This AGREEMENT is between ________________ with address at ____________, personally and/or on behalf of ____________________, an organization licensed or authorized in _______________ (state/region/country) with primary address at _________________ (collectively referred to herein as “USER”) and EMAM, Inc, a Delaware corporation with primary office at 39-20 24th Street, Long Island City, NY 11101 (hereinafter “EMAM”) based on the terms and conditions as detailed herein. EMAM and USER are collectively “PARTIES”, and each is a “PARTY”
When a USER downloads, installs, or accesses the LICENSED MATERIALS, the USER accepts and enters into the AGREEMENT. If USER rents, loans, sub-leases, distributes or otherwise grants access or rights to the LICENSED MATERIALS to any third party, then USER shall ensure that terms and conditions of this Agreement shall apply to such individuals or organizations so provided. Both PARTIES represent and warrant that they have full power and authority to enter in this AGREEMENT.
According to the terms and conditions of this AGREEMENT, EMAM issues to USER a non-exclusive worldwide, non-transferable license to use the LICENSED MATERIALS, either temporarily or a perpetual/permanent basis. EMAM will retain all rights, title, and interest in the LICENSED MATERIALS, including any Proprietary Rights therein. Nothing in this AGREEMENT will be construed or interpreted as granting to USER any rights of ownership or any other proprietary rights in or to the LICENSED MATERIALS. LICENSED MATERIALS include all versions of the EMAM software system, related modules and components, and customized software with all associated source code as well as documentation, training and support material in any written or digital format currently available or available in the future.
This AGREEMENT starts on the on the following date ___________ or on the first day the USER accepts this AGREEMENT as per Section 1. If EMAM has issued a permanent software license, then this AGREEMENT shall not be permanent or to the longest time allowed by law unless shortened by TERMINATION. If EMAM has issued a temporary license, then the term will expire on the last day of the temporary license or any extensions thereto. This AGREEMENT shall be in effect until the end of the TERM, unless subject to Termination as per Section 4.
This AGREEMENT shall remain in continuous effect until terminated by either Party as provided in this AGREEMENT. Upon notice of Termination, USER shall immediately discontinue use of LICENSED MATERIALS and will return or destroy all LICENSED MATERIALS within seven (7) days. CONFIDENTIALITY and LIABILITY protections shall survive termination, to the maximum extent allowed by Law.
A. Termination for Convenience
USER may terminate the AGREEMENT without cause at any time by providing notice to EMAM and discontinuing use of LICENSED MATERIALS and returning or destroying all copies of same. EMAM, at its sole decision, may return some or all payments for unused service or license contracts for LICENSED MATERIALS.
B. Termination for cause.
- Either Party may terminate this AGREEMENT if the other party materially breaches this AGREEMENT and does not cure the breach within 30 days of receipt of notice.
- EMAM may terminate this AGREEMENT immediately or at its convenience if USER does not pay for LICENSED MATERIALS or EMAM services as mutually agreed.
- EMAM may terminate this AGREEMENT with immediate effect, if USER know violates ACCEPTABLE USE as detailed herein, in EMAM’s sole opinion.
If EMAM terminates the AGREEMENT for cause, it may, at its sole discretion, prevent USER from accessing or deleting LICENSED MATERIALS as well any managed or associated USER material, if any, for which EMAM accepts no responsibility for any losses to USER.
Prices and payment terms are as detailed on EMAM website, EMAM authorized partner portal, or as per separate agreement. All pricing is net due EMAM in US$.
Each PARTY shall be responsible for payments, penalties, and interest for taxes arising out of this AGREEMENT: applicable national, state, and local sales and use taxes, value added taxes for goods and services, withholdings, and any other taxes or duties.
7. INSTALLATION, SUPPORT
EMAM may use Authorized Contractors to perform its obligations for installation and support of LICENSED MATERIAL or other duties under this AGREEMENT. EMAM will provide sufficient documentation to allow a reasonably competent user to access and use the LICENSED MATERIALS. EMAM may provide support and training according to the terms and conditions of a Service Level Agreement between the parties, which would become a part of this AGREEMENT.
