Validity, Inc.##Software License Agreement####BY CLICKING “CONFIRM PURCHASE”, SIGNING THE ORDER FORM, OR BY ACCESSING, DOWNLOADING, INSTALLING OR OTHERWISE USING ANY OF THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS, DOWNLOAD, INSTALL, OR OTHERWISE USE ANY OF THE SOFTWARE.####This Agreement is an agreement between you (“Licensee”) and Validity, Inc. (“Validity”) for the Validity software products ordered by Licensee below (the “Software”) and any documentation Validity provides with the Software (the “Documentation”) for the number of designated users ordered by Licensee below (the “Users”). The provisions of this Agreement are as follows:####1. License Grant##(a) Validity hereby grants to Licensee a non-exclusive and non-transferrable license for the Users to use the Software solely for the internal business purposes of Licensee. Software shall also include any upgrades, modified versions, bug fixes or updates of the Software provided by Validity. Licensee may make a reasonable quantity of copies of the Documentation for use only in connection with Licensee’s operation of the Software, provided that all such copies retain Validity’s trademark, copyright and other proprietary legends and logos.##(b) Licensee shall not:##(i) Provide, rent, lease, lend, use for timesharing, application service provider or service bureau purposes, or otherwise use or allow others to use the Software for their own benefit or for the benefit of third parties;##(ii) Modify, adapt, translate, incorporate into or with other software, or create a derivative work of, any part of the Software;##(iii) Disclose the results of any benchmarking of the Software, or use such results for its own competing software development activities;##(iv) Copy, reproduce or duplicate the Software, by any means or in any manner, except for backup purposes; or##(v) Decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatever.##(c) Licensee shall defend, indemnify, and hold harmless Validity from and against any claims, loss, liability, or damages (including reasonable attorneys’ fees) arising out of Licensee’s use of the Software.##(d) Notwithstanding the foregoing, Licensee may configure or modify those support files that are provided by Validity and are not compiled or encrypted, and such configured or modified files can be copied and distributed by Licensee.##2. Payment##(a) Licensee shall pay Validity the license fees set forth below for the Software for the first year of the term of this Agreement. Such fees shall increase by 3% for each subsequent year of the term of this Agreement. ##(b) The Software fees for each year of the term of this Agreement shall be paid by Licensee in advance for each such year. Validity shall invoice Licensee for all such fees. All invoices shall be paid in full no later than 30 days after the date thereof. All invoices not paid when required shall bear interest at the rate of 12% per annum until paid in full.##(c) Such fees are exclusive of and do not include any taxes, duties, or similar charges imposed by any government. Licensee will pay or reimburse Validity for all federal, state, dominion, provincial, or local sales, VAT, use, personal property, import, export, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement, other than taxes based upon Validity’s net income.##3. Intellectual Property Rights##The Software is owned by Validity, and its structure, organization and code are the exclusive intellectual property and valuable trade secrets of Validity. All intellectual property rights in and to the Software are the sole and exclusive property of Validity. Except for the right to use the Software as specifically stated in Section 1, Licensee is not granted any other rights in the Software. Licensee acknowledges that the Software is protected by copyright and other intellectual property laws. The Software and Documentation, including, without limitation, trade secrets, performance data, design, features, layouts, configurations, processes, formulae, specifications, programs, test results, technical know-how, methods and procedures of operation and other information relating to or obtained therefrom, by use, examination or otherwise, which is not generally publicly known are the valuable trade secrets of Validity, and shall be deemed to be confidential information of Validity (“Confidential Information”). Licensee shall use the same degree of care to protect the Confidential Information from improper use or non-disclosure as Licensee would use with respect to Licensee’s own information of like importance which Licensee does not desire to have published or disseminated, but in any event no less than reasonable care. Licensee will not use any Confidential Information for any purpose not expressly authorized under this Agreement and will not disclose to third parties any such Confidential Information.