LEGADO SYSTEMS
END USER LICENSE AGREEMENT
This software license agreement (this “Agreement”) is a legal and binding agreement between you, as the “end user,” and Legado Systems, LLC. Use of the software indicates your acceptance of the terms and conditions of this Agreement. You also agree to accept this Agreement by signing below.
“Account” means a unique account established by you to enable your Authorized Users to access and use the Software.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized User” means any employee or agent of you, identified by a unique email address and user name, who is registered under the Account, provided that no two persons may register, access or use the Software as the same Authorized User.
“Business Data” means data, documents and information that you place on the Software.
“License” means a limited, nonexclusive, nontransferable, non-sub-licensable right to use the Software.
“Maintenance” means those services provided to you by Legado Systems pursuant to Section 9 if you have purchased a Monthly Maintenance Plan from Legado Systems.
“Open Source Software” means third party components, other copyrighted material, and/or open source software which may be subject to certain “open source” or ”free software” licenses.
“Seat” means an active Authorized User listed in the membership of an Account at any one
time. No two individuals may log onto or use the Software as the same Authorized User, but you may unregister or deactivate Authorized Users and replace them with other Authorized Users without penalty, so long as the number of active Authorized Users registered at any one time is equal to or less than the number of Seats purchased.
“Security Emergency” means: (i) use of the Software that does or could disrupt your use of the Software, other customers’ use of the Software, or the infrastructure used to provide the Software, and (ii) unauthorized third party access to the Software.
“Software” means the Legado Systems software and accompanying documentation made or provided by Legado Systems.
“Update” means any subsequent release of the Software that Legado Systems generally provides to its customers who are enrolled in and fully paid up under a Monthly Maintenance Plan.
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“Term” means the period of effectiveness of this EULA, as specified in Section 3 below.
1. Ownership. The Software and any accompanying documentation are owned by Legado Systems or its licensors and are protected under U.S. copyright and other laws and international treaty provisions. Ownership of the Software, and all copies, modifications and merged portions thereof will always remain with Legado Systems and/or its licensors. This Agreement does not constitute a sale of the Software or related documentation or any portion thereof. Without limiting the foregoing, you do not receive any rights to any patents, copyrights, trade secrets, trademarks, or other intellectual property rights in, on, or to the Software or related documentation. Rights not expressly granted to you under this Agreement are reserved to Legado Systems.
Business Data belongs to you. Legado Systems, including its agents, representatives, employees, officers, directors, predecessors, successors, assigns, subsidiaries, parents, affiliates, and vendors, disclaim any ownership interest in your Business Data.
2. Grant of License. The Software and accompanying documentation are licensed to you, which means you have the right to use the Software only in accordance with the license of this Agreement. Legado Systems grants you a limited, nonexclusive, nontransferable, non-sub- licensable right (the “License”) to use the Software as follows:
(a) Multiple User “Floating” License. You are authorized to permit the number of Licensed users for which you have purchased Licenses to access the Software online at any time. But neither the number of running instances of the Software nor the number of Authorized Users simultaneously having access to the Software may exceed at any one time the number of floating Seats licensed.
(b) Single User License. Unless you have purchased a multiple user License, you are authorized to use a single copy of the Software.
3. Term of License. This Agreement is effective from the date on which all license fees have been paid by you and received by Legado Systems. This License will remain in force so long as, and to the extent that, you remain current in the payment of all required fees and otherwise are in full compliance with this Agreement. In the event of any material breach by you of this Agreement, or of any failure on your part to timely pay required fees when due, the License will automatically terminate for any number of users for which fees or renewal fees have not been paid. If the number of users of the Software is reduced, then access to the Software must be limited accordingly to comply with the number of authorized users under the multiple user license.
4. Scope of Use. You may not sublicense or lease the Software, or any of the accompanying documentation, to any other person. You may use the Software only for your own personal use if you are an individual or for your own internal business purposes if you are a business. You may use the Software in connection with services you provide to other persons or entities, but you may not time share, or use the Software to process data for any other person or entity.
