In order to gain the benefits of access to the Pando system, you must acknowledge and accept our standard end user licensing agreement. Once you’ve acknowledged by providing your information below, the Pando team will review your request and send your login credentials to the e-mail you provided.
Only authorized licensees of Aspen Search Advisors, LLC, d/b/a Aspen Advisors may use the software described in this document. This Software, commonly known as Pando, is a copyrighted work owned by Aspen Advisors and it may contain trade secrets and confidential proprietary information of Aspen Advisors and its partners or affiliates. Any use of this Software by an unauthorized user and/or any use by an authorized licensee that fails to comply with the terms and conditions of the End User License Agreement set out below may constitute (as applicable) breach of contract, copyright infringement and unlawful trade secret misappropriation in violation of U.S. and international laws.
IMPORTANT: YOU MUST READ AND AGREE TO THE TERMS AND CONDITIONS OF THE END USER LICENSE AGREEMENT SET FORTH BELOW BEFORE YOU CAN USE THE SOFTWARE.
AFTER YOU HAVE READ THE TERMS AND CONDITIONS SET OUT BELOW, CLICK ON THE “I ACCEPT” BOX AT THE END OF THE LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS, CLICK ON THE “NOT ACCEPTED” BOX AT THE END OF THE END USER LICENSE AGREEMENT AND DO NOT USE OR ATTEMPT TO ACCESS OR USE THE SOFTWARE.
BY EITHER (A) CLICKING THE “I ACCEPT” BOX, (B) AGREEING TO THE PROVISIONS BELOW THROUGH THE APPLICALBE SALES ORDER FORM OR OTHER FORM OF AGREEMENT OR ANY ACCOMPANYING DOCUMENTATION GRANTING YOU A LICENSE TO USE AND/OR ACCESS THE SOFTWARE OR (C) ACCESSING AND/OR USING THE SOFTWARE, YOU AGREE AND ACKNOWLEDGE THAT YOU HAVE ENTERED INTO A BINDING LEGAL CONTRACT WITH ASPEN ADVISORS. YOU FURTHER UNDERSTAND THAT THE TERMS AND CONDITIONS OF THE END USER LICENSE AGREEMENT DEFINE YOUR LIMITED RIGHTS TO USE THE SOFTWARE AND IMPOSE UPON YOU IMPORTANT LEGAL OBLIGATIONS AND RESPONSIBILITIES TO WHICH YOU AGREE TO BE BOUND. THE TERMS OF THE END USER LICENSE AGREEMENT MAY BE AMENDED FROM TIME TO TIME BY ASPEN WITHOUT NOTICE TO YOU. ALL AMENDMENTS HEREAFTER WILL BE BINDING ON ALL USERS 30 DAYS AFTER BEING ADOPTED AND POSTED PUBLICLY ON OUR WEBSITE.
END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (this “Agreement”) is by and between Aspen Search Advisors LLC (also known as Aspen Advisors), a New Jersey limited liability corporation with a place of business at 1745 Broadway, 17th Floor New York, NY 10019 (“we,” “us,” “our” or “Company”), and you (“you,” or “your”) and contains the rules, regulations, terms and restrictions pertaining to your use of the Software, as such term is defined below.
WE AGREE TO GRANT YOU A LICENSE TO USE THE SOFTWARE DEFINED BELOW ONLY UPON: (1) YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE ACKNOWLEDGEMENT OF YOUR INTENTION TO BE LEGALLY BOUND HEREBY AS EVIDENCED BY YOUR CLICKING ON THE “I ACCCEPT” BOX BELOW TO INDICATE YOUR ACCEPTANCE; AND (2) YOUR FULL AND TIMELY PAYMENT OF ALL APPROPRIATE LICENSE FEES AND ALL OTHER CHARGES AND FEES APPLICABLE TO THE USE OF THE SOFTWARE. PLEASE READ THIS DOCUMENT CAREFULLY. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT INSTALL, DOWNLOAD OR USE THE SOFTWARE.
