Connecting and Navigation > Food Connex End User License Agreement

IMS Software, LLC, a Delaware limited liability company (“COMPANY”)
Food Connex ("PLATFORM")

1. LICENSE; TERM; USE OF PLATFORM.

1.1. License. COMPANY grants to Licensee a one (1) year non-exclusive, nontransferrable

(except as otherwise permitted herein), revocable, limited right

to use the Platform. The Licensee acknowledges that this Agreement grants a

license for its own use and Licensee shall not have the right to produce or use

the programs in the Platform for others. The Licensee shall not sell, assign, or

pledge its license or any other provisions or rights under this Agreement

without COMPANY’s prior written consent. Any attempt to reverse engineer or

use the Platform for others, or to copy or otherwise make available the data,

programs, code, documentation or any other part of the Platform for use by

others, or to sell, assign or pledge its license shall terminate the license.

1.2. This Agreement automatically renews unless either party gives the other

written notice of cancelation at least 120 days prior to the expiration of the then

current term.

1.3. Entity Restriction. Only the Licensee and its legal affiliates may use or receive

the benefit of the Platform.

1.4. Licensee Restrictions. Licensee shall not:

1.4.1. Produce or use the programs in the Platform for others

1.4.2. Sell, assign, or pledge its license or any other provisions or rights

under this Agreement

1.4.3. Copy, reproduce or otherwise create derivative works or

adaptations of the Platform;

1.4.4. Alter, modify or make changes to the Platform, either independently

of the Company or in conjunction with a third party

1.4.5. Reverse engineer the Platform;

1.4.6. Use the Platform in a Platform provider capacity, distribute or resell

the Platform to third parties for a fee, or in either case, as part of

another Platform or product.

1.4.7. Remove or modify any proprietary marking or restrictive legends in

the Platform;

1.4.8. Use any automatic device or program or manual process to monitor,

frame, copy or reproduce the Platform; or

1.4.9. Access the Platform to build a competitive product or Platform, or

copy any feature, function or graphics of the Platform; OR

1.4.10. Copy or otherwise make available any component of the

Platform, including but not limited to, the programs or

documentation, for use by others

2. ACCESS TO THE PLATFORM.

2.1. COMPANY shall coordinate the initial installation and testing of the Products on

Licensee’s equipment equipped with Internet access. Licensee shall prepare

the installation site in accordance with COMPANY’s reasonable directions.

2.2. COMPANY will provide remote setup and training as specified the order form.

2.3. Software maintenance shall include routine software modifications and

assistance in handling questions relating to software uses and functions.

Maintenance is included with the annual License Fee of the software.

Maintenance fees may be increased by COMPANY with written notice to

purchaser at least 45 days prior to the expiration of the current term.

2.4. Platform will be deemed accepted by purchaser on the tenth day following

Licensee having access to the Platform.

2.5. In order for Licensee to access the Platform, Licensee shall install and maintain

a dedicated broadband Internet connection for the duration of this Agreement.

Licensee shall pay the cost of the installation, maintenance, and use of such

connection. COMPANY is not responsible for maintaining those connections.

3. HARDWARE TITLE.

3.1. Title to any hardware purchased in connection with this Agreement shall pass

to Licensee upon delivery, and Licensee hereby grants COMPANY a purchase

money security interest in all of the hardware delivered and proceeds thereof

until the purchase price has been paid in full. Licensee shall execute any

instruments or documents necessary to perfect the secured interest, and a copy

of this Agreement may be filed by COMPANY at any time after signature by

Licensee as a financing statement. Licensee shall bear the risk of loss for the

hardware upon delivery.

4. TECHNICAL SUPPORT

4.1. Subject to the terms of this Agreement, the annual License Fee shall enable

Licensee to have access to Software Support for an initial twelve (12) month

period and for each renewal year upon payment of the annual License Fee,

which, as set forth on the first page of the Agreement in above, is a required fee

to use the Platform.

4.2. A License and software support shall be provided for a period of twelve (12)

months and shall renew for successive twelve (12) month periods for so long as

Licensee continues to use the Platform and remits the required annual License

Fee.

