Software License(s) and Maintenance/Support Agreement
This Software License and Maintenance/Support Agreement for Software License(s) and Maintenance/Support, as well as the General Terms and Conditions (“General Terms”) and any Proposal related to a license purchase and/or maintenance/support agreement (which are expressly incorporated by reference), govern the agreement between Customer and Control Pak, LLC (“ControlPAK”) for ControlPAK’s Software, whether WorkPAK or otherwise, (the “Software”) and related maintenance/support (the “Agreement”).
1. Definitions. In addition to the definitions below, the Agreement uses terms defined in the General Terms.
“Customer” means the party identified on the Proposal.
“Employee” means any full-time, part-time, managed or seasonal employee (including independent contractors) who is paid directly by Customer or paid by a contractor paid by Customer.
“Instance” means a running copy of the Software.
“License Fees” means the fees paid for Software licenses. License Fees do not include maintenance/support or Professional Services fees.
“Licensed Location” means the physical location where the server-installed portion of the Software is or will be installed on equipment that Customer owns, leases, or otherwise controls.
“Named User” means anyone whom Customer has authorized to use the Software and paid the User Fee for such use.
“User Fee” means the fee the Customer owes for each Named User of the Software.
2. Delivery. ControlPAK will deliver Software, Documentation, and updates via electronic transmission from a server in the United States, FOB shipping point for Customers in the United States. Software license sales are final and deemed accepted upon delivery.
3. License. ControlPAK grants to Customer a license to use the Software and Documentation, specified in the Proposal, subject to the terms and conditions of this Agreement and the General Terms (“License”).
A. Customer may not use or permit use of the Software or Documentation for more than the Customer’s current number of Named Users. Customer may not permit use of the Software by anyone other than Customer’s Employees, third-party personnel contracted to operate the Software on behalf of Customer or Customer’s disaster-recovery vendor. Customer may copy or incorporate portions of the Documentation or “screen shots” of the Software in training materials for Customer’s internal use only, provided that the incorporated materials shall bear a notice of ControlPAK’s copyright.
B. Customer shall not use, and shall not permit any third party to use, the Software or Documentation to provide services for any third party that is not an Affiliate, make copies of the Software or Documentation except as permitted in this Agreement, reverse engineer, disassemble or reverse compile the Software, sell, let for hire, sub-license, distribute, give away or otherwise supply to a third party any of the Software or Documentation, use the Software or Documentation to create any computer software program, training materials or user documentation that is substantially similar to the Software or Documentation, make Derivatives of the Software or Documentation, except as permitted by this Agreement or use or make the Software available on a service bureau or time sharing basis.
C. Customer must pay the User Fee for each Named User who has access to the Software. Each Named User must have a unique username and password, and user login information may not be shared, transferred, or disclosed or be used by any other party. In addition, ControlPAK’s database and associated database tools may not be modified, adapted, or customized, unless such modification, adaptation, or customization is provided as a feature of the Software.
D. Rights by “Affiliates” in this License Section shall apply only to Software that has the functionality to support an Affiliate.
E. Any user that is not a Named User is: (1) designated as “read-only”; (2) licensed to access data only and (3) prohibited from modifying or adding any data in the Software.
F. Except as otherwise provided, Customer shall install one Instance of the server portion of the Software only at the Licensed Location.
G. Customer shall be liable to ControlPAK for any damages resulting from any violation of the terms of this Agreement by any party that Customer permits to use the Software or Documentation.
H. The License restrictions contained herein shall not apply to the extent such restrictions violate laws that cannot be pre-empted in a license agreement or contract (“Mandatory Laws”). If Customer believes that it has rights to act against or outside this Agreement based on Mandatory Laws, Customer shall not exercise such rights unless and until it has provided thirty (30) days prior notice to ControlPAK, and ControlPAK, at its full discretion, has not provided an alternative remedy.
