This Software License Agreement (“Agreement”) is made and entered into as of purchase date the “Effective Date”) by and between Model Technology Solutions LLC, a Missouri limited liability company with an address at 11500 Olive Blvd., Suite 260, Creve Coeur, MO 63141 (“Model”), and buyer (“Licensee”).
In consideration of the covenants herein, the parties agree as follows:
1.Provision of Software and Services. Model will provide Licensee with the Software and Services described in any Order and/or SOW to which the parties may agree from time to time. The initial Order is attached as Exhibit A. Each Order and SOW incorporates the terms of this Agreement.
2.Software License. Subject to Licensee’s payment of the License Fees set forth in the Order and compliance with the terms and conditions of this Agreement, Model grants to Licensee a limited, non-exclusive, worldwide, perpetual, non-transferable, non-sublicensable license to install and use the Software up to the quantity of Published Actions set forth in the Order. Licensee is permitted to install the Software only on up to one (1) production server, one (1) development server and one (1) test server. Licensee may make one (1) copy of the Software for back-up purposes. Licensee’s service providers may use the Software, but only for Licensee’s business operations and in compliance with this Agreement, and Licensee will be responsible for any violation of this Agreement by its service providers. The Order may set forth additional terms and conditions with regard to the Software, and Licensee will adhere to such terms and conditions. The Software is licensed, not sold. Licensee will not have the right to access the source code of the Software. Model reserves all rights not expressly granted to Licensee in this Agreement, and as between the parties, Model retains all right, title and interest in and to the Software and Documentation.
3.Documentation. Subject to Licensee’s payment of the License Fees and compliance with the terms and conditions of the Agreement, Model grants Licensee the right to make and internally distribute a reasonable number of copies of the Documentation for its use in connection with the Software.
4.Limitations; Licensee’s Responsibilities; Requirements; Audit.
4.1 Limitations on Use. Licensee’s use of the Software is subject to the usage limits specified in the applicable Order and/or Documentation, if any. Model may disallow use of the Software in excess of the contractual use limits. If Licensee exceeds a contractual usage limit (e.g., a specified number of Published Actions) (a) Model will charge Licensee for the additional usage (at the rates in the Order or, if none are set forth, Model’s standard rates), and Licensee will pay for such additional usage; and (b) Model may terminate this Agreement pursuant to Section 7 if Licensee fails to pay for such additional usage despite notice and an opportunity to cure.
4.2 Licensee’s Responsibilities. Licensee will (a) be responsible for its users’ compliance with this Agreement and liable for any user’s violation thereof, (b) advise its employees, agents and service providers who have access to the Software, Services, Documentation or Deliverables of the restrictions in this Agreement, (c) require its agents and service providers, and their employees, agents, contractors and other users, to agree to adhere to the terms and conditions in this Agreement regarding use of the Software, Services, Documentation and Deliverables, (d) comply with all laws applicable to the use of the Software, Services, Documentation and Deliverables, and comply with all other laws applicable to Licensee’s conduct under this Agreement, (e) be responsible for the accuracy, quality and legality of Licensee Materials and the means by which Licensee acquired the Licensee Materials, (f) use commercially reasonable efforts to prevent unauthorized access to, use of or reproduction of the Software, Documentation and Deliverables (except to the extent such use or reproduction is permitted under this Agreement), and notify Model promptly of any such unauthorized access, use or reproduction, (g) use the Software, Documentation and Deliverables only as permitted in this Agreement and in accordance with the Documentation and applicable laws, (h) not make the Software, Documentation or Deliverables available to, or use any Software, Documentation or Deliverable for the benefit of, anyone other than Licensee (except as expressly permitted in this Agreement); for example, Licensee will not sell, resell, loan, license, sublicense, assign, transfer, distribute, rent or lease any Software, Documentation or Deliverable, or include any Software, Documentation or Deliverable in a service bureau offering, (i) not modify, translate, copy or create derivative works of any Software, Documentation or Deliverable, or any part, feature, function or user interface thereof (except to the extent such modification, translation, copying or creation of a derivative work is permitted under this Agreement), (j) not use any Software, Service, Documentation or Deliverable in order to build a competitive or complementary product or service, (k) not decompile, disassemble, reverse engineer or reduce to human-perceivable form any Software (to the extent such restriction is not prohibited by law), and (l) not remove or modify, or attempt to remove or modify, any proprietary notices on the Software.