(a) “Authorized User” means an employee or contractor who is granted general access to the Licensed Site (i.e., by badge, login, hyperlink, password or otherwise).
(b) “Evaluation License” means the licensing method utilized by us for the Pando Software product whereby such product is licensed for 30 days or some other specified duration in an executable form for the purpose of considering a commercial license of the Software. Any extension will require the procurement of a Commercial License or other agreement in writing.
(c) “Commercial License” means the licensing method utilized by us for the Pando Software product whereby such product is licensed in an executable form for a number of seats and number of instances determined by a sales order or statement of work that references either a limited or master services agreement signed by both Parties.
(d) “Backup License” means the licensing method utilized by us for the Pando Software product whereby such project is replicated in a reasonable number of backup copies necessary to support a Commercial License.
(e) “Documentation” means any user manuals, wiki, support materials, webcasts, specifications and other written materials pertaining to the Software approved or made available by us to our customers including, without limitation, any and all additions, updates or revisions, if any.
(f) “Intellectual Property” means all works, including literary works, pictorial, graphic and sculptural works, architectural works, works of visual art, and any other work that may be the subject matter of copyright protection; any word, symbol, configuration or combination thereof used to identify goods and/or services or any other identifiers of goods and/or services that may be subject matter of trademark protection, including all applications and registrations therefore and associated goodwill; advertising and marketing concepts; information; data; formulas; designs; models; drawings; computer programs, including all Documentation, related listings, design specifications, and flowcharts; trade secrets; and any inventions, including all ideas, know-how, processes, machines, manufactures and compositions of matter and any other invention that may be the subject matter of patent protection; and all statutory protection obtained or obtainable thereon.
(g) “Sales Order Form” means the document titled Sales Order Form or any other agreement or document that is executed by you and us and which provides various additional terms including, but not limited to, the applicable type and number of licenses and associated fees payable by you. All Commercial Licenses will involve a Sales Order Form. Evaluation Licenses may or may not involve a Sales Order Form. In the absence of an executed Sales Order Form or any other understanding between Aspen and you, the license granted to you shall be deemed an Evaluation License not to exceed (30) days in duration and no amounts shall be payable for such period of such license.
(h) “Software” means, collectively, the electronic copy(ies) of any one or more of the computer software programs used or accessed by you or provided by us, our agents, representatives or affiliates. Unless otherwise provided, Software is intended to mean the program commonly known as “Pando.”
(i) With respect to the Software, “use” shall mean accessing the Software in any way for any purpose.
You hereby agree and acknowledge that the Software is licensed and not sold to you. We retain all right, title, and ownership of the Software and Documentation, all related Intellectual Property and all subsequent full or partial copies, enhancements, modifications and other derivatives of the Software, Documentation and other applicable Intellectual Property. You agree and hereby assign to us all right, title and interest to all Intellectual Property created by you during the term of this Agreement that relates to the Software, whether created individually or as a joint venture, including without limitation all translations, compilations, partial copies, modifications, updates and related Intellectual Property and know-how in connection therewith, regardless of the form or media in or on which the same may exist; subject to the terms of any applicable Third Party License (see Section 7 below), ownership of the same will be vested solely in us. With respect to copyrights, this assignment is and will be effective for the entire duration of the copyrights and will include, but not be limited to all rights to derivative works. You shall not sell, transfer, publish, disclose, display or otherwise make available the Software, Documentation or copies of either to any other person, entity or non-human operated device not expressly permitted by us in writing. You agree to secure and protect each computer, workstation or terminal as well as the Software, Documentation and copies thereof and all related Intellectual Property in a manner consistent with the maintenance of our rights therein and the confidential and/or proprietary nature thereof and to take appropriate action, including by instruction or agreement with any of your employees or consultants who are permitted access to the Software, to assume and satisfy the obligations hereunder. All copies that you make of the Software and other Intellectual Property developed hereunder, including translations, compilations, partial copies with modifications and updated works, and Documentation shall be and remain the sole and exclusive property of us and our suppliers. You agree to place proper notice of copyright on all copies of the Software and Documentation as we may request from time to time.
