Standard License Agreement
BY DOWNLOADING AND INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT (“SLA”). IF YOU DO NOT AGREE TO THE TERMS OF THIS SLA, YOU MAY NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE, AND YOU MAY RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU ACQUIRED THE SOFTWARE.
1. Definitions.
“Effective Date” is the date You download, install, copy or otherwise use the Software.
“Software” means software that are licensed to You under this SLA, including, but not limited to, any related components purchased or provided with the Software, application programming interfaces, associated media, printed materials, online or electronic documentation, and any Software Updates (defined below) and maintenance releases thereto.
“Software Updates” means all Software updates and enhancements that xMatters generally makes available at no additional charge to its customers who are current in payment of annual support fees.
“Work Product” means all work product developed or created by xMatters during the course of providing installation, consulting, implementation, training or other professional services to You.
2. License Grant.
2.1 Subject to the terms of this SLA, xMatters hereby grants You a royalty-free, fully paid-up, nonexclusive, perpetual (unless a term license is defined on an ordering document), irrevocable, transferable (only to a successor in interest as permitted hereunder) license to use the Software solely for internal business purposes. For avoidance of doubt, Your affiliates and Your contracted entities may use the Software for Your and Your Affiliates’ internal business purposes in accordance with this SLA provided that all such use shall be subject to the terms of this SLA and the associated ordering schedule(s). You will not assign Your rights granted hereunder to use the Software to any of Your affiliates or contracted entities and use by Your affiliates and contracted entities shall be included in determining the user counts and quantities set forth on the ordering schedule(s).
2.2 The foregoing license (i) is limited to the maximum number of servers, and/or processors, sources, or other scope limitations defined in the applicable ordering document; and (ii) entitles You to (a) make copies, install and use the Software at Your worldwide sites subject to the foregoing license scope limitation; and (b) make a reasonable number of copies of the Software solely for backup and archival purposes. You may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on the Software. xMatters shall deliver the Software via either physical shipment (e.g. compact disk) or file transfer protocol. Delivery has occurred (iii) if done through physical shipment, upon receipt; and (iv) if done using file transfer protocol, when the Software has been made available to You on the xMatters website and xMatters has provided You notification of such availability.
3. License Restrictions.
Except as allowed under this SLA, You may not (i) sell, lease, license, sublicense, distribute or otherwise transfer in whole or in part the Software to another party; (ii) provide, disclose, divulge or make available to, or permit use of the Software in whole or in part by any third party without xMatters’ prior written consent; or (iii) modify or create derivative works based upon the Software. Except to the extent expressly permitted by applicable law, and to the extent that xMatters is not permitted by that applicable law to exclude or limit the following rights, You may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part. You may use the Software to conduct internal performance testing and benchmarking studies, the results of which You (and not unauthorized third parties) may publish or publicly disseminate; provided that xMatters has reviewed and approved of the methodology, assumptions and other parameters of the study.
4. Title.
Except for the rights explicitly granted in this SLA, xMatters retains all right, title, and interest in and to the Software and Work Product and in all related copyrights, trade secrets, patents, trademarks, and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals, and extensions of such rights. You are not granted any rights to any trademarks or service marks of xMatters. xMatters retains all rights not expressly granted to You.
5. Support.
Provided You are subscribing to support and are current in payment of support fees, xMatters will provide support in accordance with the terms described in xMatters’ official Client Support Policy.
6. Fees and Payment Terms.
6.1 All undisputed fees will be due and payable within thirty (30) days of receipt of invoice. Support services fees will be billed on an annual basis payable in advance.
6.2 Any undisputed payment not received from You by the due date may result in suspension of Your ability to receive Software Updates or support until payment is made.
6.3 Unless otherwise provided, xMatters’ fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes (“Taxes”), and You are responsible for paying all Taxes associated with Your purchases hereunder, excluding Taxes based on xMatters’ net income or property. If xMatters has the legal obligation to pay or collect Taxes for which You are responsible, the appropriate amount shall be invoiced to and paid by You, unless You provide a valid tax exemption certificate authorized by the appropriate taxing authority.
6.4 You shall reimburse xMatters for all actual, reasonable, pre-approved in writing (by Your duly authorized signatory) and appropriately documented (with original receipts) travel and related expenses incurred by xMatters in performing professional services at Your location. You will be responsible for Your own travel and out-of pocket expenses associated with attending any training services at an xMatters facility.
6.5 You are responsible for monitoring Your use of the Software. If Your use of the Software is found to be greater than that contracted for You will be invoiced for the additional Software licenses, and the unpaid license fees shall be payable in accordance with this SLA.
7. Warranties; Disclaimers
7.1 xMatters hereby warrants that it owns or otherwise has sufficient rights in the Software to grant You the rights granted herein.
