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END LICENSE AGREEMENT
Licensor is the owner of that certain computer program known
as “Aleza Portal” (as further defined below, the “Licensed Software”);
Customer desires to obtain rights to use the Licensed Software.
THEREFORE, in consideration of the premises and other good ,
valuable and mutual consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1.1. “Act” has the meaning set forth in Section 2.3.
“Compatible machine” means a machine on which the Licensed Software
is capable of operating according to the software specifications.
“Confidential Information” has the meaning set forth in Section
“Customer machine” means a machine, all of which is under the
complete, direct legal and physical control of Customer.
“Information” has the meaning set forth in Section 7.1.
“Licensed Software means all or any part of the computer program
referenced above as may be modified by Customer pursuant to
this License, including, without limitation, any related (1)
instructions or statements in machine-readable form, including
source code; (2) any database in machine-readable form; (3)
any related materials, including documentation and listings,
whether in machine-readable or printed form; and (4) all copies
of the foregoing.
“Linkage” means a connection (continuous or otherwise, and using
any technical means) between machines, which connection is capable
of data transmission, regardless of whether such connection
is used for data transmission and regardless of what software
restrictions may have been placed on data access in the machines
“Machine” means a computer, together with all input, output,
transmission, memory and other components necessary for the
“Modification” means any computer software that (1) is derivative
of or interfacing with the source code; (2) emulates or performs
substantially the same functions as the source code; or (3)
results from the merger of the source code with other software.
“Software specifications” mean the description of the function
and performance of, and the required operating environment for
the Licensed Software as described at the “webavail.com” internet
“Source code” means all or any part of the machine-readable
(but including transcriptions or other representations thereof,
in tangible or intangible form, and on any media whatsoever),
uncompiled (but otherwise regardless of format) instruction
set, the totality of which permits operation of the Licensed
Software, as same may be modified by Customer pursuant to this
“Use,” including any form of such word as a noun or a verb,
as relates to the Licensed Software, means (1) copying of same
into a machine for processing; (2) storing of same in a machine;
(3) transmission of same through a machine; (4) display of same
on a machine; and/or (5) processing of same by a machine.
Licensed Software. This License will not be deemed to constitute
a transfer by Licensor of its title to the Licensed Software.
Modifications. All Modifications developed singly or jointly
by Customer, Licensor, their employees or third parties hired
by either or both will be and remain the property of Licensor,
regardless of whether and the extent Customer pays for such
Work Product. Any and all software ideas, processes, methods,
programming aids or flowcharts developed, prepared, conceived,
made or suggested by Customer, Licensor, their employees or
third parties hired by either or both under, or related to the
performance of, this License (“Work Product”), including all
such developments as are originated or conceived during the
term of this License but are completed or reduced to practice
thereafter, will be deemed to be a “work for hire” if consistent
with the requirements of Section 101 of the Copyright Act (“the
Act”). All Work Product will be and remain the exclusive property
of Licensor, regardless of whether and to the extent Customer
pays for same and whether or not deemed to be a “Work for Hire”
within the meaning of the Act; and any and all rights, title
and ownership interests, including copyright, that Customer
and/or its employees may have in or to such Work Product or
any tangible media embodying such Work Product are hereby assigned
License. Licensor hereby grants to Customer the nontransferable
and nonexclusive license to do the following (“Permitted Use”):
Use. Use the machine-readable portion of the Licensed Software
on one Customer
central processing unit or on more than one Customer central
processing unit, but on only one Customer shared internet site,
giving the Customer one account on “myaleza.com.”
Printed Materials. Utilize the printed portion of the Licensed
Software to support Permitted Use.
