Master Software License
THIS IS PART OF A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND OPENROAD COMMUNICATIONS LTD. (OPENROAD).
1. Definitions and Interpretation
Terms defined in the Proposal have the same meaning in this Schedule.
“Agreement” means the Proposal made by OpenRoad to Licensee and this Master Software License.
“Software” or “ThoughtFarmer” means the computer program commonly referred to as ThoughtFarmer consisting of a .NET application designed to work with a SQL Server database, third party software licensed by OpenRoad and embedded in the computer program, and Related Materials and hereby licensed inclusive of backups, updates, enhancements, modifications and merged copies permitted hereunder or subsequently supplied.
“Related Materials” means all of the printed materials, user documentation, and training documentation supplied by OpenRoad under this Agreement whether in electronic and physical formats.
“Unique User” means a person who Licensee allows to access ThoughtFarmer and manipulate content. The identity of the Unique Users may change from time to time.
“Unique Instance” means a single installation of ThoughtFarmer.
2. Grant of License
This is a license from OpenRoad and not a sale of goods. This license agreement gives Licensee certain limited rights to use ThoughtFarmer. All rights not specifically granted in this Agreement are reserved to OpenRoad. OpenRoad retains exclusive title and ownership of any copy of the Software licensed under this Agreement and hereby grants to Licensee a worldwide, non-exclusive, non-sub licensable license to install and use the Software. Licensee may install the number of Unique Instances authorized by the Proposal. Licensee may use the Software for the number of Unique Users authorized by the Proposal. This is not a concurrent user license. Licensee may make archival copies of the Software in non-printed, machine readable form, in whole or in part, provided that such copies are for Licensee’s own use and that no more than the number of Unique Instances authorized by the Proposal are in use at any time. The Software is considered in use when any portion of the Software is loaded in memory. Licensee will make no other copies of the Software except as authorized herein. Title to the Software will remain vested in OpenRoad, and nothing in this Agreement will give or convey any right, title or interest therein to Licensee except as a licensee under the terms of this Agreement.
3. Term and Termination
A. The License commences as of the Date of Acceptance and remains in force until Licensee or OpenRoad terminates this License pursuant to the terms herein. Upon termination of this agreement, Licensee will permanently delete or destroy all copies of the Software in its possession.
B. Except as set forth in the provisions of this Agreement that provide for automatic termination in the event of breach of confidentiality or unauthorized transfer, if Licensee breaches any other provision of this Agreement, OpenRoad may terminate this Agreement, provided, however, that OpenRoad has given Licensee at least thirty (30) days written notice of and the opportunity to cure the breach. Termination for breach shall not alter or affect OpenRoad’s right to exercise any other remedies for breach.
4. Limitations on Transfer
Licensee shall not assign this contract or Licensee’s rights hereunder without the prior written consent of OpenRoad. Notwithstanding the foregoing, Licensee may transfer this license without the consent of OpenRoad (1) to a wholly owned subsidiary, provided that by doing so Licensee shall be deemed to have agreed to indemnify OpenRoad for any loss that it suffers as a result of the transfer, or (2) to such entity that acquires all or substantially all of the business and assets of Licensee. Any purported assignment without the required consent shall be null and void. As a condition of obtaining consent, Licensee may have to pay a transfer fee.
5. Unauthorized Use or Distribution
Licensee shall not reverse engineer, decompile, or disassemble the Software. Licensee shall not copy, alter, modify, or create any derivative works of the Software except in accordance with this License. Licensee shall not remove or obscure any OpenRoad copyright or trademark notices.
6. Licensee’s Obligation to Notify of Infringement
Licensee will immediately notify OpenRoad of any infringement or attempted infringement of OpenRoad’s rights in the Software of which it becomes aware. Licensee will affirmatively cooperate with OpenRoad in any legal or equitable action that OpenRoad may undertake to protect any of its rights in connection with the Software.
