Software License Agreement (“SLA”) — USTPAY FOR Dynamics 365-Business central
This USTPAY Software License Agreement (the “Agreement”) is made effective as of the date of installation in the Client’s production environment of Microsoft Dynamics 365 Business Central (the “Effective Date”), by and between U.S. transactions Corp., a Virginia corporation (herein “COMPANY”), and the CLIENT (the “Client”; COMPANY and Client are hereinafter referred to collectively as the “Parties”).
WHEREAS, COMPANY is engaged in the integration of PCI Compliant payment gateways for Microsoft Dynamics 365 Business Central, as well as other ERP systems; and
WHEREAS, Client desires to license certain COMPANY software and software-related services on the terms and conditions hereof;
NOW, THEREFORE, in consideration of the mutual promises and obligations contained in this Agreement, the sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:
1.1 Acceptance. Client’s acknowledgement or deemed acknowledgement after installation of the Software, Features and/or Feature Packs that they conform to the specifications applicable thereto. Client’s retention and use of the Software, Features and/or Feature Packs without objection during the Acceptance Period shall be deemed acceptance thereof.
1.2 Acceptance Period. Ten (10) days following delivery or installation of the Software or any other period agreed be-tween the parties in writing.
1.3 Not Used.
1.4 Custom Software. Software or a Feature licensed to the Client (or any End User) that is not generally available to other clients or end users and that has been specifically developed by COMPANY hereunder.
1.5 Documentation. Any written or electronic materials containing information intended for the Client or End User that explains the operation, installation, maintenance or use of the Software or any Features, including but not limited to, specifications, Software release notes, configuration guides, user guides, reference data and training materials.
1.6 End User. Any person, organization or entity which de-rives or receives the use of, access to or the benefit of the Software or any Features.
1.7 Feature. A distinguishable software-based function included in the Software. Various Features may be grouped together in Feature Packs.
1.8 Feature Packs. A collection of specific Features for pu-poses of pricing, presentation and/or ongoing maintenance. The Features included in a Feature Pack may be changed at any time at the sole discretion of COMPANY, except that Features cannot be removed from or altered in a Feature Pack previously purchased by Client if such removal or alteration would adversely impact the performance of the Software or Features to Client.
1.9 New Software Release. A superseding release of the then-current release of the Software which adds to, improves or further enhances the Features thereof and involves extensive changes to the then-current release of the Software. A New Software Release may include new Features which are not activated nor made available to a client or end user un-less and until a new or upgraded Feature or Feature Pack is licensed. A New Software Release may also correct Soft-ware anomalies or “bugs” in earlier Software
1.10 Software. All or any part of the computer programs, tools and applications (including Documentation) developed, li-censed or provided by COMPANY to Client hereunder, including but not limited to the software known as USTPAY™ in modular component, or executable code versions only. The Software is solely for Client’s internal business use on the terms and conditions hereof. The term “Software” includes all Features integrated into or provided with the Software, “New Software Releases” and “Soft-ware Patches” (as defined herein) made available to Client hereunder, and any and all updates or upgrades thereto provided to Client.
1.11 Software Patch. Software which corrects or removes a reproducible anomaly or “bug.” Software patches do not constitute a New Software Release, but may be included in a New Software Release, Feature or Feature Pack.
1.12 Statement of Work (“SOW”). The schedule of Software and support services ordered by Client from COMPANY under this Agreement shall be in a separate Statement of Work The SOW may be amended at any time and from time to time with agreement by the Client, hereunder, with additional or other Software, Features, Feature Packs and/or support and maintenance services included thereon. Each SOW shall automatically be subject to this Agreement and apply to all work between the Parties thereafter.
1.13 Third Party Software. Any software program, tool or application acquired and installed by a third party or developed and installed by the Client or End User other than COMPANY Software.
2. Duties and Responsibilities
2.1 Hardware. Unless otherwise agreed upon by the Parties, Client is solely responsible for the selection and acquisition of all hardware (or cloud based services) required for use of the Software and for ensuring its compatibility with the Software. All shipping costs, if applicable, to be borne solely by Client.
2.2 Software License. Client shall possess, handle and use the Software, Features and Feature Packs provided to Client hereunder solely on the terms and conditions of this Agreement, including the terms of the Software License set forth in Section 4 which conforms to the Software, versions, Features and Feature Packs ordered by Client in any SOW hereunder.
2.3 Installation. COMPANY (or 3rd party Independent Soft-ware Vendor – ISV – engaged by COMPANY and/or Client) shall install the Software and activate those Features described in any SOW.