4.3 Requirements. Licensee will be responsible for complying with all software and hardware requirements for use of the Software. The Software may not function or may not function properly if Licensee does not comply with a software or hardware requirement. Licensee is responsible for hosting data (or procuring a third-party service to host data) processed or stored by the Software.
4.4 Audit Right. Model (or an auditor engaged by Model) will have the right to audit Licensee’s use of the Software to evaluate Licensee’s compliance with this Agreement. Licensee will cooperate with the audit and provide Model (and the auditor) with adequate, accurate and complete books and records, and access to systems, so that Model (and the auditor) can evaluate Licensee’s compliance with this Agreement.
5. Delivery; Installation and Acceptance. Model will make the Software available for electronic download for thirty (30) days after Model accepts the Order for the Software. Model will not be obligated to provide a copy of the Software on any physical medium. By downloading and installing the Software, Licensee will be deemed to have accepted the Software. Licensee will be obligated to pay for the Software regardless of whether Licensee downloads or uses the Software.
6. Free or Beta Software. All free and beta Software is provided “as is” and without any representations or warranties of any kind. For clarity, neither the representations, the warranties nor the defense or indemnification obligations in this Agreement will apply to free or beta software. Licensee may use free or beta Software only for a term of thirty (30) days (unless stated otherwise in the Order) and only for the number of Published Actions set forth in the Order. Model may disallow use of the Software in excess of the term or permitted number of Published Actions.
7. Term; Termination.
7.1 Term. The term of this Agreement (“Term”) commences upon execution of this Agreement and will continue until terminated as permitted hereunder.
7.2 Termination. Either party may terminate this Agreement by written notice if the other party (a) materially breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof, or (b) files for bankruptcy, is the subject of an involuntary petition for bankruptcy, makes an assignment for the benefit of creditors, is the subject of a receivership, files for dissolution or liquidation, declares its general inability to pay its debts as they become due or ceases substantially all or all business operations.
7.3 Effects of Termination. The termination of this Agreement automatically and immediately terminates all licenses granted herein and all Orders and SOWs. Upon the termination of this Agreement for any reason, Licensee will uninstall the Software from its systems and destroy all copies thereof, and, upon Model’s request, certify in writing to Model that it has removed such Software and destroyed all copies. Upon termination of this Agreement or any SOW, Licensee will pay promptly for Services performed. Neither party will have liability arising from termination of this Agreement as permitted herein. The following Sections will survive termination of this Agreement: 4, 6, 7.3, 8, 10, 11, 13, 14, 15, 16, 17 and 18.
8. Fees; Taxes.
8.1 License and Support Fees. Model may bill Licensee for the License Fees and Support after Model receives a signed Order from Licensee. Licensee will pay all invoices for License Fees and Support within thirty (30) days of the date of invoice, unless stated otherwise in the Order.
8.2 Services Fees. Unless stated otherwise in the applicable SOW, Licensee may bill managed services fees monthly in advance and all other Services (other than Support) monthly in arears. In addition to the fees for the Services, Licensee will reimburse all reasonable travel, lodging, meal and other expenses that Model incurs incident to the performance of Services for Licensee. Model will bill all expenses at cost and in accordance with Model’s travel policy, which is available on request. Estimates of total fees and expenses for projects may be provided in a SOW, but Model does not guarantee these estimates unless so stated in the SOW as a fixed or not-to-exceed price. Model will, however, notify Licensee if Model expects to exceed any estimate.
8.3 Payment. Payment under an invoice is due on the “Due Date”. Unless an invoice is disputed in writing in good faith by Licensee on or before the Due Date, the charges stated in the invoices will be deemed to be accurate and incontrovertible. Any undisputed amount not paid by the Due Date will accrue interest at a rate equal to the lesser of (i) one and one-half percent (1.5%) per month or (ii) the highest rate allowed by law. Model reserves the right to suspend provision of the Services at any time until all past-due fees are paid in full. Model also will be entitled to reimbursement for its reasonable collection costs and to reasonable attorneys’ fees in the event that it retains a collection firm or legal counsel due to Licensee’s late payment or nonpayment.
9. Support and Maintenance. If purchased by Licensee, Model will provide Licensee the support and maintenance services set forth in Exhibit B (“Support”). Support may be purchased for annual terms only. Support, if purchased, will automatically renew at the end of each annual term, at Model’s then-current Support price for the level of Software purchased, unless Licensee terminates the renewal of Support by providing written termination notice to Model at least thirty (30) days prior to the end of the then-current Support term. If Support renews, Model may bill for the Support, and Licensee will pay for the Support within thirty (30) days of the date of the invoice. Model may discontinue Support at the end of an annual Support period. Licensee will not be obligated to subscribe to Support, but if Licensee does not purchase Support, Licensee may not purchase Support at a later date unless Licensee pays Support (at Model’s standard list prices) for the annual periods in which Licensee did not purchase Support.