3. License Grant.
(a) License Grant. During the term as determined in Section 9 below and subject to the other terms and conditions of this Agreement and the applicable Sales Order Form, we hereby grant you that number of Concurrent User Licenses (as applicable) set forth in the Sales Order Form (collectively, the “Licenses”) to use the Software (in object code form only) for your internal use. The License shall only be used by individuals who are Authorized Users. Notwithstanding anything to the contrary herein, the Licenses are personal, nonexclusive, nontransferable and non-sublicensable by you. We and our suppliers reserve all rights to the Software not expressly granted to you in this Agreement. A non-human operated device or system is counted as an Authorized User in addition to all individuals authorized to use or access the Software, if such device or individual Authorized User can access the Software.
(b) Authorized Uses. Subject to the terms and conditions of this Agreement, we hereby grant you a personal, nontransferable, non-sublicensable and nonexclusive license to use the Software in executable run-time code and to use the hard copy/electronic copy of the associated Documentation. You may only load and run one copy of the Software on one computer or server at a time. Without our prior written consent, your use of the Software is strictly limited to use for your internal business purposes related to the operation of human resource, human capital, recruiting, talent, and other human resource related activities. You may not use the Software for non-human resource analysis such as analysis in finance, operations, sales, marketing, supply chain, product development, and other non-HR areas without written permission of Aspen Advisors. Additional licensing or purchases shall be required to use the Software for non-HR uses. You may make one archival copy of the Software for back-up purposes only, known as the Backup License, and you must hold such copy in a secure location and use it only in the event, and for so long as, the operational copy ceases to function. For each copy of the Software that you desire to download or use, you must enter into a new End User License Agreement with us.
(c) Prohibited Acts and Uses. You shall not: (1) use the Software, except in strict accordance with the terms and conditions of this Agreement; (2) distribute, rent, lease, sublicense or publicly display any portion of the Software; (3) modify or prepare derivative works of the Software; (4) translate the metadata created by the Software;; (5) permit any third party to access or use the Software; (6) decode, decompile, disassemble or otherwise reverse engineer the Software; (7) run, copy or use the Software (or any part thereof) except as is authorized by this Agreement or in accordance with our instructions/guidance; (8) remove, obscure or alter any notice of copyright, patent, trade secret, trademark, logo or other proprietary right appearing in or on the Software or Documentation; (9) use a Software license or the meta data created by the Software for outsourcing, access through a service bureau, time-sharing, or application service provider arrangement without express written permission by us or (10) use the Software for comparison or as a model of the creation of competitive or substitute products.
(d) Transfer. You may not assign or transfer the Software to a third party, whether directly or indirectly, by operation of law or otherwise, without our prior written consent, which consent may be withheld in our sole discretion. In addition, our consent may be conditioned on the transferee’s written acceptance of all of the terms and conditions of this Agreement and such other terms as we shall deem necessary or desirable in our discretion. Also, prior to any transfer the transferee must register with us and be approved as an authorized licensee. If you transfer the Software as stated herein, you must transfer all computer programs and documentation and erase any electronic copies residing on your computer equipment. Any purported transfer that fails to comply with the terms of this subsection 3(d) or any other terms or conditions of ours will be null and void and you will remain bound by the terms and conditions of this Agreement. Upon transfer of the Software in accordance with the terms and conditions herein, your license will automatically terminate with the understanding that you will remain bound indefinitely by the provisions of subsection 3(c) and Section 4 of this Agreement as well as your obligation to satisfy all outstanding payment obligations.
(e) Location and Relocation of Software. The location(s) where the Software may be installed is set forth in the Sales Order Form (the “Licensed Site”). Unless expressly set forth to the contrary in the applicable Sales Order Form, locations that are under your direct custody and control shall qualify as a Licensed Site(s). Subject to the terms and conditions of this Agreement, you may move the Software no more than one time per calendar year to a different Licensed Site provided that you provide us written notice of the address of the new Licensed Site at least 30 days prior to such move such that our connection and access to the new Licensed Site is available and operational. Except as otherwise expressly authorized herein, any other relocation of the Software requires our prior written approval.
