This Software License Agreement (“Agreement”) is made as of [~ date ~] (“Effective Date”) by iReportSource, Inc. (“iReportSource”), an Ohio corporation, having its principal office at 112 W Pike St, Covington, KY 41011, and [~ Customer ~] (“Customer”), a [~ state ~] [~ entity form ~], having its principal office at [~ Customer address ~]. iReportSource and Customer, intending to be legally bound, agree to the terms and conditions set forth in this Agreement.
2.1 License Grant. Subject to Customer’s compliance with the terms of this Agreement, and in consideration of Customer’s payment of the applicable license fees, iReportSource hereby grants Customer a personal, non-exclusive, and non-transferable license to download, install, and use the iReportSource accident and incident reporting and analytics software identified on the one or more SLA Schedules executed as part of this Agreement (“SLA Schedule”), including the related documentation, (collectively, “Software”) on equipment owned or leased by Customer and used as part of Customer’s accident and incident management system. This license is subject to any applicable use, user, and quantity limitations specified on the SLA Schedule. This license shall terminate upon the termination of this Agreement.
2.2 Rights Retained. Subject only to the licenses expressly granted under this Agreement, all right, title, and interest in and to the Software, including all associated intellectual property rights, are and shall remain with iReportSource and iReportSource’s licensors.
2.3 Restrictions. Customer shall not make and shall not permit anyone else to make any copies of the Software, except as specifically authorized by this Agreement. All such copies must include all proprietary rights notices contained in the Software. Customer has no right to grant sublicenses or otherwise transfer any granted right, except to the extent this entire Agreement may be transferred pursuant to Paragraph 10.2 below. Customer shall not directly or indirectly use the Software to process the work of any third party or for any personal uses. Customer shall not take or refrain from taking, directly or indirectly, any action that may in any way lead to the unauthorized dissemination, reproduction, access, or use of the Software. Customer shall not export the Software, or any direct product thereof, directly or indirectly, in violation of the export laws and regulations of the United States of America. The obligations under the foregoing export restriction shall survive termination of this Agreement.
3.1 Implementation and Training Services. In consideration of Customer’s payment of the applicable implementation fee, iReportSource will provide implementation services to set up the Software and training services on the use of the Software through webinars and other training aids.
3.2 Support and Maintenance Services. In consideration of Customer’s payment of the applicable license fees, iReportSource will provide support and maintenance services to Customer, including, as deemed appropriate by iReportSource, Software updates and technical assistance during iReportSource’s normal business hours. Technical assistance may be provided via telephone or e-mail, at iReportSource’s option.
3.3 Consulting Services. In consideration of Customer’s payment of the applicable consulting services fees, iReportSource will provide Software customizations and other consulting services to Customer on a time and expenses basis at its then-current standard rates or at a mutually agreed fixed fee as specified on the SLA Schedule. All customizations related to the Software that are provided as part of the consulting services will be deemed part of the Software for purposes of this Agreement.
4.1 Authorized Users. Customer shall be responsible for identifying those users who are authorized by Customer to access Software (“Authorized Users”). The maximum number of permitted Authorized Users is specified on the SLA Schedule. Authorized Users shall be limited to those who need to use the Software in connection with Customer’s incident and accident management system. Customer shall require each Authorized User to safeguard his or her user name and password for accessing the Software and otherwise comply with the provisions of this Agreement. An Authorized User may not disclose his or her user name and password to any other person, including another Authorized User. If Customer determines that another person has gained access to an Authorized User’s user name and password, or that anyone has wrongfully accessed the Software, Customer shall promptly notify iReportSource. Customer is responsible for misuse of the Software by Authorized Users and by unauthorized users who gain access due to Customer’s or any Authorized
4.2 Operations. Customer is responsible for the operational aspects of downloading, installing, and using the Software, including, but not limited to, (a) acquiring, installing, and maintaining computer equipment and computer software programs at its premises compatible with and as necessary to use the Software, (b) obtaining access to the Internet, (c) downloading and installing any necessary plug-ins, (d) determining the accuracy of all data it uploads to and downloads, and (e) adopting reasonable policies, procedures, and quality assurance measures to limit Customer’s exposure with respect to potential losses and damages arising from use, non-use, errors, and omissions of the Software or the results thereof, and system downtime, including, but not limited to, examining and confirming data prior to use, identifying and correcting errors and omissions, preparing and storing backup data, replacing lost or damaged data or media, reconstructing data, and providing network security.
4.3 Cooperation. Customer shall provide iReportSource with such time and attention of Customer personnel and such access to files, information, or other materials, and shall take such site preparation steps as may be necessary or appropriate to enable iReportSource to provide the services under this Agreement.
