, information and assistance for the defense of the action. SVAM shall pay all damages and costs awarded therein against Customer, but shall not be responsible for any compromise made without its consent. SVAM may, at any time it is concerned over the possibility of such an infringement, at its option and expense, replace or modify the Software so that infringement will not exist, or remove the Software involved and refund to Customer the price thereof. The indemnification provided in this section is the sole remedy for a breach of the warranty contained in Section “Warranty (Software) - A”.
B. SVAM shall have no liability to Customer under any provisions of this Section “Infringement Indemnification” if any patent or copyright infringement or claim thereof is based upon the use of the Software in connection or in combination with software not supplied by SVAM or in a manner for which the Software was not designed, or if the claim of infringe¬ment would have been avoided but for Customer's use of Software other than the latest, unmodified release made available to Customer by SVAM.
C. Customer shall indemnify and hold harmless SVAM for any loss, cost or expense suffered or incurred in connection with any claim, suit or proceeding brought against SVAM insofar as it is based on a claim that the manufacture, sale, or licensing of any Software delivered hereunder and modified or altered or combined with any products, device, or software not supplied by SVAM hereunder constitutes an infringement because of such modification, alteration or combination.

  

Miscellaneous
A. Interest may be charged on overdue accounts and any other fees and expenses not paid as provided hereunder at the rate of one and one-half percent (1-½%) per month or the maximum amount allowed by law, whichever is less, commencing with the date payment was due.
B. Maintenance support will be provided after the completion of warranty period at an additional cost (20% of the software cost) per annum which will be described separately in the maintenance contract.
C. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Dates or times by which SVAM is required to render performance under this Agreement shall be postponed automatically to the extent that SVAM is prevented from meeting them by any cause beyond its reasonable control.
D. SVAM shall have the right to use the Licensee’s name and information in marketing materials with the provision that Licensee shall have 30 days from receipt of proposed materials to make appropriate, reasonable changes prior to the publishing of said materials by SVAM. SVAM shall have the right to list Licensee as a customer on its website and in its written customer list.
E. All rights and remedies of the parties hereto are separate and cumulative. The waiver or failure of either party to exercise in any respect any right or remedy provided herein shall not be deemed a waiver of any further right or remedy hereunder.
F. This Agreement shall be subject to, governed by, and construed in accordance with the laws of the State of New York.
G. The invalidity of any provision of this Agreement shall not affect the validity and binding effect of any other provision.
H. Notices hereunder shall be sent to the addressees on the face of this Agreement, or to such other addresses as specified by a notice complying herewith, and shall be deemed received on the earlier of actual receipt or five days after deposit in the United States Postal Service.
I. Customer may not assign any of its rights or obligations hereunder except with SVAM ’s prior written consent, and any attempted assignment shall be void; provided, however, Customer may assign its rights under this Agreement to a parent that is the majority owner of Customer or to a subsidiary that is majority owned by Customer, as long as such entity agrees in writing to be bound by all of the terms and conditions of this Agreement.
J. This agreement evidences the complete understanding and agreement of the parties with respect to the subject matter hereof and supersedes and merges any prior understandings or agreements. This agreement may not be modified except by a writing signed by both parties.
K. Each party agrees to comply with all applicable federal, state and local laws, rules ordinances and regulations, including, without limitation, the Export Administration Act and the Export Administration Act Regulations as both may be amended from time to time.
L. Headings used in this agreement are for reference purposes only.