Terms and Conditions
This Agreement governs access to and use of TUX products.
By executing the “Project Details” Agreement that references this Agreement, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions.
This Agreement was last updated April, 2019.
In addition to the capitalized terms defined elsewhere in this Agreement, the following capitalized terms shall have the meaning indicated:
- “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise/ownership of more than fifty percent (50%) of the voting securities of a Person.
- “Applicable ATS Software” has the meaning of any applicant tracking system that Licensee has the rightful use of and that the Licensed Software will integrate with as identified in the Project Details Agreement.
- “Confidential Information” has the meaning set forth in Section
- “Contract Year” shall mean each consecutive twelve (12) month period of the Term, with the first Contract Year commencing on the Effective Date.
- “Critical Error” means a systemic Error that generally prevents use or access of the Licensed Software by Licensee or its authorized users.
- “Deliverables” means the items specified to be delivered by Punchkick to Licensee in connection with Punchkick’s performance of any Services.
- “Development Services” means any development, customization, compatibility or other services, if any, relating to the functionality of the user interface of Licensee’s instance of the ATS software other than the UI Branding, as set forth in in a separate written services agreement between the Parties.
- “Disclosing Party” has the meaning set forth in Section 8)a).
- “Documentation” means any and all manuals, instructions and other documents and materials that Punchkick provides or makes available to Licensee in any form or medium which describe the functionality, components, features or requirements of the Licensed Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
- “Error” means a malfunction or other deficiency in the Licensed Software that prevents it from performing in accordance with the applicable performance specifications for that software. An Error is classified as a Critical Error, a Non-Critical Error, or a Minor Error.
- “Fees” has the meaning set forth in Section 5)a).
- “Indemnitee” has the meaning set forth in Section 13)c).
- “Indemnitor” has the meaning set forth in Section 13)c).
- “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
- “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement or rule of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
- “Licensed Software” means, as applicable, any or all of the following as provided by Punchkick to Licensee under this Agreement: (i) applicable ATS adjacent product identified in “Project Details” document; (ii) any Maintenance Releases; (iii) any Modules; and (iv) any Punchkick IP.
- “Licensee Materials” means the pre-existing trademarks, logos, copyrights, copy, artwork, and other branding elements, assets and Intellectual Property Rights of Licensee as may be necessary for Punchkick to implement the UI Branding or perform any Services.
- “Loss” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
- “Maintenance Release” means any update, upgrade, release or other adaptation or modification of the Licensed Software the sole purpose of which is to correct Errors or maintain compatibility with then-supported versions of the applicable ATS Software, including any updated Documentation, that Punchkick may provide to Licensee from time to time during the Term.
- “Minor Error” means an Error that is only cosmetic in nature and does not affect the functionality of the Licensed Software.
- “Modules” means any optional plug-ins, add-ons, routines or scripts that are from time to time generally offered by Punchkick to implement additional functionality to the user interface of the applicable ATS Software, whether proprietary to Punchkick or constituting Third Party Materials. Certain Modules selected by Licensee may be identified in the Project Details Agreement entered into by the parites and incorporated herein by this reference. Each Module is subject to this Agreement and to the supplemental terms applicable to that Module in a separate written agreement between the Parties (each a “Module Agreement”).
- “New Version” means any new version of the Licensed Software (including, without limitation, enhancements, improvements, and changes to functionality, capabilities, performance, efficiency or quality) that Punchkick may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Punchkick’s designation of a new version number), and which Punchkick may make available to Licensee at an additional cost under a separate written agreement.
- “Non-Critical Error” means an Error that has a reasonable work-around reasonably available to Licensee or its authorized users.
- “Open-Source Components” means any software component that is subject to any open-source copyright license agreement (each an “Open-Source License”), including any GNU General Public License or GNU Library or Lesser Public License, the MIT License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
- “Permitted Use” means use of the Licensed Software by Licensee within its duly-licensed instance of the Applicable ATS Software for the benefit of Licensee in the ordinary course of its internal business operations.
- “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
- “Punchkick IP” means any pre-existing Intellectual Property Rights of Punchkick, and any Intellectual Property Rights authored, invented or otherwise created by or on behalf of Punchkick or its personnel or contractors, separately or jointly, in the course of Punchkick’s performance under this Agreement, except only the Licensee Materials.
