FOR PREVALENT SOFTWARE PRODUCT AND CONTENT.
Licensee’s rights to use the Software Product shall be limited to those expressly granted in this End User License Agreement (this “Agreement”). Prevalent Software (the “Software Product”) provides licensees to the software and for certain products, as designated in the Prevalent product description as well as the stated subject matter data. The Software Product listed and accompanying Prevalent product and/or service documentation are the proprietary property of Prevalent, Inc. and or its suppliers (“Prevalent”) and Prevalent retains any and all rights, title and interest in and to the Software Product, including in all copies, improvements, enhancements, modifications and derivative works of the Software Product, subject only to the express rights granted by this license. Licensee acknowledges that some of the data and subject matter may be licensed from a 3rd party provider.
LICENSEE BY THEIR USE OF HE SOFTWARE ACCEPTS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT LICENSEE FURTHER ACKNOWLEDGES THIS FACT BY SELECTING THE “ACCEPT” OPTION AFTER LOGGING IN TO THE SOFTWARE PRODUCT WITH A REGISTERED USER ID. LICENSEE MUST AGREE TO ALL OF THE TERMS OF THIS AGREEMENT BEFORE LICENSEE WILL BE PERMITTED LAWFUL ACCESS TO THE SOFTWARE PRODUCT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LICENSEE MUST SELECT “DECLINE”; AND LICENSEE MUST NOT ACCESS OR OTHERWISE USE THE SOFTWARE PRODUCT.
Prevalent reserves the right to require Licensee to periodically renew its acceptance and agreement to the terms of this Agreement by requiring Licensee to select the “Accept” option after logging in to the Software Product with a registered user ID and password, including, without limitation, in the event Prevalent provides an enhancement, improvement or modification to the Software Product or if Prevalent amends or modifies the terms of this Agreement. However regardless whether there is a any such renewal, Licensee acknowledges that the terms of this license continue to govern the Licensee’s use of the Software Product including any enhancement or modification, as well as any content including but not limited to any policies, revisions or additions provided by Prevalent or through Licensee’s access to the Prevalent Software Product.
Subject to Licensee’s compliance with the terms and conditions of this Agreement, Prevalent grants to Licensee a non-exclusive, non-transferable license to use Software Product solely in Licensee’s internal business operations. With regard to certain Prevalent Software Products, they may also include content with or through normal operation of the Software Product i.e. sample corporate policies (“Content”) Licensee may copy, modify and use such content for its internal operations; however any such use will not rise to the level of a proprietary interest in such content and such content remains subject to the terms of this Agreement. As such Licensee may download certain Prevalent provided content and use the content for the Licensee’s internal use, subject to the terms of this license. All rights not expressly granted to Licensee are retained by Prevalent. The Software Product is protected by copyright laws, trade secret, as well as laws and any applicable regulations and/or treaties related to other forms of intellectual property. Prevalent and/or its suppliers owns all intellectual property rights in the Software Product. The license to use the Software Product is subject to these rights and to all the terms and conditions of this Agreement. Licensee is granted only the non-exclusive, non-transferable right to use the Software Product, any of the Content including any policies or materials accessed and related user documentation; Licensee does not acquire any rights of ownership in such materials. Licensee acknowledges that the changes in industry norms, technology, law, governing rules and regulations may have an unexpected impact on the appropriateness of any Content for its initial intended purpose; Licensee is in exclusive control of the policies they may choose to implement in support of their business. Licensee will determine the frequency of the interval at which it reviews and updates their policies and accepts sole responsibility for the appropriateness of the policies for Licensee’s intended use.
The license granted by this Agreement shall apply only for the number of user id’s provided for pursuant to the associated Prevalent authorization as designated in the associated Prevalent Sales Order and/or product description (the “Subscription Agreement”), and shall only be valid for such time as the Subscription Agreement remains in full force and effect, as defined in the associated Prevalent product description. Licensee shall take appropriate steps, including limiting access to user IDs and passwords, to limit access to the Software Product to those of its employees who are authorized to use the Software Product and to agree to the terms of this Agreement on behalf of Licensee.
