SOFTWARE LICENSE AGREEMENT AND WARRANTY STATEMENT (v 1.1, modified 06/01/2010)

Eagle Technology Management, Inc. (EagleTM), an Iowa corporation with its principal office located at 1425 60th Street NE, Suite 400, Cedar Rapids IA 52402, has the right to license the Licensed Software and is willing to license such software and services only upon the acceptance of all terms contained within this License Agreement.  

WHEREAS, Licensee has requested use of the Licensed Software in accordance with the terms and conditions hereof;

NOW, THEREFORE, in consideration of the foregoing, and in reliance on the mutual agreements contained herein, the parties agree as follows:

1. Definitions.

  1.1 "Licensed Software or Software." Shall include the programs as identified within the price quotation related to this Agreement, along with the program’s documentation, upgrades and updates which may be provided by EagleTM from time to time.
  1.2 "Authorized Users." The Licensee's employees and assigned agents who are properly authorized by Licensee to access and use the Licensed Software. 
  1.3 "Proprietary Rights." Any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, confidential and proprietary information protected under contract or otherwise under law, trade names, domain names, trade dress, logos, animated characters, trademarks, service marks, and other similar rights or interests in intellectual or industrial property.
  1.4 "Licensee".  Includes all companies as listed within the price quotation related to this Software Agreement.  
  1.5 "EagleTM's Application Server." The computer(s) dedicated by EagleTM for the purpose of hosting the Licensed Software for access over the Internet at the web site specified.
  1.6 "Supported Browser(s)." Those Internet browser(s) which are supported by EagleTM for purposes of access and use of the Licensed Software on EagleTM's Application Server.  

2. Subscription License Grant. Subject to the terms and conditions hereof, EagleTM hereby grants to Licensee the non-exclusive right and license under the Proprietary Rights of EagleTM and its licensors (i) to install and operate the Licensed Software.  Licensee shall use the Licensed Software only for Licensee's internal business operations including licensed affiliated entities that control, or are controlled by, Licensee, and Licensee shall not permit the Licensed Software to be used by or for the benefit of third parties. Licensee shall not have the right to re-license or sell rights to access or use the Licensed Software or to transfer or assign rights to access or use the Licensed Software, except as expressly provided herein. 

3. Subscription Terms.  The license granted herein shall be for one year, with optional renewal terms of one (1) year each thereafter.   The initial invoice for the Software shall be due 15 days upon the execution of this license agreement.  

For each optional renewal year, EagleTM shall invoice Licensee for that respective year.  Payment of such invoice by Licensee shall be deemed as acceptance of the one year renewal terms.  All renewal invoices shall be due 30 days upon receipt.  Licensee agrees that it may not use the Software for any renewal term, unless Licensee has made full payment of the respective renewal fee. 

4. Restrictions.  Licensee shall not (i) permit others to use its access rights for the Software, (ii) modify or translate the Software, (iii) reverse engineer, disassemble, or decompile the Licensed Software for any purpose, or attempt to derive a source code language version of the Licensed Software; (iv) create derivative works based on the Software, (iv) merge the Software with another product, or (v) remove or obscure any proprietary rights, notices, or labels on the Software.  All rights not expressly granted to Licensee herein are expressly reserved by EagleTM.

5. Services Regarding Licensed Software. During the term hereof and subject to the terms and conditions hereof, EagleTM shall (i) install, operate, and maintain the Licensed Software on EagleTM's Application Server, and (ii) provide to Licensee access to EagleTM's Application Server sufficient for Licensee to exercise its subscription license rights granted above.

6. Services Regarding Access to EagleTM's Application Server. During the term hereof and subject to the terms and conditions hereof, EagleTM shall undertake commercially reasonable efforts to provide Licensee with consistent service (i) insulated from changes in the Internet, and (ii) sufficient to access the Licensed Software on EagleTM's Application Server through the Internet twenty-four (24) hours per day, seven (7) days per week, except for routine maintenance performed pursuant to notice to Licensee. EagleTM shall monitor EagleTM's Application Server and undertake commercially reasonable efforts to restore promptly all failures of service at no additional charge to Licensee. Licensee shall be solely responsible for (i) providing Internet devices and Supported Browsers, and (ii) Internet connections, at Licensee's sole cost and expense.

