SOFTWARE LICENSE AGREEMENT
Effective Date: 8 September 2023
This software license agreement is effective as of the “Effective Date” and is by and between QOC Innovations LLC, having its principal place of business at N4137 Hwy 146, Fall River, Wisconsin 53932 ("Licensor") and Licensee. Licensor and Licensee agree as follows. This Agreement replaces and supersedes any prior agreements having effective dates prior to the Effective Date identified above. Each of Licensor and Licensee are individually referred to as a “Party” and collectively the “Parties.”
1.1. “Agreement” means this software license agreement and its associated Invoice(s).
1.2. “Affiliate” means any present or future (1) entity directly or indirectly controlling, controlled by, or under common control with the applicable Party, or (2) Subsidiary of the applicable Party, or (3) joint venture of the applicable Party, or (4) partnership of the applicable Party; provided, however, that for purposes of this Agreement, a former Affiliate shall be deemed an Affiliate for a period of twelve (12) months following the date on which the former Affiliate ceases to be an Affiliate, and provided further that former business operations of Licensee or an Affiliate shall be deemed an Affiliate for a period of twelve (12) months following the date on which those former business operations were sold by the applicable Party or the Affiliate of the applicable Party.
1.3. “Device” means the Node unit and any accompanying sensor(s) that Licensee has purchased from Licensor and identified on the invoice provided from Licensor.
1.4. “Documentation” means the user documentation for the Software that is provided to Licensee by Licensor.
1.5. “Fees” means the amounts specified in the Invoice associated with licensing the Software provided by Licensor.
1.6. “Licensee” shall mean the entity identified on the Invoice.
1.7. “Software” means the computer program(s) in machine-readable, object code form installed on the Device as delivered from Licensor to Licensee.
2. Software License
Subject to the terms and conditions contained herein, Licensor hereby grants to Licensee during the Term a nonexclusive, non-transferable, non-sublicensable, limited license, to use only in connection with the Device, during the term, one (1) copy of the Software. For the avoidance of doubt, Licensee shall not use, copy, modify, sublicense, reverse-engineer, or distribute the Software, or authorize others to do so, except as expressly permitted by this Agreement. No implied right or license is granted or conferred by Licensor. All rights not expressly granted to Licensee are reserved by Licensor.
2.2. Third Party Products
Any third-party software or other third-party products included with the Device shall be subject to the separate terms and conditions applicable to the third-party software or other third-party product. These third-party terms and conditions include, without limitation:
3. Fees And Payment
Licensee shall pay the Fees in accordance with the prices and terms set forth in the invoice issued by Licensor in connection with this Agreement. Pre-paid Fees are non-refundable.
Licensee shall be responsible for any applicable sales or use taxes or any value added or similar taxes payable with respect to the licensing of the Software, or arising out of or in connection with this
Agreement, other than taxes levied or imposed based upon Licensor's income. In the event that Licensor pays any such taxes on behalf of Licensee, Licensor shall invoice Licensee for such taxes and Licensee agrees to pay such taxes in accordance with this Agreement.
Failure by Licensee to pay any amounts invoiced under this Agreement in full in accordance with this Agreement shall make Licensee liable to pay Licensor interest at the rate of one and a half percent (1.5%) per month on the remaining amount due, or at the highest amount permitted by applicable law such interest to accrue on a daily basis after as well as before any judgment relating to collection of the amount due. Licensee shall indemnify Licensor for all collection expenses, including reasonable attorneys’ fees and court costs, incurred by Licensor in collecting any sums owed by Licensee to Licensor.
4. Proprietary Rights
Licensee acknowledges and agrees that, as between Licensor and Licensee, the copyright, patent, trade secret, and all other intellectual property rights of whatever nature in the Software (including any modifications to the Software made by Licensee) and Documentation are and shall remain the property of Licensor, and nothing in this Agreement shall be construed as transferring any aspects of such rights to Licensee or any third party.