2.4 Professional Services. COMPANY shall provide those professional services described in any SOW hereunder or in any separate agreement between the Parties, which services shall be governed solely by such separate agreement.
3. Invoices and Payments
3.1 Advance Payments. If any Advance Payment is set forth in a SOW or otherwise agreed between the Parties in writing, Client shall pay such amount as constitutes the Ad-vance Payment upon execution of this Agreement or prior to any work being performed by COMPANY hereunder.
3.2 Invoices. COMPANY will invoice Client for the Software upon execution of this agreement, or as otherwise stipulated in a separately agreed upon Statement of Work (SOW). Any and all other invoices for Software, Features, Feature Packs or Maintenance Services shall be invoiced on such schedule as set forth in any SOW or as otherwise agreed between the Parties in writing.
3.3 Interest. Unless otherwise specified in a SOW, all invoices shall be due immediately upon receipt by Client. If COMPANY has not received full payment of the amount specified in the invoice after thirty (30) days from the date of the invoice, interest shall automatically begin to accrue on the unpaid amount at the rate of 1.5% per month and shall continue to accrue on any unpaid amounts until such amounts are paid in full.
3.4 Late Fees. In addition to interest, Client shall be assessed a late fee of five percent (5%) of any unpaid amounts that are not received when due (“Late Fee”).
3.5 Payment. Payments should be made payable to and should be received by COMPANY at the address set forth in the introductory paragraph above. All payments received from Client shall be credited first against accrued Late Fees and Interest and then against unpaid fees for Software and services.
4. Software Licenses
4.1 Client Software License. Subject to the terms and conditions of this Agreement, COMPANY hereby licenses to the Client (the “Software License” or “License”), on a non-exclusive, non-transferable basis, solely for Client’s own business purposes, the Software, Features and Feature Packs identified on any approved SOW, in accordance with the terms of the specific Software License set forth on such SOW. If any conflict or inconsistency arises or exists be-tween this Agreement and a SOW, the SOW shall govern solely for the specific products, tasks, deliverables or period in the SOW giving rise to such conflict or inconsistency. All rights to the Software not granted herein are expressly reserved and retained by COMPANY. Notwithstanding any other provision hereof, any uncured material breach of this Agreement or a Software License by Client shall terminate all Software Licenses held by Client.
4.2 Not Used.
4.3 Not Used.
4.4 Licensed Features and Feature Packs. The specific Software Features licensed to Client hereunder shall be limited to those Features and Feature Packs incorporated into or provided with the Software acquired by Client hereunder or specifically identified on any SOW covered by this Agreement. It is expressly understood that Client must separately license new or additional Features that may be developed and included in future Software Releases, but Client shall not be required to separately license any Features or Feature Packs made available or incorporated into any New Software Releases made available to Client under a Support and Maintenance Agreement.
4.5 Use Restrictions. Client shall not (i) transfer, assign or sublicense the Software, Features, Feature Packs or Documentation, or its license rights thereto, to any other person, organization or entity, provided, however, that Client may provide access and use thereof to its users consistent with the terms hereof; (ii) use the Software, Features or Feature Packs on any unauthorized equipment or for any unauthorized purpose; (iii) attempt to create any derivative version of the Software, Features, Feature Packs or Documentation; or (iv) decompile, decrypt, reverse engineer, disassemble or otherwise reduce the Software, Features, Feature Packs or Documentation to human-readable form.
4.6 Installation Restrictions. Client may install, or have installed, and use one (1) copy of such Software on a current version of Dynamics 365 Business Central. Client may not install additional copies of the Software on any other Dynamics 365 Business Central client.
4.7 No Trademark Licenses. This Agreement is not intended to and shall not be deemed to grant any right or license to any of COMPANY’ trademarks, trade-dress, service marks or trade names, including but not limited to, the name “USTPAY™.” COMPANY shall at all times remain the exclusive owner of all such marks and names and any and all rights and benefits created by Client’s use thereof.
4.8 Compliance with Laws. Client hereby acknowledges that all of COMPANY’ Software is of U.S. origin. Client shall comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end user and destination restrictions issued by U.S. and other governments.
4.9 Compliance with License. Client hereby grants COMPANY (or 3rd party ISV engaged by the COMPANY) the right to periodically audit and review Client’s use of the Software, via remote connection or on-site inspection, to ensure compliance with the terms of the Software License and this Agreement. Client shall at all times cooperate in good faith with such reviews and shall promptly remedy any acts of non-compliance with such License and/or Agreement as a material term hereof.