7.2 xMatters hereby warrants to You that for a period of three (3) months from delivery the Software shall conform in all material respects to the standard user documentation for the Software that xMatters makes generally available to its clients.
7.3 The warranty in Section 7.2 does not apply to: (a) Software that has been modified by any party other than xMatters; or (b) Software that has been improperly installed or used in a manner other than as authorized under this SLA to the extent such modification(s) or improper installation cause the Software to be nonconforming. xMatters does not warrant that the Software will operate in the combinations that You may select for use, or that the operation of the Software will be uninterrupted or error-free, or that all Software errors will be corrected. Any claim submitted under Section 7.2 must be submitted in writing to xMatters within the specified warranty period. As Your sole and exclusive remedy and xMatters’ entire liability for any breach of the foregoing warranty, xMatters will promptly repair or replace any nonconforming Software so that it operates as warranted or, if xMatters is unable to do so, terminate the license for such Software and promptly return any fees paid for the nonconforming Software.
7.4 Except for the express warranties set forth above, xMatters and xMatters’ licensors disclaim any and all other warranties, whether express, implied, or statutory, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. xMatters does not warrant the software or appliance will meet your requirements or that the operation of the software will be uninterrupted or error-free. This disclaimer of warranty constitutes an essential part of this agreement. Some states do not allow limitations on how long an implied warranty lasts so the foregoing limitations may not apply to you.
8. Indemnification; Limitation of Liability.
8.1 xMatters shall defend, indemnify and hold You, Your related entities and their respective directors, officers, shareholders, customers, employees, agents, successors and assigns harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against You by a third party alleging that the use of the Software as contemplated hereunder infringes the intellectual property rights of such third party, provided that You (i) promptly give written notice of the Claim to xMatters; (ii) give xMatters sole control of the defense and settlement of the Claim (provided that xMatters may not settle any Claim unless it unconditionally releases You of all liability); and (iii) provide to xMatters, at xMatters’ cost, all reasonable assistance in the defense of the Claim.
8.2 xMatters will, at its sole option and expense, promptly: (i) procure for You the right to continue using the Software under the terms of this SLA; (ii) replace or modify the Software to be non-infringing without material decrease in functionality; or (iii) if the foregoing options are not reasonably practicable, terminate the license for the infringing Software and promptly refund You the license fees paid for the infringing Software.
8.3 xMatters shall have no liability for any Claim to the extent (i) the Claim is based upon the use of the Software in combination with any other product, service or device not furnished, recommended or approved by xMatters, if such Claim would have been avoided by the use of the Software without such product, service or device; (ii) the Software has been modified by a party other than xMatters, its agents or You acting at the direction of xMatters, if a Claim would not have occurred but for such modifications; (iii) You fail to use updated or modified Software provided by xMatters at no cost to You to avoid a Claim after notice by xMatters to You of the availability of such updated or modified Software and the fact that use of same will cure such Claim; or (iv) Your use of the Software other than in accordance with this SLA and the related documentation.
8.4 The provisions of this section 8 set forth xmatters’ sole and exclusive obligations, and your sole and exclusive remedies, with respect to third party claims that the software infringes or misappropriates third party intellectual property rights of any kind.
8.5 Excluding either party’s breach of the nondisclosure obligations defined in section 9 below or xMatters’ indemnification obligation described in section 8 hereof, to the maximum extent permitted by applicable law, in no event will either party be liable to the other party or any third-party for any lost profits or business opportunities, loss of use, business interruption, loss of data, or any other indirect, special, incidental, or consequential damages under any theory of liability, whether based in contract, tort, negligence, software liability, or otherwise. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the preceding limitation may not apply to the parties.
8.6 Excluding either party’s breach of the nondisclosure obligations defined in section 9 below or xMatters’ indemnification obligation described in section 8 hereof neither party’s liability under this sla will, in any event, exceed the fees paid by you for the software, support or services as to which the claim arose. The foregoing limitations shall apply to the maximum extent permitted by applicable law, regardless of whether either party has been advised of or is aware of the possibility of such damages and regardless of whether any remedy fails of its essential purpose.
9. Confidentiality.
9.1 As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in ordering documents), the Software, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.
9.2 Receiving Party shall not disclose or use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
9.3 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure.
9.4 If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies may be inadequate.
9.5 Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information and, upon request, return to the Disclosing Party or, at the Disclosing Party’s election, destroy all materials containing such Confidential Information.
10. Term and Termination.
This SLA commences on the Effective Date and continues until this SLA has been terminated. A party may terminate this Agreement for cause upon 30 days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such period. In the event of termination, You must destroy all copies of the Software.
11. General
11.1 This SLA sets forth xMatters’ entire liability and your exclusive remedy with respect to the Software and supersedes the terms of any purchase orders and any other communications or advertising with respect to the Software. The parties acknowledge that this SLA is a complete statement of the agreement between You and xMatters with respect to the Software, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Software.
