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This License and Support Agreement and the Order attached hereto and any other Order hereunder mutually agreed upon in writing by the parties (collectively, the “Agreement”) is between Licensee and Symphony Service Corp. This Agreement governs Licensee’s use of the Software and Documentation. The parties hereby acknowledge and agree that BMC Software, Inc. (“BMC”) is an intended third party beneficiary to this License and Support Agreement.
1. DEFINITIONS. Under this Agreement, the following terms mean:
1.1 “Licensee” or “you” means the legal entity or person identified on the Order.
1.2 “Delivery” means that time when Symphony delivers the Software to Licensee, by electronic delivery or by courier service. Licensee will be deemed to have accepted the Software and related Documentation upon Delivery.
1.3 “Documentation” means the standard end-user technical documentation, specifications, materials and other information Symphony supplies with the Software. Advertising and marketing materials are not Documentation.
1.4 “Order” means Symphony’s standard order form for Software, Support Services and/or installation or training services: (i) that has been executed by Symphony and Licensee; or (ii) has otherwise been agreed to by the parties via an online ordering process. Any preprinted terms on any transactional or other documents issued in connection herewith (including, without limitation, purchase orders, RFPs, bills of lading, etc.) are of no force and effect.
1.5 “Release” means periodic updates to the Software that Licensee may receive from Symphony pursuant to Support Services.
1.6 “Software” means the proprietary Symphony software product (in object code format only) delivered to you by Symphony and specified in the Order, together with any Releases, when and if made available to you by Symphony. Software is commercial computer software developed exclusively at private expense.
1.7 “Support Services” means those maintenance support and technical support services for Software described in http://www.SymphonyPLM.com/Licenses/Marimba_Support_Policy and ordered by Licensee.
1.8 “User” means an individual authorized by you to use the Software solely in connection with your own internal business purposes and solely in a manner permitted under this Agreement.
2. SOFTWARE LICENSE AND ADDITIONAL ORDERS.
2.1 Subject to the terms and conditions of this Agreement, Symphony hereby grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable license in the Territory for the duration of the Term as set forth in an Order to permit its Users to install and use the Software in accordance with the Documentation for Licensee’s own internal business purposes.
2.2 Licensee may order additional Software, Support Services by completing and signing an applicable Order Schedule. All Order Schedules shall be subject to the provisions of this Agreement; provided, however that any conflict between the terms of this Agreement and the terms on an Order Schedule will be resolved in favor of the Order Schedule.
3. LICENSE RESTRICTIONS; THIRD PARTY SOFTWARE.
3.1 License Restrictions. Licensee shall not and shall not allow any third party to: (a) use the Software except as expressly permitted under Section 2; (b) separate the component programs of the Software for use on different computers; (c) adapt, alter, publicly display, publicly perform, translate, create derivative works of, or otherwise modify the Software; (d) sublicense, lease, rent, loan, transfer or distribute the Software to any third party; (e) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software, except as permitted by applicable law; (f) remove, alter or obscure any proprietary notices on the Software or Documentation; (g) allow third parties to access or use the Software, including without limitation any use in any application service provider environment, service bureau, or time-sharing arrangements; or (h) publish any results of benchmark tests run on the Software. No portion of the Software may be duplicated by Licensee, except as expressly authorized in an Order by Symphony. Licensee may make one copy of the machine-readable portion of the Software solely for back-up purposes, provided that such back-up copy is used only to restore the Software on the designated system. Licensee will reproduce on each such copy all notices of patent, copyright, trademark or trade secret, or other notices placed on Software by Symphony or its suppliers.
3.2 Third Party Software. Third Party Software means the software of certain third parties which Symphony may deliver with the Software, Third Party Software is subject to separate terms and conditions included with or contained in its setup installation segments.
4. FEES. The license fees and Support Service Fees are set forth in the Order (“Fees”). Licensee agrees to pay such Fees in accordance with the terms and conditions of this Agreement and the Order.