4. Confidentiality; Non-Use, Non-Disclosure; Non-Circumvention.
The Software and Documentation, all related Intellectual Property, and any information learned or discovered by you about the performance or source of the Software or components thereof, including without limitation our licensors and other sources of all or any portion of the Software, in the course of use under this Agreement constitutes proprietary trade secret information owned solely and exclusively by us (collectively, “Confidential Information”).
Notwithstanding the foregoing, Confidential Information shall not include any information which:
(a) is already in the public domain or becomes available to the public through no breach of this Agreement by the receiving party;
(b) was in the receiving party’s possession prior to receipt from the disclosing party, as proven by the receiving party’s written records;
(c) is received by the receiving party from a third party free to disclose such information to User; or
(d) is required to be disclosed by applicable statute or regulation or by judicial or administrative process, provided that the receiving party shall notify the other party of such in writing as soon as practical.
YOU WILL NOT, WITHOUT OUR PRIOR WRITTEN CONSENT: (i) USE THE CONFIDENTIAL INFORMATION OTHER THAN TO USE THE SOFTWARE AS AUTHORIZED BY THIS AGREEMENT; (ii) DISCLOSE ANY CONFIDENTIAL INFORMATION TO ANY THIRD PARTY; OR (iii) FAIL TO USE BEST EFFORTS TO SAFEGUARD THE CONFIDENTIAL INFORMATION FROM UNAUTHORIZED USE, COPYING, OR DISCLOSURE. THE FOREGOING OBLIGATIONS (subsections i-iii) OF THIS SECTION OF THIS SECTION SHALL APPLY FOR THE TERM OF THIS AGREEMENT AND SHALL SURVIVE THIS AGREEMENT WITHOUT LIMITATION IN DURATION.
(iv) IF WE DISCLOSE TO YOU, OR YOU LEARN THE IDENTITY(IES) OF ANY OUR LICENSORS, SUPPLIERS OR OTHER STRATEGIC PARTNERS, REGARDLESS OF WHETHER SUCH INFORMATION CONSTITUTES CONFIDENTIAL INFORMATION, YOU SHALL NOT, WITHOUT RECEIVING OUR PRIOR WRITTEN CONSENT, DIRECTLY OR INDIRECTLY DEVELOP WITH, ACQUIRE FROM, OR OTHERWISE ENDEAVOR TO OBTAIN FROM ANY OF OUR LICENSORS, SUPPLIERS OR OTHER STRATEGIC PARTNERS, THE SOFTWARE OR ANY PORTION OF THE SOFTWARE OR OTHER TECHNOLOGY, SOFTWARE OR ANOTHER PLATFORM OR APPLICATION SUBSTANTIALLY SIMILAR IN FUNCTION OR UTILITY TO THE SOFTWARE. For the avoidance of doubt, the obligations of this subsection (iv) shall not limit you from seeking or obtaining competitive products, but instead shall only limit direct or indirect efforts to circumvent us to obtain the same or similar services from our licensors, suppliers or other strategic partners. This subsection iv shall apply for the term of this agreement and shall continue in effect for a period of 18 months after termination or expiration of this agreement.
Violation of any provision of this Section 4 shall be a basis for immediate termination of this Agreement and all license(s) granted herein, which remedy shall be in addition to and shall not limit all remedies available at law or in equity.
5. Fees; Support and Maintenance.
(a) Fees; Payment Terms. You agree to timely pay us (or, if applicable, one of our third party resellers) the license fees and all other fees set forth in the Sales Order Form. All invoices are due and payable upon receipt unless indicated otherwise on the Sales Order Form. All outstanding amounts over thirty days past due will be charged a 1.5% late charge per month on the outstanding balance and you shall be responsible for reimbursing us for any and all costs and expenses incurred by us in collecting past due amounts, including, but not limited to, reasonable attorneys’ fees and costs. Unless otherwise agreed to herein, any preprinted terms set forth on your purchase order shall be considered null and void and of no effect.