- “Receiving Party” has the meaning set forth in Section 8)a).
- “Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants,, agents, independent contractors, service providers and legal advisors.
- “Term” has the meaning set forth in Section 11)a).
- “Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Punchkick, including any third-party: (i) documents, data, content or specifications; (ii) Open-Source Components or other software (including Modules that are not proprietary to Punchkick), hardware or other products, facilities, equipment or devices; and (iii) accessories, components, parts or features of any of the foregoing.
- “Services” means the services performed by Punchkick pursuant to this Agreement in order to effectuate the UI Branding.
- “UI Branding” means the core functionality of the Licensed Product that implements aesthetic customization of the user interface of Licensee’s instance of the Applicable ATS Software to the specifications set forth in Project Details Agreement and incorporated herein by this reference.
Subject to the terms and conditions of this Agreement, and conditioned on Licensee’s compliance therewith, Punchkick hereby grants to Licensee a non-exclusive, non-sublicensable and non-transferable, limited license to use the Licensed Software and Documentation solely for the Permitted Use in the Territory during the Term. If the Licensed Software includes any Open-Source Components or Modules, such Licensed Software shall be subject to the additional terms and conditions set forth in the relevant Module Agreement or Open-Source License Agreement, as applicable. Any copy of the Licensed Software made by Licensee: (i) will remain the exclusive property of Punchkick; (ii) be subject to the terms and conditions of this Agreement; and (iii) must include all copyright or other Intellectual Property Rights notices contained in the original.
During the Term, and subject to the timely payment of Fees outlined in Project Details Agreement Punchkick will provide Licensee with all Maintenance Releases (including updated Documentation) that Punchkick may, in its sole discretion, make generally available to its licensees at no additional charge. All Maintenance Releases, on being provided by Punchkick to Licensee hereunder, are deemed Licensed Software subject to all applicable terms and conditions in this Agreement. Licensee will install all Maintenance Releases as soon as practicable (and, in any event, no more than ninety (90) days) after receipt. This Agreement does not cover, and Licensee does not have any right under this Agreement to receive, any New Versions of the Licensed Software that Punchkick may, in its sole discretion, release from time to time.
Fees and Payment
- Fees. In consideration of the rights granted to Licensee under this Agreement, Licensee shall pay to Punchkick the fees set forth in Project Details Agreement (the “Fees”). Unless otherwise specified in the Project Details Agreement, all Fees shall be payable within thirty (30) days of Punchkick’s invoice date.
- Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Licensee is responsible for all sales, service, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Punchkick’s income.
- Payment. Licensee shall pay all Fees due and owing under this Agreement on or before the payment due date set forth in Project Details Agreement. If Licensee fails to make any payment when due then, in addition to all other remedies that may be available to Punchkick, and if such failure continues for fourteen (14) days following written notice thereof, Punchkick may: (i) disable Licensee’s use of the Licensed Software (including by means of a disabling code, technology or device); (ii) withhold, suspend or revoke its grant of a license or other performance hereunder, including any maintenance services; and (iii) terminate this Agreement under Section 11)b)i).
- No Deductions or Setoffs. All amounts payable to Punchkick under this Agreement shall be paid by Licensee to Punchkick in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
Subject to the terms and conditions of the Agreement, Punchkick will use commercially reasonable efforts to respond to Licensee as follows with respect to Errors that Licensee identifies to Licensor in writing:
- Critical Errors. Punchkick will promptly confirm receipt of Licensee’s notification and use commercially reasonable efforts to correct the Critical Error and release a hotfix as soon as practicable.
- Non-Critical Errors. Punchkick will promptly confirm receipt of Licensee’s notification and use commercially reasonable efforts to provide an Error correction to Licensor in the next Maintenance Release.
- Minor Errors. Punchkick will promptly confirm receipt of Licensee’s notification and use commercially reasonable efforts to provide an Error correction to Licensee in a future Maintenance Release or New Version, to be determined in Punchkick’s discretion.