8. ACCEPTABLE USE
USER may not copy, distribute, modify, adapt, translate, or create derivative use of the LICENSED MATERIALS in whole or in part except as specified in this AGREEMENT. USER shall not decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from the Licensed Materials except as allowed by law. USER will not store, download, or transmit infringing or illegal content or any viruses, “Trojan horses” or other harmful code. USER will not engage in phishing, spamming, denial-of-service attacks or fraudulent or criminal activity.
9. OPEN SOURCE and THIRD-PARTY MATERIAL
If USER provides any suggestions, enhancement requests, or ideas about the LICENSED MATERIALS, EMAM may use these for the future development of LICENSED MATERIALS with no obligation to USER.
Both PARTIES represent and warrant that they will comply with all applicable international, national, state, and local laws, ordinances, rules, regulations, and orders as amended from time to time (“Laws”) applicable to each in its performance under the AGREEMENT. At its own cost, each Party will obtain and maintain appropriate insurance necessary to perform responsibilities under this AGREEMENT.
USER AGREES THAT USE OF THE SOFTWARE IS AT USER’S SOLE RISK AND ACKNOWLEDGES THAT THE SOFTWARE AND ANYTHING CONTAINED WITHIN THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, CONTENT, SERVICES, OR GOODS ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND THAT EMAM MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, NONINFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE OR USE AND USER DISCLAIMS ANY OTHER WARRANTY EXCEPT AS DETAILED HEREIN.
EMAM will implement and maintain physical, administrative, and technical safeguards and other security measures, as consistent with commercially reasonable industry standard practices to maintain the security and confidentiality of USER data and to protect USER data from known or reasonably anticipated threats or hazards to its security, availability, and integrity, including accidental loss, unauthorized use, access, or disclosure. USER warrants that it also needs to adopt relevant processes and procedures for its own protection.
LICENSED MATERIALS and EMAM services will be developed and performed in a professional matter with a level of care, skill, and diligence performed by experienced and knowledgeable professionals in accordance with industry standards to the best commercially efforts of EMAM, but all LICENSED MATERIALS and EMAM services are provided on “as is” basis.
EMAM further disclaims any responsibility if USER does not follow ACCEPTABLE USE as detailed herein, modifies LICENSED MATERIALS without EMAM knowledge or permission, or uses LICENSED MATERIALS with equipment or software not provided by EMAM and not qualified for such use.
UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL BOTH PARTIES, THEIR SUPPLIERS, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES EVEN IF BOTH PARTIES HAS BEEN ADVISED SPECIFICALLY OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM USE OF OR INABILITY TO USE THE SOFTWARE OR ANY LINKS OR ITEMS ON THE SERVICE OR ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS UNLESS APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL BOTH PARTIES’ TOTAL LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) EXCEED THE AMOUNT PAID, IF ANY, FOR PURCHASING, USING AND ACCESSING THE LICENSED MATERIALS.
Each Party shall give prompt notice to the other Party of any indemnification claim pursuant to this AGREEMENT and will provide reasonable cooperation and open communication about any such claim, but will not enter into any settlement without mutual consent.
Each Party (the “Disclosing Party”) may disclose certain Confidential Information (defined below) to the other Party (the “Recipient”), the Parties hereby agree as follows:
For purposes of this AGREEMENT, “Confidential Information” includes any and all information of whatever kind (whether commercial, technical, financial or otherwise, whether disclosed or communicated verbally, in writing or in any other form and whether or not marked, labeled or identified as confidential) owned or controlled by the Disclosing Party or its affiliate(s) in confidence, including but not limited to documents, files, programs, source codes, technical data, financial and marketing materials, know-how and personal data. For the avoidance of doubt, any information disclosed by the Disclosing Party, whether or not disclosed prior to the AGREEMENT, including but not limited to the existence of this AGREEMENT and the nature of the relationship between EMAM and USER shall be deemed as Confidential Information.