(b) Support and Maintenance. Support may include bug repairs, software upgrades, and email and phone support to answer questions relating to the operation and administration of the Software. No part of the above fees relates to, and we shall have no obligation by virtue of this Agreement to provide, maintenance and support services in connection with all or any part of the Software or to provide modifications, upgrades or customizations of all or any portion of the Software. We make available to you the ability to acquire, at potentially an additional cost, support and maintenance services and/or professional services for the provision of modifications, upgrades and/or customizations of the Software. Our agreement to provide any such services would be subject to the parties entering a separate written agreement defining the scope and possible cost of such services. In the event that we provide you any such services at your request without a written agreement, you hereby agree to pay us at our then current list rates and charges for such services.
6. Warranties; Disclaimers; Limitations.
(a) We warrant that: (1) to our knowledge the Software does not infringe the Intellectual Property rights of any third party; (2) at the time you install the Software, it will be free from material defects; and (3) for a period of ninety (90) days the Software will substantially conform to the specifications that are published at the time of your installation. We make no warranty or representation that the Software will be bug or error free, or, except as may be stipulated in the published specifications included within the Documentation, that use of the Software will achieve any particular result(s). EXCEPT FOR THE LIMITED EXPRESS WARRANTY STATED IN THIS AGREEMENT, THIS SOFTWARE IS PROVIDED “AS IS, WHERE IS AND WITH ALL FAULTS”, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. IN ADDITION, WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE INFORMATION OR AGAINST INFRINGEMENT.
THIS LIMITED WARRANTY DOES NOT APPLY AND WILL AUTOMATICALLY TERMINATE IN THE EVENT THAT (A) YOU COMMIT ANY OF THE PROHIBITED ACTS AND/OR USES SPECIFIED IN SUBSECTION 3(c) ABOVE, (B) THE SOFTWARE IS USED IN ANY WAY OTHER THAN A MANNER AUTHORIZED HEREIN, (C) THE SOFTWARE IS USED WITH INADEQUATE OR DEFECTIVE HARDWARE, (D) THE SOFTWARE IS MODIFIED WITHOUT OUR PRIOR WRITTEN AUTHORIZATION, OR (E) THE SOFTWARE IS DAMAGED AND/OR RENDERED DEFECTTIVE AS A RESULT OF ANY OF THE ACTS OR OMMSSIONS OF YOU OR ANY THIRD PARTY WHETHER DURING ISNTALLATION, SERVICING OR OTHERWISE.
(b) You must notify us in writing, within ninety (90) days of your acceptance of the Software and engagement of a Commercial License of your claim of any alleged defect. If we determine that the Software is in fact defective, our sole obligation under this warranty is to remedy such defect in a manner consistent with our regular business practices. In the event that we are unable to remedy such defect within a reasonable period of time, we may terminate the license granted hereunder by written notice to you, in which event you may be entitled to a refund of license fees you have paid for the most recent version of the Software you have received.
