M2YS Software License Agreement

BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT BY ANY MEANS, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AS “CUSTOMER” HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “CUSTOMER” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE THAT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICES.

PARTIES

This M2SYS Software License Agreement (this “Agreement”) is between M2SYS, Inc. (“Licensor”) and the individual or entity that has executed this Agreement (“Customer”). This Agreement sets forth the terms and conditions that govern orders placed by Customer for the Licensed Program, Biometric Hardware, and Licensed Materials under this Agreement.

SOFTWARE

Licensor will furnish copies of the Licensed Program and Biometric Hardware to Customer equal to those purchased by Customer in machine-readable object code form and will provide one (1) copy of the Licensed Materials to Customer containing detailed specifications for the operation and use of the Licensed Program.

PRODUCT LICENSE, SERVICE AND HARDWARE FEES 

“Order Form” means any Order Form(s), quotes or estimates provided to Customer and thereby attached to this Agreement, specifying the Customer, Licensed Program, Biometric Hardware, and any other information pertinent and as subject to the terms of this Agreement.

“Licensed Program” means the software identified in any Order Form applicable to this Agreement.

“Biometric Hardware” means the biometric device(s) identified in any Order Form applicable to this Agreement.

“Licensed Materials” means user guides, installation documents, and training material pertinent to the Licensed Program and Biometric Hardware.

TERMS AND CONDITIONS

  1. LICENSE. Licensor hereby grants to Customer a non-exclusive, non-transferable license (the “License”) to use the Licensed Program and Licensed Materials, subject to the terms and conditions contained herein. The term of this license is perpetual, commencing upon acceptance of this Agreement by Licensor. This Agreement, the Licensed Program and Licensed Materials to which it applies, may not be assigned, sub licensed, or transferred by the Customer without prior written consent from Licensor which will not be unreasonably neither withheld nor delayed, provided that the above restriction shall not apply to Customer’s affiliates, subsidiaries, and/or  successor in title.
  1. PROPRIETARY RIGHTS. Licensor owns and retains all right, title and interest (including, without limitation, all Intellectual Property Rights) in and to the Licensor Materials (and any permitted copies or partial copies of Licensor Provided Materials made by Customer) and Licensor’s Marks, and nothing herein grants or conveys to Customer any right, title or ownership interest therein; provided that Customer is granted, for the term of this Agreement, a nontransferable, non-exclusive, limited license to access and use the Licensed Program and Licensed Materials in accordance with the provisions of the Agreement for its own internal use solely in conjunction with its Licensed Program use.
  1. USE. Licensor shall be responsible for the delivery of the Licensed Program(s) together with the documentation. The Customer shall be exclusively responsible for the supervision, management and control of its use of the Licensed Program(s), including without limitation; (i) assuring proper machine configurations, audit controls and operating methods: (ii) establishing adequate backup plans, based on alternative procedures and access to qualified programming personnel; and (iii) implementing sufficient recovery procedures and checkpoints to satisfy its requirements for security and accuracy of input, as well as, system restart and recovery in the event of a malfunction.

    The Licensed Program and Licensed Materials may be used only in the furtherance of the internal operations of the Customer or its wholly owned or majority owned subsidiaries. In no event shall the Licensed Program be used to process information by or for the benefit of third parties.

    During the term of this Agreement, and at any given time, the Customer is authorized to use the Licensed Program on a limited number of the Customer’s computers or on a cluster of computers; the Customer may license additional copies of the Licensed Program pursuant to the Licensor multiple installation pricing policy effective at the time of execution of this Agreement.

    The Customer may not copy or otherwise reproduce the Licensed Program, or any part thereof (except such copying, strictly limited in number, as is essential for system backup, testing, maintenance or recovery purposes). The Customer may reproduce the Licensed Materials solely for its own internal use provided that all titles, trademarks, trade names, copyright notices, and other proprietary notices of Licensor are retained.

