End User License Agreement

 

PLEASE READ THIS END USER LICENSE AGREEMENT ("AGREEMENT"). BY

USING CHARLES F. DAY & ASSOCIATES SOFTWARE ("SOFTWARE"), YOU AND ANY ENTITY YOU REPRESENT ("CUSTOMER") AGREE TO BE BOUND BY THIS AGREEMENT WITH CHARLES F. DAY& ASSOCIATES. ("CHARLES F. DAY & ASSOCIATES"). IF CUSTOMER DOES NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, THEN DO NOT USE THE SOFTWARE.

 

Limited License Grant. Customer shall not create any derivative works of the Software that contain Open Source Software nor shall Customer use the Software or portion thereof to merge with, link to, make function calls to, or share data structures with any Open Source Software, if any such combination or use of the Software would require the Software to be made available royalty free or in source code form; (3) use the Software in conjunction with Third Party Software in a manner consistent with the terms of this Agreement; (4) review the Software including, without limitation, unpacking archives (such as ZIP, SWI and RPM files provided by Charles F. Day & Associates), and accessing underlying operating system facilities; and (5) extend the Software provided in source code format and linking Customer-developed software to the Software. As used in this Agreement, "Open Source Software" means any software made available by a third party under a license approved by the Open Source Initiative, or any substantially similar license.

 

Limitations and Restrictions. Except as otherwise expressly provided in this Agreement, the foregoing

license grant excludes any right to, and Customer shall not: (1) sell, transfer, assign or sublicense the Software or Customer's license rights under this Agreement, whether voluntarily or by operation of law, to any third party, directly or indirectly, and any such attempted transfer, assignment or sublicense shall be void; (2) use or allow use of the Software on any hardware other than the Equipment or Applicable Devices; (3) modify, reproduce, decompile, decrypt, disassemble, reverse engineer, create derivative works of or otherwise reduce to human readable form any Software (other than Software that is provided in source code format); gain access to trade secrets or confidential information in the Software; circumvent any copy-protection or license enforcement; or attempt to do any of the foregoing, except to the extent expressly permitted by applicable law; (4) combine, commingle, or integrate any Software with Open Source Software or incorporate Open Source Software into any Software that may add any additional Open Source Software requirements, obligations, or licensing terms to the Software; (5) disclose to any third party any results of benchmarking or other testing generated in connection with Customer's use of Software, including without limitation any comparisons of the Software or Equipment with any other products; (6) provide a third party with a copy of or access to the Software (including,

without limitation, source code) (if Customer does so, Customer will be responsible to Charles F. Day & Associates for all acts of such third party); (7) remove from the Software (or fail to include in any copy) any readme files, notices, headers, disclaimers, marks or labels; and (8) use or allow use of the Software in violation of any applicable law or regulation or to support or facilitate any illegal activity. Customer shall be liable to Charles F. Day & Associates for any damages, injury or harm caused to Charles F. Day & Associates as a result of Customer's violation of any of these limitations or restrictions.

 

Updates. The terms and conditions of this Agreement shall apply to any upgrades, updates, bug fixes or

modified versions (collectively, "Updates") or additional copies of the Software. Notwithstanding any other

provision of this Agreement: (1) Customer has no license or right to use any such Updates or additional copies unless Customer, at the time of acquiring them, already holds a valid license to the Software associated with such Updates and has paid any required Fees for such Software; and (2) use of additional copies of the Software is limited to backup purposes only. By using any Updates, Customer's rights with respect to the Updates are subject to the terms of the latest revision of this Agreement posted at the time of receipt of the Updates, Charles F. Day & Associates then-current policies and procedures,

Proprietary Notices. Customer agrees to maintain all copyright and other proprietary notices, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software.

 

Reservation of Rights. The Software and documentation are owned by Charles F. Day & Associates and its licensors, and is protected by copyright, patent, trademark, and trade secret laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between Customer and Charles F. Day & Associates, the Software, including without limitation intellectual property rights therein and thereto, are the sole and exclusive property of Charles F. Day & Associates or its subsidiaries or affiliated companies and/or its third-party licensors. All Software is licensed to Customer, not sold. Charles F. Day & Associates reserves all rights not expressly granted in this Agreement, and no rights or licenses shall be deemed or interpreted to be granted or transferred hereunder, whether by implication, estoppel, or otherwise.

 

Fees and Payments. Unless otherwise specified any license or subscription Fees with respect to the Software are due and payable no later than thirty (30) days after the date of invoice or first use of the Software by Customer, whichever is earlier. Late invoices shall be subject to interest of 1.5% per month (or the maximum rate permitted by law if less) plus any expenses of collection. Charles F. Day & Associates reserves the right to suspend and/or terminate access to the Software if any Fees payable hereunder are past due. Such suspension or termination shall not relieve Customer from its obligation to pay all amounts due under this Agreement.

 

Taxes. The Fees do not include any foreign, federal, state or local taxes, or any sales, use, excise, ad valorem, value-added, withholding or other taxes or duties that may be applicable to the purchase of Software (collectively, "Taxes"). Fees pursuant to this Agreement may not be reduced to reflect any Tax or other mandatory payment to government agencies. When Charles F. Day & Associates has the legal obligation to collect Taxes related to any invoice, unless Customer provides Charles F. Day & Associates with a valid and acceptable tax exemption certificate prior to issuance of said invoice, the appropriate amount shall be added to Customer's invoice and paid by Customer. If a tax authority subsequently finds that any Tax payment related to any sale or service to Customer was insufficient and requires additional payment by Charles F. Day & Associates, Charles F. Day & Associates will make such payment and Customer will reimburse Charles F. Day & Associates for such additional Tax payments (including, without limitation, any interest, levies, and penalties). Charles F. Day & Associates will not be responsible for any Taxes or other amount assessed to Customer by any government agency based on Customer's net income, gross revenue, or for any other reason.