Fees and Payments
5.1 Fees. Customer shall pay iReportSource the license fees, implementation fees, services fees, and any other fees specified on the SLA Schedule. Unless otherwise specified in the SLA Schedule, after the first year of this Agreement, iReportSource may increase fees upon 90 days’ prior written notice to Customer.
5.2 Expenses. Customer shall pay all reasonable out-of-pocket expenses incurred by iReportSource on Customer’s behalf. Expenses are due as incurred.
5.3 Taxes. Customer shall pay when due or, if necessary, reimburse iReportSource for, all sales, use, property, excise, and other similar taxes, including penalties and interest arising from Customer’s failure to pay such taxes timely, resulting from any activities under this Agreement, exclusive of taxes based on iReportSource’s net income or corporate franchise. If Customer has tax exempt status, it shall supply iReportSource with its tax-exempt certificate or number as necessary. Taxes are due as assessed.
5.4 Invoices and Payment. Customer shall pay all amounts due under this Agreement, except those disputed in good faith, as specified in the SLA Schedule or, if not so specified, upon receipt of the invoice to the address designated on the invoice. Customer shall pay a monthly service charge of 1½% on all such amounts not paid within 30 days of the invoice date. Customer shall reimburse iReportSource for all reasonable costs of collection of past due amounts, including, but not limited to, attorney fees and collection agency charges.
6.1 Right. iReportSource warrants that it has the right to grant the license and other rights granted to Customer under this Agreement. Customer warrants that it has the right to grant iReportSource the right to use the text, graphics, images, and other data that it provides to iReportSource for any Software customizations or other services under this Agreement.
6.2 Performance. iReportSource warrants that, for 90 days from the date of the delivery of the Software to Customer, the Software, when properly installed, operated by qualified personnel with a proper equipment configuration and operating environment, and used in accordance with the applicable documentation, will perform in accordance with the applicable documentation. However, due to the nature of computer software programs, iReportSource does not warrant that the operation of the Software will be entirely error free. In addition, iReportSource warrants that the services it provides under this Agreement will be of professional quality conforming to the applicable generally accepted industry standards and will be performed in a good and timely manner and in compliance with the requirements of this Agreement.
6.3 Remedy. As iReportSource’s sole obligation and Customer’s exclusive remedy, in the event of any breach of the warranties in Paragraph 6.2 above, iReportSource shall make reasonable efforts to repair or replace the Software or re-perform the services, as applicable, so that it or they, as applicable, conform as warranted. Customer shall pay iReportSource on a time and expenses basis at iReportSource’s then-current standard rates for any warranty services provided when the warranty does not apply. The warranty does not apply in the case of any nonconformity caused by (a) a modification not approved by iReportSource, (b) Customer’s misuse of or damage to the Software, (c) third party supplied software or equipment, or (d) Customer’s failure to meet its obligations under Section 4 above.
6.4 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, IREPORTSOURCE MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING ANY MATTER WHATSOEVER. IREPORTSOURCE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF TITLE, ACCURACY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY ARISING FROM A COURSE OF DEALING OR PERFORMANCE OR FROM USAGE OF TRADE.
Indemnities and Liabilities
7.1 Indemnification by Customer. Customer shall indemnify and hold iReportSource harmless from any claim that Customer did not have the right to grant iReportSource the right to use the text, graphics, images, and other data that it provides to iReportSource for any Software customizations or other services under this Agreement. Customer shall indemnify and hold iReportSource harmless from any claims resulting from Customer’s and the Authorized Users’ use of the Software, except to the extent such claims arise from iReportSource’s gross negligence or willful misconduct or from infringement claims covered under Paragraph 7.2 below.
7.2 iReportSource’s Infringement Indemnification. If Customer receives a claim that the use of the Software infringes a United States of America patent, copyright, trade secret, or other intellectual property right, Customer will promptly notify iReportSource in writing, and will give iReportSource all necessary information and assistance and the exclusive authority to evaluate, defend, and settle such claim. Provided such timely notice, assistance, and authority have been given by Customer, iReportSource (or its licensors) will defend, at its own expense, such claim, and will indemnify and hold Customer harmless from all damages and expenses, including court costs and reasonable attorney fees, incurred or awarded as a result of the claim. The foregoing indemnity will not apply to infringement claims based on customizations or programming made to the specification or design of Customer, Customer’s modifications, or Customer’s use of the Software in combination with anything not intended by iReportSource to be used with the Software to the extent caused by such combination. The limitation set forth in Paragraph 7.3 below shall not apply to infringement claims under this Paragraph 7.2. This Paragraph 7.2 states iReportSource’s entire obligation and liability with respect to any infringement claim.
7.3 Limitation of Liability. The total liability of iReportSource for all claims, whether in contract, tort, or otherwise, arising out of, connected with, or resulting from the Software or services under this Agreement shall not exceed the amounts paid by Customer to iReportSource under this Agreement during the 12 months immediately preceding the claim.
