MANAGED MAINTENANCE, INC.
SOFTWARE LICENSE AGREEMENT
THIS IS A LICENSE NOT A SALE
THIS IS A SOFTWARE LICENSE AGREEMENT ("AGREEMENT") BETWEEN YOU ("LICENSEE") AND MANAGED MAINTENANCE, INC., A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF FLORIDA, WITH OFFICES AT 301 YAMATO ROAD, SUITE 2180, BOCA RATON, FL 33431 ("MMI"). PLEASE READ THIS AGREEMENT CAREFULLY AS IT GOVERNS YOUR USE OF THE ASSET MANAGEMENT SOFTWARE, THE ASSET MANAGEMENT SITE, AND ANY ACCOMPANYING DOCUMENTATION (EACH AS DEFINED BELOW, COLLECTIVELY, THE "LICENSED MATERIALS"). BY CLICKING ON THE "I AGREE" BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT ON BEHALF OF YOURSELF PERSONALLY OR THE ENTITY BY WHICH YOU ARE EMPLOYED (THE "EFFECTIVE DATE") AND ARE REPRESENTING AND WARRANTING THAT YOU HAVE ADEQUATE LEGAL POWER AND CAPACITY TO ENTER INTO THIS AGREEMENT AND ARE AUTHORIZED TO BIND THE ENTITY BY WHICH YOU ARE EMPLOYED. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OR DO NOT UNDERSTAND THESE TERMS, YOU MUST CLICK THE "I DO NOT AGREE" BUTTON.
1. DEFINITIONS
1.1 "Asset" means a unique serial number that identifies a specific product, good, equipment, item, service or contract managed by the Asset Management Software on an Asset Management Site.
1.2 "Asset Management Site" means a site on the World Wide Web hosted, maintained and operated by MMI or its designees and/or such other successor, extension or replacement site(s) as may be reasonably designated by MMI to employ the Asset Management Software.
1.3 "Asset Management Software" means MMI's proprietary software, in object code form only.
1.4 "License Period" means the period beginning on the Effective Date and ending thirteen (13) calendar months later (unless the parties by mutual written agreement extend the term thereof in which case the terms and conditions of this Agreement shall continue to apply), during which Licensee has been granted a license to use the Asset Management Software on an Asset Management Site.
1.5 "MMI Marks" means the name, trade names, trademarks, service marks, logos and other distinctive brand marks of MMI adopted by MMI or used in or relating to MMI's business from time to time, whether or not in connection with the Licensed Materials.
2. LICENSE GRANT AND USE
2.1 License. During the License Period and subject to Licensee's strict compliance with the terms of this Agreement including but not limited to the payment of all applicable fees as directed by MMI, MMI hereby grants to Licensee the revocable, non-transferable, non-exclusive, non-sublicensable right and license to use the Licensed Materials solely to manage Licensee's own Assets through an Asset Management Site.
2.2 Limitations on Use. Licensee shall not, without MMI's prior written consent: (i) sell, rent, lease, sublicense or otherwise transfer, distribute or otherwise make available the Licensed Materials or any copies of the Licensed Materials or the MMI Marks to any third party; (ii) modify, translate, reverse engineer, decompile or disassemble the Licensed Materials; (iii) create derivative works based upon the Licensed Materials; (iv) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Licensed Materials or the MMI Marks; (v) provide access to any of the Licensed Materials to any third party; or (vi) remove any product identification, copyright notices or other notices or proprietary restrictions from the Licensed Materials or the MMI Marks.
2.3 Retention of Data. Licensee acknowledges and agrees that Licensee shall make and retain back-up copies of any and all data that Licensee uploads to the Asset Management Site or otherwise populates therein through the Asset Management Software. Licensee shall have sole responsibility at all times for making and retaining back-up copies of its data. MMI shall have no liability whatsoever for lost data.