7. Technical Support Services. Payment in full of subscription license fees by Licensee entitles Licensee to reasonable (not to be used for training purposes) help desk technical support in the form of responses to questions by telephone or email during EagleTM’s business hours of 8:00 a.m. to 5:00 p.m. (CT) Monday through Friday (excluding holidays). EagleTM represents and warrants to Licensee that all services to be provided or delivered (a) shall be performed by experienced, qualified personnel, (b) shall reflect and adhere to generally accepted and reasonable industry standards and (c) shall, in each instance, be performed on a "reasonable commercial efforts" basis.   If training is required for the proper use and operation of the Licensed Software, EagleTM shall provide such training at its then-current standard rates for time and out of pocket expenses, upon mutually agreed upon terms and conditions with Licensee.  

8. Technical Contacts. Licensee shall designate one of its employees as its principal contact for communicating with EagleTM regarding technical issues hereunder. Licensee may change its technical contact from time to time by written notice to EagleTM.

9. Cooperation. Licensee acknowledges (i) that certain services or obligations of EagleTM hereunder may be dependant on Licensee providing certain data, information, or assistance to EagleTM from time to time (collectively, "Cooperation"), and (ii) that such Cooperation may be essential to the performance of services by EagleTM. The parties agree that any delay or failure by EagleTM to provide services hereunder which is caused by Licensee's failure to provide timely Cooperation reasonably requested by EagleTM shall not be deemed to be a breach of EagleTM's performance obligations under this Agreement.

10. Ownership. EagleTM, and its suppliers of components within the software, own the Software and all intellectual property rights embodied therein, including copyrights and valuable trade secrets embodied in the Software's design and coding methodology.  The Software is protected by United States copyright laws and international treaty provisions.  This Agreement provides Licensee only a limited use license, and no ownership of any intellectual property.  

11. Confidentiality of Licensed Software. Licensee acknowledges EagleTM's claim that the Licensed Software embodies logic, design, and coding methodology which constitute valuable confidential information that is proprietary to EagleTM and its licensors. Licensee shall safeguard the right to access the Licensed Software using the same standard of care which Licensee uses for its similar confidential materials, but in no event less than reasonable care.

12. Confidentiality of Licensee Data. All Licensee Data and/or information disclosed to EagleTM in connection with the performance of this Agreement ("Licensee Confidential Information") shall be held as confidential by EagleTM and shall not, without the prior written consent of Licensee, be disclosed or be used for any purposes other than the performance of this Agreement. EagleTM shall safeguard the confidentiality of such Licensee Confidential Information using the same standard of care which EagleTM uses for its similar confidential materials, but in no event less than reasonable care. Notwithstanding the forgoing, the term "Licensee Confidential Information" shall not be deemed to include information which: (i) is now, or hereafter becomes, through no act or failure to act on the part of EagleTM, generally known or available; (ii) is known by EagleTM at the time of receiving such information as evidenced by its written records; (iii) is hereafter furnished to EagleTM by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by EagleTM as evidenced by its written and dated records and without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by Licensee. Further notwithstanding the forgoing, disclosure of Licensee Confidential Information shall not be precluded if such disclosure: (i) is in response to a valid order of a court or other governmental body of the United States; (ii) is otherwise required by law; or (iii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.

13. Limited Warranty. This limited warranty shall apply only to (i) the Licensed Software, and (ii) Updates and Upgrades.  Commencing with the installation and continuing for the term of this license agreement, EagleTM warrants that the Licensed Software (i) will conform as to all material operational features and performance characteristics as provided in the documentation supplied by EagleTM, and (ii) will be free of errors and defects that materially affect the performance of such features; provided, however, that (i) the Licensed Software is implemented and operated in accordance with all written instructions supplied by EagleTM, (ii) Licensee notifies EagleTM in writing of such nonconformity, error, or defect within thirty (30) days of the appearance thereof, and (iii) Licensee has promptly and properly installed all Updates provided to Licensee.  If Licensee timely notifies EagleTM in writing of any such nonconformity, error, or defect, EagleTM shall at its sole and exclusive option repair or replace the Licensed Software at EagleTM's sole cost and expense.  THE REMEDIES SET OUT IN THIS SECTION ARE THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THE LIMITED WARRANTY.  EAGLETM DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, THAT THE LICENSED SOFTWARE WILL OPERATE IN THE COMBINATIONS WHICH LICENSEE MAY SELECT FOR USE, THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE LICENSED SOFTWARE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED, OR THAT ALL LICENSED SOFTWARE ERRORS WILL BE CORRECTED.  Notwithstanding any other provisions of this Agreement to the contrary, the limited warranty shall not apply to non-conformities, errors, or defects due to any of the following: (i) misuse of the Licensed Software by Licensee, (ii) failure by Licensee to utilize compatible computer and networking hardware and software, (iii) interaction with software or firmware not provided by EagleTM, (iv) any change in applicable operating system software, or (v) the failure of Licensee to install updates provided by EagleTM.