 

Protection of Information. Customer agrees that the Software and associated documentation, including,

without limitation, the specific design and structure of individual programs, constitute trade secrets and/or

copyrighted material of Charles F. Day & Associates. Customer shall not disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of Charles F. Day & Associates. Customer shall implement reasonable security measures to protect such trade secrets and copyrighted material.

 

Commercial Item. The Software and associated documentation are "commercial items" as defined at FAR 2.101 comprised of "commercial computer software" and "commercial computer software documentation" as those terms are used in FAR 12.212. Consequently, regardless of whether Customer is United States Government or a department or agency thereof, Customer shall acquire only those rights with respect to the Software and associated documentation that are set forth in this Agreement.

 

Term and Termination. This Agreement is effective until terminated. Customer may terminate this Agreement at any time by canceling. Customer's license rights under this Agreement will terminate immediately without notice from Charles F. Day & Associates if Customer fails to comply with any provision of this Agreement. In addition, with respect to any Subscription Software, this Agreement, and the license rights afforded hereunder, shall terminate with respect to such Subscription Software upon the earlier of the completion of any License Term for such Subscription Software or immediately upon the failure of Customer to pay any subscription Fees when due and owing to Charles F. Day & Associates. Upon termination or expiration of this Agreement for any reason, (a) Customer shall immediately cease using any Software and promptly pay to Charles F. Day & Associates any amounts owed under this Agreement, including, without limitation, any unpaid Fees.

 

Disclaimer of Liabilities. IN NO EVENT WILL CHARLES F. DAY & ASSOCIATES OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOST REVENUE OR PROFIT, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, OR FOR SPECIAL, INDIRECT,CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF CHARLES F. DAY & ASSOCIATES OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF CHARLES F. DAY & ASSOCIATES, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUPPLIERS OR LICENSORS TO CUSTOMER, WHETHER IN CONTRACT,TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNTS ACTUALLY PAID TO CHARLES F. DAY & ASSOCIATES BY CUSTOMER FOR THE SOFTWARE OR EQUIPMENT THAT IS THE SUBJECT OF SUCH CLAIM IN BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. IN SUCH A CASE THE FOREGOING LIMITATION WILL BE APPLIED TO THE GREATEST EXTENT PERMISSIBLE

PURSUANT TO APPLICABLE LAW.

 

Indemnification. Customer shall defend, indemnify, and hold Charles F. Day & Associates, its affiliates, directors, employees, and representatives harmless against any liabilities, losses, damages, claims, demands, fees, expenses and other costs of any kind or nature, including, without limitation, any attorney fees, expert fees, filing fees, judgments, and settlement amounts associated therewith, as and when incurred, arising out of or related to Customer's use of the Software or any breach or alleged breach by Customer or any of Customer's employees, representatives or agents of any obligation, representation or warranty contained in this Agreement.

 

Trust-Based Licensing Model. Certain Software licensed under this Agreement does not include

programmatic license enforcement. It is Customer's responsibility to ensure compliance with this Agreement. By adopting this trust-based licensing model, Charles F. Day & Associates does not waive its right to enforce any aspect of this Agreement at anytime. Additionally, Charles F. Day & Associates knowledge of Customer's use of the Software beyond the scope of the license shall not operate as a waiver of Charles F. Day & Associates rights to enforce the terms of this Agreement under any legal or equitable doctrine.

 

Survival. The license limitations and restrictions contained in the section entitled "Limitations and Restrictions "as well as the following provisions shall survive the termination or expiration of this Agreement: Reservation of Rights, Protection of Information, Term and Termination, Limited Software Warranty and Disclaimers, Disclaimer of Liabilities, Indemnification, Reports and Audit, and General Provisions.

 

General Provisions. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Virginia, without regard to conflict of law's provisions thereof. Neither the provisions of the United Nations Convention on Contracts for the International Sale of Goods nor those of the Uniform Computer Information Transactions Act shall apply. Disputes arising hereunder shall be subject to the exclusive jurisdiction of the state and federal courts located in Virginia, and the parties agree to submit to the jurisdiction of such courts. Charles F. Day& Associates may assign this Agreement or delegate its responsibilities without restriction. Customer may not assign this Agreement, its rights or licenses, or delegate its duties, hereunder, nor may any successor entity of Customer assume such rights, licenses or duties, in whole or in part, directly or indirectly, whether by sale of stock or assets, merger, change of control, operation of law, or otherwise, without Charles F. Day & Associates prior written consent. Any assignment or assumption in violation of the foregoing shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective permitted successors and assigns. This Agreement is the entire agreement between Charles F. Day & Associates and Customer with respect to the Software, and supersedes any and all prior agreements, negotiations, or other communications between Charles F. Day & Associates and Customer, whether oral or written, with respect to the subject matter hereof. In the event that any provision of this Agreement is held to be invalid or unenforceable, then: (a) such provision shall be deemed to be reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed to be severed from this Agreement; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby. Charles F. Day & Associates failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law shall not constitute a waiver of that right, power or remedy. Charles F. Day & Associates waiver of any obligation or breach of this Agreement shall not operate as a waiver of any other obligation or subsequent breach of the Agreement. The English language version of this Agreement shall be the official and controlling version, and any translation provided is solely for convenience.