7.4 Exclusion of Liability. IREPORTSOURCE SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY ANY ERRORS OR OMISSIONS IN ANY DATA, CONTENT, OR OTHER INFORMATION PROVIDED THROUGH THE SOFTWARE. IN NO EVENT SHALL IREPORTSOURCE, ITS LICENSORS, SUPPLIERS, OR CONTRACTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, OR LOST SAVINGS, INCURRED BY CUSTOMER OR ANY THIRD PARTY, EVEN IF IREPORTSOURCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.5 Survival. The indemnification obligations and the limitations of liability under this Agreement shall survive the termination of this Agreement.
Proprietary Rights and Confidentiality
8.1 Copyright Protection. Customer acknowledges that the Software, and associated report formats, screen displays, and menu features, and all derivative works, constitute copyrighted works protected by federal and international copyright laws and are owned by iReportSource or its licensors. Customer shall not permit any personnel to remove any proprietary or restrictive notices contained or included in the Software or any other materials provided by iReportSource, and Customer shall not permit any personnel to copy, modify, or create any derivatives of the Software or other materials except as specifically authorized by this Agreement.
8.2 Confidential Information Protection. “Confidential Information” means, whether communicated orally or in writing or obtained through observation or examination of a party’s facilities, procedures, or activities, (i) as to iReportSource information, all competitively sensitive, secret, or otherwise confidential business, financial, marketing, or technical information, and other confidential information belonging to iReportSource or its suppliers, including, but not limited to, the Software (including any source code, development level documentation, and similar technical information pertaining to the Software), and the terms of this Agreement; and (ii) as to Customer information, any competitively sensitive, secret, or otherwise confidential business, financial, marketing, or technical information, and other confidential information belonging to Customer. Notwithstanding the foregoing, Confidential Information does not include information (a) rightfully known by the recipient at the time of its initial disclosure; (b) rightfully disclosed to the recipient without obligation of confidentiality by a third party; (c) in the public domain or that enters the public domain other than by the unauthorized acts of any person; or (d) independently developed by the recipient without use of the discloser’s Confidential Information. iReportSource and Customer shall each preserve in strictest confidence all of the other’s Confidential Information and shall at all times protect the other’s Confidential Information through the highest commercially reasonable standard of care. Neither iReportSource nor Customer shall use or disclose to any person the other’s Confidential Information, except upon the other’s written authorization, and except for internal purposes in accordance with this Agreement. Any disclosure of the other’s Confidential Information to Customer’s agents, employees, or contractors by Customer or to iReportSource’s agents, employees, or contractors by iReportSource shall be made only in the normal course of business, on a need-to-know basis within the scope and purpose of this Agreement, and under written agreements requiring such agents, employees, and contractors to treat all Confidential Information as strictly confidential as required by this Agreement. Neither iReportSource nor Customer shall make copies of any materials containing the other’s Confidential Information, except as authorized by this Agreement or otherwise in writing by the other. Either party may disclose the other party’s Confidential Information when such party is required by law to do so, provided such party takes all reasonable steps to limit the disclosure of the Confidential Information to the maximum level allowed, and further provided the other party is given a reasonable opportunity to contest the disclosure and obtain a protective order.
8.3 Further Restrictions. Customer shall not decompile or otherwise reverse engineer or decode the Software. Customer shall not disclose the results of any benchmark tests run on the Software, without the prior written approval of iReportSource.
8.4 Ownership. The Software and all copies, versions, and derivative works of the Software made by or on behalf of Customer are and shall remain the sole property of iReportSource or its licensors. Customer shall include the Software’s proprietary and restrictive notices on all copies, in whole or in part and in any form, made by Customer. Any modifications to the Software, including all associated intellectual property rights, made or provided by iReportSource pursuant to this Agreement, whether alone or with any contribution from Customer, shall be owned exclusively by iReportSource or its licensors. To the extent that Customer may acquire any right or interest in the modifications by operation of law, Customer irrevocably assigns all such right and interest exclusively to iReportSource. Customer shall take any action and execute any documents reasonably necessary and sufficient to give effect to the provisions of this Paragraph 8.4.
8.5 Injunctive Relief. Each party acknowledges that a breach of its obligations under this Section 8 may cause irreparable harm to the other party or its licensors for which monetary damages would be inadequate. Each party or its licensors will be entitled to injunctive relief for any such breaches, threatened or actual, in addition to any other remedies that may be available at law or in equity.
8.6 Survival. The obligations under this Section 8 shall survive termination of this Agreement, except, with respect to non-trade secret confidential information, to the extent that applicable law mandates survivability for a limited duration, in which case the obligations shall survive for three years following termination of this Agreement.