Restrictions on Transfer, Use, Alteration and Copying
Except as otherwise expressly provided in this Agreement Licensee may not, without Prevalent’s prior written consent, conduct, cause or permit the: (i) use, copying, modification, rental, lease, sublease, sublicense, or transfer of the Software Product; (ii) creation of any derivative works based on the Software Product or its accompanying documentation including but not limited to translations (iii) alteration of any files or libraries in any portion of the Software Product, or reproduction of the database portion or creation of any tables or reports relating to the database portion; (iv) reverse engineering, disassembly, or decompiling of the Software Product; (v) use of the Software Product in connection with service bureau, facility management, timeshare, service provider or like activity whereby Licensee operates or uses the Software Product for the benefit of a third party; or (vi) use of the Software Product by any party other than Licensee its subcontractors and agents acting on Licensee’s behalf and subject to the terms of this license. Any violation of this section shall result in immediate termination of this Agreement, which termination shall not be exclusive of other remedies available to Prevalent.
Except for the purposes of training, translation, Licensee’s internal backup, Licensee’s internal use or operational support, Licensee may not copy or allow others to copy any part of the user documentation or other printed material provided with the Software Product.
Licensee shall bear sole responsibility for any information uploaded or supplied by Licensee in connection with use of the Software Product. Licensee represents and warrants to Prevalent that it has the right to use any information uploaded or supplied by Licensee in connection with use of the Software Product. Licensee shall maintain copies of any information uploaded or supplied in connection with use of the Software Product. IN NO EVENT SHALL PREVALENT BEAR ANY LIABILITY FOR THE USE OR LOSS OF ANY INFORMATION UPLOADED OR SUPPLIED BY LICENSEE IN CONNECTION WITH USE OF THE SOFTWARE PRODUCT.
Prevalent represents and warrants to Licensee that the Software Product will operate in substantial compliance with the printed product information. In the event of a breach, Licensee will promptly notify Prevalent of the non-conformity in writing and Prevalent will use reasonable commercial efforts to repair the Software Product to operate in compliance with its written description. All warranties cover only defects arising under normal use and do not include malfunctions or failure resulting from misuse, abuse, neglect, alteration, problems with electrical power, acts of nature, unusual temperatures or humidity, improper installation, or damage determined by Prevalent to have been caused by Licensee. All limited warranties on the Software Product are granted only to Licensee and are non-transferable. Licensee agrees to indemnify and hold Prevalent harmless from all claims, judgments, liabilities, expenses, or costs arising from Licensee’s breach of this Agreement and/or acts or omissions. Prevalent reserves the right to modify the Software Product without notice including but limited to the addition, deletion or modification of Content. Licensee also acknowledges the appropriateness of various policies found in the libraries may change along with changes in industry norms, regulations and the common course of business over time; therefore it remains incumbent upon Licensee to continuously review and monitor the appropriateness of policies for Licensee’s then current intended use. Prevalent reserves the right but accepts no duty to advise Licensee to discontinue the use of certain Content, and Licensee agrees to so discontinue such use, in the event Prevalent becomes aware of an unreasonable risk of adverse unintended impacts created by continued use of such Content. This provision represents Prevalent’s exclusive duty and Licensee’s sole remedy even in the event that the remedy should fail in its essential purpose.
Disclaimer of Additional Warranties and Limitation of Liability
EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT OR OTHERWISE AGREED TO IN WRITING BY PREVALENT, PREVALENT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OTHER THAN AS SET FORTH IN THIS AGREEMENT.
Prevalent makes no warranty that the Software Product will meet Licensee’s intended purpose. Prevalent makes no warranty that operation of the Software Product will be secure, error free, or free from interruption. LICENSEE MUST DETERMINE WHETHER THE SOFTWARE PRODUCT SUFFICIENTLY MEETS LICENSEE’S REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. LICENSEE BEARS SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE SOFTWARE PRODUCT TO MEET LICENSEE’S REQUIREMENTS. PREVALENT WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT (A) THE SOFTWARE LICENSE RESULTS DO NOT CONSTITUTE THE PROVISION OF LEGAL ADVICE OR SERVICES IN ANY MANNER; (B) THE USE OF THE SOFTWARE PRODUCT DOES NOT ENSURE CUSTOMER’S COMPLIANCE WITH ALL APPLICABLE INDUSTRY REGULATIONS, LABOR OR EMPLOYMENT LAWS; AND (C) CUSTOMER IS SOLELY RESPONSIBLE FOR ITS COMPLIANCE WITH ALL APPLICABLE LAWS RULES AND REGULATIONS.