I. Upon Customer’s installation of updates of Software in a production environment, the Software and Documentation Licenses granted under this Agreement will apply to the update, as amended and revised from time to time as indicated.
4. Relocation. Customer may change the Licensed Location with ControlPAK’s prior written consent and subject to applicable relocation fees, and may operate the Software concurrently at the old and new Licensed Locations for a period of not more than ninety (90) days without having to obtain an additional License.
5. License Assignment or Transfer. Neither Software Licenses nor Maintenance/Support rights may be assigned or transferred without ControlPAK’s written consent.
6. Non-Production Instances.
A. Test, Development, and Training Instance. Customer may use one Instance of the Software in a non-production environment solely for Customer’s internal testing, development, and training purposes. Customer’s installation and use of the Software for these purposes is limited to the same number of Named Users as permitted under the applicable Proposal and this Agreement.
B. Disaster Recovery and Archival Instance. Customer may make back-up copies of the Software as necessary for use in disaster recovery and archival purposes, provided that the copies are kept in a secure location and not used for production purposes. Additional Licenses for non-production Instances may be purchased by Customer subject to the terms of the Agreement. Customer is responsible for maintaining backup copies of its data and the database related to its data.
C. Support on Non-Production Instances. Support for non-production Instances of Software under a current maintenance plan will be limited to set up.
7. Reporting. No later than thirty (30) days after each anniversary of the Effective Date, Customer will provide ControlPAK with a report of the Named Users and User IDs, as applicable, for each item of Software licensed to Customer during the prior twelve-month period.
8. Audit Rights. Customer will keep accurate records of the number and location of copies of the Software made and distributed, and the Named Users. ControlPAK may enter Customer’s premises during business hours with reasonable notice for the purpose of examining, (or having examined), Customer’s relevant books, records, database, disaster recovery plan and computers to verify Customer’s compliance with this Agreement. ControlPAK will be subject to reasonable rules and regulations regarding access to the Customer’s facilities that are provided to ControlPAK in advance of the audit. Audits will be at ControlPAK’s expense, unless the audit reveals that Customer has materially breached the Agreement, in which case the audit will be at Customer’s expense. ControlPAK may provide the audit results to its licensors when required by the licensors.
9. ControlPAK Knowledge Base Access. For Software that includes access to ControlPAK Knowledge Base content, the following additional terms apply to the Content (defined below) provided with the Service. The ControlPAK Knowledge Base is offered on an “as is” and “as available” basis without any warranty.
A. “Content” means the audio, videos, text, graphics, data, white papers, webinars and other information and materials that ControlPAK makes available to Customer through the ControlPAK Knowledge Base.
B. An Authorized User may, if legally permitted, disclose the Content to other employees of Customer, provided that such Authorized User: (a) reproduces all proprietary notices relating to the Content; (b) identifies ControlPAK or its licensors as the owner of the Content and all intellectual property rights therein; and (3) advises such other employees that use of the Content is subject to the terms and conditions of this Agreement.
C. Except as otherwise permitted under this subsection, Customer will not disclose the Content to any person or entity, including parent, affiliate or subsidiary entities, other than an Authorized User. Customer is solely responsible for maintaining the confidentiality of its user names and passwords for any access to the Content.
D. ControlPAK has no obligation to make the Content available to Customer in any particular format or to otherwise modify the Software to allow Customer to download the Content. ControlPAK shall, in its sole discretion, determine the format in which Content will be made available to Customer.