5. TAXES. Licensee will be responsible for and pay all sales, use and excise taxes, and like charges imposed by any federal, state, or local governmental entity for products or services provided under this Agreement. When Symphony has the legal obligation to collect such taxes, the appropriate amount shall be due upon invoice to Licensee unless Licensee provides Symphony with a valid tax exemption certificate authorized by the appropriate taxing authority. Licensee shall hold Symphony harmless from all claims and liability arising from Licensee’s failure to pay any such taxes, duties, or charges.
6. PROPRIETARY RIGHTS. Licensee acknowledges and agrees that the Software, including without limitation its sequence, structure, organization, source code and Documentation contains valuable trade secrets and other intellectual property of Symphony and its suppliers. The Software is licensed and not sold to Licensee, and no title or ownership to such Software or the intellectual property rights embodied therein passes as a result of this Agreement or any act pursuant to this Agreement. The Software and all intellectual property rights therein are the exclusive property of Symphony and its suppliers, and all rights in and to the Software not expressly granted to Licensee in this Agreement are reserved. Symphony owns all copies of the Software, however made. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any existing or future patents of Symphony, except to the extent necessary for Licensee to use the Software as expressly permitted under this Agreement.
7. SUPPORT SERVICES. To the extent ordered and paid for by Licensee, Symphony will provide the Support Services commencing as of the date of Delivery and continuing for the term specified in the Order. Thereafter, Support Services will renew by Licensee’s payment of the then-current invoice for such Support Services, unless either party terminates Support Services by providing written notice to the other party at least thirty (30) days prior to the end of the then-current term.
8. TERM AND TERMINATION.
8.1 The term of this Agreement will begin on the Effective Date of the Order and continue in force until: (a) all Software licenses granted under it terminate or expire; or (b) this Agreement is terminated. The license term for Software identified in an Order begins upon Delivery and will remain in effect for the period specified in such Order. This Agreement will immediately terminate upon your breach of this Agreement, unless such breach is curable and is actually and immediately cured by you after Symphony provides notice of breach to you, whereupon you will discontinue all use of the Software, promptly destroy or have destroyed the Software and any copies thereof, and certify in writing to Symphony that such destruction has taken place. Sections 1, 4, 5, 6, 8, 9, 10, 11, 12, 13, 15, 16 and 17 shall survive such termination.
8.2 Notwithstanding anything to the contrary herein or in any Order, in the event the underlying license between Symphony and BMC is terminated for any reason, this Agreement will automatically terminate without any additional obligation for Symphony to provide Support Services hereunder, provided that: (i) (i) any perpetual licenses granted to Customer shall continue in full force; and (ii) Symphony shall reimburse any pre-paid, but unearned Support Services Fees to Customer.
9. PROPRIETARY RIGHTS INDEMNITY
9.1 Symphony’s Obligation. Subject to Sections 9.2 and 9.3, Symphony will defend at its own expense any suit or action brought against Licensee by a third party to the extent that the suit or action is based upon a claim that the Software infringes such third party’s copyrights or misappropriates such third party’s trade secrets recognized as such under the Uniform Trade Secrets Act or other similar laws., Symphony will pay those costs and damages finally awarded against Licensee that are specifically attributable to such claim or agreed to in a monetary settlement of such claim. Defense and payments are subject to the conditions that: (a) Symphony will be notified promptly in writing by Licensee of any claim; (b) Symphony will have sole control of the defense and all negotiations for any settlement or compromise of a claim; and (c) Licensee will timely provide all reasonably requested information and materials and shall otherwise cooperate with Symphony and, at Symphony’s request and expense, assist in the defense. THIS 9 .1 STATES SYMPHONY’S ENTIRE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT AND MISAPPROPRIATION.
9.2 Alternative. If Licensee’s use of Software is prevented by injunction or court order because of infringement, or should any Software be or be likely to become the subject of any claim in Symphony’s opinion, Licensee will permit Symphony, at the sole discretion of Symphony and no expense to Licensee, to: (i) procure for Licensee the right to continue using Software in accordance with this Agreement; or (ii) replace or modify Software so that it becomes non-infringing while providing substantially similar features; or (iii) (a) where Licensee has paid for a perpetual license, accept the return of Software and grant Licensee a refund of the last perpetual license fee paid for such Software as amortized on a sixty (60) month, straight-line basis and the licenses will immediately terminate; or (b) where Licensee has ordered a term license, Symphony shall refund any prepaid but unearned fees therefor.
