SOFTWARE LICENSE AGREEMENT
IMPORTANT – PLEASE READ CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING ANY PART OF THE SOFTWARE. THIS IS A LEGAL DOCUMENT THAT STATES THE TERMS AND CONDITIONS THAT GOVERN A LICENSEE’S USE OF THE SOFTWARE. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, THE LICENSEE ACKNOWLEDGES THAT THE LICENSEE HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE LEGALLY BOUND BY ITS TERMS.
THIS END USER LICENSE AGREEMENT (“Agreement”) is entered into as of this date (“Effective Date”), by and between Empower Innovations Group (“Empower”) and MERGE TAG IN NAME OF COMMITTEE (“Licensee”).
WHEREAS, the Licensee desires to contract with Empower to obtain a license to use the Empower App, a web-based relational voter program management tool and
WHEREAS, Empower is ready, willing and able to provide a license for the web-based campaign software pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements herein, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
Section 1. Grant of License.
A. Grant of License. Subject to the terms of this Agreement, Empower hereby grants to Licensees a non-exclusive and non-transferable license (without any right to sublicense) to use: (i) the Empower App to monitor and record relational voter list and volunteer information (“Program”); (ii) the associated written documentation (“Documentation”); and, (iii) any updates, revisions or upgrades of the Program or the Documentation provided to Licensee (each an “Update”) (the Program, the Documentation and any Update are, collectively, the “Software”). The rights granted in this Agreement are effective only upon payment of the license fee set forth in Section 5, below, and execution of this Agreement.
B. Limitations of Grant of License. The Software is to be used solely and exclusively by employees of Licensees for the internal purposes of the Licensee and shall not be redistributed to any other person or entity. The Licensee shall not sell, reproduce, publish, license, disseminate or sublicense any portion of the Software. Further, under no circumstances does Licensee have any right to reverse, engineer, decompile, disassemble, modify or translate the Software.
Section 2. Scope of Use. The Licensee may only use the Software with an agreed upon number of usernames for which the Licensee has paid the applicable fees. The Licensee’s invoice or sales agreement for the purchase of the Software shall specify the number of usernames for which the Licensee is authorized under this Agreement. In addition, the Licensee shall not permit its officers, employees, consultants, or agents : (i) use the Software for the benefit of any third party, including without limitation, in an outsourcing or timesharing arrangement; (ii) sell, lease, sublicense, distribute, or otherwise transfer the Software or Licensee’s username to any person, firm, or entity; or, (iii) copy, modify, adapt, translate, decompile, disassemble, create or attempt to create, by reverse engineering or otherwise, the source code or object code supplied hereunder in part or in whole. Licensee agrees not to access (or attempt to access) any of the Software by any means other than through the interface that is provided by Empower. All rights not expressly granted to the Licensee herein are hereby reserved by Empower. Licensee agrees to inform all users who have access to the Software about the content of this Agreement and to make sure that they comply with the terms of this Agreement.
Section 3. Ownership. This is a license agreement and not an agreement for sale. The Licensee shall not have any rights to or interest in any worldwide Intellectual Property Rights that are embodied in or related to the Software. For purposes of this Agreement, the term “Intellectual Property Rights” means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide. The Licensee may not delete, alter, cover, or distort any copyright, trademark, or other proprietary rights notice placed on or in the Software.
Section 4. Services. Costs and fees for support for Software is NOT included with the license fee for the Software. Any support provided, whether purchased or not, is done at the sole discretion of Empower and is detailed in Exhibit A, and service fees may be increased by Empower at its sole discretion upon thirty (30) days written notice. Support services provided by Empower pursuant to Exhibit A are covered by this Agreement, including the Limitation of Liability, Arbitration, and Governing Law paragraphs below.
Section 5. Fees. Licensee shall pay a fee in the amount specified in Exhibit A for the Licensee’s use of the Software and Services. Empower reserves the right to increase the charge for these Services upon 90 days’ written notice to Licensee. Licensee agrees to be billed at the new rate, and that these fees will be recurring in nature and charged to Licensee unless Licensee notifies Empower that Licensee wants to terminate this Agreement in writing. The fee shall be paid to Empower upon execution of this Agreement and shall not be subject to offset or refund unless otherwise provided for in writing. Empower shall have no obligation to provide access to the Software or any updates or perform any Services until such fee has been paid in full. Empower reserves the right to withhold access to the Software or Licensee’s data until payment is received. Upon receiving payment, an updated key will be sent to renewed licenses.