10.1 Software. Model will retain all rights, title and interest in and to the Software, except for the limited license rights expressly granted to Licensee herein.
10.2 Deliverables. Except to the extent otherwise specifically agreed in a SOW, all copyrights, patents, trade secrets, and other intellectual property rights associated with any ideas, concepts, techniques, inventions, processes, software, programs, logic diagrams, reports, data files, methodologies, and other works of authorship and other tangible materials developed or created by Model in performing under this Agreement, and any derivative works based thereon, whether or not any contributions to any derivative works are made by Licensee and/or its employees, agents or contractors (collectively, the “Model Intellectual Property”), shall belong exclusively to Model. Model grants and agrees to grant to Licensee a limited, non-exclusive, perpetual, worldwide, non-transferable, non-sublicensable right to use, distribute, copy and create derivative works of the Model Intellectual Property as incorporated into the Deliverables (but not separately from the Deliverables), solely and exclusively for Licensee’s own internal use. For clarity, the Software is not a Deliverable.
10.3 Know-how. Model shall own and shall be free to use and disclose all ideas, concepts, know-how, methods, expertise, and skills that Model uses to perform the Services or acquires while performing the Services. The license to Model Intellectual Property in Section 10.2 does not include any right to Model’s ideas, concepts, know-how, methods, expertise or skills.
10.4 Licensee Materials. Licensee will retain all right, title and interest in and to the equipment, content, documents and other materials that Licensee provides to Model (“Licensee Materials”), except for the license rights expressly granted to Model herein. Licensee grants and agrees to grant to Model a limited, non-exclusive, worldwide, transferable, sublicensable right to use, distribute, copy, display and create derivative works of the Licensee Materials as reasonably necessary to provide the Services and create the Deliverables.
11.1 Confidential Information. “Confidential Information” means all information disclosed or made available by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in tangible or electronic form that (a) is marked “confidential” or “proprietary”, or (b) based on the circumstances under which it was disclosed, a reasonable person would believe it to be confidential at the time of disclosure. Model’s Confidential Information includes its pricing and the other terms offered to Licensee. Confidential Information does not include any information that: (i) is in the possession of the Receiving Party at the time of disclosure as demonstrated by its written records; (ii) before or after it has been disclosed to the Receiving Party, enters the public domain through no wrongful act of the Receiving Party; (iii) is disclosed to the Receiving Party by a third party not in violation of any obligation of confidentiality; or (iv) is independently developed by the Receiving Party without use of or reference to Confidential Information of the Disclosing Party.
11.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than performing its obligations or exercising its rights under this Agreement, and will disclose the Confidential Information of the Disclosing Party only to Receiving Party’s employees, agents and contractors on a “need to know” basis, provided they are under a contractual obligation to the Receiving Party to maintain the confidentiality of such Confidential Information, which obligation is consistent with, and no less protective of the Confidential Information, than the terms of this Section 11. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Notwithstanding the foregoing, Confidential Information may be disclosed as required by law or by order of a court of competent jurisdiction. In such event and if reasonably possible under the circumstances of disclosure, the Receiving Party will provide the Disclosing Party with prompt prior notice of such obligation in order to give the Disclosing Party an opportunity to take legal action to prevent or limit the scope of such disclosure.
11.3 Return of Confidential Information. Upon the termination of this Agreement, the Receiving Party will promptly return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section 11.3. The Receiving Party is not obligated to erase the Disclosing Party’s Confidential Information stored on back-up tapes in the regular course of business and which are routinely destroyed or overwritten.
12.1 Model’s Limited Software Warranties. Model hereby represents and warrants that: (a) the Software will operate in accordance with the Specifications in all material respects for ninety (90) days from the date that Model makes the Software available for download; and (b) Model will use commercially reasonable measures intended to detect and remove viruses and other malware from the Software.