4.3. Each renewal of Software License Fee shall afford (a) a one (1) year extension

of the initial warranty period granted in Section 8 of this Agreement for so long

as Licensee continues to use the software and remits the required fees due to

COMPANY; (b) the provision of certain updates, enhancements and

improvements to the Platform which COMPANY, in its sole discretion, makes

available to Licensee (COMPANY does not promise to make available to

Licensee every enhancement, update or improvement to the Platform); and (c)

the provision of operational assistance (”Software Support”) not to include

programming or data conversion.

4.4. COMPANY shall have adequate technical personnel available at a minmum from

8:00 a.m. to 5:00 p.m. Eastern Standard Time, Monday through Friday,

excluding major holidays, to provide assistance to Licensee’s personnel in the

operation of the Platform.

4.5. Dates and times by which COMPANY is required to perform under this License

shall be postponed automatically to the extent that COMPANY is prevented

from meeting them by causes beyond its reasonable control.

4.6. COMPANY shall only perform Software Support services on a properly updated

Platform. Failure of Licensee to update the Platform according to transmittal

notices of COMPANY or making unapproved changes in the Platform or failing

to properly equip the computer system may, at the sole option of COMPANY,

terminate COMPANY’s obligations to provide Software Support under this

Agreement. Such termination shall not relieve Licensee of its fee obligations to

COMPANY.

5. FEES AND PAYMENT TERMS.

5.1. License Fees. The License granted by this Agreement and Licensee’s right to use

the Platform shall require the payment of fees as identified on page 1 of this

Agreement. COMPANY shall have the right to change its rates or terms of

payment. Any increase in the number of initally licensed users may result in an

adjustment to the License fee.

5.2. Professional Services Fees. The Licensee shall pay COMPANY at its then current

hourly billing rates for any other professional services not provided as Software

Support under this Agreement. COMPANY’s fees for professional services shall

include all reasonable expenses associated with travel, accommodation and

meals.

5.3. Payment Terms. Licensee shall remit all fees due to COMPANY within ten (10)

days of receipt of an invoice.

5.4. Late Payment Terms. Any amounts not paid by the relevant due date will incur

a charge equal to the lesser of (i) 1.5% per month or (ii) the maximum amount

permitted by law. The charge will accrue from the due date on a daily basis

until payment of all outstanding amounts is made in full.

6. PROPRIETARY RIGHTS AND INTELLECTUAL PROPERTY

6.1. The technology provided by COMPANY as part of the Platform is proprietary to

COMPANY, and all rights, title and interests in the Platform, including all

associated intellectual property rights, remain with COMPANY. No grant of

rights or license to any COMPANY intellectual property may be assumed or

implied by this Agreement. COMPANY expressly reserves all rights not granted

herein.

6.2. Other than open source and/or publicly available off the shelf components, all

of the computer software programs and modules, updates, enhancements,

improvements, and related documentation and materials are valuable trade

secrets of COMPANY and all right, title and interest in and to the Platform,

including any intellectual property, whether or not patentable or susceptible to

updates, enhancements, or improvements and any trade secrets contained

therein, whether or not developed for Licensee or derived from modifying

COMPANY’s proprietary software in contravention of this Agreement, are and

shall remain the sole and exclusive property of COMPANY. Licensee has no

claim of ownership or any interest in the Platform other than its nonexclusive

right to use the Platform, and Licensee shall execute any documentation

necessary to assign any and all rights, title and/or interest, including but not

limited to patent, trade secret, trade mark, trade dress and/or copyright, to

COMPANY. Licensee acknowledges that COMPANY has the sole and exclusive

right to distribute and license the Platform to any third party.

6.3. All programs and documentation or other information relating to the Platform

are and continue to be the confidential and proprietary information of

COMPANY and all documentation, files, media and programs shall be so

designated. Licensee shall take every reasonable precaution not to reveal and

to protect COMPANY’s proprietary property to include, without limitation,

limiting access to the Platform and associated programs and documentation or

other information relating to the Platform to Licensee’s employees who need

to have access and are subject to obligations of confidentiality at least as

stringent as those imposed on Licensee under their Agreement, and preventing

access by any third party, including, but not limited to, any third party software

vendor, program developer and/or independent contractor engaged by or on

behalf of Licensee for any purpose. Licensee shall be liable for any acts in

contravention to the terms of this Agreement by any of Licensee’s employees

to whom access is granted to the Platform or associated documentation.