Copies. Copy or translate the Licensed Software into any machine-readable
or printed form to provide sufficient copies to support Permitted
Modifications. Make Modifications as necessary for Customer’s
use, though upon modification, no part of the resulting modified
Software may be used or sold outside of Customer’s central processing
unit(s) and/or shared internet site for which Software License
Consideration. Customer will pay to Licensor the consideration
agreed to between the parties, which is non-refundable, subject
to Section 10 of this License, for each Customer central processing
unit and/or shared internet site Licensed Software is to be
used on. Further consideration and a new License will be required
for subsequent major Software upgrades, though not on minor
License Restrictions. Customer is prohibited from the following:
Third Party Machines. Permitting the use of the Licensed Software
on any machine that is not a Customer machine.
Networked Machines. Permitting the linkage of any Customer machine
using the Licensed Software with a machine that is not a Customer
machine, unless (1) the prior written consent of Licensor shall
have been obtained; and (2) Customer will have first successfully
and at its own expense implemented those security measures,
if any, required by Licensor for such linkage.
6. Taxes. In addition to the consideration due from Customer
under this License, Customer will pay directly or reimburse
Licensor for all taxes, assessments, permits and fees which
are, or may be in Licensor’s reasonable opinion, levied upon
the Licensed Software or its use, exclusive of franchise taxes
and taxes based upon Licensor’s income.
Confidentiality. Customer acknowledges that the Licensed Software,
the source code and other information related, and to be related,
to Customer by Licensor in the course of performance of Licensor’s
obligations under this License (the “Information”) constitutes
and contains confidential and proprietary information of Licensor.
Customer hereby agrees that the Licensed Software, the source
and the Information will be received and held by it in strict
confidence, will be used only for purposes of this License and
that none of the Licensed Software, or the source code, and
no Information which has been marked or otherwise specifically
identified as confidential (“Confidential Information”) will
be disclosed by Customer, or by its agents or employees, without
the prior written consent of Licensor, except as (1) otherwise
allowed by this License; or (2) may be necessary by reason of
legal, accounting or regulatory requirements beyond the reasonable
control of Customer.
Distribution. Customer will not distribute the Licensed Software
to persons other than its employees as required for Permitted
Use in the normal course of their employment.
Access. Customer will restrict access to the Licensed Software
to (1) employees of Customer or Licensor; (2) other persons
(a) during the period they are on Customer’s premises, (b) who
are authorized by Customer to have remote access to the Licensed
Software, or (c) where the prior, written consent of Licensor
to such access has been obtained.
Notice. All copies of the Licensed Software made by Customer
will contain sufficient notice of Licensor’s ownership thereof;
such notice will be deemed to be sufficient if it consists of
a reproduction or such notices as are contained in the copies
provided by Licensor. Further, should the “Aleza” logo be used
by Customer, no modification or resizing of the logo shall be
permitted by Customer without the prior written consent of Licensor.
Records. Customer will maintain records of the number, location
and the name of the Customer employee responsible for the security
of all copies of the Licensed Software in Customer’s possession
or in the possession of third parties hired by Customer, as
permitted under this License.
Media. Customer will erase or destroy any copy of the Licensed
Software on any media before the disposal of such media by or
on behalf of Customer.
Source Code Access. Customer will restrict access to the source
code to persons who (1) require such access for Permitted Use;
and (2) are under contractual obligations to Customer to maintain
the confidentiality of the source code.
Warranty. The Licensed Software will conform, when received
by Customer, to the software specifications. Licensor does not
represent or warrant that the software specifications will meet
Customer’s requirements. The Licensed Software may not operate
as it may be modified by Customer. Operation of the Licensed
Software may not be uninterrupted or error-free.
WARRANTIES CONTAINED IN THIS LICENSE ARE IN PLACE OF ALL OTHER
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
Patents and Copyrights.
Notice of Claim. Customer agrees to give Licensor prompt notice
of any claim that the Licensed Software infringes a patent or
copyright in the United States of America or Puerto Rico and
must fully cooperate with Licensor in, the defense of the Claim
and all related settlement negotiations should such need arise.