5. New Releases
5.1. During the Term of this Agreement, Licensee shall be entitled to receive each new Release at no additional fee when and as it is made available to other licensees generally, accompanied by such documentation and instructions concerning such Release as Licensor reasonably deems necessary for the installation and use of such Release.
5.2. For purposes of this Agreement, a “Release” means a new version of the Software or an addition to the Software issued by Licensor from time to time to its licensees generally.
6.1. "Confidential Information" shall mean the Software, Documentation, and terms and conditions of this Agreement. Confidential Information shall not include such information and material as may be established to be available in the public domain through no breach of the confidentiality obligations of this section 6 of the Agreement. Licensee acknowledges the confidential and proprietary nature of the Confidential Information and agrees that it and its Affiliates shall not reveal or disclose any Confidential Information for any purpose to any other person, firm, corporation or other entity, other than Licensee's employees, agents, or subcontractors with a need to know such Confidential Information to perform responsibilities consistent with Licensee's rights under this Agreement. Licensee shall safeguard and protect the Confidential Information from theft, piracy, or unauthorized access in a manner at least consistent with the protections Licensee uses to protect its own most confidential information. Licensee shall inform its employees, agents, and subcontractors of their obligations under this Agreement, and shall take such steps as may be reasonable in the circumstances, or as may be reasonably requested by Licensor, to prevent any unauthorized disclosure, copying or use of the Confidential Information. Licensee shall remain liable for any breach by its employees, agents, or subcontractors of this Agreement, including this Section 6. Licensee acknowledges and agrees that in the event of the Licensee's breach of this Agreement, Licensor will suffer irreparable injuries not compensated by money damages and therefore shall not have an adequate remedy at law. Accordingly, Licensor shall be entitled to a preliminary and final injunction without the necessity of posting any bond or undertaking in connection therewith to prevent any further breach of these confidentiality obligations or further unauthorized use of Confidential Information. This remedy is separate and apart from any other remedy Licensor may have.
6.2. Licensee shall notify Licensor immediately upon discovery of any prohibited use or disclosure of the Confidential Information, or any other breach of these confidentiality obligations by Licensee and shall fully cooperate with Licensor to help Licensor regain possession of the Confidential Information and prevent the further prohibited use or disclosure of the Confidential Information.
6.3. Regarding the Confidential Information that is the subject of this Agreement, as defined in 6.1, above, to the extent that any other confidentiality agreement made between the Licensor and the Licensee is inconsistent with this section 6 of this Agreement, this section 6 of this Agreement shall supersede any other confidentiality agreement made between the Licensor and the Licensee.
7. Warranty Disclaimer
LICENSOR IS PROVIDING THE SOFTWARE TO LICENSEE "AS IS" WITHOUT ANY WARRANTY OF ANY KIND. LICENSOR HEREBY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THE WARRANTY FOR ANY THIRD-PARTY SOFTWARE PROVIDED IN CONNECTION WITH THE SOFTWARE LICENSED HEREUNDER SHALL BE AS STATED IN THE TERMS AND CONDITIONS RELATED TO THE USE OF SUCH THIRD-PARTY SOFTWARE. LICENSOR MAKES NO SEPARATE WARRANTY CONCERNING SUCH THIRD-PARTY SOFTWARE.
LICENSEE REPRESENTS AND WARRANTS THAT IT HAS CONFIRMED THAT THE SOFTWARE IS SUITABLE FOR LICENSEE’S INTENDED AND ACTUAL USE OF THE SOFTWARE AND DEVICE. LICENSEE FURTHER REPRESENTS AND WARRANTS THAT IT HAS AND WILL ENSURE THAT THE SOFTWARE AND DEVICE ARE USED IN ACCORDANCE WITH ALL APPLICABLE LAWS, RULES, AND REGULATIONS.