##4. Software Warranty##(a) Validity warrants to Licensee during the period in which Licensee is current in the payment of all fees (“Warranty Period”) that (i) the Software will be free from any virus, mechanism, feature or any other code or instruction that (A) cause the Software (without the knowledge of Licensee) to remotely transmit information to Validity or any third party; or (B) may be used to permit access to, or use of, the Software or computer system on which the Software is loaded, or to which the Software is linked, by Licensee or any third party; and (ii) the Software will be free from defects in its media and will operate substantially in accordance with the Documentation. If Licensee discovers a failure to comply with this Section 4(a) during the Warranty Period, Licensee shall promptly notify Validity of such failure and provide Validity with sufficient information in written or electronic form so that Validity can reproduce such failure. ##(b) Validity’s sole liability and Licensee’s exclusive remedy with respect to breach of such limited warranty shall be limited to providing Licensee with an error correction, replacing the non-conforming Software, or if neither is commercially feasible, refunding the license fees received for the non-conforming Software provided Licensee thereafter discontinues all use of such Software. ##(c) Validity does not warrant the performance or the results Licensee may obtain by using the Software or Documentation. Licensee acknowledges that there is a risk data can be damaged or corrupted and there is no guarantee that such damage or corruption can be reversed or recovered. Licensee shall be responsible for backing up its own data and the costs of restoring such data from any backup.##(d) Licensee acknowledges that the Software interacts with other software and databases operated by your specific Customer Relationship Management System (“CRM”) Licensee acknowledges that Validity is not responsible in any manner for the performance of the Software or any issues of accessibility to the extent same are caused by any changes by your CRM to its application programming interface.##(e) Except as expressly set out in this Section 4, Validity makes no representations, warranties or conditions, express, statutory or implied, with respect to the Software or the Documentation. VALIDITY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. Validity does not warrant that the Software will meet Licensee’s requirements or that it will function uninterrupted, error free or that all defects in the Software will be corrected. Validity makes no representation or warranty regarding accessibility to, or the privacy or security of, any of Licensee’s information, files or data. Licensee assumes the entire risk as to the results and performance of the Software. Licensee acknowledges that it has independently determined that the Software meets its business requirements and that it has not relied on any representation by Validity as to the suitability of any item for any particular purpose. Validity does not represent or warrant that the Software will be capable of achieving any particular result or results in Licensee’s business or operations. Except as expressly stated otherwise in this Agreement, Software is provided and licensed on an “AS IS” basis without warranty or representation of any kind.##5. Intellectual Property Indemnification##(a) Validity shall indemnify Licensee against all liability to third parties (including reasonable attorney’s fees) arising from any claim alleging that the Software infringes any patent or copyright of any third party within Canada, the United States of America or any current member state of the European Union, provided that (i) Licensee promptly notifies Validity of any such third party demand, action, suit or proceeding, threatened or actual, against Licensee (a “Claim”), (ii) Licensee may not settle or compromise any Claim, and (iii) Validity, at its sole option, may elect to conduct the defense of any Claim, including, without limitation, any settlement or compromise thereof, in which case Licensee shall cooperate reasonably in such defense at Validity’s cost. Validity may at any time (i) procure for Licensee the right to continue the use of the Software; (ii) replace or modify the Software so as to be non-infringing without materially diminishing the functionality thereof; or (iii) if Validity reasonably determines that options (i) and (ii) are not commercially practical, terminate this Agreement effective immediately upon written notice to Licensee and refund to Licensee a pro-rated amount of fees starting from the date of infringement. ##(b) The indemnification obligations of Validity in this Section 5 set forth the sole and exclusive remedy of Licensee, and the sole and exclusive liability of Validity, with respect to any Claim.##6. Limitation of Liability##(a) In no event whatsoever will Validity be liable for punitive, exemplary or similar damages; damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of computer resources or any stored data; or indirect, consequential or special damages of any kind.##(b) The maximum total liability of Validity, for any claim whatsoever, under any circumstances, regardless of the cause of action and including, without limitation, claims for breach of contract, tort, negligence or otherwise, and Licensee’s sole remedy therefor, shall be strictly limited to an amount not to exceed the amount of fees paid by Licensee to Validity hereunder during the one (1) year period immediately preceding the date of such claim.