Except as this Agreement expressly permits (and except for Open-Source Components), Licensee shall not, and shall not permit any other Person to:
- copy the Licensed Software, in whole or in part;
- modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of any Licensed Software;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Licensed Software to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
- reverse engineer, disassemble, decompile, decode or adapt the Licensed Software, or otherwise attempt to derive or gain access to the source code of the Licensed Software, in whole or in part;
- bypass or breach any security device or protection used for or contained in the Licensed Software or Documentation;
- remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Licensed Software or Documentation;
- use the Licensed Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law;
- Confidential Information. In connection with this Agreement each Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) Confidential Information. As used in this Agreement, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential.”
- Exclusions and Exceptions. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
- Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
- not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
- not disclose or permit access to Confidential Information other than to its Representatives who: (A) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (B) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations hereunder; and (C) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Agreement;
- safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
- promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure.
- Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy; and (ii) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 8)d), the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
Intellectual Property Rights
- Intellectual Property Ownership. The Parties acknowledge and agree that:
- the Licensed Software and Documentation are licensed, not sold, to Licensee by Punchkick and Licensee does not and will not have or acquire under or in connection with this Agreement any ownership interest in the Licensed Software or Documentation, or in any related Intellectual Property Rights. Punchkick is and will remain the sole and exclusive owner of all right, title and interest in and to the Licensed Software and Documentation, including all Intellectual Property Rights relating thereto, subject only to rights of third parties in Open-Source Components and Modules and the limited license granted to Licensee under this Agreement;
- Licensee is and will remain the sole and exclusive owner of all right, title and interest in and to the Licensee Materials, including all Intellectual Property Rights relating thereto, subject only to the limited license granted to Punchkick under this Agreement.
- Licensee Cooperation and Notice of Infringement. Licensee shall, during the Term:
- take all commercially reasonable measures to safeguard the Licensed Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access;
- at Punchkick’s expense, take all such steps as Punchkick may reasonably require to assist Punchkick in maintaining the validity, enforceability and Punchkick’s ownership of the Intellectual Property Rights in the Licensed Software and Documentation;
- promptly notify Punchkick in writing if Licensee becomes aware of any actual or suspected infringement, misappropriation or other violation of Punchkick’s Intellectual Property Rights in or relating to the Licensed Software or Documentation or any claim that the Licensed Software or Documentation.
- No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Licensed Software or Documentation.
Term and Termination
- Term. Term is defined in the Project Details Agreement.
- Termination. This Agreement may be terminated at any time:
- by either Party, effective on written notice to the other Part y, if the other Party materially breaches this Agreement and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach;
- by either Party, effective immediately, if the other Party: (A) is dissolved or liquidated or takes any corporate action for such purpose; (B) becomes insolvent or is generally unable to pay its debts as they become due; (C) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (D) makes or seeks to make a general assignment for the benefit of its creditors; or (E) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
- Effect of Termination or Expiration. On the expiration or earlier termination of this Agreement, all rights, licenses and authorizations granted to Licensee hereunder will immediately terminate and Licensee shall immediately cease all use of and other activities with respect to the Licensed Software and Documentation and shall destroy, and permanently erase from all devices and systems Licensee directly or indirectly controls, the Licensed Software, the Documentation and Punchkick’s Confidential Information, including all documents, files and tangible materials (and any partial and complete copies) containing, reflecting, incorporating or based on any of the foregoing, whether or not modified or merged into other materials. Licensee shall grant Punchkick access to its computing environment to verify removal of the Licensed Software.
- Surviving Terms. The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: 5)d), 7), 8), 10), 11)c), 12), 13), 14), 15) and 17).
Representations and Warranties
- Mutual Representations and Warranties. Each Party represents, warrants and covenants to the other Party that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses and authorizations it grants and is required to grant under this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; (iv) the execution and performance of this Agreement will not breach or constitute a default under any third-party agreement; and (v) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
- Limited Performance Warranty. Punchkick warrants to Licensee that the Licensed Software will substantially conform in all material respects to the specifications set forth in the Documentation, when installed, operated and used as recommended in the Documentation and in accordance with this Agreement. This warranty pertains only if Licensee: (i) has promptly installed all Maintenance Releases to the Licensed Software that Punchkick previously made available to Licensee; and (ii) as of the date of notification, is in compliance with all terms and conditions of this Agreement (including the payment of all license fees then due and owing).