Right to Cure. Customer agrees that, if the operation of the
Licensed Software becomes, or Licensor believes such operation
is likely to become, the subject of a Claim, Customer will permit
Licensor, at Licensor’s option and expense, either to secure
the right of Customer to continue using the Licensed Software
or to replace or modify the Licensed Software so that it becomes
non-infringing. However, if neither of the foregoing alternatives
is available on terms that are reasonable in Licensor’s judgment,
Customer will return and/or erase the Licensed Software upon
Licensor’s written request.
Modifications. Licensor will have no obligation with respect
to any Claim based upon any Modification.
Entire Obligation. This Section 9 states Licensor’s entire obligation
to Customer regarding claims of infringement and similar matters.
Limitation of Remedies. The liability of Licensor to Customer
under this License and the remedies of Customer under this License
will be limited as follows:
Software Performance-Related Claims. In all situations involving
performance or nonperformance of the Licensed Software, Licensor
will attempt to make the Licensed Software operate as warranted.
If, after three efforts, Licensor does not provide such a remedy,
Customer will be entitled to recover actual damages to the limits
set forth in this Section 10.
Other Claims. For any other claim concerning performance or
nonperformance by Licensor pursuant to, or in any way related
to, the subject matter of this License, Customer will be entitled
to recover actual damages to the limits set forth in this Section
Liability Limitations. Licensor’s liability for actual damages
from any cause whatsoever will be limited to the consideration
received by Licensor from Customer as provided in this License.
This limitation will apply, except as otherwise stated in this
Section 10, regardless of the form of action, whether in contract
or in tort, including negligence.
Liability Exclusions. In no event will Licensor be liable for
any damages caused by Customer’s failure to perform under this
License. Licensor will not be liable for any loss of profits,
loss of data, loss of business or indirect, incidental, consequential
or punitive damages, even if Licensor has been advised of the
possibility of such damages. Licensor will not be liable for
any damages claimed by Customer based on any third party claim.
Adequate Consideration. Customer hereby agrees and acknowledges
that (1) the Licensed Software would not be made available to
it by Licensor for the consideration given by Customer but for
the limitation of remedies contained in this Section 10; (2)
the rights it has obtained to the Licensed Software pursuant
to this License in exchange for the limitation of remedies contained
in this Section 10 and the other consideration given by Customer
constitutes a bargain which is fair and reasonable to the parties;
and (3) this bargain has been made by Customer without coercion
or the threat thereof from any person.
Injunctive Relief. Customer understands and agrees that (1)
violation in any material respect of any of the provisions of
this License by Customer will cause immediate and irreversible
harm to Licensor; (2) Licensor will in such event have no adequate
remedy at law; and (3) Licensor will in such event be entitled
to immediate restraint, as well as preliminary and other injunctive
relief, without any requirement to post bond, against any violation
of this License by Customer. Any injunctive relief sought by
Licensor will be in addition to, and in no way in limitation
of, any and all remedies or rights to recover damages which
Licensor may have at law or in equity for the enforcement of
Compliance with Laws. Customer agrees to comply with all applicable
federal, state and municipal statutes, ordinances, rules and
regulations, including, without limitation, the rules and regulations
under the U.S. Export Administration Act and the U.S. Foreign
Corrupt Trade Practices Act, as the same may be amended from
time to time. Without in any way limiting the foregoing, Customer
will not export or otherwise remove the Licensed Software from
the United States of America or Puerto Rico, either directly
or indirectly, without the consent of Licensor and without first
obtaining any licenses or approvals as may be required from
the U.S. Department of Commerce and any other applicable agency
or department of the United States government.
Sublicense. Customer may not sublicense, transfer or assign
this License, by operation of law, by merger or otherwise. Any
attempt to so sublicense, assign or transfer any of the rights,
duties or obligations under this License is void ab initio.
Customer’s Duties. Customer accepts the responsibility for (1)
selection of the Licensed Software to achieve its intended results;
(2) the installation of the Licensed Software; (3) the use of
the Licensed Software; (4) the results obtained from the Licensed
Software; and (5) the selection and use of, and the results
obtained from, any other computer software, machines, other
equipment or services used with this Licensed Software.