##(c) No action arising out of or relating to this Agreement, or Validity’s obligations hereunder, regardless of form, may be brought by Licensee more than twelve (12) months after the facts giving rise to the cause of action are known to Licensee.##7. Term and Termination##(a) The term of this Agreement shall commence on the date of acceptance below by Licensee and shall thereafter continue for an initial term of one year. This Agreement shall thereafter renew for a series of successive one year terms, provided that either party shall have the right to terminate this Agreement as of any such renewal date by providing at least 60 days prior written notice of termination.##(b) Without limiting any other rights or remedies available to Validity, Validity has the right to terminate this Agreement immediately and without notice to Licensee, if:##(i) Licensee is in breach or default of any of its obligations under this Agreement, other than with regard to payment, and such breach or default continues unrectified for 10 days following the provision of written notice of such breach or default to Licensee;##(ii) Licensee voluntarily enters into proceedings in bankruptcy or insolvency, makes an assignment for the benefit of its creditors, is adjudged to be bankrupt or insolvent, a petition is filed against Licensee under a bankruptcy law, corporate reorganization law, or any other law for the relief of debtors or similar law and such petition is not discharged with sixty (60) days after its filing, or a receiver, trustee or similar person is appointed with respect to Licensee’s assets;##(iii) Licensee ceases to carry on its business; or##(iv) Validity has not received any payment when due either under this Agreement or otherwise.##(c) Upon termination of this Agreement for any reason whatsoever, any license that Licensee has to use any Software will terminate immediately and Licensee shall, at Validity’s option, destroy or return all Software and Documentation.##8. Governing Law and General Provisions##(a) This Agreement will be governed by the laws of the Commonwealth of Massachusetts, excluding the application of its conflict of law rules. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. ##(b) If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. ##(c) Licensee shall not ship, transfer or export the Software into any country or use it in any manner prohibited by the United States Export Administration Act or any other applicable export control law, restriction or regulation. ##(d) If Licensee is the U.S. Government or an agency thereof, Licensee (i) with respect to civilian agencies, will grant protection for the Software as "commercial computer software" and related documentation in accordance with the terms of 48 C.F.R. 12.212 of the Federal Acquisition Regulations; and (b) for use by or on behalf of the Department of Defense, will grant protection for any Software as "commercial computer software" and related documentation in accordance with the terms of 48 C.F.R. 227.7202-1 of the DoD FAR Supplement.##(e) This Agreement may not be assigned by Licensee without the prior written consent of Validity.##(f) The termination of this Agreement will not affect the survival and enforceability of any provisions of this Agreement which are expressly or impliedly intended to remain in force after such termination or expiration, as Sections 1(b), 2, 3, 6, 7(c) and 8 shall survive any termination of this Agreement. ##(g) Validity will have no obligation to perform its obligations hereunder to the extent and for the period that Validity is prevented from doing so by reason of force majeure or any cause beyond its reasonable control.##(h) All notices, requests, demands and other communications required or permitted under this Agreement shall be deemed to have been delivered to a party at the address indicated below (i) when actually received in the case of hand delivery as evidenced by a signed receipt; (ii) the business day after being given to a reputable overnight courier service, with a reliable system for tracking delivery, for delivery the following day; (iii) when sent by confirmed facsimile with a copy sent by United States mail within two (2) business days of the transmission; or (iv) upon receipt, when mailed by United States mail, registered or certified mail, return receipt requested, postage prepaid. A party may from time to time change its address, facsimile number or designee for notification purposes by giving the other party prior written notice of the new address, facsimile number or designee and the date upon which such change will become effective.##(i) This Agreement sets forth the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements. There are not and shall not be any oral statements, representations, warranties, undertakings or agreements between the parties. Validity may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. Validity will exercise commercially reasonable business efforts to provide notice to Licensee of any material changes to this Agreement. Within five (5) business days of posting changes to this Agreement, they will be binding on Licensee. If Licensee does not agree with the changes, Licensee should discontinue using the Software. If Licensee continues using the Software after such five (5) business day period, Licensee will be deemed to have accepted the changes to the terms of this Agreement.