6.4. Disclosure by Licensee. In the event Licensee should become aware of any

occasion of third party access to COMPANY’s Platform, Licensee shall notify

COMPANY of same within ten (10) days of such knowledge, providing

COMPANY with information as to the nature and scope of any such third party

access, including information regarding all dates of access, areas accessed, any

and all modifications made to COMPANY’s Platform, and the identity of any

such third party.

6.5. Right of Audit. During the term of this Agreement and for a period up to one (1)

year following termination of this Agreement, COMPANY may request that

Licensee conduct an internal audit of all COMPANY products, including

comparing the number of products in use to the number of effective licenses

issued to Licensee. By requesting an audit, COMPANY does not waive its rights

to enforce this Agreement or to protect its intellectual property by any other

means permitted by law. In addition, following termination of this Agreement,

Licensee shall permit COMPANY to independently verify the removal of the

Platform from Licensee’s system(s).

7. MUTUAL CONFIDENTIALITY.

7.1. Definition of Confidential Information. Confidential Information means all nonpublic

information disclosed by a party (“Disclosing Party”) to the other party

(“Receiving Party”), whether orally or in writing, that is designated as

confidential or that reasonably should be understood to be confidential given

the nature of the information and the circumstances of disclosure

(“Confidential Information”). COMPANY Confidential Information includes the

Platform, and Confidential Information of each party includes the terms of this

Agreement and all orders, as well as business and marketing plans, technology

and technical information, product plans and designs, and business processes

disclosed by either party.

7.2. Exclusions. Confidential Information excludes information that: (i) is or

becomes generally known to the public without breach of any obligation owed

to the Disclosing Party; (ii) was known to the Receiving Party prior to its

disclosure by the Disclosing Party; (iii) is received from a third party without

breach of any obligation owed to the Disclosing Party; or (iv) was independently

developed by the Receiving Party without use or access to the Confidential

Information of the Disclosing Party. Receiving Party may disclose Confidential

Information if required by law, but will attempt to provide Disclosing Party

advance notice.

7.3. Protection of Confidential Information. The Receiving Party must use the same

degree of care that it uses to protect its Confidential Information (in no event

less than reasonable care) to not disclose or use any Confidential Information

of the Disclosing Party for any purpose (other than within the scope of this

Agreement or for the benefit of the Disclosing Party). The Receiving Party must

limit access to Confidential Information of the Disclosing Party to those of its

employees, contractors and agents who need such access for purposes

consistent with this Agreement and who have signed confidentiality

agreements with the Receiving Party containing protections no less restrictive

than those in this Agreement. Licensee shall, in no event, make any disclosure

of COMPANY’s Confidential Information in contravention of Section 6.3.

8. WARRANTY, REMEDY AND LIMITATION OF DAMAGES.

8.1. COMPANY warrants that, during Licensee’s payments of required fees

owed to COMPANY under this Agreement: (a) each program module of

the Platform will operate without significant error for a period of one (1)

year from the date upon which that module is installed on Licensee’s

hardware; and (b) each enhancement, update or modification provided

as Software Support will operate without significant error for a period of

one (1) year from the date the enhancement, update or modification is

delivered to Licensee. In the event that a program module or an

enhancement, update or modification to the Platform has a materially

significant error which manifests itself in operation during the warranty

period, COMPANY’s sole obligation under this warranty shall be to

remedy such error consistent with regular business practices at no

additional charge to Licensee. The one (1) year warranty shall be

extended as set forth in Section 5.1, upon Licensee’s payment for annual

renewal of Software Support under this Agreement.