5. Warranties, Disclaimers and Exclusions
5.1 EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 5 AND 6 OF THIS AGREEMENT, THE SOFTWARE (INCLUDING ALL FEATURES AND FEATURE PACKS) AND ALL OF COMPANY’ SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, INFORMATIONAL CONTENT AND SYSTEM INTEGRATION. ALL COMPANY WARRANTIES ARE SOLELY TO AND FOR THE BENEFIT OF CLIENT AND FOR NO OTHER PERSON, ENTITY, END USER OR THIRD PARTY.
5.2 Software Warranty. Except as set forth in Sections 5.4 and 5.6, for a period of ninety (90) days from the date of Acceptance, COMPANY warrants and represents that the Software licensed under this Agreement shall substantially conform to the specifications set forth in the SOW and any Documentation under normal use and service in accordance with Company-approved operating environment (the “Software Warranty” and the “Warranty Period”). In the event the Software does not conform to the Software Warranty within the Warranty Period, upon written notice received by COMPANY during the Warranty Period, COMPANY will replace, repair or provide bug fixes, patches or workarounds, at COMPANY’ option and expense, to bring the Software into compliance with the Software Warranty. COMPANY DOES NOT WARRANT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, AND CLIENT ASSUMES ALL RISK OF USE OF THE SOFTWARE.
5.3 No Hardware Warranty. Client is solely responsible for the selection, acquisition and operation of any and all hardware (or cloud-based service) used with the Software. COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, AND ANY AND ALL OTHER OBLIGATIONS, REGARDING SUCH HARDWARE (OR CLOUD-BASED SERVICE), AND CLIENT WILL LOOK SOLELY TO THE HARDWARE MANUFACTURER (OR CLOUD-BASED SERVICE PROVIDER) FOR ANY AND ALL DEFECTS OR DAMAGES RELATED THERETO.
5.4 Software Exclusive Remedy and Exclusion. CLIENT’S SOLE REMEDY UNDER THE SOFTWARE WARRANTY IS LIMITED TO THE REPLACEMENT OR REPAIR, AT COMPANY’ OPTION, OF DEFECTIVE SOFTWARE. NOTWITHSTANDING THE PROVISIONS OF SECTION 5.2 ABOVE, THE SOFTWARE WARRANTY EXCLUDES, AND COMPANY SHALL HAVE NO OBLIGATION TO REMEDY, ANY SOFTWARE DEFECTS CAUSED OR MATERIALLY CONTRIBUTED TO BY (i) ALTERATION, REPAIR OR MODIFICATION OF THE SOFTWARE BY ANY PERSON OR ENTITY OTHER THAN COMPANY WITHOUT COMPANY’ WRITTEN CONSENT; (ii) CLIENT’S IMPROPER STORAGE, MISHANDLING, ABUSE OR MISUSE OF THE SOFTWARE; (iii) CLIENT’S USE OF THE SOFTWARE IN CONJUNCTION WITH EQUIPMENT OTHER THAN AUTHORIZED EQUIPMENT; (iv) USE BY CLIENT OF THIRD PARTY SOFTWARE THAT IS INCOMPATIBLE WITH THE SOFTWARE; AND/OR (v) DAMAGE BY FIRE, EXPLOSION, POWER FAILURE, LOSS OF INTER-CONNECTIVITY OR ANY ACT OF NATURE OR GROSS NEGLIGENCE OF CLIENT, OPERATOR OR END USER.
5.5 On-Site Maintenance. COMPANY shall in no event be obligated to provide any on-site maintenance.
5.6 Voiding of Warranty. THIS SOFTWARE WARRANTY SHALL IMMEDIATELY BECOME VOID AND OF NO EFFECT IF CLIENT INSTALLS THIRD PARTY SOFTWARE WHICH IMPACTS THE FUNCTIONALITY OF USTPAY EXCEPT UPON THE WRITTEN CONSENT OF COMPANY PRIOR TO INSTALLATION OF SUCH THIRD PARTY SOFTWARE AND THEN ONLY IF INSTALLED IN ACCORDANCE WITH ANY CONDITIONS OR RECOMMENDATIONS OF COMPANY. TROUBLESHOOTING AND/OR REPAIRS TO THE SOFTWARE THAT BECOME NECESSARY DUE TO THIRD PARTY SOFTWARE INSTALLED SHALL BE SUBJECT TO COMPANY’ PROFESSIONAL SERVICES FEES.
6. Warranty on Repaired Software. COMPANY warrants that any and all Software repairs or replacements shall substantially conform to the specifications in the SOW or Documentation for such Software under normal use and service for thirty (30) days from such repair or until the end of the original Warranty Period for the repaired or replaced Software, whichever period is longer. Sections 5.1, 5.3, 5.4 and 5.6 are hereby incorporated into this Section 6 by reference.