7. Warranty of Title
OpenRoad warrants that it is the lawful owner of the Software and/or that it has the authority to grant the License specified herein.
OPENROAD WARRANTS THAT THE SOFTWARE IS PROVIDED “AS IS” AND WITH ALL DEFECTS AND ERRORS. THE SOFTWARE IS SUBJECT TO CHANGE WITHOUT NOTICE..
OPENROAD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OPENROAD ASSUMES NO LIABILITY FOR ANY SYSTEM ON WHICH THIS SOFTWARE IS INSTALLED OR FOR ANY CONTENT MANIPULATED BY SOFTWARE.
9. Limitation of Liability
For any breach of this Agreement Licensee’s exclusive remedy and OpenRoad’s entire liability is, at OpenRoad’s option, either the correction of the defect in the software, re-performance of the service (if the breach arises out of OpenRoad’s service), or recovery by the Licensee of a part of the amount paid hereunder that reasonably relates to the breach, subject to the limitations set out below. OpenRoad is not liable for any indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of revenues, profits, goodwill, use, data, failure to realize expected savings, or other intangible losses (even if OpenRoad has been advised of the possibility of such damages), resulting from the Licensee’s use of the software. To the extent permitted by law, neither party’s liability to the other party in connection with any cause of action, costs or damages relating to this Agreement shall exceed the totals fees paid in the twelve month period preceding the event giving rise to the claim.
10. Relation of Parties
Nothing in this Agreement will create or imply an agency relationship between OpenRoad and Licensee, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties. OpenRoad may use Licensee’s trademarks and trade name for the limited purpose of advertising Licensee’s use of the Software and for no other purpose.
11. Order of Precedence
Any conflict between the terms of this License Agreement and any Purchase Order or other terms shall be resolved in favour of the terms of this License Agreement.
12. Intellectual Property
The Software is owned by OpenRoad and is protected by United States and Canadian copyright laws and applicable international treaties and/or conventions, and the structure, organization and code are the valuable trade secrets of OpenRoad. Licensee agrees not to export the Software into a country that does not have copyright laws that will protect OpenRoad’s proprietary rights. From the date of receipt, Licensee agrees to use reasonable effort to protect the Software from unauthorized use, reproduction, distribution, or publication. Licensee shall not be obliged to incur any financial burden to protect the software.
OpenRoad shall indemnify, hold harmless and defend Licensee against suits based on any claim that the use of the Software by Licensee under this Agreement infringes on any Canadian or United States patent rights, intellectual property rights or copyrights, provided OpenRoad is promptly notified in writing of any such suit or claim against Licensee, and further provided that Licensee permits OpenRoad to have sole control of the defense, and provides OpenRoad with all available information, reasonable assistance, and authority to enable OpenRoad to do so.
This indemnity shall not apply to any infringement caused by:
(i) the alteration or modification of the Software by or on behalf of Licensee;
(ii) the refusal to install an update or enhancement provided by OpenRoad to avoid the infringement.
In the event that the Software is held to infringe any third party’s patent rights, intellectual property rights or copyrights, OpenRoad has the option, in its sole discretion, to (i) remove and replace the infringing Software; (ii) obtain a license to continue using the infringing Software, or (iii) terminate the license and refund license costs to date.
14. Standard Terms and Conditions
APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia.
DISPUTE RESOLUTION. The parties agree that, both during and after the performance of their responsibilities under this Agreement, each of them shall (i) make bona fide efforts to resolve any disputes arising between them by amicable negotiations, and (ii) provide frank, candid, and timely disclosure of all relevant facts, information and documents to facilitate those negotiations.
Should any dispute arise between the parties that cannot be resolved by negotiation, whether during or after the term of this Agreement, concerning this Agreement or its interpretation or the respective rights, duties or liabilities of the parties, either party shall immediately give notice to the other party of such dispute. The other party shall reply to such notice no later than fourteen (14) days after receipt of it. If the dispute is not resolved within thirty (30) days, settlement of the dispute shall be referred to arbitration.