2.4 Ownership Rights. The Licensed Materials are owned by MMI and protected by United States and international copyright and trademark laws and international treaty provisions. Except for the limited license rights expressly granted to Licensee under Section 2.1 above, MMI retains all right, title and interest in and to the Licensed Materials including all Intellectual Property Rights related thereto whether or not merged into other materials. For purposes of this Agreement, "Intellectual Property Rights" shall mean MMI's worldwide and common law rights associated with (i) inventions, including patents, patent applications and statutory invention registrations or certificates of invention, and any divisions, continuations, renewals or re-issuances of any of the foregoing; (ii) the MMI Marks and all trademarks, service marks, domain names, trade dress, logos, and other brand source distinctions; (iii) copyrights and works of authorship, (iv) trade secrets and know-how; and (v) other intellectual property rights of any type throughout the world. Except as expressly set forth in this Agreement, Licensee shall not use the MMI Marks without MMI's prior written consent.
3. REPRESENTATIONS
Licensee represents, warrants and covenants to MMI that: (i) the execution, delivery and performance by Licensee under this Agreement and the consummation by it of the transactions contemplated hereby shall not conflict with or violate any provision of law, rule or regulation to which Licensee is subject, or any agreement or other instrument applicable to Licensee or binding upon Licensee, its assets or properties; (ii) Licensee has the unqualified right and power to render the performances and activities contemplated by this Agreement; and (iii) Licensee shall not during the term of this Agreement and thereafter: (a) hold itself out as having any proprietary rights with respect to the Licensed Materials or the MMI Marks, or (b) make any claim to ownership rights in the Licensed Materials, or challenge or assist others to challenge the validity of (or MMI's ownership rights with respect to) the Licensed Materials or the MMI Marks, or (c) attempt to register or cause to be registered the MMI Marks or create or use or attempt to register or cause to be registered any marks or trade names that are confusingly similar to the MMI Marks.
4. CONFIDENTIALITY
4.1 Definition. For purposes of this Agreement, "Confidential Information" shall mean any and all technical, business, client or proprietary information disclosed by one party to the other party, directly or indirectly, including, but not limited to, information regarding the disclosing party's business strategies and practices, methodologies, trade secrets, know-how, pricing, technology, software, and in the case of MMI, the Licensed Materials, product plans, services, relationships with any third party, client lists, and information regarding the disclosing party's employees, clients, vendors, consultants and affiliates. The terms of this Agreement shall be deemed Confidential Information.
4.2 General. During the term of this Agreement and thereafter, the receiving party shall treat as confidential all Confidential Information of the disclosing party, shall not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing by the disclosing party, shall implement reasonable procedures to prohibit the unauthorized use, disclosure, duplication, misuse or removal of the disclosing party's Confidential Information and shall not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such party under this Agreement, and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, the receiving party shall use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the disclosing party under this Agreement, but in no event less than reasonable care. Except as expressly authorized in this Agreement, Licensee shall not use or copy Confidential Information of MMI without MMI's prior written consent.
4.3 Remedies. If Licensee breaches any of its obligations with respect to confidentiality or engages in any unauthorized use or disclosure of Confidential Information hereunder, MMI is entitled to obtain equitable and injunctive relief in addition to all other remedies that may be available to protect its interest.
4.4 Return. Upon the disclosing party's written request, the receiving party shall promptly return all tangible copies of the disclosing party's Confidential Information and permanently delete or destroy all electronic copies of the disclosing party's Confidential Information.
5. NO WARRANTY; LIMITATION ON LIABILITY
5.1 NO WARRANTY. THE LICENSED MATERIALS SHALL BE PROVIDED TO LICENSEE "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITATION, MMI MAKES NO WARRANTY THAT ANY ERRORS, FAILURES OR DEFECTS IN THE ASSET MANAGEMENT SOFTWARE OR THE ASSET MANAGEMENT SITE SHALL BE CORRECTED, THAT THE ASSET MANAGEMENT SOFTWARE OR THE ASSET MANAGEMENT SITE SHALL BE ERROR FREE, OR THAT THE ASSET MANAGEMENT SOFTWARE OR THE ASSET MANAGEMENT SITE SHALL RUN WITHOUT INTERRUPTION. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED MATERIALS AND THE RISK OF LOSS OF DATA IS BORNE BY LICENSEE.