- Exceptions. Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 12)b) does not apply to problems arising out of or relating to:
- Licensed Software that is modified or damaged by Licensee or its Representatives;
- Licensee’s or any third party’s negligence, abuse, misapplication or misuse of the Licensed Software, including any use of the Licensed Software other than as specified in the Documentation;
- Licensee’s failure to promptly install all Maintenance Releases that Punchkick has previously made available to Licensee;
- the operation of, or access to, Licensee’s or a third party’s system or network;
- any Open-Source Components, Modules that contain Third Party Materials, beta software, software that Punchkick makes available for testing or demonstration purposes, temporary software modules or software for which Punchkick does not receive a license fee;
- Licensee’s material breach of any provision of this Agreement; or
- any other circumstances or causes outside of the reasonable control of Punchkick.
- Remedial Efforts. If Punchkick breaches, or is alleged to have breached, any of the warranties set forth in Section 12)b), Punchkick may, at its sole option and expense, take any of the following steps to remedy such breach:
- amend, supplement or replace any incomplete or inaccurate Documentation;
- repair the Licensed Software;
- replace the Licensed Software with functionally equivalent software (which software will, on its replacement of the Licensed Software, constitute Licensed Software hereunder);or
- terminate this Agreement and, provided that Licensee fully complies with of its post-termination obligations as set forth in Section 11)c), promptly refund to Licensee, on a pro rata basis, the share of any license fees prepaid by Licensee for the future portion of the Term that would have remained but for such termination.
- Sole Remedy. If Punchkick does not cure a warranty breach or terminate this Agreement as provided in Section 12)d) within a reasonable period of time after Punchkick’s receipt of written notice of such breach, Licensee shall have the right to terminate this Agreement as provided in Section 11)b)i). Provided that Licensee fully complies with its post-termination obligations as set forth in Section 12)d), Punchkick shall promptly refund to Licensee, on a pro rata basis, the share of any license fees prepaid by Licensee for the future portion of the Term that would have remained but for such termination. THIS SECTION 13)e) SETS FORTH THE LICENSEE’S SOLE REMEDY AND THE LICENSOR’S ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF ANY LICENSOR WARRANTY OF THE LICENSED SOFTWARE OR DOCUMENTATION SET FORTH IN THIS AGREEMENT.
- DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 12), ALL LICENSED SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS.” LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR DOCUMENTATION, OR ANY OTHER LICENSOR OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET LICENSEE’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK) EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS (INCLUDING MODULES) ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS, MODULES AND THIRD-PARTY MATERIALS.
- Punchkick Indemnification. Punchkick shall indemnify, defend and hold harmless Licensee from and against any and all Losses arising out of or relating to any claim, suit, action or proceeding by a third party to the extent that such Losses arise from any allegation that the Licensed Software, or any use of the Licensed Software in accordance with this Agreement, infringes the copyright of any third party. The foregoing obligation does not apply to the extent that Losses arise from any allegation of or relating to any:
- Third-Party Materials (including Open-Source Components and Modules);
- incorporation by the Licensed Software of, or combination, operation or use of the Licensed Software in or with, any technology or service not provided by Punchkick or specified for Licensee’s use in the Documentation;
- modification of the Licensed Software other than: (A) by Punchkick in connection with this Agreement; or (B) with Punchkick’s express written authorization and in strict accordance with Punchkick’s written directions and specifications;
- failure to timely implement any Maintenance Release, modification, update or replacement of the Licensed Software made available to Licensee by Punchkick;
- use of the Licensed Software after Punchkick’s notice to Licensee of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights;
- negligence, abuse, misapplication or misuse of the Licensed Software or Documentation by or on behalf of Licensee, Licensee’s Representatives or a third party;
- events or circumstances outside of Punchkick’s commercially reasonable control (including any third-party hardware, software or system bugs, defects or malfunctions); or
- Losses for which Licensee is obligated to indemnify Punchkick pursuant to Section 13)b).