11.2 Headings under this SLA are intended only for convenience and shall not affect the interpretation of this SLA. No failure of either party to exercise or enforce any of its rights under this SLA will act as a waiver of those rights. This SLA may only be modified, or any rights under it waived, by a written document executed by a duly authorized signatory of the party against which it is asserted.
11.3 If any provision of this SLA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this SLA will not be affected.
11.4 This SLA will be governed by California law, without regard to its choice of law principles. The United Nations Convention for the International Sale of Goods shall not apply.
11.5 You may not export or re-export the Software except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. The Software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, revision, release, performing, displaying, or disclosing of the Software by the U.S. Government shall be governed solely by the terms of this SLA.
If you have any questions about this SLA, or if you want to contact xMatters for any reason, please direct all correspondence to: xMatters, inc., 12647 Alcosta Blvd., #425, San Ramon, CA 94583, USA; or call 925-226-0300.
11.6 You authorize xMatters to include the name of our company on “client” lists available to prospective clients. Specific terms of this agreement will not be disclosed publicly without prior approval from both parties.
11.8 Neither Party may assign this SLA or the rights or obligations hereunder without the express written consent of a duly authorized signatory of the other party, except that a party may assign all of its rights and obligations, with written notice, to its affiliates or to a third-party who has acquired all or substantially all of the business or assets of such party related to the performance of this SLA through a sale, merger, consolidation, reorganization, or similar transaction. Any attempted assignment in violation of the previous sentence shall be null and void. Except as set forth above, this SLA shall inure to the benefit of and be binding upon the parties, their successors and permitted assigns.
11.9 The parties hereby acknowledge and agree that xMatters and You are, and at all times during the term of this SLA shall remain, independent contractors in relation to each other, and that neither party nor its employees or other representatives are authorized to make any representations or any commitment on the other party’s behalf unless previously authorized by a duly authorized signatory of such party in writing.
11.10 No waiver of any right or remedy will be implied by failure to enforce such right or remedy and no express waiver will affect any rights or remedies other than that to which the waiver is applicable and only for that occurrence. No provision of this SLA shall be deemed waived, amended, or modified by either party, unless such waiver, amendment, or modification is in writing and signed by duly authorized signatories of both parties.
11.11 Each party agree to comply with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the exportation and use of the Software.
ADDENDUM FOR PURCHASERS OF AT&T NATURAL VOICES® SOFTWARE BY WIZZARD This addendum applies only if your purchase under this agreement includes AT&T’s Natural Voice® Text-to-Speech Software by Wizzard (the “Wizzard Product”).
You shall indemnify and hold harmless AT&T, its subsidiaries and authorized representatives, against any claims, suits or proceedings asserted or commenced by you arising out of, or related to your use of the purchased Wizzard Product, or the use in violation of this Agreement or any license Agreement covering the Wizzard Products between you and Wizzard or AT&T. This obligation shall include indemnifying against all costs, losses damages and expenses (including attorney fees), incurred by AT&T, its subsidiaries and authorized representatives as a result of any such claims, suits or proceedings, including any costs or expenses incurred in defending against any such claims, suits or proceedings.
This Addendum shall be governed by the laws of the State of New York without regard to its conflict of laws principles. Any suit and/or arbitration proceeding relating to any claim shall be brought and prosecuted only in New York, New York. Except as provided in this Addendum, any and all controversies or claims of any nature arising out of or relating to this Agreement or the breach, termination or validity thereof, whether based on contract, tort, statute, fraud, misrepresentation or any other legal or equitable theory (the “Claim”) shall be resolved solely and exclusively by arbitration by the AAA Institute for Dispute Resolution (“AAA”) in accordance with this Addendum and the AAA Rules for Non-Administered Arbitration to the extent such rules do not conflict. The arbitrator shall strictly limit discovery to the production of documents directly relevant to the facts alleged in the notices of arbitration and defense and, if depositions are required, three (3) depositions of no longer than three (3) hours each for each party. If an evidentiary hearing is held, each party’s presentation of its case shall be limited to three (3) days. Request for temporary injunctive relief may be submitted to a court of competent jurisdiction if the arbitrator has not yet been appointed but the arbitrator shall have the authority to modify any injunctive relief granted by such a court. The arbitration award shall be made final within six (6) months of commencement and may be entered by either party in any court having competent jurisdiction. Each party shall bear its own expenses, but those related to the compensation of the arbitrator shall be borne equally. The existence and contents of the entire arbitration shall be maintained by all participants as confidential, except as provided herein. In no event shall this Addendum be deemed to require either party to arbitrate any Claim (including defenses thereto) concerning the validity, enforceability or infringement of any patent, copyright or trademark (including trade dress and service mark) right.