  1. CONFIDENTIALITY. a. Duty of Confidentiality.  Each Party shall hold in confidence and shall cause its officers, employees, contractors and agents to keep confidential and not use, except in the performance of this Agreement and the applicable Statement of Work, information disclosed by the other Party concerning its business or operations (whether or not identified by the parties orally or in writing as confidential) (“Confidential Information”), except if such disclosure by the other Party is consented to in advance in writing.  The foregoing obligations of nondisclosure shall not apply to information that:  (i) is or becomes generally available to the public through no fault of the other Party; (ii) can be shown in writing to have been known by the other Party at the time of its disclosure; (iii)becomes known to a Party from a source other than the other Party without a duty of non-disclosure;  (iv) is independently developed by the other Party without breach of this Agreement or the applicable Statement of Work; or (v) is disclosed pursuant to law. Nothing contained in this Section shall be construed as obligating a Party to disclose its confidential information to the other Party, or as granting to or conferring on a Party, expressly or impliedly, any rights or license to the confidential information of the other Party.  For the purpose of this Section 4, the contents of this Agreement shall be held in confidence, provided, however, that Customer may disclose the contents of this Agreement to its agents, consultants and other professional advisors, provided that such agents, consultants, and other professional advisors are under similar obligations of non-disclosure and confidentiality as set herein.

    b. Requests to Disclose. If any recipient of Confidential Information becomes legally compelled by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process to disclose any Confidential Information, such recipient will, if permitted by law, promptly notify the disclosing Party so that it may seek a protective order and/or waive compliance with the provisions of this Agreement. If such protective order is not obtained, or if the disclosing Party waives compliance with the confidentiality provisions of this Agreement in writing, the recipient will furnish only that portion of the confidential information which is legally required, and the recipient will exercise its best efforts to obtain reliable assurance that the confidential information will be accorded confidential treatment.

    c. Survival. The provisions of Section 4 shall survive the expiration or termination of this Agreement for any reason.

  2. Licensor warrants that (i) it may lawfully grant the License, (ii) neither the Licensed Program or Licensed Materials, or the use thereof within the scope of the License, infringes any intellectual property of any person who has not consented to the granting of the License, (iii) at the time of installation, and for so long thereafter as Customer pays Maintenance Fees hereunder, the Licensed Program, will conform to applicable software documentation (i.e., all Licensed Materials, including User Guides and Reference Manuals) delivered by Licensor to the Customer; and (iv) neither the Licensed Program nor the Licensed Materials contain any virus, time bomb mechanism or other software or code that can disable or adversely affect any and all of the Licensed Program or the Licensed Materials or destroy any data or other software. Licensor shall not be obligated to cure, correct, or otherwise remedy any error or defect in the Licensed Program to the extent that the error or defect was caused by (a) Customer having performed any modifications to the Licensed Programs without Licensor’s authorization or knowledge, or (b) the Licensed Program having been misused or damaged in any respect other than by personnel of Licensor. After all Maintenance Fees and warranty terms expire, Licensor assumes no responsibility for obsolescence of the Licensed Program or documentation.

    Licensor, as defined below, warrants the Biometric Hardware against defects in materials and workmanship under normal use for a period of ONE (1) YEAR from the date of delivery to Customer (“Warranty Period”). If a hardware defect arises and a valid claim is received within the Warranty Period, at its option, Licensor will either (1) repair the hardware defect at no charge, using new or refurbished replacement parts, or (2) exchange the product with a product that is new or which has been manufactured from new or serviceable used parts and is at least functionally equivalent to the original product.  This warranty covers defects in manufacturing that arise during normal use and proper care of the Biometric Hardware.  This warranty does not apply: (a) to damage caused by use with anything besides the Biometric Hardware; (b) to damage caused by accident, abuse, misuse, flood, fire, earthquake or other external causes, including physical abuse to the Biometric Hardware (for example cuts or scratches to the biometric sensor window), or use of corrosive, abrasive, or improper cleaning materials, or any misapplication, improper modifications or repair, activity intended to circumvent the security devices incorporated into the Biometric Hardware, criminal activity, moisture, shipping, or high voltage surges from external sources; (c) to damage caused by operating the Biometric Hardware outside the permitted or intended uses described by Licensor; (d) to damage caused by service (including upgrades and expansions) performed by anyone who is not authorized by Licensor; (e) to a product or part that has been modified to significantly alter functionality or capability without the written permission of Licensor; (f) to consumable parts, such as batteries, unless damage has occurred due to a defect in materials or workmanship; or (g) if any serial number has been removed or defaced.