A. Use and Disclosure
The Recipient agrees at all times hereafter:
- to maintain all Confidential Information, whether or not received prior to the Effective Date, in strict confidence and take all precautions to protect such Confidential Information as the Recipient employs with respect to its own confidential materials or proprietary material of similar nature, but in no case less than reasonable precautions;
- not to in any means disclose such Confidential Information to any third party without the Disclosing Party’s prior written consent;
- not to use any such Confidential Information for any purpose except as detailed in this AGREEMENT;
- not to reverse engineer, decompile or dissemble any software disclosed by the Disclosing Party and its affiliate(s); and
The Recipient may disclose Confidential Information to its affiliates and its/their employees, agents and consultants who have a need to know such Confidential Information provided that each such affiliate, employee, agent or consultant (collectively, the “Representative”) shall be bound by confidentiality obligations substantially similar to, or at least as restrictive as, those set forth in this AGREEMENT, and the Recipient shall ensure that each Representative maintain the Confidential Information in compliance with those obligations.
The Recipient shall not be required to protect specific Confidential Information under this AGREEMENT to the extent such Recipient can prove through written evidence that such Confidential Information:
- was at the date of disclosure, or has thereafter become, generally known or available to the public, through no act or culpable failure to act by the Recipient, or was known by the Recipient or its affiliates prior to the receipt of such Confidential Information from the Disclosing Party;
- is rightfully acquired by the Recipient or its affiliates from a third party who has the right to disclose the same and who did not obtain it in confidence from the Disclosing Party;
- is authorized or agreed to be disclosed by the Recipient under Disclosing Party’s prior written agreement or consent;
- is independently developed by the Recipient or its affiliates without access or reference to any Confidential Information of the Disclosing Party; or
- is required to be disclosed by any order, subpoena, statute or regulation; provided that the Recipient uses reasonable efforts to give the Disclosing Party reasonable advance notice of such required disclosure in order to enable the Disclosing Party to prevent or limit such disclosure, and the Recipient shall use its best effort to protect such Confidential Information from any unreasonable disclosure.
14. SEVERABILITY, NONWAIVER
Any failure by either Party to exercise its rights, power, or privilege under this AGREEMENT will not be deemed a waiver of any such right, power, or privilege under this AGREEMENT. No waiver by a Party of any breach will constitute a waiver of any succeeding breach. No waiver will be valid unless executed in writing by the Party making the waiver.
If any term or condition of this AGREEMENT is to any extent held invalid or unenforceable by a court of competent jurisdiction, then the remainder of this AGREEMENT will not be affected thereby, and each term and condition will be valid and enforceable to the fullest extent
Except for Authorized Contractor(s) and detailed herein, neither Party may transfer this AGREEMENT or any rights or delegate any duties herein without the prior written consent of the other Party, which will not be unreasonably withheld, delayed, or conditioned. Either Party may assign this AGREEMENT in whole or part, without notice, to its affiliates or any entity acquiring all or substantially all of its assets relevant to this AGREEMENT or its entire business, whether by sale of assets, sale of stock, or otherwise. This AGREEMENT will inure to the benefit of the PARTIES hereto and their permitted successors and assigns.
16. FORCE MAJEURE
Neither Party will be liable hereunder for any failure or delay in its performance of its obligations in whole or in part on account of riots, fire, flood, earthquake, explosion, epidemic, war, strike, or labor dispute , embargo, act of God, government action, or other causes beyond its reasonable control.
17. EXPORT LAWS
Each Party sill comply with all applicable customers and export control laws and regulations of the United States and other country in which USER uses LICENSED MATERIALS. Each Party certified that it does not have personnel on the relevant US Government lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s list of Denied Persons. Neither Party will export, re-export, or otherwise transfer the LICENSED MATERIALS, services, or data to any country subject to an embargo or other sanction by the United States.
18. COMPLETE AGREEMENT, NOTICES
Together with any Non-Disclosure Agreement, Service Level Agreement (SLA) and Statement of Work(s) (SOW(s)) and appendices thereto, this AGREEMENT forms a complete understanding between the Parties, that can only be revised in writing by the two Parties. In the event of any conflict, the terms of any SOW(s) shall prevail. Both Parties consent to electronic communications and notifications from the other Party in connection with this AGREEMENT.
This AGREEMENT will be governed by and interpreted under the laws of the State of New York, excluding its principles of conflict of laws. The Parties agree that the exclusive forum for any action or proceeding will be in Queens County, New York and the Parties consent that the jurisdiction of the state and federal courts located in Queens County, New York. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this AGREEMENT.