Advertising. Customer agrees that use of the “aleza” logo shall
not include resizing or modification of said logo without the
express written consent of Licensor. Customer hereby grants
Licensor permission to use Customer’s name as a commercial reference
regarding Customer’s use of the Licensed Software.
Customer Notice. Customer may terminate this License upon one
month’s written notice.
Breach. Either party may terminate this License for failure
of the other to comply with the terms and conditions of this
Return of Copies. Upon the termination of this License, Customer
will return to Licensor or destroy all copies of the Licensed
Software, the source code, all Modifications and all tangible
embodiments of Confidential Information.
Termination of Licenses. Termination of this License will serve
to terminate all licenses to the Licensed Software granted hereunder.
Relationship of Parties. Licensor, in furnishing services to
Customer hereunder, is acting only as an independent contractor.
Licensor does not undertake by this License or otherwise to
perform any obligation of Customer, whether regulatory or contractual,
or to assume any responsibility for Customer’s business or operations.
Force Majeure. Licensor is not responsible for failure to fulfill
its obligations under this License due to causes beyond its
Exhibits Control. If there is a conflict between this License
and any exhibit or appendix attached thereto, such exhibit or
appendix will prevail.
Limitations on Actions. Customer may not bring any action against
Licensor arising out of a breach of this License more than two
(2) years after such cause of action has arisen.
Waiver. No waiver of any breach of this License will be deemed
to constitute a waiver of any subsequent breach of the same
or any other provision.
21.2. Severability. If any provision of this License is declared
or found to be illegal, unenforceable or void, then all parties
will be relieved of all obligations arising under such provision,
but only to the extent that such provision is illegal, unenforceable
or void, it being the intent and agreement of the parties that
this License will be deemed amended by modifying the provision
to the minimum extent necessary to make it legal and enforceable
while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable
and achieves the same objective. If the remainder of this License
will not be affected by the declaration or finding and is capable
of substantial performance, then each provision not so affected
will be enforced to the extent permitted by law.
Entire Agreement. This License, together with all exhibits and
appendices attached to it, if any, constitutes the entire agreement
of the parties, superseding in all respects any and all prior
proposals, negotiations, understandings and other agreements,
oral or written, between the parties.
Amendment. This License may be amended only by a written instrument
duly executed by both parties.
Notices. Any notice given pursuant to this License may be given
by (1) personal delivery; (2) deposit in the United States mail,
prepaid, return receipt requested; (3) deposit with a recognized
courier company, prepaid, return receipt requested; or (4) facsimile
transmission, in each case to the last address or number, as
the case may be, of which the sending party has received actual
or constructive notice. Any such notice will be deemed received
(1) when delivered, if given pursuant to clause (1) of the previous
sentence; (2) on the earlier of (a) the fourth day after deposit,
or (b) at the time verification is made of delivery, if given
pursuant to clauses (2) or (3) of the previous sentence; or
(3) when received, if given pursuant to clause (4) of the previous
Interpretation. Headings used in this License are for convenience
only and will not be deemed to be operable text. Terms of gender
will be deemed interchangeable, as will singular and plural
terms, in each case unless the context otherwise requires. All
monetary amounts used herein will be deemed to refer to current
U.S. dollars, unless the context otherwise requires.
Applicable Law. This License will be governed by the internal
law of the State of Illinois.
Jurisdiction. With respect to actions arising under this License,
the parties hereby (1) submit to the jurisdiction of any state
or federal court seated in DuPage County or Cook County in the
State of Illinois and encompassing such cities in its territorial
jurisdiction; and (2) waive any claim that any such court is
an inconvenient forum.
Further Assurances. The parties will perform all such further
acts, provide such further documents or written assurances,
and execute such further documents as are reasonably required
or necessary to carry out the acts and transactions contemplated
by this License.
Customer has read and fully understands the forgoing license
agreement and agrees to its terms. By indicating “ I AGREE “
customer hereby accepts this license agreement.