7.1 Copyright Notices; Trademarks; Logos. Any and all copyright and proprietary rights notices and/or trademarks, trade-dress, service marks and/or logos set forth on or contained within the Software, Documentation or any other work product of COMPANY shall be copied and retained on any and all authorized copies or derivatives thereof. Client shall not itself remove, deface or alter any such notices, nor shall it permit any other person or party to do so.
7.2 Amendments to Documentation. ANY AND ALL AMENDMENTS, DELETIONS, EDITS AND/OR OTH-ER CHANGES TO ANY DOCUMENTATION MADE BY CLIENT ARE MADE AT CLIENT’S RISK. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY CLAIM OR DAMAGES, BY OR TO CLIENT OR ANY THIRD PARTY, FOR THE ACCURACY OR COMPLETENESS OF ANY AMENDMENTS, DELETIONS, EDITS OR OTHER CHANGES MADE TO ANY DOCUMENTATION, AND CLIENT HEREBY INDEMNIFIES AND HOLDS COMPANY HARMLESS FROM ANY AND ALL SUCH CLAIMS, LOSSES AND JUDGMENTS, INCLUDING ATTORNEYS’ FEES.
8. Not Used
9. Subcontracting. COMPANY reserves the right to subcontract part or all of (i) the Software development, installation, or repair, (ii) other professional services, and/or (iii) warranty and maintenance services.
10. Confidential Information
10.1 Proprietary Information. All non-public technical information, programming, code, trade secrets, marketing strategies, data, product development plans, Documentation, Software, Features and other proprietary information (“Confidential Information”) supplied by COMPANY or access to which is permitted to Client under this Agreement shall constitute the Confidential Information of COMPA-NY. Client, except as specifically authorized in writing by COMPANY, shall: (i) not disclose any such Confidential Information to any person or entity, except to its employees on a “need-to-know” basis; (ii) not reproduce any such Confidential Information, in whole or in part; and (iii) not use any such Confidential Information for any other purpose than operation, service and maintenance of the Software and hardware in accordance with the terms of this Agreement.
10.2 Return of Confidential Information. Upon termination of this Agreement, regardless of cause, and upon COMPANY’ request, Client shall immediately return to COMPANY all Confidential Information, Documentation and Software, including all copies thereof in any and all media, and shall delete any and all electronic versions thereof, including, without limitation, all versions from all computers, servers, DVDs, CDs, mobile devices, laptops, hard drives, or memory sticks within Client’s or any End Users’ possession or control.
11. Excusable Delay. COMPANY shall not suffer any liability for non-performance, defective performance or late performance to the extent such failure is due to causes beyond its control and without its fault or negligence, including, but not limited to, acts of God, acts of terrorism, war, civil unrest, acts of government, fire, floods, explosions, the elements, loss of interconnectivity, electricity outages, restrictions, strikes, labor disputes, plant shut-downs, material shortages or delays in transportation or delays of its suppliers or subcontractors forindem like cause.
12.1 Company Indemnification. Except as provided in Sections 12.2 and 13, COMPANY agrees to indemnify and hold Client harmless with respect to any suit, claim, or proceeding brought against Client by a third party alleging that Client’s license or use of the Software (unrelated to any Third Party Software) constitutes an infringement of any patent or copyright or a misuse of proprietary or trade secret information.
12.2 Conditions. The indemnity set forth in Section 12.1 shall not apply to claims arising with respect to the use of the hardware or the Software by Client in a manner or for a purpose not reasonably contemplated by or in material breach of this Agreement or in violation of any law or regulation, including, without limitation, those relating to anti-spamming, privacy and security.
12.3 Entire Obligation. The provisions of this Section 12, including the limitations and conditions hereunder, set forth the entire obligation of COMPANY with respect to any claim of patent infringement, copyright infringement or misuse of proprietary or trade secret information.
12.4 Client Indemnification. Client agrees to indemnify and hold COMPANY harmless with respect to all losses, expenses and damages (including attorneys’ fees) resulting from any suit, claim, or proceeding brought against COMPANY by any third party or End User involving any of the following by Client, any End User or other third party: (i) use or misuse of the Software, (ii) any material breach of this Agreement and/or (iii) any claim of infringement of any patent or copyright or misuse of proprietary or trade secret information of such third party other than as provided in Section 12.1.
13. Limitations of Liability and Damages
13.1 Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOST OR DAMAGED DATA OR SOFTWARE, LOSS OF USE OF THE SOFTWARE, LOSS OF PRIVACY, DOWN-TIME OR COSTS OF SUBSTITUTE SOFTWARE) ARISING FROM CLIENT’S USE OF THE SOFTWARE OR ANY OF COMPANY’ SUPPORT SERVICES.