LICENSEE ACKNOLWEDLGES AND AGREES THAT THE SOFTWARE IS NOT DESIGNED NOR INTENDED TO DUPLICATE OR REPLACE ANY SAFETY DEVICES, SAFETY MECHANISMS, OR SAFETY FEATURES THAT MAY BE PRESENT ON EQUIPMENT OR OTHER DEVICES THAT COMMUNICATE, DIRECTLY OR INDIRECTLY, WITH THE SOFTWARE. LICENSEE FURTHER ACKNOWLEDGES THAT THE SOFTWARE MAY BE USED IN CONNECTION WITH MACHINE AUTOMATION, WHICH HAS THE POTENTIAL TO CAUSE SERIOUS INJURY OR DEATH. LICENSEE REMAINS SOLELY RESPONSIBLE FOR ENSURING THAT SUCH SAFETY DEVICES, SAFETY MECHANISMS, OR SAFETY FEATURES REMAIN FULLY OPERABLE.
Licensee, on behalf of itself, its employees and its agents, shall indemnify, defend, and hold harmless (including payment of reasonable attorney’s fees) Licensor against any claim brought against Licensee to the extent that it is: (i) based on a claim regarding Licensee's unauthorized use of the Software (ii) based on a claim relating to Licensee’s usage of the Software; or (iii) otherwise related to Licensee’s action or inaction in connection with this Agreement.
9. Limitation Of Liability & Force Majeure
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR AND ITS AFFILIATES WILL NOT BE LIABLE TO LICENSEE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY AND ANY OTHER PECUNIARY OR OTHER LOSS OR INABILITY TO USE THE SOFTWARE, EVEN IF THE POSSIBILITY OF SUCH DAMAGES IS KNOWN TO LICENSEE OR LICENSOR. IN NO EVENT WILL LICENSOR’S TOTAL LIABILITY TO LICENSEE FOR ANY CAUSE EXCEED THE GREATER OF (i) THE MINIMUM AMOUNT PERMITTED BY APPLICABLE LAW OR (ii) THE AMOUNT LICENSEE PAID TO LICENSOR FOR FEES AS DEFINED IN SECTION 1.5 OF THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE,
STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND OF OTHER APPLICABLE LAWS. THE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES SET FORTH IN THIS AGREEMENT. The limitation of liability set forth in this section 9 shall not apply to liability resulting from (i) Licensor’s gross negligence or willful misconduct or (ii) death or bodily injury resulting from Licensor’s acts or omissions in jurisdictions where liability cannot be waived for death or bodily injury under the circumstances of this Agreement.
9.2. Force Majeure
Neither party shall be under any liability for any loss or for any failure to perform any obligation hereunder due to causes beyond its control including without limitation industrial disputes of whatever
nature, power loss, telecommunications failure, pandemics, acts of God, or any other cause beyond its reasonable control.
10. Term And Termination
This Agreement and the license granted herein shall remain in effect for the “Term” specified in the applicable invoice unless terminated under Sections 10.2 or 10.3 herein. For the avoidance of doubt, notwithstanding Section 10.2 and 10.3, and any notice period specified in 10.2 and 10.3, below, the Term shall immediately expire, thereby terminating this Agreement and the license granted herein, without prejudice to any other remedy Licensor may have, immediately without further obligation to Licensee, in the event that Licensee does not pay the Fees as specified in the invoice.
Licensor may terminate this Agreement and the license granted herein, without prejudice to any other remedy Licensor may have, immediately without further obligation to Licensee, in the event of (1) any breach by Licensee of Sections 2 or 6 of this Agreement which cannot be remedied within twenty-four (24) hours of Licensor's notice to Licensee of the breach and Licensor's intent to terminate the Agreement; (2) any material breach of this Agreement by Licensee that has not been cured within thirty (30) days after Licensor provides written notice of the material breach to the Licensee; or (3) Licensee's making an assignment for the benefit of its creditors, the filing under any voluntary bankruptcy or insolvency law, under the reorganization or arrangement provisions of the United States Bankruptcy Code, or under the provisions of any law of like import in connection with Licensee, or the appointment of a trustee or receiver for Licensee or its property.