FORCE MAJEURE. Except as expressly provided otherwise in this Agreement, dates and times by which a party is required to render performance under this Agreement or any schedule hereto shall be postponed automatically to the extent and for the period of time that such party is prevented from meeting them by reason of any cause beyond its reasonable control, provided the party prevented from rendering performance notifies the other party immediately and in detail of the commencement and nature of such cause and the probable consequences thereof, and provided further that such party uses its reasonable efforts to render performance in a timely manner utilizing to such end all resources reasonably required in the circumstances, including obtaining supplies or services from other sources if same are reasonably available.
TIME OF THE ESSENCE. Time will be of the essence of this Agreement and of every part thereof.
NO OTHER AGREEMENTS. This Agreement is the complete and exclusive statement of the parties’ agreement relating to the subject matter hereof and supersedes all proposals (oral or written), understandings, representations, conditions, warranties, covenants, and other communications between the parties relating hereto. This Agreement may be amended only by a subsequent writing that specifically refers to this Agreement and is signed by both parties, and no other act, document, usage, or custom shall be deemed to amend this Agreement.
WAIVER. No waiver by either party of any default in performance on the part of the other party will constitute a waiver of any subsequent breach or default by the defaulting party.
15. Software Maintenance
Software Maintenance is provided for an initial period of 12 months from the Date of Acceptance and may be renewed for additional 12 month periods. The renewal period begins on the date of expiration of the previous period regardless of when it is purchased.
Software Maintenance is provided on an as-needed basis. Software Maintenance covers support for your ThoughtFarmer installation, periodic reviews of current outstanding questions and usage issues, the provision of new releases of ThoughtFarmer, and customizations and enhancements relating to the Software that are generally made available without additional charge to other users of the Software with similar Software Maintenance contracts. Any requests by Licensee for additional features or functionality that fall outside of OpenRoad’s ongoing policy of upgrading ThoughtFarmer will be quoted on separately.
Software Maintenance includes access to OpenRoad electronic user support site, access to issue tracking system, telephone support, and access to all releases of ThoughtFarmer (as made available as downloadable installers on support site).
If Licensee has purchased an Installation & Branding package or a Smart Start Professional Services package, remote installation is available, on request, of all releases via VPN/RDP.
A. Hours of Coverage
Support is available from 8:00 A.M. to 4:00 P.M. Monday through Friday Pacific local time (UTC-8) (excluding statutory holidays in British Columbia, Canada).
Twenty-four hour, seven days a week limited support is available online through the ThoughtFarmer web site at https://www.thoughtfarmer.com/support/.
If Licensee has purchased Emergency 24×7 Telephone Support Line, twenty-four hour, seven days a week support is available via the Emergency 24×7 Telephone Support Line: 1-888-694-3999 or ++1 650 648 9599 (extension 3).
B. Licensee Incidents Reporting
All incidents are to be reported via: http://tickets.thoughtfarmer.com
Emergencies during regular office hours can be reported by phone:
1-888-694-3999 or ++1 650 648 9599.
All phone calls must be followed up with a ticket filed on the issue tracking system at http://helpdesk.thoughtfarmer.com.
C. Incident/Request for Service Priority
All support and maintenance incidents/ requests for service will be prioritized on the following basis:
|Emergency (A)||4 business hours||7 days|
|Critical (B)||2 business days||14 days|
|Non-Critical (C)||As time permits, basis or inclusion in the next scheduled update to the Licensed Product. OpenRoad will use reasonable efforts to inform Licensee within 4 days of its intentions.||At OpenRoad’s sole discretion|
Response and Closure times are measured from the time of OpenRoad’s receipt of written or electronic notice of the issue.
D. Priority Definition
Emergency (A): Catastrophic product or module failures that do not have a viable detour or workaround available. Catastrophic failure shall be deemed to include failures that cause an interruption of service or seriously impair the functionality of ThoughtFarmer (e.g. loss of use of major features, file system corruption, data loss, security issue, system outage).