13.2 Limitation of Damages. EXCEPT AS PROVIDED IN SECTION 12, IN NO EVENT SHALL COMPANY’ LIABILITY UNDER THIS AGREEMENT ARISING OUT OF THE SALE OR USE OF THE SOFTWARE, FEATURES AND/OR FEATURE PACKS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EXCEED THE COMPENSATION THAT CLIENT HAS PAID TO COMPANY HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE
ACCRUAL OF SUCH LIABILITY.
14.1 Acceptance by Client. Client shall have ten (10) calendar days after delivery of the Software (the “Acceptance Period”) to verify the successful installation and sound opera-tion of the Software in accordance with the specifications in the SOW or Documentation. Should Client desire to indicate that the Software is not accepted, Client must give writ-ten notice of the specific failure(s) to COMPANY within the Acceptance Period. COMPANY and Client shall then work diligently to cure any failures until the Software is accepted. Notwithstanding anything in this Section 14 to the contrary, Client’s failure to indicate a non-acceptance in writing within the Acceptance Period, or retention and use of the Software following such Acceptance Period, shall be conclusively deemed to be Acceptance by the Client.
15. Term and Termination
15.1 Term. Subject to the terms hereof, this Agreement shall commence on the Effective Date and continue thereafter until terminated by either Party upon ninety (90) days written notice to the other Party, subject to any earlier termination in accordance herewith.
15.2 License Term. Each Software License shall have a License Term as stated for such Software License in this Agreement. In the event that no other License Term is stated, such License shall be perpetual, subject to termination for material uncured breach of this Agreement or any Software License by Client. A termination of any Software License term shall be grounds for COMPANY’ termination of all Software Licenses. Termination of this Agreement for any reason other than as stated in Section 15.3 shall not terminate any Software License.
15.3 Termination by Breach. COMPANY may, by written notice to Client, terminate this Agreement, any and all
Software Licenses and any other of COMPANY’ obligations hereunder upon any of the following events:
15.3.1 Client fails to pay any amount due to COMPANY within fifteen (15) business days after COMPANY gives Client written notice of such non-payment; or
15.3.2 Client is in material breach of any non-monetary term, condition, or provision of this Agreement or any Software License, which breach is capable of being cured and is not cured
within thirty (30) days after COMPANY gives Client written notice of such breach; or
15.3.3 Client (i) terminates or suspends its business activities, (ii) becomes insolvent, undertakes liquidation, admits in writing its inability to pay its debts as they mature, makes an
assignment for the benefit of creditors or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency
proceeding under federal or state statutes. If any of the above events occur, termination will become effective on the date set forth in the written notice of termination. Termination of this Agreement shall not affect Sections 1, 3, 4, 5, 6, 7, 10, 12, 13, 15 and 17, which provisions shall survive termination of this Agreement.
16. Notices. All notices hereunder must be in writing and delivered via registered mail, courier delivery, or email if acknowledged by reply email by the receiving party, to the addresses for COMPA-NY above or for Client below or to such alternate address as may be provided by one party to the other in writing at least 10 days prior to such notice: To: CLIENT: Company Name Attn: Address City/State/Zip Email:
17.1 Right to Contract. COMPANY represents and warrants that it has the right and has obtained all necessary corporate approvals to enter into this Agreement. Client represents and warrants that:
17.1.1 Client has the right and has obtained all necessary corporate and any governmental approvals required to enter into and perform this Agreement; and
17.1.2 Client will, at all times, comply with all applicable laws, statutes, treaties and regulations to which it is subject.
17.2 Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns, but neither Party shall have the right to assign or otherwise transfer its rights under this Agreement without the prior written consent of the other party; provided, however, that neither Party may unreasonably withhold such consent. Notwithstanding anything in this Section 17.2 to the contrary, COMPANY may assign this Agreement without the Client’s consent to an affiliate or to any buyer of all or substantially all of the assets or majority voting control of COMPANY.
17.3 Governing Law and Jurisdiction. This Agreement shall be deemed executed by Client in the Commonwealth of Virginia (U.S.A.) and shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, U.S.A., excluding its principles of choice of law or conflicts of law. Exclusive jurisdiction and venue for any and all disputes hereunder, including any actions to interpret this Agreement, shall lie solely in state or federal courts located in Loudoun County, Virginia or the next nearest jurisdiction within Virginia thereto.
17.4 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. Headings in this Agreement are included for reference only and shall not constitute a part of this Agreement for any other purpose.