8.2. If COMPANY sublicenses to Licensee software which is not proprietary to

COMPANY, Licensee will if required, execute a separate third-party User

License Agreement which shall govern all rights, obligations and remedies

of the Licensee concerning such software. COMPANY makes no other

separate warranties with regard to non-proprietary software to Licensee,

except that COMPANY warrants that its installation of such software shall

be done in a reasonable manner. To the extent that any failure of the

non-proprietary software to meet the specifications for such software is

due to improper installation by COMPANY, COMPANY shall correct any

errors in installation made by COMPANY. Any liability of COMPANY with

respect to non-proprietary software shall be limited to this remedy.

8.3. THE ABOVE ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE

BY COMPANY. COMPANY MAKES AND LICENSEE RECEIVES NO OTHER

WARRANTY, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDED ARE ALL

WARRANTIES FOR MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS

FOR A PARTICULAR PURPOSE. COMPANY SHALL HAVE NO LIABILITY FOR ANY

LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION

OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR

CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION,

LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR

DAMAGED DATA OR DOCUMENTATION), REGARDLESS OF THE FORM OF

ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT

LIABILITY OR ANY OTHER THEORY OF LAW, EVEN IF INFORMED OF THE

POSSIBILITY OF SUCH LOSSES OR DAMAGES IN ADVANCE OR IF THE LOSS OR

DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. UNDER NO

CIRCUMSTANCES SHALL COMPANY’S LIABLITY TO LICENSEE EXCEED THE

AMOUNT OF THE LICENSE AND SOFTWARE FEES PAID TO COMPANY BY

LICENSEE UNDER THE THEN CURRENT TERM OF THIS AGREEMENT.

8.4. THE STATED EXPRESS WARRANTIES ARE IN LIEU OF ANY AND ALL LIABILITIES OR

OBLIGATIONS OF COMPANY FOR DAMAGES ARISING OUT OF OR IN

CONNECTION WITH THE DEVELOPMENT, DELIVERY, INSTALLATION, SUPPORT

OR SERVICING, USE OR PERFORMANCE OF THE LICENSED SOFTWARE,

INCLUDING DOCUMENTATION, ANY SUPPORT AND MAINTENANCE, AND ANY

OTHER SERVICES. LICENSEE AGREES THAT THE WARRANTIES SET FORTH HEREIN

SHALL BE VOIDED IN THE EVENT THAT THE LICENSEE MAKES ANY

MODIFICATION OR CHANGE TO ANY COMPONENT OF THE PLATFORM OR

DEVIATES FROM THE OPERATING INSTRUCTIONS WITHOUT THE EXPRESS

WRITTEN CONSENT OF COMPANY. LICENSEE AGREES THAT ANY LIABILITY OF

COMPANY ARISING OUT OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT

LIABILITY OR ANY OTHER THEORY OF RECOVERY AT LAW OR EQUITY SHALL NOT

EXCEED ANY AMOUNT PAID BY LICENSEE TO COMPANY FOR THE LICENSE

UNDER THIS AGREEMENT AND ANY SUBLICENSED SOFTWARE PROVIDED TO

LICENSEE UNDER THE THEN CURRENT TERM OF THIS AGREEMENT.

9. DEFENSE AND INDEMNITY.

9.1. COMPANY shall defend or, at its option, settle, any claim, action or proceeding

brought against Licensee alleging that the Platform infringes any United States

patent, copyright or trade secret, and shall indemnify and defend Licensee

against all damages and costs finally awarded against Licensee in any such

action or proceeding which arises or results from any such claim. Liability of

COMPANY under this Section shall apply only to the extent that Licensee (a)

once Licensee shall have received actual knowledge of such claim, promptly

notifies COMPANY in writing of the claim, action or proceeding, (b) gives

COMPANY full authority, information and assistance to defend such claim,

action or proceeding, and (c) gives COMPANY sole control of the defense and

settlement of such claim, action or proceeding and all negotiations relating

thereto. Subject to the preceding conditions (a) through (c), Licensee, at

Licensee’s expense, shall have the right to participate in the defense or

settlement of such claim. COMPANY shall have no liability to Licensee for any

costs incurred or settlement entered into without the prior written consent of

COMPANY, which consent shall not be unreasonably withheld. COMPANY shall

have no liability to Licensee hereunder with respect to any claim based upon (a)

the combination of the Platofrm with other products or services not furnished

by COMPANY (b) any third party (including open source) software incorporated

in or provided with the Platform; or (c) any addition or modification to the

Platform by any person or entity other than COMPANY.