    NOTWITHSTANDING THE AFOREMENTIONED, LICENSOR MAKES NO WARRANTY, GUARANTEE OR REPRESENTATION OF ANY KIND UNDER OR IN CONNECTION WITH THE SERVICES, THE AGREEMENT, THE LICENSED PROGRAM AND THE LICENSED MATERIALS, INCLUDING, WITHOUT LIMITATION: (I) ACCESS TO, OR USE OF, THE LICENSED PROGRAM WILL BE UNINTERRUPTED, COMPLETE, ACCURATE OR ERROR FREE; (II) THE EXTENT TO WHICH CUSTOMER IS ABLE TO CONDUCT BIOMETRIC PROCESSING OVER THE LICENSED PROGRAM. IN ADDITION, THE RELIABILITY, ACCURACY, COMPLETENESS, TIMELINESS AND USEFULNESS OF THE LICENSED PROGRAM ARE NOT WARRANTED OR GUARANTEED. CUSTOMER AGREES THAT THE LICENSED PROGRAM WILL BE SUBJECTED TO AND GOVERNED BY CUSTOMER’S DATA SECURITY GUIDELINES, POLICIES AND PROCEDURES AND THEREFORE LICENSOR IS NOT RESPONSIBLE FOR ANY SECURITY BREACHES PERTAINING TO THE LICENSED PROGRAM BEYOND ITS CONTROL. LICENSOR HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

    LICENSOR AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.

    No employee or agent of Licensor is authorized to give a greater or different warranty.

  1. INDEMNIFICATION. Licensor will indemnify, defend, and hold Customer and its affiliates (and their officers, directors, employees and agents) harmless against any and all costs, losses, damages or expenses (including reasonable attorney’s fees) that any of them may incur or be subjected to by reason of any claim, demand or suit arising from the Licensed Program infringing a  patent, copyright, trademark or any other intellectual property rights of a third party, provided that (i) Licensor shall be notified  by the Customer of any notice of such claim; (ii) Licensor shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; and (iii) the Customer shall permit Licensor, at Licensor’s option and expense, either to procure for the Customer the right to continue using the Licensed Program or modify the Licensed Program so that it becomes non-infringing.
  1. LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, LICENSOR AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND LICENSOR’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT OR $10,000, WHICHEVER IS LESS, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  1. MAINTENANCE PLAN. Subject to the payment of the applicable Maintenance Fees, the Customer shall receive:

    New Releases: From time to time Licensor may issue modified or enhanced versions of the Licensed Program, herein referred to as a “New Release”, and will provide the Customer with one (1) complete copy of such New Release and one (1) copy of the documentation updates. Following shipment of the New Release materials, the previous release shall remain “current,” for purposes hereof, for a period of six (6) months: thereafter only the New Release will be current. New Releases will only be issued to Customers who have a current Maintenance Plan in effect. Licensor shall have no obligation hereunder to furnish the Customer with separately priced components to a Licensed Program or Licensed Materials except as explicitly described in this License Agreement, unless Customer has entered into an additional License Agreement for such separately priced components. Licensor shall continue to provide maintenance to the Licensed Program so long as it continues to make the Licensed Program commercially available.

    Service: Only if Customer’s account status is current for liable Maintenance and Support Fees, upon receipt of telephone or written notice(s) from the Customer specifying failures or errors found in a Licensed Program, and upon receipt of such additional information as Licensor may request, Licensor will correct defects in the current release of such Licensed Program in accordance with the terms set forth in Licensor’s Support Service Level Agreement, which shall be provided separately, as long as the Licensed Program has not been substantially altered by Customer. Licensor is not obligated to perform investigation and/or correction of defects found by Licensor to be (i) in other than a current release which has not been substantially altered by the Customer or; (ii) caused by negligence or modification of the Licensed Program or use thereof in combination with software not provided by Licensor.

    The Maintenance Plan shall be automatically renewed on an annual basis and the Customer shall pay therefore according to the then current Maintenance Fee.  Licensor shall deliver to Customer an invoice no more than fifteen (15) days following such anniversary date. Such invoice shall be due and payable within 30 days from the receipt of the invoice. Customer may elect at the execution of this Agreement, or upon any anniversary date hereof, to purchase a Multi-Year Maintenance Plan by paying in advance to Licensor maintenance fees for two or more years.