14. Warranty Disclaimers. EXCEPT FOR THE LIMITED EXPRESS WARRANTY PROVIDED ABOVE, NEITHER EAGLETM NOR ANY OF ITS SUPPLIERS OR RESELLERS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND EAGLETM AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. SOME STATES DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY. LICENSEE ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE RESPECTING THE LICENSED SOFTWARE OR SERVICES TO BE PROVIDED HEREUNDER, AND THAT LICENSEE HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THIS AGREEMENT. FURTHER, FOR THE SOFTWARE WHICH THIS MAY APPLY, LICENSEE ACKNOWLEDGES AND AGREES THAT THE INTERNET IS NOT ESTABLISHED OR MAINTAINED BY EAGLETM, THAT EAGLETM HAS NO CONTROL OVER THE INTERNET, AND THAT EAGLETM IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE LICENSED SOFTWARE.

15. Proprietary Rights Warranty and Indemnification. EagleTM represents and warrants that EagleTM has the authority to license the rights to the Licensed Software which are granted herein. EagleTM shall defend, indemnify, and hold Licensee harmless from claim or damage arising out of (i) the lack of right or authority to license the Licensed Software, or (ii) infringement of any U.S. copyright, trade secret, or patent known to EagleTM as a result of the use of a current, unmodified copy of the Licensed Software; provided, however, that EagleTM is promptly notified in writing of any such suit or claim, and further provided that Licensee permits EagleTM to defend, compromise, or settle same, and provides all available information and reasonable assistance to enable EagleTM to do so. The foregoing is exclusive and states the entire liability of EagleTM with respect to infringements or misappropriation of any Proprietary Rights by the Licensed Software.

16. Limitation of Damages. EAGLETM'S ENTIRE, CUMULATIVE LIABILITY FOR MONEY DAMAGES ARISING OUT OF THIS AGREEMENT AND/OR THE LICENSING OF THE LICENSED SOFTWARE SHALL BE LIMITED TO THE SUBSCRIPTION LICENSE FEES PAID BY LICENSEE UNDER THIS AGREEMENT FOR NO MORE THAN ONE YEAR PRIOR TO ANY MATERIAL BREACH OF THIS AGREEMENT BY EAGLETM.

17. Disclaimer of Incidental and Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY CAUSING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.

18. Taxes. Fees do not include taxes or duties. If EagleTM is required to pay or collect any federal, state, local, value added, tax or duty on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on EagleTM's net income, then such taxes and/or duties shall be billed to and paid by Licensee immediately upon receipt of EagleTM's invoice and supporting documentation for the taxes or duties charged.

19. Terminations. If either party fails to comply with any of the material terms and conditions of this Agreement, including without limitation the payment of any subscription license fee or reimbursement due and payable to EagleTM under this Agreement, the non-defaulting party may terminate this Agreement and any and all license rights upon thirty (30) days' written notice to the defaulting party specifying any such breach, unless within the period of such notice, all breaches specified therein shall have been remedied.

EagleTM may terminate this Agreement upon an annual renewal term by providing sixty (60) days written notice to Licensee.  

Licensee may terminate this agreement upon each renewal term with a written notice to EagleTM (or by not paying the renewal invoice within 30 days).  If Licensee terminates without cause, EagleTM shall not be required to refund any fees paid by Licensee under the terms of this agreement.  

20. Arbitration. Except for actions to protect Proprietary Rights and to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Cedar Rapids, Iowa. The arbitrator shall apply the laws of the State of Iowa to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration.

21. Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth on the initial page hereof or at such other addresses as shall be designated in writing by either party to the other in accordance with this Section. Such notice will be deemed to be given when received.

22. Assignment. Licensee shall not assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without EagleTM's prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.

23. Continuing Obligations. The following obligations shall survive the expiration or termination hereof: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (ii) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the confidential information of either party, or any remedy for breach thereof, and (iii) the payment of taxes, duties, or any money to EagleTM hereunder.

24. Miscellaneous. This Agreement shall be construed under the laws of the State of Iowa, without regard to its principles of conflicts of law. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof.

The act of clicking the "Sign In" link below and accessing the product signify that you are authorized to accept and do accept the terms and conditions of this Software License Agreement and Warranty Statement on behalf of the Licensee.  

The Terms and Conditions of a fully executed (signed) Software License Agreement between Licensee and Eagle TM shall override this Agreement.