Terms and Termination
9.1 Term. This Agreement shall commence on the Effective Date and shall continue for the initial term specified on the SLA Schedule, unless terminated earlier in accordance with this Section 8. Thereafter, this Agreement shall automatically renew for successive renewal terms of one year each, unless terminated earlier in accordance with this Section 8.
9.2 Discretionary Termination. Either party may terminate this Agreement as of the end of any term upon 60 days’ prior written notice to the other party.
9.3 Termination for Adverse Status. Either party may terminate this Agreement upon 30 days’ prior written notice to the other party, if the other party ceases to carry on operations as contemplated by this Agreement, makes an assignment for the benefit of creditors, is adjudged bankrupt or insolvent, has a receiver appointed over its assets, or becomes subject to any similar action in consequence of debt.
9.4 Termination for Default. Failure by either party to comply with any material term or condition of this Agreement shall constitute default. The non-defaulting party shall be entitled to give written notice to the defaulting party requiring it to cure the default. The notice shall include a detailed description of the act or omission that constitutes default. If the defaulting party has not cured the default within 30 days after receipt of the notice or, if the default is not curable within such 30-day period and the defaulting party has not taken commercially reasonable measures within such 30-day period to begin curing the default, the non-defaulting party may terminate this Agreement by giving written notice to take effect upon receipt. If the default, by its nature, cannot be effectively cured, the non-defaulting party may terminate this Agreement immediately upon written notice to the defaulting party. The right to terminate this Agreement is in addition to any other rights and remedies provided under this Agreement or otherwise under law.
9.5 Effect of Termination. Upon termination of this Agreement, Customer shall cease all use of the Software. No termination of this Agreement shall release Customer from any obligation to pay iReportSource any amount that has accrued or becomes payable at or prior to the date of termination. Customer shall not be entitled to any refund of any amounts paid to iReportSource as a result of a termination based on Customer’s default.
10.1 Non-solicitation. Each party shall refrain from soliciting for employment or employing, directly or indirectly, without the written consent of the other party, any employee or contractor of the other until 12 months have elapsed following termination of this Agreement, or until 12 months have elapsed following termination of the employment of the employee or contractor, whichever occurs first.
10.2 Assignment. Neither party may assign or otherwise transfer this Agreement or any rights or obligations under this Agreement to any third party without the prior written consent of the other party, except that this Agreement may be transferred to a successor to all or substantially all of the assets and business of the transferring party. Consent shall not be unreasonably withheld. Subject to the restriction on transfer set forth in this Paragraph 10.2, this Agreement shall be binding upon and shall inure to the benefit of the parties’ successors and assigns.
10.3 Excused Performance. Neither party shall be liable for any delay in or failure of performance (excluding failure to make payments required by this Agreement) resulting from any cause or condition beyond its reasonable control, whether foreseeable or not.
10.4 Waiver. The failure of either party to act upon any right, remedy, or breach of this Agreement shall not constitute a waiver of that or any other right, remedy, or breach. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
10.5 Notices. Unless provided otherwise in this Agreement, any notice required or permitted under this Agreement shall be personally delivered, or sent by e-mail, telefax, courier, express or overnight delivery service, or by certified mail, postage prepaid, return receipt requested, to the address set forth in Section 1 above, or to such other address as shall be advised by either party to the other in writing. Notices shall be effective as of the date of receipt.
10.6 Third-Party Beneficiaries. iReportSource’s licensors shall be third-party beneficiaries under this Agreement for the limited purpose of protecting and enforcing intellectual property rights.
10.7 Dispute Resolution. Any claim or controversy arising out of or relating to this Agreement, including any anticipatory breach or disagreement as to interpretation of this Agreement, that is not resolved by the parties themselves or through mediation, shall be settled by binding arbitration in a location acceptable to both parties, administered in accordance with the American Arbitration Association’s Commercial Arbitration Rules, including its Optional Rules for Emergency Measures of Protection. The arbitrator(s) shall decide all discovery issues. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Neither party nor the arbitrator(s) may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties, except to the extent necessary in connection with a court action to enforce an arbitration award. All fees and expenses of the arbitration shall be borne by the parties equally. However, each party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of proofs, except that the prevailing party shall be entitled to an award of reasonable attorney’s fees.
10.8 Governing Law. This Agreement and any claim arising out of this Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, excluding its conflict of laws principles.
10.9 Provisions Severable. The provisions of this Agreement are severable. If any provisions are held to be invalid, unenforceable, or void, all other provisions shall remain valid.
10.10 Entire Agreement. This Agreement, including each SLA Schedule, and all present and future incorporated attachments, schedules, appendices, addenda, and written amendments, constitutes the entire agreement and understanding between the parties relating to the object and scope of this Agreement. Any representation, statement, or warranty not expressly contained in this Agreement shall not be enforceable by the parties. This Agreement may not be amended except by a writing that specifically references this Agreement and is signed by authorized representatives of the parties.