9.2. If, as a result of a claim of infringement of any patent, copyright, license or other

proprietary right, Licensee or COMPANY is enjoined from using the Platform, or

if COMPANY believes that the Platform is likely to become subject of a claim of

infringement, COMPANY at its option and expense, shall procure the right for

Licensee to continue to use the Platform component(s), replace the Platform

component(s), modify same so as to make it non-infringing, or discontinue the

license granted herein on one month’s written notice and refund to Licensee

the remaining portion of the annual License Fees paid for the balance of the

year in which notice is given.

9.3. If Licensee’s Platform is based on Microsoft Dynamics NAV software, COMPANY

makes no warranties or other representations concerning any right, title or

ownership of the Microsoft Dynamics NAV software and any and all claims

Licensee may have concerning its use shall not be asserted against COMPANY

but directly against Microsoft Business Solutions or some party other than

COMPANY.

9.4. The defense and indemnity obligations by COMPANY herein do not extend to

any claim related to, or arising out of, or based on: (a) any violation of any use

restrictions, confidentiality or proprietary rights provisions in this Agreement;

(b) the use of COMPANY’S technology in an unauthorized manner or any

modifications thereof by Licensee; or (c) any products or services developed in

conformance with Licensee-provided specifications, designs or instructions.

Under no circumstances shall COMPANY be liable for any consequential,

exemplary, or incidental damages for any claims of infringement. Section 8

constitutes the COMPANY’s entire liability and the Licensee’s sole and exclusive

remedy for intellectual property rights claims arising out of or related to the

Services.

9.5. SECTION 8.4 SETS FORTH THE ENTIRE LIABILITY OF COMPANY, AND THE

EXCLUSIVE REMEDY OF LICENSEE, WITH RESPECT TO ANY CLAIM OF PATENT,

PLATFORM, ANY PART THEREOF OR THE USE THEREOF, AND IS IN LIEU OF ALL

OTHER WARRANTIES, EXPRESS OR IMPLIED, AND INDEMNITIES WITH RESPECT

THERETO.

9.6. Licensee shall indemnify and hold harmless COMPANY from and against any and

all claims, demands, liabilities, losses, costs and expenses (including reasonable

attorneys’ fees and any fees of consulting professionals) of any kind whatsoever

levied against or incurred by COMPANY, its officers, directors, employees or

agents, arising directly or indirectly out of (i) conduct of Licensee, (ii) Licensee’s

failure to perform any of its material obligations under this Agreement or (iii)

the provision of products or services by Licensee in the course of the business

of Licensee.

10. TERM; TERMINATION AND SUSPENSION OF PLATFORM.

10.1. This Agreement shall be effective on the date of the last signature hereto.

10.2. COMPANY shall have the right to terminate the license granted and end any of

its remaining duties or services to be provided, including any Software Support:

10.2.1. Licensee fails to remit the required annual License Fee within ten

(10) days of the date on which such payment would be due;

10.2.2. Upon ten (10) days written notice in the event that Licensee, its

officers or employees violate any provision of this Agreement,

including but not limited to, confidentiality, access, payment; or

10.2.3. In the event Licensee: (1) terminates or suspends its business; (2)

becomes subject to any bankruptcy or insolvency proceedings under

federal or state statute or (3) becomes insolvent or subject to direct

control by a trustee, receiver or similar authority.

10.3. Any party may terminate this Agreement by providing notice to the other party

at least 120 days prior to the expiration of the then current term.

10.4. Upon termination, all rights of the Licensee to use the Platform shall cease

immediately, Licensee shall return all COMPANY materials. Termination shall

not relieve Licensee from its obligations under this Agreement, including

without limitation, payment of any sums due hereunder and confidentiality.

Termination of the license shall be in addition to and not in lieu of any other

remedies including equitable remedies available to COMPANY. Upon any

termination as provided Section 10 by COMPANY, Licensee must pay any unpaid

fees and fees covering the remainder of the term of all orders.