Section 6. Empower Innovations Group Limited Warranty. Provided the Licensee has timely paid the applicable fees and costs under this Agreement, Empower represents and warrants to the Licensee as follows:
A. Empower has the right to grant the rights and licenses contemplated by this Agreement.
B. Empower has the right to enter into and perform this Agreement. Further, Empower acknowledges that its entry into or the performance of this Agreement will not constitute a violation or default of any other agreement under which Empower is already bound.
Section 7. Licensee’s Warranties . The Licensee represents and warrants to Empower as follows:
A. Licensee has the right to enter into and perform this Agreement. Further, Licensee acknowledges that its entry into or the performance of this Agreement will not constitute a violation or default of any other agreement under which the Licensee is already bound.
B. Licensee will only use Empower Software for lawful purposes, and Licensee will not store or provide any content or link to any material that violates foreign, federal, state or local law.
C. Licensee agrees and understands that you are responsible for maintaining the confidentiality of usernames and related passwords associated with any account Licensee uses to access the Software. If Licensee becomes aware of any unauthorized use of Licensee’s password or of Licensee’s account, Licensee agrees to notify Empower immediately.
Section 8. WARRANTY EXCLUSIONS. EXCEPT AS STATED IN SECTION 6 OF THIS AGREEMENT, Empower DISCLAIMS OTHER WARRANTIES AND DOES NOT MAKE ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE WARRANTIES STATED IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. Empower DOES NOT MAKE ANY WARRANTIES, EXPRESSED OR IMPLIED, AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SOFTWARE OR SERVICES AS THE LICENSEE HAS THE ULTIMATE AUTHORITY AS TO ALL DECISIONS CONCERNING THE IMPLEMENTATION OF THE SOFTWARE AND USE OF SERVICES.
THE PARTIES INTEND THAT THE LIMITED REMEDIES AND DISCLAIMERS CONTAINED IN THIS SECTION SHALL BE VALID AND ENFORCED EVEN IF THEY FAIL OF THEIR ESSENTIAL PURPOSE.
Section 9. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR ANY DAMAGES FOR LOSS OF PROFITS, REVENUE OR BUSINESS EVEN IF SAID PARTIES HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S REMEDY LIABILITY SHALL BE LIMITED IN THE AGGREGATE TO EITHER A REFUND OF THE FEES PAID OR THE FEES DUE UNDER SECTION 5 FOR THE SOFTWARE THAT GAVE RISE TO THE CLAIM. IN NO EVENT SHALL Empower, THE SOFTWARE MANUFACTURER, OR THE SOFTWARE DISTRIBUTOR BE LIABLE FOR THE LICENSEE’S COST OF PROCURING SUBSTITUTE GOODS.
Section 9A. MUTUAL INDEMNIFICATION. LICENSEE SHALL INDEMNIFY AND HOLD Empower HARMLESS FROM ANY CLAIM, LOSS, COST, EXPENSE, DEMAND, OR DAMAGE, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING DIRECTLY OR INDIRECTLY OUT OF CLAIMS BY THIRD PARTIES AGAINST Empower FROM THE LICENSEE’S MISUSE OF THE SOFTWARE, EXCEPT TO THE EXTENT THE HARM IS ATTRIBUTABLE TO THE SOFTWARE, PROVIDED (I) LICENSEE NOTIFIES Empower IN A TIMELY MANNER OF ANY SUCH CLAIMS OF WHICH IT HAS KNOWLEDGE OR NOTICE; AND (II) ACCORDS Empower THE RIGHT, AT ITS SOLE OPTION AND EXPENSE, TO HANDLE THE DEFENSE OF THE CLAIM AND TO SETTLE OR RESOLVE ANY SUCH CLAIM IT DEEMS APPROPRIATE. Empower SHALL INDEMNIFY AND HOLD LICENSEE HARMLESS FROM ANY CLAIM, LOSS, COST, EXPENSE, DEMAND, OR DAMAGE, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING DIRECTLY OR INDIRECTLY OUT OF CLAIMS BY THIRD PARTIES ALLEGING INFRINGEMENT OF A PATENT OR PATENTS, COPYRIGHTS, TRADEMARKS, OR OTHER INTELLECTUAL PROPERTY RIGHT OR TRADE SECRETS MISAPPROPRIATION OUT OF OR RELATED TO THE SOFTWARE, EXCEPT TO THE EXTENT THE HARM IS ATTRIBUTABLE TO LICENSEE’S MISUSE OF THE SOFTWARE, PROVIDED (I) Empower NOTIFIES LICENSEE IN A TIMELY MANNER OF ANY SUCH CLAIMS OF WHICH IT HAS KNOWLEDGE OR NOTICE; AND (II) ACCORDS LICENSEE THE RIGHT, AT ITS SOLE OPTION AND EXPENSE, TO HANDLE THE DEFENSE OF THE CLAIM AND TO SETTLE OR RESOLVE ANY SUCH CLAIM IT DEEMS APPROPRIATE.