    Maintenance Fees payable under this Section shall be established by Licensor in its sole discretion. Notwithstanding the above, for the first three years after contract execution, the annual Maintenance Fees shall not be increased. For years thereafter, any Maintenance Fee increases shall be limited to the percent change not to exceed 3%.

  1. PAYMENT. All undisputed Product License and Services Fees outlined in any Order Form applicable to this Agreement shall be paid within 30 days from the date of invoice receipt (“Payment Terms”). Customer agrees to reimburse Licensor for (i)  reasonable shipping, handling, travel and other reasonable out-of-pocket expenses incurred by Licensor in connection with this Agreement or its performance, if any; and (ii) amounts equal to  taxes paid or payable by Licensor, however designated, levied, or based on this Agreement, or on any Licensed Program or Licensed Materials, its charges or its use, including without limitation, any value-added, royalty, federal, state or local sales, use, and property taxes, and any taxes or amounts in lieu thereof, exclusive, however, of taxes based on the income of Licensor. Purchases of any Licensed Product, Biometric Hardware, or other equipment are subject to the M2SYS Returns Policy.
  1. TERMINATION. Any dispute arising out of or relating to this Agreement shall be resolved in accordance with the procedures specified in this Article 10, which shall be the sole and exclusive procedures for the resolution of any such disputes.

    Mediation.  In the event of any dispute, claim, question, or disagreement arising out of or relating to this Agreement or the breach thereof, the parties hereto shall use their best efforts to settle such disputes, claims, questions, or disagreement.  If the parties cannot by exercise of their best efforts resolve the dispute, they shall submit the dispute to Mediation. The parties shall, without delay, continue to perform their respective obligations under this Agreement which are not affected by the dispute. The invoking party shall give to the other party written notice of its decision to do so, including a description of the issues subject to the dispute and a proposed resolution thereof. Designated representatives of both parties shall attempt to resolve the dispute within thirty (30) days after such notice. If those designated representatives cannot resolve the dispute, the parties shall meet at a mutually agreeable location and describe the dispute and their respective proposals for resolution to responsible executives of the disputing parties, who shall act in good faith to resolve the dispute. If the dispute is not resolved within thirty (30) days after such meeting, the dispute shall be submitted to binding arbitration in accordance with the Arbitration provision of this Agreement.

    Arbitration.  Any disputes arising hereunder shall be resolved by reference to an independent third-party arbitrator pursuant to the terms provided by the American Arbitration Association. The venue for any arbitration proceeding will be held in a mutually agreeable location. If the parties cannot agree on a location, then the state of Georgia, USA shall be the location.  This provision shall survive the termination of the contract and shall apply to any disputes including termination, modification, or discontinuance of the contract.

  2. GENERAL. All subsequent modifications, amendments, and waivers to this Agreement must be by written instrument, executed by authorized representatives of the parties hereto. In the event that any provision under this Agreement shall be deemed illegal or otherwise unenforceable by any applicable statute or rule of law, such provision shall be omitted and the entire Agreement shall not fail on account thereof and the remainder of the Agreement shall continue in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any other breach of any other provision hereof.. This Agreement shall be binding upon and inure to the benefit of any successor of the Customer, who, whether by merger, purchase, or otherwise, acquires all or substantially all of the assets or business of the Customer. Both parties agree that neither party shall directly solicit or hire the other party’s employees involved in the relationship established by this Agreement as an employee or as a consultant in the same geographical region, provided that provided that Customer shall not be restricted from hiring any employee known to Customer prior to the date hereof or who responds to any general solicitation or public advertising of employment opportunities not targeted to Provider’s employees.

    All notices and other communications hereunder shall be by written instrument and shall be deemed given upon certified mailing with return receipt, addressed to the party to be notified at the address provided by Customer, or, if to Licensor, addressed to President, M2SYS, Inc., 1050 Crown Pointe Pkwy, Suite 850, Atlanta, GA  30338.

    This Agreement is governed and construed by the laws of the state of Georgia. In the event of any dispute concerning this Agreement, suit may be brought only in a court of competent jurisdiction in a forum mutually agreed upon by both parties. This Agreement, including all Addenda, attached hereto, represents the complete and exclusive statement of the agreements between the parties and supersedes all prior agreements and representations between them. This Agreement is binding upon the parties upon execution by Customer and acceptance by Licensor.