10.5. THE RIGHTS AND OBLIGATIONS CONTAINED IN SECTIONS 1, 5-7, AND 11-14

SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.

11. EQUITABLE RELIEF. Licensee acknowledges that any breach by it of any confidentiality

provision or use restrictions in this Agreement will cause irreparable damage to

COMPANY or its third party licensors and that remedy at law will be inadequate.

Therefore, in addition to any remedies, COMPANY or its licensors will be entitled to

seek injunctive relief for any actual or threatened breach of any confidentiality or use

restriction.

12. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with

the laws of the Commonwealthof Pennsylvania and any action or proceeding based on

this Agreement or arising out of its performance shall be brought in a federal or state

court of competent jurisdiction in the Commonwealthof Pennsylvania and no other

jurisdiction. COMPANY shall be entitled to recover its reasonable attorney’s fees and

costs from Licensee in connection with litigation to enforce Licensee’s obligations under

Sections 2, 5-7 of this Agreement, including but not limited to the collection of any past

due amounts due under this Agreement.

13. SEVERABILITY. In case any provision of this Agreement shall be invalid, illegal,

or otherwise unenforceable, the validity, legality and enforceability of the

remaining provisions shall in no way be affected or impaired thereby.

14. REGULATORY ACCOMODATION. If any federal, state, provincial or departmental

regulatory body interprets an existing or promulgates a new rule, law or

regulation that prohibits or otherwise materially adversely affects the exercise

of rights licensed under this Agreement, the parties shall use commercially

reasonable efforts to take actions and/or amend this Agreement to promptly

and adequately address and account for such rules, laws or regulations. If such

actions do not adequately address and account for such rules, laws or

regulations and/or the parties do not mutually agree on terms and conditions of

an amendment to this Agreement that addresses and accounts for such rules,

laws or regulations, then COMPANY may terminate this Agreement upon written

notice to Licensee.

15. TARIFFS AND TAXES. Any and all tariffs and any applicable European, national,

federal, State/Provincial and/or local tax or fees which may be levied or imposed

by reason of the transactions contemplated by this Agreement shall be the sole

obligation of, and will be paid by, Licensee. Should Licensee: (a) fail to pay any

such tariff, tax or fee when due to the appropriate governmental authority; or

(b) fail to remit required receipts or other documentary evidence of such

payment(s) to COMPANY, Licensee shall indemnify COMPANY for any tariff, tax,

fee, incremental tax, fine, interest and/or other penalty that may become

payable as a result of any such failure.

16. NON-SOLICITATION. Both parties undertake that each will not for a period of

two years from the termination of this Agreement entice away or endeavor to

entice away from the other party any employee of such other party. Each party

acknowledges that the prohibition and restriction contained in this clause are

reasonable in the circumstances and necessary to protect the business of the

other party.

17. MISCELLANEOUS OTHER TERMS. This Agreement constitutes the entire Agreement

between the parties and supersedes any prior or contemporaneous negotiations or

agreements, whether oral or written, related to this subject matter. In the event of a

conflict between an order or requested work and this Agreement, this Agreement shall

govern. No amendment or waiver of any term of this Agreement is effective unless

signed in writing. Failure of COMPANY to enforce a right under this Agreement shall

not act as a waiver of that right or the ability to later assert that right relative to the

particular situation involved. Licensee may not assign or transfer this Agreement to a

third party, except the Agreement with all orders and work requests may be assigned

as part of a merger, or sale of all or substantially all of the business or assets, of

Licensee. The parties are independent contractors, and no partnership, joint venture or

franchise is created. Notwithstanding what is provided in Licensee’s form purchase

ordering document, any additional or conflicting terms are rejected by COMPANY and

do not apply. Neither party is liable for any force majeure events. Any terms that by

their nature survive termination or expiration of this Agreement, will survive. Each

party must comply with the export laws of the United States in providing and using the

Platform. The Convention on Contracts for the International Sale of Goods does not

apply. This Agreement may be executed in counterparts.