Section 10. Export Restrictions. Both Parties agree to comply at all times with the provisions of all applicable laws and regulations, including regarding export controls or technology transfer restrictions of any applicable jurisdiction, including without limitation, those of the United States Departments of Commerce and State.
Section 11. Term. The term of this Agreement shall be specified in Exhibit A. The Grant of License remains conditional and is contingent on timely payment of fees by Licensee in accordance with this Agreement.
Section 12. Termination. Either party may terminate this Agreement and the license may be terminated by Either Party upon the Other Party’s failure to comply with any of its terms provided that the party failing to comply with Agreement is provided fifteen (15) days to cure failure. Upon termination, Licensee shall retain right to data inputted into the Software. Empower shall provide data inputted by Licensee into Software for up to one (1) year following termination, unless waived by Licensee in writing. Upon termination, the Licensee shall no longer have access through its username and will return any copies of the Software to Empower. Upon the expiration of the initial Term, renewal of this Agreement will occur automatically on a month to month basis unless otherwise agreed upon by Licensee or Empower in writing. After the expiration of the initial Term, either party may terminate this Agreement by giving the other party thirty (30) days written notice. However, said notice shall only be effective as to Licensee if it is provided to Empower at the end of the month.
Section 13 . Attorneys’ Fees , Costs and Expenses . In any dispute arising out of this Agreement, the prevailing party shall recover from the other party all of its reasonable attorney’s fees, costs and expenses incurred in connection with the dispute.
Section 14. Ownership. All proprietary rights in all intellectual property contained in the Software and Documentation that are owned or developed by Empower, and any updates, improvements and new modules to such intellectual property, will be and remain the property of Empower. Empower acknowledges that all data inputted by Licensee into the Software remains the property of Licensee. Licensee maintains all right, title, and interest to individual data inputted by Licensee, including all copyright, trademark, patents, and all other property rights in perpetuity. However, Empower may collect and aggregate Licensee information and data for the sole purpose of assisting Empower in providing services covered by this Agreement to Licensee All Licensee information collected by Empower will be used only in the aggregate, without any identifying information. Information or data sets produced or aggregated by Empower, or analysis and compilations of aggregate data collected by Empower, for the purpose of providing services is proprietary and Confidential Information owned by Licensee. This aggregated data may be used by Empower for internal research purposes, provided that Empower obtains the prior express written consent of Licensee on a case-by-case basis.
Section 15. Non-Binding Alternative Dispute Resolution. In the event of a dispute between the parties arising under or in connection with this Agreement, both parties agree to have Michael Pfohl from Empower and the chief information officer from Licensee or their designees, respectively, engage in non-binding mediation to attempt to resolve the outstanding issues prior to filing of any suit or arbitration. Written documentation of the issues will be forwarded to the respective parties in advance of the meeting. At the conclusion of the meeting, both parties will agree to attempt to resolve the matter in the spirit with which this Section is intended.
Section 16. Confidentiality Obligations.
A. From time to time, either party (the “Disclosing Party”) may disclose or make available to the other party (the “Receiving Party”), whether orally or in physical form, confidential or proprietary information concerning the disclosing party and/or its business, products, processes, or services (together, “Confidential Information”) or trade secrets as defined by applicable Wisconsin law in connection with this Agreement. Each party agrees that during the term of this Agreement and thereafter: (i) it will use Confidential Information and trade secrets belonging to the Disclosing Party solely for the purpose(s) of this Agreement; and (ii) it will take all reasonable precautions to ensure that it does not disclose Confidential Information or trade secrets belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the Disclosing Party’s written consent. Upon termination of this Agreement or upon request by the Disclosing Party, the Receiving Party will return all copies of any Confidential Information and trade secrets to the Disclosing Party.
B. Confidential Information does not include information, technical data or know-how which (i) is in possession of the Receiving Party at the time of disclosure as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party; (iii) is approved for release in writing by the disclosing party; (iv) information that qualifies as a trade secret under applicable Wisconsin law; or (v) the fact that Empower and Customer have entered into a business relationship.
Section 17. Miscellaneous.
Severability. If any provision of this Agreement is held void and unenforceable, the provision shall not render the Agreement unenforceable.
Entire Agreement. This Agreement contains the entire agreement between the parties with respect to its subject matter and may only be amended by the parties in writing.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, without reference to conflict of law principles. Venue and jurisdiction for any federal or state court litigation shall be Dane County, Wisconsin.