9.3 Exclusions. Symphony will have no liability to Licensee for any claim of infringement or misappropriation to the extent based upon: (a) use of the Software not in accordance with this Agreement or the Documentation; (b) the combination of Software with third party hardware or software not conforming to the operating environment specified in Documentation; (c) use of any Release of the Software other than supported Releases as indicated in the Support Services and made available to Licensee; or (d) any modification of the Software by any person other than Symphony. Licensee will indemnify Symphony against all liability, damages and costs (including without limitation reasonable attorneys’ fees) resulting from any such claims.
10. WARRANTY AND DISCLAIMERS.
10.1 Software Warranty. Symphony warrants to, and for the sole benefit of, Licensee that subject to Section 10.2, any Software, as delivered by Symphony and properly installed operated and used as permitted under this Agreement and in accordance with the Documentation, will perform substantially in accordance with the functional requirements set forth in the Documentation for ninety (90) days from the date of Delivery. Licensee’s exclusive remedy and Symphony’s sole liability for breach of this warranty is for Symphony, at its own expense and option, to replace the Software with a corrected version of the Software, or use commercially reasonable efforts to correct those errors that Licensee reports to Symphony during such warranty period. If Symphony determines that it is unable to correct the error or provide a replacement with the reported error corrected, then Symphony may, at its option, accept the return of the Software, whereupon Symphony will refund the license fees actually paid to Symphony by Licensee, and the license will immediately terminate. Any error correction provided will not extend the original warranty period.
10.2 Exclusions. Symphony will have no obligation under this Agreement to correct, and Symphony makes no warranty with respect to, errors related to: (a) improper installation of the Software by Licensee; (b) changes that Licensee has made to the Software; (c) use of the Software in a manner inconsistent with the Documentation and this Agreement; (d) combination of the Software with third party hardware or software not conforming to the operating environment specified in the Documentation; or (e) malfunction, modification, or relocation of Licensee’s servers.
10.3 Disclaimer. EXCEPT AS PROVIDED IN SECTION 10.1, SYMPHONY HEREBY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, INSTALLATION SERVICES, SUPPORT SERVICES, AND ANY OTHER PRODUCTS OR SERVICES PROVIDED TO LICENSEE UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, NON-INFRINGEMENT, ACCURACY AND SECURITY.
11. LIMITATION OF LIABILITY. IN NO EVENT SHALL SYMPHONY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DAMAGES FOR INTERRUPTION OF BUSINESS, LOST DATA, LOST PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE CUMULATIVE LIABILITY OF SYMPHONY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID TO SYMPHONY IN RESPECT OF THE SOFTWARE GIVING RISE TO THE CLAIM IN THE IMMEDIATELY PRECEDING 12 MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE FOREGOING EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN. IN NO EVENT WILL ANY SUPPLIER TO SYMPHONY HAVE ANY LIABILITY TO YOU UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND SYMPHONY. SYMPHONY WOULD NOT PROVIDE THE SOFTWARE TO YOU ABSENT SUCH LIMITATION.
12. REMEDIES; AUDITS. You acknowledge and agree that the Software contains valuable trade secrets and proprietary information of Symphony. You further acknowledge and agree that any actual or threatened breach or violation of Section 2 or Section 3 of this Agreement will constitute immediate, irreparable harm to Symphony for which monetary damages would be an inadequate remedy, and that Symphony shall be entitled to injunctive relief for any such breach or violation without the necessity of proving damages or posting a bond. During the term of this Agreement and for two (2) years thereafter, Symphony or its representatives may, upon at least ten (10) days’ written notice, inspect and audit records, computer systems, and premises of Licensee during normal business hours to verify Licensee’s compliance with this Agreement.