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5. Nonpermitted Uses. Without the express permission of Legado Systems, you may not directly or indirectly (i) use, copy, modify, alter, display, or transfer, electronically or otherwise, the Software or any of the accompanying documentation, except as expressly permitted in this Agreement, nor (ii) translate, reverse program, disassemble, decompile or otherwise reverse engineer the Software.
6. Usage Verification. At Legado Systems’ written request, and no more than once every twelve (12) months, you will permit Legado Systems to review and verify your deployment and use of the Software for compliance with the terms and conditions of this Agreement, at Legado Systems’ expense. Any such review will be scheduled at least ten (10) days in advance, will be conducted during normal business hours, and will not unreasonably interfere with your business activities. Within ten (10) days of any review or certification that finds your use of the Software to be greater than that licensed, you will pay for the applicable number of additional licenses and pay all applicable fees associated therewith.
7. Injunctive Relief. The parties agree that if you utilize or otherwise use any of the Software in an unauthorized manner, or breach the remaining terms and conditions of this Agreement, that such use or breach would have a devastating and serious impact on Legado Systems’ continuing ability to compete profitably and would, therefore, result in immediate and irreparable injury, loss or damage to Legado Systems. The parties agree that in such event, in addition to Legado Systems’ right to recover damages for a breach of this Agreement, Legado Systems will be entitled to obtain a temporary restraining order or a preliminary injunction from a court of competent jurisdiction, without posting of bond or other security or proof of actual damages, to prevent you, your employees, agents, consultants, or independent contractors from engaging in any further use, copying, reproduction, distribution, modification, adaptation, or making of derivative works or display of the Software or the continued breach of the remaining terms and conditions of this Agreement.
8. Suspension.
(a) Of Your Account by Legado Systems. If you (i) violate this Agreement or (ii) use the services in a manner that Legado Systems reasonably believes will cause it liability, then Legado Systems may suspend or terminate your account.
(b) Security Emergencies. Notwithstanding anything in this Agreement, if there is a Security Emergency then Legado Systems may automatically suspend your use of the Software. Legado Systems will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency.
(c) Digital Millennium Copyright Act (DMCA). In accordance with DMCA safe harbors, Legado Systems may suspend any use of the Software, or remove or disable any content Legado Systems reasonably and in good faith believes violates applicable laws or regulations.
9. Maintenance. Monthly Maintenance Plan (MMP) is required for you to have access to our support technicians for technical issues. MMP includes same version software updates and general technical support for trouble shooting. Product configuration, version upgrades and training are not included in MMP but are available and billable according to the current pricing.
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So long as you remain current in the payment of all required fees including the MMP fee, you will be entitled to maintenance services, subject to Legado Systems’ standard maintenance terms to end users (which terms are subject to change without notice). If you request additional onsite maintenance services, Legado Systems may (but will not be obligated to) provide such services at its standard rates, plus out-of-pocket expenses.
10. Limited Warranty.
(a) Legado Systems warrants to you, the original end user, that the Software will perform substantially in accordance with the accompanying documentation. Legado Systems does not warrant that the Software is error-free or that the Software will operate without interruption. This Limited Warranty extends for ninety (90) days from the date the Software is paid for or used, whichever occurs first.
(b) Legado Systems does not warrant any maintenance services that may be provided to you.
(c) This Limited Warranty does not apply to any Software that has been altered, damaged, abused, misapplied, or used other than in accordance with this Agreement and any instructions included on the Software or in accompanying documentation.
(d) LEGADO SYSTEMS SPECIFICALLY DISCLAIMS LIABILITY OR RESPONSIBILITY OF ANY KIND FOR DEFECTS, ERRORS, OR OTHER MALFUNCTIONS THAT ARE ATTRIBUTABLE IN WHOLE OR IN PART TO ANY COMPUTER HARDWARE OR SOFTWARE THAT IS NOT PRODUCED OR SOLD BY LEGADO SYSTEMS, INCLUDING BUT NOT LIMITED TO ANY INCOMPATIBILITY OF THE SOFTWARE WITH ANY COMPUTER HARDWARE OR SOFTWARE THAT IS NOT PRODUCED OR SOLD BY LEGADO SYSTEMS.