Licensee may terminate this Agreement, without prejudice to any other remedy Licensee may have, in the event of any material breach of this Agreement by Licensor that has not been cured within thirty (30) days after Licensee provides written notice of the material breach to the Licensee. Licensee may further terminate this Agreement, and the licenses granted herein, by providing Licensor with thirty (30) days advance written notice of such termination of the Agreement by Licensee. Termination by either Licensor or Licensee shall not relieve Licensee's obligation to pay all amounts which are due and payable or which Licensee has agreed to pay.
10.4. Cessation Of Use
Upon termination or expiration of this Agreement or the Term, Licensee shall cease using the Software and Documentation and promptly return all copies of the Software, Documentation, and all other Confidential Information in its possession or control. Licensee shall delete all copies of such materials residing in, on, or off-line computer memory and destroy all copies of such materials which also incorporate Licensee's Confidential Information. Licensor shall be entitled to enter the Location(s) to repossess and remove the Software, Documentation, and any other Confidential Information. Licensee shall, within five (5) days from the effective date of the termination, certify in writing by an officer or director of the party that all copies of the Software and Documentation have been returned, deleted or destroyed.
Upon Licensor’s written request, not more frequently than annually, Licensee shall furnish Licensor with a signed certification (a) verifying that the Software is being used pursuant to the provisions of this Agreement and (b) listing the locations and models of all workstations or servers, and serial numbers or MAC identifications, of all Devices on which the Software runs. Licensor, not more frequently than annually and at its expense, may audit Licensee’s compliance with the requirements of this Agreement. Any such audit shall be conducted during regular business hours at the facilities of Licensee and shall not unreasonably interfere with Licensee’s business activities. If an audit reveals that Licensee has used the Software on more Devices than the number licensed under the applicable Invoice(s), Licensee shall be invoiced for such additional Devices at Licensor’s then-current list prices for the additional Devices, plus twenty-five percent (25%). If the fees for the additional Devices exceed five percent (5%) of the fees previously paid by Licensee to Licensor, then Licensee shall also pay Licensor’s reasonable costs of conducting the audit.
The headings used in this Agreement are for convenience only and are not intended to be used as an aid to interpretation.
If any part of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected.
12.3. Updating Terms & Conditions. The terms and conditions of this Agreement can be updated at any time upon Licensor making updated terms and conditions available online or otherwise proving the updated terms and conditions to Licensee. Licensor will provide notice to Licensee when these terms and conditions have been updated.
This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Licensee may not assign its rights or obligations under this Agreement without the prior written consent of Licensor.
12.5. Relationship Of Parties
Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, agency, or employment relationship between the Parties hereto, nor shall either Party have the right, power, or authority to act on behalf of the other Party hereto.
12.6. No Waiver
Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy.
12.7. Wisconsin Law
This Agreement shall be deemed to have been executed in the State of Wisconsin and will be governed by and construed in accordance with the laws of the State of Wisconsin. All disputes arising under or otherwise related to this Agreement shall be resolved in the state and federal courts having jurisdiction in Dane County, Wisconsin. The parties hereby consent to the jurisdiction of the state and federal courts having jurisdiction in Dane County, Wisconsin.
12.8. Attorneys' Fees
Licensee shall be responsible for Licensor's reasonable attorneys' fees associated with the enforcement of the terms of this Agreement or the collection of any amounts due under this Agreement.
Sections 4, 6, 7, 8, 9, and 12 shall survive the termination of this Agreement for any reason.
12.10. Entire Agreement
This Agreement and its Invoice(s) comprise the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior proposals, understandings, and all other agreements, oral and written between the parties relating to the Agreement.
[END OF DOCUMENT]