(c) COMPANY SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS LICENSE AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT COMPANY’S LIABILITY IN CONNECTION WITH THE SOFTWARE, WHETHER ARISING IN CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY SHALL NOT EXCEED THE LESSER OF (i) THE AMOUNT PAID BY YOU TO COMPANY FOR THE SOFTWARE, OR (ii) $50,000. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE SUBJECT MATTER OF THIS LICENSE AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
YOU UNDERSTAND AND AGREE THAT COMPANY IS NOT ENGAGED, AND DOES NOT PURPORT TO BE ENGAGED, IN YOUR BUSINESS AND YOU ASSUME ALL RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO ANY DECISION YOU MAKE OR ACTION YOU MAY TAKE AS A RESULT OF YOUR USE OF THE SOFTWARE. THE LIMITATIONS OF WARRANTIES, LIABILITIES AND REMEDIES UNDER THIS AGREEMENT ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER TO OBTAIN THE SOFTWARE AT THE SPECIFIED LICENSE FEE. YOU AGREE TO ASSUME THE RISK FOR: (i) ALL LIABILITIES DISCLAIMED BY COMPANY CONTAINED HEREIN AND (ii) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT OF THE REMEDY PROVIDED HEREUNDER. THE ESSENTIAL PURPOSE OF THE LIMITED REMEDY PROVIDED TO YOU HEREUNDER IS TO ALLOCATE THE RISKS AS PROVIDED ABOVE. YOU ALSO AGREE THAT COMPANY IS NOT RESPONSIBLE FOR ANY LOSS OF YOUR DATA REGARDLESS OF CAUSE AND THAT IT IS YOUR RESPONSIBILITY TO MAKE REGULAR DATA BACKUPS AND TO MAINTAIN AND TEST DATA RECOVERY PROCEDURES. THE SOFTWARE HAS BEEN DESIGNED TO REPLICATE DATA FROM SOURCE SYSTEMS, AND IS NOT DEISGNED TO UPLOAD DATA INTO SECONDARY SYSTEMS. IT IS NOT TO BE USED AS A SOLE SYSTEM OF DATA STORAGE, AND ANY DATA UPLOAD THAT IS NOT REPLICATED IN ANOTHER SOURCE SYSTEM IS YOUR FULL RESPONSIBILITY, AND IS YOUR FULL RESPONSIBILITY TO EXECUTE REGULAR DATA BACKUPS. WE SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO FIXES, UPGRADES OR ENHANCEMENT BY YOU OR THIRD-PARTY VENDORS.
(d) Some legal jurisdictions do not allow the exclusion of implied warranties, so the above limitations may not apply to you. This warranty gives you specific legal rights, and you may also have other rights, which vary from jurisdiction to jurisdiction.
(e) You agree that in order to prevent a use of the Software which is inconsistent with this Agreement, we may place an automatic restraint in the Software which would prevent the Software from being used after the expiration of the Agreement or authorized number of uses or locations.
7. Third Party Software.
(a) You understand and acknowledge that the Software includes third party software including without limitation, open source software, and other materials not owned by us (collectively, the “Third Party Software”). Your use of the Third Party Software, and hence our Software, is subject to the terms and conditions contained in the license agreements that we entered into with the providers of the Third Party Software (“Third Party Licenses”). Pursuant to the terms of the applicable Third Party Licenses, you should be aware that we may not own the right, title and interest in certain materials, products or Intellectual Property that we create or develop using such materials and associated Intellectual Property obtained by virtue thereof. You hereby understand and agree to be bound by the terms and conditions of all Third Party Licenses that we may be bound by with respect to the Software. Any and all information on Third Party Licensing can be found at www.myaspenadvisor.com. That website may provide a list of our Third Party Software, as well as certain copyright information and other details on how to access the terms of such Third Party Licenses. The document “Third Party Software Terms and Conditions,” and the information and terms set forth therein, is subject to change from time to time in our sole discretion. Any such changes will be deemed binding upon our posting new information related to Third Party Licensing at the above referenced URL. By clicking the “I Accept” box, you acknowledge that you have either seen the terms and conditions of all such Third Party Licenses relating to the Software or that you have had the opportunity to seek information from us concerning the terms of all such licenses and you have declined to exercise this right. Without limiting Section 4 above, if we disclose to the identity(ies) of one or more of our third party software vendors, you and your affiliates shall be prohibited from directly or indirectly obtaining, or endeavoring to obtain, software similar to or competitive with, the Software during the term of, and for a period of 18 months following termination or expiration of, this Agreement.
(b) Neither Aspen Advisors nor any of its third party suppliers makes any representations or warranties, expressed or implied, regarding any Third Party Software. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THIRD PARTY SOFTWARE IS AT YOUR SOLE RISK AND ALL SUCH THIRD PARTY SOFTWARE IS PROVIDED “AS IS, WHERE IS AND WITH ALL FAULTS” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM ASPEN ADVISORS OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY SOFTWARE.