UNDER NO CIRCUMSTANCES SHALL PREVALENT, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE PRODUCT, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF PREVALENT OR ANY OTHER PARTY, EVEN IF PREVALENT IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS PREVALENT’S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED. IN NO EVENT WILL PREVALENT’S LIABILITY FOR ANY DAMAGES TO LICENSEE EXCEED THE SUBSCRIPTION FEES PAID BY LICENSEE PURSUANT TO THIS AGREEMENT.
THIRD PARTY PROGRAMS
The Software Product may contain third party software programs (“Third Party Programs”) that are available under open source or free software licenses. This License Agreement does not alter or amend the rights, duties and obligations established under those under those open software or free software licenses. A listing of the third party software along with the license, and/or link to the 3rd party software license is available from Prevalent upon request and may be found in the Software License documentation. Additionally, during the first three years of this Software License Prevalent will free of charge upon your written request, assist you in getting a copy of the applicable open source or free software. Notwithstanding any such third party software content, the warranties and limitation of liability contained in this License Agreement apply to the Software Product, including any such third party content.
Prevalent will hold Licensee harmless from, and at its own expense, will defend any action brought against Licensee based on any Software Product component supplied under this Agreement infringe a United States Patent, Trademark or Copyright when used within the scope of this Agreement, provided the Licensee notifies Prevalent promptly in writing of such claim, Prevalent has sole control of the defense of the action and all negotiations for its settlement or compromise, and Licensee cooperates with Prevalent in the defense of the action and all negotiations for its settlement or compromise, and Licensee cooperates with Prevalent in the defense of the action. In the event that any component of the above referenced Software Product becomes, or in Prevalent’s opinion is likely to become, the subject of a claim of infringement of a United States Patent, Trademark, or Copyright, Prevalent, at its option may: (i) secure for Licensee the right to continue using the affected Software Product; (ii) modify or replace the Software Product so that it becomes non-infringing, provided that the performance is not materially adversely affected; or (ii), if (i) and (ii) are not reasonably practicable, accept return of the Software Product and, refund to Licensee the depreciated value of the Software Product based upon a five year straight-line depreciation schedule.
Prevalent shall not have any liability under this Agreement if the infringement or claim is based upon: (i) interconnection and/or use of the Software Product with equipment not supplied by Prevalent (ii) use of the Software Product in a manner for which the Software Product was not designed (iii) modification of the Software Product by a party other than Prevalent or (iv) modification by Prevalent in compliance with any designs, specifications or instructions furnished to Prevalent by Licensee or 3rd parties on behalf of Licensee.
THE FOREGOING STATES LICENSEE’S EXCLUSIVE RIGHTS AND REMEDIES WITH RESPECT TO AN INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT BY ANY SOFTWARE PRODUCT, IN PART OR IN WHOLE, SUPPLIED TO LICENSEE UNDER THIS AGREEMENT.
Licensee shall defend, indemnify and hold harmless Prevalent from any demand, suit, cause of action, judgment, liability, cost or expense (including court costs and reasonable attorneys fees) (“Claims”) arising out of or in connection with (i) a breach of this Agreement by Licensee, (ii) any information uploaded or supplied by Licensee in connection with use of the Software Product or (iii) any act, error or omission of Licensee or any of its officers, directors, agents, employees or subcontractors.
Licensee acknowledges that any use or disclosure of the Software Product in a manner inconsistent with the terms of this Agreement may cause Prevalent irreparable damage for which other remedies may be inadequate, and Licensee agrees not to oppose any request to a court of competent jurisdiction by Prevalent for injunctive or other equitable relief seeking to restrain such use or disclosure. Licensee waives any right it may have to require Prevalent post a bond or other form of security as a precondition to any such injunctive relief.
Governing Law, Jurisdiction and Costs
This Agreement is governed by the laws of New Jersey, without regard to New Jersey’s conflict or choice of law provisions. All disputes arising under this Agreement must be heard in State or Federal courts located in the State of New Jersey.
Headings of sections in this Agreement are inserted for convenience only, and are in no way intended to limit or define the scope and/or interpretation of this Agreement.
If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.