12.2 Model’s Limited Services Warranties. Model hereby represents and warrants that all work will be performed in a workmanlike and professional manner by Model personnel having a level of skill in the area commensurate with the requirements of the scope of work to be performed, and such work and all Deliverables will conform in all material respects to the requirements and specifications of the applicable SOW. In the event Model anticipates at any time that it will not reach a milestone or complete an assignment within the timetable prescribed by the SOW, Model will promptly inform Licensee, submit proposed revisions to the timetable and milestones that reflect Model’s good-faith estimates of what can realistically be achieved, and continue the work. If Model is unable to perform because of illness, resignation or other causes beyond its reasonable control, Model’s nonperformance will be excused, but Model will use reasonable efforts to resume work after the cause abates.
12.3 Licensee’s Warranties. Licensee hereby represents and warrants that: (a) it has the full right, power, and authority to enter into and perform under this Agreement; (b) it has the right to provide the Licensee Materials to Model and allow Model to use the Licensee Materials to provide the Services and Deliverables, and Model’s use of the Licensee Materials will not violate, infringe or misappropriate any third party’s intellectual property rights or other rights; (c) Licensee is under no obligation to any third party that would in any manner prevent Model from performing the Services hereunder; and (d) it will comply with all applicable laws in its use of the Software, Services and Deliverables.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. MODEL DOES NOT WARRANT THAT THE SOFTWARE, SERVICES OR DELIVERABLES WILL BE ERROR-FREE OR COMPLETELY SECURE, OR THAT ALL DEFECTS IN THE SOFTWARE, SERVICES OR DELIVERABLES WILL BE CORRECTED. MODEL WILL NOT BE LIABLE IN ANY WAY RELATED TO NON-MODEL HARDWARE, SOFTWARE OR DATA, OR FOR THE ACTIONS OR OMISSIONS OF THIRD PARTIES (OTHER THAN CONTRACTORS UNDER MODEL’S CONTROL).
14.1 Model Indemnity. Model will defend Licensee against any claim, demand, suit or proceeding (“Claim”) made or brought against Licensee by a third party alleging that the use of the Software or a Deliverable in accordance with this Agreement and the applicable Order or SOW infringes or misappropriates such third party’s U.S. intellectual property rights, and will indemnify and hold harmless Licensee from any damages, attorneys’ fees and costs (“Damages”) finally awarded against Licensee as a result of, or for amounts paid or payable by Licensee under a settlement of, a Claim against Licensee. If Model receives information about an infringement or misappropriation claim related to the Software or a Deliverable, Model may in its discretion and at no cost to Licensee (a) modify the Software or Deliverable so that it no longer infringes or misappropriates, without breaching Model’s warranties hereunder, (b) obtain a license for Licensee’s continued use of that Software or Deliverable in accordance with this Agreement, or (c) terminate Licensee’s right to use the Software and Deliverables and refund Licensee’s fees covering such Software or Deliverable, depreciated over three (3) years on a straight-line basis. Model will not have any obligations under this Section 14.1 or any liability to the extent (i) a Claim against Licensee arises from Licensee Materials or Licensee’s breach of this Agreement or the applicable Order or SOW, or (ii) the Claim against Licensee would not have arisen but for (A) Model’s combination or use of the Software or Deliverable with non-Model software, services or data, (B) modification of the Software or Deliverable by anyone other than Model, (C) Licensee’s continuation of allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (D) Model’s customization of the Software or Deliverable to meet Licensee’s particular specifications or instructions, or (E) Licensee’s use of the Software or Deliverable in a manner not strictly in accordance with this Agreement and the applicable Order or SOW.
14.2 Licensee Indemnity. Licensee will defend against any Claim made or brought against Model by a third party alleging that the use of the Licensee Materials in accordance with this Agreement infringes or misappropriates such third party’s U.S. intellectual property rights, and Licensee will indemnify and hold harmless Model from Damages finally awarded against Model as a result of, or for amounts paid or payable by Model under a settlement of, such Claim.
14.3 Mutual Indemnity. Each party will defend the other against any Claim made or brought against the other by a third party alleging bodily injury or property damage arising from the negligence or willful misconduct of the party, and the party will indemnify and hold harmless the other from Damages finally awarded against the other as a result of, or for amounts paid or payable by the other under a settlement of, such Claim.
14.4 Indemnity Procedure. The indemnified party will (a) promptly give the indemnifying party written notice of the Claim, (b) give the indemnifying party sole control of the defense and settlement of the Claim (except that the indemnifying party will not settle any Claim without the indemnified party’s prior written consent, which the indemnified party will not unreasonably withhold, delay or condition), and (c) give the indemnifying party reasonable assistance, at the indemnifying party’s expense.
