SALE AND LICENSE
1.1 Subject to the terms and conditions hereof, Vendor agrees to sell and license to the Customer named above (“Customer”), and Customer agrees to purchase and license from Vendor, the products and materials described herein (collectively referred to as the System). This Agreement shall become effective only upon acceptance and approval in writing by an authorized representative of Vendor at the principal place of business of Vendor.
1.2 License of Software. Vendor grants to Customer, effective upon completion of delivery and installation of the System, (1) a non-exclusive license to use the applications software owned by Vendor hereto (the “Vendor Software”) and (2) a non-exclusive sublicense to use (in accordance with the terms provided by the owner thereof) the operating software provided in conjunction with the Hardware by the Hardware Manufacturer (the “Operating Software”) (the Vendor Software and the Operating Software hereinafter collectively referred to as the Software). Customer’s rights in the Software pursuant to such license and such sublicense are expressly limited to the use of the Software by Customer at the Installation Site in connection with the Hardware. Customer shall not assign or transfer the Vendor Software without prior written notice.
1.3 Scope of License Rights. You may:
a. Install the Licensed Program in your own facility at the location specified above,
b. Use the Licensed Program on the computers specified for purposes of serving the internal needs of your business
You may not use, copy, or modify the Licensed Program, or any copy, adaptation, transcription or merged portion thereof, except as expressly authorized by Licensor. Your rights may not be transferred except to (1) a successor in interest of your entire business who assumes the obligations of this Agreement without further cost or (2) any other party who enters into a substitute version of this Agreement, and pays an administrative fee of $100.00. No service bureau work, multiple-user license, or time-sharing arrangement is permitted, except as expressly authorized by Licensor. You may not install the Licensed Program in any other computer system or use it at any other location without Licensor’s express authorization obtained in advance (which will not be unreasonably withheld). Any use, copy or modification of the Licensed Program or transfer of possession of any copy, adaptation, transcription, or merged portion of the Licensed Program to any other party in any way not expressly authorized by Licensor or as permitted herein, shall be considered a material default. Customer shall be notified in writing of such material default and if not cured within ten days this License Agreement shall be subject to termination in accordance with Section 7.
2.1 Customer shall pay to Vendor the purchase price, which is inclusive of all license fees, fixes, patches, upgrades for the purpose of fixing bugs, set up costs, hardware warranties, installation, training and technical support for two years after the opening date of business. Thereafter Customer may purchase an annual service contract(s) at the then prevailing rate(s).
DELIVERY, INSPECTION, AND INSTALLATION
3.1 Site Preparation. Customer, at its expense and prior to delivery and installation of the Software at Customer’s principal place of business, shall prepare the Installation Site and shall cause the Installation Site to reasonably conform to any utility, climate control as such is possible and usual in the vended laundry industry, and communication interface specifications that Vendor or the manufacturer or vendor of the Hardware shall provide in writing no later than 60 days prior to the installation date.
3.3 Installation. Vendor shall provide start up and training, for a maximum duration of two days, of the Software at the Installation Site.
4.1 User Materials. Vendor may from time to time furnish Customer with drawings, diagrams, specifications, documentation and other materials, including user manuals, relating to the use and servicing of the System. Vendor reserves all right, title, and interest in any such materials pertaining to the Vendor Software, and Customer shall return such materials to Vendor at the expiration or termination of this License Agreement upon Vendor’s request.
PROPRIETARY PROTECTION OF SOFTWARE
5.1 Reservation of Title. This Agreement does not affect any transfer of title in the Software (or any materials furnished or produced in connection with the Software), including drawings, diagrams, specifications, input formats, source code, user manuals and including the media on which the same is furnished to Licensee. Customer acknowledges that (1) the Vendor Software (and all materials furnished or produced in connection with the Vendor Software), including without limitation, the design, programming techniques, flow charts, source code input data formats, enhancements, and maintenance modifications contain trade secrets of Vendor, entrusted by Vendor to customer under this Agreement for use only in the manner expressly permitted hereby, and (2) Vendor claims and reserves all rights and benefits afforded under federal law in the Vendor Software as an unpublished copyrighted work.
5.2 Preservation of Secrecy and Confidentiality; Restrictions on Access. Customer shall reasonably protect the Vendor Software (and all materials furnished or produced in connection with the Vendor Software) as trade secrets of Vendor, and Customer shall reasonably devote its efforts to ensure that all Customer’s personnel protect the Vendor Software as trade secrets of Vendor. Customer shall not, at any time, disclose such trade secrets to any other person, firm, organization, or employee that does not need (consistent with Customer’s right of use hereunder) to obtain access to the Vendor Software and the materials provided to Customer in connection with the Vendor Software. Trade Secrets shall be conspicuously designated by Vendor marking such documents as “Confidential” and shall be limited to information that is not publicly known or available to third parties, or has not been obtained through court orders, discovery procedures or other legal means.
5.3 Restrictions on Use of Software Generally. Neither the Software nor any materials provided to Customer in connection with the Software may be copied, reprinted, transcribed, or reproduced, in whole or in part, without the prior written consent of Vendor. Customer shall not in any way modify or enhance the Software (or any materials furnished or produced in connection with the Software) without the prior written consent of Vendor. Notwithstanding the foregoing in accordance with Customer’s license rights stated in Sections 1.2 and 1.3 user material may be extracted for the purpose of providing Customer’s attendants with training instructions.
5.4 Duration of Duties and Return of Software. The duties and obligations of Customer hereunder shall remain in full force and effect for so long as Customer continues to control, possess, or use the Software. At Vendor’s request Customer shall promptly return the Software, together with all materials furnished or produced in connection with the Software, upon (1) termination for cause of this Agreement or Customer’s license of the Software or (2) abandonment or other termination of Customer’s control, possession, or use of the Software.