(e) YOU AGREE THAT LEGADO SYSTEMS IS NOT A “FINANCIAL INSTITUTION” UNDER THE GRAMM-LEACH-BLILEY ACT.
(f) For any breach of this Agreement by Legado Systems, including under the Limited Warranty, Legado Systems’ entire liability, and your exclusive remedy, will be the repair of any Software that fails to conform to this Limited Warranty or, at Legado Systems’ option, return of the license fees paid by you for the Software. THIS LIMITED WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, COMPATIBILITY OF HARDWARE AND SOFTWARE, AND WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING.
(g) THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS WHICH VARY FROM STATE TO STATE.
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11. Indemnity. You agree to defend, indemnify, and hold harmless Legado Systems and its members, officers, directors, affiliates, employees, attorneys, resellers, partners and agents, from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal, accounting, and computer or systems engineer fees, arising out of or in any way connected with your access to or use of the Software, or any Third Party application associated with this Software, or your violation of this Agreement, including without limitation third party claims that any Business Data submitted to the Software by or through you infringes or misappropriates any intellectual property right, privacy rights, publicity rights, or moral rights of any third party.
12. Limitation of Liability. Except for a return of the license fees under the circumstances provided under the Limited Warranty, NEITHER LEGADO SYSTEMS, NOR ITS LICENSORS WILL IN ANY EVENT BE LIABLE FOR ANY MONEY DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, PRODUCT LIABILITY, ARTICLE 2A OF THE UCC, MALPRACTICE, OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF LEGADO SYSTEMS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL LEGADO SYSTEMS’ LIABILITY RELATED TO ANY OF THE SOFTWARE EXCEED THE LICENSE FEES ACTUALLY PAID BY YOU FOR THE SOFTWARE. Without limiting the generality of the foregoing, Legado Systems will not be liable for losses arising out of any business interruption, any loss of business profits, or loss of business information caused by or in any way related to the use of, or inability to use, the Software, even if Legado Systems has been advised of the possibility of such losses. Because some jurisdictions or states do not allow the exclusion or limitation of liability for incidental or other damages, some parts of the above limitation may not apply to you.
13. Agreement to Mediate and Arbitrate. You and Legado Systems agree to attempt to resolve any claims relating to this Agreement through mediation. Mediation will be held in Fort Worth, Texas. Should mediation prove unsuccessful, you and Legado Systems agree to resolve any claims relating to this Agreement through final and binding arbitration. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in Fort Worth, Texas.
14. No Class Actions. You may only resolve disputes with Legado Systems on an individual basis and will not bring a claim in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
15. Choice of Law/Forum. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without regard to conflict of laws provisions. You waive any objection based on inconvenient forum and any objection to venue of any action instituted under this Agreement by Legado Systems in any jurisdiction. The provisions of the United Nations
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Convention on Contracts for the International Sale of Goods are expressly excluded from this Agreement and from any transaction that may be implemented in connection with this Agreement.
16. Marketing. You agree to be identified as a customer of Legado Systems and agree that Legado Systems may refer to you by name, trade name and trademark, if applicable, and may briefly describe your business in Legado Systems’ marketing materials and web site. You hereby grant Legado Systems a license to use your name and any of your trade names and trademarks solely in connection with the rights granted to Legado Systems pursuant to this marketing section.
17. Trademark. Legado Systems and other trademarks contained in the Software are trademarks or registered trademarks of Legado Systems in the United States and/or other countries. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software.
19. Third Party Acknowledgement and Terms. The Software licensed under the terms and conditions of this Agreement may use or include Open Source Software. Your use of such components, other materials, and/or Open Source Software is governed by their respective terms and conditions and nothing in this Agreement limits your rights under or grants you rights that supersede the terms and conditions of any such applicable third party terms and conditions.