10. Software Warranty. ControlPAK warrants that the Software will be free from defects for a period of one year from the Effective Date specified in a Proposal (“Software Warranty Period”), when the Software is used in accordance with the Documentation. The Software Warranty Period may differ for specific Software in the Product-Specific Terms or in a Proposal. ControlPAK further warrants that it has not introduced into the Software any feature designed to damage or erase the Software or data. The Software may contain license protection features that limit access to the Software to the use permitted under this Agreement. Customer shall not circumvent or render inoperative any such protection features. To be valid, a warranty claim must be in writing and submitted to ControlPAK within the Software Warranty Period. If, during the Software Warranty Period, Customer believes that the Software has defects, Customer shall promptly notify ControlPAK in writing, describe with specificity any such defect, and provide a listing of output and such other data as may be required by ControlPAK to reproduce the defect. Customer’s exclusive remedy and ControlPAK’s sole liability for Software performance under this software warranty will be: (1) to use reasonable efforts to correct any such defects and supply Customer with a correction as soon as reasonably practicable, or (2) if correction or replacement is not reasonably achievable by ControlPAK, to terminate Customer’s License(s) for the affected Software and refund the License Fee paid, if any, upon Customer’s certification that all copies of the Software have been returned or destroyed. The foregoing Software Warranty does not apply to any Licenses granted for purposes of evaluation.
A. Warranty Exceptions and Exclusions. The express warranties set forth in this Limited Warranties Section do not apply to errors or malfunctions caused by: (1) Customer’s equipment, (2) software not licensed from or approved in writing by ControlPAK, (3) misuse, (4) Customer’s failure to use or implement corrections or updates, (5) improper installation by Customer, any third-party personnel contracted to operate the Software on behalf of Customer or a third party not authorized in writing by ControlPAK, or (6) any other cause not directly attributable to ControlPAK. These limited warranties shall be void if Customer or any third party modifies or changes the Software in any way beyond the scope of the configuration options contained in the Software. ControlPAK will not be required to maintain compatibility between the ControlPAK Software and any other software (other than ControlPAK-supported third-party software) except as otherwise agreed in writing.
B. Personal Warranties. All warranties described above are personal to and intended solely for the benefit of the Customer and do not extend to any third party, including Affiliates.
C. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS LIMITED WARRANTIES SECTION AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CONTROLPAK NOR ITS LICENSORS MAKE ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES, TERMS, CONDITIONS, OR REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. CONTROLPAK DOES NOT WARRANT OR REPRESENT THAT THE SOFTWARE WILL BE TIMELY, COMPLETE, RELIABLE, ADEQUATE, ACCURATE, USEFUL, SECURE OR ERROR-FREE. ALL MOBILE APPLICATIONS AND SOFTWARE DOWNLOADS ARE PROVIDED AS-IS WITH NO WARRANTY AND CONTROLPAK ACCEPTS NO LIABILITY FOR ANY DAMAGES DIRECTLY OR INDIRECTLY CAUSED BY SUCH APPLICATIONS OR DOWNLOADS.
11. Security. Customer is solely responsible for verifying that its active and Named Users are properly authorized to access Customer systems in accordance with applicable law, regulatory requirements, and obligations under this Agreement. ControlPAK assumes no responsibility to verify nor will it contest Customer’s representation that its active or Named Users are properly authorized to access Customer systems; therefore, ControlPAK assumes no responsibility for access granted improperly by Customer to unauthorized parties. Each party will use reasonable efforts to take prompt remedial measures to rectify such unauthorized access to the extent within its control. Each party, upon the discovery of a credible security threat from a malicious actor that could threaten the security and integrity of the other party’s network, may immediately disconnect any remote connections to the other party’s network until such time as the threat has been eradicated and recovery and restoration is at an acceptable level as determined by mutual agreement of the parties. Upon disconnection, the party will provide notice to the other party without undue delay. During the term of any disconnection, the parties shall maintain ongoing communications regarding the provisioning of the Software and/or Services.
12. Maintenance and Support.
A. Maintenance. During any period for which Customer has made the required maintenance payment or payment for any Software that includes maintenance, Customer shall be entitled to receive the following from ControlPAK:
Telephone Support and
Access to the ControlPAK Knowledge Base as it becomes available and is updated from time to time.