13. CONFIDENTIAL INFORMATION. By virtue of this Agreement, either party (or its agents) may have access to Confidential Information of the other party. “Confidential Information” means non-public information clearly identified as proprietary or confidential, or which given its nature and the circumstances surrounding its disclosure should reasonably be construed to be confidential. Any software, documentation or technical information, methodologies, plans or third party information, pricing or terms, or Licensee information provided by Symphony shall be deemed Confidential Information and trade secrets of Symphony, without any marking or further designation. Each party agrees to hold the other party’s Confidential Information in confidence during the term of this Agreement and thereafter. Each party further agrees that, unless required by law, it will not make the other party’s Confidential Information available in any form to any third party or use such Confidential Information for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Confidential Information does not include information that: (a) is or becomes publicly available through no act or omission of the receiving party; (b) the disclosing party discloses to a third party without restriction on disclosure; (c) is disclosed to the other party by a third party without restriction on disclosure and without breach of a nondisclosure obligation; (d) is independently developed by employees of the receiving party who had no access to such information; or (e) is already lawfully known to the receiving party without nondisclosure obligations before it received the Confidential Information from the disclosing party.
14. FORCE MAJEURE. Except for required payments, neither party shall be liable for failure to perform or for delay in performing its obligations to the extent and as long as such failure or delay is due to natural disasters, acts of war, acts of terror, significant changes in applicable laws or regulations or any other causes reasonably beyond the control of such party (each a “Force Majeure Event”). Any party invoking the protection of this Section shall promptly notify the other party of the Force Majeure Event and the extent to which the affected party will be unable to perform its obligations. Such excuse shall continue as long as the Force Majeure Event continues. When a Force Majeure Event ends, the excused party shall promptly give the other party written notice and resume performance. If a Force Majeure Event continues for any consecutive period of ninety (90) days, the other party shall have the right to terminate this Agreement upon providing written notice to the non-performing party. This termination shall be effective no earlier than thirty (30) days from the date of notice delivery.
15. GOVERNMENT END USERS; NOTICE OF RESTRICTED RIGHTS. If a government entity is “Licensee” hereunder, such Licensee hereby acknowledges and agrees that the Software qualifies as “commercial” within the meaning of the acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the government’s use and disclosure of the Software, and shall supersede any conflicting contractual terms and conditions. If the license granted by this Agreement fails to meet the government’s needs or is inconsistent in any respect with Federal law, the government agrees to return the Software, unused, to Symphony. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and 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 (Oct. 1988).”
16. GENERAL. You will comply with all applicable laws and regulations in your activities under this Agreement, including all applicable export and import laws. You will not export or re-export the Software in violation of any applicable laws or regulations, or without all required licenses and authorizations. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall not be affected or impaired. You may not assign or transfer this Agreement without Symphony’s prior written consent. Nothing herein will be construed to create any agency, employment, partnership, principal-agent relationship, or other joint enterprise between the parties. This Agreement may be amended only by a writing signed by you and Symphony. This Agreement constitutes the complete, final, and exclusive statement of the agreement between you and Symphony, and supersedes all proposals, oral or written, and all other communications between the parties relating to its subject matter. No waiver of any provision of this Agreement is valid unless made in writing and signed by Symphony. The section headings contained in this Agreement are inserted for convenience of reference only and shall not be deemed to be a part of this Agreement. This Agreement may be executed in as many counterparts as required, and all counterparts shall constitute a single Agreement. This Agreement shall inure to the benefit of the parties and their respective successors and authorized assigns. Except as expressly provided otherwise in this Agreement, this Agreement is intended to be for the sole and exclusive benefit of the parties.
17. GOVERNING LAW; NOTICES
17.1 Notices. Notices must be delivered in writing by courier, by certified or registered U.S. mail (postage prepaid and return receipt requested) or by nationally recognized overnight courier service, and will be effective upon receipt or three (3) business days after being deposited in the U.S. mail, whichever is sooner. Symphony shall issue notices to the Licensee address in the applicable Order. For Symphony, issue notices to: General Counsel, Symphony Teleca Services Inc, 636 Ellis Street, Mountain View, CA 94043.
17.2 Governing Law. This Agreement will be governed by the laws of the State of California, irrespective of its choice of law provisions. All actions or proceedings arising under or related to this Agreement must be brought in a federal or state court located in Santa Clara, California, and each party hereby agrees to irrevocably submit to the jurisdiction and venue of these courts. Notwithstanding the foregoing, each party may bring an action or suit to protect its intellectual property rights in any court having jurisdiction.