18. Third Parties. There are no third-party beneficiaries to this Agreement. Legado Systems will not be responsible to third parties for any act or omission on your part, including granting third parties access to or use of data, and Legado Systems does not warrant or support any service provided by you.
20. Export Controls. Certain uses of the Software by you may be subject to restrictions under U.S. regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users and end use. By installing or using the Software, you are agreeing to the foregoing and you are representing and warranting to Legado Systems that you are not located in, under the control of, or a national or resident of any such country or on any such list. The countries subject to restriction by action of the United States federal government are subject to change, and it is both Legado Systems’ and your responsibility to comply with the United States government requirements as they may be amended from time to time.
21. Amendment and Modification. Legado Systems reserves the right to amend or modify this Agreement at any time and in any manner at Legado Systems’ sole discretion by: (a) posting a revision to our website; or (b) sending information regarding the amendment to the e-mail address you provide to us. YOU ARE RESPONSIBLE FOR REGULARLY REVIWEING OUR WEBSITE TO OBTAIN TIMELY NOTICE OF ANY AMENDMENTS OR MODIFICATIONS. YOU WILL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS OR MODIFICATIONS BY CONTINUING TO USE THE SOFTWARE FOR MORE THAN 20 DAYS AFTER SUCH AMENDMENTS OR MODIFICATIONS HAVE BEEN POSTED OR INFORMATION REGARDING SUCH AMENDMENTS OR MODIFICATIONS HAS BEEN SENT TOU YOU. Except as otherwise provided in this section,
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this Agreement may not be amended, altered, or any of its provisions waived on behalf of either party, except in writing executed by both parties' duly authorized agent.
22. Waiver. No waiver will be effective unless it is in writing and signed by a duly authorized signatory of the party against whom enforcement is sought.
23. Assignment. Except as specifically provided herein, this Agreement may not be assigned by you. Legado Systems may assign this Agreement without notice to you at any time.
24. Survival. The conditions, restrictions and obligations as contained in this Agreement which you have voluntarily agreed to will survive any expiration, termination or cancellation of this Agreement, and will continue and remain in effect to bind you, and your employees, agents, successors, heirs and assigns to the extent necessary to fulfill their essential purposes.
25. Severability. If any provision of this Agreement is invalid under applicable law, such provision will be limited, narrowed, construed and altered as necessary to render it valid, but only to the extent necessary to achieve such validity. If necessary, the invalid provision will be eliminated from this Agreement. The remaining provisions of this Agreement will remain in full force and effect.
26. Interpretation. The headings in this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement. Whenever the context reasonably permits, the singular will include the plural, the plural will include the singular, and the whole will include any part thereof.
27. English Language. This Agreement is written in, and will be governed by, the English language. In the event of any conflict between the English language version of the Agreement and any translation of this Agreement into any other language, this English language version will control.
28. U.S. Government Restricted Rights. If you are acquiring the Software on behalf of any unit or agency of the United States Government, the following provision applies: It is acknowledged that the Software and the documentation were developed at private expense and that no part is in the public domain and that the Software and documentation are provided with restricted rights. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Legado Systems, LLC, 4400 Parks Legado Road, Odessa, Texas 79765.
29. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties pertaining to its subject matter and the Software, and it supersedes all written or oral agreements previously existing between the parties with respect to such subject matter.
30. Relationship. Nothing in this Agreement will constitute a partnership, joint venture, or franchise between you and Legado Systems. You will not represent to anyone that you are an
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agent of Legado Systems or otherwise authorized to bind or commit Legado Systems in any way without Legado Systems’ prior authorization.
31. Maintenance Terms.
(a) Scope. These Maintenance Terms state the terms by which Legado Systems will provide maintenance services to users of the Software. These Maintenance Terms may be modified at any time in the sole and exclusive discretion of Legado Systems without notice to you.