5.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL MMI'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE LICENSED MATERIALS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION, INFRINGEMENT OR OTHER CONTRACT OR TORT CLAIMS) EXCEED ONE THOUSAND U.S. DOLLARS (US$1,000.00). UNDER NO CIRCUMSTANCES SHALL MMI BE LIABLE TO LICENSEE OR ANY OTHER ENTITY OR THIRD PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, RELIANCE OR COVER DAMAGES (INCLUDING LOSS OF DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST SAVINGS, COST OF PROCURING SUBSTITUTE TECHNOLOGY AND STATUTORY DAMAGES) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF MMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MMI shall not have any responsibility or liability whatsoever for the act(s) or omission(s) of any user of any Asset Management Site.
6. MISCELLANEOUS
6.1 Nothing stated in this Agreement shall be construed as creating a relationship of employer and employee, master and servant, principal and agent, joint venturers or partnerships between the parties hereto. Licensee shall be solely responsible for the actions of all its employees, agents or representatives. Licensee shall indemnify and hold MMI harmless from any and all liabilities, damages and/or costs arising out of or related to the acts, representations or omissions of Licensee, its employees, agents or representatives. Neither party has the authority to bind the other or to incur any obligation on its behalf. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to the conflict of law principles thereof. EACH OF THE PARTIES TO THIS AGREEMENT WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY DISPUTE OF ANY NATURE WHATSOEVER THAT MAY ARISE BETWEEN THEM, INCLUDING, BUT NOT LIMITED TO, THOSE DISPUTES RELATING TO, OR INVOLVING IN ANY WAY, THE TRANSACTIONS BETWEEN THE PARTIES, THE CONSTRUCTION, PERFORMANCE OR BREACH OF THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, THE PROVISIONS OF ANY FEDERAL, STATE OR LOCAL LAW, REGULATION OR ORDINANCE NOTWITHSTANDING. By entering into this Agreement, each of the parties acknowledges and agrees that it has had an opportunity to consult with legal counsel and that it knowingly and voluntarily waives any right to a trial by jury of any dispute pertaining to or relating in any way to the transactions contemplated by this Agreement, the provisions of any federal, state or local law, regulation or ordinance notwithstanding. This Agreement, constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements, written and oral, with respect thereto. Neither this Agreement nor any rights or obligations hereunder shall be assigned or otherwise transferred by Licensee without the prior written consent of MMI. No waiver, amendment or modification of any provision hereof or of any right or remedy hereunder shall be effective unless made in writing and signed by the parties against whom such waiver, amendment or modification is sought to be enforced and this Agreement may only be amended by a writing signed by both parties. No failure by any party to exercise, and no delay by any party in exercising, any right, power or remedy with respect to the obligations secured hereby shall operate as a waiver of any such right, power or remedy. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, void, or unenforceable, such provision shall be enforced to the maximum extent possible and the remaining provisions of this Agreement shall continue in full force and effect to the maximum extent permissible without being impaired or invalidated in any way. Each party warrants that it has full power to enter into and perform this Agreement, and the person signing this Agreement on each party's behalf has been duly authorized and empowered to enter into this Agreement. The parties agree that their respective rights, obligations and duties which by their nature extend beyond the termination of this Agreement shall survive any termination and shall remain in effect for a period of one (1) year thereafter or the period specified in this Agreement, if longer. This Agreement shall be construed without regard to any presumption or rule requiring construction of interpretation against the party drafting or causing any instrument to be drafted.
© 2008 MMI All Rights Reserved