B. Defect Correction. Customer shall document and report suspected defects in the Software to ControlPAK. If ControlPAK confirms the defect, ControlPAK will use commercially reasonable efforts to provide a correction to confirmed defects. Corrections will only appear in the most recent release of the Software. Customer will take all reasonable steps to carry out procedures for the implementation of corrections and updates. ControlPAK reserves the right to decline Customer maintenance/support requests that could be resolved by reference to Documentation.
C. Support. ControlPAK will continue to support prior Software releases for no more than six months after the most recent release. ControlPAK will provide support assistance to allow Customer to report problems and seek assistance in the use of the Software during ControlPAK’s standard support hours. ControlPAK may require direct system access in order to provide support. Customer acknowledges that if it declines to provide required access, ControlPAK may not be able to resolve an issue.
D. Excluded Items. ControlPAK’s maintenance and support obligations shall not include:
1. providing assistance (beyond an initial communication) or consulting time relating to problems, caused by (i) malfunction or failure of the computer system and communications network on which Customer has installed and is using the Software, (ii) Software not licensed pursuant to this Agreement, (iii) misuse, (iv) improper installation or configuration by Customer, third-party consultants, or support contractors, (v) failure to incorporate updates or corrections, or (vi) any other cause not attributable to ControlPAK;
2. providing training covered in formal training classes;
3. performing professional services that would normally be provided at Customer’s business location;
4. development or support for any Software customizations, custom reports or extensions unless otherwise explicitly agreed in writing;
5. database schema changes, or supporting application program interfaces (“APIs”) not provided or approved by ControlPAK;
6. supporting hosting providers not certified by ControlPAK;
7. providing services or support for installation and testing of updates or Corrections; or issues covered by ControlPAK training guides e-learning modules, training kits, “train the trainer” programs or other learning resources provided by ControlPAK.
If ControlPAK notifies Customer that a problem, error or malfunction for which Customer has requested maintenance is not covered, ControlPAK will work with Customer to develop a mutually agreed scope of work (“SOW”) under which ControlPAK will perform such services at ControlPAK’s then-current rates.
E. Maintenance Term and Termination. Unless either party has given the other party written notice of non-renewal of maintenance at least thirty (30) days prior to the end of a respective maintenance period, maintenance will renew for an additional period of twelve (12) months.
1. The maintenance fee is based on Customer’s specific product mix at the time of purchase, as well as future product add-ons (bundled maintenance), and is subject to ControlPAK’s annual price adjustments upon renewal.
2. Customer cannot reduce or cancel maintenance on any portion of Product (unbundling maintenance).
3. Any reinstatement of terminated maintenance is at ControlPAK’s discretion and subject to then-current User Fee, maintenance terms and fees.
4. In the event Customer does not renew maintenance and support for any or all Named User(s), the related Software License(s) will terminate and Customer agrees:
(ii) any data will be retained in formats only readable by the Software;
(iii) that all rights to use the Software and Documentation have been terminated and that any further use of the Software or Documentation, including copies, is unauthorized and would be in violation of ControlPAK’s rights; and
(iii) termination of any License shall not relieve Customer of its obligations to pay any amounts owed to ControlPAK and shall not entitle Customer to a refund of any amounts paid under this Agreement.
13. Product-Specific Terms. ControlPAK Software may contain a product feature allowing termination of the license key in accordance with the parameters of the relevant Proposal and the Agreement, such as to disable one Named User or license key in support of replacement or to support a future expansion. ControlPAK will only modify or disable the keys as permitted by the Agreement; modification or replacement requires that Customer be enrolled in ControlPAK’s maintenance and support program.
14. Collection of Data. ControlPAK may collect, maintain, process and use diagnostic, technical, usage, Customer data and related information, including but not limited to unique system or hardware identifiers, information about Customer’s computer, data, system and application software. The information gathered may be used to provide and improve ControlPAK’s Software and services, software updates, support and other services, as well as to verify compliance with the Agreement. ControlPAK may use this information solely for the purposes described above and consistent with all obligations of confidentiality in the Agreement.