(b) Entitlement to Maintenance Services. You, the end user of the Software, are entitled to maintenance services, including updates, subject to these Maintenance
Terms so long as you are current in the payment of all required Monthly Maintenance Plan or other fees, and in full compliance with all of the terms of this Agreement.
(c) Updates. Updates of the Software will be provided as and when available generally to users of the Software in your country or jurisdiction.
(d) Technical Information. Legado Systems will make available to you such technical information relating to the Software as it makes available to its other customers generally.
(e) Telephone Support. Telephone support is generally available during regular business hours on business days (Monday to Friday, 8:00 am CST to 5:00 pm CST) and is subject to the availability of Legado Systems’ personnel. Ordinarily, Legado Systems will endeavor to respond to requests for support within four (4) business hours.
(f) Remote Access Technical Support. To facilitate installation, training, sign-up, maintenance, troubleshooting activities, or support, you may grant Legado Systems access to your computers and equipment, including servers, by giving your permission electronically to engage in on demand remote connectivity with your equipment and computers. You are responsible for maintaining a complete backup of all your software and electronic data prior to granting such access to Legado Systems. You warrant to Legado Systems that you have done so by requesting support. Unless Legado Systems is specifically notified in writing by you, Legado Systems may reasonably assume your employees are duly authorized to grant Legado Systems remote connectivity access as described in this paragraph. You further agree to hold Legado Systems harmless from any injury, liability, loss, or damages incurred during such activities.
(g) Limitation on Maintenance Commitment. Legado Systems is not responsible for problems relating to computer hardware or software that is not produced or sold by Legado Systems, including but not limited to any incompatibility of the Software with any computer hardware or software that is not produced or sold by Legado Systems.
(h) No Warranty. SUPPORT UNDER THESE MAINTENANCE TERMS IS PROVIDED “AS IS” AND “WHERE IS”. LEGADO SYSTEMS DOES NOT WARRANT ANY OF ITS MAINTENANCE SERVICES, TRAINING, SET UP,
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TROUBLESHOOTING OR SUPPORT. LEGADO SYSTEMS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT, AND COMPATIBILITY. LEGADO SYSTEMS DOES NOT REPRESENT OR WARRANT THAT SERVICES PROVIDED UNDER THESE MAINTENANCE TERMS WILL CAUSE THE SOFTWARE TO BE ERROR-FREE OR TO OPERATE CONTINUOUSLY, EFFICIENTLY, OPTIMALLY, OR WITHOUT INTERRUPTION.
(i) Limitation of Liability. The basic maintenance services provided to users of the Software in your jurisdiction or country is a service offered by Legado Systems. Accordingly, YOUR SOLE REMEDY FOR ANY FAILURE OF MAINTENANCE SERVICES PROVIDED HEREUNDER TO RENDER THE SOFTWARE FULLY FUNCTIONAL TO YOUR REASONABLE SATISFACTION WILL BE THE PERFORMANCE OF ADDITIONAL MAINTENANCE SERVICES HEREUNDER, OR AT LEGADO SYSTEMS’S OPTION TO REFUND THE PURCHASE PRICE OF THE LICENSE TO THE SOFTWARE.
(j) Cooperation. As a condition to receiving maintenance services or support, you agree to exercise your reasonable best efforts to cooperate with and assist Legado Systems in documenting and understanding any problems, and in performing appropriate maintenance services including testing any replacement Software.
32. Force Majeure. Except for payment obligations, neither you nor Legado Systems will be liable for inadequate performance to the extent caused by a condition that was beyond the party's reasonable control (for example, acts of God, natural disaster, act of war or terrorism, riots or civil disobedience, labor condition, governmental action, and Internet disturbance).
33. Authority to Accept. You warrant and represent to Legado Systems that this Agreement will be binding upon you, and that the individual agreeing to be bound under the terms and conditions of this Agreement is authorized or has been empowered to do so.
LICENSEE:
By: Title: Address:
LICENSOR:
LEGADO SYSTEMS, LLC
By: Title: Address:
Date:
4400 Parks Legado Road Odessa, Texas 79765
End User License Agreement
Legado Systems
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