- Licensee Indemnification. Licensee shall indemnify, defend and hold harmless Punchkick and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors and assigns from and against any and all Losses incurred by any of them in connection with any claim, suit, action or proceeding by a third party to the extent that such Losses arise out of or relate to any allegation that (i) the Licensee Materials, or any use of the Licensee Materials in accordance with this Agreement, infringes the Intellectual Property Rights of any third party; or (ii) of or relating to facts that, if true, would constitute a breach by Licensee of any representation, warranty, covenant or obligation under this Agreement.
- Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any matter for which such Party believes it is entitled to be indemnified. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such claim, suit, action or proceeding and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 13)c) will not relieve the Indemnitor of its obligations under this Section 13) except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
- Mitigation. If the Licensed Software, or any part of the Licensed Software, is, or in Punchkick’s opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Licensee’s use of the Licensed Software is enjoined or threatened to be enjoined, Punchkick may, at its option and sole cost and expense:
- obtain the right for Licensee to continue to use the Licensed Software materially as contemplated by this Agreement;
- modify or replace the Licensed Software, in whole or in part, to seek to make the Licensed Software non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute Licensed Software under this Agreement; or
- if none of the remedies set forth in the above Section 13)d)i) or 13)d)ii) is reasonably available to Punchkick, terminate this Agreement, in its entirety or with respect to the affected part or feature of the Licensed Software, effective immediately on written notice to Licensee, in which event:
- Licensee shall cease all use of the Licensed Software and Documentation immediately on receipt of Licensee’s notice; and
- provided that Licensee fully complies with its post-termination obligations set forth in Section 11)c), Punchkick shall promptly refund to Licensee, on a pro rata basis, the share of any license fees prepaid by Licensee for the future portion of the Term that would have remained but for such termination.
- Sole Remedy. THIS SECTION 13)e) SETS FORTH LICENSEE’S SOLE REMEDIES AND LICENSOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE LICENSED SOFTWARE AND DOCUMENTATION) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Limitations of Liability
- EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY (i) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (ii) LOSS OF GOODWILL OR REPUTATION, (iii) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE, OPEN-SOURCE COMPONENTS, MODULES OR OTHER THIRD-PARTY MATERIALS, (iv) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (v) COST OF REPLACEMENT GOODS OR SERVICES, OR (vi) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- CAP ON MONETARY LIABILITY. EXCEPT ONLY FOR OBLIGATIONS OF INDEMNITY, IN NO EVENT WILL THE AGGREGATE LIABILITY OF A PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL OF THE AMOUNTS PAID TO PUNCHKICK UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Further Assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
- Force Majeure. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate this Agreement if a force majeure event affecting the other Party continues substantially uninterrupted for a period of ninety (90) days or more.
- Export Regulation. Licensee shall not itself, or permit any other Person to, export, re-export or release, directly or indirectly any software, documentation, technology or other technical data, or any products that include or use any of the foregoing, the export, re-export or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval, under any Law, including the US Export Administration Act and its associated regulations, to any country, jurisdiction or Person to which the export, re-export or release thereof (i) is prohibited by applicable Law or (ii) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval).
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Notices. Any notice, request, consent, claim, demand, waiver or other communication under this Agreement will have legal effect only if in writing and addressed to a party at the address first set forth above (or to such other address or such other person that such addressee party may designate from time to time in accordance with this Section 17)c). Notices sent in accordance with this Section 17)c) will be deemed effectively given: (A) when received, if delivered by hand, with signed confirmation of receipt; (B) when received, if sent by a nationally recognized overnight courier, signature required; (C) on the tenth (10th) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
- Interpretation. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Project Details Agreement referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and Project Details Agreement the following order of precedence governs: (A) first, this Agreement (B) second, the Project Details Agreement and (C) third, any other documents incorporated herein by reference
- Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without Punchkick’s prior written consent. Any purported assignment, delegation or transfer in violation of this Section 17)g) is void. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- No Third-party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Illinois. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Illinois in each case located in the city of Chicago and County of Cook, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action or other proceeding brought in any such court.
- Equitable Remedies. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of the provisions of this Agreement relating to confidentiality or the Intellectual Property Rights would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.