WARRANTIES AND LIMITATIONS
6.1 Limited Warranty and Disclaimer.
a. Vendor Software Warranty. Vendor warrants, for the benefit of Customer only, that at the time Customer’s license of the Vendor Software commences, the Vendor Software conforms in all material respects to those specifications supplied in writing, included on Vendor’s website and as demonstrated at trade shows by Vendor and does not contain any material defect in its materials or workmanship.
b. Exclusive Remedy. As Customer’s exclusive remedy for any nonconformity or defect in the Software (or any other breach with respect to the condition or operation of the Software) for which Vendor is responsible, Vendor shall, during the TWENTY-FOUR (24) month period following the initial date of opening the business to third parties of the System at Customer’s address, provide reasonable efforts to timely correct or cure such nonconformity or defect.
c. Conditions Precedent. Vendor shall bear no responsibility for correcting, curing, or otherwise remedying any nonconformity or defect in the Software (or any other breach with respect to the condition or operation of the System) if (1) System is not properly installed; (2) the System is not maintained and operated under normal and usual conditions as applies to the vended laundry industry(3) the System incorporates spare or replacement parts that are not commensurate or compatible replacements for those purchased under this Agreement; (4) the System has been subjected to disassembly, modification, enhancement, abuse, or misuse; (5) the nonconformity or defect (or other breach with respect to the condition or operation of the System) has not been reported to Vendor with TEN (10) days after termination of such TWENTY-FOUR (24) month period; or (6) the nonconformity or defect (or other breach with respect to the condition or operation of the System) has arisen as a result of damage to the System occurring subsequent to delivery thereof to the Installation Site, unless in any such case, such event or condition directly results from the fault or negligence of Vendor.
d. Disclaimer. WITH THE SOLE EXCEPTION OF THE PRECEDING UNDERTAKINGS, VENDOR DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SYSTEM (INCLUDING THE HARDWARE, THE OPERATING SOFTWARE, AND THE VENDOR SOFTWARE) INCLUDING ITS CONDITION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, AND ITS MERCHANTABILITY OR FITNESS FOR ANY USE - OTHER THAN FOR THE VENDED LAUNDRY INDUSTRY. VENDOR FURTHER DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE NATURE AND QUALITY OF ANY OTHER PERFORMANCE BY VENDOR HEREUNDER.
6.2 Limitation of Liability; Exclusion of Lost Profits and Consequential Damages. The liability of Vendor to Customer for any claim whatsoever related to the System or this Agreement, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the total amount of all payments made under this Agreement by Customer to Vendor. In no event shall Vendor be liable to Customer for any loss of profits; any incidental, special, exemplary, or consequential damages; or any claims or demands brought against Customer by any other party, even if Vendor has been advised of the possibility of such claims or demands.
6.3 Force Majeure. . Vendor shall not be responsible for delays or failures in its performance resulting from acts or omissions beyond its control or from any events, acts, or omissions attributable to the manufacturer of the Hardware or the Operating Software, the vendor of the Hardware to Vendor, the licensor of the Operating Software to Vendor, or any maintenance vendors.
7.1 Any of the following shall constitute a “Customer Event of Default” under this Agreement:
a. Customer’s failure to pay to Vendor any material charge, cost, or other payment accruing hereunder, if such delinquency has not been corrected within THIRTY (30) days after Vendor has given Customer written notice of such delinquency.
b. Customer’s material failure to perform any other term, condition or covenant in this Agreement, including any act of repudiation or wrongful rejection of the System, if such failure has not been corrected within TEN (10) days after Vendor has given Customer written notice of such failure.
7.2 Upon the occurrence of a Customer Event of Default and subsequent to the cure period thereafter within ten days, Vendor may either (1) terminate this Agreement and invoke all rights Vendor possesses upon termination or (2) if Customer remains liable for any monetary obligation created under this Agreement, accelerate and declare all obligations of Customer created under this Agreement to be immediately due and payable by Customer as a liquidated sum and proceed against Customer in any lawful way for satisfaction of such sum, or repossess so much of the System as remains in Customer’s possession.
7.3 Any of the following shall constitute a “Vendor Event of Default” under this Agreement:
a. Failure by Vendor to fulfill any of the terms of this License Agreement as provided for in Sections 6.1 (a) and/or 6.1 (b) shall be considered to be a Vendor Event of Default.
7.4 Upon the occurrence of a Vendor Event of Default and subsequent to the cure period thereafter within ten days, Customer may either (1) terminate this Agreement and invoke all rights Customer possesses upon termination or (2) purchase such parts as required to properly operate the System and obtain reimbursement from Vendor or (3) engage the services necessary to properly operate the System and obtain reimbursement from Vendor.
7.5 No delay or failure of either party in exercising any right hereunder, nor any partial exercise thereof, shall be deemed to constitute a waiver of any rights granted hereunder or at law. The presence or absence of an Event of Default shall in no way prejudice or abridge the right of Vendor to seek and obtain in appropriate circumstances stoppage of goods in transit or reclamation of goods after delivery.
8.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois.
8.2 Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any and all prior and contemporaneous representations, proposals, agreements, negotiations, advertisements, statements, or understandings, whether oral or written. No amendment to this Agreement shall be binding on either party unless such amendment is in writing and is executed by authorized representatives of both parties to this Agreement.
8.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.
8.4 Notice. Any notices required or permitted under this Agreement shall be in writing and shall be effective when delivered in person or sent by registered or certified mail (return receipt requested, with proper postage affixed) or by personal courier to the address set forth in this Agreement or any more recent address of which the sending party has been apprised.