15. LIMITATIONS ON LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT, EVEN IF THE PARTY AGAINST WHOM SUCH DAMAGES ARE CLAIMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT (OTHER THAN LIABILITY TO PAY FOR SOFTWARE, SERVICES OR DELIVERABLES), WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID BY LICENSEE TO MODEL HEREUNDER IN THE SIX (6) MONTHS PRECEDING THE DATE THE CLAIM AROSE (OR THE FIRST CLAIM AROSE IN A SERIES OF RELATED CLAIMS). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS IN THIS PARAGRAPH WILL NOT APPLY TO ANY INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY OR ANY WILLFUL MISCONDUCT.
16. Independent Contractors. Model will be an independent contractor and not an employee, agent, joint venturer, or partner of Licensee. Model will pay, as required by law, all payroll or self-employment taxes and similar required payments and withholdings with respect to the services performed hereunder. Licensee will not provide Model with any training, insurance, retirement, health, welfare, or other benefits inconsistent with Model’s status as an independent contractor.
17. General Terms.
17.1 Notices. Any notices hereunder may be given either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices will be addressed to the parties at the addresses appearing in the introductory paragraph of this Agreement, but each party may change such address by written notice in accordance with this paragraph. Notices will be deemed given and effective upon delivery (or attempted delivery) as evidenced by return receipt or similar documentation.
17.2 Assignment. Neither party will assign this Agreement without the prior written consent of the other, which consent will not be unreasonably withheld, except that either party may assign this Agreement without the other’s consent in connection with a merger, acquisition, reorganization or the like. Each party will give the other prompt written notice of any such assignment.
17.3 Entire Agreement. This Agreement (which includes all Orders and SOWs) supersedes all prior discussions and agreements between the parties with respect to the subject matter of this Agreement and contains the entire agreement between the parties with respect to such subject matter. No representations, warranties, inducements, promises, or agreements, oral or otherwise, have been made by or on behalf of Model that are not embodied herein. Any modification of this Agreement will be effective only if in writing and signed by both parties.
17.4 Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the provision will be reformed to the nearest enforceable provision (or severed if that is impermissible), and the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
17.5 Wavier. No failure or delay by either party in exercising any right or remedy under this Agreement will constitute a waiver of that right or remedy. A waiver will be binding against a party only if made by that party in writing.
17.6 Force Majeure. Neither party will be liable to the other for any failure or delay to the extent caused by an event beyond the party’s reasonable control.
17.7 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Missouri, without reference to conflicts of law rules. Any civil action or other legal proceeding arising out of or relating to this Agreement will be brought exclusively in the state or federal courts located in St. Louis, Missouri. Each party waives any objection to such a court based on lack of personal jurisdiction, inconvenient forum or improper venue. The U.N. Convention on Contracts for the International Sale of Goods will not apply.
17.8 Injunctive Relief. Unauthorized disclosure or use of a party’s Confidential Information or intellectual property may cause irreparable harm to the Party for which recovery of money damages would be inadequate; consequently and notwithstanding the requirements of Section 17.7, the Party will be entitled to seek injunctive relief against the other Party in any court of competent jurisdiction, in addition to any and all remedies available at law or in equity.
17.9 Successors and Assigns. This Agreement will inure to the benefit of, and be binding upon, each party and its successors and permitted assigns.
17.10 Order of Precedence. Whenever possible this Agreement, Orders and SOWs will be construed to avoid any implication of conflict between them; however, in the event of an irreconcilable conflict between this Agreement and express terms of an Order or SOW, the express terms of the Order or SOW will prevail.
17.11 Construction. “Including”, “includes” and “include” are deemed to be followed by “without limitation”, unless expressly stated otherwise in this Agreement. No term in this Agreement will be construed against the drafter.
18.1 “Deliverables” mean any deliverables that Model creates specifically for Licensee in Model’s performance of the Services.
18.2 “Documentation” means any specifications, user guide or similar document for the Software.
18.3 “Order” means an order agreed to by the parties that describes the Software and Support (if any) that Model will provide to Licensee.
18.4 “Published Action” means the use of a “runbook” or automation script from one or more of the automation sources in the Software.
18.5 “Services” mean the Support described in an Order and the professional services described in a SOW.
18.6 “Software” means the software described in an Order. The Software includes all Documentation and Updates.
18.7 “Specifications” means the written specifications for the Software, which are available upon request by Licensee.
18.8 “SOW” means a statement of work agreed to by the parties that describes the professional services Model will provide to Licensee.
18.9 “Updates” mean all generally-released error and bug fixes, patches, and updates to the Software, but not major version upgrades.