(c) You shall not (i) remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Third Party Software or that appear during use of any Third Party Software; or (ii) reverse engineer, decompile, or disassemble any Third Party Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(a) Our Indemnity Obligations to You. Provided that (a) you shall notify us in writing of any claim of infringement promptly after it has been made, (b) we shall have exclusive control over the defense and settlement of the proceeding, (c) you shall provide such assistance in defense of the proceeding as we may reasonably request, at our reasonable expense, and (d) you shall comply with any settlement or court order made in connection with the proceeding, we agree to indemnify, defend and hold you harmless from and against any claim, judgment, damages or expenses (including reasonable attorneys’ fees and costs) arising from a third-party claim that the Software as used by you in strict accordance with this Agreement violates the third party’s Intellectual Property rights. In the event that use of the Software becomes, or in our reasonable opinion is likely to become, the subject of a claim of infringement of any Intellectual Property right of any third party, we shall have the right to: (i) procure the continuing right for you to use the Software; (ii) replace or modify the Software in a functionally equivalent manner so that it no longer infringes; or (iii) terminate this Agreement and the underlying licenses and refund to you an amount equal to the depreciated license fee that you paid (calculated on a straight line basis over a five (5) year life). We shall have no liability or obligation under this Agreement or otherwise to you or any other indemnities or anyone claiming through or on behalf of you or any indemnities for any patent, copyright, trade secret or other Intellectual Property infringement or misappropriation or any claim thereof based upon (i) compliance with one or more designs or specifications provided by you, (ii) use of a superseded or altered release of the Software if such infringement would have been avoided by use of a current release, (iii) the combination or use of the Software with software, hardware or other materials not furnished by us if such infringement would have been avoided by use of the Software alone, (iv) use of any aspect of the Software in an application or environment for which it was not designed or contemplated, or (v) any claim of infringement of an intellectual property right in which you or an affiliate thereof has an interest or license. The foregoing states our entire liability with respect to infringement or misappropriation of any Intellectual Property rights and is in lieu of (and we hereby disclaim) any other warranty, express or implied, as to any infringement or misappropriation
(b) Your indemnity Obligations to Us. Provided that we notify you in writing of any claim hereunder promptly after it has been made, you agree to indemnify, defend and hold us harmless from and against any claim, judgment, damages or expenses (including reasonable attorneys’ fees and costs) arising from any third-party claim alleging, in part or in whole, any of the following: (1) that your acts, including without limitation any written or oral advice, or omissions in connection with the Software (including Third Party Software) and/or Documentation caused any third party injury, damage, or loss of any type; (2) infringement of such third party’s rights, including without limitation its Intellectual Property rights, following any act or omission by you in contravention of Section 3 of this Agreement; (3) that you failed to pay any part of fees, charges or other costs for use of any Third Party Software (if applicable); and/or (4) that you violated the terms of any Third Party Licenses by which we and/or you are bound pursuant to the provisions of Section 7 of this Agreement. In no event will you settle any such claim, lawsuit or proceeding without our prior, written approval.
9. Term and Termination.
You may terminate this license at any time by ceasing all use of the Software and deleting all copies of the Software and Documentation in your possession and from all storage media. We may terminate this license at any time if you fail to pay any fees within thirty (30) days of the date of invoice, and/or if you breach any term of this Agreement. In addition, we may terminate this Agreement immediately in the event you: (i) terminate or suspend business; (ii) become subject to any bankruptcy or insolvency proceeding under Federal or state statute; (iii) become insolvent or become subject to direct control by a trustee, receiver or similar authority; or (iv) violate the provisions of Section 2 or 3 or otherwise infringe our Intellectual Property. Upon termination of this Agreement for any reason, you agree to cease using the Software and to delete all copies (in a way that prevents undeletion) in your possession and/or from all storage media. In addition, you agree to return any Confidential Information to us. Without limiting any of the above provisions, in the event of termination, you shall continue to be obligated for any payments due. Termination of this Agreement shall be in addition to and not in lieu of any other remedies available to us.