Critical (B): Problems that have been substantiated as a serious inconvenience to Licensee due to issues or features of the product preventing normal operations. This includes any priority A failures for which a viable detour or workaround is available. Convenience and performance are materially impacted.
Non-Critical (C): All other non-critical problems which Licensee can easily avoid or detour for which there is no urgency for a resolution. Slight inconvenience.
OpenRoad staff acting reasonably will determine an issue’s priority classification. A resolution may not be available at the time OpenRoad responds to Licensee, in which case OpenRoad will attempt to estimate the “time to resolution”.
Response consists of providing, as appropriate, one of the following to Licensee: an existing correction; a new correction; a viable detour or work around; a request for more information to complete analysis of the problem, or a plan on how the problem will be corrected.
Closure consists of providing a final correction or work around of the problem including modifications of the Software and, to the extent reasonably possible, revised or new documentation as necessary, it being understood that documentation may be completed after the applicable closure date.
For non-critical requests, OpenRoad may, in its sole discretion, choose to not resolve the request.
E. Licensee’s Obligation
Back-Ups/Security/Training/Configuration: Licensee acknowledges that it is solely responsible for ensuring that adequate back-ups are made and that the system is secure. Licensee is responsible for all configuration of its internal networks, and for training users of ThoughtFarmer.
Electronic Access: From time to time, OpenRoad may need electronic access to Licensee’s server. Licensee may install and maintain for the term of this Software Maintenance Policy a reasonable and satisfactory method of direct computer access to the Software. Licensee shall pay for the installation and maintenance of such access. OpenRoad shall use this access service in connection with error correction, software updating and user support only. Licensee acknowledges that OpenRoad’s ability to support the Software may be hampered by poor or non-existent electronic access.
Current Software Version: Licensee must upgrade the Software in its entirety to a release version that is not more than one release version older than the most recent version of the Software. OpenRoad is not obligated to provide support for release versions that are more than 1 release version older than the current.
Current Operating Software and Hardware: Licensee agrees that, subject to and in accordance with Licensee’s internal policies and guidelines, it will upgrade the computer operating software, hardware and underlying database engines of the ThoughtFarmer software as necessary to meet the changing requirements of the Software as specified by OpenRoad as part of a current release of the Software, or as the parties mutually agree. The parties agree that OpenRoad is not obligated to ensure that its new release of the Software is compatible with outdated (exceeding 3 years from date of initial release) hardware, computer operating software or database engines.
F. Software Maintenance Limitations
OpenRoad is not responsible for maintaining unauthorized Licensee modified portions of the Software, Licensee data files or for maintaining portions of the Software affected by unauthorized Licensee modified portions of the Software. Licensee agrees that the equipment on which the Software operates will be operating properly at all times and must have been and continue to be properly maintained by the manufacturer of the equipment or a properly qualified service organization. Corrections for difficulties or defects traceable to Licensee’s errors or unauthorized changes, Licensee’s hardware, or conflicts with other software not identified by OpenRoad as compatible or part of the recommended operating environment may be subject to billing at OpenRoad’s current standard time and material charges. Licensee will be responsible for properly testing and applying routine virus updates and security patches without the need for additional OpenRoad notification. OpenRoad will be responsible for testing OpenRoad software updates prior to making them available to the Licensee.
OpenRoad may in its sole discretion limit or suspend Licensee’s access to support where Licensee is in material default under the terms of this Agreement (non-payment is deemed to be a material default). OpenRoad will give Licensee 30 days notice of its intention to limit or suspend Licensee’s access to support.
16. Modification of Agreement
OPENROAD RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO CHANGE THE TERMS OF THIS AGREEMENT ANNUALLY BY ENCLOSING THE TERMS OF ITS REVISED AGREEMENT WITH THE ANNUAL SOFTWARE MAINTENANCE INVOICE TO CUSTOMER