10. General Terms
(a) Taxes. You shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, federal, state, or otherwise, however designated which are levied or imposed by reason of the transactions contemplated by this Agreement. You shall be responsible for the direct payment of sales taxes imposed by jurisdictions other than the State of New York. Without limiting the foregoing, you shall promptly pay us an amount equal to any such items actually paid by us or that we are otherwise required to collect or pay on your behalf. Any such tax will be indicated on the Sales Form.
(b) Entire Agreement. This Agreement is the entire End User Licensing Agreement and supersedes any other written or oral Agreement between the parties with respect to the Software. This Agreement cannot be modified except by a written instrument executed by duly authorized representatives of each party.
(c) Governing Law. This Agreement shall be governed by the substantive law of the State of New York, without regard to its conflict of law rules. Any action in connection with this Agreement or the Software shall be commenced and maintained only in the United States District Court for the Southern District of New York, or in a state court of competent jurisdiction seated within the boundaries of said federal court, and you consent to personal jurisdiction and venue in any such court.
(d) Audit Rights. In the event that your organization elects to use an on-premise edition of the software, and locate it behind your firewall or in a cloud based solution that we are not in direct administrative control of, we shall have the right to gain access to, examine and audit all locations, servers, computers, records, accounts and other information of yours and/or any Authorized Users as may be necessary for us, in our sole discretion, to examine for purposes of determining whether you are in compliance with the terms and conditions of this Agreement including, but not limited to, whether you are in compliance with the license rights under this Agreement, including amount and type of use and number of Authorized Users. It is your responsibility to inform us on the precise location of the evaluation, commercial, and or backup licenses of the software to avoid unnecessary audit of other hardware, software, servers or locations. Aspen Advisors will maintain administrative access to a hosted edition or virtual private network access (VPN access) to any on-premise installation. You shall cooperate with, and provide all information reasonably requested by, us in the course of any audit conducted hereunder. To the extent your use exceeds the scope of the license(s) granted hereunder or if you otherwise breach any other term or provision of this Agreement in any material respect, in addition to any other charges and fees applicable to such use or breach, you shall be obligated to reimburse us for the entire cost and expense in performing the audit.
(e) Severability. If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
(f) Waiver. Our waiver or failure to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
(g) Relationship of Parties. The parties hereto are independent businesses, and nothing in this Agreement or the conduct of the parties pursuant hereto shall establish, or be construed to establish, a relationship of principal/agent, franchisor/franchisee, employer/employee, master/servant, or otherwise.
(h) Survivability. The rights and obligations of both parties, which by their nature would continue beyond the termination or transfer of this Agreement will so survive, including without limitation, the provisions of Sections 2, 3(b), 4, 6(c), 7, 8, 9, and 10.
(i) Costs of Enforcement. You agree to reimburse us for all reasonable expenses we may incur in enforcing any provision of this Agreement including, without limitation, attorneys’ fees and costs.
(j) Force Majeure. Neither party shall be in breach of this Agreement or responsible for damages caused by delay or failure to perform in full or in part its obligations hereunder, provided that there is a due diligence in attempted performance under the circumstances and that such delay or failure is due to one of the following events of force majeure: fire, earthquake, unusually severe weather, strikes, government sanctioned embargo, flood, act of God, war, act of any public authority or sovereign government, civil disorder, delay or delay of destruction caused by public carrier, or any other circumstances substantially beyond the control of the party to be charged, and which cannot be reasonably forecast or prevented.
(k) Government Use (if applicable). The Software is provided to the Government only with restricted rights and limited rights. Use, duplication, or disclosure by the Government is subject to restrictions set forth in FAR Sections 52-227-14 and 52-227-19 or DFARS Section 52.227-7013(C) (1) (ii), as applicable. All technical data relating to Software is subject to limited rights so long as this Agreement is in effect. We reserve all unpublished rights under U.S. copyright laws. Contractor/Manufacturer is Aspen Advisors, Inc.